Memorandum by Mark Ryan (Ev 36)
1. My name is Mark Ryan and I am a Senior
Lecturer in Constitutional and Administrative Law at Coventry
University. My submission, however, is made in my own personal
capacity and indicates my personal observations on the Draft Constitutional
Renewal Bill. It in no way reflects the views of my employers
(Coventry University).
2. At the outset, the Government should
be commended on its inclusive approach to constitutional reform
in relation to the Draft Constitutional Renewal Bill 2008 (hereafter
the Bill). Indeed, producing the Bill in draft form will ensure
that it is subject to effective pre-legislative scrutiny and provide
those outside Government with an opportunity to shape its provisions.
Unlike other countries which are required to adhere to specified
procedures in order to modify their constitution, in the United
Kingdom, our uncodified constitutional arrangements can be amended
at will and with little fanfare. In this context therefore, it
is imperative that any constitutional changes are secured in the
most consensual and participatory way possible. After all, as
has been said before, the British Constitution is not the preserve
of any one political party, or indeed the Government of the day
for that matter. My observations will be confined to selected
aspects of the Draft Constitutional Renewal Bill.
3. In terms of the overarching questions,
the Bill is consistent with the United Kingdom's historical approach
to reforming the constitution which is to amend it on an incremental
basis (Q1). There is also no objection in principle to the Bill
containing disparate elements and provisions (Q2). In fact, the
Constitutional Reform Act 2005 simultaneously (and successfully)
comprised provisions relating to the reform of the Lord Chancellor,
the reform of judicial appointments and the creation of a Supreme
Court. The Bill as a whole does re-balance the relationship between
the executive and Parliament in favour of the latter; however
this constitutional shift of power could have been made more pronounced
(Q3).
4. In terms of the Civil Service (Part 5),
by enshrining the core values which underpin the Civil Service,
the Bill will enhance the accountability of civil servants. The
Bill will, however, also (and arguably more importantly) provide
the Civil Service with protection by preventing the above values
from being undermined or diluted by any future Government (Q4).
Placing the Civil Service Commission on a statutory basis should
enhance the independence of the Commissioners (Q5) and the Bill
should specify to whom Civil Service Commissioners should make
recommendations (Q6). In terms of initiating investigations, the
Civil Service Commission should be authorised to initiate investigations,
thereby equipping it with a pro-active role (Q7).
5. Given the nature of the advice that Special
Advisers provide (and the relatively short duration of their employment),
it does not seem problematic for their appointment to be excluded
from the principle of selection on merit based upon open and fair
competition (Q8). The Bill should be amended so as to specify
the number of Special Advisers, thereby creating a statutory cap
on their numbers (Q9). The Bill should also specify their precise
constitutional role and powers—in this way their responsibilities
would be limited by stipulating exactly what they are expressly
permitted to do. Although clause 39 of the Bill provides for the
Minister for the Civil Service to lay an annual report before
Parliament concerning Special Advisers, in effect, this provides
Parliament with information (eg, the number and cost of Special
Advisers), rather than any de facto control. On a related
issue, the Bill should be amended so as to provide for the Special
Advisers Code of Conduct (clause 33) to be subject to Parliamentary
approval, and not just simply laid before Parliament.
6. In terms of protests (Part 1), by repealing
sections 132-138 of the Serious Organised Crime and Police Act
2005, the Bill will re-balance the constitutional equilibrium
between the right to protest within the vicinity of Parliament
and the rights of Parliamentarians to perform their constitutional
responsibilities without interference (Q11). Notwithstanding this,
Parliament remains a special case (not least because of its symbolic
constitutional importance) and it may, therefore, be necessary
to provide the police with residual powers, to be exercised on
an ad hoc basis and only when strictly necessary, in order
to regulate access to Parliament (for example, to take account
of a specific and urgent security threat) (Qs12/13).
7. In terms of the Attorney General (Part
2), my preference is that from a constitutional perspective, the
office of the Attorney General should be separated from that of
a Government Minister and a member of one of the Houses of Parliament
(Q14). As the Bill, however, does not adopt this approach, my
observations will be predicated on the model advocated in the
2008 White Paper (paragraph 51) and adopted in the Bill viz.,
that the Attorney General will continue to be a Government Minister
and a Parliamentarian.
8. The powers of the Attorney General are
circumscribed and decreased to some extent by the current provisions
of the Bill (Q15). In terms of the power of the Attorney General
under clause 12 to intervene in order to safeguard national security,
although it is appears inevitable that such a residual power should
exist, its use however must be tightly constrained and involve
Parliament at some point in the process. At present, under clause
14 the Attorney General is required to lay a report before Parliament
after a direction has been issued under clause 12. It is suggested
that the Bill be amended so as to provide that any proposed use
of the power under clause 12 is immediately brought to the attention
of a specially appointed Select Committee. This committee could
thereafter alert Parliament if concerned about the Attorney General's
proposed use of his/her power under clause 12. The committee would
ideally be a joint one comprising very experienced politicians
embracing all political parties as well as independent members.
The use of judicial review in relation to the use of the Attorney
General's power under clause 12 would, however, not be appropriate
as not only would the nature of matters concerning national security
inevitably be regarded as non-justiciable, but it would also infringe
the separation of powers. In doing so, it could threaten the independence
of the judiciary.
9. The issuing of an annual report (clause
16) by the Attorney General appears to be a sensible provision
(Q16), although the report provides Parliament with information
only, rather than control. The Attorney General should attend
Cabinet only where it is strictly necessary (ie, to clarify and
advise on legal issues) (Q18). A provision to this effect should
be inserted into the Bill. It should be possible for any likely
issues requiring the input of the Attorney General to be clearly
identified in the Cabinet agenda beforehand. The content of the
Protocol appears appropriate, although Parliament should approve
it formally (Q19). Any review of its provisions should, similarly,
be subject to Parliamentary consent.
10. The Attorney General's constitutional
role to protect and advance the rule of law should be made a statutory
requirement (Q20). This statement (Oath of Office) would be declaratory
and reflect the importance and symbolic value of the rule of law
in our uncodified constitutional arrangements. Given the varying
interpretations of the rule of law, however, this statement should
not be justiciable and so not enforceable before the courts. The
power of the Attorney General to enter a nolle prosequi
should be abolished (Q21) and the setting out of the tenure of
office for the various Prosecutorial Directors is appropriate
and should enhance their independence (Q22). The verbatim legal
advice provided by the Attorney General should not be disclosed
(Q23), however, a very general and broad outline of such advice
should be provided in the event of Parliament formally requesting
it.
11. In terms of judicial appointments (Part
3), it is never too early to revisit and reform judicial appointments
if it is deemed necessary to do so (Q24). It is appropriate to
remove the Prime Minister from the process of appointing Supreme
Court Justices to the nascent Supreme Court, as such a role under
the Constitutional Reform Act 2005 is superfluous (Q25). It is
opined that reducing the role of the executive in the process
of judicial appointments would not leave a gap in constitutional
accountability. In fact, it would help to realign our constitutional
arrangements in accord with a purer separation of powers (Q26).
The Judicial Appointments Commission Panel should be established
and is to be welcomed (Q29).
12. In terms of treaties (Part 4), the problem
with this aspect of the Bill (Q31) is that it has been drafted
in the context of a partially reformed House of Lords. Indeed,
the process is still ongoing and very much a live constitutional
issue. It is imperative that constitutional amendments—such
as Part 4 of this Bill—are not viewed in isolation and purely
in terms of their own individual merits, but also how they relate
to (and impact upon) other aspects of the constitution. As a result
of the debates and votes that took place in March 2007, the Government
has made it clear that it is currently working towards reform
of the House of Lords on a cross-party basis with a view to creating
a largely or wholly elected second chamber. As currently drafted,
clause 21 of the Bill ascribes more importance to a resolution
of the House of Commons that a treaty should not be ratified,
than to a similar resolution by the Lords. This state of affairs
would appear to be constitutionally and politically acceptable
in the context of the Parliament of June 2008, in which the Upper
House is partially reformed. If, however, reform of the House
of Lords takes place along the lines as envisaged by the Government
(ie, a largely or fully elected second chamber is created), then
in these changed circumstances, the Upper House should be conferred
with an equal power to veto the ratification of a treaty. It is
Parliamentary approval which is sought after all. As a result,
a sunrise clause should be inserted into the Bill so as to provide
both Houses with an equal veto in the event of a largely or fully
elected second chamber being established. This provision would
reflect the greater constitutional legitimacy associated with
a largely or wholly elected second chamber.
13. There is going to be, inevitably, constitutional
concern expressed about whether a Secretary of State should be
able to repeatedly place a treaty before the House of Commons
after it has already rejected it (Q31). This raises an issue of
constitutionalism and whether the executive should just simply
accept a decision of the democratically elected House of Commons
that a treaty should not be ratified. It is submitted that the
House of Commons Public Administration Select Committee made a
valid point when it recommended in its recent report (May 2008—paragraph
89) that in the event of the House of Commons voting not to ratify
a treaty, the Secretary of State should be prevented from re-introducing
it during that particular Parliamentary session. The Bill should
be amended so as to give effect to this sensible recommendation.
14. It is opined that there is also likely
to be concern about clause 22 which in effect enables the Secretary
of State to by-pass Parliament (and the requirements set out in
clause 21) so that it does not have the opportunity to vote on
a treaty. The exceptional circumstances which trigger the power
in clause 22 should be specifically set out in the Bill. It is
also suggested that any proposed use of the power under clause
22 should be subject to the scrutiny of a joint Parliamentary
committee which could report to Parliament if it was not satisfied
that the circumstances identified by the Secretary of State fell
within the category of being exceptional (Q34).
15. In respect of the negative resolution
procedure proposed by the Bill, this should be replaced with a
positive resolution, thereby providing Parliament with more control
over the process. This would help achieve the Government's primary
objective of redressing the executive/Parliamentary balance. In
fact, during his Parliamentary Statement on the Bill, the Secretary
of State for Justice and Lord Chancellor indicated that he would
look at the issue of a positive resolution.
Mark Ryan BA, MA, PCGE
Barrister (non-practising)
9 June 2008
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