LORDS

Pre-emption of Parliament

The Committee is conducting an inquiry into the Government taking action in anticipation of Parliament passing a bill.

It is a well-known constitutional principle that Parliament makes laws, and the Government executes those laws. Strictly read, this might imply that the Government should take no action on a bill unless and until it has received the Royal Assent. However, it is generally recognised that, in the interests of effective administration, the Government should be able to undertake some preparatory work in advance of a bill’s enactment.

The extent to which the Government ought to pre-empt Parliament by undertaking preparatory work is a matter of constitutional importance.

The Committee would welcome written submissions on any aspect of this topic, and particularly on the following questions:

Overview: the constitutional framework

  • To what extent is it constitutionally and legally appropriate for the Government to use its pre-existing powers to act in anticipation of the enactment of bills?
  • Are conventions a suitable mechanism for regulating government action or expenditure in advance of legislation? If not, what is the most appropriate alternative?

Government expenditure in advance of legislation

  • Are the Government correct to assert the existence of a “second reading convention” whereby expenditure on preparatory work may be incurred once a bill has been given its second reading by the House of Commons? If so, what is the content of this convention?
  • If the convention exists, is it properly observed by the Government?
  • Is it appropriate for the Government to regard Commons second reading as granting a sufficient parliamentary mandate for expenditure? Is this properly understood and taken into consideration by the House of Commons during second reading debates?
  • What is the situation as regards the House of Lords? What about bills that start in the Lords (such as the Public Bodies Bill)?
  • Are there other conventions, either in existence or developing, in the area of government expenditure or action in advance of legislation?

Organisational change in advance of legislation

  • In what circumstances is it appropriate for the Government to change the structure of an organisation in the expectation that legislation will be passed?
  • Where organisational change is appropriate, what degree of change should be permitted? Are there any particular types of organisational alteration that should never be undertaken in advance of legislation?

An invitation for written submissions to this inquiry was published on 13 December 2012. The deadline for submissions is Friday 18 January 2013.

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