House of Commons - Public Administration

Select Committee on Public Administration Seventh Report

3 A Constitutional Safeguard

20. Unfortunately, we cannot rely on Prime Ministers to give full consideration to every machinery of government change. As we noted above, some of the most significant changes can be made within a few hours of a new incumbent moving in to Number 10, having been conceived on the campaign trail, swiftly negotiated with would-be new ministers, and barely tested on those with experience of running the country. But even when a Prime Minister is no longer new to office, as Professor Colin Talbot put it:

While this may slightly oversimplify matters, it is anomalous that it is so procedurally straightforward for the Prime Minister to reorganise the Civil Service (by amending the functions of the ministers it serves) when reorganising other public services may often involve statutory consultation, parliamentary approval or even primary legislation. Ministers are directly accountable to Parliament for the discharge of their functions, and so Parliament is not totally unable to question machinery of government changes; if Parliament was united enough in its opposition to a change, Government might well amend its plans. This is not, however, a substitute for a specific constitutional safeguard.

The Ministerial Code

21. Currently, the procedure for ministers wishing to suggest machinery of government changes to the Prime Minister are set out in the Ministerial Code. Ministers are required to consult the Head of the Home Civil Service before making submissions to the Prime Minister. There is no suggestion of consultation outside the Civil Service. Indeed, if it is not a departmental minister but the Prime Minister who is the proponent of a change, the Code is simply silent on the required procedure.

22. We asked Sir Gus O'Donnell in February whether there would be any effective scrutiny of the changes then being considered to the Home Office (now of course implemented). He was not greatly reassuring:

I will give advice to the Prime Minister. It is up to him then, I am afraid, how he proceeds with the machinery of government changes.[

23. The procedures set out in the current Ministerial Code are designed to ensure that proposals for changing the machinery of government receive a measure of scrutiny within government itself. They do not cover managerial matters, nor are they concerned with external scrutiny. We believe there should be some form of external consultation for major reorganisations.

Statutory Consultation

24. In other parts of the public service landscape, it is common for ministers and public bodies to be required in statute to consult on their actions. Where a body is established in statute, it is inevitable that any change to that body, however small, will require a process set out in statute. For example, any addition to the functions of the Public Guardian requires "due consideration" to be given to the recommendations of a specially constituted Board, including at least one Judge and at least four members who are "persons appearing to the Lord Chancellor to have appropriate knowledge or experience of the work of the Public Guardian".[29] Whatever the reasons for it, it is surely anomalous that there are compulsory checks on actions of this order, and yet not on breaking up the Home Office.

25. Targeted in the right way, consultation requirements can be a worthwhile check on unilateral action. It is clear that in the creation of the Ministry of Justice the Government has greatly angered the senior judiciary by failing to consult them about its plans until they were already settled upon; indeed, both the Lord Chief Justice and even the Lord Chancellor have confirmed that they learned about the Home Secretary's suggestion in the Sunday Telegraph.[30] The Lord Chief Justice has indicated that he is close to invoking an emergency power allowing him to bypass ministers by making an unprecedented statement directly to parliament—a course of action clearly not open to every aggrieved stakeholder.[31] It would surely be better for the Government and healthier for our democracy if agreement on principles could have been sought before the new Ministry opened for business.

26. Professor Talbot set out for us what he believed should happen if the next Prime Minister wanted to radically amend the machinery of government:

We certainly agree that proposals of real importance should be debated and discussed; but again, not every machinery of government change is constitutionally significant. At a time when talk of "consultation fatigue" is rife, we are wary of proposing more compulsory consultation periods. We are not convinced that Government consultation processes (especially when forced upon the Government by legislation) necessarily lead to worthwhile discussion. Government might benefit from consulting on its proposals, but only if it was genuinely interested in hearing what consultees had to say. We have been considering the merits and demerits of government consultations as part of our Public Services: Putting People First inquiry, on which we will report in due course.

27. We now know, on the specific example of the Ministry of Justice, that private discussions between the DCA and senior judges had begun by 7 February 2007[33]; the changes were announced to Parliament on 29 March[34]; and the new arrangements went live on 9 May. This is not a long period for consideration of a "serious constitutional problem"[35], as the Lord Chief Justice has called it. It was commendable that the Government at least produced an explanatory paper giving details of proposals to Parliament,[36] although the timeframe of the changes did not allow for consideration of whether the policy should be implemented, only how to mitigate some of its possible undesirable effects. Parliament and the Judiciary are clearly now engaged in the discussion, but the changes themselves appeared as a done deal.

28. The Government has already moved towards greater openness. The explanatory paper cited above may be a helpful precedent, in that it provided a public explanation of the proposals' rationale. Indeed, it would have taken little to have turned it into a consultation document. We asked Lord Butler if the Government should publish a consultation document and invite comments before embarking on a major change. He thought it would be helpful, but not sufficient:

We agree with Lord Butler. Statutory requirements for consultation are not always appropriate; they may delay urgently needed changes, or be an unnecessary layer of bureaucracy on a small change. On the other hand, if the change is of significance, a requirement to consult may be insufficient; after all, it does not in practice require the Government to convince anyone that their proposals are correct. A stronger check is needed—such as can only be provided by Parliament.

The Ministers of the Crown Act 1975

29. Traditionally, the organisation of Government has been part of the Royal Prerogative. Like much of that Prerogative, the appointment of ministers and the reorganisation of ministries are functions which are now carried out by the Prime Minister of the day. Parliament has no formal checks on prerogative powers except those checks established through primary legislation. However, such checks could also be established by convention. This was demonstrated in the recent debate on Parliamentary approval for armed conflicts. The Leader of the House of Commons, Rt Hon Jack Straw MP, told the House that:

We [the Government] are of the view that the processes adopted in 2002 and 2003 [regarding the Iraq war] constitute a precedent, and that it is not conceivable that this House would ever depart from that precedent.[

This is a momentous Government undertaking. In such a way are changes to our constitution made.

30. In the case of machinery of government changes, one legislative check does exist—the Ministers of the Crown Act 1975. That Act provides that machinery of government changes should be made by Order in Council:

Her Majesty may by Order in Council—

(a) provide for the transfer to any Minister of the Crown of any functions previously exercisable by another Minister of the Crown;

(b) provide for the dissolution of the government department in the charge of any Minister of the Crown and the transfer to or distribution among such other Minister or Ministers of the Crown as may be specified in the Order of any functions previously exercisable by the Minister in charge of that department;

The Act also provides that such Orders should be subject to parliamentary procedure. Orders which provide for the dissolution of a government department must be made by affirmative resolution, and so require the approval of both Houses. All other Orders transferring functions between ministers are subject to the negative procedure.

31. There have been 154 Transfer of Function Orders laid since the 1946-47 session, all bar one of which have been subject to the negative procedure. As far as the Commons is concerned, only 11 have been debated, and none of those have been defeated or withdrawn. The last debate took place on the abolition of the Civil Service Department in January 1982—now over 25 years ago.[40]

32. In the past it was more common for such Orders to be debated. Ten Orders were debated between 1951 and 1970, compared to just one since. It is clear that the risk of a debate would have been in the Government's mind when putting forward changes of ministerial responsibilities. In opening a 1969 debate on the transfer of the Monopolies Commission away from the Board of Trade, Sir Keith Joseph told the House that:

33. There are very obvious reasons, however, why a Member might not pray against an Order. The first is the lack of effective consequences. Orders may not be laid until the changes are effectively a fait accompli. As we have seen, changes to the responsibilities of the Home Office and the Department for Constitutional Affairs were confirmed in a Written Ministerial Statement on 29March[42], and the new Ministry of Justice came into existence on 9 May; yet still as of 12 June no Transfer of Functions Order has been laid. At some stage, Parliament is theoretically empowered to prevent this change from occurring; but the change will already have been made in practice.

34. A cursory look at transfers of functions shows that this timing is typical. All the departments we looked at were up and running at least two months before Parliament had its chance to block them: Table 1: Illustrative sample of Transfer of Functions Orders

New office/department established Date of establishment Date of laying of Transfer of Function Order

Department for Communities and Local Government 5 May 2006 31 July 2006

Office of the Third Sector 5 May 2006 21 November 2006

Office of the Deputy Prime Minister 29 May 2002 4 November 2002

Department for the Environment, Food and Rural Affairs 8 June 2001 12 November 2001

Department for Education and Employment 5 July 1995 4 December 1995

Department of National Heritage 11 April 1992 12 June 1992

Source: research by House of Commons Journal Office

Although the sample size is small, we do not believe this is atypical.

35. Transfer of Functions Orders are normally laid some time after the changes they effect. We recommend that the Government should lay Orders in time for Parliament to have a say before changes are made.

36. We do not expect the Government to know all the details of how transfers of functions will operate before they are put into practice. But functions can be, and often are, transferred in stages over separate orders. We recommend that Government should lodge preliminary transfer of functions orders at the time it announces prospective changes.

37. Even if Members might think carefully before demanding that a reorganisation be undone, there could be circumstances where it was appropriate for them to do so. The prospect that changes might be debated could dissuade Government from ill-considered changes. However, the second difficulty with the current procedure is that as the great majority of Transfer of Function Orders are subject to the negative procedure, debate is not guaranteed even if Members do pray against them. Procedural changes in the Commons over the years have meant that debates on any negative instruments have become the exception rather than the rule. Even if an Order has been prayed against, debate only takes place if the Government gives an opportunity for it, either in Committee or on the Floor of the House. It is at the Government's discretion if and where prayers are debated.[43] If the debate is in Committee, there may then be no opportunity for a division on an effective motion.

38. Transfer of Functions Orders can only be a check on Government if they are debated. The Government should undertake that if a Transfer of Functions Order is prayed against, it will be debated on the floor of the House.

The Solution: A Stronger Parliamentary Safeguard

39. Even if the Government undertook to find time to debate all prayers against Transfer of Function Orders, an affirmative procedure might be more appropriate. It would ensure that Ministers would have to explain what was proposed and why. We have heard the argument for such a procedure from several quarters. Lord Butler, for example, told us:

There is a requirement for a Transfer of Functions Order, as you know, which Parliament can pray against but usually does not, but there is not a requirement for any great parliamentary procedure or parliamentary scrutiny when these changes come about. I have come to think it would be a good discipline on governments if there was such a procedure.[

He talked in particular of the abolition of the Lord Chancellor's Department and the creation of the Department for Constitutional Affairs in 2003, which had needed to be subject to legislation because the Lord Chancellor was named specifically in so many statutes. He thought the need for a Parliamentary procedure had changed the Government's intentions, and for the better.[45] Since the Constitutional Reform Act 2005, there is now a separate legislative power for transferring functions to or from the Lord Chancellor.

40. Professor Hood noted that Professor Pollitt had come to much the same view that Lord Butler had put forward—notably that requiring a debate "would nudge the government machine bit by bit towards a more systematic collection of information and evaluation of information about the changes proposed or, indeed, conducted."[46] He also commented that he would personally have a lot of sympathy with such a view.

41. We do not expect that there would be much appetite in the House to debate every change in the machinery of government. But we have seen that there are various magnitudes of change. In the particular case of the recent Home Office split, there is clearly appetite for parliamentary scrutiny.[47] Lord Justice Thomas called it "not [simply] a machinery of government change but a change which had serious constitutional implications".[48] We agree with this, and with his analysis that it required "a proper, open examination so that we could have something that Parliament was content with, the judiciary was content with and the executive was content with."[49]

42. There is a great deal of expertise within Parliament on the subject of Government. Both Houses contain not only many ministers and former ministers, but representatives with a great variety of experiences of working with Government. A parliamentary process also allows any individuals or organisations affected by Government proposals to put their case to their elected representatives. Parliament should have a say. We note that if the Government wished to alter the balance of the composition of the Judicial Appointments Commission, for example, it would require the approval of both Houses.[50] We see no reason why the same approval should not be required for significant machinery of government changes.

43. In order to have an effective input, Parliament needs not just a voice but information. The Government needs to provide a business case for the changes it is proposing. That business case could build on the precedent set by the Cabinet Office in the publication of a paper setting out the reasoning behind the decision to institute a Ministry of Justice; but it ought also to be more fully costed. Proper scrutiny relies on cost information being available.

44. There are other means of involving Parliament beyond the ones we have discussed. Government could, for example, find time for debates on machinery of government changes. Or we could go further still. Rt Hon William Hague MP, for example, told our predecessor Committee in 2003 that he believed a Bill should have to be passed to reorganise the machinery of government, noting that:

To my constituents in rural North Yorkshire, the creation of DEFRA in 2001 was as important an event in the way they are served by the government of the day as the passage of most legislation.

45. Parliament should be given the chance to vote on Machinery of Government Changes. We do not believe requiring primary legislation is proportionate; Government should not be prevented from acting quickly if it is in the national interest. But nor do we believe that this is incompatible with parliamentary approval of such changes. If Government has a sensible and defensible rationale for changes then it should have no reason to be wary of debate. If it does not, then the prospect of debate and division may discourage the change being made.

46. We recommend that the Ministers of the Crown Act should be amended so that significant changes to the Machinery of Government require the assent of both Houses of Parliament. Government should also be prevented from assuming that it will have Parliament's support; public money should not be invested in structural changes until they have been approved by Parliament. For that, Parliament will require business cases with cost information for proposed changes.

47. We hope that, if the Ministers of the Crown Act cannot be amended immediately, the new Prime Minister will act in this spirit, and invite Parliament to approve any proposed changes. Adjournment debates could be timetabled; but it would be better to allow substantive debates on a motion to affirm the House's support for proposed changes.

27 Oral evidence taken before the Public Administration Select Committee on 7 December 2006, Q 148 Back

28 Oral evidence taken before the Public Administration Select Committee on 6 February 2007, Q 11 Back

29 Mental Capacity Act, section 59(3) Back

30 Uncorrected transcript of oral evidence taken before the Constitutional Affairs Select Committee on 22 May 2007, Q 63-64, 120 Back

31 As above, Q 58 Back

32 Oral evidence taken before the Public Administration Select Committee on 7 December 2006, Q 176 Back

33 Uncorrected transcript of oral evidence taken before the House of Lords Constitution Committee on 1 May 2007, Q 374 Back

34 HC Deb, 29 March 2007, cols 133-135WS Back

35 Uncorrected transcript of oral evidence taken before the Constitutional Affairs Select Committee on 22 May 2007, Q 86 Back

36 Cabinet Office, Machinery of Government: Security and Counter-Terrorism, and the Criminal Justice System, May 2007 Back

37 Q 43 Back

38 HC Deb, 15 May 2007, cols 481-583 Back