Pre-emption of Parliament: Constitution Committee Report

Lord Norton of Louth Excerpts

Thursday 6th February 2014 Grand Committee

[Lord Norton of Louth (Con)]

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.