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Progressive elements smuggled into Constitutional Renewal Bill

Andrew Blick
31 July 2008

Andrew Blick (London, Democratic Audit): When the Constitutional Renewal white paper and draft bill were published earlier this year, Gordon Brown once again proved himself the master of the anti-climax. The centrepiece of the Governance of Britain programme to date, and the part of it most likely to be implemented this side of a General Election, 'Constitutional Renewal' primarily addresses the role of the executive with respect both to Parliament and the judiciary. When it appeared there was disappointment that it did not live up to its billing and was not a programme to 'renew' the constitution. As Graham Allen MP put it, 'perhaps our expectations either were raised too high or...those expectations have not yet been met.' More scathingly, Lord (Paul) Tyler has today called it a 'ragbag of retreats'.

Furthermore, many expressed reservations about the discretion the Constitutional Renewal proposals provided for the executive. For instance, they will make explicit that the Attorney General can cause the Serious Fraud Office to drop investigations on grounds of national security. As Wednesday's Law Lords judgement on the BAe case shows, the best way to ensure such a power is not abused is to remove it from party politics altogether, rather than hope the judiciary will regulate it properly.

But no such dramatic changes are proposed in 'Constitutional Renewal'. Instead we find a reliance on the development of notoriously flexible conventions (as with establishing a parliamentary right to vote on war-making) or vaguely drawn legislation (for instance to provide for parliamentary scrutiny of treaties). The most significant part of the package is a proposal to place the Civil Service on a statutory footing, a long term commitment of the government and one which has been proposed for the last 150 years.

I have just got hold of a copy of the report by the parliamentary Joint Committee which investigated Constitutional Renewal. Attending the sessions it became clear to me that the committee was a mixed bag of individuals, some with a longstanding interest in reform, others hostile to the very notion. It was always unlikely that they were going to unite around a full set of radical proposals - and they have not.

On war powers, the report supports the use of a parliamentary resolution (as proposed by the government), rather than an Act of Parliament, to set out the rights of the legislature in voting on deployments; and rejects the idea that there should be a parliamentary committee to oversee military conflict. The proposed right of the government to bypass the process for parliamentary approval of treaties is agreed with, though greater clarification and explanation is asked for. Support is given for the Attorney General possessing the right to intervene in individual criminal cases, despite the opposition expressed by the Commons Justice Committee. The Constitutional Renewal joint committee supports the government in not providing for formal parliamentary approval of the Civil Service Code. And regardless of calls by the Commons Public Administration Select Committe to this effect, it does not believe the bill should be altered to allow for effective scrutiny by the legislature of changes to the machinery of government.

A minority group within the joint committee, within which Lord (Paul) Tyler is a leading figure, have been bolder. They supported conclusions including a statutory basis for parliamentary involvment in war making, and that the office of Attorney General should not be held by a member of either house of Parliament, making the role a non-ministerial one, distancing it from party political considerations.

But as well as opting for minority findings, the progressive elements within the joint committee have somehow smuggled certain worthwhile elements through, which if enacted could provide a future basis for some democratic enhancement. It is recommended that as well as voting on the initiation of military action, there should be measures to ensure Parliament can exercise ongoing oversight of operations once embarked upon. Notably, the report recommends the establishment of a 'Joint Committee on Treaties'. If properly developed, such a body could oversee not only the scrutiny of treaties but the conduct of negotiations leading to their drafting. By this means a 'soft' UK version of the continental practice of 'mandating' could be developed (though doing so will require determination on the part of Parliament and cooperation from the executive, neither of which is inevitable). If Parliament became an active partner with government in the formation of external policy in this way, an important step towards genuine constitutional renewal would have been achieved.

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