From chef Gordon, a pudding without a theme

Never judge a book by its cover and never judge a Bill by its short title.

Shortly after becoming prime minister, Gordon Brown published a green paper, The Governance of Britain. There was a different emphasis to the Blair premiership.

Under Blair, there had been various major constitutional changes, including devolution and passage of the Human Rights Act. The changes were largely external to parliament. Brown sought to focus instead on the relationship between parliament and the citizen and to craft a new constitutional settlement, transferring certain powers from the executive to parliament and making government more accountable.

However, there were two related problems with Brown’s approach. Firstly, while representing a change in direction, there was no clear destination and no clear constitutional end-point — the same was true of Blair. Secondly, Brown’s approach was to be realised by pursuing certain changes in train, bringing in others through legislation or parliamentary motions and consulting on others.

In short, the sources of change were disparate. It is this background that helps explain the Constitutional Renewal Bill.

The Bill was envisaged in the green paper and promised as a Constitutional Reform Bill in the government’s draft legislative programme for 2007-08. It was published in draft form in March 2008 and the following month it was committed for pre-legislative scrutiny to a Joint Committee of both Houses.

The problem for the committee has been trying to get to grips with a Bill that has little to do with constitutional renewal but rather constitutes a Constitutional (Miscellaneous Provisions) Bill. I described it in the Lords as a ‘pudding without a theme’. There are problems with the ingredients as well as with some of the items left out.

The Bill comprises five disparate parts, each of which invites controversy. Part 1 repeals provisions of the Serious Organised Crime and Police Act 2005 dealing with demonstrations in the vicinity of parliament.

The Act proved controversial because of the powers it created to deal with marches and demonstrations outside parliament and in any event proved inadequate to get rid of anti-war protester Brian Haw from his permanent encampment in Parliament Square.

The Bill makes no provision for any replacement powers. Some witnesses see no need for any, emphasising the principle of free speech and believing people have a right to protest outside their parliament. Others, including the parliamentary authorities take a different view and want powers to protect access to the Palace of Westminster, to deal with noise and to take action on security grounds.

Part 2 changes the powers of the attorney general, limiting the capacity of the attorney general to stop prosecutions other than in cases affecting national security. It also covers the relationship between the attorney general and the prosecution services. Some witnesses feel that the changes do not go far enough.

Former Lord Chancellor Lord Falconer is among those who want the attorney-general to be a legal figure independent of government and to cease to be a minister and a parliamentarian. Others, including some former attorneys-general, feel the provisions go too far and wish largely to retain the status quo.

Part 3 makes some changes to the judicial appointments process, including changing the role of the prime minister and Lord Chancellor in the appointment of senior judges. Some welcome the changes as a necessary adjustment to the existing procedures but they have come in for criticism because the judicial appointments process created by the Constitutional Reform Act 2005 has not yet had time to bed in.

Part 4 provides for treaties to be laid before parliament, for both Houses, other than in exceptional circumstances, to vote on a treaty and, if the government wishes nonetheless to proceed, for the House of Commons to vote against ratification. Critics feel that the provisions do not provide enough time for consideration, that the exceptions are problematic, and that the scope is too narrow, excluding various memoranda of understanding and similar agreements.

Part 5 is arguably the most important but the least contentious: it puts the civil service on a statutory footing. There has been pressure for some time for a Civil Service Act and, in effect, this is it. It encompasses a Civil Service Commission, management of the civil service, the civil service code of conduct, the appointments process and the position of special advisers. Many of these provisions have been welcomed though various questions remain as to definition and the role of the commission.

It is clear from this recitation that there is no theme to the Bill. The picture is muddied by what is excluded. There is nothing on parliament’s power to vote on the deployment of armed forces, since the government believe that the war powers should be governed by parliamentary resolution and not by statute.

There is nothing on passports (granting a legal right to hold one) nor on an annual report on implementation of Law Commission reports, even though the statement accompanying the Bill identified this as a desirable provision.

In short, it has little to do with constitutional renewal. There is nothing to identify what is being ‘renewed’. Not all the provisions are clearly ‘constitutional’: part one may be seen as much as anything as dealing with public order and the part of schedule three governing health assessments of judges is hardly heavyweight constitutional territory.

The Bill rather reflects the nature of the overall approach to constitutional change. The provisions are disparate and discrete — something they have in common with the constitutional reforms under Blair — and they fit into no clearly articulated vision of a particular type of constitution for the United Kingdom.

Lord Falconer’s objections to the Bill led him to describe it as a ‘Constitutional Retreat Bill’. This criticism is somewhat unfair. Yet at the same time it may be unduly generous in implying that the Bill is going in one particular direction. If there is a constitutional end-point, no-one has yet identified it.