§ Lord Lester of Herne Hillasked Her Majesty's Government:
Whether they consider it to be in accordance with contemporary principles of British parliamentary democracy for legislation to be necessary (in a political, if not a legal sense) to authorise an extension of Ministers' powers; and, if not, why not; and [HL1275]
Further to the Written Answer by Baroness Scotland of Asthal on 22 January (WA 98), whether reliance on the so-called Ram doctrine is compatible with a modern system of public law, including the principles of legality and legal certainty; and, if so, how; and [HL1302]
In what circumstances and upon how many occasions during the past five years Ministers of the Crown and their departments have relied upon the Ram doctrine as the legal basis for the exercise of their public powers; and [HL1598]
What were the circumstances that gave rise to the Ram doctrine. [HL1599]
§ The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal)The Ram doctrine reflects a well-established principle of constitutional law. Like many other persons, Ministers and their departments have common law powers which derive from the Crown's status as a corporation sole. Ministers and their departments also exercise prerogative powers of the Crown. Common law and prerogative powers may he limited by statute either expressly or by necessary implication and in this respect are subject to direct parliamentary control. The courts have recognised the legitimacy of these principles.
Whether legislation is necessary or appropriate to authorise government actions depends on the circumstances and the matters in issue. Sometimes it 13WA will be clear that legislation is needed, for example, when the proposed action might substantially interfere with human rights. In such cases a clear and reasonably accessible legal framework is required in order to comply with human rights law. At other times, the legal necessity for legislation will not be clear, in which case a political as well as a legal judgment has to be made as to whether legislation is desirable. Such a judgment may take into account a number of factors, including whether the proposed action is a priority and whether authorising that action by legislating represents a good use of Parliamentary time.
The principles governing the use of the annual Appropriation Act to provide authority for the exercise of functions by government departments where such functions may involve financial liabilities extending beyond a year are stated in the Public Accounts Committee Concordant, 1932 (see Annex 2.1 of Government Accounting 2000).
During the past five years, as in previous periods, the common law powers of the Crown have often been relied upon as the legal basis for government action. Common law powers form the basis of such governmental actions as entering into contracts, employing staff, conveying property and other management functions not provided for by statute either expressly or by implication. To require parliamentary authority for every exercise of the common law powers exercisable by the Crown either would impose upon Parliament an impossible burden or produce legislation in terms that simply reproduced the common law.
Finally, the circumstances that gave rise to the Ram doctrine are that the Ram opinion (the text of which was made available when an earlier Question [HL595] was answered on 22 January 2003) was given when the Ministers of the Crown (Transfer of Functions) Bill was being considered. This Bill later became the Ministers of the Crown (Transfer of Functions) Act 1946. The opinion addresses the need for legislation to confer power to add new functions to exisiting government departments by order. At that time Ministers were considering machinery of government changes following the Second World War.