Government pre-emption of Parliament

The Lords’ Select Committee on the Constitution, just before prorogation, finished its report on pre-emption of Parliament. This is where government ministers incur costs and make changes to legally established bodies in anticipation of the bill that authorises them becoming law. It’s an interesting (albeit wonkish) subject, where the practice of centuries finally has some decent light shone onto it for the first time. Many current and former Cabinet ministers hadn’t heard of the so-called Ram doctrine or the 1932 concordat which underpinned the practice of the government in pre-emption, and one senior Treasury official memorably said he’d heard of the Ram doctrine only once, back in the 1980s – when his superiors asked him to find out what it was!

The report is worth reading in its entirety and is illuminating on subjects like the scope of the Common Law powers of the Crown, the Treasury’s supposed ancient status as guardian of Parliament*, and some of the assumed ‘conventions’ underpinning ministerial powers.

Essentially, the report pulls the rug out from under Whitehall’s feet on the assumption of parliamentary consent after second reading in the Commons, and recommends much more parliamentary scrutiny of individual acts of pre-emption and clarity on where the power to pre-empt Parliament comes from in each case**.

Once I get a chance, I’m going to see if there’s anything out there on pre-emption practices in other parliaments.

EDIT: Well, I couldn’t resist a quick check. This very useful document suggests that Australia’s appropriations system is much tighter than the UK’s and doesn’t allow for this kind of pre-emption, but I’m awaiting confirmation that there are no exceptions not covered in the document.

*For which precisely no documentary evidence can be found before an 1884 Public Accounts Committee report.

**Interestingly, any expenditure incurred could, in theory, be justified under the Supply and Appropriation Acts but in deference to constitutional propriety generally won’t – because it’s hardly rigorous Parliamentary scrutiny of spending if they do.

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