CHAPTER 5: Summary of conclusions and
Recommendations
Government controls on pre-legislative action
and expenditure
71. The Treasury is responsible to Parliament
for the regularity and propriety of Government expenditure; it
follows that the Treasury will wish to police these areas within
Whitehall. However, it should be recognised that Parliament's
interests are primarily guarded by Parliament itself. (Para 23)
72. We recommend that the Treasury's practices
should not be described as "conventions". (Para 26)
73. The second reading practice is not a convention,
and should no longer be described as such. (Para 29)
74. Second reading in the House of Commons may,
in certain circumstances, be a useful indicator of a bill's prospects
of becoming law, but it is not sufficient to justify pre-empting
the legislative process. The practice of allowing expenditure
after a bill's second reading in the Commons has been developed
by the Treasury; it has not been endorsed by Parliament, and carries
no independent constitutional force. (Para 34)
75. Details of the powers under which ministers
are acting should always be made clear to Parliament. (Para 42)
76. Information should be provided to Parliament
on pre-emptive activities in a consistent manner. There are a
number of options as to how this might occur; the key is to enable
Parliament to scrutinise the Government's actions effectively.
Whatever approach is adopted, it should ensure that Parliament
is fully informed in a timely manner of what activities have taken
place, when, how much they cost and under what powers ministers
acted. We invite ministers to decide which of the options in paragraph
39 (or other possibilities) to adopt as a practice to enhance
scrutiny and transparency in this context. (Para 43)
77. In addition, the Government should at the
end of each session provide Parliament with a summary of pre-emptive
activity undertaken across all departments. This should be provided
in a written ministerial statement, and should summarise the amounts
spent and the powers under which ministers acted. This statement
should be in addition to information given on each individual
instance of pre-emption. (Para 44)
78. At the end of each session the Government
should provide Parliament with a list of all ministerial directions
made, across all departments. This should be provided in a written
ministerial statement. (Para 47)
79. It would be helpful if the Government would
consolidate the principles and practices which govern pre-emption
into a single, authoritative restatement. This could usefully
be added to the Cabinet Manual, which aims to set out the main
laws, rules and conventions affecting the conduct and operation
of government, but which is currently silent on pre-emption. (Para 48)
The legal basis for pre-emption
80. The Ram memorandum itself is not a source
of law, and should not be considered one. (Para 52)
81. 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.
(Para 54)
82. 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. (Para 60)
83. 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. (Para 65)
Effective parliamentary scrutiny
84. 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. (Para 69)
85. 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. (Para 70)
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