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If the Department of Health want the nurses to terminate a pregnancy, the Minister should
go to Parliament and get the statute altered. He should ask them to amend it by adding the
words ˜or by a suitably qualified person in accordance with the written instructions of a reg-
istered medical practitioner™. I doubt whether Parliament would accept the amendment. It
is too controversial. At any rate, that is the way to amend the law: and not by means of a
departmental circular.

The House of Lords by a majority allowed an appeal by the Department and
restored the ruling of Woolf J. The procedure approved by the Circular was
held to be in conformity with the requirement of the Abortion Act, which was
that a registered medical practitioner should accept responsibility for all
stages of the treatment. Parts of the treatment could properly be carried out,
in accordance with established medical practice, by nursing sta¬ under his
instructions.
(See also Gillick v West Norfolk and Wisbech Area Health Authority [1986]
AC 112; R v Secretary of State for the Environment, ex p Greenwich London
Borough Council [1989] COD 530; R v Secretary of State for Health, ex p P¬zer Ltd
[1999] Lloyd™s Rep Med 289; R (Axon) v Secretary of State for Health [2006]
EWHC 37 (Admin); Karen Yeung [2006] CLJ 53, 74“83; J Beatson in C Forsyth
and I Hare (eds), The Golden Metwand and the Crooked Cord (1998), pp 235“43.)


(g) Voluntary agreement and self-regulation
The agreements to be considered here include both legally enforceable contracts
(to which the government, like a private individual, may be a party), and agree-
ments not intended to have legal consequences, and perhaps also lacking the
element of ˜bargain™ or consideration necessary for a binding contract, which
the government may make with either public bodies or private organisations.
˜Voluntary agreement™ provides another mechanism for achieving governmen-
tal objectives, and one that is in some circumstances preferable from the gov-
ernment™s point of view to legislation. Anthony Barker has written (in D Hague
et al (eds), Public Policy and Private Interests (1975), p 354):

In advanced industrial nations, the official and legal systems increasingly interpenetrate with
the economic and social systems. So, ˜government™ is expected to take some kind of ˜respon-
sibility™ for almost everything that is wanted, or needed, or is thought to have gone wrong.
This has created a vast public demand for ˜government responsibility™ of some kind in
almost every significant walk of the nation™s life: protecting the customer, defending the
environment and regulating business relationships. Yet even the largest and most interven-
tionist government machine cannot do everything itself. Because it controls the state and
can make laws, the government obviously has the means of offering semi-official status
to private groups and interests, who are willing and able to enter into a constructive
relationship.
485 The powers of government


If the government wishes to see the adoption of new or improved standards
or practices in a trade, industry or profession, it can sometimes achieve this by
negotiating a scheme of self-regulation with the appropriate traders™, manufac-
turers™ or professional organisation. A code of practice or set of rules agreed to
and supervised by the organisation may bring about the desired result, when a
legislative scheme would, perhaps, be controversial or di¬cult to administer.
Codes of practice or similar arrangements have been negotiated by govern-
ment departments with, among others, the Confederation of British Industry
and other business organisations (prompt payment of bills submitted by small
¬rms); the Trades Union Congress (employees™ rights to contract out of the
political levy); the Society of Motor Manufacturers and Traders (action on
vehicle defects a¬ecting safety); the Association of the British Pharmaceutical
Industry (advertising practice); the Brewers™ Society (tenancies and rents in the
licensed trade); the Association of British Insurers (use by insurance companies
of genetic information about persons seeking insurance); principal industrial
users of hydro¬‚uorocarbons (reduction of hydro¬‚uorocarbon emissions to the
atmosphere); and the industry biotechnology body SCIMAC (postponement of
commercial growing of genetically modi¬ed crops pending evaluation). A
notable instance is the agreement between the government and the Association
of British Insurers (revised in 2005) by which the Association, in return for
speci¬c Government commitments to increased expenditure on ¬‚ood manage-
ment and on measures to reduce the risk of ¬‚ooding, acceded to a ˜Statement
of Principles™ designed to ensure the continued availability of ¬‚ood insurance.
(See HC Deb vol 439, cols 33“5 WS, 11 November 2005.)
A well known instance of this mode of regulation was the agreement of 1977,
afterwards renegotiated and renewed from time to time, between the Health
Ministers and the tobacco industry, represented by the Tobacco Manufacturers™
Association and the Imported Tobacco Products Advisory Council, on tobacco
advertising. The Conference of Medical Royal Colleges, among others, called for
legislative controls, but the Secretary of State for Social Services said in the
House of Commons on 9 May 1980 (HC Deb vol 984, col 783):


[I]t has been the view of successive Governments that they should seek to achieve their
health objectives by voluntary agreement. . . . In other words, this is a field where our
tradition of proceeding by persuasion and consent rather than legislation and compulsion has
a great deal to commend it. It would be wrong to force sudden abrupt changes on an industry
on which tens of thousands of families depend. So long as progress by agreement is possible,
it would be wrong to introduce legislation, for instance on advertising, although no
Government could rule that out for all time.


In 2002 the Labour Government gave its support to a private member™s bill,
introduced in the House of Lords, providing for the prohibition of advertising
and promotion of tobacco products. The bill was passed by the Lords and was
486 British Government and the Constitution


then taken over by the Government for its passage through the House of
Commons, to become the Tobacco Advertising and Promotion Act 2002.
Provision for compensation of the victims of uninsured drivers is made by
the terms of an agreement of 1999 between the Secretary of State for the
Environment, Transport and the Regions and the Motor Insurers™ Bureau
(replacing an agreement of 1988; the original agreement was made in 1946). A
separate agreement provides for the compensation of victims of untraced
drivers. Lord Denning has described these agreements as being ˜as important as
any statute™ (Hardy v Motor Insurers™ Bureau [1964] 2 QB 745, 757).
In some instances there is a statutory basis for the adoption of voluntary
codes of practice: an important example is section 8 of the Enterprise Act 2002,
which empowers the O¬ce of Fair Trading, as part of its general function of
promoting good practice in activities a¬ecting the interests of consumers, to
make arrangements to approve consumer codes produced by suppliers of goods
or services. It was said of such codes (then prepared under earlier legislation)
that they were ˜intended to supplement the requirements of the law by obtain-
ing the agreement of trade associations on behalf of their members to raise their
standards of trading™ (Borrie, ˜Laws and codes for consumers™ [1980] Journal of
Business Law 315, 322).
In the regulation of commercial institutions concentrated in the City of
London, governments have been inclined to favour persuasion rather than
compulsion and have fostered the establishment of self-regulatory agencies,
such as the Panel on Takeovers and Mergers (set up in 1968): see R v Panel on
Take-overs and Mergers, ex p Data¬n Plc [1987] QB 815, 825. (The Companies
Act 2006 has adopted a fundamentally di¬erent approach in placing takeover
regulation in a statutory framework, empowering the Takeover Panel to make
rules for the regulation of takeovers.) The government™s former preference for
voluntary agreement and self-regulation in dealing with City institutions was
shown by events of July 1983. The Director General of Fair Trading had referred
the rule book of the Stock Exchange to the Restrictive Practices Court, for a
determination of its compatibility with the public interest. The Secretary of
State for Trade and Industry intervened, and reached an agreement with the
Council of the Stock Exchange. In return for the termination of the proceedings
before the court and the exemption of the Stock Exchange from the restrictive
trade practices legislation, the Council undertook to make certain changes in its
structure and rules. (In particular, minimum scales of commission would be
phased out.) The Government performed its side of the bargain by securing the
passage of the Restrictive Trade Practices (Stock Exchange) Act 1984, which
exempted rules and regulations of the Stock Exchange from the Restrictive
Trade Practices Act 1976 and formally terminated the proceedings already
begun in the Restrictive Practices Court. Arrangements were made for the Bank
of England and the Government to monitor the implementation by the Stock
Exchange of the changes to which it had agreed. (See Graham Zellick™s com-
ments on this episode: ˜Government beyond law™ [1985] PL 283, 291“3.) The
487 The powers of government


Financial Services Act 1986 established a supervisory system for the investment
industry which was based on rule-making by self-regulatory organisations, but
the complexity and failures of ¬nancial self-regulation induced the Govern-
ment to introduce legislation to provide for a new, uni¬ed system of regulation
by a single public body, the Financial Services Authority. Under the Financial
Services and Markets Act 2000 the Authority exercises the former regulatory
responsibilities of three self-regulating organisations, the Bank of England, and
a number of other bodies such as the Building Societies Commission.
When self-regulation fails, recourse to legislation is likely. To give three
example: ¬rst, governments were for long unwilling to introduce legislation to
resolve the di¬culties caused to small businesses by delayed payment of debts
by large ¬rms and instead attempted to foster prompt payment by means of a
code of practice agreed with the Confederation of British Industry and other
business organisations. The code having had little e¬ect, the Government
resorted to legislation in the Late Payment of Commercial Debts (Interest) Act
1998, giving suppliers a right to claim interest on late payment of commercial
debt. Secondly, the private security industry was for many years left to regulate
itself through its trade association and inspectorate organisation, but self-
regulation was only partially e¬ective and a statutory regime was introduced by
the Private Security Industry Act 2001. Thirdly, the Government was in favour
of self-regulation by the electronic communications industry but took the
precaution of making anticipatory provision for statutory regulation in Part I
of the Electronic Communications Act 2000. This Part of the Act was to lapse
at the end of ¬ve years from royal assent unless an order should be made to bring
it into force, in the event that the industry™s self-regulatory scheme had not
worked satisfactorily. (No such order was made and Part I accordingly lapsed in
2005.) A similar conditional arrangement was made in 2005 for self-regulation
of voluntary sector fund-raising, the Secretary of State reserving power in the
Charities Act 2006 to impose statutory regulation if self-regulation proves
ine¬ective.
On grounds of democratic principle governments have refrained from seeking
to regulate the conduct of the press, preferring to support self-regulation by the
newspaper and magazine industry through the code of practice and complaints
machinery of the Press Complaints Commission, a body established by the
industry itself. The prevention of malpractice in advertising also depends largely
on self-regulation. The Advertising Standards Authority, an independent body
set up by the advertising industry, monitors observance of advertising codes of
practice drawn up by the industry and adjudicates on complaints of breaches of
the codes.
Voluntary agreement, it has been said, can be ˜a more cost-e¬ective instru-
ment™ for the government than legislation, and its basis in consent may provide
a better prospect than the use of law and sanctions for gaining the government™s
ends (Baggott, ˜By voluntary agreement: the politics of instrument selection™
(1986) 64 Pub Adm 51). Agreed codes of practice and similar arrangements can
488 British Government and the Constitution


relieve the government of administrative costs and may be more e¬ective in
getting the cooperation of the individuals or ¬rms concerned in applying the
agreed code according to its spirit, whereas those bound by regulations may be
more disposed to look for loopholes in them. Self-administered codes, it is said,
are ¬‚exible in that they can be continually reviewed by those best informed
about their e¬ects and promptly updated as conditions change. There are,
however, certain disadvantages and hazards “ both for the government and for
the public interest “ in voluntary agreements as mechanisms for the imple-
mentation of policy. In the bargaining which precedes them the government as
well as the private-sector body may have to make concessions, and the govern-
ment may secure something less than a complete realisation of its objectives.
Private bodies are brought into the making of policy as well as its implementa-
tion, and the process has often taken place behind closed doors, secluded from
democratic control.
(See generally Ogus, ˜Rethinking self-regulation™ (1995) 15 OJLS 97; Moran,
˜The rise of the regulatory state in Britain™ (2001) 54 Parliamentary A¬airs 19.)
The government enters into a great many ordinary commercial contracts for
the procurement of goods or services. As a massive purchaser from the private
sector, it has sometimes been able to use its purchasing power to advance its
social and economic policies. Governments have in the past applied ˜buy
British™ policies, giving preference to ¬rms considered important to the
economy, and formerly imposed a ˜fair wages™ condition on all government con-
tractors. (This last was based on a House of Commons resolution, which was
rescinded in 1983.) But the extent to which these collateral aims could be
pursued was always limited, in particular by the Treasury™s insistence on
˜value for money™ in contracting and the need to justify departures from this
principle to the Public Accounts Committee of the House of Commons.
Membership of the European Union has brought further constraints. European
Community Directives (implemented in the United Kingdom by sets of public
contracts regulations) provide for equal opportunities to bid for public
contracts without discrimination on grounds of nationality and require com-
petitive tendering for most classes of public contracts and clear statements of
award criteria. Preferential treatment for domestic suppliers and products is
accordingly prohibited. Much defence contracting, however, falls outside the
Community rules (see Article 296 EC), and the Ministry of Defence (the largest
single customer of British industry, placing over 50,000 new contracts each
year) takes account of ˜wider factors™ in its purchasing decisions, such as secu-
rity of supply, support for key technologies, future export potential and the
desirability of sustaining British industrial capabilities. (See Ministry of
Defence Policy Paper No 5, Defence Industrial Policy (2002).)
Government policies for the ˜contracting out™ of public services have
signi¬cantly extended the use of the instrument of contract in the procurement
and delivery of services. (See Competing for Quality, Cm 1730/1991; Better
Quality Services (1998).) The Deregulation and Contracting Out Act 1994,
489 The powers of government


Part II, facilitated contracting out by empowering ministers to transfer public
functions to the private sector without the need for speci¬c legislation (see
Freedland [1995] PL 21).
Many contracted-out services are of a routine nature, such as catering,
vehicle ¬‚eet management and o¬ce and building services, but the range of con-
tracted-out operations has greatly increased in recent years. For instance, the
recruitment of senior civil servants is commonly contracted out by departments
to private-sector recruitment agencies or search consultants (the department
remaining responsible for the ¬nal selection). Again, contracts have been
awarded to private bodies to run schemes to help lone parents to ¬nd work and
to provide supported employment for disabled persons. Under Public Private
Partnership (PPP) arrangements, private-sector ¬rms are awarded contracts
bringing them into ˜partnership™ with government on long-term projects such
as hospital building, road construction, provision of social housing, refurbish-
ment of public buildings and the development and operation of computer
systems. The private-sector body may, for instance, undertake to design, con-
struct, manage and ¬nance the project in return for regular rental payments. In
˜The politics of public-private partnerships™ (2005) 7 British Journal of Politics
and International Relations 215, Matthew Flinders discusses the ˜host of politi-
cal issues and tensions™ raised by these arrangements. See too Institute for Public
Policy Research, Building Better Partnerships (2001).
The ˜hollowing-out™ of the state that is brought about by extensive recourse
to arrangements of these kinds may contribute to the ˜e¬cient, economical and
e¬ective provision of public services™ (C Foster and F Plowden, The State Under
Stress (1996), p 118), but as the services are removed from direct ministerial
control, private bodies acquire powers which need to be properly regulated and
there must be accountability for their use. It is questionable whether this can be
e¬ectively achieved through the instrument of contract. Fundamental ques-
tions of propriety and accountability are raised in particular by the contracting
out of such operations as prison management and prison escort services and the
running of GP surgeries.
(See further Foster and Plowden, above, ch 6 and pp 149“53; I Harden,
The Contracting State (1992); T Daintith and A Page, The Executive in the
Constitution (1999), pp 46“9; A Davies, Accountability: A Public Law Analysis of
Government by Contract (2001); Vincent-Jones, ˜Regulating government by

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