APPENDIX 3: CALL FOR EVIDENCE
The House of Lords Select Committee on the Constitution,
chaired by Baroness Jay of Paddington, is announcing today an
inquiry into the Government taking action in anticipation of Parliament
passing a bill. The Committee invites interested organisations
and individuals to submit written evidence as part of the inquiry.
Written evidence is sought by Friday 18 January 2013.
Public hearings are expected to be held in January and possibly
February. The Committee aims to report to the House, with recommendations,
before the end of the current session. The report will receive
a response from the Government and may be debated in the House.
It is a well-known constitutional principle that
Parliament makes laws, and the Government executes those laws.
Strictly read, this might imply that the Government should take
no action on a bill unless and until it has received the Royal
Assent. However, it is generally recognised that, in the interests
of effective administration, the Government should be able to
undertake some preparatory work in advance of a bill's enactment.
The extent to which the Government ought to pre-empt
Parliament by undertaking preparatory work is a matter of constitutional
importance. There are concerns that the Government is pre-empting
Parliament to an excessive degree; in some cases the preparatory
works have even affected the viability of Parliament exercising
its right to reject a bill. Concerns have been expressed in a
number of cases, including:
- The reorganisation of the NHS
management structure whilst the Health and Social Care Bill was
being considered in Parliament, to the extent that it was argued
by some that rejecting the bill would have caused more harm than
proceeding with it;
- The status of the Financial Services Authority
during the passage of the Financial Services Bill, and the creation
of replacement bodies in the Bank of England;
- The management of a number of arm's-length bodies
during the passage of the Public Bodies Bill before it had been
sent to the House of Commons;
- The extent of preparatory work for the Competition
and Markets Authority, envisaged by the Enterprise and Regulatory
Reform Bill currently before the House of Lords.
The ability of Parliament and the public to assess
the appropriateness of Government action in this regard is hindered
by the lack of information on the subject. The Government has
referred, both in correspondence and in its internal guidance,[78]
to the "second reading convention": that expenditure
on preparatory work may be incurred once a bill has been given
its second reading by the House of Commons. However, there seems
to be very limited information as to the nature or genesis of
this claimed convention; it is mentioned in neither the Cabinet
Manual, produced in 2011 as an authoritative guide to governmental
practice, nor Erskine May. Similarly, there does not appear
to be any guidance on making pre-legislative administrative changes
which do not directly require additional expenditure.
The Committee would welcome written submissions on
any aspect of this topic, and particularly on the following questions:
Overview: the constitutional framework
To what extent is it constitutionally and legally
appropriate for the Government to use its pre-existing powers
to act in anticipation of the enactment of bills?
Are conventions a suitable mechanism for regulating
government action or expenditure in advance of legislation? If
not, what is the most appropriate alternative?
Government expenditure in advance of legislation
Are the Government correct to assert the existence
of a "second reading convention" whereby expenditure
on preparatory work may be incurred once a bill has been given
its second reading by the House of Commons? If so, what is the
content of this convention?
If the convention exists, is it properly observed
by the Government?
Is it appropriate for the Government to regard Commons
second reading as granting a sufficient parliamentary mandate
for expenditure? Is this properly understood and taken into consideration
by the House of Commons during second reading debates?
What is the situation as regards the House of Lords?
What about bills that start in the Lords (such as the Public Bodies
Bill)?
Are there other conventions, either in existence
or developing, in the area of government expenditure or action
in advance of legislation?
Organisational change in advance of legislation
In what circumstances is it appropriate for the Government
to change the structure of an organisation in the expectation
that legislation will be passed?
Where organisational change is appropriate, what
degree of change should be permitted? Are there any particular
types of organisational alteration that should never be undertaken
in advance of legislation?
Expenditure incurred in anticipation of the enactment
of bills of aids and supplies (i.e. Finance, Consolidated Fund
and Appropriation Bills) is not within the scope of the inquiry.
78 Managing Public Money, HM Treasury, October
2007, paras 2.4.2 and 2.4.3, and annex 2.5; Guide to Making
Legislation, Cabinet Office, June 2012, paras 18.7 and 18.8. Back
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