Question for Short Debate
My Lords, I am pleased to have this opportunity to debate the Constitution Committee’s report on the pre-emption of Parliament. As your Lordships are aware, I had the privilege of chairing the committee, and the report follows a short inquiry which we undertook last year. As always, I am grateful to the witnesses who appeared, to our expert advisers, to our officials and to the members of the committee for their invaluable help in producing the report.
At first sight, it may appear somewhat arcane as a subject even for the Constitution Committee but in fact parliamentary pre-emption concerns the central constitutional principle that, in the United Kingdom, Parliament makes the laws and Governments implement them. To put it simply, Ministers may propose changes to matters of policy which involve changes to organisations or institutions—or, indeed, to have full-scale reform and introduce new structures—but they can do so only once Parliament has passed the necessary legislation. That principle is obviously especially important when the proposed policy requires the expenditure of large amounts of public money.
As your Lordships will be aware, however, Governments sometimes jump the gun—changes are begun and money is spent before the relevant Bill has passed through all the stages of Parliament. The argument for doing that is usually that it improves public administration and cost effectiveness, but we have called that practice the pre-emption of Parliament.
I am particularly glad that my noble friend Lord Beecham is speaking for the Opposition today, as he has been one of several Members of the House to draw the Constitution Committee’s attention to this matter. He was particularly concerned about the passage of the Public Bodies Act 2011. At that time, many organisations—notably, the Youth Justice Board—were initially told that they would be abolished. After the passage of the Bill, and particularly amendments made in this House, they were reprieved—but not, of course, before there had been considerable disruption and anxiety within the organisation. A similar issue—sadly, with a different result—arose during the House of Lords proceedings on the Health and Social Care Act 2012. The noble Lord, Lord Owen, who regrets that he is unable to be here today, sought to challenge the Government for beginning widespread reorganisation of the NHS, which affected many services, before the Bill had passed, but in that instance was told that it was too late to stop the changes.
The Constitution Committee decided that there were sufficient recent examples to provide the basis for a focused inquiry to enable us to take evidence on the origins of and authority for pre-emption and how it is understood in government. It was a surprisingly fascinating exercise. We uncovered historical precedents and significant conventions which had been hidden in layers of obscurity. We discovered government action often depending on agreements drawn up more than 80 years ago, or on historical advice from individual lawyers which had become enshrined as Whitehall “doctrine”.
I must emphasise that we did not find evidence of deliberate constitutional malpractice or a widespread determination to bypass parliamentary process. Rather, we concluded that the rules governing pre-emption are both complex and unclear and that certain so-called conventions and understandings are anachronistic and unfit for the political realities of the 21st century.
There are two separate strands to our report, the first covering the governance controls on pre-emptive activity and expenditure, and I shall address those in my remarks. The second is the very important legal basis for pre-emption, which my noble friend Lord Hart, who is a fellow committee member, will speak to.
A central aspect to our inquiry was the role played by the Treasury in authorising government expenditure before legislation receives Royal Assent. The foundation of this authority is concordat drawn up as long ago as 1932 between the Treasury and the House of Commons Public Accounts Committee, which states that the authority for government expenditure should normally derive from a specific Act of Parliament rather than from any general authority of the annual Appropriation Act. In other words, in the interests of constitutional propriety Parliament must specifically approve expenditure, indicating that it should not normally be incurred before Parliament has approved the expenditure through an Act.
The problems that can arise are well illustrated by the matter that I have already mentioned—the passage of the Health and Social Care Act, when the noble Lord, Lord Owen, among others, raised the question of pre-emptive expenditure and was told that the scale of the expenditure undertaken on NHS reorganisation before the Bill had passed made it practically impossible for the Bill to be abandoned. This effectively meant that Parliament was being told that it could not refuse to pass the legislation. The practical consequences for the NHS, we were told, would have been overwhelming, so the constitutional principle was apparently abandoned.
The Treasury publishes guidance for the Ministers and their departments on pre-emptive public expenditure; this is called Managing Public Money. The guidance states that to incur such expenditure there must be a genuine, urgent need for it and it must be in the public interests. The relevant Bill must have passed Second Reading in the House of Commons and the planned legislation must be certain to become law in the near future. In evidence to us, Mrs Paula Diggle, Treasury officer of accounts and a very senior official, said that the requirements were interpreted by the Treasury as encapsulating parliamentary control over pre-emptive expenditure. She said that the Treasury was the “guardian of Parliament” and ensured that departments did not spend money before appropriate approval had been given. In its written evidence, the Treasury described this as an “ancient convention”. However, the committee concluded that, while the Treasury’s role is important within government, Parliament’s interests over pre-emptive expenditure should primarily be guarded by Parliament itself. Given this, we did not think that it was appropriate to describe the Treasury’s role as a convention in the constitutional sense.
We felt that the same was true for the general understandings about public expenditure being legitimate after a Commons Second Reading had been passed. We found no evidence that Parliament has ever endorsed this practice and, therefore, we felt that it should not be called a constitutional convention.
More significantly, we concluded that there is really no basis for assuming that pre-emptive spending can be justified after Second Reading in the Commons. Of course, a successful Second Reading in another place is usually an indicator that a Bill will become law. However, as your Lordships will be aware, particularly from some recent experiences, a Bill may well still be defeated or significantly amended at a later stage. The Second Reading practice is obviously complicated when a Bill starts in the Lords. We therefore decided that the Second Reading really carries no independent constitutional force.
In our final section, on the political oversight and authority for pre-emption, we concluded that Parliament should be much better informed than it is at present about the details of pre-emptive activity in advance. At the moment, there is no standard procedure and we recommend that a consistent method of explanation and information should be developed, perhaps by way of an Oral Statement during a Bill’s passage or through statements in documents accompanying a Bill. We further recommend that the Government should at the end of each Session produce a Written Statement summarising the pre-emptive activity undertaken across all departments and including the amount spent and the powers under which the Ministers acted. I am grateful that the Government have accepted those recommendations in their written response to us.
Overall, we felt that it would be useful and constitutionally important that the principles and practices covering pre-emption should be consolidated into one authoritative statement, to be included in the next edition of the Cabinet Manual. In their response the Government agreed to revise the relevant guidance in the Treasury document Managing Public Money and to refer to it in the Cabinet Manual.
I emphasise that the committee’s central concern was that at present the rules and understandings used by Ministers are opaque and, in places, inappropriately ancient. This militates against both good public administration and good constitutional practice, even when that constitution is unwritten.
I am grateful to the Government for their written reply to our report and for accepting some of our recommendations. Although their response is positive in tone, I think it is fair to describe some of the replies to our points as somewhat terse. Perhaps the Minister could be slightly more expansive today.
I return to the fundamental point in our report: where pre-emptive activity or expenditure is such that it threatens effective parliamentary scrutiny, it should not be undertaken. It is for Parliament, not the Executive, to decide whether and when to change the law. I look forward to the debate and to the Minister’s reply.
My Lords, I congratulate the noble Baroness, Lady Jay of Paddington, on initiating this debate and the Constitution Committee on producing this timely and important report. In the time available, I wish to make two points. The first is one of clarification. For me, the key quotation in the report is that of Sir Stephen Sedley at paragraph 68, as distinguishing,
“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”.
That is a clear distinction, but it is one somewhat masked by the title of the report. The report states in paragraph 2:
“During this inquiry we have described Government action in anticipation of Parliament passing a bill as the ‘pre-emption of Parliament’”.
For me, “pre-emption” constitutes the second of Sir Stephen Sedley’s categories. It does not encompass both. There is a difference between anticipatory action and pre-emptive action. The first, in some circumstances, may be acceptable. The second is not.
There are no grounds for pre-empting Parliament’s capacity to enact primary legislation. If there is some urgency, it is in the gift of Government to seek all-party agreement to a Bill being passed in the course of 24 or 48 hours. There are various instances where that has occurred. Any claim for pre-emption in the event of a national emergency has in large measure been eliminated by the Civil Contingencies Act.
My second point is on the other aspect, that of anticipatory action. The committee recognises that waiting for a Bill to pass may impose such strict restraint on the Executive as to be inefficient or expensive. This, it says, is widely recognised. The report proceeds on the basis of the acceptance that there is a case for such anticipatory action. It does not seek to challenge it; it is more concerned with the mechanisms by which it is reported and scrutinised.
I fear that I am going to take a more sceptical view. We really need to test the case rather than take it as given. I do not challenge the claim that preparatory work may need to be undertaken by the Government before a law comes into effect. However, we already have a mechanism for that, one that ensures parliamentary approval before action is taken. I refer to commencement orders. Through their use, one does not have to anticipate parliamentary approval. Parliament has already considered the measure and the Minister is acting on the basis of statutory authority in deciding when to bring the provisions into effect. I initiated a debate in November last year on such orders and, in replying to the debate, my noble friend Lord Gardiner of Kimble confirmed that the Government had no plans to change the use of commencement orders.
Given the use of such orders, then, what therefore is the case for anticipatory action by Government? The report cites two activities that could qualify but I am not persuaded by either example. Hiring a project team is something that should await enactment and is the sort of thing that can be undertaken before a provision is commenced. One could sound out the potential members in advance, but that is a different matter, entailing no commitment and no expense. As for scoping inquiries, I am not clear why they would be undertaken after a Bill has been introduced. I would be rather worried if a measure had been drafted before a scoping inquiry was undertaken.
I therefore invite the Minister to explain the case for anticipatory action in the context of my point about commencement orders. It is not sufficient to say that there is a case for taking anticipatory action if that action can be taken following Parliament’s approval of the measure and before the relevant provision is commenced. We need to be far more rigorous in making sure that anticipatory action is undertaken only in truly exceptional circumstances—I look forward to hearing what they are—and that the Government, in reporting these to the House, explain why the action cannot be taken after Royal Assent but can be before the relevant provision is commenced. That at the very least will impose a useful discipline and, I trust, a deterrent.
I very much welcome the committee’s report, shedding light as it does on a largely neglected but important topic. I welcome the Government’s response, but we need to build on what is before us in order to ensure that Parliament is not taken for granted.
My Lords, I too congratulate the noble Baroness, Lady Jay, on securing the debate and the committee on its choice of subject, for many of the reasons raised by the noble Lord, Lord Norton. The report reveals government practices that are indeed obscure. They may be occasional, but if one can determine a pattern then that is very helpful to the House. They are governed by an obscure and complex set of protocols, and when they are described as a convention that sets alarm bells ringing in this House. I found the evidence fascinating and, to borrow the noble Baroness’s term, certainly arcane.
I have two reasons for contributing today. First, I completely agree with the witness who said that this development belonged to the,
“longstanding narrative detailing the sidelining of Parliament by the executive and the perceived decline of Parliament as an institution”.
I take that point. Many years ago I was a clerk in the House of Commons, and from that position I have watched the erosion of parliamentary control, with the distinguished exception of the recent Select Committee system, and it is of profound concern to me. Secondly, at the time when the Public Bodies Bill was passed, I was the chair of English Heritage and therefore I declare an interest in retrospect.
The committee spent a lot of time trying to get to the bottom of the Ram doctrine and dealing with the Treasury assumption of guardianship of Parliament, which is a very counterintuitive concept. The question of how far the Government can go, or how much it can it get away with—I take the noble Baroness’s point that there is nothing very deliberate or malign about this, but there is certainly a behaviour—was asked and answered in many different ways in this report.
Like the noble Lord, Lord Norton, I found that Sir Stephen Sedley made a particularly important clarification between the legitimacy of anticipatory acts and the abuse of power explicit in presumptuous acts. I welcome the distinction that the noble Lord made regarding commencement orders because that gives us an important point to think about.
I read the conclusions of the report with pleasure, particularly that,
“restraint … should apply to all pre-emptive actions, not just those involving expenditure under the new services rules”.
My concern, however, was rather specific. Having been assiduous and read the written evidence, I came across the Treasury’s own written memorandum and—in the Treasury’s own words—the demanding conditions to justify pre-emption that must be met in every respect. Frankly, it is not clear to me how the Public Bodies Act and the Health and Social Care Act ever passed those tests at all. The memorandum describes how the rules apply in practice:
“Proposals to anticipate Royal Assent are always declined where … the bill in question is sufficiently controversial that its passage cannot be assured”.
It goes on to say in detail in paragraph 16:
“There must be little doubt that the legislation will pass substantially unchanged, and in the near future”.
I do not think that there have ever been two Bills presented to this House that fell more resoundingly into this category than the Bills I have mentioned. By no stretch of the imagination could they not have been called controversial. The assumption raises questions: on what basis did the Government make that assumption? Where does consultation fit into this?
As we know, both Bills were notorious because of the lack of consultation. If I may make a personal reference, English Heritage was not threatened with dismantling before Second Reading but we were on death row with all the others, with a deeply uncertain future ahead of us. The first that the public bodies attached to the DCMS knew about the Bill—and there are many, because it is essentially a devolved department—was when we were summoned by the Secretary of State and told about it, and the bare bones were set out. I asked immediately whether there would be consultation, to which the Secretary of State, who was Jeremy Hunt at the time, said, “No”. I said, “Well, how are we going to know?” and he said, “You will be listed in a schedule to the Bill”. That was the extent of consultation.
Likewise, much of the burden of the argument against the NHS Bill was that it controverted a manifesto commitment not to introduce major change—therefore, by definition, there could have been no consultation. The evidence of the Youth Justice Board underlined this point. It said that if consultation had taken place before a decision was finally made, it was just possible that the Government might have changed their mind, so heavy was the burden of contradiction in the evidence. The noble Lord, Lord Beecham, made the same point in his evidence.
The other condition that was identified by the Treasury that was also unmet was that:
“The action proposed must be reversible or retain some use if not confirmed, ie no potentially nugatory commitment of any significance can be entered into”.
I cannot see how that is fulfilled by the Public Bodies Act in relation to the RDAs, for example—and again I cite the noble Lord, Lord Beecham. The Treasury answered that by saying that the public bodies legislation contained wider flexibilities, but it was not so wide that it would have been justified in demolishing without replacement the fundamental character of those bodies. Neither was it true of the NHS Act—and my noble friend has made that point. The argument constantly used against the Opposition was that we were actually making it worse by pursuing opposition that would only add to the chaos of what was already happening on the ground in the NHS. There is a huge leap of logic here, because the argument in the Treasury response was that it enabled the Department of Health to put in place the transition programme, but that programme was necessary only because the Government had sprung a major reform on the NHS that went far beyond its duty of promoting a comprehensive health service. I hope that the Minister will feel able to comment on the memorandum and on how it was applied in those cases.
My point is to strengthen the case, which has already been made in the report, that these two Bills expose the issue raised by pre-emption and the explanations offered for that. The point about the difference between anticipation and presumption fits into that argument. I thought that the summary of conclusions was appropriate and precise, and I agree with it—and I think that the Committee has won some ground from the Treasury over language and process. But, my word, this House needs to be vigilant in future about the operation of this.
My Lords, I should like to congratulate the noble Baroness, Lady Jay, and the committee on producing what I believe to be a notable constitutional report. The response of the Government seems to have recognised its significance although, as the noble Baroness, Lady Jay, said, it was somewhat terse. What is required is a clear statement from the Government not just about pre-emptive public expenditure but about pre-emptive action that bypasses Parliament. They have indicated that they will set out their pre-emptive public expenditure rules in their text, Managing Public Money, and refer to it in the Cabinet Manual, but that does not go quite far enough. The Public Bodies Act has been mentioned several times in the course of this short debate, and I agree with all the points that have been made about that.
It is exceedingly important that Parliament and the Executive are open with each other and that they come together when there is a need for pre-emptive action, make that need explicit and clear and seek to justify it. There is a good deal of uncertainty in the law about the Crown’s common-law powers.
It is fair to argue that if we had to have the Executive enabled by legislation to do absolutely everything, that would impose a huge burden on Parliament and simply not make sense, but with government as immensely powerful as it now is, we have to have a better dialogue. That is what I am so grateful to the committee for having opened up. I believe that we will see real progress and that the power of Parliament to comment on executive action will be enormously enhanced by the recognition of that problem.
My Lords, my little contribution to this debate is almost entirely in an historical vein, but I have one or two preliminary observations. For the best part of two years, I have had the good fortune to be a member of the Constitution Committee. I am extremely grateful to my chairman, the noble Baroness, Lady Jay, and all my colleagues. I am also very conscious of the large debt that is owed to the committee staff, its clerk, policy analyst, administrative assistant and legal advisers. They all serve us quite superbly.
During this inquiry, we learnt about the strict enforcement of unchanging rules laid down long ago under which the Treasury will authorise spending before a Bill becomes law. For me as a historian, the most memorable aspect of that absorbing inquiry was the touching faith in the internal validity and force of the rules displayed in the Treasury’s evidence to us on the grounds of their longevity. The Treasury’s written note to us in January 2013 referred to,
“an ancient convention that the Treasury should strive to look after Parliament’s interest in Whitehall”.
The note went on to refer to the Ram doctrine, adumbrated in November 1945, with which we became extremely familiar during the course of our inquiry as the reformulation in more modern form of “an ancient convention”.
“Ancient” is of course a relative term, but I was struck by the extent to which, in the Treasury’s view, it covers all but the most recent times and provides an apparent justification for a lack of precise answers to historical questions. In the committee’s oral evidence session with Treasury representatives, which took place exactly a year ago on 6 February 2013, it emerged that one of the conventions on which the Treasury has been relying,
“dates back a long way. We have traced something that may be of help. It is from a fat book that is very ancient and yellow, and calls itself the Public Accounts Committee Epitome of Reports”.
The date of that very ancient yellow work? 1884, the year that Gladstone passed the third Reform Act and, as it happened, my grandfather was born. Neither Gladstone’s feet nor my grandfather’s would normally be thought of as having walked in ancient times.
I was left feeling very puzzled by all that. Questions about the origins of ancient conventions that go back no further than the 19th century ought surely to be taken straight to the Treasury’s archives for full, detailed answers. Gladstone, perhaps the greatest of all 19th-century Chancellors, would have insisted on proper record-keeping. It is highly likely that the Treasury’s self-appointed role as the guardian of “Parliament interest in Whitehall” stems from Gladstone’s years as Chancellor in the 1850s and the 1860s—years when, in his own words, he gloried in the name of skinflint, saving the nation’s candle ends. By establishing the Treasury’s firm control over Westminster’s costs at this time he brought down public spending in this country as a proportion of GNP from 10% to 6.4%. The people’s William did not believe in spending the people’s money to create public services for the people.
This rather lengthy historical detour leads to an obvious request of my noble friend the Minister. Could he please check on the state of the Treasury’s archives and, assuming that no misfortune has befallen it, consider issuing a departmental directive that it should be consulted to provide answers to historical points of the kind that were not insignificant in the committee’s inquiry into the pre-emption of Parliament? What emerged clearly from the committee’s consideration of the historical background to the Treasury’s central role since the 19th century is that working habits and practices, which have come to be venerated and hallowed on the grounds of their ancient character have, over the years, mutated into conventions. The committee’s report called for redefinition. It states:
“We accept that the Treasury was not seeking to elevate its internal practices to the status of constitutional conventions. However, clarity in this area is important. We recommend that the Treasury's practices should not be described as ‘conventions’”.
In their very succinct reply to the report the Government stated that they would
“no longer use the term convention to describe these matters”.
That is very satisfactory and other aspects of the Government’s response are also welcomed by us. Not one of the committee’s recommendations has been rejected, although, as has already been pointed out, the acceptance of some was extremely terse. There are reasons for regarding the Government’s response as resembling a heartening outcome for the members of the committee and its excellent staff.
My Lords, I am also a member of your Lordships’ Select Committee on the Constitution, whose report on the pre-emption of Parliament we are debating today. I thank my noble friend Lady Jay for instigating this debate. She has described the ambit of the report and its principal themes.
I simply wish to add a few words on chapter 3 concerning the legal basis of pre-emption in the context of the Crown’s common-law powers, which have been summarised as the power to do things that are ancillary or incidental to the ordinary business of central government. As we shall see, some have argued that the powers go wider than that. The statement of the ministerial powers that has been most frequently relied on by the Government is to be found in a memorandum drafted by Sir Granville Ram—of whom we have already heard from the noble Lord, Lord Lexden—who was then the First Parliamentary Counsel in 1945. However, it was not published until 2003, following a series of Questions by the noble Lord, Lord Lester of Herne Hill.
So, who was Sir Granville Ram? The Dictionary of National Biography states that he was,
“a shortish, bespectacled man with a suspicion of a paunch and a rather misleading air of Pickwickian benevolence … was perhaps less scholarly, and certainly more rumbustious than the typical parliamentary counsel. He usually relied on his assistants to produce the first draft of a bill, before he pulled their work to pieces and comprehensively recast it. His pride in his own legal prose was such that he would repeatedly smother texts with stylistic alterations, some of them trivial. Subordinates, who favoured more functional wording, called him the Maestro behind his back”.
My professional life has often been pre-empted by the Granville Rams of this world, and the memorandum states that a Minister of the Crown is unlike a statutory body, which is a creature of statute and has no powers, except those conferred on it. In contrast, a Minister is not a creature of statute and may, as an agent of the Crown, exercise any powers which the Crown can exercise except those precluded by statute. The memorandum, of course, is an opinion prepared by counsel for his client—in this case, the Government. As such it has no force in law. Furthermore, the majority of our witnesses agreed that, whatever may have been the position in 1945, the memorandum is not an accurate reflection of the common-law powers today. Today, in addition to statutory restraints, Ministers’ ability to exercise common-law powers is constrained by public law, by limitations on government action enforced by judicial review, by human rights law, by the pre-existing rights and significant interests of private persons, and by rules on financial propriety set out in the 1932 concordat and the Treasury guide Managing Public Money.
More troubling to the committee was the statement by the Treasury that there existed a doctrine, derived from the Ram memorandum, enshrined in the proposition that “Ministers can do anything a natural person can do”, which is echoed in the current Cabinet Manual. This was questioned by several of our witnesses, including Sir Stephen Sedley, a retired Lord Justice of Appeal, and Sir Jeffrey Jowell, a distinguished academic. The Attorney-General believed it to be an inaccurate summary because the powers were now constrained by public law, propriety, the rule of law and human rights. Our view, therefore, was that the so-called Ram doctrine was unhelpful, inaccurate and should no longer be used.
We found there to be some disagreement as to the scope of the Crown’s common-law powers. Some, such as the noble Lord, Lord Lester of Herne Hill, said:
“If the Crown has common law as well as statutory or prerogative powers then I agree they are ancillary only and extend to such matters as entering into contracts, paying rents or salaries and conveying property. They do not extend … to enable the Government to pre-empt Parliament’s legislative process, and to contend otherwise would be contrary to the rule of law”.
Others, such as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the Attorney-General, thought that the powers went beyond ancillary powers and were more extensive. Two decisions in the Court of Appeal in 2000 and 2008, referred to in our report, did not satisfactorily resolve the position because there were conflicting obiter dicta from Lord Justice Richards and Lord Justice Carnwath, as he then was.
The true extent of the common-law power of the Crown can be definitively determined only by the courts. Nevertheless, we concluded that although the Crown has common-law powers and is therefore qualitatively different from a statutory body such as local authorities, those powers are constrained and circumscribed by the principles that I have mentioned and are referred to in our report. Accordingly, we recommended that where government publications such as the Cabinet Manual refer to the Crown’s common-law powers, it is made abundantly clear that those powers are limited by the restraints of public law and constitutional principle.
The Government’s response has been to accept that the advice in the Ram memorandum is necessarily incomplete because it pre-dates important developments in public law as well as the Human Rights Act, and they accept that it cannot have the force of law. However, they go on to say that the principle described in the Ram opinion remains valid and that the Crown has common-law powers which may be exercised subject to overarching legal constraints. Interestingly, the current 2013 edition of Managing Public Money does not refer to the Ram memorandum. So matters are still not completely clear and I would welcome the Minister’s detailed response.
My Lords, this Government have a record of pressing on with legislation paying scant attention to the views, for example, of the Joint Committee on Human Rights on draft Bills, Select Committees in the Commons designed to provide a measure of pre-legislative scrutiny or, indeed, the outcomes of what are often short periods of consultation. I coined the phrase “pre-legislative implementation”, now supplanted by the term “pre-emption”, in relation to what happened under the then Public Bodies Bill, where, in what was trumpeted as a bonfire of the quangos, the abolition of regional development agencies was proposed. Despite receiving repeated assurances from the noble Lord, Lord Taylor, whom I acquit of any personal culpability, that there would be consultation and that each case would be considered on its merits, the Government pressed ahead as if the Bill had been enacted, and stripped the RDAs of their staff, budgets and assets without any consultation long before Royal Assent.
The Constitution Committee noted, as we have heard, analogous approaches in relation to the Youth Justice Board and the then Health and Social Care Bill, in respect of which the noble Lord, Lord Owen, observed,
“we should not feed the idea that legislation can reach us but we cannot do anything about it because it has already been pre-empted”.—[Official Report, 8/2/12; col. 261.]
Similar considerations arose over the proposed abolition of the Chief Coroner’s Office, which, like the Youth Justice Board, was ultimately saved.
The most worrying and immediate example of pre-emption is currently in process. It concerns the future of a service with a critical impact on public safety and the lives of those for whom it is responsible—namely, the probation service. The Government are bent on privatising 70% of the work of this service without properly piloting how the new system would work. There is huge concern about the risk to the public of outfits like G4S, Serco and other organisations that purport to be able to deliver almost any public service without prior experience. This is particularly acute as offenders move between risk categories. A binary system for probation is clearly unsatisfactory. The noble Lord, Lord Ramsbotham, and I collaborated in moving amendments to the Offender Rehabilitation Bill, which began its life in this House, without which the matter would never even have been discussed. The amendment requiring any major reorganisation to be approved by Parliament was passed by this House but overturned in the House of Commons. It will no doubt return to us shortly.
The Government, it emerged from the documents, deliberately avoided including their proposals in the Bill precisely because of the opposition that they knew would be engendered. They simply ignored the concerns and pressed on with this massive reorganisation—or should I say fragmentation?—of a service with a demonstrable record of achievement, recognised by a national award. They continue to do so now, even though their timetable has slipped beyond the recklessly adopted target date of, appropriately enough, 1 April, and they do so under the cover of a misrepresentation of which the Lord Chancellor should be ashamed. He makes much of the reoffending rate of prisoners released after serving short sentences as if this were something for which the probation service were responsible whereas, as he must know, the service has no responsibility for those offenders. This is the latest and most egregious example of a Government overreaching themselves and treating Parliament with contempt. If the Government get their way with this issue, they will be signing a blank cheque in their own favour, enabling them to act first and legislate afterwards, if at all.
The Government’s response to the report from the Constitution Committee is surely unsatisfactory. While they accept the committee’s advice in principle, they merely note its conclusion that it should be recognised that Parliament’s interests are primarily guarded by Parliament itself, rather than being assumed by the Treasury. Why did the Government not accept, rather than merely “note”, the committee’s recommendation? Will the Minister now say that they accept the recommendation?
For that matter, why has the noble Lord, Lord Deighton, who is much respected across this House, been given—or perhaps drawn—the short straw of having to reply to this debate as if it were a Treasury matter? It is not. As noble Lords have said, it is a constitutional matter going well beyond the remit of one individual department. Will the Government seek Parliament’s endorsement for the guidance that they propose to issue? That would be one test of the seriousness with which they take this very valuable report.
The Government adheres stubbornly to the advice of the Ram opinion, which emerged shortly after I was born in early 1945—not quite as ancient as those referred to by the noble Lord, Lord Lexden, but, I feel, getting on for that. However, the Government take the view that,
“the Crown does have common law powers which may be exercised subject to overarching legal constraints”,
as my noble friend has just pointed out. However, surely the question is not whether the Government can legally fall back on an ancient principle but whether it is right and reasonable to do so.
The Government merely note the committee’s central conclusion—that,
“the principle of restraint in the name of good constitutional practice should apply to all pre-emptive actions, not just those involving expenditure”.
The Government adopt the same stance in relation to the committee’s ringing assertion that:
“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”.
It was a leading Conservative, Viscount Hailsham, who warned of the dangers of an elective dictatorship. It would appear that a Conservative-led Government are ready to ignore that warning whenever it suits them to do so.
I thank all noble Lords for their contributions today and in particular the members of the Select Committee on the Constitution for their extremely thorough report and the airing that it has brought to these very important issues. I have found the discussion that we have just had extremely interesting. I learnt a lot. I am not a lawyer; I had never heard of the Ram doctrine or Sir Greville Ram before I was briefed for this opportunity to take the short straw and respond on behalf of the Government. I am a lot smarter now than I was 45 minutes ago.
For reasons of time, I may not be able to respond to all the individual issues that have been raised but I will try to cover the key aspects of the Government’s response, answer some of the broad concerns raised today and lay out the steps that the Government are taking to address them. I start by stressing that the pre-emption of parliamentary assent is an area that the Government take seriously, and Her Majesty’s Treasury polices it strongly. We were pleased to note, and I thank the noble Baroness, Lady Jay, for pointing this out, that the inquiry revealed no widespread use of pre-emption that went against constitutional principles. As the report says, the Treasury does not allow expenditure on new policies until after Second Reading in another place, and then only in very limited circumstances, including there being an urgent public interest to do so. The Treasury has strict criteria to determine whether an area of proposed expenditure is urgent and in the public interest. Although value for money is important, regularity, propriety and Parliament’s wishes are key and fully respected.
Many noble Lords will have seen the written government response. The noble Baroness, Lady Jay, is right that it is terse, but it is positive. I will be a little more expansive, but my experience of watching Ministers being too expansive gives me some warning. Several of the recommendations in the report that have been mentioned have already been taken on board, and I shall run through a few to illustrate this because it is important to look at the changes that we have made. For me, the most critical thing about what the committee’s findings bring to light is the importance of transparency and codification. Those two go together because the codification is part of what allows for the transparency, and of course it is the transparency—the noble Lord, Lord Maclennan, referred to the dialogue—that allows us all to determine whether the judgments being made are appropriate, given all the circumstances. So although our response is terse, it accepts the need for that codification and transparency, and everything else follows from that.
To list some of the things that we have done, we accept that Ministers should always make clear when pre-emption is intended—where possible, orally at Second Reading but, failing that, in a Written Ministerial Statement; Written Ministerial Statements are always made before a contingency fund advance is permitted, which, as noble Lords know, is how pre-emption is funded; and the Government will publish an annual summary at the end of the parliamentary Session of when pre-emption has taken place during the period. I can tell the Committee that in the current parliamentary Session there have been three instances where spend was permitted in advance of Royal Assent. Two of those were in advance of the Energy Act that received Royal Asset on 18 December 2013, and one advance relates to the Pension Bill, where Royal Assent is planned for April 2014.
The main guidance to departments on the pre-emption of Parliament—or “new services”, in the Treasury’s parlance—is a publication that has been referred to, called Managing Public Money. I can say from my own 14-month experience in the Treasury that there is no duty or activity that is taken more seriously than the control that the Treasury imposes on individual departments. That is a very strongly exercised function. That publication, as has been referred to, was updated in July 2013 in line with the recommendations in the report. We removed the references to the Second Reading conventions—we have stopped calling things conventions that, as noble Lords have pointed out, actually are not—and, to the relief of many noble Lords here, we have also taken out any reference to the Ram doctrine.
The Cabinet Manual also uses these terms but again, consistent with the report’s recommendations, the Cabinet Office will take those views on board when it next reviews the guidance. The Treasury is also going to issue an update to the detailed annexe on new services in the near future to be clearer about the very limited scope for pre-empting Parliament.
The only specific recommendation that the Government are not intending to act on is the proposal that there should be a Written Ministerial Statement at the end of each parliamentary Session listing all ministerial directions made across Government. That is because this information is already published in all departments’ annual accounts and further publication is not considered necessary. However, by way of information, there have been no ministerial directions during the life of the current Government. The Government appreciate that the accounting officer of a department could potentially seek a direction from the Minister if pushed to pre-empt Parliament. However, this is really a signal that further discussion is needed to find a practical and appropriate way through. As noble Lords will be aware, directions are always a last resort.
I shall dip a little further into the detail of some of the issues that noble Lords referred to. The noble Baronesses, Lady Jay and Lady Andrews, referred to the disquiet caused in the cases of both the Health and Social Care Act and the Public Bodies Act. I did my research on these because I understood that that was what had prompted the committee to have a look at this issue. The essence of the Government’s position was that they already had the powers to effect the changes that were put in place. That is why there was no need to call on the contingency fund. The Government were essentially relying on their existing powers to cause those reorganisations.
In the case of the Health and Social Care Act, the Secretary of State for Health has broad duties and wide powers under existing legislation, including the National Health Service Act 2006, which confers a duty to promote a comprehensive health service and allows public expenditure to do so. That enabled the Department of Health to put in place the transition programme, which included setting up clinical commissioning groups, closing down primary care trusts and so on. The savings that the programme is designed to deliver would have been wanted irrespective of the organisation of the NHS to meet the requirements of the spending review.
In the case of the Public Bodies Act, to which a number of noble Lords referred—clearly this was a controversial subject at the time, so I understand their reaction—each of the bodies involved had a bespoke set of duties and responsibilities appropriate to its functions. The powers that they already had left considerable discretion about exactly how the functions should be discharged, which allowed for some reorganisation ahead of Royal Assent. That was the basis on which those actions took place.
The noble Lord, Lord Norton, talked about commencement orders. This is not my particular area of expertise but, as I understand it, it is a timing question, because commencement orders cannot be put until Royal Assent has been given, so it does not help with anticipation.
For clarification, it may be worth my running through the criteria that the Treasury applies to determine whether an action is urgent and in the public interest. The reason why the test would be met is that otherwise there would be an increase in implementation costs, efficiency savings would be lost or it would be detrimental to the public. Ministerial or policy imperative is not a relevant criterion in securing a contingencies fund advance.
A lot of the discussion was around pre-emptive action rather than pre-emptive expenditure. I agree that this is a difficult issue, which is why transparency and scrutiny are so important. In the vast majority of cases, though, pre-emptive actions will require a financial element, which is why Managing Public Money and the Treasury’s watchdog approach are a substantial defence, although I agree that that cannot work in absolutely every case.
The noble Lord, Lord Hart, was far more eloquent about the Ram doctrine than I could possibly be. I can tell the Committee that we have removed reference to it. The Treasury and the Government absolutely accept that the actions of a Minister are constrained by public law, human rights law and so on, as the noble Lord pointed out. It is the balance that really counts.
To sum up, the Government take controlling the pre-emption of Parliament extremely seriously. We are grateful that noble Lords have shown such an interest in this area and shed such light on it. I think that the changes that will result will make us a better Government. We have looked again at our guidance and modified it, and we are satisfied that we are operating a robust system.