| THE CONSTITUTION UNIT NEWSLETTER | ISSUE 38 | JANUARY 2008 | MONITOR SCOTLAND: TOWARD A NEW SETTLEMENT? IN THIS ISSUE

The constitutional debate in Scotland in the SNP White Paper) with ideas on reconciling continues apace. In the last Monitor we more devolution with a renewal of the UK BRITISH BILL OF RIGHTS 2 reported on the SNP Government’s White union (which mark out a very different agenda). Paper Choosing Scotland’s Future – Especially notable were her ideas on risk-sharing A National Conversation. This set out options through fiscal solidarity across the UK, and those for Scotland’s constitutional future, ranging on guaranteeing rights of ‘social citizenship’ PARTY FUNDING REFORM 2 from further-reaching devolution to the SNP’s across the UK. Emphasising social rights across own preference of independence. jurisdictions suggests a concern to build common purposes – or, put another way, limits to policy EU REFORM TREATY 3 Beyond their commitment to ignore the SNP’s variation – to which risk-sharing and solidarity can ‘national conversation’, the other main parties be put to work in a UK-wide framework. in Scotland were generally silent on Scotland’s PARLIAMENT 3 constitutional options until a speech by the new This is a bold agenda. For it to work much would Labour leader in Scotland, Wendy Alexander, at depend on a willingness in Westminster and the University of Edinburgh on St Andrew’s Day, Whitehall to think creatively about rebalancing DEVOLUTION 5 30 November. This set out a unionist perspective the union. If devolution is to have a stronger on constitutional change; unlike the SNP White UK-wide context, then the devolved institutions Paper, independence was not an option. need real rights of involvement in setting UK- FREEDOM OF INFORMATION 6 wide objectives. On fiscal solidarity and common Alexander’s speech set out a dual strategy citizenship rights Westminster and Whitehall of strengthening devolution while also taking would have to share decision-making with their DATA PROTECTION 6 steps to underpin the union. It was also a counterparts in Scotland, Wales and Northern first attempt to build a unionist consensus on Ireland. Otherwise critics could, rightly, cry foul Scotland’s constitutional future, with Labour, about Westminster diktat undermining devolution. PEOPLE ON THE MOVE 6 the Conservatives and the Liberal Democrats Are Westminster, Labour, the Conservatives, joining forces in a Scottish Parliament debate on and really ready 6 December to use their parliamentary majority to for that? establish the Scottish Constitutional Commission CONSTITUTION UNIT NEWS 7 flagged in Alexander’s speech. Professor Charlie Jeffery, Institute of Governance, Edinburgh University This body will have the remit of reviewing the BULLETIN BOARD 8 present constitutional arrangements while also securing ‘the position of Scotland within the CONSTITUTIONAL RENEWAL United Kingdom’. It is set to be launched in early 2008, though as yet there is no information about who will sit on it, how it will work, and what Constitutional renewal is central to Gordon resources it will get. Brown’s vision for the future of Britain. It was the subject of his first speech to parliament as All this made rather less impact than it might Prime Minister, and his government’s first major because in the week Alexander gave her publication, The Governance of Britain (Cm 7170, speech she became embroiled in a party funding July 2007). controversy. This involved small-scale, yet illegal, donations to Alexander’s campaign budget for the The difficulty facing the government is how to Scottish Labour leadership. The Scottish media give legislative effect to Brown’s proposals for inevitably latched on to the funding issue, leaving constitutional reform in ways that resonate with the unionist move on the constitution curiously ordinary people. The big ticket items – Lords underreported. reform, a British bill of rights, possibly even a written constitution – must wait until there is Yet this gambit was important for a number of stronger consensus about the way forward. So reasons. It was the first time the unionist parties the Constitutional Renewal Bill will contain a host have used their majority in the Scottish Parliament of smaller items, worthy in themselves, but not pro-actively. It was the first time all three unionist exactly vote winners. parties have agreed on the need for further reform to the devolution arrangements. And it The government’s aim is for the bill to be was the first time there has been a cross-border published in draft around the end of February. initiative on the constitution, with Gordon Brown There will then be 12 weeks for consultation. at least tacitly approving Alexander’s speech There are likely to be bids for pre-legislative 38 and David Cameron endorsing the Constitutional scrutiny from at least one of three select The Constitution Unit Commission during a visit to the Tory troops in committees: the Justice Committee, the Public UCL Department of Political Science Scotland on 10 December. (PASC), whose interest Director: Professor Robert Hazell CBE will be statutory regulation of the civil service, and www.ucl.ac.uk/constitution-unit Also significant was the way Alexander combined the Lords . To allow time Email: [email protected] calls for further powers and greater fiscal for all this, it is unlikely that the bill itself will be Phone: +44 (0) 20 7679 4977 autonomy for the Scottish Parliament (both of introduced until November. Fax: +44 (0) 20 7679 4978 which could fit easily into the prospectus set out | THE CONSTITUTION UNIT MONITOR | ISSUE 38 | JANUARY 2008 | 2

CONSTITUTIONAL RENEWAL (CONT’D) PARTY FUNDING REFORM

The main theme of the bill will be strengthening The impetus for this has come from a variety On 30 October, Sir Hayden Phillips parliament and curbing the prerogative of sources. The tabloid campaign against announced that the inter-party talks on powers. To that end the government issued the HRA, as ill-formed and inaccurate as it party funding, which had been established a consultation paper in October on War may be, seems to have generated political following his report in March 2007, had been Powers and Treaties: Limiting Executive interest in drawing up a charter of basic rights suspended. At the time, it seemed that the Powers (Cm 7239). The paper outlines the that is seen as more genuinely ‘British’ in attempt to broker consensus on reform of options for giving parliament a formal role in origin. The renewed debate on integration party funding had failed. However, in late the deployment of armed forces into conflict and the perceived need to encourage shared November 2007, it emerged that Labour abroad. The main question is whether to and distinct national values has also had an had been in receipt of over £600,000 in codify parliament’s future role in statute, or in a impact, with both Gordon Brown and David donations via intermediaries, which appeared resolution of the house. Subsidiary questions Cameron arguing in recent months that a to represent a breach of the Political Parties, are how to define which armed conflicts are to bill of rights could help define such values. Elections & Referendums Act 2000. The The Liberal Democrats for some time have be covered by the new approval procedure; initial consequence was the swift resignation supported including a British bill of rights and what information should be provided of Labour’s General Secretary. Within days, within a written constitution, on the basis to parliament before it votes on the issue. the Electoral Commission had passed the that it would reinforce, entrench and extend The government favours limiting this to the matter over to the police (investigations are rights protection. objectives and location of the deployment, and ongoing). It also prompted the Prime Minister to indicate that further reforms in party funding legal basis for the operation. The Lords could However, the difficulties of drafting a bill of would take place, and Labour and the Liberal express their views on these matters, but only rights should not be underestimated. For Democrats indicated their willingness to re- the Commons would decide. example, what would such a bill say about enter talks. The Conservatives, however, said equality, diversity and multiculturalism in On the ratification of treaties, the consultation they would not cooperate unless Labour made British society? Would it be confined to listing paper proposes codifying in statute the some upfront commitments on the classic civil and political rights, such as Ponsonby Rule whereby the government does union donations. the right to freedom of expression, or would not ratify any treaty until it has been published it also set out basic social entitlements, such and laid before parliament for 21 sitting days, as access to free health care and education? The Phillips review had managed to achieve so that parliament has the opportunity for What would it say about jury trial, privacy political consensus on certain major points debate if it chooses. Since 2000 copies of rights, or the rights of non-citizens? such as reducing the sums that could every proposed treaty have been sent to the be spent on national campaigns, and Foreign Affairs Committee and the relevant There are also complex issues about the extending state provision. However, there departmental select committee. design and content of any such document. was disagreement in two principal areas. A British bill of rights could be similar to that First, some in the Labour Party feared that A second consultation paper was issued in of the US in providing for full judicial override if trade union affiliation payments were October on Judicial Appointments (Cm 7210). of executive and legislative acts that violate capped – as was proposed for corporate and These are now effectively made by the Judicial fundamental rights. Alternatively, it could be individual donations – this would threaten Appointments Commission, with the Lord a purely declaratory document setting out the constitutional link between affiliated Chancellor having a very limited role. The shared values with no legal standing at all. unions and Labour. The review therefore consultation asks whether his role should be Or it could lie somewhere between these proposed that payments from unions be reduced still further, and whether there should poles. Also, difficult questions exist as to how regarded as individual contributions from be a role for parliament in scrutinising senior a British bill of rights would interact with the union members for the purposes of the appointments. existing HRA and ECHR. David Cameron has donation limit. This would be permissible if suggested replacing the HRA with a more these contributions were made transparently The draft bill must be seen as only the start of authentic British set of rights than those in and could be traced back to the individuals Gordon Brown’s constitutional reform agenda. the ECHR. However, the ECHR was largely concerned. This proposal caused difficulties In the summer will launch a much drafted by British lawyers to reflect the rights for Labour because it challenged the bigger consultation on a British bill of rights enjoyed in the UK legal system, and the UK principle of collective contributions by and duties. His Minister of State Michael would in any case continue to be bound by the affiliated organisations, and because the Wills MP has indicated this will involve a wide Convention even if the HRA were repealed. emphasis on transparency and traceability ranging consultation and deliberative exercise could arguably be conceived as a version with local citizens’ juries, on-line consultation At present, the political discussion lacks of ‘contracting in’ by union members rather etc, and culminating in a Citizens’ Summit of real substance, even if a British bill of rights than ‘contracting out’. The second area 1000 people. is now established on the constitutional of contention surrounded proposals to reform agendas of all the major parties. further regulate and restrict spending at A BRITISH BILL OF RIGHTS? The influential law reform organisation, constituency level. This was opposed by Justice, have recently published an excellent the Conservatives, on the grounds that their The UK is exceptional among western discussion paper on this, A Bill of Rights for party workers were essentially amateurs so it democracies in not having a ‘home-grown’ Britain? Informing the Debate. The issues would be unreasonable to impose additional should begin to sharpen when the government constitutional bill of rights. The Human Rights administrative burdens upon them. publishes its consultation paper on a British Act 1998 (HRA) partially filled this gap, by bill of rights and duties, and the parliamentary incorporating the European Convention The results of the review were published in Joint Committee on Human Rights publishes on Human Rights (ECHR) into British law. March 2007 (see Monitor 36), with these two its own report. However, over the last year, there has been sticking points outstanding. In an attempt to growing political interest in the possibility of reach consensus, talks between the largest Colm O’Cinneide, Senior Lecturer, three parties began in May 2007, leading to drafting a fully-fledged British bill of rights. Faculty of Laws, UCL 2 | ISSN 1465–4377 | 3

a draft agreement being put to the parties Nonetheless, British debates on EU matters for more rigorous policy proposals prior in August. On trade unions, it was again are still likely to be marked by a distinct lack to legislation, leading to criteria for post- proposed that affiliation payments be seen as of enthusiasm. The Lisbon and Brussels implementation review (Governing Well, individual rather than collective contributions. summits last month did little to activate at www.bettergovernmentinitiative.co.uk). Again, there were proposals about greater Gordon Brown’s ambition for EU economic, Meanwhile, former Lords Constitution transparency, but the principal change as distinct from institutional, reform. And Committee chair Professor Lord Norton was the removal of the apparent threat of apart from contributions from the Lib Dems, continued his crusade for more rigorous pre- ‘contracting in’. For party expenditure, it was the forthcoming Westminster debate on and post-legislative scrutiny at a Constitution proposed that spending controls would now ratification will almost certainly continue to Unit seminar in November (details on p. 7 apply to the whole Westminster electoral dwell on how European encroachments have and at www.ucl.ac.uk/constitution-unit/events/ cycle and that the differentiation between been resisted – (the ‘red lines’) – rather than reformingthelegislativeprocess.htm). ‘national’ and ‘local’ spending should a more positive approach, such as what effectively disappear. Instead, a single overall a reforming Europe can do for do for its Machinery of Government Changes limit would apply to each party, including all members. Do Transfer of Functions Orders, which its constituent organisations throughout the provide the authority for changes in electoral cycle. For the EU as a whole, after all the theological departmental structure, allow for sufficient disputes about scaling down the planned EU parliamentary scrutiny? PASC thinks not, Neither proposal was accepted. Labour constitution to a mere treaty, what difference as stated in their Machinery of Government continued to argue that this proposal would will it actually make? In fact, despite the Report (HC 672), and wants significant threaten their relationship with affiliated integrative character of many of the changes restructuring to require the assent of both unions, whilst the Conservatives claimed wrought by the treaty – such as the new post Houses of Parliament. The government, the proposals on local expenditure would be of President of the European Council (on a in its response (HC 90), maintained that needlessly bureaucratic, and would entrench once-renewable 2 ½ year term), the single parliament does have enough opportunity the so-called information advantage enjoyed foreign affairs chief, the smaller commission, to scrutinise, and emphasised the need by incumbents (despite the fact that the and the scrapping of veto powers on for the Prime Minister to have discretion use of MPs’ allowances for electioneering over 50 topics – the power politics of the over the organisation of departments. is prohibited). However, the revelations of European Union look like remaining firmly Unsatisfied, PASC wrote a follow up report in November 2007 have put party funding reform intergovernmental for as far as the eye December (HC 160), highlighting a perceived back on the agenda, and the indications are can see. contradiction between the government’s that Labour’s stance on union contributions commitment to increasing parliament’s role in, may be relaxed. The key will be how far the for example, the deployment of armed forces, government is prepared to press for reform PARLIAMENT and the reluctance to increase parliamentary legislation during the remainder of its current oversight of the machinery of government. term of office. Scrutiny of the Executive The committee called for such provision to be incorporated in the forthcoming constitutional Justin Fisher, Professor of Political Science, How best to provide for scrutiny of the renewal bill. Brunel University executive? Recent government responses to reports of the Commons Public Administration Government Propriety A longer version of this article appears in Committee (PASC) reveal an ongoing PASC also recently called on government to Political Quarterly dialogue between the executive and the rearrange the system of ‘ethical oversight’ committee in three related areas (the reports provided by constitutional watchdogs (Ethics themselves were covered in Monitor 37). and Standards, HC 121-I). The government BEYOND THE EU REFORM TREATY accepted some of PASC’s specific proposals, Measuring Government Performance such as non-renewable terms for watchdogs. The government rejected PASC’s suggestion It also drew attention to the new post of Exhaustion with institutional change appears for a new independent National Performance Independent Adviser on Ministers’ Interests, to to have set in throughout the continent since Office, which would aim to do for performance whom the Prime Minister can refer breaches the signing of the EU Reform Treaty in mid- what the National Audit Office (NAO) does of the for independent December. Most of the 27 member states, for accounts, and take over the Capability investigation. On many other issues raised the UK included, are likely to steer clear of Reviews. It argued that external members by PASC, the government made sympathetic involving the public directly in the ratification of Capability Review teams ensure noises, but is waiting for more specific process and will rely instead on parliamentary independence, while the NAO’s work already proposals before committing further. approval only. Ireland, which is constitutionally extends beyond financial audit. On cue, the bound to hold a referendum, will probably NAO recently published an evaluation of the be the sole exception. In the UK the information used to measure achievement Modernisation of the House of Commons Conservatives may continue to attack Gordon of Public Service Agreements (PSAs) and Brown for ruling out a referendum, but mainly advocated that measurement issues be just as yet another stick with which to beat considered when agreeing PSAs (Fourth Given the government’s commitment to the government. Some of the passion has Validation Compendium Report, HC 22-II). ‘revitalising parliament’, the latest set of gone out of Conservative Euro-scepticism, procedural reforms approved by the partly because the party has found more This chimes with other recent Commons was notable for its timidity. effective weapons, but also because of Tory recommendations. In his recent book, Public These changes followed the June 2007 quandaries over how – or even whether – to Sector Auditing, Comptroller and Auditor publication of the Modernisation oppose the treaty once it has been passed by General Sir John Bourne notes the difficulty Committee’s report Revitalising the parliament. of auditing ‘aspirational’ policy objectives, Chamber: the role of the back bench while the Better Government Initiative calls Member (HC 337). Despite being chaired | THE CONSTITUTION UNIT MONITOR | ISSUE 38 | JANUARY 2008 | 4

PARLIAMENT by a Cabinet minister, some of the Committee launched an inquiry into e- would take the pressure off for more major committee’s bolder suggestions were rejected petitions. Part of this is an ‘e-consultation’ reform, and cement a wholly-appointed by the government in its October response. inviting public responses to three questions: House. At present ministers are disinclined to Thus proposals for the reinstatement of whether respondents would consider signing support it. providing time for debate on private members’ an e-petition, what role MPs should play motions and for a 30-minute weekly debate on in the petitioning system, and what result The second source of pressure is PASC, a recent committee report fell by the wayside. respondents would expect a petition to have which published a report on 18 December Changes that were approved included a new (at: http://forums.parliament.uk/e-petitions). following its short inquiry on propriety and facility for weekly 90-minute ‘topical debates’, honours sparked by the ‘cash for peerages’ and the division of departmental question Although the method of consultation adopted affair. The committee has also concluded times into ‘closed’ and ‘open’ periods. In the is innovative, the committee is an unlikely that there is no excuse for leaving the latter, members will be able to ask questions champion of direct democracy. In an earlier appointments process unreformed, and calls on any subject relating to the work of the inquiry it rejected ideas such as a dedicated for a bill to create a statutory appointments department in question. , direct petitioning of commission and allow members to retire parliament by the public (bypassing MPs), (and be expelled) from the chamber. It October also saw the launch of a Constitution and a requirement that select committees goes further than Steel by proposing the Unit report, The House Rules? (further respond to petitions falling within their remit Prime Minister should lose his control over details on pp. 7-8), which advocated a more (Public Petitions and Early Day Motions, the size of the House, the party balance extensive range of reforms to give backbench HC 513, May 2007). On the other hand, the amongst appointees, and the names of members and committees greater influence committee did propose that ‘there should be party nominees. Instead the appointments over parliamentary business. The major a regular opportunity for Members to initiate commission would have some discretion to recommendation was for the creation of a a debate on a specific Petition’ (ibid, p. 33), choose names from longlists put forward by ‘Backbench Business Committee’ to schedule which would be a sensible first step toward the parties. In two respects the committee’s a weekly ‘House Business’ slot. Items of raising the profile of the petitions process. report was refreshingly counter-cultural. business to be taken in this period would If the government is serious about tackling First, it recognised that the Lords is always include debates on committee reports and public disengagement from parliamentary likely to contain some party donors and that procedural reform, time for members’ bills democracy, it should throw its support behind this in itself does not imply corruption. But and motions, and general debates that are such ideas. Simply creating a website where donation must not be a factor in determining currently scheduled at government discretion. petitions are lodged, and then ignored, will do an individual’s suitability for appointment, Crucially, the proposed new body would have little to inspire participation. so the process must be more robust. the power to determine whether debates Second, while wanting a bill, the committee take place on substantive motions which, Lords Reform recognised the political obstacles to this in among other things, would have enabled the current climate. It therefore urged that backbenchers to force a vote on those Progress is still awaited on the government’s its key recommendations on appointments Modernisation Committee proposals not wholesale plans for Lords reform, but external should be implemented by the Prime Minister favoured by government. pressure is mounting for more limited change. immediately without legislation. Gordon Cross-party talks are continuing, and a new Brown’s initial response was to indicate Parliamentary Petitions White Paper is expected, probably in the general support for reducing prime ministerial spring. This will seek to take matters forward patronage, without making any immediate The right of citizens to petition parliament is following the Commons vote in March for a commitment. But pressure on him is likely an ancient liberty exercised in England for wholly-elected chamber, but implementation to grow. Unlike a bill it is hard to argue that at least 700 years. Prior to timetable reforms is not promised until after the general election surrendering prerogative patronage power in 1842 thousands of petitions were lodged in 2009/10. voluntarily would do anything to scupper each year and several hours per day were reform. It would simply ensure greater devoted to their consideration. Since then the Pressure for change in the meantime comes propriety in appointments until such time as public petition has all but disappeared as a from two sources. The first is Lord Steel, more significant reform can proceed. meaningful part of Westminster life, despite whose private member’s bill fell at the end of occasional calls for its revival. the 2006-07 session, but was reintroduced New poll on Lords immediately in the new session. The bill In July 2007, the latest such appeal was made seeks to make the appointments commission In December the Constitution Unit published in Gordon Brown’s Governance of Britain statutory, phase out the hereditary peers results of a new poll (carried out by Ipsos green paper, which called upon parliament by ending the system of by-elections, allow Mori) on attitudes to the Lords and its reform. This found that slightly more people (57%) to review its petitioning process, and create members to leave the House, and bar serious think that the House of Lords is carrying out an ‘e-petitions’ facility similar to that on the criminals from membership. These proposals its policy role well than think the same about Number 10 website. This, the government appear uncontroversial enough, and in the the House of Commons (53%). Amongst claimed, ‘would provide a modern mechanism previous session received strong support those claiming to be knowledgeable about for the public to engage with Parliament in the Lords itself. However at the repeated the Westminster parliament the gap is wider and would allow Parliament to demonstrate second reading on 30 November the bill’s (66% to 57%). Unsurprisingly, by contrast, far that it actively listens to the views of those it opponents were more organised, and many fewer people believe the process for choosing serves’ (Governance of Britain, Cm 7170, p. dissenting voices were heard. The primary members of the Lords is a good one than say 47). Subsequently, the Commons Procedure concern is that approving such measures the same about the Commons (36% to 62%). 4 | ISSN 1465–4377 | 5

DEVOLUTION

Yet asked which factors are most important year rates freeze rather than expenditure therefore came as something of a surprise to determining the legitimacy of the House of on public programmes, the private-sector- that the CSR contained the announcement Lords more people prioritise careful legislative oriented, economic focus of the PfG gave the that RDAs would see their budget shaved by scrutiny, trust in the appointments process, administration a distinctly neo-liberal tenor. 5% in real terms over the next three years. and acting in accordance with public opinion The ‘Single Pot’ RDA budget will be £2.14 than prioritise inclusion of elected members. This pleased the business community and bn in 2010-11, compared to £2.274 bn this Full details can be found in a briefing on the reflected the dominance in general of the financial year. The issue of exactly how RDAs Unit’s Lords project website. DUP, and in particular of the finance minister, will be made more ‘accountable’ to their Peter Robinson, in the four-party executive. constituent stakeholders remained to be tidied Lords personnel But voluntary organisations were unhappy up at the end of the period. and the Ulster Unionist Party and the SDLP The membership of the House continues to were nonplussed – to the extent, indeed, that The CSR also saw progress on some very develop incrementally. Since September two the two parties supported a critical assembly important issues of finance. It confirmed the new Crossbench members have been added motion on the PfG from the opposition end of the line for proposals for a planning by the Appointments Commission: Professor Alliance Party. Indeed, there were signs of gain supplement, which arose from the Nicholas Stern and Professor Hali Afshar. a realignment of the centre ground, with the Barker Review in 2004, but were considered The latter is the second Muslim woman SDLP social-development minister, Margaret by many to be unworkable. Instead, a appointed to the chamber this year. Other Ritchie, securing a standing ovation at the statutory planning charge will be introduced new members include former Scottish Deputy UUP conference. to fund infrastructure associated with new First Minister Jim Wallace and Sue Garden developments. This has gone into the (both Liberal Democrat). Meanwhile Plaid The sectarian implications of the DUP’s Planning Bill published in November, which Cymru have decided to drop their opposition pursuit of political primacy, which hardly also makes provision for the Independent to membership of the Lords and conduct an chimed with the ethos of power-sharing, Planning Commission, another Barker (and internal election to choose a candidate to put became clear when Ms Ritchie stuck to Eddington) recommendation. forward for appointment. her political guns in insisting she would not fund a ‘conflict transformation’ project The Local Authority Business Growth linked to the Ulster Defence Association Incentive Scheme will not be funded in DEVOLUTION when the paramilitary organisation refused 2008-09, but will be re-shaped and re- to decommission its weapons. Mr Robinson introduced for the following financial Northern Ireland contradicted her announcement in the years. Finally, Supplementary Business assembly, and the executive split on the Rates (SBR), first proposed by Sir Michael The political ‘honeymoon period’ following issue, but the minister insisted she would not Lyons in order to fund projects to promote the re-establishment of devolution in May be ‘bullied’ by him. economic development, were endorsed by 2007 came to an end in the autumn, with the CSR. They are likely to be limited to 2p the relationship between the two principal This and other developments left SF politically in the pound, and restricted to top tier local partners in the new power-sharing executive, exposed, with the ideology of its newfound authorities. the Democratic Unionist Party and Sinn Féin, partner so inimical to its core constituency. looking more like a shotgun marriage. The DUP was, however, unrepentant in the Income from supplementary business rates face of charges of political clientilism, when applied in London will contribute a third of The first and deputy first ministers, it emerged that the developer to whom its the £16bn budget for Crossrail which got the respectively Rev Ian Paisley (DUP) and Martin environment minister, Arlene Foster, was go-ahead in early October after crucial talks to McGuinness (SF), continued to smile before ‘minded’ to hand a contract for a visitors’ agree the tripartite funding package. Central the cameras and ended the year on a joint centre at the Giant’s Causeway – in government will contribute £5.2bn to the trip to the United States, taking in a meeting preference to a public alternative – was a scheme, while the rest will come from future with the president, George W. Bush, to party member. ticket revenue. promote inward investment. Symptomatically, however, they missed two deadlines they Professor Rick Wilford & Robin Wilson, The period also saw the announcement by had set themselves on the appointment of a Queen’s University, Belfast DCLG of the final list of areas that will go champion of the victims of Northern Ireland’s ahead with developing Multi-Area Agreements ‘troubles’. And their parties locked horns on (MAAs). Thirteen city-regions, ranging from a widening raft of neuralgic issues: Irish- English Regions Urban South Hampshire (Southampton and language legislation, the devolution of policing Portsmouth city-region) to Tyne and Wear, and justice and the future of school selection The autumn saw the publication of the will now aim to finalise arrangements for at age 11. Comprehensive Spending Review (CSR) their MAAs by June 2008, in the meantime covering the period 2008-11. Following the producing plans for their areas in the light of With the parties tending to cancel each other summer’s Sub National Review of Economic the promised financial freedoms heralded by out, the draft Programme for Government Development and Regeneration (SNR), and SBRs and the planning charge. they published in October was flimsy, with a number of related policy developments, the no reference to key direct-rule strategies CSR was expected to be the final piece in the James Rees, Institute of Political and – particularly those designed to tackle the jigsaw of a more coherent regional settlement Economic Governance, University of sectarianism (A Shared Future) and social for the Brown era. Manchester exclusion (Lifetime Opportunities) which, in tandem, have scarred Northern Ireland – and After the emphasis on strengthening and no innovative alternatives. Taken with the refining the role of Regional Development draft budget, whose centrepoint was a three- Agencies (RDAs) in previous periods, it | THE CONSTITUTION UNIT MONITOR | ISSUE 38 | JANUARY 2008 | 6

INFORMATION POLICY

Freedom of Information Data Protection John Lyon has become the new Parliamentary Commissioner for In October 2007, the Prime Minister In recent months, the issue of data Standards, in succession to Sir Philip announced a ‘package’ of measures to protection has risen to prominence in Mawer, who has been appointed as the reform FOI. The reforms consist of a the wake of the loss of benefit claimant Prime Minister’s independent adviser on review, a consultation and an details at HMRC and separate data loss ministerial interests. Stephen Mark is announcement. incidents at the Department of Transport the new clerk to the Public Administration and a number of NHS trusts. The Justice Committee in the Commons. Lucinda The review examines whether the thirty- Select Committee and an interim report Maer has moved from PASC to join the year rule on the disclosure of historical from the Cabinet Office gave similar Parliament and Constitution Centre in the documents should be reformed. Currently, recommendations regarding changes to Commons Library. documents subject to the rule must be kept the Data Protection Act and data handling. secret for thirty years unless overridden The Cabinet Office report recommended In the House of Lords, Lord Norton by a specific FOI request. The review is increasing information co-operation of Louth is back on the Constitution to be carried out by Paul Dacre, Editor-in- between government departments and Committee. The committee now has a Chief of Associated Newspapers, Sir Joe the creation of a legal obligation to notify strong legal membership: other members Pilling, former at the Information Commissioner’s Office of include the former Lord Chief Justice the Northern Ireland Office, and historian any data loss (Data Handling Procedures Lord Woolf, and two former Attorneys Professor David Cannadine. The results in Government: Interim Progress Report, General, Lord Lyell and Lord Morris. will be known by next spring. at: www.cabinetoffice.gov.uk/reports/ Following the appointment of Michael data_handling.aspx). It further suggested Pownall as Clerk to the Parliaments, his The consultation asks whether the scope that the ICO’s new power to spot check post of Clerk Assistant has been filled of the Freedom of Information Act 2000 central government departments should be by David Beamish. Mr Beamish in turn (FOIA) should be extended to bring extended across the public sector. has been succeeded as Reading Clerk ‘organisations that carry out functions of a by Rhodri Walters, with Edward Ollard public nature’ and ‘contractors who provide The Justice Select Committee took appointed the new Clerk of Committees. services that are a function of that public the view that the ICO needed more authority’ within the reach of the FOIA. resources and agreed that companies In Cardiff, Sir Jon Shortridge, who had The paper suggests five options, from ‘no should be obligated to report any data been Permanent Secretary of the Welsh change to the current arrangements’, to loss (Protection of Private Data, HC Assembly Government since the start of using section 5 of the act to ‘progressively 154). Both reports recommended that devolution, has retired. widen’ the legislation by bringing in the Data Protection Act be amended to ‘waves’ of different bodies over a period of give new, possibly criminal, sanctions to INTERNATIONAL CONSTITUTIONAL time. However, ‘further consultation’ with section 60 of the act, which deals with FOCUS: AUSTRALIA the bodies concerned and a full impact those who unlawfully obtain or disclose assessment will be necessary before any information and currently makes such The new Australian Labor organisation would be made subject to the action punishable by a fine. The Ministry of government’s ‘National Platform and Act. The consultation will end in January Justice is now considering amending this Constitution’ includes plans for a range 2008 (Freedom of Information Act 2000: part of the Act. The issue of data sharing of constitutional changes. As in the Designation of additional public authorities, and protection is also the subject of a UK, dominant themes include the need CP 27/07). review by the Information Commissioner to boost accountability of government and Dr Mark Walport. The review seeks to parliament and the people, increase The announcement officially puts an end to examine how to best share information transparency and facilitate public to the lengthy process of consultation while ensuring the safety of personal data. participation. on ways of reducing the costs of FOI It is due to report in the first half of 2008. (reported in past issues). Proposals had Specific items include a clear statement in support of removing the been made to limit ‘vexatious’ requests, PEOPLE ON THE MOVE but in practice these may have limited British monarch as head of state, though lengthy consultations and FOI requests more generally. On 25 a referendum would precede any October the government concluded that Stephen Carter has been appointed to a new post as political Chief of Staff change. The party intends to introduce no changes would be made. However, the simultaneous fixed four-year terms to the Prime Minister. Alex Allan is the problem of vexatious requests remains for both parliamentary chambers and an issue and the government pledged to new Chairman of the Joint Intelligence to remove the power of the Senate promote a more ‘robust’ use of section Committee. He is replaced as Permanent to reject, defer or block appropriation 14 of the act to deter them, make clearer Secretary of the Ministry of Justice by bills. There are also plans for the guidelines on fees and support the Sir . ‘improved freedom of information Information Commissioner’s new charter legislation’, for greater transparency for responsible FOI use. Sir Christopher Kelly is the new chair of in political donations, and for a review the Committee on Standards in Public Life, of the distribution of powers and and Charles Ramsden the committee’s resources between central and state new secretary. governments. 6 | ISSN 1465–4377 | 7

CONSTITUTION UNIT NEWS

Unit seminar reports autonomy of parliament vis-à-vis the which doubled as Sarah Holsen’s executive, and to encourage greater cross- swansong. Robert Hazell gave a The Unit held three public seminars party working among backbench MPs. A similar presentation to the international between September and December of launch event chaired by Peter Riddell of conference of Information Commissioners last year. The Times was held on 16 October at the in New Zealand in late November. At both Palace of Westminster, with the authors events practitioners engaged strongly On 18 October, Lady Justice Heather joined on the panel by Dr Tony Wright MP, with the central research question: is Hallett and Sara Nathan of the Judicial Sir George Young MP and Lord Tyler. The FOI achieving its objectives? There Appointments Commission spoke on the findings of the report were subsequently was particular interest in the interaction commission’s work since its establishment discussed in a session entitled ‘Whose between FOI and the media, and the effect in January 2006. It is tasked with selecting parliament is it anyway?’ at the Study of of FOI on public trust. on merit whilst also encouraging diversity; Parliament Group conference in Oxford in roles which both speakers stressed were January 2008, as well as being mentioned In the December seminar, Deputy complementary, not contradictory. Of in a Commons debate on modernisation Information Commissioner Graham Smith course, the latter role is heavily dependent shortly after publication. rounded off the 2007 series in his usual on diversity within the legal profession insightful way. Information about all past from which candidates are drawn, but The Constitution Unit would like to thank seminars, along with brief summaries can be aided by fair and transparent the Nuffield Foundation for its generous of the event, presentations, and links to processes, outreach, shadowing and support of this research project. further reading are now available online: mentoring schemes. www.ucl.ac.uk/constitution-unit/foidp/ A summary of the report’s events. On 30 November, Roger Smith, Director recommendations can be found on our of JUSTICE and Professor Colin Harvey, website (at www.ucl.ac.uk/constitution- Personnel Changes Queen’s University Belfast, reviewed unit/unit-publications/142.htm), and hard the prospects for a British bill of rights. copies of the full report purchased for £20. The Constitution Unit is delighted to have The overriding tenor was of caution with Ordering details are given overleaf. appointed Dr Ben Worthy to succeed emphasis on the many pitfalls of the Sarah Holsen as our new Research process. Both speakers noted the lack of a Lords Project Report Associate in Access to Information. Ben clear objective or political imperative for a joined the Unit in October 2007 after bill of rights for Britain, adding that this was It has been a busy period for the Lords completing a PhD from the University a key prerequisite for success. project, which officially finished at the end of Manchester on the development of October. Further funding is being sought of Freedom of Information and open On 5 December, Professor Lord Norton, in order to continue this work. Meg Russell government in Britain. He has written former chair of the Lords Constitution gave a lecture in the Lords on reform, articles on different aspects of FOI Committee, and Helen Irwin, Clerk at the invitation of its Leader, Baroness and open government for a variety of of Committees, House of Commons, Ashton. She also gave oral evidence to the publications. discussed reform of the legislative Public Administration Committee inquiry process. Lord Norton judged that reforms on propriety and honours, and a paper A total of five interns were also recruited to pre-legislative scrutiny have been on the Crossbenchers at a conference at for the autumn term. Thanks are due to productive but required extension. Post- Birmingham University. A paper by Meg Catriona Cairns, Gloria Dawson, Laura legislative scrutiny remained ‘the black Russell and Maria Sciara on defeats in Frascona, Gabriel Pereira and Ed Turner. hole’, with a need to move away from the House of Lords was published in the the present ad hoc approach. Ms Irwin journal British Politics in November, and highlighted the importance of the new another has been accepted for publication Constitution Unit Website Update evidence-taking public bill committees but in the British Journal of Politics and New online resources stressed that it was too early to judge International Relations. In December a their success. well-attended seminar was held in the The Constitution Unit website has Lords, hosted by the , to been updated to include more details Governance of Parliament report results of our surveys of peers and on our activities. There is a new online of the public. The briefing circulated at this publications resource where our back The Constitution Unit’s two-year event, as well as the text of the lecture, catalogue is available to download for Governance of Parliament project came a link to the committee evidence, and free in PDF format. Please also see to a close in October 2007, with the an article for the Guardian on the PASC the revamped What’s New? and Media publication of the project final report, The report can all be found on the sections showing the impact of our House Rules? International lessons for project website. research on public debate. enhancing the autonomy of the House of Commons. The report, authored by Unit Information Policy Update For further details, see: researchers Dr Meg Russell and Akash www.ucl.ac.uk/constitution-unit Paun, sets out a total of 60 proposals The Unit presented an interim report on for reform of Commons procedure and the Evaluation of FOI at a Government practice designed to strengthen the Information Policy Seminar in November, 8 BULLETIN BOARD CU PUBLICATIONS FORTHCOMING EVENTS PUBLICATIONS RECEIVED

• Glover, Mark, and Sarah Holsen, Constitution Unit Events • Better Government Initiative, Governing Evaluating the Freedom of Information Info at: www.ucl.ac.uk/constitution-unit/events Well (October 2007). Available at: Act 2000: Issues and Questions paper www.bettergovernmentinitiative.co.uk. (31 October 2007). Published at: www. • Richard Wilson (Director, Involve) ucl.ac.uk/constitution-unit/foidp/events/ Wednesday 23 January, 1pm (with • Bourn, John, Public Sector Auditing: Is sandwiches from 12.30.) The Challenge of evaluatingfoia2000.htm. it value for money? (Chichester: John Increasing Participation. At the Constitution Wiley and Sons Ltd, 2007) • Russell, Meg, Lords Reform: Principles Unit, 29/30 Tavistock Square. Reserve a and Prospects, lecture at the invitation place at: www.ucl.ac.uk/constitution-unit/ of the Leader of the House of Lords (13 events. • House of Commons Modernisation November 2007). Published at: www. Committee, Revitalising the Chamber: ucl.ac.uk/constitution-unit/research/ • Inside Devolution 2008: The Constitution The role of the back bench Member, parliament/house-of-lords.html. Unit’s second annual devolution Session 2006-07, HC 337 (London: conference, Thursday 22 May 2008, British House of Commons, 2007) • Russell, Meg, Peers’ and Public Academy. Speakers from government, academia and the media will discuss Attitudes to the Contemporary House • Jowell, Jeffrey and Dawn Oliver (eds.), of Lords, briefing for a seminar in developments in devolution since the The Changing Constitution, Sixth the House of Lords (12 December elections and changes in government 2007). Published at: www.ucl.ac.uk/ of 2007. Contact Vicki Spence on edition, (Oxford: Oxford University constitution-unit/research/parliament/ [email protected] for further details. Press, 2007) house-of-lords.html. • The Fifth Annual Information Rights • Justice, A British Bill of Rights: Informing • Russell, Meg and Maria Sciara, ’Why Conference for the Public Sector: FOI the debate (London: November 2007). does the Government get defeated in Live 2008, Thursday 5 June, at Victoria Park the House of Lords?: The Lords, the Plaza, 239 Vauxhall Bridge Road, London • King, Anthony, The British Constitution, SW1V 1EQ. Michael Wills MP, Minister Party System and British Politics’, in (Oxford University Press, 2007) British Politics 2(3) (2007), 299-322. for Constitutional Renewal, is a confirmed speaker. Info at: www.ucl.ac.uk/constitution- • Russell, Meg and Maria Sciara, unit/foidp/events/foilive2008.html. • Ministry of Justice, Freedom of ’Independents Holding the Information Act 2000: Designation Parliamentary Balance: The • Information Policy Seminar series of additional public authorities, ‘Crossbenchers’ in the House of (subscription only). The 2008 series includes Consultation Paper CP 27/07, (London: Lords’. Paper deliver to International a programme of eight seminars beginning Ministry of Justice, 2007). Conference on Minor Parties, with Maurice Frankel of the Campaign Independent Politicians, Voter for Freedom of Information, speaking on • Ministry of Justice, The Governance of ‘FOI: settling down or all shook up?’, on Associations and Political Associations Britain: Judicial Appointments, Cm 7210 in Politics, University of Birmingham Wednesday 27 February 2008, 6.15pm. (London: The Stationery Office, 2007). (November 2007). Info at: www.ucl.ac.uk/constitution-unit/foidp/ events. • Russell, Meg and Akash Paun, The • Ministry of Justice, War powers and House Rules? International lessons Selected External Events treaties: Limiting Executive powers, for enhancing the autonomy of the Consultation Paper CP 26/07, Cm 7239 House of Commons, (October 2007). • Constitution Unit Director Professor (London: The Stationery Office, 2007) 93-page report available to purchase Robert Hazell will be giving the UK Public from the Unit for £20. Summary of Administration Consortium’s biennial • Office of the Leader of the House, Sunningdale Accountability Lecture on recommendations available at: www.ucl. Revitalising the Chamber: The role of ac.uk/constitution-unit/files/publications/ 29 January 2008 at 7.15 pm at the Royal the back bench Member (government HouseRulesRecommendations.pdf. Society of Arts, London. Further details at: www.ukpac.org or contact Terry.Caulfield@ response to Modernisation Committee • Trench, Alan (ed.), Devolution nao.gsi.gov.uk. report), Cm 7231 (London: The and power in the United Kingdom Stationery Office, 2007). (Manchester: Manchester University • The Institute of Advanced Legal Studies’ Press, 2007). Available as e-book at: Constitutional Law Lecture Series • Thomas, Richard, and Mark Walport, www.manchesteruniversitypress.co.uk/ continues in 2008 with talks by Professor Data Sharing Review: A consultation catalogue/book.asp?id=1070. Dawn Oliver on 30 January 2008, Professor paper on the use and sharing of Anthony Bradley on 20 February 2008, and personal information in the public and • Various authors, Devolution Monitoring Professor Keith Ewing on 10 March 2008. private sectors (London: Data Sharing Reports on Scotland, Wales, Northern Details at: http://ials.sas.ac.uk. Ireland, English Regions and the Centre Review). At: www.justice.gov.uk/docs/ (January 2008). Published at: www. • Sir Malcolm Rifkind MP and Lord Falconer data-sharing-review-consultation-paper. ucl.ac.uk/constitution-unit/research/ of Thoroton speak at the Hansard Society’s pdf. devolution/devo-monitoring-programme. public meeting entitled ‘Is the West Lothian html Question unanswerable?’, at 6.30 pm on 6 February 2008. Further details on Constitution Unit publications can be found at www.ucl. ac.uk/constitution-unit/publications.

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