Judged wanting

There was a widespread sense of optimism among reformers when Gordon Brown announced the Governance of Britain programme in July 2007. While Tony Blair had presided over considerable constitutional change, particularly in his first term, few would argue that his heart was in it; he was fulfilling John Smith’s ‘unfinished business’

The result of this tick-box approach to reform was a new constitutional architecture without any real sense of coherence. When one of Gordon Brown’s first acts as prime minster was to announce whole-scale reform of the constitution many campaigning organisations, including Unlock Democracy, were delighted..

The Power Inquiry was so confident that its proposals were about to be implemented, they declared their mission accomplished and wound up their campaign. A year later we have a basket of consultation papers and, after six years of promising it, a report on the UK’s various electoral systems.

But the only item of substance to emerge has been a draft Constitutional Renewal Bill and its accompanying white paper focusing on the royal prerogative powers wielded by government on behalf of the Crown.

There is no doubt that a comprehensive attempt to reform the prerogative powers would be a significant reform. It is unjustifiable in the 21st century that a government can still use the unaccountable and unchecked powers of an absolute monarch.

Such a reform would demonstrate the government’s commitment to making power more accountable, both to parliament and citizens. Jack Straw emphasised this aspect of the proposals when he presented the draft Constitutional Renewal Bill to parliament, saying that ‘the accountability of government is fundamental to the health of our democracy.’

The key issue however, is the extent to which the government is prepared to make itself open to genuine scrutiny as opposed to a simple requirement to inform parliament of actions it has already taken.

Although considerably more narrow in focus than the Governance of Britain green paper, the draft Constitutional Renewal Bill and white paper still cover a vast array of issues.

Between them these two documents include proposals relating to the appointment of judges, putting the civil service on a statutory footing, reforming the role of the attorney general, and limiting the use of the royal prerogative in ratifying treaties and declaring war.

There are also proposals repealing the provisions relating to protests outside parliament, allowing for pre-appointment hearings for key public appointments, making the Intelligence and Security Committee more accountable, conducting a further review of the prerogative powers, limiting the prime minister’s role in Church of England appointments, the restructuring of the National Audit Office and allowing for the flying of the Union flag from government buildings.

Apparently there was a great deal of debate about whether the Bill should be called constitutional reform or constitutional renewal — a tiny shift in emphasis perhaps but an important one.

In many ways these proposals are an attempt to tidy up some constitutional loose ends; reinvigorating our constitutional settlement without trying to break new ground. The more contentious or problematic issues, such as House of Lords reform, a Bill of Rights and reform of the electoral system are to be dealt with separately.

The proposals to put the civil service on a statutory footing are an excellent example of this. There has been talk of a civil service act for over 150 years. Northcote and Trevelyan laid the foundations of the politically neutral and professional civil service in 1853 and called for an act to enshrine and protect these values.

There have been a number of moves in this direction; the government presented a draft Civil Service Bill in 2004 as did the Public Administration Select Committee, and Lord Lester of Herne Hill has proposed a number of private members bills to put the civil service on a statutory footing.

The fact that the civil service has survived for so long without an Act does not make these proposals any less welcome. It is not enough to rely simply on precedents and understandings that may currently exist; our constitution should be able to withstand a situation where these understandings have broken down.

The purpose of putting the civil service on a statutory footing is to provide the service with protection against the kind of government that may seek to undermine its core values.

There are certainly improvements that could be made. In particular, it should be made clear that special advisers cannot authorise expenditure or that ministers should not have a general power to appoint or dismiss civil servants.

However these do not detract from the widespread support for these proposals overall and are generally seen as issues that can be addressed by the Joint Committee that is currently considering the draft Bill.

The prime minister’s decision to reform the use of prerogative powers in relation to war powers also received considerable support from reformers, not least because Tony Blair had been so opposed to change preferring to believe that the precedent of the vote in 2003 was a sufficient safeguard. Yet as with the civil service it is essential that core values and principles cannot be eradicated with the swipe of a pen.

In a democracy, decision-making should be scrutinised and be accountable to the elected representatives and ultimately to the people. The decision to send troops into armed conflict is one of the most serious that any state can make. That this decision-making process is unaccountable and cannot be effectively scrutinised is quite simply unacceptable. It is not enough to simply trust that a future government will accept that a precedent has in fact been set.

It is rather disappointing that the government has chosen to proceed with a resolution rather than legislation. However, there is consensus in parliament that it is preferable to make progress without legislation and this is broadly in line with the recommendation of the House of Lords Constitution Committee. The fact that a vote in the House of Commons is now expected before troops are deployed is still to be applauded.

The problem is not so much the resolution as the amount of leeway that the prime minister is given in these proposals. He or she would have the power to decide what information parliament receives concerning the proposed deployment and when they are told about it. If it was not possible to seek approval before a deployment there would be no retrospective approval. The prime minister would just have to lay a report before parliament. Also there would not need to be a vote in parliament if the deployment took place during recess.

The debate would certainly be taking place in the country but there would be no role for our elected representatives. So while there would be a formal mechanism in place stating that the House of Commons must vote to approve a deployment of troops in a conflict situation it would not be at all difficult to sidestep, should a future government be so inclined. A safeguard that can so easily be ignored is no safeguard at all.

The fundamental flaw in many of the proposals in the draft Bill and white paper, war powers included, is the very limited model of accountability that they embody.

In the case of war powers, this means there is the opportunity for the Commons to take a vote to decide whether troops should be deployed but there is no opportunity to scrutinise the decision-making process or the plans in place once the conflict is underway. Parliament is entirely reliant on the prime minister to provide them with the necessary information and has no role after the vote has been taken.

Equally in the proposals for treaty ratification, parliament is only given a say, and a very limited one at that, at the end of the process, when the treaty has already been negotiated and all that can be done is say yes or no to the whole document.

It is in relation to the reform of the role of the attorney general where this model of accountability causes greatest concern. The current role of the attorney general encompasses a wide variety of different functions. She is the government’s chief legal adviser, superintends the prosecution agencies, is a government minister with responsibility for criminal justice and acts as guardian of public interest.

Keeping all these functions in one role is both unsustainable and undesirable. The attorney general’s seemingly contradictory positions as an independent head of prosecutions, a party political appointment and the person responsible for developing government policy on the criminal justice system make allegations of political bias almost inevitable.

However, far from improving the situation we believe these proposals could actually make the attorney general less accountable, not more.

There are aspects of each of these proposed reforms that are very much to be welcomed; the protocol between the attorney general, director of public prosecutions, the director of the serious fraud office and the director of revenue and customs prosecutions for example.

The proposal is that the attorney general and the directors should draft a protocol about how their roles relate to each other and interact and that this should be laid before parliament. Any clarification of the way in which decisions are taken is to be applauded.

As is the formal recognition in the draft Bill that ‘the attorney general’s function of the superintendence of the Directors does not include power to give a direction in an individual case’. This is not a reform, merely a restatement of the current position, but a necessary one in light of the ongoing court case in relation to the Serious Fraud Office’s decision to halt their inquiry into BAE Systems.

However this attempt at introducing more open and accountable government is undermined by the proposals that give the attorney general the power to intervene to safeguard the national security interest — specifically, the power to stop or prevent any investigation or prosecution seen to be damaging to the national security interest or to the UK’s relationship with another country.

The attorney general would have to report to parliament that these powers has been used but would not have to reveal any information that they believed damaging to the national security interest or international relations. The attorney general would also control the timing of the report; it would only have to be made when it was not believed to be damaging to national security.

It is still unresolved whether the director of the Serious Fraud Office was correct in stopping the investigation into BAE Systems as the ruling published by Lord Justice Moses and Justice Sullivan in April 2008 is currently being appealed.

However under these proposals, if a similar case were to arise, the attorney general could take the decision alone and parliament would have no right to know at the time, nor any right to access the information on which the decision was taken. It would be up to the attorney general to determine when, if at all, parliament was informed. The decision would not be open to scrutiny and in a modern parliamentary democracy this cannot be right.

It is easy to argue that this is an exaggeration; that while these powers exist under the proposals, they would never be used in the way described. It may well be the case that this government has no intention of using these powers in this way.

However, the significance of core constitutional reforms is not just to address any issues that may be topical at the moment they are passed but also to lay down the limits of what may happen if things go badly wrong in the future. There will be situations in which national security conflicts with the desire for open government.

It is likely that there will also be times when certain decisions need to be taken behind closed doors. We need a constitutional settlement that is able to take account of this without abandoning the principles of scrutiny and accountability. There are a number of examples from around the world of how these tensions can be managed, putting parliament at the heart of the process.

If the government is really going to renew our constitution they need to embrace these challenges and open up the decision-making process to scrutiny prior to the event, not just present a fait accompli to parliament.

So how should the draft Constitutional Renewal Bill be improved, so that it reforms our system rather than just tinkering with it?

Firstly, parliament should have the right to recall itself.

When Gordon Brown outlined his vision of constitutional reform he spoke of the need to transfer power from the executive to parliament. While the draft Bill takes some small tentative steps in this direction with regard to war powers and treaty ratification, one of the flaws on these proposals is that the accountability mechanisms simply don’t apply while parliament is in recess.

So, for example, if troops were deployed to a conflict situation in the long summer recess, then parliament would have absolutely no role in the process. That parliament has no say in one of the most important decisions any democracy can take cannot be right.

MPs should have the right to petition the speaker to recall the House of Commons so that important debates can take place during recess if necessary. Discussions about these issues will be taking place in the country at large and the media; we believe they should also be taking place in parliament.

Secondly, the government should introduce fixed-term parliaments.

In the Governance of Britain green paper, the government suggested limiting prerogative powers such as for the dissolution of parliament by making them accountable to parliament. This does not go far enough, as it does not remove the instability from our political system.

The fact that an election could be called at any time is bad for the governance of this country; there is a lengthy period of uncertainty which affects politics, government and the economy. It creates the perception that calling an election is only about political advantage and that politicians are putting party interests before those of the country.

The practice of the governing party choosing the date of the election is also in contrast to other types of elections, such as for the Scottish parliament, National Assembly for Wales, the European parliament, and local elections. If we do not give this unaccountable power to the First Minister of Scotland why is it acceptable for the prime minister to have it?

Thirdly, the constitutional role of the attorney-general should be radically reformed.

Recent controversial issues — including the cash-for-honours investigation, the decision not to prosecute the BAE Systems case and allegations of political pressure to amend legal advice on the war in Iraq — have seriously compromised the role of the attorney- general.

It may be perfectly possible for an individual to justify how the different roles of the attorney-general do not come into conflict. However, for people to have faith in the way that we are governed, the role of the attorney- general has to be seen to be independent and above suspicion, not just technically independent.

The perception of a lack of independence and political bias are feeding public mistrust of politics and the way we are governed.

Of course, for a real renewal of the constitution we would need electoral reform. The long awaited review has now been published but where is the promised debate?