Pre-emption of Parliament: Constitution Committee Report

Lord Hart of Chilton Excerpts

Thursday 6th February 2014 Grand Committee

[Lord Hart of Chilton (Lab)]

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.