§ Lord Lester of Herne Hillasked Her Majesty's Government:
Further to the Written Answer by Baroness Scotland of Asthal on 25 February (WA 12–13), whether the courts have recognised the legitimacy of the principles stated in the second paragraph of the Answer; and, if so, whether they will identify the reported cases in respect of each principle; and [HL1890]
Further to the Written Answer by Baroness Scotland of Asthal on 25 February (WA 12–13), whether the reference to "human rights law" includes the obligations imposed upon the United Kingdom by international treaties other than the European Convention on Human Rights, including the International Covenant on Civil and Political Rights, the International Covenant on Economic Social and Cultural Rights and the International Labour Organisation Conventions; and, if not, why not; and [HL1891]
Further to the Written Answer by Baroness Scotland of Asthal on 25 February (WA 12–13), what criteria are used, in cases not involving the need to comply with human rights law, to decide whether there is legal need for legislation to authorise an extension of Ministers' powers; and [HL1892]
Further to the Written Answer by Baroness Scotland of Asthal on 25 February (WA 12–13), whether they consider that the common law principles of legality and legal certainty extend beyond circumstances where proposed action might substantially interfere with human rights; and if so, what are those circumstances; and [HL1893]
Further to the Written Answer by Baroness Scotland of Asthal on 25 February (WA 12–13), what were the instances during the past five years in which they decided that legislation was undesirable to authorise an extension of Ministers' powers; and [HL1894]
Further to the Written Answer by Baroness Scotland of Asthal on 25 February (WA 12–13), which powers of Ministers have been extended without legislative authority during the past five years. [HL1895]
§ Baroness Scotland of AsthalMinisters can act only within the law. It follows that an extension of ministerial power will always require legislation (or, conceivably, a change in the common law). Legislation will also be necessary where what is proposed requires60WA not only the exercise of powers but also, for example, the imposition of legal obligations, the creation of offences, or the raising of taxes.
If, however, it is proposed that Ministers exercise powers that are already available at common law to private individuals, or to the Crown by virtue of the prerogative, there is no legal requirement for legislation.
The case for putting existing powers onto a statutory footing will therefore depend not on strict law but on the matters of convention, good governance and practicality discussed in the previous Answer. These include the considerations of propriety addressed by the Public Accounts Committee Concordat mentioned in that Answer. They include also the principles of legal certainty, accessibility and clarity, which the Government regard as important in their own right, quite apart from human rights considerations.
In considering the possibility of legislation, the Governnment indeed have in mind all their international treaty obligations. As well as the European Convention on Human Rights, these include the International Covenant on Civil and Political Rights, the International Covenant on Economic Social and Cultural Rights and the International Labour Organisation Conventions.
The use of non-statutory powers was discusssed by the House of Lords in the Fire Brigade Union case [1995] 2 AC 513. The Ram doctrine is being considered by the Court of Appeal in a current case, R ( Hooper ) v Secretary of State for Work and Pensions.