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Constitutional Renewal I: the Joint Committee takes evidence

Andrew Blick
15 May 2008

Andrew Blick (London, Democratic Audit): At the very end of a long and remote corridor, MPs and peers on the joint committee on the draft Constitutional Renewal Bill held their first evidence sessions on Tuesday. The importance of their work has been heightened by Gordon Brown's commitment to introduce a bill proper in the next parliamentary session, as part of his statement on the legislative programme. We will report regularly on their inquiries and the draft Bill’s provisions as they progress; meanwhile we attach a brief and opinionated guide to official progress on the government’s Governance agenda which, as Guy Aitchison wrote seems to have lost important elements. 

The first three witnesses, providing an overview, were Professor Stuart Weir of Democratic Audit (my boss); the Oxford academic (and David Cameron's former tutor) Professor Vernon Bogdanor; and Peter Riddell of The Times. The committee are a mixed bunch, ranging from those with real knowledge of constitutional issues to the more conservative minded, several of whom emphasised Britain’s long tradition of evolutionary change. It will be interesting to see what conclusions they can all buy into.

The size of the task the committee is undertaking soon became apparent - and time ran out before all the questions could be reached. But before it was over a surprising level of consensus was reached between the three witnesses. The draft bill, regardless of its merits, does not amount to a 'renewal' of the constitution; it is more ‘a sleight of hand’ or a ‘glass half full or half empty.’ Brown’s commitment to abolishing royal prerogative powers was plainly a major advance in principle, but the three agreed that the practical proposals on the terms of a parliamentary resolution to establish a new convention requiring a vote in Parliament on going to war must be tightened if they are to be of value. It is here, though, that the three witnesses also disagreed; Weir was for statutory rules governing the deployment of troops abroad, Bogdanor and Riddell for a convention that would not be legally binding, and therefore not justiciable.

They all agreed that the proposals to retain a political figure and cabinet minister as Attorney General was wrong and she or he should not continue to supervise prosecutions, let alone have the power to stop investigations or prosecutions on undefined grounds of ‘national security’, thus making possible further scandals like the halting of the al-Yamamah inquiry by a government minister. The theme of the draft Bill is rebalancing power between the executive and Parliament; Vernon Bogdanor urged members to consider the balance of power between government and local authorities and the engagement with the public. Peter Riddell pointed out that it was all very well to give Parliament powers over ratifying treaties, but very significant international deals – such as agreements on sharing nuclear information– are not treaties and would therefore continue to escape the requirement for parliamentary approval. Stuart Weir said that Parliament has to negotiate with government a change in its approach so that it shares in initial policy-making rather than holding government to account only retrospectively.

Peter Riddell also came out with the stunning observation that the basic obstacle to expressing Parliament’s right to vote on war making in statute came from senior military figures who believe that the armed forces may be exposed to prosecution for war crimes if a law is introduced, rather than a Commons resolution. I don't doubt that this is an important motivation for the way the measure is to be implemented. But the fears the military may have are surely ungrounded. Let us suppose that the International Criminal Court for war crimes is prosecuting a British general, say for a massacre of civilians. Would the prosecution case be in any way be made stronger if it could be shown that the initial decision to enter into the conflict was made under statute rather than a convention? If anything, a clearer decision-making process set out in Act of Parliament would remove any doubt that the military were acting on democratically determined orders. Even if there is substance to the military argument that I am missing, their views should not trump all others and must be treated like those put forward by any interest group.

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