The Constitutional Reform and Governance Act 2010 was introduced in the last few weeks of Gordon Brown’s Labour Government Premiership and was aimed at both codifying the law regarding the governance of the Civil Service and codifying the ratification of treaties by Parliament as part of the United Kingdom’s constitutional settlement. The act is in two parts. Part 1 deals with the governance of the Civil Service, whilst Part 2 concerns the statutory role of Parliament on the ratification of treaties.
What was the aim of the Act?
This piece of legislation was introduced for two main reasons. The first aim of the act was to provide a statutory basis for the management of the Civil Service by codifying and re-stating the rules regarding appointment, conduct and governance of the service. This was as a result of concerns over growing levels of over-politicisation of the Civil Service as a result of the increasing reliance placed by Ministers on special advisors, and senior civil servants. Before the passing of the Act, the governance of the Civil Service was largely uncodified and ruled primarily by constitutional conventions.
The second aim of the act was to codify and clarify the role of Parliament with regards the ratification of treaties. The UK is regarded as a dualist state in which treaty and international law are not automatically incorporated into U.K. law until ratified by Parliament. Until ratification therefore, provisions of treaties that have been signed by the U.K. have only limited domestic effect, and Parliament has traditionally had a role in creating the domestic legislation which implements the treaty. According to the constitutional convention known as the “Ponsonby Rule” the Government, when requiring Parliament to ratify a treaty, was to lay the treaty provisions before Parliament for comment, debate and, if necessary, for domestic legislation to be passed or amended. If the treaty implementation did not require either a grant of public money or the amendment, repeal or introduction of domestic legislation however, Parliament was effectively limited in its ability to ratify or disapprove the proposed treaty. The second objective of the Constitutional Reform and Governance Act 2010 was to allow Parliament a statutory role in the ratification of treaty into U.K. law.
What main changes did it make to the law?
Part 1 of the Act concerns the governance of the Civil Service. S2 creates the Civil Service Commission, which deals and oversees the recruitment of civil servants. S3 gives the Minister for the Civil Service the statutory power to “manage” the Civil Service and, amongst other things, to make appointments. This is to be combined with the requirements of s10 of the Act which covers the selection and appointment of candidates to the civil service. For the first time it is required by statute that appointments be “on merit on the basis of fair and open competition”.
In addition to this new provision, another key change is made with s5 which requires the Minister to publish a Civil Service Code of Conduct which will form part of the terms and conditions of service of Civil Servants. This is an entirely new provision aimed at ensuring the accountability and transparency of civil servants.
Part 2 of the Act concerns the statutory role of Parliament in the ratification of treaties. For the first time, the Government is under a statutory duty to put before Parliament any treaty for ratification under s20(1)(a). This then gives Parliament 21 days under s21(1)(c) to ratify the treaty provision. Should this period expire without either House resolving that the treaty should not be ratified then the Government is entitled to ratify the treaty under s20(4). This means that if either of the Houses of Parliament intend that the treaty should not be ratified, then it cannot be so ratified.
Whilst this appears to be a major and important change in the law, it should be noted that the Act does not provide for any statutory obligation on Parliament to either hold a debate, nor a vote on the treaty. It may simply be that the 21-day period set down in s20(1)(a) expires without a debate in which event the treaty may be ratified by the Government. In fact, this appears to be a relatively common occurrence, especially considering the Government runs the timetable for Parliamentary debate, and Opposition Day debates are limited. The difference between the powers of Parliament under s20 of the Act and the Ponsonby Rules as a constitutional convention is now that Parliament may decide not to ratify a treaty even if it does not require domestic legislation to be amended in order to do so or not.
2026 update
The Constitutional Reform and Governance Act 2010 remains in force and continues to regulate both the statutory basis of the Civil Service and the parliamentary scrutiny of treaties in the United Kingdom.
The treaty provisions in Part 2 of the Act (sections 20 – 25) have become particularly significant since the United Kingdom’s withdrawal from the European Union. During the Brexit process and in the negotiation of later international agreements, these provisions have been used to govern how treaties are laid before Parliament prior to ratification. In practice, however, Parliament’s ability to block treaties remains limited because the Act does not require the government to provide time for a debate or vote within the 21-day scrutiny period.
As a result, there has been continuing constitutional debate about whether the scrutiny process created by the Act provides sufficient parliamentary oversight of international agreements. Parliamentary committees have since developed additional scrutiny practices to examine treaties laid before Parliament under the Act.
The provisions relating to the Civil Service also remain in force, continuing to provide the statutory framework for recruitment on the basis of merit through fair and open competition, and for the publication of the Civil Service Code, which governs the conduct and impartiality of civil servants.
The Act therefore continues to play an important role in the UK constitution, particularly in regulating the relationship between the executive, Parliament and the civil service.
