My Lords, I have tabled Amendment 97 for two reasons. First, it is to ask for an assurance from the Minister that the procurement review unit will be set up, and secondly, it is to put down a strong marker on the reasons that the Minister’s department presented for attempting to exclude my amendment as constitutionally improper.
The Minister will recall that, in the responses to the Green Paper, there was a warm and widespread welcome to the proposal that an autonomous unit should be set up within the Cabinet Office to oversee contracting authority compliance with the new procurement rules and so help to realise the benefits intended from the transformation of public procurement legislation. In turn, the Government’s response gave a clear commitment to set up what it now labelled the procurement review unit. This is not in the Bill, however. Therefore, will the Minister Pepper v Hart that commitment, so to speak, by stating in the House that this remains the Government’s clear intention, and that during the passage of the Bill an effective PRU will be established, along the lines indicated by the Government’s response to the consultation?
On the second issue, the slide presentation to the briefing given to Peers on the PRU between Committee and Report, which I was unfortunately unable to attend, stated that the principle of indivisibility of the Crown means providing statutory powers to Ministers whereby they can direct action to be taken by central government departments—in other words, another part of the Crown—and is not usually provided for in legislation. To do so also risks fettering the non-statutory powers Ministers already hold.
I had not previously heard the principle of the indivisibility of the Crown, nor that this principle inhibited Parliament from including specific instructions
to Ministers in legislation. It is, after all, an assertion of prerogative—executive sovereignty against parliamentary sovereignty—although oddly qualified by including the adjective “usually” in its attempted exclusion of legislation.
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Under Boris Johnson as Prime Minister, we suffered a number of attempts to assert executive authority against parliamentary sovereignty, but I and others had hoped that, under Prime Minister Sunak, we might return to a better observance of our constitution’s constraints and conventions. I therefore consulted a number of experts and the Lords Library. I was struck by the puzzlement on the face of a senior clerk when I asked how familiar he was with this principle—a puzzlement that increased when he was unable to find any reference to it in the volume on public law that he then consulted. The noble Lord, Lord Lisvane, told me that this is a doctrine “of some antiquity” and that he had not previously come across any occasion when it had been cited as a reason for resisting an amendment. He referred me to an article in the Cambridge Law Journal of 2018 which firmly states:
“The … doctrine … must be abandoned—the Crown is plural and divisible”.
The Library pointed me to a government paper, presented to a Commons Select Committee in 2003, which stated:
“It is long established law that Parliament can override and displace the prerogative by statute.”
The Minister’s written reply to my questioning of the relevance of this principle nevertheless stated that
“Ministers hold non-statutory powers of authority derived from common ways of working and according to the hierarchy of government … The award of powers in legislation for oversight purposes could challenge that common authority.”
I will not detain the House with further references to treatment of this issue in Supreme Court and Law Lords cases, beyond adding that the noble and learned Lords, Lord Mance and Lord Scott, once disagreed in a case on whether this principle was still applicable, and that the court’s conclusions in Miller 1 in 2017 seemed to be definitive. It therefore seems appropriate for me to bring this to the attention of the House’s Constitution Committee for further consideration.
I remind the Minister that page 48 of the Conservative manifesto in the last election pledged to set up a constitution, democracy and rights commission and specified:
“After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts
and
“the functioning of the Royal Prerogative”.
That is only one of the many pledges that have now been broken.
I do not expect the Minister to accept my dismissal of the relevance of this arcane, antiquated constitutional doctrine, but I hope that the House and outside constitutional experts, on further consideration, will unite in rejecting this attempt to limit parliamentary sovereignty over the Executive.