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Government should explain "pre-empting Parliament" acts: Lords

1 May 2013

The Government should do more to inform Parliament when ministers propose to take action ahead of the legislation that would make that action legal, the House of Lords Constitution Committee says in a report published today.

It calls on ministers who want to carry out such “pre-empting Parliament” acts to set out what they want to do, why and under what powers, in a statement made to Parliament.

The committee also says the Government should publish a full list of instances where they pre-empted Parliament at the end of each parliamentary session.

Cases where the Government was seen to have pre-empted Parliament include the reorganisation of primary care trusts into management clusters before the Health and Social Care Act 2012 become law; and public bodies such as the Youth Justice Board and regional development agencies that were proposed for abolition in the Public Bodies Bill beginning to wind up their operations before the Bill passed through Parliament.

Stressing that pre-emption should not take place when it might threaten the principle of effective parliamentary scrutiny, the committee calls on the Government to consolidate the principles and practices governing pre-emption and restate them clearly in the Cabinet Manual.

While there are a number of conventions relating to the pre-emption of Parliament, including the “second reading convention” – that some action based on legislative proposals can be undertaken after a bill has had second reading in the House of Commons – the peers make clear that this practice has not been endorsed by Parliament and does not carry any independent constitutional force. They also question the extent of the powers to act at common law sometimes claimed by Government.

Baroness Jay of Paddington, who chairs the Constitution Committee, commented: “There seems to be a lot of confusion about when the Government are entitled to pre-empt Parliament and what the impact of that is.

“It is important that where the Government are seeking to pre-empt Parliament, they make clear to members of both Houses and the public why they are doing so and the powers they are using. We think that ministers should do more to inform Parliament about executive action taken in anticipation of a bill becoming law.

“Recently, proposals to abolish the Youth Justice Board were dropped as the Public Bodies Bill made its way through Parliament. This presented the organisation with significant problems in getting back to normal working practices and recruitment, as it had planned to be wound up. Pre-emption can have a serious impact on a wide range of organisations. It should be approached with caution and, when undertaken, there should be greater transparency.”

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