The pre-emption of Parliament - Constitution Committee Contents


SUMMARY




  



A central principle of the UK constitution is that Parliament makes the laws, and ministers implement them. On occasion, however, the interests of efficient and cost-effective public administration require that the Government pre-empt Parliament by undertaking preparatory work in anticipation of a bill becoming law. Concerns have been raised about this practice, both in terms of the lack of understanding of when and how pre-emption occurs, and of the extent to which it takes place.


Our inquiry revealed no widespread or egregious use of pre-emption. However, we include in this report the following recommendations—


  • All instances of pre-emption must be governed by certain fundamental constitutional principles, including the rule of law and effective parliamentary scrutiny.

  • The Treasury plays an important role in policing this area within Government. However, the Treasury's practices carry no constitutional force, and should not be described so as to suggest otherwise. In particular, its practice of authorising certain expenditure once a bill has been given a second reading in the House of Commons is not a constitutional convention and has not been endorsed by Parliament.
  • As there is no standard procedure at present, the Government must do more to inform Parliament of their pre-emptive activities. Written statements should be made to Parliament in a timely manner, setting out details of each instance of pre-emption and justifying it; and a statement should be made at the end of each session giving an annual summary of pre-emptive activities.
  • Similarly, a written ministerial statement should be made at the end of each session on the number of ministerial directions issued in the session.
  • Where pre-emption occurs, the Government must always state clearly the power under which they consider themselves authorised to act.
  • The principles and practices governing pre-emption should be consolidated into a single, authoritative restatement for inclusion in the Cabinet Manual.
  • The common law powers of the Crown are restrained by public law and constitutional principle. This should be made clear in all Government publications mentioning these powers.
  • The so-called "Ram doctrine", which has been invoked to support pre-emption, is misleading and inaccurate, and should no longer be used.
  • Pre-emption of Parliament should not be undertaken when it would threaten the principle of effective parliamentary scrutiny.



 
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