APPENDIX 3: CALL FOR EVIDENCE
SCOPE OF THE COMMITTEE'S INQUIRY
Overarching questions:
How do the proposals set out in the Draft Bill and
White Paper fit into the wider constitutional context?
The Government have stated that a key goal is to
"rebalance power between Parliament and the Government, and
give Parliament more ability to hold the Government to account"
(White Paper, paragraph 2). The Draft Bill covers a number of
disparate subjects. Is it appropriate for one single Bill to contain
such a range of provisions?
Do the proposals set out in the Draft Bill and White
Paper move towards achieving the Government's aim of giving Parliament
more ability to hold the Government to account?
Aspects of the Draft Bill and White Paper
on which the Committee would particularly welcome evidence:
The Joint Committee's inquiry will cover:
the provisions in the Draft Bill,
those elements of the White Paper (published with
the Draft Bill) that relate to the subjects covered in the Draft
Bill, and
the proposals in the White Paper covering War Powers.
Other Parliamentary Committees are also undertaking
scrutiny on parts of the Draft Bill, in particular the Commons
Justice Committee (on the Attorney General) and the Public Administration
Select Committee (on the Civil Service). The Joint Committee will
take into account evidence given to and reports made by these
Committees in producing its final report.
Civil Service
Do the provisions in the Draft Bill increase the
accountability of the civil service and the Civil Service Commissioners
to Parliament?
The Draft Bill puts the Civil Service Commission
on a statutory footing as a non-departmental public body. Will
this increase the independence of the Commissioners?
Under the Draft Bill, the Commission retains the
right to hear appeals from civil servants and make recommendations,
but the Draft Bill does not state who recommendations should be
made to. Should this be included in statute?
Should the Commission be given the power and resources
to initiate investigations without an appeal being made to it?
Appointments to the civil service must be made on
merit following open and fair competition, but the Draft Bill
sets out a number of exceptions to this (in clause 34(3). Are
these exceptions appropriate?
The Draft Bill does not define the number or role
of special advisers. Instead, special advisers must comply with
a Code of Conduct published by the Government and the Government
must lay an annual report containing information about the number
and cost of special advisers. Are these provisions appropriate?
Is the way the Draft Bill defines 'civil servants'
and 'the civil service' appropriate? Are the exclusions in clause
25(2) appropriate?
Protests
The Draft Bill provides an opportunity to re-balance
the right to protest outside Parliament against the right of Parliament
to operate effectively and without hindrance. How should this
balance be struck?
Should Parliament be treated any differently from
any other part of the country in terms of managing protests? How
should the legitimate expectations of Parliamentarians and Parliamentary
authorities be defined? In particular, would the repeal of sections
132 to 138 of Serious Organised Crime and Police Act give rise
to a need for new powers for the police or other authorities to:
Ensure free access to, from and around the Parliamentary
Estate and to enable Parliamentarians to discharge their roles
and responsibilities,
Restrict the use of loudspeakers,
Take account of the particular security risk,
Protect Parliament Square as a world heritage site,
Prevent permanent demonstrations in Parliament Square,
Ensure equal access to the right to protest.
Are Sessional Orders (Orders passed by Parliament
which impose an obligation on the Metropolitan Police Commissioner)
still an appropriate means to manage protests around Parliament?
Attorney General
Is the Government's approach to the reform of the
Attorney General's role and powers right?
Compared with the current situation, are the powers
of the Attorney General increased or decreased under the proposals
in the Draft Bill? In particular, are the Government's proposals
for a statutory power to intervene to safeguard national security
appropriate? To what extent can this power be subjected to judicial
review or held to account within Parliament?
The Draft Bill requires the Attorney General to lay
an annual report before Parliament. Will this increase the Attorney
General's accountability to Parliament? Are additional measures
needed?
Do the proposals strike the right balance between
accountability of the Attorney General to Parliament for prosecutions
and the independence of prosecutors?
When is it appropriate for the Attorney General to
attend cabinet?
Is the Government's proposed model of a statutory
protocol between the Attorney and the prosecuting authorities
a good one? Is the content of the proposed protocol right?
Should the oath of office of the Attorney General
be a statutory requirement like that of the Lord Chancellor?
Should the Attorney General's power to stop a prosecution
by way of a nolle prosequi be abolished?
Are the provisions of the Draft Bill setting out
the tenure of office of the Prosecutorial Directors appropriate?
Should the Attorney General's legal advice be disclosed?
NB—Leave to appeal to the House of Lords was
granted on 24 April 2008 from the judgment of the High Court concerning
the decision of the Director of the Serious Fraud Office to discontinue
the investigation into BAE Systems concerning alleged corruption
in relation to the Al Yamamah contract with Saudi Arabia. The
case is, therefore, sub judice. This means that no reference
should be made to the case in the Joint Committee's public proceedings,
either by Members or witnesses, or in the written evidence submitted
to the Committee. This does not, of course, prevent the Committee
or witnesses before it from commenting on the wider issues of
the Attorney-General's powers to direct prosecutions.
Judicial Appointments
Is it too early to embark on further reform of judicial
appointments only 3 years after the new system was established
in the Constitutional Reform Act 2005? Are reforms necessary to
reduce bureaucracy and to streamline the appointments process?
Are the Government's proposals to remove the role
of the Prime Minister from the appointments process and reduce
the Lord Chancellor's discretion in relation to appointments below
the High Court appropriate?
Does the reduction in the executive's role in judicial
appointments leave a gap in Parliamentary accountability? The
White Paper suggests that this gap might be filled by giving new
powers to the Lord Chancellor to set targets and issue directions,
and proposes an annual meeting of the Commons Justice Committee
and the Lords Constitution Committee. Are these proposals appropriate
and sufficient?
The Government is proposing to give new powers to
the Lord Chancellor, including:
Powers to set targets or issue directions to the
Judicial Appointments Commission (which the White Paper recognises
is a complex issue),
Power to set non-statutory eligibility criteria concerning,
for instance, the qualifications, experience and expertise that
is required for a post,
A delegated power to remove judicial offices from
the list that are required to be filled following a selection
by the Judicial Appointments Commission under the Constitutional
Reform Act 2005,
Responsibility for arranging medical checks.
Are these proposed new powers appropriate? What impact
will they have on the independence of the Judicial Appointments
Commission and the appointments process, including the balance
of merit and diversity?
Part 2 of Schedule 3 of the Draft Bill proposes a
number of key principles that must be taken into account by the
Judicial Appointments Commission and others involved in the appointments
process. Are these the right principles? How should they be monitored
and enforced?
Should the Government create the Judicial Appointments
Commission Panel? If so, are the provisions in the draft Bill
adequate?
Is the current size and composition of the Judicial
Appointments Commission Board right? Should the process for reappointing
Commissioners be simplified?
Treaties
Do the proposals in the Draft Bill give the right
balance of power to the two Houses? Is it right that the House
of Commons has the power to delay treaties indefinitely? Is it
right that the Government can re-introduce a treaty which has
been subject to a negative vote in the Commons? How should a negative
vote in the Lords (as opposed to the Commons) be treated?
Is there any merit in Parliament seeking to scrutinise
draft treaties prior to signature?
Should there be a formal mechanism for Parliament
to request an extension of the 21 day sitting day period that
treaties are required to be laid before Parliament?
Clause 22 of the Draft Bill makes provision for a
treaty to be ratified without parliamentary approval in exceptional
circumstances. Is it appropriate for the Secretary of State to
have the discretion to decide when exceptional circumstances apply?
Should there be a requirement on the Secretary of State to (a)
take such steps as he thinks appropriate to consult Parliament
or (b) report back to Parliament after a treaty has been ratified
under clause 22?
Are the Government's proposed definitions of "treaty"
and "ratification" (contained in clause 24 of the draft
Bill) right and unambiguous?
Should Parliament change the way it approaches scrutiny
of treaties?
War Powers
Is the Government right to adopt a resolution route
rather than a legislative route for War Powers? Is the Government's
proposal for a detailed House of Commons resolution, as opposed
to a statutory or a hybrid solution, appropriate? Will Parliamentary
scrutiny of the executive in this area be increased by the proposals
in the White Paper?
Does the draft Resolution in the White Paper give
Parliament sufficient control over conflict decisions? In particular,
Should the Prime Minister determine the most appropriate
timing for seeking parliamentary approval?
Should the Prime Minister decide what information
should be supplied to Parliament?
In the event that the mechanism contains exceptions
to the requirement for parliamentary approval, should the Prime
Minister alone determine if the relevant emergency or security
conditions are met?
Should there be a requirement to seek retrospective
approval where exceptional circumstances have been deemed to apply?
Should the Prime Minister determine whether the security
condition continues to mean that it would not be appropriate to
lay a report before Parliament?
Should there be a regular re-approval process?
Is the role of the House of Lords under the proposals
right?
Is it appropriate that approval is not required for
a conflict decision involving or assisting the special forces?
Have the terms 'conflict decision' and 'UK forces'
been adequately defined in the draft resolution?
| 
