Pre-emption of Parliament: Constitution Committee Report

Baroness Andrews Excerpts

Thursday 6th February 2014 Grand Committee

[Baroness Andrews (Lab)]

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.