CHAPTER 4: EFFECTIVE PARLIAMENTARY SCRUTINY
66. The preceding chapters focused on the financial
and legal restraints on pre-emptive activity. We have also considered
whether a third category of restraint should be developed based
on constitutionality.
67. Some witnesses felt that such a restraint
on pre-emptive action would be inappropriate, as the propriety
and legal restraints were adequate to protect the constitutional
position. Sir Stephen Laws, for example, stated, "The inquiry
seems to be looking at whether there is a third question 'is it
constitutionally appropriate to [pre-empt]?' It does not seem
to me that there is any room for asking that question. I do not
know what principle could or should inhibit the exercise of existing
statutory or other powers."[75]
68. Other witnesses thought that the constitutionality
of a measure (regardless of its legality) should be a relevant
consideration for ministers when deciding whether to engage in
pre-emptive activities. Sir Stephen Sedley distinguished "between
acting in certain ways in case draft legislation becomes law,
and acting as if it were already law. The latter is prohibited
in general terms; the former is not."[76]
69. When the Government are considering whether
to undertake pre-emptive activities, they should always have in
mind the constitutional importance of effective parliamentary
scrutiny of their actions. Such constitutional restraints already
exist with regard to expenditure: the 1932 concordat is, in effect,
an agreement by the Treasury that it will not rely on the full
scope of legal powers apparently available to it. The concordat
gives the reason for this restraint as "constitutional propriety."[77]
We consider that the principle of restraint in the name of
good constitutional practice should apply to all pre-emptive actions,
not just those involving expenditure under the new services rules.
This recommendation particularly applies to re-organisations of
public bodies.
70. Where the pre-emption involved is such
that it threatens effective parliamentary scrutiny, it should
not be undertaken. It is for Parliament, not the Government, to
decide whether to change the law.
75 Laws, para 2. Back
76
Q 61. Back
77
Managing Public Money, A.2.1.6. Back
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