The pre-emption of Parliament - Constitution Committee Contents

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. These include—

  • 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.[1] 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.[2]
  • The Public Bodies Act 2011. Before the bill was enacted, a number of public bodies began to wind down their activities in anticipation of abolition—in 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[3] 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 RDAs—yet considerable pre-emptive reorganisation took place in the RDA for the north east.[4]

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.

Constitutional principles

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 money;
  • 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 Parliament—as we recently observed, ministers are constitutionally responsible to Parliament for the discharge of all their functions and the exercise of all their powers.[5]

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 powers

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 appropriate—indeed whether ministerial actions may properly be described as pre-emption at all—may 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.[6] Statutory authority is legally uncontroversial: whilst the scope of statutory powers is often litigated,[7] 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

2   HL Deb, 8 February 2012, col 260 (Lord Owen). Back

3   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

4   Beecham. Back

5   Constitution Committee, 6th report (2012-13): The accountability of civil servants (HL Paper 61), para 12. Back

6   Q 70. Back

7   An example relevant to this inquiry is R v Secretary of State for Health, ex parte Keen (1990) 3 Admin LR 180.  Back

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