The shadow over Brown’s plans to change the way we are governed

In its Constitutional Renewal white paper and accompanying draft bill, the government has produced a document of potentially major historical significance. But its ultimate impact will be determined as much by the issues it does not address or resolve as by those it does.

The scope of Constitutional Renewal is vast. It takes in the right to popular protest, the independence of the judiciary, royal prerogatives including war-making and treaty ratification, the status of the Civil Service, flag flying, parliamentary oversight of the Intelligence and Security Agencies, the position of the National Audit Office and the Comptroller & Auditor-General, pre-appointment hearings for major public office holders and the relationship between Church and State.

The size of this list and the items on it show that this is a programme that merits attention. It contains proposals that have been made in some cases at least as far back as the nineteenth century — such as formalising the role of parliament in war-making and treaties and placing the civil service on a statutory basis.

A faltering progression is being made towards other changes, not dealt with in this document, which have long been cherished by reformers, such as an at least partially elected Upper Chamber, a Bill of Rights and even a fully codified constitution.

However, because of the current political difficulties of the Brown government, the package, both in its strengths and flaws, may not be taken as seriously as it should. A similar underestimation occurred in the 1990s when John Major’s Citizen Charter was often the subject of ridicule, tainted by association with a premier whose political stock rapidly declined from 1992. Yet the Major agenda brought with it, however imperfect, many innovations such as greater transparency and targets for public services and more openness with official information.

These innovations altered both the way we are governed and the nature of interactions between the individual and the state. The lesson that can be drawn from the Major period is that a prime minister and his party can still affect significant and lasting change to the constitution even when in serious trouble and facing electoral defeat.

However, the constitutional renewal picture is incomplete. Take the plan to grant to parliament an enhanced role in treaty ratification and war-making, which is presently dominated by the executive under the Royal Prerogative. The government believes that ‘Parliament should have the right to scrutinise treaties prior to their ratification’. But in order to achieve this end, it is planning to place the so-called ‘Ponsonby Rule’ on a statutory basis.

Yet Ponsonby amounts in practice to little more than treaties being tabled before the House for 21 sitting days whereupon they come into force. Satisfactory scrutiny does not take place. By the government’s own admission it is ‘very rare for debates to be requested under the Ponsonby Rule’ and there are ‘no known examples in recent years of a vote being taken following a debate held under the Ponsonby Rule’. While, significantly, it will be made clear that parliament has the power in theory to reject a treaty, it seems unlikely that such an outcome could be brought about.

Parliament will be able to debate and, in the case of the Commons, vote on entry into armed conflict, usually in advance of it being embarked upon, though this right is to be provided for by a Commons resolution, not legislation. But, as with treaties, the legislature lacks at present the proper institutional arrangements to ensure that it can exercise thorough ongoing oversight rather than simply providing, or withholding, consent at one-off set piece occasions.

Moreover, once a conflict has commenced, the government will not need to seek a renewed mandate under the new procedure. The dangers here are clear, as an example from the US illustrates: President Lyndon Johnson used the so-called ‘Tonkin Gulf’ Resolution of 1964 as the basis for an escalation of the American involvement in Vietnam that could not have fully been envisaged when Congress first provided its consent to action.

A second set of deficiencies in constitutional renewal arise from tensions it fails to resolve and even heightens. Withdrawing the prime minister and, to an extent, the Lord Chancellor from the judicial appointments process can be seen as pointing to an enhancement of the independence of the legal system.

Yet the section dealing with the office of Attorney General contradicts this logic. It is proposed that the holder of this post will continue simultaneously to act as the chief legal adviser to the government, the superintendent of the prosecuting authorities and as a party political figure appointed by the prime minister.

The contradictions inherent in the role will be aggravated because it is to be made explicit that the Attorney General will be able to discontinue cases and investigations on national security grounds.

The problems likely to arise here were made apparent recently when the High Court ruled that the cessation of the Serious Fraud Office investigation into the Al-Yamamah arms deal was unlawful. If ministers have the final say over such issues, there is a greater danger that the authority will be abused for political reasons, undermining the integrity of the legal system and public confidence in it.

Another unresolved tension can be found in the part of the paper dealing with the civil service. While it proposes to safeguard the non-partisan values of Whitehall through enshrining them in statute, the same legislation will provide for the existence of special advisers.

Though classified as civil servants, these temporary party political appointments are not bound by the same rules of objectivity and impartiality that apply to career officials. Yet special advisers are able to communicate instructions from ministers to permanent civil servants and ask them to take on tasks. This position of effective managerial authority over career officials is difficult to reconcile with the party political neutrality required of the latter.

There are at least two clear ways in which the government can set about addressing problems of the sort outlined above. The first is to accept that whether the legislature adapts to dispose of its new responsibilities effectively is in part dependent upon the initiative and cooperation of the executive.

Simply hiding behind the formulation that such changes are ‘a matter for parliament’ is not sufficient. The second is to ensure a genuine openness to ideas that emerge from the joint committee of both Houses established to scrutinise the Draft Constitutional Renewal Bill.

To do otherwise would be to negate the entire purpose of the programme and possibly undermine the chances of this government and its premier being remembered for affecting major constitutional reform.

Dr. Andrew Blick

Research Officer, Democratic Audit

Andrew Blick is the author of How to go to war: a handbook for democratic leaders; and People who live in the dark: the history of the special adviser in British politics.