Pre-emption of Parliament: Constitution Committee Report

Lord Beecham Excerpts

Thursday 6th February 2014 Grand Committee

[Lord Beecham (Lab)]

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.