CHAPTER 1: Introduction |
Background to the inquiry
1. A central principle of the UK's constitution
is that Parliament makes the laws, while the executive implements
them. A strict reading of this principle might suggest that the
executive should take no action on a bill until it has completed
its passage through Parliament and received the Royal Assent.
However, it is widely recognised that to subject the executive
to such strict restraint may on occasion be inefficient or expensive:
in these circumstances the Government should be able to undertake
some work to prepare for a bill's enactment. Such preparatory
work may take a variety of forms. It can involve spending public
money, for example through hiring project teams or conducting
scoping studies. It may involve administrative reorganisation,
for instance by transferring or ending the non-statutory functions
of a body due for abolition.
2. During this inquiry we have described Government
action in anticipation of Parliament passing a bill as the "pre-emption
of Parliament." In this Parliament there have been several
examples of pre-emptive activity which have attracted concern.
- The Health and Social Care Act
2012. The Government began reorganising primary care trusts (PCTs)
into management clusters (which were to replace PCTs under the
Heath and Social Care Bill) whilst the bill was being considered
by the House of Lords.
It was argued during the bill's passage through the Lords that,
given the scale of the pre-emption which had taken place, it would
be practically impossible for the bill to be abandoned, as the
resultant organisational "limbo" in the NHS would be
worse than having a defective bill passed into law.
- The Public Bodies Act 2011. Before
the bill was enacted, a number of public bodies began to wind
down their activities in anticipation of abolitionin some
cases before the bill had received a second reading in the House
of Commons. In several cases, reorganisation work began on bodies
which were subsequently removed from the bill following parliamentary
debate: the Youth Justice Board
and the Office of the Chief Coroner are two prominent examples.
- The abolition of Regional Development
Agencies (RDAs). Concerns were raised that, during the passage
of the Public Bodies Act 2011, the Government indicated that they
remained "open to persuasion" regarding the fate of
RDAsyet considerable pre-emptive reorganisation took place
in the RDA for the north east.
3. In view of the concerns expressed in this
area, and taking into account the lack of any previous parliamentary
investigation of the subject, we decided to conduct a short inquiry
into the pre-emption of Parliament. Our inquiry was motivated
more by the lack of clarity and information in this area than
by any suggestion that pre-emption was widespread or egregious.
4. This subject is fundamentally about the relationship
between Parliament and the executive. As such, it engages a number
of constitutional principles
- Parliament makes the law, and
the executive implements it;
- ultimately, Parliament (in particular
the House of Commons) controls the supply and expenditure of public
- the rule of law, including the
principle that, in a democratic society, the exercise of state
power requires legal authority; and
- the effective scrutiny of the
executive by Parliamentas we recently observed, ministers
are constitutionally responsible to Parliament for the discharge
of all their functions and the exercise of all their powers.
5. Our inquiry has not revealed widespread disregard
for these principles. Rather, we have sought to draw together
the various practices, guidelines and rules into a single place,
and to make recommendations on how these principles can better
be guaranteed and understood in practice.
The legal framework of ministerial
6. Ministers must act under the law. However,
the various sources of ministerial power, and the relationships
between these sources, may on occasion be controversial. Whether
pre-emption is constitutionally appropriateindeed whether
ministerial actions may properly be described as pre-emption at
allmay depend to some extent on the source of the legal
authority under which the minister is acting.
7. There are three sources of legal authority
for ministerial actions: statute, the royal prerogative and the
common law. Statutory
authority is legally uncontroversial: whilst the scope of statutory
powers is often litigated,
and although the exercise of statutory powers may be politically
controversial, there is no doubt that Acts of Parliament are capable
of authorising ministerial action. In any case, when ministers
are exercising powers conferred upon them by Parliament, it can
hardly be said that they are "pre-empting" Parliament.
8. The royal prerogative is an important source
of ministerial power; it is, however, a complex subject in its
own right, and a detailed investigation of the prerogative is
beyond the scope of our inquiry.
9. The common law powers of the Crown, by contrast,
are more nebulous, and this "third source" of power
is perhaps the least well understood. They are also relied on
by the Government for many pre-emptive activities. We analyse
the common law powers of the Crown in chapter 3.
1 The power of ministers to reorganise in that way
was granted by the National Health Service Act 2006 (QQ 51
and 69; HM Treasury, para 20). Back
HL Deb, 8 February 2012, col 260 (Lord Owen). Back
The chair and chief executive of the Youth Justice Board for England
and Wales gave oral evidence to us about their experience (QQ 23-37).
We are grateful to them and to all our other witnesses. Back
Constitution Committee, 6th report (2012-13): The accountability
of civil servants (HL Paper 61), para 12. Back
Q 70. Back
An example relevant to this inquiry is R v Secretary of State
for Health, ex parte Keen (1990) 3 Admin LR 180. Back