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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