House of Lords - The pre-emption of Parliament

The pre-emption of Parliament - Constitution Committee Contents

CHAPTER 3: THE LEGAL BASIS OF PRE-EMPTION

Sources of Government power

49. In chapter 1 we outlined the legal framework through which ministers are authorised to act. Of the three sources of ministerial power, the common law is perhaps the least understood. We received detailed evidence on the scope of the Crown's common law powers, and on their relationship to pre-emption. In this chapter we analyse this evidence, and the relevant case law, and seek to shed light on what precisely the common law allows ministers to do.

The Ram memorandum

50. The Crown's common law powers have been summarised as the power to do things which are ancillary or incidental to the ordinary business of central government.[48] The statement of these powers which is frequently relied on by the Government is contained in a memorandum drafted by Sir Granville Ram, then First Parliamentary Counsel, in 1945 ("the Ram memorandum"). The memorandum was first published in 2003.[49]

51. The Ram memorandum contained advice to the Government of the day about whether legislation was necessary to extend the powers of government departments. The memorandum includes the following statement of ministerial power under the common law—

"A minister of the Crown is not in the same position as a statutory corporation. A statutory corporation … is entirely a creature of statute and has no powers except those conferred upon it by or under statute, but a minister of the Crown, even though there may have been a statute authorising his appointment, is not a creature of statute and may, as an agent of the Crown, exercise any powers which the Crown has power to exercise, except so far as he is precluded from doing so by statute. In other words, in the case of a government department, one must look at the statutes to see what it may not do."[50]

Status of the memorandum

52. Whatever status the Ram memorandum may subsequently have acquired within Government, it does not of itself possess any inherent legal authority. Rather, the Ram memorandum is no more than an opinion prepared by a lawyer for his client (in this case the Government).[51] The Ram memorandum itself is not a source of law, and should not be considered one.

Criticisms of the memorandum

53. A large majority of our witnesses agreed that, whatever the position was in 1945, the description of the scope of ministerial common law power in the Ram memorandum is not an accurate reflection of the law today. Lord Brown of Eaton-under-Heywood, a retired Justice of the Supreme Court and former First Junior Treasury Counsel, explained: "[the common law powers of the Crown] are plainly constrained. In the 60 years since [the Ram memorandum], the Human Rights Act 1998 has greatly constrained them. The scope of judicial review of Government action has enormously extended."[52] The Attorney General said that the exercise of common law powers by ministers is also restricted by the rules on financial propriety as set out in the 1932 concordat.[53] He added that, where statutory power exists within a particular area, the Crown is unable to operate under its prerogative powers or its common law powers in the same area.[54] Professor Sir Jeffrey Jowell KCMG QC, Director of the Bingham Centre for the Rule of Law, suggested that, in addition, the Crown could not exercise its common law powers to pre-empt legislation where the effect of the pre-emption would be: "to disturb the rights or significant interests of those whom the legislation is intended ultimately to affect."[55] The Treasury Solicitor added that "parliamentary scrutiny, including by the PAC [Public Accounts Committee], is one of the other key elements of constraint in this area."[56]

54. The Ram memorandum is not an accurate reflection of the law today. In addition to statutory restraints, ministers' ability to exercise common law powers is constrained by: the public law limitations on Government action as enforced through judicial review; human rights law; the pre-existing rights and significant interests of private persons; and rules on financial propriety as set out in the 1932 concordat and Managing Public Money.

The "Ram doctrine"

55. The Ram memorandum is the source of another, more troubling, legal fallacy. This is the so-called "Ram doctrine". This doctrine, purportedly derived from Ram's 1945 memorandum, was presented to us by the Treasury as: "the fact that ministers can do anything a natural person can do, unless limited by legislation."[57]

56. We heard that the Ram memorandum provides no basis for the doctrine which the Treasury has built upon it. Sir Stephen Sedley, a retired Lord Justice of Appeal, said—

"What appears to be being made in Whitehall, out of Ram, is a fabrication. Ram never said what is attributed to him. His proposition that government can do anything reasonably ancillary to its explicit functions is completely unobjectionable, but it is nowhere near the proposition that appears to have been derived from it in Whitehall that Government can do anything that a private individual can do. The converse is the case."[58]

57. Sir Jeffrey Jowell thought that equating the powers of ministers with those of a private individual is "a constitutional heresy. Even if it were a settled convention, it would be overridden by a constitutional principle, which has higher authority: namely, the rule of law."[59]

58. The Attorney General appeared to agree with these criticisms of the Ram doctrine—

"I think that Sir Granville Ram was emphasising that the Crown is not a creature of statute. Therefore, it has inherent powers that it can exercise, apart from prerogative powers, as if it were a natural person. But … it is circumscribed by public law; by propriety; by human rights … I do not think that Whitehall thinks the Government can do everything a private individual can do, because it is circumscribed by those very things I have just listed."[60]

59. It is clear that the description of the scope of Government power denoted by the term "Ram doctrine" is unhelpful and inaccurate: it does not reflect important restrictions on ministerial powers under the common law, and creates an impression that ministers possess greater legal authority than is the case. It also fails to recognise that, whereas lawful expenditure incurred by a private person involves his or her own money, expenditure by the Government does not: it is public money.[61]

60. The description of the common law powers of the Crown encapsulated by the phrase "the Ram doctrine" is inaccurate, and should no longer be used.

The scope of the common law powers of the Crown

61. We heard more general evidence on the scope of the Crown's common law powers. Some witnesses viewed the common law powers as limited to those powers ancillary or incidental to express statutory or prerogative functions. For example, Lord Lester of Herne Hill said—

"If the Crown has common law as well as statutory or prerogative powers then I agree that they are ancillary only and extend to such matters as entering into contracts, paying rents or salaries and conveying property. They do not extend so far as to enable the Government to pre-empt Parliament's legislative process, and to contend otherwise would be contrary to the rule of law."[62]

62. Others argued that, though the common law powers of the Crown are subject to the public law restraints described above, they are wider than being merely ancillary to statutory or prerogative powers. Lord Brown of Eaton-under-Heywood, for example, said, "central government … have the powers to govern the state in the public interest in general terms."[63] Similarly, the Attorney General said, "I do not entirely agree … that [the common law powers of the Crown] are just 'reasonably ancillary' to its express functions, because I think that the powers are more extensive than that. But the powers are also circumscribed by the principles [of public law]".[64]

Decisions of the courts

63. There are two decisions of the Court of Appeal which are of particular relevance to the scope of the Crown's common law powers. In R v Secretary of State for Health, ex parte C[65] the issue was whether it was lawful for the Secretary of State to maintain a list of persons unsuitable to work with children. There was no express statutory authority for the list to be maintained, and neither is there a prerogative power to maintain such a list. Hale LJ[66] for a unanimous Court of Appeal cited the following statement contained in Halsbury's Laws of England: "At common law the Crown, as a corporation possessing legal personality, has the capacities of a natural person and thus the same liberties as the individual". Hale LJ also cited with approval a passage from Wade and Forsyth's Administrative Law, which observed that the Crown's common law powers include the powers to make contracts, employ servants and convey land. Hale LJ ruled that private persons could have maintained a list such as that maintained by the Secretary of State and that, therefore, the Secretary of State was acting lawfully. Maintenance of the list did not of itself interfere with the rights of others.

64. The issue was revisited by the Court of Appeal in Shrewsbury and Atcham BC v Secretary of State for Communities and Local Government,[67] in which Carnwath and Richards LJJ expressed divergent views on the matter. At issue was whether the Secretary of State had acted lawfully in embarking on an exercise of local government reorganisation before the relevant statutory powers had been enacted. The Court of Appeal held unanimously that the Secretary of State had acted lawfully, having accepted that it was bound by the decision in ex parte C. However, Carnwath LJ[68] expressed a number of reservations about that decision. First, he noted that the scope of the common law powers of the Crown was a matter of "continuing academic controversy". Secondly, he expressed "some sympathy" with the suggestion that the clock should be rewound "to a time when the accepted wisdom was that Ministers had only two sources of power: statute or prerogative". Thirdly, he noted that the passage from Wade and Forsyth's Administrative Law which Hale LJ had cited with approval in ex parte C was "of limited assistance". For Carnwath LJ, powers such as those to make contracts and convey property are "in the nature of ancillary powers, necessary for the carrying out of any substantive … function". He added that "The obvious need for such powers to my mind throws no light on what, if any, non-statutory substantive functions the Crown retains".[69] Carnwath LJ stated that "analogies with the powers of natural persons seem to me unhelpful … The Crown is not a creature of statute. As a matter of capacity, no doubt, it has power to do whatever a private person can do. But as an organ of government, it can only exercise those powers for the public benefit, and for identifiably 'governmental' purposes within the limits set by the law".[70] He cited with approval the following statement in De Smith's Judicial Review: "The extension of the Ram doctrine beyond its modest initial purpose of achieving incidental powers should be resisted in the interest of the rule of law".[71] The matter is not clear-cut, however. Carnwath LJ's remarks in this case were obiter dicta and in his judgment in that case Richards LJ expressly distanced himself from what Carnwath LJ said.[72]

References in Government publications

65. The true extent of the common law powers of the Crown may be definitively determined only by the courts. What is clear is that, although the Crown possesses powers under the common law, and so is in a qualitatively different position from statutory public bodies such as local authorities,[73] the exercise of its powers is constrained by the public law principles described in this chapter. However, the constrained nature of the Crown's common law powers is seldom made clear in Government documents. We note in particular that the Cabinet Manual describes the power of a minister to exercise "any of the legal powers of an individual",[74] but makes no reference to the fact that, whereas private individuals are free to exercise their powers irrationally (for example), ministers are not. We recommend that, where Government publications refer to the Crown's common law powers, it is made clear that these powers are limited by the restraints of public law and constitutional principle.

48 See for example De Smith's Judicial Review, 6th edition (edited by Lord Woolf, Sir Jeffrey Jowell and Professor Andrew Le Sueur), para 5.022. Back

49 Following a series of parliamentary questions asked by Lord Lester of Herne Hill QC. Lord Lester described to us how he discovered the memorandum: Q 54. Back

50 The Ram memorandum is available at http://www.parliament.the-stationery-office.co.uk/pa/ld200203/ldlwa/30122wa1.pdf Back

51 Q 54. Back

52 Q 56. Back

53 Q 69; Laws, para 13. Back

55 Q 57. Back

56 Q 76. Back

57 HM Treasury, para 11. Sir Stephen Laws thought similarly: Laws, para 9. Back

58 Q 67. Lord Lester of Herne Hill took a similar view. Back

59 ibid. Back

60 Q 74. Back