House of Lords - Constitution

Select Committee on Constitution Fifth Report

Annual Report 2006-07

1. The House of Lords Constitution Committee is appointed by the House "to examine the constitutional implications of all public bills coming before the House; and to keep under review the operation of the constitution". Accordingly, we conduct bill scrutiny whilst simultaneously carrying out longer, in-depth policy inquiries.

2. This is the Committee's third Annual Report: the first two reports covered the 2002-03 and 2003-04 sessions.[1] We have now decided to resume the practice of making Annual Reports. In making such reports, we seek to:

summarise for the House and the public our work over the preceding session;
assess the impact of that work wherever possible; and
comment on any other general matters we consider to be important.

Bill Scrutiny

3. Before examining the bill scrutiny undertaken in the 2006-07 session, we take this opportunity to set out the broad principles and methods which guide the Committee. In carrying out our legislative scrutiny function, we seek to identify any issues of principle affecting a principal part of the constitution (the "two p's" test).[2] Such issues may arise in bills which at first glance do not deal with matters of high constitutional importance, as well as bills where the subject matter obviously engages with basic elements of the constitution. As the Committee explained in its first Annual Report, a wide variety of matters fall within the rubric of "the constitution".

Without seeking to narrow the broad remit entrusted to it by the House, the Committee observes that its attention is most likely to be engaged by significant legislative proposals that affect the relationship between the executive and the judicial system; the system of civil and criminal justice; the integrity of the legislative process; the democratic process (with specific regard to the electoral system and the use of referendums); the distribution of powers between the central executive, the devolved institutions and local government; public accountability; and fundamental principles relating to good government, liberty and the rule of law. Many legislative proposals arise from the United Kingdom's obligations at the international level; where this is the case, the Committee seeks to understand the nature of those obligations when it examines the manner in which Parliament is asked to implement them.[3]

4. All Government bills introduced to the House of Lords, and those private members' bills that have "a reasonable prospect of being enacted",[4] are subjected to scrutiny. If it is felt that a particular bill raises an issue of principle affecting a principal part of the constitution, a number of options are available to the Committee. These options are set out in the flowchart in Figure 1 below, which also incorporates the new sift system that we have recently adopted to streamline the scrutiny process.

FIGURE 1

Flowchart: Bill Scrutiny

5. In some cases, as the flowchart indicates, the Committee considers that the constitutional principles engaged are of sufficient import to warrant a report to the House. The purpose of scrutiny reports is to ensure that informed debate on a bill's constitutional implications takes place during its legislative stages. We endeavour to publish any such reports before the bill in question receives its Second Reading in this House, although this is not always possible. In the 2006-07 session we agreed with the House authorities that any scrutiny report published in advance of the bill's Second Reading should be cited alongside the Second Reading entry in the House of Lords Business, thus increasing members' awareness of the report.

6. In some cases, the Committee's scrutiny reports simply highlight the constitutional implications of the bill in question without expressing a view on the merits of the provisions, but in other cases we feel it necessary to conclude that particular provisions, if enacted, would breach one or more key constitutional principles.

7. It is clear that the Committee's bill scrutiny reports over the years have had a significant impact on the House's deliberations.[5] However, it is equally clear that our concerns about a bill can on occasion disappear from view before detailed consideration of that bill takes place during Committee and Report Stages. Often this is because our concerns cannot be addressed without fundamentally altering the policy thrust of the bill. On other occasions, though, some or all of our concerns can be resolved through relatively simple amendment to the bill. Accordingly, we have adopted the occasional practice of tabling amendments in the Chairman's name (and sometimes in the name of other Committee members) on behalf of the Committee, which seek to improve clauses that threaten to breach one or more key constitutional principles. This not only ensures that the Committee's concerns are fully debated in the House, with the participation of our Chairman or another Committee member, but can also result in the bill being improved from a constitutional perspective. An example of this was the Tribunals, Courts and Enforcement Bill, which is discussed below.

8. We now examine in detail the bill scrutiny conducted during the 2006-07 session. In total the Committee considered the constitutional implications of 23 Government bills, three private members' bills and one other bill.[6] We made four scrutiny reports to the House, dealing respectively with the Tribunals, Courts and Enforcement Bill, the Serious Crime Bill, the Justice and Security (Northern Ireland) Bill and the Freedom of Information (Amendment) Bill, a private members' bill introduced to the House of Commons by David Maclean MP. We also corresponded with ministers on several other bills.[7] A table summarising bills examined can be found in Appendix 2.

TRIBUNALS, COURTS AND ENFORCEMENT BILL[8]

9. The Committee's report on the Tribunals, Courts and Enforcement Bill focused on Part 1 of the bill, which aimed to reform the tribunals system. We concluded that the bill did not establish a sufficiently firm legal basis for one of the Government's key priorities in this area, namely encouraging the widespread use of mediation and other alternative dispute resolution (ADR) techniques. This omission was curious because the draft version of the bill, which had been published during the 2005-06 session, contained a clause setting out a statutory framework for mediation that would have satisfied our concerns—but that clause was not included in the bill as introduced to Parliament.

10. The Committee considered that the removal of the mediation clause raised a number of problems relating to the accountability of government to Parliament, the need for public authorities to act on the basis of express legal authority contained in primary legislation, and the constitutional principle of access to justice. Our then Chairman, Lord Holme of Cheltenham, set out these concerns in a letter to Baroness Ashton of Upholland, the minister responsible for the bill, but her reply did not satisfy our concerns.[9] We therefore published a report setting out our misgivings.

11. Subsequently, Lord Goodlad (now Chairman of the Committee) tabled an amendment at Report Stage to reintroduce the mediation clause. The amendment was supported by Lord Newton of Braintree, Chairman of what was then called the Council on Tribunals. Replying to the debate, Baroness Ashton of Upholland stated that the Government had reversed their position and accepted the amendment, thus satisfying our outstanding concerns about the bill.

SERIOUS CRIME BILL[10]

12. The Committee's second scrutiny report concerned the proposed introduction of Serious Crime Prevention Orders (SCPOs, known as "super-asbos") in the Serious Crime Bill. The orders were designed to protect the public by placing a range of restrictions on individuals or other bodies suspected of involvement in serious crime. In addition to noting that the provisions as drafted did not provide sufficient legal certainty, we concluded:

A broad question for the House is whether the use of civil orders in an attempt to prevent serious criminal activity is a step too far in the development of preventative orders. Whether or not the trend towards greater use of preventative civil orders is constitutionally legitimate (a matter on which we express doubt), we take the view that SCPOs represent an incursion into the liberty of the subject and constitute a form of punishment that cannot be justified in the absence of a criminal conviction.[11]

13. Subsequently, amendments reflecting many of our concerns were tabled by opposition parties in Committee and at Report Stage, and several speakers referred specifically to our report in debate. None of these amendments were passed and the Government continued to defend the SCPO proposals. However, at Report Stage the Government tabled their own amendments to clause 5 of the bill,[12] allaying some (but not all) of the concerns raised in our report about the lack of legal certainty.

JUSTICE AND SECURITY (NORTHERN IRELAND) BILL[13]

14. The Committee's report on the Justice and Security (Northern Ireland) Bill focused on the provisions putting in place a new system for non-jury trials to replace the Diplock system. More specifically, we focused on clause 7 of the bill which sought to put on the statute book an exclusion that would restrict the grounds upon which a challenge may be made to a decision by the Director of Public Prosecutions for Northern Ireland to issue a certificate requiring a defendant to be tried by a judge sitting alone rather than with a jury. Drawing attention to the constitutional dangers of ouster clauses,[14] our report stated that "we remain unconvinced … that the clause is either necessary or constitutionally acceptable" and concluded:

It is the very fact that the initial decision is made by the Executive branch of government that necessitates adequate supervision by the judicial branch. In a democracy committed to the rule of law, trust ought to be placed in the courts to exercise their judicial review powers appropriately to the circumstances of each case.[15]

15. A number of members subsequently expressed their concerns about clause 7 in Committee and at Report Stage. Initially, the then Attorney General, Lord Goldsmith, argued that the clause was necessary to prevent sensitive information being disclosed in the course of a judicial review.[16] However, Lord Goldsmith worked with other members to reach a compromise, and a Government amendment was agreed at Third Reading to make clear that judicial review could take place on account of lack of jurisdiction or error of law, so long as these were exceptional circumstances.

FREEDOM OF INFORMATION (AMENDMENT) BILL[17]

16. The Committee opted to scrutinise the Freedom of Information (Amendment) Bill, a private members' bill, not only because of its obvious constitutional nature, but also because it received substantial support in the House of Commons. The bill sought to amend the Freedom of Information Act 2000 to remove the House of Commons and House of Lords from the list of public authorities from which information can be requested, and to exempt from the Act's provisions any information which is "held only by virtue of being contained in any communication between a member of the House of Commons, acting in his capacity as such, and a public authority".

17. The report concluded that:

the bill did not meet the requirements of caution and proportionality in enacting legislation of constitutional importance;
the removal of the House of Commons and the House of Lords from the ambit of the 2000 Act could not be justified;
clause 1(3), which sought to protect correspondence between MPs and public authorities, was not sufficiently proportionate or specific; and
the Information Commissioner should conduct a review into MPs' concerns about the actual or potential disclosure of constituency casework correspondence.

18. Following a sustained period of controversy about the proposals in the media and elsewhere, the bill failed to find a sponsor in the House of Lords and therefore proceeded no further. If similar proposals are introduced in the 2007-08 session, we shall subject them to very close scrutiny.

LEGAL SERVICES BILL

19. Whilst the Committee did not publish a report on the Legal Services Bill, our then Chairman sent a letter to the then Lord Chancellor, Lord Falconer of Thoroton, expressing concern that the ministerial figure allocated duties and powers by that bill was the Secretary of State for Constitutional Affairs rather than the Lord Chancellor. We concluded that it would be more constitutionally appropriate for the Lord Chancellor to be the minister named in the bill.[18]

20. In his reply, the Lord Chancellor conceded the point:

... following careful consideration of the points raised in your letter, and further representations made to me, including proposed amendments to the bill, I have decided that responsibility for exercise of the functions relating to regulation of the legal professions should lie with the Lord Chancellor.[19]

21. The bill was amended at Report Stage to reflect the Government's decision, thus satisfying our concerns.

Scrutiny of Welsh Legislative Competence Orders

22. The Committee took on one additional scrutiny function during the 2006-07 session. In March 2007 Baroness Amos (then Leader of the House of Lords) invited us to consider conducting pre-legislative scrutiny on proposed Legislative Competence Orders (LCOs) under section 95 of the Government of Wales Act 2006, to complement the similar scrutiny roles of the House of Commons Welsh Affairs Committee and the National Assembly for Wales. This request was in line with the recommendations of our scrutiny report on the Government of Wales Bill published during the bill's passage through Parliament, in which we suggested that pre-legislative scrutiny in this House should be carried out by either the Delegated Powers and Regulatory Reform Committee or by our own Committee.[20]

23. The purpose of LCOs is to enlarge the National Assembly for Wales' powers to make Measures and the powers of Welsh Ministers to make subordinate legislation. Proposed LCOs are subjected to pre-legislative scrutiny before being formally laid before Parliament for approval. The full LCO process is set out in detail in our second report published in the 2007-08 session.[21] In light of the request by Baroness Amos, we agreed on 18 April 2007 to perform this pre-legislative scrutiny role for an initial 12-month trial period. We have so far examined and cleared two proposed LCOs,[22] and will consider over the coming months whether we should continue this new scrutiny role.

Policy Inquiries and Reports

24. In pursuance of the second part of our terms of appointment, "to keep under review the operation of the constitution", the Committee conducts lengthy and in-depth policy inquiries into major constitutional issues. Most of our time in the 2006-07 session was spent conducting an inquiry into relations between the executive, the judiciary and Parliament, a topic which goes to the heart of our constitutional settlement. We also published a short follow-up report to our 2005-06 report on Waging war: Parliament's role and responsibility and a brief report on the Government's constitutional Green Paper on the Governance of Britain.

RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT[23]

25. The nature of the relationships between the executive, the judiciary and Parliament has changed significantly in light of the Constitutional Reform Act 2005 and the Human Rights Act 1998. With this in mind, we decided to take the annual appearances by the Lord Chancellor and the Lord Chief Justice before our Committee as the starting point for an assessment of the impact of these changes. Midway through the inquiry a dispute arose between the Government and the judiciary over the creation of the new Ministry of Justice (MoJ), thus demonstrating that there were indeed outstanding disagreements and uncertainties about the relationships between the three arms of government, and emphasising the timeliness of our inquiry.

26. During the course of the inquiry we took evidence from 18 witnesses including the Lord Chancellor (twice), the Lord Chief Justice, the President of the Queen's Bench Division (twice), Charles Clarke MP, Lord Mackay of Clashfern, Lord Lloyd of Berwick and a panel of academics. We also commissioned papers from Professor Kate Malleson, Professor Anthony Bradley and Professor Paul Craig.[24]

27. Drawing on the controversial case of the paedophile Craig Sweeney by way of example,[25] the final report noted that the new relationship between the Lord Chancellor and the judiciary was not working properly. We stressed the paramount importance of the Lord Chancellor fulfilling his responsibility to ensure that ministers do not impugn individual judges, and to reprimand those who do, and we recommended that the Ministerial Code should include guidelines on how and when it is acceptable for ministers to comment on the judiciary. We also noted that the senior judiciary could act more quickly and effectively than it did in the Craig Sweeney case.

28. On the formation of the MoJ, we regretted that the Government appeared to have learnt little or nothing from the debacle surrounding the constitutional reforms initiated in 2003. We found that the Government should have treated the judiciary as "partners, not merely as subjects of change" and brought them into the process far earlier than they did. Moreover, we criticised the subsequent refusal of the Government to agree to the judiciary's request for a fundamental review of the position in the light of the formation of the MoJ. We also urged the Lord Chancellor to provide "maximum protection" for the courts budget under the new arrangements.

29. The report also placed the relations between the judiciary and Parliament under close scrutiny. The Committee concluded that the appearance of senior judges before select committees from time to time could play a vital role in enabling the concerns of the judiciary to be better understood by the public and in Parliament. Such appearances would also help the judiciary to remain accountable for their responsibilities in the administration of the justice system. We emphasised that committees should not ask judges about the pros and cons of individual judgments but we saw value in judges and parliamentarians having a dialogue about broad legal issues of general significance.

30. The final part of the report considered the interaction between the judiciary, the media and the public. We criticised the press for "distorted and irresponsible coverage of the judiciary" and urged them to "desist from blaming judges for their interpretation of legislation which has been promulgated by politicians". In order to encourage more responsible coverage, we suggested that the Editors' Code of Practice be regularly updated to reflect these principles. This recommendation was rejected by the Editors' Code Committee, but we fully intend to pursue the point.

31. Turning to the judiciary, we encouraged the use of media releases alongside controversial or complex judgments, as well as individual judges giving interviews to the press on appropriate issues. However, we were firmly of the opinion that judges should never give off-the-record briefings. Finally, we called for the Judicial Communications Office to become "more active and assertive" in its dealings with the media, suggesting that one or more spokesmen with appropriate qualifications and legal experience should be appointed to speak to the media with the aim of securing coverage which accurately reflects the judgment or sentencing decision in question.

32. The Government response to the report was published on 17 October 2007 and the judiciary's response on 19 October.[26] We also held follow-up oral sessions with the new Lord Chancellor, Jack Straw MP, on 23 October and with the Lord Chief Justice on 6 December.[27] Our reaction to the responses by the Government and the judiciary will be set out in a follow-up report to be published shortly.

WAGING WAR: PARLIAMENT'S ROLE AND RESPONSIBILITY: FOLLOW-UP[28]

33. The Committee's original report on the role of Parliament in the deployment of armed force overseas was published on 27 July 2006.[29] The report recommended the introduction of a new convention that the Government should seek parliamentary approval before deploying British forces into actual or potential armed conflict outside the United Kingdom or, if such prior application proves impossible, shortly thereafter. The Government response to the report,[30] which rejected the Committee's calls for a new parliamentary convention, was published on 7 November 2006 and our follow-up report was published on 20 February 2007. Both of the reports were debated in the House of Lords on 1 May 2007, with 19 speakers taking part.

34. The follow-up report criticised the Government response both for its tardiness and for its "cursory" nature, noting that it "failed to address the majority of points made" in the report. We suggested that "the Government do not seem convinced of their own position" and that "there is more than a suspicion that disagreement on this matter at the highest levels of government is responsible for what is essentially a 'fudged' response to our report". We also pointed out that the then Chancellor, Gordon Brown MP, and the then Leader of the House, Jack Straw MP, had made statements that seemed at odds with the position set out in the Government response. The report concluded:

Irrespective of the response we received, we consider that a cross-party political consensus appears to be emerging that the current arrangements are unsustainable. Accordingly, we are optimistic that our recommendations will be revisited in the very near future. We hope that this vitally important constitutional issue will then be addressed in a more satisfactory manner and we look forward to playing our part in that debate.[31]

35. The suspicion that there was disagreement on this issue amongst senior ministers was confirmed when Gordon Brown MP reversed the Government's position shortly after taking over as Prime Minister. Introducing the Governance of Britain reform proposals on 3 July 2007, Mr Brown said that he would "consult on a resolution to guarantee that on the grave issue of peace and war it is ultimately this House of Commons that will make the decision".[32] The Green Paper published on the same day declared that the Government's prerogative power to deploy the armed forces into conflict overseas without having to seek parliamentary approval was "an outdated state of affairs in a modern democracy" and further stated:

The Government will propose that the House of Commons develop a parliamentary convention that could be formalised by a resolution. In parallel, it will give further consideration to the option of legislation, taking account of the need to preserve the flexibility and security of the Armed Forces.[33]

36. On 23 October 2007 we questioned the Lord Chancellor, Jack Straw MP, on the Government's change in policy. He told the Committee that "the principle has been conceded and it is jointly because of the work of this Select Committee and the one at our end [the House of Commons Public Administration Select Committee], because people think and read these documents and can see a strong case".[34] He also wrote a letter to our then Chairman, Lord Holme of Cheltenham, noting that the Committee's "considered and comprehensive report … provided valuable guidance when shaping this policy".[35]

37. During the oral evidence session, we also asked the Lord Chancellor whether the Government favoured formalising Parliament's role in troop deployment through a convention, as we recommended, or through statute, as the Commons Public Administration Select Committee wanted.[36] Whilst emphasising that he would not prejudge the Government's consultation (which was launched two days later on 25 October), he replied that "the balance of opinion is in favour of the convention approach" and suggested that the convention might be pinned down "in resolutions of the House of Commons and its Standing Orders". He also suggested that there was a "possibility of a hybrid approach" (a mixture of convention and statute) but added that he had "serious misgivings" about a wholly statutory approach.[37]

38. The consultation closed on 17 January 2008 and we await the Government's response with interest. We shall scrutinise closely any proposals that may be put forward.

THE GOVERNANCE OF BRITAIN[38]

39. In July 2007 we published a short report in response to the Government's Green Paper on the Governance of Britain. The report welcomed the Government's intention to reform the royal prerogative so that they must seek the approval of the House of Commons for significant, non-routine deployment of the Armed Forces into armed conflict. We also welcomed the Government's stated intention to consult widely on the whole programme of constitutional reform.

New Inquiry

40. In the 2006-07 session the Committee also launched a new policy inquiry into the constitutional impact of surveillance and data collection upon the privacy of citizens and their relationship with the state.[39] Having received a large volume of written evidence,[40] we started taking oral evidence in November 2007. It is anticipated that the final report will be published in summer 2008.

1 2nd Report (2003-04) (HL Paper 19) and 17th Report (2003-04) (HL Paper 194). Back

2 Constitution Committee, 1^st Report (2001-02): Reviewing the Constitution: Terms of Reference and Method of Working (HL Paper 11), paragraph 22. Back

3 2^nd Report (2003-04) (HL Paper 19), paragraph 6. Back

4 17^th Report (2003-04): Annual Report 2003-04 (HL Paper 194), paragraph 2. Back

5 For example, six of the 13 speakers who spoke at Second Reading of the Serious Crime Bill on 7 February 2007 referred to our report on the bill. Examples of the Committee's findings leading to substantive amendments to Government bills are provided below at paragraphs 11 and 20. Back

6 Parliament (Joint Departments) Bill. Back

7 All such correspondence is available at http://www.parliament.uk/hlconstitution. Back

8 1st Report (2006-07) (HL Paper 13). Back

9 See http://www.parliament.uk/documents/upload/Letter%20from%20Baroness%20Ashton%20to%20the%20Chairman%2028%2011%2006.doc. Back

10 2nd Report (2006-07) (HL Paper 41). Back