Peers have warned the government to stop relying on a 1945 memorandum to give legal justification for acting in ways that pre-empt parliament.
In a report critical of the current government’s behaviour, the House of Lords Constitution Committee says the so-called ‘Ram doctrine’ is ‘misleading and inaccurate, and should no longer be used’.
The doctrine holds that ministers enjoy the common law right to ‘exercise any powers which the Crown has power to exercise’, except where prevented by statute.
However the committee’s report, The pre-emption of Parliament, says the 1945 memorandum on which the doctrine is based is merely a legal opinion which does not reflect the law today.
It notes examples of recent government decisions that pre-empt parliament. The government began to reorganise NHS primary care trusts while the enabling legislation, the Health and Social Care Bill, was going through the House of Lords.
Likewise, reorganisation work began on the Youth Justice Board and the Office of the Chief Coroner before the Public Bodies Act 2011 was enacted.
While ‘the interests of efficient and cost-effective public administration’ may require a government to carry out work in anticipation of a bill becoming law, the report warns that ministers must always state clearly the power under which they consider themselves authorised to act.
It also calls on the government to do more to inform parliament of pre-emptive activities.