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Home , David Lidington, David Maclean, Des Browne, Dominic Grieve, Gordon Brown, Harriet Harman

| THE CONSTITUTION UNIT NEWSLETTER | ISSUE 37 | SEPTEMBER 2007 | MONITOR AND THE CONSTITUTION IN THIS ISSUE

Gordon Brown is a longstanding supporter to more control, the Prime Minister could give of constitutional reform. In preparation up his patronage power to select party members AFTER THE 2 for his premiership the Constitution Unit in the and give this power to prepared a detailed briefing on all the the House of Lords Appointments Commission. RESHUFFLE unfinished business, in terms of Lords Secondly, making the power of dissolution subject reform, devolution, funding of political parties, to parliamentary vote is not an effective check electoral reform and a bill of rights. The on abuse of the power. If the PM really wanted LORDS REFORM 2 briefing set out a timetabled and practical to restrict his power to choose the date of the programme of constitutional change, focusing next election, he should introduce fixed term on what can be delivered at this stage in parliaments as Canada has just done. COMMONS REFORM 3 the political and parliamentary cycle. We cautioned that Lords reform and a British bill Finally, there are two respects in which we believe of rights cannot be delivered in the remainder the government risks going too far. It should not EU REFORM TREATY 4 of this parliament, and explained the relinquish all involvement in the appointment difficulties in reaching agreement on a of judges. The should retain written constitution. the power to select judges, and senior judges CHURCH & STATE 4 should be subject to the same parliamentary Much of our briefing was reflected in the new pre-appointment hearings as the government is government’s plans for constitutional reform set proposing for other senior public appointments. DEVOLUTION 5 out in the Green Paper The Governance of Britain Secondly, lowering the to 16 would (Cm 7170, 3 July), published in Gordon Brown’s almost certainly reduce voter turnout. 18-25 year first week as Prime Minister. The government olds already vote less than older age groups, and FREEDOM OF INFORMATION 6 was bold about many of the smaller things, but the risk is that young voters who start in life not understandably cautious about the big things. On voting are likely to continue as non-voters. a bill of rights and a written constitution the Green PEOPLE ON THE MOVE 6 Paper recognises that neither could come into The Unit’s Briefing, Towards a New Constitutional being except over an extended period of time, and Settlement, and the Unit’s Response to the Green not without achieving broad consensus upon what Paper can both be found on the website, at CONSTITUTION UNIT NEWS 7 they should contain. On Lords reform, www.ucl.ac.uk/constitution-unit/news/index.htm. subsequently confirmed on 19 July (discussed BULLETIN BOARD 8 further under ‘Lords Reform’ below) that there BROWN’S NEW TEAM would be no legislation in this parliament. So the government will start with a long list of smaller things. This is not to diminish their importance; but In Gordon Brown’s first Cabinet all the key a possible difficulty is that few of these items will constitutional portfolios have changed hands. resonate with the media or the general public. The new Justice Minister and Lord Chancellor is Jack Straw, who will play a central role in The main focus of Brown’s initial reforms is Brown’s programme for constitutional reform. on strengthening Parliament, and bringing the Straw’s appointment marks the latest stage in the prerogative powers under parliamentary scrutiny changing relationship between the three branches and control. The war making power is to be of government, with the Lord Chancellor coming subjected to a model resolution, giving Parliament from outside the House of Lords for the first time. a say over future military deployments. The power Straw is supported on constitutional reform by of recalling parliament in the recess is to be Minister of State , while his former controlled by the Speaker, not the government. position of Leader of the House has been given There will be annual parliamentary debates on to , Labour’s new the objectives and plans of the main government and party chair. departments. The Intelligence and Security Committee is to be made a proper parliamentary Both the and Offices will continue committee, and there will be greater parliamentary to be headed by part-time secretaries of state, involvement in treaty making. The Civil Service and respectively. Even will be regulated by statute, and parliamentary more so than in the last Blair Cabinet, there are committees will scrutinise some senior public serious doubts as to how much time the Scotland appointments. The Prime Minister will give up and Wales Secretaries will have for their territorial 37 his patronage powers to select bishops, and jobs as both men are also in charge of major The Constitution Unit the government is minded to relinquish any departments: Defence (Browne) and Work and UCL Department of Political Science involvement in the appointment of judges. Pensions (Hain). Junior ministers David Cairns Director: Professor Robert Hazell CBE and Huw Irranca-Davies are likely to handle much www.ucl.ac.uk/constitution-unit The whole thrust of making executive power of the day-to-day work of the two departments. Email: [email protected] more accountable is strongly to be welcomed, but Phone: +44 (0) 20 7679 4977 the government could have gone further in two At the , the top job has Fax: +44 (0) 20 7679 4978 respects. While subjecting the prerogative powers been given to and made a | THE CONSTITUTION UNIT MONITOR | ISSUE 37 | SEPTEMBER 2007 | 2

BROWN’S NEW TEAM (CONT’D) AFTER THE RESHUFFLE: KEY PLAYERS IN CONSTITUTIONAL POLICY

Government Conservative Liberal Democrat full-time role once more. However, there is now only one junior minister, reflecting the Secretary of State Jack Straw David reduced workload following the resumption of for Justice & Lord devolved governance in Belfast. Chancellor Attorney General Baroness Dominic Grieve Lord Thomas Other significant appointments include that Scotland of of Gresford of Baroness Scotland, only the second black Asthal women to be a Cabinet member, as Attorney General, Baroness Ashton as Leader of the Secretary of State Des Browne Lords, and close Brown ally as for Scotland Minister for the . Secretary of State Peter Hain Roger Williams for Wales Alongside the reshuffle, Gordon Brown made some significant changes to the machinery Secretary of State Shaun Woodward Alistair Carmichael of government, following the earlier creation for Northern Ireland of the Ministry of Justice (see previous Monitor). There are three new departments: Cabinet Office Ed Miliband Minister the Department for Children, Schools and Families, the Department for Business, Leader of House Harriet Harman Enterprise and Regulatory Reform and the of Commons Department for Innovation, Universities and Skills. Consequently, the Department of Leader of House Baroness Ashton Lord Strathclyde Lord McNally Trade and Industry, and the Department for of Lords of Upholland Education and Skills (as well as the Deputy Prime Minister’s Office) will cease to exist. As PASC: ‘Ad hocery’ ad nauseam 672) recommendations. PASC finds that noted below, these changes were the subject such changes seem to be prompted by of a critical report of the Public Administration In three recent reports, the Public political expediency, with little thought for their Committee. Administration Select Committee (PASC) frictional cost. While government organisation seems to have tired of the incremental ‘British is a royal prerogative power, the Ministers Role of the Attorney General way’ of approaching public administration. of the Crown Act 1975 provides for Transfer of Function Orders to be laid in Parliament The new Attorney General, Baroness In Ethics and Standards: the Regulation of subject to the negative procedure – i.e., Scotland, published a consultation paper on Conduct in Public Life (HC 121-1), PASC Parliament must ‘pray’ against them to prompt possible changes to her role on 26 July. One reviewed the network of ‘constitutional a debate. By amending the Act such that option is to appoint a lawyer from outside watchdogs’. The committee found an the affirmative procedure – i.e., the formal politics, as in Scotland, Ireland and Israel. overlapping system of bodies created in approval of both Houses – is necessary, The Attorney’s regular attendance at Cabinet response to crises, with tension between government would have to make a business (in itself a recent Blair innovation) could be their independence and accountability. To case for the investment of public money in ended. The Attorney could be removed from bring coherence, the committee recommends the reorganisation. More radically, PASC any part in individual decisions to prosecute, a more ‘collegiate’ direction of travel and a recommends a ‘new Haldane’ review of the except possibly where national security or Public Standards Commission – at arm’s departmental structure of government. international interests arise (as in the decision length from government and parliament – to not to prosecute following the Serious sponsor the watchdogs. In terms of balance PARLIAMENT Fraud Office’s bribery investigation into BAE between independence and accountability, the Systems). The PM is said to favour making the National Audit Office (NAO), which is funded Director of Public Prosecutions independent of by a parliamentary vote set and laid by the Lords reform the Attorney General, and Lady Scotland has statutory Public Accounts Commission (PAC), said that during the consultation she will not be is seen as the exemplar. Despite the seemingly decisive Commons involved in individual prosecution decisions. vote in March for a largely or wholly elected In Skills for Government (HC 93-1), PASC upper house, little has since been The most radical option is to make the floats the idea of a National Performance made. Instead government has announced Attorney’s legal advice public. Any such Office (‘NPO’) to carry out the departmental that reform will not proceed until after the move would have to address the need to Capability Reviews. Just as the NAO general election. Gordon Brown’s green protect national security and other interests, scrutinises government’s accounts, an ‘NPO’ paper gave little attention to Lords reform, and and to ensure that ministers and departments would scrutinise government’s performance. promised no specific action. In a statement to were not inhibited from seeking legal advice. This would make sure the assessor the House of Commons on 19 July the new For this reason it is the least likely to be is independent of the assessed, while Secretary of State for Justice, Jack Straw, adopted. But Parliament might instead be accountabilty to Parliament would drive made clear that there will be a further period given a fuller explanation of the legal basis for up standards. of reflection and inter-party talks, and possibly a decision, or alternatively Parliament might be another White Paper, before reform proceeds. provided with its own separate source of Less ad hocery is also the aim of PASC’s These echoed remarks made on 19 June legal advice. Machinery of Government Changes, (HC when he gave evidence to the House of | ISSN 1465–4377 | 3

PARLIAMENT

Commons Constitutional Affairs Select controversially, Digby Jones. Private Members’ Bills and new opportunities Committee. One reason for delay is simply reciprocated by announcing in his reshuffle for members’ motions. the difficulty of reaching agreement, with that Pauline Neville-Jones and Sayeeda many on the Labour side opposed to election Warsi would be appointed as Conservative Commons Reform: Committee Reports and the Conservatives officially supportive, peers and shadow ministers. Brown’s arrival but highly critical of any specific proposals. also resulted in some switching between the Two other recent reports have fed into the The other reason is that many consider it benches, as Lord Joffe and Lord Wedderburn ongoing debate on parliamentary reform. wiser to proceed only once there is a precise (both formerly ) announced commitment in a manifesto, in order to help that they would take the Labour whip. The On 22 May, the Commons Procedure neutralise opposition in the Lords. The Labour Conservatives did not make similar gains, Committee published Public Petitions manifesto is likely for the first time to include and indeed lost Lord (Conrad) Black, who and Early Day Motions (HC 513), whose a commitment to a largely or wholly elected was ejected from the party group in July recommendations were less than radical. house, and the Conservatives will do likewise. after being found guilty of fraud. There were The committee concluded that a specialist This is, however, no guarantee that reform will also some significant deaths over the period. Petitions Committee should not be established follow and certainly no guarantee that it will On 24 May Lord Renton, Britain’s longest- and that petitions should continue to be be consensual. Particularly as Jack Straw has serving parliamentarian having taken a presented to the House by MPs, rejecting the indicated that the government is now looking Commons seat in 1945, died aged 98. On 6 idea of direct petitioning by members of the at limiting the Lords’ powers. May Lord Weatherill, former convener of the public. It also came down against imposing Crossbenchers and Speaker of the House restrictions on either the number of EDMs In the meantime, Lord Steel has sought of Commons 1983-92, also passed away that members can sign, or the subject matter support for his bill, which would tidy up the and received warm tributes from across the of such motions. A bolder proposal was for current situation by making the appointments House. The current Crossbench convener, a regular opportunity for Members to initiate commission statutory, ending the hereditary Lord Williamson of Horton, announced his debates on specific petitions, an idea that was by-elections, and allowing members to retire retirement from the position and will be echoed in The Governance of Britain. from the chamber. This received a second replaced in the autumn by Baroness D’Souza. reading in the House of Lords on 20 July. She is the first of the ‘Stevenson’ peers to rise On 20 June, the Modernisation Committee During a whole day’s debate the great to such a high position. published its first report of the session, majority of speakers were supportive of the Revitalising the Chamber: the role of the bill. Many quoted the recent Constitution Unit Commons Reform: Tory Proposals back bench Member (HC 337), proposing survey which found 89% of peers favouring a a revamping of the induction programme statutory appointments commission and 69% While the debate on parliamentary reform for new MPs, as well as greater provision supporting an end to the hereditaries’ rights has been dominated by the government’s of ‘continuous development opportunities’ to sit. own proposals, the Conservative Party’s – such as training on parliamentary procedure Democracy Taskforce, chaired by Ken – for MPs at all stages of their career. The Another reason that the urgency has gone Clarke, also recently set out a thoroughgoing report also treads some similar ground to the out of Lords reform is that after 18 months reformist agenda in its second report, Power Conservative Democracy Taskforce, of investigation, and thousands of column to the People: Rebuilding Parliament. The recommending the introduction of facilities for inches of allegations and gossip in the report seeks to enhance the autonomy of more regular topical and urgent questions and media, the police announced they would the Commons from executive control and to debates, weekly oral ministerial responses not be pressing any charges over ‘cash make it more responsive to events and public to committee reports, and private members’ for peerages’. The Public Administration opinion in terms of the business scheduled for motions. Select Committee has now indicated that it consideration. will return to its inquiry (postponed in 2006 following warnings from the police), which Specific proposals include the creation of a In The Governance of Britain, the government may now focus as much on the investigation Business Committee, with a chair elected by welcomed the Modernisation Committeee as on the original allegations. Although the the whole House, to agree the business of the proposals while emphasising that it would be Blair administration is formally in the clear, House and to consider the programming of for Parliament to decide whether to implement the Brown administration has not decisively government legislation. It is also suggested reform. Ironically, however – given the avoided getting into similar problems in the that the Modernisation Committee (which, intention of these various reports to enhance future. Despite announcements about ending unusually, is chaired by a Cabinet minister, the autonomy of – reform will prime ministerial patronage in spheres such the Leader of the House) be merged with the depend on government providing time for as judicial and church appointments, Brown Procedure Committee under an Opposition debate on the proposals. has not chosen to divest himself of any backbench chair. Proposals were also made powers over appointing peers. to dilute the whips’ influence over committee Tebbit Review appointments, for example that select Lords Personnel changes committee chairs be elected by the House as In October 2006, the House of Commons a whole in secret ballots. Commission announced a Review of The new prime minister indeed began his Management and Services of the House of term of office by announcing the creation of Proposed changes to the timetable range Commons, to be led by Sir Kevin Tebbit, a several new peers, in order to allow outsiders from an increased scope for topical business, former Permanent Secretary at the MOD. to serve in his ‘government of all the talents’. new procedures for the consideration of The appointees were Alan West, petitions and committee reports in the House On 25 June, the Tebbit Review published its Ara Darzi, Mark Malloch-Brown and, most and Westminster Hall, increased time for report. Perhaps its most important | THE CONSTITUTION UNIT MONITOR | ISSUE 37 | SEPTEMBER 2007 | 4

PARLIAMENT recommendation is that a new chief executive Labour manifesto. No matter too, that the EU to be recognised by the state but adherence separate from the position of Clerk of the consensus is that the treaty is in substance would be a private matter for everyone. House should not be created. Rather, the the same measure as the abandoned report continues to load the post of Clerk with constitution. These arguments are developed at more responsibility for management, with the greater length in the Unit’s response to Office of the Clerk upgraded to assist. The debate is likely to extend up to and well The Governance of Britain: see beyond the next general election. Ratification www.ucl.ac.uk/constitution-unit/news/ The House of Commons Commission by national parliaments will begin after the index.htm. would also remain in place, but the Board EU Intergovernmental Conference on 18- of Management would be remodelled with 19 October, followed by a vote in the new DEVOLUTION the addition of external non-executive in 2009, and then directors to advise. As the membership of the implementation, delayed in response to Commission is set out in an Act of Parliament Polish objections, in 2014. Scotland: On the road to independence? no non-MPs could be added to it without primary legislation. The crowning moment of ’s THE STATE AND first 100 days in office was the publication IN ENGLAND The report also recommended closer of the long-awaited White Paper Choosing cooperation between the Clerks and the Scotland’s Future – A National Conversation, Present arrangements remain rooted in Library in the provision of information. It which invites the people of Scotland to the geopolitics of early modern England. examined the question of communication participate in a public discussion about The sovereign is Supreme Governor of an with the public, recommending that the Scotland’s future. ‘established’ and appoints existing Group on Information for the Public all the senior clergy. The sovereign may not continue to be headed by the Librarian, and Much will be written on the three choices be, or marry, a Roman Catholic and must be that the website be improved. The overall the SNP has identified for Scotland: the in communion with the Church of England. tenor of the report is pretty much to continue status quo; an extension of the powers of with business as usual, but with some the within the framework Whilst much of the detail has altered, the detailed recommendations on more efficient of devolution; or full independence. But core is unchanged: to protect sovereigns administration, with greater emphasis on the major constitutional question – which from political controversy, Prime Ministers finding comparators and developing balanced the White Paper does not resolve – is how still advise (that is, instruct) sovereigns on score cards. Scotland could become independent. ecclesiastical appointments. The Commission is seeking a Westminster The White Paper proposes a single Gordon Brown now challenges the Hall debate on the report following the referendum on in appointment arrangements by proposing summer recess. which voters would be asked whether: ‘The (Cm 7170) automatically to pass Church of should negotiate a England recommendations to the sovereign. settlement with the Government of the United This raises the question whether the Prime BROWN HOLDS OUT AGAINST EU Kingdom so that Scotland becomes an Minister should be involved at all. If he is REFERENDUM PRESSURE independent state.’ merely a postbox, then his political function can have no force. In practice, the Church The question is deliberately worded to be In spite of mounting pressure from an will be making its own appointments, in which about commencing negotiations rather unprecedented coalition of Europhiles and case it would seem best to take the sovereign than about independence itself, in order sceptics, Gordon Brown has set his face out of the process too. to stay within the confines of the powers against a referendum on the European of the Scottish Executive and Scottish Reform Treaty which at 200 pages is smaller Roman Catholics believe that their treatment Parliament defined in the Scotland Act 1998. in size, but not so diferent in effect to the 400- is discriminatory. Governments riposte that The question does not fully spell out what page Constitutional Treaty that was aborted the discrimination is more theoretical than independence means, namely that Scotland in 2005 after negative referendums in real: no-one really near to the throne has would separate from the . and the Netherlands. run foul of the arrangements in practice. An uncomfortable truth is that a Roman Catholic The White Paper also rejects the idea that Brown’s main public argument is that the sovereign as Supreme Governor of the two referendums would be needed before treaty changes nothing of constitutional Church of England would be incompatible with proceeding to independence, one on the significance. At the EU June summit, British that Church’s position. Thus the appointments principle of independence, giving the Scottish ‘red lines’ were held against an appeal role for and discrimination questions are alike: better Executive authority to enter into negotiations, the European Court of Justice in UK labour to remove the sovereign’s formal position as and a second on the terms of independence and social legislation and EU involvement in well as the Prime Minister’s. The Church could after negotiations. This case was made by the tax and welfare policy. The UK continues to cease to be under the government but retain a Constitution Unit in Scottish Independence stand apart from the EU’s justice and policing special position in the state. – A Practical Guide ( University machinery but will co-operate with it over Press, 2002), but rejected by the Scottish terrorism and the like, and can opt in later. The Prime Minister and the sovereign could government on the grounds that a single then be of any religion or none – referendum would give sufficient clarity about Brown’s private argument is that a all the better for both to operate in today’s the wishes of the Scottish people and a referendum could well be lost No matter vastly changed condition of pluralised belief mandate for the Scottish Parliament to deliver that a referendum was promised in the 2005 and greater unbelief. would continue independence. | ISSN 1465–4377 | 5

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The prospect of a second referendum, (through going on a post- celebration of the ending of direct rule and the in contrast, ‘could reduce the certainty of election break) potential coalition partners in reformation, after successive rounds of inter- the choice facing the people at the [first] the immediate aftermath of the election. And party negotiations since 2002, of a power- referendum, and reduce the impact of the it is inexplicable that Labour did not do more sharing government. decision that the people make’ (para 5.11). immediately after the election to try to secure a coalition with the Liberal Democrats, before There were further positive signs once These arguments fail to deal with the issue the prospect of a Rainbow coalition involving the cameras had gone. The d’Hondt of constitutional certainty: a vote on the the other 3 main parties began to solidify. proportionality rule for the formation of principle of independence does not settle the the Executive Committee having already issue of whether the terms of independence Ultimately, Labour only clung on to office informally been run, on the basis of the party are acceptable to the Scottish people. They thanks to the deep divisions in the Welsh strengths established in the 7 March assembly also run counter to the stated objective of the Liberal Democrats, who failed to agree to the election, ministers were quickly allocated ‘national conversation’, which is to allow the coalition deal that party leader Mike German their anticipated places and the executive got electorate to make an ‘informed choice’ about had concluded with his Plaid and Tory down to business. The committee chairs and independence (para. 6.51). counterparts. The party’s failure to endorse deputy chairs were also appointed and the the deal – and subsequent reversal of this committees, ministers and officials began to On the question of Scotland’s relationship position well after ‘the horse had bolted’ address their policy agendas. with the European Union, the SNP used – has left the Welsh LibDems both divided to argue that an independent Scotland and widely discredited. A challenge to Mike In further signs of a welcome normalisation, would automatically continue to be an German’s leadership appears imminent. a British-Irish Council summit was held in EU member. This claim was analysed Belfast, and the North/South Ministerial and questioned in our book Scottish Shortly after the collapse of the Rainbow Council – which had been in cold storage, Independence (Chapter 6). The White Paper option, Rhodri Morgan was returned as First like the devolved executive – reconvened in maintains the claim that an independent Minister at the head of a . Armagh. Meanwhile, a visit by the European Scotland would continue to be a member Within weeks, however, Labour and Plaid had Commission president, Jose Manuel Barroso, of the European Union, but acknowledges sealed a deal bringing the nationalists into to Stormont, provided the opportunity to stress that there would be ‘negotiations on the government for the first time, guaranteeing the EU’s commitment to the region. detailed terms of membership’ (para. 3.21). Rhodri Morgan a stable majority in the Recognising the need for negotiations Assembly for the first time since 2003. For Under the surface, however, all was not quite must include recognising the possibility that Plaid leader , the deal so rosy as the carefully staged media events those negotiations might fail, especially if was a mixed blessing, as it entailed the suggested. Graphically, it emerged that a other European governments saw Scottish end, for now at least, of his hopes of taking new ‘peace wall’ – by the official count, the independence as a dangerous precedent the top job. But more significantly for the 47th – was to be built in north Belfast, on of which should not be encouraged. immediate future of Wales, Labour signed up all places land used as the playground of an to a joint commitment to move ‘as soon as integrated (Catholic and Protestant) school. Wales practicable’ to a referendum on the transfer The assembly, meanwhile, found itself unable of full legislative powers from Westminster to endorse the direct-rule administration’s On almost every measure, the third election to Bay, as well as to ‘campaign for a policy on ‘community relations’, A Shared to the Welsh Assembly on 3 May was a successful outcome’. Under the terms of the Future, electing merely to note it instead. disaster for Labour. The party fell back over Government of Wales Act 2006, a referendum 7% on the 2003 election, scoring its lowest can only take place if approved by two-thirds There was a stand-off between the DUP and share of the vote in Wales since 1918. of Assembly Members, leaving Labour with SF over the commitments in the St Andrews Worse still, the decline was a nation-wide an effective permanent veto. Although this agreement of October 2006, setting the phenomenon, with the party losing vote share is only one of several hurdles – the British framework for the renewal of devolution, to in all five regions on the second vote, and Government and both Houses of Parliament the devolution of policing and criminal justice in 39 of 40 constituencies on the first vote. also exercise vetoes, while there is also by May 2008 and the introduction of an Irish Nonetheless, Labour dropped only four seats significant opposition among Language Act. St Andrews had bequeathed thereby remaining comfortably the largest MPs – it now seems probable that within five a system of governance even more replete party in the Assembly. This was largely due years Welsh voters will have the chance of with deadlocking vetoes, which threatened to the failure of the three main Opposition deciding whether they want their own law- chaos in education after the expiry of the ‘11+’ parties to capitalise on Labour’s decline, with making Parliament for the first time. transfer test in 2008. many disillusioned voters turning instead to independent candidates and fringe parties. Northern Ireland In particular, dealing with Northern Ireland’s The final tally in terms of seats was Labour ‘troubled’ past had the potential to derail the (26), (15), Conservatives (12), After four and a half long years, devolution new arrangements. As the army finally ended LibDems (6), Others (1). was finally restored to Northern Ireland on ‘Operation Banner’ after 38 years, a number 8 May 2007. It was a personal triumph for of episodes excited neuralgic reminders, Surprisingly, despite clear indications that it the prime minister, , and he timed particularly in the Catholic community, of the would lose seats, Labour appeared to have his resignation announcement to make the unassuaged wounds left by decades of done little to prepare the ground for a post- most of it – and the media images which ethno-nationalist antagonism. election situation in which it had fallen far winged around the world. The laughter of the short of an overall majority. Leading Labour new first and deputy first ministers, Rev Ian figures saw fit to both insult (describing as Paisley of the Democratic Unionist Party and ‘inedible’, and ‘unpalatable’) and ignore Martin McGuinness of Sinn Féin, captured the | THE CONSTITUTION UNIT MONITOR | ISSUE 37 | SEPTEMBER 2007 | 6

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English Regions responsibility for RDAs to produce a single, of FOI on public authorities (see below). overarching regional strategy; a streamlining Gordon Brown’s reshuffle as well as the of RDA activities so as to encourage a Jack Straw, who introduced the FOI Act 2000 publication of the long awaited Sub National clearer focus upon economic development; to Parliament as , regained Review of Economic Development and and an expectation that RDAs will become responsibility for FOI as Lord Chancellor Regeneration (SNR) has opened up the more ‘strategic’ and will, whenever possible, and Secretary of State for Justice. Directly prospect of some serious activity on the delegate responsibilities to sub-regional in charge of FOI is Michael Wills, Minister of English regional front. Policy has in fact been levels. At the city or sub-regional level, the State in the MoJ, who was also responsible emerging over the last two years, but what is SNR promised guidance on the production for FOI at the Lord Chancellor’s department different this time is the degree of commitment and delivery of Multi-Area Agreements in 2001-02. Liberal Democrat Lord Lester of to move things plus some concrete (MAAs). The first round of agreements would , a vocal supporter of FOI, has been proposals for action. become operational by mid-2008 and be appointed adviser on constitutional reform. backed by placing a duty of co-operation upon Brown has effectively given primary local authorities. Most importantly, for the first Though FOI did not feature prominently in responsibility for the lead on regional time, the Government made a commitment The Governance of Britain (Cm 7170), one economic development to the newly created to explore the possibility of creating statutory notable mention was made. The paper states Department for Business Enterprise and city- or sub-regional authorities for economic that the Justice Secretary and Information Regulatory Reform (DBERR) under John development purposes. Finally, at the local Commissioner will ‘produce guidance to Hutton. It has assumed lead responsibility level, the review committed the Government public authorities to ensure that they apply for achieving the Regional Economic to explore giving greater incentives to local the [FOI] Act in a way that balances openness Performance PSA targets and it has authorities to promote economic development with the need to protect the privacy of [MPs’] been made clear that other government and regeneration, including consultation on constituents’, which is a significantly milder departments would be expected to a new power for local authorities to levy a recommendation than ’s demonstrate their commitment to delivering supplementary business rate for economic bil. The new administration also implicitly this target in future spending periods. The development purposes. reaffirmed a commitment to FOI by including DBERR has also taken on clear responsibility it in a list of the Labour government’s major for the RDAs. In the central pursuit of constitutional reform successes. economic development across all the FREEDOM OF INFORMATION English regions, the DBERR will work closely Unease about the effect of FOI on good alongside the Treasury and the Department governance remains, however. On 25 July Controversy continued over Conservative for Communities and Local Government. the Public Administration Select Committee MP David Maclean’s Freedom of Information (PASC) held a session to explore the (Amendment) Bill, which, if passed, would The reshuffle was accompanied by the concerns addressed in ’s letter exempt Parliament from FOI and disclosure appointment of nine regional ministers, one to the Lord Chancellor. These included the of correspondence between constituents for each of the regions including . implications of recent Information Tribunal and their MPs. The bill passed the House of These are tasked with representing their decisions and the potentially negative effects Commons with 96 ayes and only 25 noes on regions in and Westminster, while on policy-making of disclosing ministers’ 18 May, provoking an angry response from also representing central government in their and MPs’ correspondence and advice the press and several MPs. The Parliamentary regions. They are expected to fulfil these roles from officials to ministers. The Information Labour Party encouraged members to vote for alongside their other junior ministerial duties. Commissioner and his deputy, Graham the bill, and Jack Straw – then Leader of the It is not yet clear how these new appointments Smith, as well as Campaign for Freedom of House – indicated his support. Gordon Brown will operate, how their dual representative Information director Maurice Frankel, gave remained neutral, disappointing those who function will be sustained, and what access evidence at the session. would have liked him to come out against it. they will have to the central policy making The bill failed to find a sponsor in the House departments mentioned above. Despite these People on the Move of Lords, and it is stalled until October and uncertainties, the scheme is, potentially, a generally assumed to be dead. significant innovation. The new administration has become head of is also proposing, subject to the approval of domestic policy and strategy in the Cabinet With less fanfare, in June LibDem MP Parliament, to create select committees for Office,Simon McDonald head of foreign Tom Brake introduced a ten-minute rule each region, in order to hold regional ministers and defence policy, and head bill proposing tougher FOI legislation. If and agencies to account, notably RDAs, but of international economic affairs and Europe. passed, it would remove the ministerial veto also Government Offices. Nigel Smith becomes chief executive of on FOI decisions and limit the time allowed the Office of Government Commerce in for considerations of public interest, as well In addition to changes on the ministerial and September. Jim Gallagher, a senior official as increase the number of bodies covered accountability fronts, the publication of the from the Scottish Executive is moving to by FOI. However, it was adjourned due to SNR brought more of the current regional the Ministry of Justice and Cabinet Office opposition and is unlikely to progress. debate into concrete policy proposals. At to become Director General, Devolution. At the regional level the review announced: Westminster, Michael Pownall has been The second consultation period for proposed the abolition of Regional Assemblies; a promoted to Clerk of the Parliaments, with his changes to the FOI fees regime closed on timetable for their demise and transfer of position as Clerk Assistant taken by David 21 June. Though there will be no official their planning responsibilities to RDAs; a Beamish. response from Government until September, it scrutiny role in respect of the RDAs for new seems likely that the proposal will be dropped joint-local authority bodies; an enhanced and gentler steps taken to reduce the burden | ISSN 1465–4377 | 7

CONSTITUTION UNIT NEWS

Unit Seminar Reports unit/publications. of the House of Lords. She also spoke at an all-day event at the British Academy, The Unit held four seminars between May and Freedom of Information Conference on Parliament: Past and Future, which was July before our regular seminar series took a followed by a public evening event asking break for the summer. The Unit held its Fifth Annual Information whether we are experiencing a new ‘golden Rights Conference for the Public Sector: FOI age’ of parliament. In September Meg gave a On 22 May, leading political journalists Peter Live 2007 in partnership with the Ministry Of paper at the European Consortium of Political Jones and Martin Shipton spoke on the new Justice and Information Commissioner on Research conference in Pisa. Links to the political situations in Scotland and Wales. 24 May in London. Over 350 delegates from last two of these can be found on the project Jones described the SNP administration central and local government, the police, website. in Edinburgh as confrontational and with health and education sectors heard Baroness mixed prospects for its political programme. Ashton, Richard Thomas, and many other FOI Devolution Monitoring Programme News However, according to Shipton, the specialists speak about the practical issues of uncertainty in Scotland was nothing compared FOI compliance. An evening drinks reception The Constitution Unit would like to thank to the chaos reigning in Cardiff, where a new and speech by Lord Falconer rounded out the Peter Jones for his work on the Devolution government had yet to be formed. day’s programme. Monitoring Project. Peter has been the editor of the Scotland Devolution Monitoring On 18 June, Meg Russell of the Constitution Constitutional Futures 2 Reports since Autumn 2005 and now hands Unit led a seminar on the House of Lords. on the baton to the Institute of Governance, Russell set out a detailed case showing how A major challenge facing this forecasting . We are delighted to the House has grown more assertive since exercise is that the ground is shifting under work in partnership with the Institute and its the elimination of all but 92 hereditary peers our feet – many of the things we predicted director Professor Charlie Jeffery. in 1999. One striking piece of evidence is the to happen over the next twelve years from number of government defeats at the hands of our vantage point in March have started The latest issues of all five series of the Lords – an average of 49 a year. to happen already. But the current state devolution monitoring reports are available of flux makes the forthcoming book even at: www.ucl.ac.uk/constitution-unit/research/ On 25 June, Professors Guy Laforest and more timely. Summer has seen a series of devolution/devo-monitoring-programme.html James Mitchell spoke on the development discussion meetings of the individual chapters of the constitutional settlements of Quebec to draw out common themes. The book should Personnel Changes and Scotland. Both described the systems be completed by the end of October. of co-ordination between national and sub- The Unit is sad to see the departure of two of national governments – in Canada and the UK Governance of Parliament Project its research team and two of the departmental respectively – as inadequate and problematic, administrative team. At the end of October with Mitchell challenging the notion that the This two year project concludes this Autumn, Sarah Holsen will be leaving to take a position new nationalist government in Scotland had with the publication of its final report. Authored at the Institut de haute administration publique been unnecessarily confrontational. by Unit researchers Meg Russell and Akash (IDHEAP) in Lausanne, Switzerland. Maria Paun, the report will set out a programme of Sciara, Research Assistant on the House of On 19 July, MP and Chair of the Joint reform proposals to improve the institutional Lords has taken up teaching positions at the Committee on Human Rights Andrew Dismore autonomy of the House of Commons vis-à-vis and UCL. Congratulations spoke on the subject of ‘Making Human the executive. In particular, by drawing on the to them both. Rights Matter’. Dismore believes that the examples of five parliamentary chambers from Human Rights Act is worth saving, but only if it elsewhere in the world, the report will assess The Unit would also like to thank Sally can be made relevant to all, which will require the possibility of enhancing MPs’ control of Welham, Executive Administrator of the a significant change in culture. the parliamentary timetable, of the Commons School of Public Policy, and Aaron Crompton, committee system and appointments the departmental Web/IT Administrator for Unit Summer Party and Briefing Launch processes, and of the rules by which the their help over the years, and to wish them Commons conducts its business. Full details well in their new positions. On 25 June the Constitution Unit published of this report will be available on the Unit a major new briefing proposing to the new website shortly. Finally, thanks are due to the nine interns prime minister a detailed agenda of specific recruited to the team over the summer constitutional reforms that the government Lords Project Update months: Tania Bardawil, Orla Berry, Lucy could implement, dividing these into steps Dale, Harry Eccles-Williams, Tom Guiney, for the first 100 days, the next two years and Responses have been flooding in to our René Holbach, Naomi Holford, Shokofeh the next parliament. The publication was second survey of peers. As with the previous Hejazi and Maria Stemmler. launched at the Unit’s annual summer party survey, almost 400 members of the chamber at which nearly 100 supporters gathered have replied. We are very grateful to all under a marquee in nearby Gordon Square. of those who have taken part, and will be The briefing, Towards a New Constitutional feeding back some of the results at a seminar Settlement: An agenda for Gordon Brown’s in the Lords in the autumn. In July Meg First 100 Days and Beyond, can be Russell spoke at two conferences for A level downloaded from www.ucl.ac.uk/constitution- teachers, about the growing assertiveness 8 BULLETIN BOARD

RECENT UNIT PUBLICATIONS FORTHCOMING EVENTS PUBLICATIONS RECEIVED

• Amos, Jim and Sarah Holsen, FOI Constitution Unit Seminars • Bryant, Chris (ed.), Towards a New and Local Government in 2006: The Info at: www.ucl.ac.uk/constitution-unit/events Constitutional Settlement, (London: Experience of Authorities in England, The , 2007) Northern Ireland and Wales (September • Sara Nathan and Lady Justice Heather 2007) Hallett (Judicial Appointments Commission) • Brown, Gordon, and , Thursday 18 October, 1pm. Finding Stronger Together: The 21st century • Hazell, Robert, Constitution tomorrow’s judges: the work of the new case for Scotland and Britain, (London: Unit response to Cm 7170: The Judicial Appointments Commission , 2007) Governance of Britain July 2007. (July 2007). Available at: www.ucl. • Roger Smith (Director, JUSTICE) 6.00pm • Conservative Democracy Taskforce, ac.uk/constitution-unit/files/publications/ Tuesday 13 November. A British Bill of Power to the People: Rebuilding Parliament (London: The Conservative GovernanceResponse.pdf Rights? Party, 2007) • Hazell, Robert, et al, Towards a New • Lord Philip Norton of Louth and Helen Irwin • Gagnon, Alain-G, Au-delà de la Constitutional Settlement: An Agenda (Clerk of Committees, House of Commons) nation unificatrice: Plaidoyer pour le for Gordon Brown’s First 100 Days and 1.00pm Wednesday 5 December. Beyond (June 2007). Also available at: fèdèralisme multinational, (Barcelona: Reforming the Legislative Process: reports Institut d’Estudis Autonomics, 2007) www.ucl.ac.uk/constitution-unit/files/ of the Lords Constitution Committee and archive/Briefing%20v8%20final%2014% Commons Modernisation Committee 20june%2007.pdf • House of Lords Select Committee on the Constitution, Relations between the Constitution Unit & Ministry of Executive, the Judiciary and Parliament, • Hazell, Robert, ‘Gordon’s Go’ (an article Justice Seminar Series on constitutional reform under Gordon 6th Report of Session 2006-07, (London: House of Lords, 2007) Brown), Prospect (June 2007) • The Rt. Hon. the Lord Holme 1-2pm Wednesday 26 September 2007. Controlling • León Alfonso, Sandra, The Political • Hazell, Robert, ‘Out of Court: Why the War Making Power Economy of Fiscal Decentralisation, Have the Courts Played No Role in Bringing Politics to the Study of Resolving Devolution Disputes in the • Paul Grice (Chief Executive of the Scottish Intergovernmental Transfers, United Kingdom?’ Publius: The journal Parliament) 1-2pm Wednesday 24 October (Barcelona: Institut d’Estudis of federalism 37(4): 578-598 (2007) 2007. The Scottish Parliament: the inside Autonomics, 2007) • Hazell, Robert and Akash Paun, ‘What story • Luther, J. et al (eds), A World of Second next for devolution?’, The House Chambers (Milan: Giuffrè, 2006) Magazine, Information Policy Seminars Special Issue (September 2007) For information on the Constitution Unit’s • McDonald, Andrew (ed), Reinventing Britain: Constitutional Change under • Russell, Meg, ‘The British House Information Policy Seminar Series, which New Labour, (London: Politico’s, 2007) of Lords: A tale of adaptation and consider freedom of information and data resilience’, in Luther, J. et al (eds), A protection policy issues, please go to: www. • Ministry of Justice, The Governance World of Second Chambers (Milan: ucl.ac.uk/constitution-unit/foidp/events of Britain, Cm 7170, (London: The Giuffrè, 2006) Please note that this is a subscription-only Stationery Office, 2007) • Russell, Meg, ‘Reform of the British series. • Scottish Executive, Choosing Scotland’s House of Lords: A test of Lijphart Future: A National Conversation and Tsebelis’, Paper to the ECPR Selected External Events (Edinburgh: Scottish Executive, 2007) Conference , Pisa (September 2007) • The Centre for Public Policy for Regions, • Sagar, Rahul, ‘On Combating the University of , 9.00am-5.30pm • Russell, Meg, ‘A House of Cards?’ Abuse of State Secrecy’, The Journal of (article on Lords reform), Parliamentary Tuesday 25 September. Fiscal Issues in Political Philosophy (2007) Brief (May 2007) Scotland: Lessons from Home and Abroad. Details at: www.cppr.ac.uk • Sinclair, Frauke, Rethinking • Russell, Meg and Jonathan Bradbury, Representation 2 MSPs’ Experience ‘The Constituency Work of Scottish and • is hosting a discussion of the Second Term of the Scottish Welsh MPs: Adjusting to Devolution’ on the Green Paper, ‘The Governance of Parliament, (Scotland: Scottish Council Regional and Federal Studies 17:1 Britain’ on 9 October 2007. Details at: Federation, 2007) (2007) www.policyexchange.org.uk • Solace Foundation, Comparing for • Russell, Meg and Maria Sciara, ‘The • The British and Comparative Territorial Improvement (pamphlet on local House of Lords: Negotiating a Stronger Politics Group of the Political Studies government performance regimes) Second Chamber’, in M. Rush and P. Association is holding a conference at the (London: Solace Foundation, 2007) Giddings (eds.) The Palgrave Review University of Edinburgh on 10-11 January of British Politics 2006. Basingstoke: 2008. Details at: www.psa.ac.uk. Palgrave Macmillan (2007) • The Society’s annual eDemocracy Further details on Constitution Unit conference takes place on 8 November in publications can be found at www.ucl. London. Details at: www.hansardsociety. ac.uk/constitution-unit/publications. org.uk/events

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