Lord Tyler’s post on the Report of the Joint Committee on the Draft Constitutional Renewal Bill provides a link to the Joint Committee’s webpage, where a copy of the report has not yet been uploaded.
The html version of the report is at:
http://www.publications.parliament.uk/pa/jt200708/jtselect/jtconren/166/16602.htm
It is a substantial document, providing analysis and recommendations on the different parts of the Bill, as well as concluding with a critique of the Bill. The report questions the overall coherence of the measure and the extent to which the title of the Bill is a misnomer.
It will be interesting to know what readers make of it. Do let us have your comments.
Having briefly skimmed over it, I would agree with Lord Tyler that the Attorney General may have to be divorced from the political sphere, particularly after the Iraq War tainting the office with perceived submission to the Executive, as Professor Bogdanor mentions (someone I have a lot of admiration for). However, I can also sort of understand the need for the Government’s legal advice to come from one source at the apex…
I am also in favour of the Attorney General being a member of the House of Lords by convention, as it would remove them somewhat from party politics, and allow them to work more independently.
Regarding the courts I’m still very unhappy with the way the government went about removing the Law Lords and planting them in this new Supreme Court. I really did not, and still do not, see why on earth this pointless move was made.
I think putting the Ponsonby Rule on a statutory footing can only be a good thing, and think that votes to approve them should be automatic, rather than only coming about if Parliament approves them. It can only be good, too, that Parliament’s hypothetical rejection will halt ratification. The Draft Bill seems to really just endorse the present system but written down, surely? I would like the Lords’ role to be equal with its status regarding normal legislation.
Regarding war powers though, I’m not so sure if it’s a worthy thing giving it the same treatment. I’m of the opinion that the unwritten nature of Parliament’s powers means they’re essentially unbridled, which means that while officially they cannot override the Government with regarding to declarations of war, in reality no Government would ignore Parliament’s protest – which can deny supply as a nuclear option.
I’m worried that any definition of combat which will be statutorily put to Parliament will be sufficiently vague as to leave the Government loopholes to duck out of stick situations. The current government has started a positive precedent in having most major armed conflict decisions brought before Parliament which is very welcome. I’d be very grateful to hear the Lords’ opinions.
Heh, that’s as much as I’ve been able to discern after a long day at work, but I’d love to hear what other people think!
The Joint Committee’s report is now accessible from the Committee’s home page, via the link given in Lord Tyler’s posting, together with other information about the Joint Committee’s work.
Adrian Kidney: your capacity to digest the contents of the report at such short notice is impressive. As Lord Tyler indicates in his post, his amendments (which constitute, de facto, a minority report) on the role of the Attorney General were defeated by a margin of almost two-to-one. I was in the majority. The committee was influenced not only by the evidence of the present Attorney General but also that of several previous Attorneys. Their evidence, based on practical experience, is well worth reading and is, in the view of most members of the committee, compelling.
On treaties, the Bill does essentially put the existing practice on a statutory footing. We recommend going further than that. One of the lines of questioning I pursued, not least with Jack Straw, was how to give practical effect to the need for effective parliamentary scrutiny of complex and important treaties. That is why we recommend a Joint Committee on Treaties, something for which I was a particularly strong advocate. Most treaties are technical and non-contentious, but some are not and require detailed parliamentary attention. For that purpose, we need not only a dedicated committee but also a mechanism that can allow the present 21-day deadline to be extended.
As you know, I agree with you about the Supreme Court, but that was not something that fell within our remit. I also agree with you about Parliament and the war-making power. Putting the need for parliamentary approval on a statutory basis would create more problems than it would solve (not least in terms of justiciability) and in any event misses the key point. When the House debated the Constitution Committee´s report on Parliament and war making, I argued that the key issue was not that of Parliament voting on the issue – the precedent for that has already been set – but rather that of ensuring that Parliament has information that is sufficient for it to be able to make an informed decision. The House of Commons voted on going to war with Iraq but it did so on the basis of imperfect information. The key issues, as I argued, are those of information and political will. Those are what we should be addressing, not something that has, in effect, already been conceded.
I couldn’t agree more on your findings, though I should study more on the Attorney General issue. And thankyou for the compliment!
I think that the transferring of powers to declare war to Parliament is a step in the wrong direction which would cause more problems than it solves, even though I’m against the Iraq War.
The Supreme Court (in a way) makes sense but seems like a pointless exercise, and also is too American in it’s naming, to nitpick on the matter.
The Governance of Britain wasn’t well thought-out in my view, and seemed to me to be a political stunt by Gordon Brown. I hope that this will be changed significantly if it gets through Parliament.
teenagepolitician: I have no problem with Parliament voting on war, but the argument for it being a convention rather than a statutory provision is precisely that embodying it in law would create more problems than it would solve. I would certainly agree that the initiative must continue to rest with the executive. Even if the power were embodied in statute, the executive would doubtless find ways round it. In the USA, the war-making power rests with Congress. However, in the 20th Century, Presidents committed US forces to action overseas on more than one-hundred occasions but Congress only declared war twice. War was never declared in the case of the Vietnam War and the US Supreme Court refused to consider the issue of the constitutionality of the war: it treated it as a non-justiciable issue.
I was against war with Iraq, essentially on Conservative grounds: I did not consider it in Britain´s interests. The Lords debated the war, but we did not vote on the issue: had we done so, I am not all that certain what the outcome would have been. There were some notably critical contributions to the debate.
Prime Minister Blair chose to engage Parliament in the decision to go to war with Iraq instead of using his de facto decision-making power over the deployment and disposition of British forces. The link below: “Waging war: Parliament’s role and responsibility” outlines how such a power came about.
“The Royal prerogative derives from the constitutional settlement enshrined in the Bill of Rights 1688, which in effect transferred to Ministers certain rights which were previously the exclusive preserve of the Monarch.”
Blair had the best of intentions in doing what he did but he was no stickler for convention, he wanted a democratic way of doing this and coincidently, one that would deflect the blame away from his party if things went wrong.
The Tories in a grand moment of shallowness failed to grasp this strategic point because they viewed it as disloyal not to have such a vote. I’m not sure whether the Liberal Democrats, en bloc, vetoed or voted against the war on the day of the vote.
The political winners must be the Liberal Democrats who opposed the war from the outset. In this respect there is not much to choose between the Tories or New Labour.
The political looser is Parliament and Commons government as it has caused a considerable loss of faith amongst the electorate and the cost remains a high one in every respect of the word.
Ref: see Background
http://www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/236i.pdf
Ref: Military Action in Iraq
http://www.parliament.uk/useful/sp_iraq.cfm