Reshaping the British Constitution: Essays in Political Interpretation

Reshaping the British Constitution Essays in Political Interpretation Nevil Johnson Reshaping the British Constitutio...

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Reshaping the British Constitution Essays in Political Interpretation

Nevil Johnson

Reshaping the British Constitution

Also by Nevil Johnson Parliament and Administration: the Estimates Committee 1945–65, 1966 Government in the Federal Republic of Germany: the Executive at Work, 1973 In Search of the Constitution: Reflections on State and Society in Britain, 1977; published as a paperback, 1979. Translated into German and published under the title Die englische Krankheit, 1977 Economic Policy-making by Local Authorities in Britain and Western Germany, coauthored with A. B. Cochrane, 1981 State and Government in the Federal Republic of Germany: the Executive at Work, 1983 (revised and extended edition of 1973 publication) The Limits of Political Science, 1989. Translated into Spanish and published as Los Limitos de la ciencia politica, 1991

Reshaping the British Constitution Essays in Political Interpretation Nevil Johnson

© Nevil Johnson 2004 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted his right to be identiﬁed as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2004 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN 0–333–94619–7 Hardback ISBN 0–333–94620–0 Paperback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. A catalogue record for this book is available from the Library of Congress. 10 9 8 7 6 5 4 3 2 1 13 12 11 10 09 08 07 06 05 04 Printed and bound in Great Britain by Antony Rowe Ltd. Chippenham and Eastbourne

To Christopher

[W]e cannot have any absolute security; in all governments it is necessary to trust somebody . . . If you weary of democracy you know the way to cast it off by placing judicial guardians over your Parliament, but have you any greater assurance than before? Quis custodiet ipsos custodes? (Adapted from Dudley Digges the younger’s pamphlet of 1643 on The Unlawfulness of Subjects taking up Armes against Their Soveraigne in any case what soever and cited by J. Goldsworthy, The Sovereignty of Parliament, OUP 1999, p. 262)

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Contents Preface

xi

Introduction

1

Part I The Underpinnings of a Customary Constitution

7

1 Constitutions and Constitutionalism The constitution as practice Customary and codified constitutions: is Britain so exceptional? The underpinnings of liberal constitutionalism Some implications of a customary constitution Notes

9 9 11 15 18 20

2 Foundations and Principles Consent and rights The rise and fall of negative liberty Authority and sovereignty A parliamentary executive Weakening the foundations of the customary constitution Notes

21 21 25 28 31 34 38

3 Institutional Pluralism and Subsidiarity A heritage of diffused powers: local self-government England’s partners within the United Kingdom Pluralism harnessed to public purposes No theory of the State, but more power for the central government Notes

40 40 44 46

Part II Institutions and Practices under the Customary Constitution 4 Symbols of Unity: Monarchy and Religious Establishment Constitutional monarchy Symbolic and representational roles The Crown as a legal construct Crown and Church The churches ‘established by law’ The monarchy, the Church and the moral life of the nation A rationalisation of monarchy? Notes vii

48 52

55 57 57 61 62 67 70 74 75 76

viii Contents

5 A Parliamentary Government: the Executive Power A parliamentary executive From cabinet government to prime-ministerial government Responsibility and accountability in constitutional theory Accountability at large: the impulse to blame The constitutional status of civil servants The discretion of ministers as a centralising dynamic Notes

79 79 81 85 90 94 97 100

6 Parliament: the Foundation of Legitimacy The House of Commons and the function of control The function of legislating From administrative to political scrutiny Institutional differentiation within the House of Commons The House of Lords What survives of sovereignty and government in and through Parliament? Notes

102 103 106 111 117 124

7 The Judiciary in the Constitution The independence of the judiciary The judiciary as interpreter of the common law Recognition of a domain of public law The judiciary in public life and popular involvement in administering justice Notes

140 140 144 149

Part III Reshaping the Constitution

129 136

153 156

159

8 The Customary Constitution in the Melting-pot The reform agenda The rhetoric of reform: democratisation and modernisation Discarding history and tradition Notes

161 161 166 168 172

9 Institutional Innovation: Devolution and Decentralisation Devolution models: the scheme for Scotland Devolution model 2: devising a scheme for Northern Ireland Devolution model 3: a qualified scheme for Wales The models of devolution compared Further steps towards decentralisation in the reform programme Notes

173 173 182 188 193

10 Reform at the Centre: the Primacy of Politics Reform in Parliament: the House of Lords

199 206 209 210

Contents

Reforming the House of Commons The political executive: presidential pretensions Politicians and officials: the weakening of the civil service ethos Notes

ix

216 223 228 235

11 Human Rights and the Reinforcement of the Judiciary From ‘liberties and privileges’ to a code of rights Incorporation of the European convention of rights into British law The initial impact of the Human Rights Act 1998 Human rights decisions: some illustrative examples of judicial conclusions Innovation and continuity in interpreting rights Proposals for further institutional reforms affecting the judiciary Notes

237 237

12 The European Union: Towards a European Constitution From the European Communities to a European Union The impact on discretion in policy and law-making British law and EU law: who interprets what? Enlargement of the EU and the prospect of a constitution for Europe Playing down the consequences of ‘ever closer union’ Notes

261 261 264 268

13 Beyond Custom and Tradition: the Politics of ‘What Works’ The nature of the process of constitutional reform From precedent and history to performance and the future How is the form of government to be designated? Pluralism, diffusion of powers, checks and balances The rule of law and the rights of citizens The erosion of self-government Reshaping the constitution to suit the needs of elective dictatorship Notes

284 284 286 288 296 300 304

240 245 248 251 255 258

272 278 281

308 315

Bibliography Political institutions and politics Law and the constitution Theory and history Church and State

318 318 319 319 319

Index

321


Preface My concern with the virtues and peculiarities of the British constitution is of long-standing and a subject on which I have expressed views many times before. The notion of writing about it again came to me almost five years ago, prompted in large part by the winds of change that were buffeting what at that time I was tempted to call ‘the old order’. I sketched out my ideas for a full-length study of constitutional change very quickly, but as so often happens many other preoccupations came along to interfere with rapid completion of this work. By the end of 2002 perhaps just over half of it was written and I began to wonder whether I would ever complete the work. However, with a big effort in the course of 2003 I managed to do that, though as time went on I became ever more conscious of the fact that constitutional reform had become a dynamic process that was making it impossible to identify any natural point of conclusion for this study. As a result I remain conscious of the many strands of unfinished business that lie about in the text. Nonetheless, I believe that there has been enough experience of the process of reshaping the British constitution to justify even at this stage an attempt to assess its significance and the principal characteristics of the reform measures so far put into effect. I am deeply indebted to several people who have helped and advised me in the preparation of this work. I am grateful to Matthew Flinders of Sheffield University for penetrating comments on the whole text, and to Gunnar Beck, Legal Adviser to the European Scrutiny Committee of the House of Commons, for comments in particular on Chapters 11 and 12. My thanks are due to Lady Hale of Richmond, now a member of the Appellate Committee of the House of Lords and a Visiting Fellow of Nuffield College, for her scrutiny of Chapters 7 and 11 which saved me from a number of errors in matters of law. I record my gratitude to the late Geoffrey Marshall, sometime Provost of The Queen’s College, Oxford, for the stimulating and informative conversations on constitutional questions that we had from time to time, and to the late Max Beloff, a passionate admirer of the customary constitution right to the end, with whom the state of that constitution was a frequent topic of discussion. I am grateful too to the Revd Keith Triplow, Rector of Kingston Bagpuize, for his guidance on the duties of a parish priest, and to Philip Giddings of Reading University for advice he gave me on matters relating to the Church of England. I must also record affectionate thanks to my son, Christopher Johnson, a Clerk in the House of Lords, for his careful reading of those sections that deal with the second chamber as well as those concerned more generally with Parliament. I have ventured to dedicate this book to him in the hope that it will not cause him xi

xii

Preface

too much embarrassment. Thanks are due to Professor Ian Holliday of the City University of Hong Kong both for his encouragement in the early stages to go ahead with this project and for his continuing critical interest in the progress of the work. I am grateful to Elaine Herman for her generous assistance in the final stages of preparing this work for delivery to the publisher. Finally, I am deeply indebted to the staff of the library of Nuffield College, Oxford, for their ever willing support in helping me to find material I needed, and especially to the Librarian, Elizabeth Martin, for her unfailing kindness in so often allowing me to call on her outstanding skills in searching out material on the computer. To all those mentioned here and to many others who are not but with whom over the years I have from time to time enjoyed the exchange of views about the British constitution, I am most grateful. They have all enriched in some degree my own thinking. For the blemishes and errors in the final product I alone am responsible. One final word: the bibliography attached to this work is highly selective and to some extent unsystematic. It makes no claim to be an exhaustive bibliography of works on the British constitution, but is far more a record of at least some of the works on which I have drawn somewhat eclectically during recent years. Nevil Johnson Kingston Bagpuize, Oxon. April 2004

Introduction

Sceptics have often enough doubted whether there is such a thing as the British constitution. After all it is not possible to point to an indisputable founding charter and to say when and how such a birth certificate was solemnly drawn up and brought into effect. The law courts do not recognise any statute or other legal instrument as indubitably superior to all other law, even though there are some legal documents and statutory provisions which by virtue of their antiquity or their content and all-embracing effects are sometimes treated as ‘constitutional’ by learned judges in search of a clinching argument. But it is not at all clear what the invocation of constitutional status actually achieves either in the courts of law, the groves of academe or the many and varied organs of comment and political argument. Often enough the constitutional essence evaporates into something like the grinding of political axes. Yet it would be perverse to deny that Britain has had a constitution, and it is widely assumed that it still has one. If having a constitution entails having a notion of limited government under law to which most or at least many of the people have given their consent directly or indirectly, then it cannot be denied that some form of constitutional rule has characterised Britain – and even more obviously England – for a very long time indeed. And at the level of theoretical reflection on what conditions make for good government constitutionalism as a rather eclectic body of ideas about the rights of citizens and the prevention of arbitrary government has certainly had notable exponents in Britain. Some of them have been lawyers and philosophers of distinction, others propagandists and practical reformers who sought to nourish in the people an awareness of the rights and liberties they were entitled to claim. Gradually over a long period, punctuated often enough by serious conflict and heated argument, the heritage of practical achievement assumed the institutional contours of a sophisticated system of parliamentary government, capable so it was firmly believed in the later part of the nineteenth century of ensuring peace, prosperity and security at home and of prescribing the laws for the governance of an empire 1

2


too. At this zenith of parliamentary government few doubted that Britain indeed had a constitution, and a good one too. What is more it was at this time that most of the constitutional doctrine handed down to our own age was formulated and expressed. But such doctrine as was then acquired did not have the character of a collection of legalistic rules, even though lawyers and teachers of law made a notable contribution to it. Such principles as were enunciated were for the most part broad in scope and political in the objectives they were intended to serve. The efficient secret of the constitution lay in the fact that through its institutions and practices it expressed a capacity held to be inherent in the society and its ruling elites to make those institutions work, to devise practical solutions to the problems of governing in a rapidly changing society and an expanding overseas empire, and to give stability to the future by sustaining the habits and conventions of civilised social and political life. It was widely held that the remarkable ability to combine effective government with a large measure of individual freedom was attributable to the wisdom and subtlety of the constitution, this elusive body of norms and practices that had to be learnt by gaining experience of them. In retrospect it is hardly short of astonishing that this faith in the virtues and vigour of a bundle of conventions and institutional practices shaped mainly over a century ago should have endured so long and survived so many upheavals in the world outside Britain as well as profound changes within British society. But the belief in the validity of British constitutional values remained strong right down to very recent times, whilst the practices in which they were held to be embodied underwent relatively little visible change, even though the purposes served by many of them no longer corresponded at all closely to what distinguished commentators had said about their original significance. It was almost certainly the passing of empire and the growing awareness of a sharp relative decline in economic effectiveness and external power that began to persuade some people at least to ask questions about the manner in which Britain was governed, in short, to ask questions about the constitution and its adequacy in a rapidly changing world. This began to happen in the 1960s and the questioning of the constitution has continued at varying levels of intensity more or less ever since. To change a constitution so heavily reliant on custom, precedent and convention is, however, a difficult matter, and especially in a society where a conservative attachment to outward forms and symbols remains very strong. Usually there is no mystery about how to change or reform a formal and codified constitution of the modern kind. The amending procedures may for political reasons be difficult to apply but, assuming consent can be gained from those entitled or required to undertake the business of constitutional amendment, the job can be done. Amending in a radical way an informal and customary constitution such as the British may, however, be much more difficult to carry out, and so on the whole it turned out to be,

Introduction

3

at any rate until very recently. In such an undertaking it is hard to determine where constitutional reform should begin. What is to be regarded as a constitutional matter is either unclear or more likely the subject of heated political argument, and in any event there remains a deposit of habit and affection for the old ways that can usually be mobilised by one interested party or another to frustrate or deflect change. So what usually happens is adaptation and limited incremental improvement – changes like the introduction of life peerages in 1958, the reinvigoration of judicial review of executive decisions in the 1970s and after, the establishment of departmental select committees of scrutiny in the House of Commons in 1979. But occasional and piecemeal changes of this kind did not stem the rising tide of criticism of the constitution. The economic failures and social tensions of the 1970s reinforced the impression of institutional failure. In the decade following, the emergence of a strongly critical view of the constitution was fuelled too by straightforward political hostility to many of the policies and decisions of the governments led by Mrs Thatcher, and then by a growing unease in the 1990s about the political and economic impact of Britain’s membership of the European Communities (as they were then still known). The upshot of this lengthy period of argument about the weaknesses of the constitution and how they might be remedied was that an ambitious programme of constitutional reform measures got on to the political agenda and was offered to the electorate in 1997. Despite the fact that the electorate gave the Labour Party under Mr Blair a large majority in 1997, and again in 2001, it remains doubtful whether constitutional change figured prominently in the minds of many voters. The majority wanted a change of government for other reasons, such as the desire to replace a worn-out regime with a new team that appeared to be vigorous and idealistic in its aspirations, or more simply to get more competent people to run the country. But whatever the motivations of the electorate may have been, when the voters confer a powerful mandate to govern on the winning party they buy the whole package of what is on offer. And on this occasion constitutional reform was a large item that was to dominate the work of the first Blair government for most of three years. Even though the emphasis then began to shift to the promise of better public services, more effectively delivered, the urge to find new fields of constitutional reform has continued to be strong right down to the time of writing. In short, constitutional reform seems to have become a process that generates its own onward momentum. It is as if a dam had broken and as result many of the guide-posts that were until recently held to chart the way through the thickets of the customary British constitution have now been submerged. The principal aim of this study is to say something about the character of the reforms enacted since 1997 and to offer a basis on which to judge what kind of reform programme it has been (and still continues to be). The focus is somewhat narrowly on constitutional matters, though given the nature

4


of the British constitution this means that much of the commentary offered has to take the form of a political evaluation of what are held to be constitutional norms. An exegesis of the British constitution – reformed or unreformed – entirely in legal categories is an impossibility, even though a notion of the rule of law has for centuries underpinned the evolving constitution. What is not on offer here is a piece of contemporary political history claiming to show how all the recent changes were devised and put through, nor is any claim made to offer anything like a detailed evaluation of the effects of particular reform measures. Any attempt to analyse the nature and implications of what has been done to reshape the British constitution has, however, to look into the past as a necessary element in the understanding of the present. What is more there is no doubt that the British (just like the citizens of many other countries too) tend to be parochial and insular when discussing their own political arrangements. It is, therefore, desirable at least to raise a number of general and theoretically important questions about types of constitution and the rationale of a constitution as well as about the extent to which the British constitution is at one and the same time both highly unusual in its informal character and yet not so radically different from other constitutions as is often believed. There is advantage too in referring from time to time to how other constitutions serving similar political values to those accepted in Britain deal with particular problems, though no claim to anything like systematic comparison is made for what follows. It is in Part I that these broader issues are set out and reasons given for using the concept of a customary constitution to indicate what kind of constitution Britain has been held to have. Perhaps an even more important element in the analysis is, however, the effort to summarise what were widely believed to be the characteristics of this customary constitution in the years immediately preceding the present effort to reshape it. This is what Part II is mainly concerned with, providing an account of the principal institutional features of the constitutional order and of the manner in which their operation defined the system of government and maintained the rule of law. This is a necessary foundation for the third and final part in which the most important of the reforms themselves are set out and at least in part subjected to detailed analysis. It is into the context of recent reforms that consideration of the effects of membership of the European Union is fitted, even though reference has to be made at other points to this commitment. This part concludes with a chapter devoted to critical reflections on the overall impact of the reform programme on the customary constitution and on the values that seem to have shaped the bulk of the programme. It will probably appear for much of this study that the argument is strongly biased in favour of the customary constitution and the virtues it long embodied. It is difficult to avoid conveying this impression when writing about what have in essentials been continuing yet ever-changing

Introduction

5

practices that at the very least represent a remarkable record of successful political adaptation to changing circumstances and challenges. That at least provides some justification for trying to preserve the benefits of the customary constitution so far as it is possible to do so. But the kind of constitution by which Britain has been governed and its laws upheld has by its very nature depended for its survival and continuing adaptation on the social and moral context in which it exists and from which it derives its legitimacy. A customary constitution depends for its vitality on the support of a society (and that has to include in particular all those involved in public affairs) in which there is a sympathetic understanding of the significance of habit, convention and tradition, for the very survival of such a constitution. Those of an even mildly conservative disposition must always hope that the institutions of their society will remain stable and capable of providing an acceptable and yet adaptable framework for the development of the society and the protection of its members. But in the case of a customary constitution so dependent on the values prevailing in the society it serves it is hardly ever possible to put back the clock and to return to such habits and arrangements as prevailed before particular reforming changes were made. Thus, whatever may have often been the virtues of particular elements in the customary constitution, once they have been swept away they cannot be resurrected in some arbitrarily selected ideal form. The constitution has to be taken as it has now become, and that includes the reforms that have now been put through. This presents all constitutional reformers with a new challenge. There are persuasive grounds for concluding that most of the reforms have not been carefully thought through, nor have they been seen in relation to each other and to much of the customary constitution that nominally at least still survives. In particular they have not in any convincing way faced up to the most serious of all contemporary constitutional challenges: how in a democratic society is the executive power to be restrained and kept within bounds? Public officeholders are but temporary trustees, but how are the people to be protected against those they have elected? These questions are not new either here in Britain or elsewhere, and there are no easy answers to them. This present wave of constitutional reform has by no means provided satisfactory answers to this basic question. Instead the outcome of a great deal of effort appears to be a more tenuous version of the customary constitution than existed only a decade or so ago. This in turn compels us to ask whether pragmatic adaptation can any longer yield constitutionally acceptable outcomes with which to meet the challenges of contemporary governance. It is on this interrogatory note that this study ends.


Part I The Underpinnings of a Customary Constitution


1 Constitutions and Constitutionalism

The constitution as practice Britain has been going through a phase of profound constitutional change in the wake of the measures enacted since 1997 in pursuance of the reform agenda of the Blair Government. In particular those closely involved in the politics of constitutional reform regularly assert the crucial importance of constitutional modernisation for the future prosperity and political harmony of the country. Yet even a cursory examination of what has been said in the constitutional debate of recent years is enough to reveal how loosely and vaguely people talk about ‘the constitution’ and ‘constitutional issues’. This stems in part from the fact that the British constitution is not to a large extent expressed in the categories of binding and potentially enforceable legal norms, but derives instead mainly from the continuing practices of institutions and the conclusions drawn from them. This confers upon it something of the elusiveness inherent in all traditional codes of behaviour as well as rendering it a highly political matter, so much so that it is often impossible to distinguish what purports to be a constitutional statement from what is in fact no more than an assertion of a passing political preference. It is precisely because there is so much uncertainty and ambiguity in talking about the British constitution that it is desirable to preface any study of what have so far been regarded as the principal features of that constitution and of the ways in which it is now being changed with some consideration of constitutions in general, of what is involved in having a constitution, and with that mode of thinking about the ordering of social life which has often been referred to as constitutionalism. Such an introductory discussion may also have the advantage of moving us away from the parochialism affecting so much argument about the constitution in Britain, reminding us that, whilst Britain has certain unusual constitutional characteristics, there are many other societies which show traces of our peculiarities too. The roots of modern liberal constitutionalism in the sense of a body of 9

10 Reshaping the British Constitution

ideas justifying limited government by consent and the rule of law are to be found chiefly in England, more specifically in the political experience of the seventeenth century. This was an epoch of legal, political, religious and philosophical argument about the terms on which the civil order of society should rest. Yet in stark contrast to this earlier often passionate concern with trying to define the ‘fundamentals’ of an acceptable constitution,1 the modern British constitutional tradition has at any rate from roughly 1867, the date of the first edition of Walter Bagehot’s famous essay The English Constitution, been characterised by a somewhat brutal pragmatism in relation to specifying the normative conditions of the constitution and by something approaching contempt for any serious concern with the exploration of ‘fundamentals’ as opposed to description of ‘what actually happens’. The basic reason for this neglect of principled argument about the terms on which the constitution rests is that it has for well over a century been defined by appeal to widely accepted institutional practices and continuities – the usages of Parliament, the working practices of the cabinet and government departments, the conventions of the monarchy, the practices of the courts and the self-restraint of judges, the conventions governing the conduct of civil servants and, most recently, the organisation and conduct of political parties. Thus constitutional discourse became essentially empirical description with a bit of history and moral judgement thrown in to give it body. Bagehot, whose influence proved to be enduring, established a powerful precedent for such a descriptive treatment of the constitution in terms of ‘how things work’, that is to say what politicians and some of those associated with them do within particular institutional contexts. A secondary reason for the bias against systematic normative thinking about the constitution has been the relative paucity for most of the twentieth century of legal or jurisprudential contributions to analysis of what the constitution amounts to. Basically this has been a consequence of the fact that the constitution has not been expressed or understood primarily in legal categories, and for a variety of reasons has not been the object of much legal or juridical interpretation. There has, therefore, been little material available on which to build an alternative understanding of the constitution. It is against this background of confidence in the continuities of institutional practices and in the capacity of public officeholders to transmit the traditional habits along with their ‘inarticulate major premises’ from one generation to another that the indifference to the pursuit of abstract questions about the foundations of the constitution can best be understood. Insofar as there has been doctrine, then it has amounted to little more than the assertion of an innate British capacity for pragmatism and institutional adaptation. According to this view of the matter there is little to be gained from raising fundamental questions about the presuppositions on which practice might be held to rest. It is far better simply to trust to the ability to adapt constitutional practices in response to changes in circumstances and to make such

Constitutions and Constitutionalism 11

institutional innovations as appear to offer promise of success in meeting contemporary needs. In recent years it has become more difficult to maintain and harder still to justify this indifference to the range of ‘fundamental’ questions thrown up in the course of constitutional adaptation and innovation. Some of these questions are primarily normative and bear on the decisions about values that have to be taken both in the application of a constitution and more particularly in relation to any programme for overhauling and reforming it. These include very difficult questions about the meaning of citizenship, what are acceptable constraints on individual liberty and, more widely, the balance we may wish to strike in social and political life between reliance on conventions of behaviour and tradition as compared with formal regulation and enforcement. There are other questions which are both normative and empirical, for example, those directed both to justifying particular objectives and at the same time to explaining how they will be made achievable by the methods proposed. And there are other issues which are more or less wholly practical and empirical, bearing for example on the structuring of institutions or on the relevance of past experience to current constitutional problem-solving. In the face of such developments it is much harder now than it used to be to justify indifference to basic questions of the kind just indicated. The British constitution is being changed and reformed in a highly explicit way. Indeed, in the eyes of some commentators a ‘central goal of Labour’s reform programme is to refashion the constitution so that it no longer depends on tacit understandings, but is based on clear public principles for organising and controlling political power’.2 If the changes made or projected are indeed so far-reaching, then at the very least there are strong practical reasons for asking questions about what is being abandoned and what is being put in its place. This underlines the need to preface a critical treatment of British constitutional principles and practices – what they have been and what they may become – with some general discussion of what is involved in having a constitution intended to sustain a liberal political order and the forms such a constitution may take. This is intended to provide a context somewhat wider than contemporary domestic political preoccupations for evaluating both the ‘old order’ – what the British constitution is widely believed to have been – and the new dispensation that in the opinion of many observers is now replacing it.

Customary and codified constitutions: is Britain so exceptional? For at least two centuries a contrast has been drawn between formal and informal, written and unwritten constitutions. The notion of a written constitution owes much to the French Revolution and the series of unsuccess-


ful efforts which accompanied it to provide a formal basis for a new and legitimate form of government in France. The era which followed the final defeat of Napoleon in 1815 was characterised in France and several other European countries by the introduction of ‘charters’, formal constitutional documents generally providing for limited government and some form of political representation. For example, on his first return to France in 1814 Louis XVIII issued a charter intended to be a basis for a restored monarchy and, after the downfall of his brother Charles X in 1830, his successor, Louis Philippe, agreed to a further revised charter. In other European countries where unqualified monarchical rule was restored or had survived, the usual demand from reformers was for a charter – some kind of written constitution. Gradually, and especially in the years after the revolutionary upheavals of 1848, the possession of a written constitution became widely accepted, at any rate amongst the majority of liberals in Western Europe and even beyond, as an essential element in progress towards representative and limited government.3 There was, of course, another and somewhat earlier source of the ideal of a written constitution, namely, the constitution of the United States of America which came into force in 1789. That in turn rested in part on the long experience in the colonies of ‘charters’ conferred by the British Crown for various purposes, including those of government.4 But on the whole the American example had in the nineteenth century relatively little influence in Europe, partly because it was far off, partly because for many European liberals the United States was both too democratic and too republican. So the ideal generally became that of a formal document setting out the principal conditions necessary for constitutional government. This meant parliamentary institutions in some form or other, the vesting of legislative authority in such institutions, and in varying degrees the introduction of a constitutional monarchy under which the members of the executive would need to enjoy the confidence of the representative body. These were usually the main features in continental Europe of a formal constitution, though in some cases there was also explicit reference to the rights enjoyed by citizens.5 In the English-speaking world it was not uncommon in the wake of these developments to draw a distinction between written and unwritten constitutions or, as Lord Bryce, writing in the late nineteenth century preferred, between ‘rigid’ and ‘flexible’ constitutions.6 The movement towards the practical realisation of the ideals of a liberal constitution was, however, marked by many false starts and setbacks, a state of affairs exacerbated by the disappearance in many countries of traditional monarchical institutions at the end of the First World War. The years between 1918 and 1939 when many written constitutions came and went were to provide ample evidence of the fragile basis of constitutional rule in many parts of Europe and showed that a written constitution alone was no protection at all against the risks of political upheaval and institutional disruption. Yet after the end of the Second World War written con-


stitutions became once again indispensable instruments in political reconstruction and, in contrast with the experience after 1918, have in most cases proved so durable that hardly anybody in continental Europe would now doubt that a formal, written constitution is the hallmark of a progressive, democratic society. To nearly all of this continental European experience (an experience extended to many other parts of the world during the past fifty years or so) Great Britain remained an exception. Thanks to a long history of institutional adaptation and of skill in the accommodation of the existing political order to new demands expressed in society the British constitution survived down to the present time as the leading and almost unique example of an informal and unwritten constitution.7 There were never compelling grounds either for reshaping the pattern of government entirely or for rationalising into a single enactment the constitutional arrangements that the British undoubtedly believed they had. The terminology ‘written’ and ‘unwritten’ as applied to constitutions is, however, in many respects unsatisfactory. As will be argued shortly, it implies far greater differences between the two categories than generally exist, but it is also lacking in descriptive content. There are several other terms which might be held to describe the British type of unwritten constitution in a more informative way, for example, customary, conventional, traditional and informal. It might even be described as a common law constitution, though this would be open to some misunderstanding of what such a characterisation implied. There is, however, no doubt that it is a constitution developed and adapted on the basis of precedents derived from customary practices, many of these being the procedures of leading institutions like the Crown, the two Houses of Parliament and the law courts. Conventions of behaviour have played a large part in its evolution and have defined many of its conditions. Obviously it has been also a traditional constitution in the sense that in its adaptation and development tradition has often been acknowledged and allowed to set limits to the kind of innovation that people were prepared to consider. And it remains informal in the sense that it has never been systematised or given a special status distinguishing its terms from those of ordinary statute law or of many of the familiar practices of political life. For the purposes of the present discussion, however, it is proposed to refer to the British constitution as a customary constitution. In contrast a constitution of the written and formal kind will be referred to as a codified constitution, that is to say, a formal statement in which the principal terms of government and of citizens’ rights are drawn together and given a special status distinct from and usually above that of ordinary law. Having drawn this distinction between customary and codified constitutions, it is necessary immediately to warn against its exaggeration and misuse. Many who have commented on the British constitution have assumed that the gulf between customary and codified, written and unwrit-


ten constitutions is far greater than is generally the case. In the past this often encouraged the belief that the British constitution was so exceptional that it was a pearl beyond price, something that foreigners could never hope to imitate. In recent years judgement of this aspect of the matter has often pointed to the more critical conclusion that the British constitution might be so exceptional that it becomes necessary to question whether it really exists and to treat the absence of a ‘proper constitution’ of the codified variety as a sign of constitutional underdevelopment. In reality, however, all serious and effective constitutions of the codified variety depend substantially on customary practices and conventions to supplement whatever their formal terms may be. Nowhere is this more evident than in the United States with its long-established written constitution backed up by binding judicial interpretation of it. The operation of Congress depends just as much on precedent and established conventions as is the case in the House of Commons; the extent of presidential powers is similarly to a large extent a matter of custom and practice, though not exclusively so. Similar lessons can be drawn from other countries with a codified constitution. Relations between the French president and his prime minister depend very much on whether the former has a parliamentary majority backing him: if he has not, then conventions of mutual forebearance developed when these two officeholders are from different parties have to come into play. The very limited scope for judicial intervention in relation to constitutional issues in Denmark, the Netherlands and Switzerland is due in large part to a customary opposition to judges infringing the discretions of the properly constituted political authorities (which in the case of Switzerland includes the people acting in a referendum). In Germany the modest role of the Bundestag, the elected part of the legislature, in relation to day-to-day ministerial accountability depends far more on what have become the customary practices of party life than on formal constitutional provisions such as those requiring a federal structure of government. What must be remembered is that whatever the formal provisions may be as to the form of the institutions of government, the activity of governing through those institutions can only proceed effectively when custom and conventional ways of doing things come into play as well. Governing by the rule-book is literally impossible.8 On the other side of the coin it has to be remembered that even a customary constitution like the British does not consist solely of familiar practices, mysteriously handed down as the intimations of a tradition.9 It has over the centuries embodied substantial formal and written elements, and these have grown more extensive and prominent in recent times. Indeed, it could be maintained that it is precisely some of these formal provisions – Magna Carta, the exclusion of papal jurisdiction, the various acts passed between 1533 and 1560 establishing the Church of England, the Petition of Right, the act abolishing the Court of Star Chamber, the Habeas Corpus


legislation, the Bill of Rights of 1689, the Act of Union of 1707, the Reform Act of 1832 and many others – that constitute the milestones marking out the growth and nature of the British constitution. To put it like this is to echo the opinion of F. W. Maitland, the great historian of English law, that the constitution is largely defined by those institutions and practices which emerged from and were confirmed as acceptable conclusions facilitating a renewal of constructive political activity after phases of acute conflict and division.10 Moreover, it should be noted that a political tradition marked often enough by flexible adaptation and compromise has coexisted for at least three centuries with a legal system in which a strongly positivist view of law and a strict approach both to procedural correctness and the interpretation of statute have been dominant influences. This no doubt helped to maintain the separation between judicial decision-making on the one hand and the sphere of political and governmental activity on the other: a search for narrow certainties often prevailed in the sector of legal dispute, whilst in the area of law-making by Parliament and executive action by ministers there has in modern times been a strong preference for the retention of open-ended discretion.

The underpinnings of liberal constitutionalism The need to qualify the sharp distinction often made between a customary constitution and one that is codified can serve also to remind us of the significance of constitutionalism as a set of ideas justifying a constitution providing for limited government. In his famous work, The Spirit of the Laws, Montesquieu identified three decisive elements in the shaping of a polity: the ‘spirit of the laws’ or the kind of institutions established in a society, the character of the rulers, and the moral habits of the people (les moeurs du peuple).11 Inspired by this approach to the problem of controlling the exercise of power, constitutionalism in the West has represented a rich and varied body of ideas and arguments about the civic virtues and the institutional conditions which need to be cultivated and sustained if a society is to be capable of living under a liberal constitution, that is to say, one under which individuals are protected in the enjoyment of their rights and freedoms, the laws are applied equally and fairly, and the rulers are subject both to law and the judgement of those they represent. But obviously no modern written and codified constitution dedicated to these values is going to work unless the second and third of Montesquieu’s conditions are met at least in some degree, and they refer to matters which cannot be brought into existence merely by the fact of having a piece of paper labelled ‘the constitution’. It is not difficult to identify societies in contemporary Europe which illustrate the point just made. In the Russian Federation a liberal constitutional order remains fragile because the legal system and political institutions are still relatively weak, those in power are not proof against


corruption, and there is a lack of civic experience in society at large. But if we take another example, the Federal Republic of Germany, where a liberal constitution has now had more than fifty years to take firm root, it is still possible to discern some signs of the difficulties that can occur when some of the underpinning conditions of constitutionalism are not adequately met. The laws and institutions of contemporary Germany certainly meet the standards required of a liberal constitutional order. Yet revelations in late 1999 about the way in which donations to the Christian Democratic Union, the party of government from 1982 until 1998, were handled brought into sharp focus the extent to which a certain kind of political corruption had become acceptable amongst the political elites. This is not generally corruption in the obvious sense of political favours bestowed in return for financial benefits, usually for a party rather than individuals, but rather in the sense of the widespread bestowal of patronage and a tendency to treat the public domain as one to be discreetly exploited for partisan advantage by those who occupy influential positions in it. Rather similar critical lessons could be drawn from the experience of several other European countries in recent years, Belgium, Austria, France and Spain, for example. Here too political failings have suggested that the supporting values of liberal constitutionalism sometimes lack the vigour required if the formal conditions of the constitution are to have real effect. In Britain as well the state of constitutionalism as a set of values underpinning what have been thought to be well-established constitutional practices is no more proof against critical questions than it is elsewhere in Europe. One of the key problems appears to stem from the way in which party interest in the acquisition and retention of governmental power has steadily eroded the norms of self-restraint owed by officeholders and subverted their sense of the limits to the exercise of powers which are an integral part of liberal constitutional ideology. The obsessive pursuit of party manifesto promises, the often blatant manipulation of public opinion now practised both by politicians and by officials paid to do so on their behalf, the increasingly obsequious behaviour of a large part of the political class towards those leaders who can dispense patronage and offer prospects of career advancement, the intolerant pursuit of the claims both of individuals and minorities at the expense of the interests and opinions of the wider majority in the society – these are now all readily observable features of British public life. They appear to testify to the belief that the interest of party, and especially of the majority party for the time being, takes precedence over any other concerns which might be held to be of ‘public interest’. It is not surprising that as a result many institutional practices, which until recently were thought to be binding, are now in a state of decay: there is not that degree of sensitivity on the part of many of those in public life to the moral restraints demanded by constitutionalism which it is essential to maintain if a liberal political order is to remain a reality. A clear example


of this was the incidence of petty personal corruption in the ranks of the Conservative party in Parliament between 1990 and 1997, and the inability of the House of Commons to maintain the principle of self-regulation in the face of its own failure to discipline and punish Members who had breached well-established standards of behaviour. In summary, neither a codified constitution nor an informal and customary constitution can do without a wide range of understandings about acceptable conventions of behaviour in the realm of public affairs, and these in turn must express in some degree the values embodied in constitutionalism as a set of ideas about how to maintain a liberal order. Nor does the fact that a customary constitution suggests that the appeal to habits and traditions is more congenial than it is in the context of a codified constitution offer special protection against the erosion of the underpinning moral values of liberal constitutionalism. Nevertheless, the distinction drawn between these two contrasting approaches to a constitution and to what is involved in applying it to the government and political evolution of a society is useful so long as appropriate qualifications are made to it. It is self-evident that a customary constitution can only survive if there is in the society concerned a strong preference for maintaining institutional continuities and familiar habits of social cooperation. Sympathy for tradition is a necessary foundation for such a constitution. But equally, the hallmark of customary constitutional arrangements has been the large scope they allow for accommodating whatever may turn out to be the principal political imperatives of the day. This is made possible in part because a customary constitution is only to a limited extent expressed in terms of legally enforceable norms, some or all of which may be subject to judicial interpretation and enforcement by a court. It follows that political discretion can often be exercised both in regard to deciding what action can be claimed to be acceptable under the constitution as well as to reform or adaptation of the constitution itself. This is not, however, a feature peculiar only to a wholly customary constitution like the British. In the United States too there is a strong emphasis on the political discretion of officeholders, not least as a means of facilitating democratic responsiveness. This element in the American political tradition has qualified over a long period the potential rigidities of a codified constitution subject to regular judicial interventions. Furthermore, the fact that the Supreme Court of the USA has generally attached so much importance in its interpretation of the constitution to judicial restraint owes much to the inheritance of significant elements of the English common law tradition: it has been a court which has usually known when to exercise caution in reaching judgements which might be held to encroach seriously on the political discretion claimed by both the legislative and executive branches of government or would bring it into sharp conflict with public opinion.


Some implications of a customary constitution Certain consequences of the survival of a customary constitution like the British need to be underlined. At any particular time it is likely to be difficult to define what exactly are the limits and precise content of the constitution. Obviously there is no single statement of what the constitution is, nor even a recognised body of authoritative statements on it. But more profoundly, a customary constitution expresses to a substantial degree the political practices, habits and traditions of the country concerned. It tells us how that country is politically constituted. The distinction between ‘how a country is politically constituted’ and ‘its constitution’ has in the contemporary world been increasingly overlooked, though it was still relatively familiar during the first half of the twentieth century.12 Indeed, Bagehot’s famous essay can be interpreted as an application of something like this distinction, made explicit in his preoccupation with how the country was being governed in the 1860s and how its institutions actually functioned at the expense of trying to offer a formal statement of what the guiding rules – the constitution in its formal sense – were. A further effect of this second distinction made is that there is always likely to be argument about what conditions are actually laid down or prescribed by the constitution. Its scope, limits and normative content will be a matter of political debate and it will be hard to draw a firm line between political and constitutional arguments. Yet at the same time so long as a customary constitution retains its hold on the allegiance of those subject to it, serious political dispute about its terms is likely to be infrequent. When the constitution becomes a constant theme of political controversy as it has at certain levels of society in Britain during recent years, this suggests that the commitment to it is weakening, perhaps even that the customary forms of the constitution are no longer taken seriously. Much the same problem can affect any kind of social tradition: it crumbles as soon as enough people cease to treat it as a guide to their behaviour. And once a tradition has collapsed it is virtually impossible to revive it. The analogy with tradition allows us to bring out another aspect of a customary constitution which has been important in Britain. A customary framework for the government of society and for resolving many of the problems affecting individuals and their claims owes its survival (and such vitality as it possesses) to its responsiveness to popular demands. Under a customary constitution those who act under its presumed guidance are always likely to retain some awareness of the need to safeguard the conditions of government by showing that under them it is possible to deal successfully with the demands put forward in society. The situation under a codified constitution may well be quite different. Matters which may be resolved under a customary regime by political accommodation on the concrete issues at stake or even by some adaptation of the procedural rules, may


under a codified system either require a formal change to the rules (and this may be difficult to bring about) or may become tied up in judicial arbitration leading to binding conclusions which it is virtually impossible to set aside without imposing a severe strain on the system as a whole. What this means is that under a customary constitution like the British many conflicts and demands can be dealt with by political accommodation, made easier by the fact that appeal can be made to the language of constitutionalism in the course of the argument about what should be done. But under a formal constitution this route to solutions may be blocked off by conclusions claiming the authority of constitutional law. If such conclusions proceed from the highest judicial authority, they may be literally unchangeable – short of rebellion and refusal to accept them. It follows that at times when there is sharp disagreement about policy, a customary constitution is likely to provide safety valves which may not be present in a society confined within the narrower limits of a codified system. The language of constitutionalism is something like a conversation within a tradition of argument about how a society should be governed, whilst the language of constitutional law tends to be in terms of underlying principles as stated in the constitution and such deductions from them as specialists in constitutional law might make.13 Inevitably this confers a degree of rigidity on codified arrangements which may on occasion bring them into conflict with the requirements of the principle of majority rule and the ideals of self-government. There is, however, a paradox affecting a customary constitution which can be drawn out of the contrast made in this chapter between a customary constitution and one which is formal and codified. The latter has to make principles explicit, even if they amount to little more than the operating principles of the constitutional order. The former lays great store by a capacity to leave principles inexplicit, relying instead on what people feel from past experience to be appropriate in the circumstances. Yet a customary constitution can retain its vitality only if there is in the society concerned a continuing sense of the value of social conventions as sources of cohesion in society and of what are the important underpinning values of the system of government. This in turn is a state of affairs that can only be maintained if there are enough people in positions of influence and responsibility capable of sustaining these practices and of persuading the society at large to acknowledge them. To a considerable extent the British constitution was always premised on elite rule and on the capacity of such a group to carry the majority in society along with them. But in recent times deference has largely collapsed and the very notion of elite rule is widely rejected. It follows that there are few social and moral resources available in the society to impede the steady withering away of the customary practices by which the constitution itself has been extensively defined. We have, therefore, to face the fact that a customary constitution might in some circumstances require resort to an injection of the kind of explicit principles thought to


be characteristic of codified constitutions if it is to survive. Whether this may be the case in relation to the British constitution is a question that will come to the surface several times in the course of what follows.

Notes 1. ‘Fundamentals’ were frequently invoked during political upheavals of the midseventeenth century, notably by Oliver Cromwell in his efforts to secure acceptance of the Instrument of Government, 1653. For extracts from his speech to Parliament in 1654 see J. W. Gough, Fundamental Law in English Constitutional History, Oxford University Press 1955, pp. 129–30. 2. Professor V. Bogdanor, Financial Times, 14 June 2003. 3. The call for a written constitution or charter was commonplace in the Spanish colonies in South America and was even heard in Russia from the Decembrist plotters in 1825. See O. Figes, Natasha’s Dance: a Cultural History of Russia, Allen Lane 2002, Chapter 2. 4. Tom Paine in Common Sense, published in 1776 in the American colonies, made what turned out to be the prescient suggestion: ‘Let a constitutional conference be called . . . to frame a continental charter.’ 5. A notable example of an early constitution setting out basic rights was provided by the abortive Frankfurt constitution of 1849 for a unified Germany. Several of those rights are to be found enshrined in the contemporary German Basic Law, drafted originally in 1949. 6. James (Viscount) Bryce, Studies in History and Jurisprudence, 2 vols, Clarendon Press 1901, Essay III, ‘Flexible and Rigid Constitutions’. 7. Amongst liberal regimes only two resemble Britain in not having a formal, codified constitution: Israel has no single constitutional document, though it has several basic laws; New Zealand’s constitution still rests on what was originally UK legislation and on conventions. 8. Herr Höcherl, West German Minister of the Interior 1961–65, once remarked that politicians and officials could not be expected to govern with a copy of the Basic Law under their arms. Though widely criticised at the time there was more than a grain of truth in what he said. 9. The philosopher Michael Oakeshott (1901–90) famously defined political education as learning to understand the intimations of a tradition. ‘Political Education’, in M. Oakeshott, Rationalism in Politics and Other Essays, Methuen 1962. ‘Tradition’ was, however, understood by him in terms of very concrete practices such as are to be found in the common law and what he refers to as ‘the so-called British Constitution’, p. 128. 10. F. W. Maitland, ‘The Definition of Constitutional Law’, The Constitutional History of England, Cambridge University Press 1908, the final section, pp. 526–39. 11. Montesquieu’s famous work L’Esprit des lois (The Spirit of the Laws) was first published in 1748. 12. Carl Schmitt, German jurist and a sharp and corrosive critic of liberal constitutionalism in the 1920s and later, was keenly aware of this distinction, equating it sometimes with that between conditions of legitimacy and those of legality. See for example, Carl Schmitt, Legalität und Legitimität, Duncker & Humblot 1932. 13. Oakeshott, op. cit, p. 129. The idea of a continuing conversation about the terms on which political action takes place also figures in Oakeshott, On Human Conduct, Oxford University Press 1975, II, ‘On the Civil Condition’.

2 Foundations and Principles

As already explained, the British constitution represents in the contemporary world an unusual type of constitution, one that is uncodified and extensively customary in respect both of its origins and evolution, and its current terms and conditions. But the fact that the conditions expressed in the constitution have been so much influenced by political interests and practical requirements does not mean that there have been no abiding and dominant themes. Indeed, it is very difficult to explain the unusual degree of institutional continuity in British constitutional development without assuming a continuing attachment to particular principles and practices which have functioned as recurrent themes in British political experience. In this chapter the aim is to try to tease out the most important of these themes and thus to provide a basis for subequently looking in more detail at the manner in which they have been expressed in institutions and in their conventions and procedures. The discussion will be taken forward at this stage by considering what are in some degree analogies to ideal types, abstracted from the complexities and ambiguities of actual and historical experience. This means that attention has to be focused on what appear to be the principles or the presuppositions on which particular institutions rest, and more generally the values they have been held to embody. Unavoidably this way of proceeding leaves over for later stages the qualifications that have to be made when the ideal type is set against the messy diversity of actual experience.

Consent and rights A modern liberal constitution of the codified sort generally contains two elements. One of these sets out the institutional arrangements under which the society is to be governed. This may be done in great detail, or may be limited to little more than the basic features of the system of government envisaged. The other element is likely to be concerned with the rights of citizens, what rights citizens can claim and how these are to be 21


maintained. Nowadays the rights part of a constitution is likely to contain something like a charter of rights, though here too the amount of detailed specification varies a great deal. Since the British constitution is both customary and ancient it has not until very recently contained anything like a modern bill of rights, though the term ‘bill of rights’ was probably invented by the English and certainly familiar to them in the seventeenth century. Indeed, the declaration of rights approved by Parliament in 1689 after the expulsion of James II was entitled the Bill of Rights and marked one of the decisive steps towards the establishment of a liberal constitutional order in Britain. Nevertheless, such rights as the King’s subjects enjoyed took shape and were consolidated chiefly in the course of the operation and development of the common law and the courts. In short, that part of the customary constitution concerned with rights that individuals might claim was relegated until fairly recently to the courts and the judiciary: formal statements of rights were thought to be unncessary and even harmful insofar as rights conferred by statute or some other formal instrument might appear to call into question the individual’s natural right to do whatever he pleased provided it was not expressly prohibited by law. So the customary constitution has consisted chiefly of a range of institutional provisions and practices regulating the manner in which the country should be governed. Almost from its earliest stages the constitution tended to require limited government. The most famous of the early charters, the Magna Carta of 1215, expressed principally the determination of the leading feudal barons to subject the King both to certain legal limitations on his powers and to something in the nature of rule by consent. Of course, this was not by any means government by consent as it is understood in the modern world. Indeed throughout the medieval period the King’s readiness to seek counsel and consent from the institutions which were eventually to emerge as Parliament remained highly variable. Nevertheless, enough endured of the practices of taking counsel and consultation with the estates of the realm assembled in Parliament to provide the basis for a much more coherent view of government by consent to become firmly established in the seventeenth century as a consequence of the political conflicts of that period. It was acknowledged that statutes could be made only with the consent of Parliament, that Parliament (and this already meant in the main the elected House of Commons) had to meet regularly and could not be dispensed with as Charles I had hoped, and that the raising of taxes had to have the consent of Parliament. A further achievement of the second phase of the constitutional revolution of the seventeenth century was a decisive affirmation of the notion of the rule of law through the provisions confirming the independence of the judiciary in the settlement of 1688–89. This in turn recognised the status of the common law and the right of the judges to interpret its conditions without fear of interference from the executive.

Foundations and Principles 23

Clearly, however, though the idea of limited government by consent and in accordance with law was acknowledged as an overriding principle of the British constitution at what is a very early date relative to the political development of most other European societies, it is equally obvious that over time the substantive content of law, consent and individual rights changed greatly. It is not until the nineteenth century that government by consent begins to assume recognisably moden characteristics. If the question was asked about whose consent to government was required, the predominant reply before 1832 would have referred to ‘the political nation’ and its recognised representative institutions, that is to say, the two Houses of Parliament. The political nation was a small, mainly propertied group within the wider society, in a sense simply those whose opinions were thought to matter and whose interests could not be overlooked without damage to social and political harmony. Only a few radicals and dissenting thinkers would then have thought in terms of ‘the whole people’. But by the time of the Great Reform Act of 1832 and the modest extension of the franchise that it brought about the notion of popular consent and political rights for at least the bulk of the male part of the population was already in the air and beginning to gather support. This shift of opinion about who might be entitled to political rights in society owed much to the influence of the American War of Independence and subsequently of the French Revolution and all that followed on from that seismic upheaval. But whilst events in France pointed initially to the universalisation of political rights, they quickly revealed a darker and more ambiguous message, one which heralded what some modern political theorists have designated ‘the origins of totalitarianism’.1 Certainly the turmoil of the period from 1789 right through to the final defeat of Napoleon in 1815 left behind in Europe a deep suspicion of radical political change which remained strong throughout the nineteenth century, and not least in Britain which had been largely unscarred by the revolutionary upheaval. Thus, progress towards more or less universal voting rights remained slow and gradual throughout the nineteenth century, though there was enough movement to ensure that by the end of the century ‘government by consent’ came close to meaning ‘consent of the people’, subject to the huge qualification that ‘the people’ still for most political purposes excluded women.2 Yet it still did not mean for many ‘democracy’ or democratic rule: it was only in the second half of the twentieth century that this way of characterising the system of government begins to replace more discriminating terms such as representative government, government by consent, or simply ‘constitutional government’ in the vocabulary of constitutional description. A further aspect of the language of consent needs to be underlined. Another answer to the question about consent could be given in terms of the consent of representatives to the actions of the executive authorities. Indeed, it was precisely because Parliament early succeeded in subordinating


the King’s ministers to its control and supervision that the constitution came to express the principle of ‘representative government’. This was firmly established well before steps were taken to widen the franchise and thus the size and character of ‘the political nation’. The ramifications of the idea of representative government have been very extensive in Britain, and some of these will be explored a little shortly. At this stage, however, what needs to be stressed is the strength and vitality acquired by the principle of ‘government by and through representatives’ in the nineteenth century and after. The British constitution never embodied anything like the direct election of officeholders. Instead it understood the appointment of political officeholders and the control of their exercise of authority pre-eminently in terms of ensuring that they were chosen from a body of representatives – Parliament – to whom they were then in some degree responsible. Eventually it was membership of the elected chamber – the House of Commons – that alone conferred legitimacy on the holders of political office. So pervasive became this commitment to the election of representatives whose task is then to sustain officeholders who govern that there has never until the present time been room for any alternative basic constitutional principle. Parliamentary government has been the only constitutionally legitimate form of rule which lies within British experience. This is why the establishment of the position of a directly elected mayor for the Greater London area – followed by tentative efforts to extend this novel method of filling political offices to other local authorities – amounts to a radical break with a major feature of the traditional notion of representative government. This officeholder (i.e. in London the mayor) has neither been chosen by representatives nor emerged as the leader of a majority of representatives and thus in principle has no need to command their confidence.3 The electorate has in this instance been given the opportunity to confer authority separately and independently on two different kinds of ‘representative’, a duality for which the customary constitution had no place. Before turning to the question of the kind of authority claimed by Parliament as a representative body, it is desirable to interpose some remarks on the other main component of the traditional constitution, respect for individual rights. Contemporary criticisms of the alleged failings of the customary British constitution in relation to the protection and enhancement of civil rights almost always express a peculiarly modern view of rights, that is to say, as something like a catalogue of rights said to inhere in individuals. Such rights then become the basis for an indefinite range of claims that individuals and often enough specific social groups and organisations too can advance politically or pursue through legal argument in the courts and a judicial decision. Though usually carried on in the language of law, such proceedings are often overtly political in character. The traditional British view of rights is deeply embedded in the struggles of earlier epochs to achieve limited government under the law. It owes something to the forces


of religious dissent, for example, the establishment of a presbyterian form of church government in Scotland in the sixteenth century and the rise of dissenting religious movements in England in the century following. But it owes most to the political upheavals initiated by the English Parliament in 1640 when it decided to resist the claims of royal absolutism. The conflict was to culminate in civil war and the temporary destruction of the monarchy, but it led eventually in 1689 to the confirmation of limited government by consent as a cardinal principle of the constitution. Two of the most important effects of this lengthy conflict between Crown and Parliament were first to limit decisively the scope of the Crown to make law or raise and spend money without the consent of Parliament and, second, to leave to the judges and the common law they applied the arbitration of issues involving rights and claims made by virtue of them. In simpler and more modern terms, what this meant was that the state authorities were strictly limited in what they could undertake and that individuals were entitled to do what they liked provided it was not forbidden by law. It was for the courts to interpret statute and to arbitrate in disputes where the claims of one individual came into conflict with those of another.

The rise and fall of negative liberty Political theorists from Hobbes and Locke down to Isaiah Berlin and Herbert Hart have cogently argued that something like the approach to rights embodied in the customary constitution derives much of its strength from a philosophically coherent account of liberty in negative terms, that is to say that having liberty or being free consists in not being hindered by external impediments, including in particular legal prohibitions. It is not necessary to pursue here the qualifications to this theory which it might be necessary to make in an argument about the nature of liberty in a civilised society. It suffices to stress that this understanding of what is involved in being free and, therefore, free to claim rights has a strong element of common sense on its side which has often been missing in the various accounts offered of ‘positive liberty’, the principal rival view of the matter.4 Of more direct relevance to the customary constitution in Britain has been the fact that the common law has been underpinned by very similar views of what is involved in being able to act freely. Judges have for a very long time generally taken a critical, not to say hostile, view of claims advanced by executive authority; they have interpreted statutes narrowly and restrictively; they have shown strong sympathy for property rights and for a wide range of individual claims linked in various ways with ownership of property; and they have in more recent times done much to subject executive action to procedural requirements generally favourable to rights claims by individuals – ‘due process’ as it would be called in the United States. In fact there has in Britain been a congruence between dominant political values


shaping the methods of government and the slowly evolving legal culture which is rarely to be found in the development of other countries outside the Anglo-American tradition. The possession of a right was seen to depend essentially on the availability of a remedy to provide protection against its abuse. The mere affirmation of rights in some abstract declaration, even in a constitution supposedly expressive of the general will, was at any rate until recently regarded as a poor substitute for a regime of limited powers policed by an independent judiciary entitled to apply and develop a traditional body of common law with due regard to both precedent and present needs. Inevitably this account of the place of individual rights in the customary constitution can easily be faulted in detail: access to the courts was often very limited for those without means, judges were by no means always conscientious and fair-minded, politicians and officials could sometimes get round the restrictions on their discretion, the common law has taken on the whole a narrow view of what constitutes a right and has (quite logically let it be said) often been inclined to endorse prevailing social values rather than challenge them in the interests of the individual claimant. But the argument is not about some perfect world, it is concerned with the general tendency of British (and especially English) law in its treatment of individual rights. And the general tendency was for a long time to endorse an approach hostile to extensive public powers, to favour strict procedural restrictions on what executive agents were entitled to do, and to support the view that as far as possible people should be free to do what they like so long as they neither infringe the equal liberty of others to do the same nor break the law. This approach did, however, run into increasing difficulties as the transition from a negative laissez-faire state to one committed to the promotion of general economic and social welfare occurred. This process of change got under way even during the nineteenth century, but hardly became dramatic in its extent and impact until the second half of the twentieth. One important consequence of this change in thinking about the role of the state was that the courts, which in any event were constitutionally bound to defer to statutory authority, became ever more deferential to the executive too and thus lost much of their significance as defenders of individual liberties. Some comments on the implications of these developments for the customary constitution’s view of individual rights and their protection have to be made at this stage, though more detailed discussion must be reserved for later on in this study. Until the Second World War the public attitude towards the extension of the powers and responsibilities of public authorities remained predominantly sceptical and even hostile. Substantial amounts of social regulation had begun to appear even before 1900, and there were major steps in the development of social services and insurance in the years just before 1914. But the commitment to what became known as the ‘welfare state’ did not become general until after the end of the Second World War in 1945 and


the election of a government promising to put through far-reaching measures of social and economic reform. Thereafter it became increasingly difficult to question the role of the state and the desirability of extending its powers: the era of ‘providential government’ had arrived. Despite the warnings of the dangers of governmental ‘overload’ that were advanced during the 1970s by many commentators on public affairs, and of the destabilising effects this might have, the relentless advance of public powers and responsibilities continued under both Labour and Conservative governments, almost as if neither party could envisage solutions to problems in society which do not involve resort to the institutions of government or to quasi-public agencies charged with acting on their behalf. A reaction to ‘big government’ and some of the failures associated with it came in 1979, and during the years between then and 1997 some effort was made to reverse the trend towards constantly extending the powers of public authorities. The call to ‘roll back the state’ was particularly strong whilst Margaret Thatcher was prime minister, though ironically the attempt to do this required an intensification of centralised policy-making and a steady stream of new legislation, much of which conferred new powers on the central government and its agents. But whilst Mrs Thatcher’s policies undoubtedly had a profound impact on the organisation of the economy and on ideas about the appropriate role of the government in a market-oriented economy driven by private capital and initiatives, her heritage has had little significance for the appetite of both politicians and a large part of the public for interventions by government to cure this or that ill in society. Indeed, there are grounds for concluding that the dynamic urge to establish new powers and to regulate social life ever more closely has actually grown during the past decade rather than diminished. In some degree this impulse has been fuelled by membership of the European Union and the need to give statutory force to the directives it produces. It also owes something to the increased readiness in society to question executive decisions and their consequences on the grounds that somebody has been harmed by them or deprived of their rights. This increasingly contentious and even litigious environment inevitably has the effect of encouraging in all spheres, public and private, yet more regulation and control in order, so it is believed, to guard against the risks of such challenges. But the continuing extension of public powers almost certainly arises simply from a widespread conviction that most of the services people need and expect can only be provided if there is public action to bring this about. Thus a paradoxical situation has emerged in which there appears to be virtually unanimous agreement in British society that the economy should operate on market criteria and that economic growth and innovation require as much deregulation and individual initiative as possible, whilst at the same time in virtually all other spheres of social life – health care, education, safeguarding the environment, food standards, immigration and asylum policy, equal opportunities policy,


to name only a few – it is expected that the public authority will prescribe directly or indirectly what services are to be provided, who is entitled to use them and on what conditions, and how they are to be paid for. All this means greater density of legal and administrative regulation – more of the state in one guise or another rather than less of it. It is this environment above all that has deprived the customary constitution’s individualist approach to rights and their protection of much of its effect and validity. The formal restrictions on what individuals, whether acting as such or as agents of organisations of one sort or another, can lawfully do have become so great that there is hardly any space left in which they can be said to be acting freely and assuming responsibility for their own actions and the consequences of them. Yet even more damaging to the traditional view of rights as essentially protections against external constraints is the change of attitudes and values in relation to individual judgement that appears to have taken place in British society. Conformity with what is held to be the majority view, obedience to abstract and general moral injunctions without regard for the circumstances of their application, a readiness to espouse the lowest common denominator of popular approval in political argument, and a rapid decline in the recognition of trust as one of the essential foundations of civilised political and social relations, these are but some of the more obvious changes of the past two decades and longer which have encouraged the conclusion that the customary constitutional approach to the definition of rights and their protection should give way to a different one. This alternative view appears to rest on the belief that rights are only worth having if they are formally posited and set apart from both the processes of political accommodation in a democratic society and from the moral values that any rational person can be expected to acquire through participation in the shared patterns of social life. These themes will be referred to again when we consider the judiciary and its role in the British constitutional order along with the wider question about what residues of the traditional doctrine survive to influence both public policy and judicial decisions.

Authority and sovereignty The preceding paragraphs have been concerned with the importance accorded to the principle of consent in relation to government and to respect for individual rights and freedoms under the British constitution. There is another crucial presupposition of the customary constitution, parliamentary sovereignty, which is often taken nowadays to be at odds with consent and individual rights. For some years now parliamentary sovereignty has been exposed to criticism on a variety of grounds: for example, that de facto it has been abandoned or so riddled with exceptions as to be untenable, that it has facilitated ‘elective dictatorship’ or the tyranny of the


majority, that it serves only to enhance the powers of the central government, or that it has been an incoherent doctrine, at any rate since it received its familiar formulation in the late nineteenth century.5 Yet despite all the criticism piled on the doctrine for many decades it continues to be invoked. The Human Rights Act of 1998 which incorporates the European Convention on Human Rights into British law defers to parliamentary sovereignty by enabling the judiciary only to issue declarations of incompatibility rather than decisions that might declare statute law null and void, and thus break with the principle of parliamentary sovereignty. Similarly, under the devolution legislation establishing a Parliament in Scotland and Assemblies in Wales and Northern Ireland the final authority of the Westminster Parliament both to repeal or modify that legislation and in some circumstances to legislate directly for these parts of the United Kingdom even on matters devolved to them has been preserved. An example of the latter possibility was provided early in 2000 by a request of the Scottish Executive that Westminster should legislate on the equalisation of the age of consent for homosexual relationships even though the right to pass laws on such matters had already been devolved to the Scottish Parliament. Many more examples of the appeal to parliamentary sovereignty could be offered. We must, therefore, ask what the doctrine means, where it came from, and why it persists as a fact of legal and political practice in this country. The principle of parliamentary sovereignty can be set out either simply or with a range of refinements and qualifications. At this stage in the analysis of the defining conditions of the customary constitution a simple exposition of the matter is appropriate. The principle states that the Crown in Parliament has an unlimited jurisdiction to enact laws for the United Kingdom. Whilst this jurisdiction may in practice and reality be limited in many ways, in formal legal terms it remains intact. For example, Parliament could repeal the 1972 European Communities Act, it could repeal the Scotland Act 1998 (as indeed it suspended in 1972 the provisions of the Government of Ireland Act 1920 which had established devolved institutions of government in Northern Ireland), and it could, if it so chose, pass measures in conflict with a variety of international obligations accepted by Britain. The plentitude of powers claimed on behalf of the Crown in Parliament from the sixteenth century onwards means that there has been no alternative source of statute law and that the discretion of Parliament to legislate has not been limited by any formal conditions of the kind encountered in many codified constitutions. Insofar as limits might exist they are to be found in the procedures of Parliament itself, for example, in the normal requirement that a bill has to be approved by both Houses and given the royal assent. If such procedures were omitted or truncated, then it is possible that the courts would simply decline to recognise a statute so enacted as valid law. (This, of course, assumes that Parliament has not expressly amended its enactment procedures, but has instead just ignored them.)


It has sometimes been asserted or suggested that parliamentary sovereignty rests on shaky historical foundations. But in relation to the evolution of Crown and Parliament in England there is not much warrant for such a view. The joining together of Crown and Parliament in the making of laws is well established in the sixteenth century and fully confirmed in the course of the constitutional struggles of the seventeenth, the principal outcome of which was to deny to the Crown any right to legislate independently of Parliament or to set aside parliamentary statutes.6 Occasionally during the seventeenth century there were signs of a desire to assert the existence of ‘fundamental law’ and this appeared very occasionally in court judgements. But modern scholarship has shown quite conclusively that the predominant opinion even at this early stage in the development of parliamentary government was that there were no ‘fundamentals’ which could bind the Crown in Parliament, though this by no means excluded deep respect for the usages established by custom and legal precedents laid down in judicial decisions.7 Of course, there was a certain logical incompatibility between the concern of judges in the mould of Sir Edward Coke in the seventeenth century to preserve their autonomy as sole interpreters of common law and the claims of the Crown in Parliament to legislate as it pleased, even to the extent of superseding conditions deriving from common law. But the tensions were finally resolved in the settlement of 1689 which acknowledged the independence of the judges whilst at the same time confirming the legislative supremacy of Parliament. Needless to say, it was easier to reach this outcome in an epoch when there was little statute law than it would have been two centuries later when law-making was becoming a major activity of Parliament. The principle of parliamentary sovereignty is often considered solely as a matter affecting the authority of Parliament in the passage of laws, their amendment and repeal. This represents, however, only a partial and restricted view of the principle. The sovereignty of the Crown in Parliament implies the interdependence of executive authority and the practices of representation. The Crown is an even older institution than Parliament and remains in a purely formal sense the repository of executive authority, nearly all of which is nowadays exercised by ministerial agents acting in its name or by bodies on which statutory powers have been conferred. Yet the Crown and its agents are severely limited in what they can do independently: the Crown cannot legislate by itself, and in modern times its ministerial agents have depended on parliamentary approval of their actions. Similarly, however, Parliament as an institution distinct from the Crown cannot make law without the assent of the Crown, and what that has meant in practice for many years now is that ministers acting in the name of the Crown assume responsibility for the vast majority of legislative proposals put to and passed by Parliament.8 By this route the fusion of executive and legislative authority, a commonplace of British constitutional discourse at least since Bagehot,


was achieved. To put the matter another way, under the customary constitution the necessity of an effective executive power was always acknowledged, but only subject to the condition that this executive power proceeds from Parliament and accepts its ultimate authority. It is not difficult to discern a very important modern implication of this principle of the interdependence of Crown and Parliament, one which was in fact glimpsed four hundred years ago, but became inescapable only as Parliament (and that means in this instance the House of Commons) was democratised in the course of the nineteenth century and after. This is that the sovereignty of Parliament expresses and confirms the sovereignty of the people. As long ago as 1589 Sir Thomas Smith, who had been Secretary of State to Queen Elizabeth I, wrote of the people being present when Parliament and the Crown act together,9 whilst three centuries later A. V. Dicey, the leading Victorian exponent of the sovereignty doctrine, affirms alongside the legal sovereignty of Parliament the political sovereignty of the people through the election of their representatives to the House of Commons.10 In the British constitutional tradition, therefore, the principle of parliamentary sovereignty really became another way of talking about the sovereignty of the people, democracy and self-government. This is why the idea of Parliament and its unlimited authority has been so powerful both in the popular imagination and for parliamentarians: it has stood for democratic self-government and for the affirmation that all executive authority is held in trust and that those exercising it must be publicly accountable to representatives of the people. Modern political practices might be held to make a mockery of both the effective authority of Members of Parliament and the ultimate supremacy of the electorate, and in due course attention will be given to such criticisms. It does nonetheless remain notable that few would question as a matter of principle the controlling authority claimed for the House of Commons nor the democratic legitimacy of that body. At the heart of the political system there is still the principle of parliamentary sovereignty, justified as an authority conferred on Parliament by the people.

A parliamentary executive Some further consequences of this fusion of parliamentary and popular sovereignty need to be mentioned. The emphasis on the rights of Parliament to control the executive has meant that for a couple of centuries or even longer government has been chiefly in the hands of elected officeholders, that is to say, Members of the House of Commons. A wide range of political consequences have flowed from this, and in particular the principle that officeholders exercising powers under statute and in the name of the Crown should be removable by Parliament. In contemporary conditions that may in certain circumstances mean removable by the electorate, as happened for


example in 1979 after the Callaghan government lost a vote of confidence and was subsequently defeated at the polls. Another consequence is the maintenance of an unusually sharp distinction between political officeholders – for the most part ministers who, even though appointed to office, are accountable to elected representatives and draw their authority from being elected themselves – and officials of all kinds who are merely appointed. Whilst such official officeholders may have considerable functional authority, they rarely have any political authority entitling them to pronounce publicly on questions of policy.11 Yet another consequence, and one which has become very important in the context of Britain’s external commitments, is that the close identification of parliamentary sovereignty with government by the people has made it difficult for British governments to accept continuing encroachments on their capacity for independent action. To do so is to run the risk of being accused of weakening democratic self-government itself. It is especially in the British relationship with the European Union that the customary constitution with its strong emphasis on self-government through sovereign representative institutions has turned out to be a source of serious tensions. Just as it is difficult to reconcile the Swiss principle of popular referendum with the obligations of membership of the European Union, so it has remained hard to get round analogous problems presented by the idea of a sovereign representative body like the British House of Commons. To this day the dilemmas in this connection have not been resolved.12 In much of the contemporary critique of the customary constitution it is frequently asserted that it has facilitated and indeed encouraged political centralisation. In one sense this is true, that is to say, the principle of government by consent has in the conditions of majoritarian democracy favoured the notion of government by party mandate. This in turn has strengthened the claim of the majority party to fulfil its mandate by putting into effect the policies it has offered to the electorate and this inevitably entails considerable emphasis both on unified policy-making and the maintenance of unity within the government itself. More recently there has also been a commitment to the achievement in many fields of equal outcomes in the implementation of policy and this has strengthened further the tendency to reinforce political and administrative centralisation. At a later stage it will be necessary to consider the extent to which current measures of devolution really do represent a principled abandonment or at least dilution of the claim advanced by political parties to carry out their national mandate by vigorous use of the authority of Parliament and the resources of central government. Nonetheless, it needs to be stressed now that the customary constitution has not always and consistently had the character attributed to it by so many contemporary critics. Certainly it has been a recurrent theme in the evolution of the patterns of government in the United Kingdom that the political unity of society as a whole should be maintained, and from the eighteenth century onwards this has meant that


the capital city, London, has had a dominant position in political life as well as in many aspects of the economic and cultural life of the nation. But the pursuit of political unity has generally been accompanied by the toleration and acknowledgement of difference and diversity in society, and by acceptance of a large degree of unevenness, variety and anomaly both in the structures of government and administration and in policy outcomes. There have been and remain many examples of this readiness to eschew consistent principles and uniformity of methods in favour of letting people do things in the ways they prefer and are familiar with. Scotland has since the Treaty of Union in 1707 had a variety of institutions and arrangments peculiar to itself, notably its own established church, a large sphere of Scots private law, and distinctive educational methods. The factors of different treatment as between Scotland and England have in the past century increased rather than diminished. Wales also moved during the past forty years or so towards distinctive administrative arrangements for the provision of many public services there. The Channel Islands and the Isle of Man constitute remarkable historical survivals enjoying a great degree of independence in how they are governed and what they do. In contrast with these cases Ireland presented in the nineteenth century intractable problems. Whilst it enjoyed substantial political representation in the Westminster Parliament it was governed in some respects like a colonial territory, though even this unpopular regime embodied many features of special treatment. During the past forty years local authorities in Britain have without doubt lost most of their political significance and much of their influence. This has happened in part as a consequence of their steadily increasing dependence on the central government for funds, but has also owed much to the obsession of the major parties with national politics and their readiness to regard local authorities simply as instruments for the implementation of policies determined at the centre. Nonetheless, local councils retained until quite recently substantial independence in respect of what they did, how they were organised, and the standards of service they maintained or aspired to. Part of the explanation for this state of affairs (even though it is now being rapidly changed as a result of the more vigorous pursuit of policies of control and inspection in many sectors of service provision since 1997) lies in the absence in Britain of anything like a uniform and centrally controlled structure of administrative supervision, or a unified system of public law intended to promote uniform standards and procedures. In these respects the contrast with European experience over the past two centuries is striking. A further qualification to the criticism of the customary constitution for its alleged encouragement of centralisation is to be found in the undoubted protection that it has for long enough afforded to private individuals and organisations wanting to espouse a particular cause, press a point of view or set of beliefs, or defend and advance particular interests of whatever kind. Such protection has not been provided by appeal to general principles pur-


porting to endorse social pluralism or anything like that. Still less has it been conferred by legislative measures setting out the rights and privileges of the ‘social partners’ or ‘stakeholders’ as they are often called in the contemporary jargon of social cooperation and community solidarity. Until very recently the pluralism of British society was largely the result of autonomous private actions and initiatives, many of which gradually over time acquired a measure of public and official recognition. In the course of the twentieth century many organised interests became in this way more or less integrated into the consultative processes surrounding the formation of policy by the central government. But the foundation on which this myriad of interests and pressure groups exists has been primarily the freedoms they could and in some cases did claim under the common law – freedom of expression, the right to organise and collect funds, the right to own and use property, the right of free association and so on. Even where statutory regulation came in, as it did a long time ago in the case of charities, the aim was not so much to regulate and prescribe conditions as to provide a framework under which charitable bodies could qualify for certain financial benefits and the public be protected against those who might be tempted to exploit their generosity and readiness to support private charitable effort. The traditional individualistic foundations of a pluralist society in Britain may now be under threat. But much of this heritage of independent social action still survives and, indeed, is frequently evoked by politicians.

Weakening the foundations of the customary constitution Whilst there have certainly been dominant themes in British constitutional development that have been present for a remarkably long time, the customary constitution does not conform to some of the now familiar models of a liberal constitutional order. For example, it does not exemplify in a straightforward way any version of the separation of powers. Indeed, there is no obvious separation between the three principal modes of power in the modern liberal state – the legislative, executive and judicial – even though the theory of the separation of powers was in fact drawn mainly from English experience and practice.13 Yet despite the close interrelationship of the powers of government which exists, important elements of separation of powers remain, for example, between an independent judiciary and the executive, or between Parliament as legislature and source of authority on the one hand and the executive which is both in Parliament and accountable to it on the other. However, whilst it has often in the past been claimed that the British constitution expressed commitment to the principle of checks and balances, this too has been strongly challenged in modern times. Apart from the fact that checks and balances is inevitably an ill-defined and shifting concept, there is also plenty of evidence to show that for roughly a century now there have been few effective checks of an institutional nature


on the political supremacy of a government able to act with the support of a majority in the House of Commons. Legislation can be passed over the veto of the second chamber, the House of Lords, by the application of the Parliament Acts of 1911 and 1949, and until recently there was nothing to stop a government using its parliamentary majority to set aside a judgement of the courts by passing legislation intended to overcome the obstacles set up in this way. Such discretion to override judicial rulings may now in practice have been limited by the effects of the Human Rights Act 1998, and there are difficulties too in the way of modifying or suspending any interpretation of European law reached by the European Court of Justice. More generally, the twentieth century witnessed a gradual erosion of many of the checks on government inherent in a wide distribution of economic and social interests throughout society. A vigorous and active social pluralism such as formed the context in which the customary constitution evolved during the nineteenth century and for much of the succeeding century has given way to a pluralism that often serves to justify demands for government support and sponsorship rather than expressing a readiness to undertake independent initiatives financed out of private resources. In this way the environment in which Britain is governed has changed and this in turn puts question marks over underlying constitutional beliefs about the presence of checks and balances in society capable of setting limits to such action as the national political authorities decide to undertake. Despite the difficulties in the way of applying some of the familiar institutional yardsticks to the characterisation of the British constitution, it has nonetheless remained far more coherent in respect of its underlying principles than has been allowed by most of its critics in recent years. The enduring commitment has been to government by consent under the law. This implies in the first place acceptance of the necessity of an effective governing authority to hold society together. Whilst the Crown was once in reality this governing authority it is now only its symbol, with effective power in the hands of ministers. It has been the position of ministers in Parliament that has expressed the principle of government by consent. But the activity of governing had to be conducted within the limits of prevailing law, even though the customary constitution recognised that there had to be a sphere of discretionary action too if the public interest was to be served effectively. By virtue of its coherent approach to the basic requirements of limited constitutional government the customary constitution provided a durable framework for the conferment of authority on officeholders; it facilitated the effective exercise of executive powers whilst also imposing limits and controls on their use; and it contributed significantly to the capacity of society to guide and manage change. On this basis the customary constitution came even in the eighteenth century to symbolise both adaptation and continuity, and precisely on that account has hardly ever been the object of root-and-branch criticism or outright rejection. Fierce controversies have


raged on particular issues, notably the reform of the franchise in 1830–32, home rule for Ireland in the 1880s and later, or reform of the House of Lords in 1910–11. But with the exception of many of the Irish nationalists, few of those involved in such major political controversies were ready to call the whole constitutional order into question: they wanted specific reforms rather than wholesale change. The relative invulnerability of the British constitution to the call for thorough-going change appears, however, to have weakened in the course of the past two decades or thereabouts. Though such a shift of opinion may well be confined to a relatively small but articulate segment of society, and for that reason has received more attention than perhaps it deserves, the fact that it has taken place remains hard to explain in the absence of the kind of difficulties which in other societies have generally provoked a radical reappraisal of constitutional arrangements. Britain has not experienced chronic governmental instability; there has been no interruption in the normal flow of legislation and regulation; there has been no obvious dislocation of party relationships and habits despite signs of change in the 1980s; the public administrative system continues to be generally effective and non-corrupt; the judiciary is independent and for the most part respected for the way in which it carries out its tasks. Moreover, despite bouts of social tension in the wake of industrial disputes and between ethnic groups in the larger cities, there has been no strong popular demand for radical political and constitutional reform. In short, there have been no signs of disintegration or blockage of the sort that often stimulate a demand for radical changes in the manner in which a country is governed. Nor have there even been specific ‘mischiefs’ for which an outraged public opinion demanded constitutional reformation. Instead something like a mood change appears to have taken place, especially amongst the middle class, and as a result of this the constitution has lost many of the well-defined contours which at least until recently it retained. In the course of this process of change the respect and even reverence with which what were held to be constitutional norms have been seriously eroded. In such a climate of opinion the customary constitution becomes peculiarly vulnerable to demands for change coming from many quarters. Just because the demand for change has rarely been driven by the need to remedy manifest evils or to solve urgent and pressing problems, it easily merges into a generalised call for the modernisation of Britain, its way of life and institutions. It is not at all clear what the contemporary demand for a thorough modernisation of British political institutions and of traditional conceptions of the rule of law actually implies. It could in theory reflect a widespread rejection of one of the most important factors underpinning the customary constitution, namely, respect for convention as a crucial element in the maintenance of constitutional practices. Gestures pointing in this direction are sometimes made by people in the public eye, but the evidence in favour


of a general and conscious rejection of convention as the glue of political life and public affairs is far from compelling. Nevertheless, at a time when many moral and social conventions are quite openly dismissed as irrelevant and are then ignored, the survival of the so-called conventions of the constitution is bound to be called into question. Alternatively, modernisation might imply rejection of the claim so often made on behalf of the customary constitution that it guaranteed flexibility and pragmatic improvement and a call for its replacement by a commitment to a rational and systematic reconstruction of the constitutional order. However, the constitutional reform programme pursued since 1997 hardly resembles a new Benthamite programme for the systematic improvement of British institutions. Instead, most of the programme has been piecemeal and pragmatic in both content and direction, and has indeed been robustly defended by one of its leading architects as resting on ‘pragmatism based on principle’.14 For that reason it might even be said to express a very traditional British approach to constitutional reform. There is yet another hypothesis about the nature of contemporary constitutional change which it is worth mentioning now, though closer consideration of it will have to wait until later in the argument. This is that it represents not so much a deliberate programme of reform as a somewhat eclectic and opportunistic response to demands generated both by changes in British society and in the wider economic and political context within which Britain has to survive and flourish. Thus what might be called the ‘equal treatment’ agenda, for example, is strongly driven by internal social change, including the need to accommodate the claims of so many new ethnic minorities, and the demands arising out of that. In addition it also receives added impetus from a variety of commitments stemming from membership of the European Union and acceptance of the European Convention on Human Rights. It has often been observed in the course of the past two decades that the epoch of explicit and competing political ideologies has passed. Hardly any political party in Britain or in similar societies claims to be inspired and guided by a well-defined body of beliefs about the structure of society, how this needs to be changed, on what principles and by what means. Naturally all kinds of ideological residues survive and the collapse of certain beliefs always leaves space for something else gradually to fill the vacuum so created. Nevertheless, at the present time there is a very widespread consensus to the effect that only societies based predominantly on market relationships and conditions are likely to advance prosperity, and that such societies must be committed to democratic methods of government and respect for individual human rights. In the context of such broad and loosely defined values it becomes more and more difficult to bring constitutional issues into sharp focus. There is a declining awareness of the manner in which particular procedures are intended to express and sustain certain values and relationships, and gain their importance from an understanding


of that fact. There is a tendency to accept a ‘managerialist’ view of most social organisation and activity, treating particular arrangements as purely instrumental, intended to facilitate the performance of certain tasks, and with little or no intrinsic value in terms of the relationships between individuals that they prescribe. And there is an increasing readiness to accept that society as a whole is porous and open to external influences and demands to such an extent that it has no option but to go along with changes which appear to be required by circumstances and self-interest. In the wake of such a development the notion that particular constitutional habits may actually embody what has hitherto been regarded as selfgovernment weakens, and as a consequence an important aspect of what had previously been regarded as the national identity is called into question. It has, therefore, to be recognised that when something as deeply rooted in the history of Britain and the nations composing it as the customary constitution is declared to be in need of sweeping changes, issues are raised which go well beyond the procedures embodied in the institutions of government and the conditions of constitutional law and convention. They concern the social and moral foundations of the political order and the terms on which citizens wish to live together. Under the customary constitution it was widely believed that much of this was well understood, even though best left implicit in social and political habits rather than formalised explicitly. The contemporary reform agenda points at least in principle to the need for a more deliberate and coordinated statement of the terms on which the country is to be governed and of the rights its citizens are entitled to claim.

Notes 1. F. J. Talmon, The Origins of Totalitarian Democracy, Secker & Warburg 1952; also for a similar view, see H. Arendt, The Origins of Totalitarianism, Meridan Books 1958. 2. It was not until May 1864 that W. E. Gladstone committed himself publicly to the proposition that ‘every man . . . is morally entitled to come within the pale of the constitution’, a declaration pointing towards the second Reform Act 1867. 3. Greater London Authority Act 1999. The constitutional structure of the GLA is unusual (at any rate in Britain). The mayor and assembly are conjoined, yet separate institutions: sections 1 and 35 in particular refer. 4. Isaiah Berlin, The Two Concepts of Liberty, OUP 1958, draws the sharpest of contrasts between negative and positive liberty; H. L. A. Hart, The Concept of Law, OUP 1961, does not focus specifically on this matter, but nonetheless the negative view of liberty underpins his definition of a system of law. 5. A. V. Dicey, Introduction to the Study of the Law of the Constitution, 10th edn, Macmillan 1959, Part I: Chapter 1 is especially relevant. 6. The Crown retained and retains prerogative powers which amongst other things may allow it to make law by Order in Council. But this is normally done on the


7. 8.

9. 10.

11. 12. 13.

14.

basis of a specific statutory provision and such orders are likely to be subject to parliamentary approval. Gough, Fundamental Law; more recently J. D. Goldsworthy, The Sovereignty of Parliament: History and Philosophy, OUP 1999. Most legislation now consists of public, that is, government-proposed bills. But a small amount of public legislation is still promoted by private Members of Parliament; there is private legislation promoted by public and private corporate bodies; and there are Church of England Measures too. Maitland, Constitutional History, p. 255. Dicey, op. cit., p. 432, refers to ‘the ultimate supremacy of the political sovereign, or in other words of the electoral body’. The first edition of Dicey’s work appeared in 1885. It is, of course, the absence of an electoral mandate that seriously diminishes the political standing of ministers sitting in the House of Lords. See N. Johnson, Can Self-Government Survive? Britain and the European Union, Centre for Policy Studies 2000. Classical sources for the theory of the separation of powers are the writings of John Locke, Montesquieu and Hamilton, Madison and Jay, the leading protagonists of the American constitution, in The Federalist (1787). Lord Irvine of Lairg (then Lord Chancellor), ‘Britain’s Programme of Constitutional Change’, University of Leiden, October 1999, p. 2.

3 Institutional Pluralism and Subsidiarity

A heritage of diffused powers: local self-government The customary constitution has, as already indicated in the preceding chapter, been marked by values capable of pointing in different directions. The sovereignty principle pointed towards legal and political unity and strong central institutions. But religious and moral individualism along with widely diffused property rights worked against a dominant and intrusive central authority and encouraged the self-reliance and independence of local communities and of a wide spectrum of economic and social interests. Today one of the most persistent criticisms made of the customary constitution in operation is that it has encouraged over-centralisation, a state of affairs in which the central institutions refuse to allow any genuine freedom of action and discretion to the diverse range of institutions working below the level of national government. In the lecture already referred to in the previous chapter the then Lord Chancellor, Lord Irvine of Lairg, spoke of ‘a long drift towards ever greater centralisation of political power’ and of ‘government that was over-centralised, inefficient and bureaucratic’.1 There is indeed much evidence in favour of the contemporary critical conclusion that Britain has increasingly suffered from the negative effects of an overcentralised structure of government, though it is then desirable to specify with some care just what types of over-centralisation are being criticised. But there is an alternative and different account of what historically has been the shape of the modern state in Britain which it is worth considering, if only to throw light on much that has been lost. This is to regard the dominant constitutional tradition from the mid-eighteenth century onwards as one that was essentially sympathetic to institutional pluralism, tolerant of diversity, and above all hostile to uniformity of regulation and service provision. Though the concept of subsidiarity is an import from continental Europe, according to this alternative view of how the British state evolved, ‘subsidiarity’ of a home-grown variety has, at any rate until quite 40

Institutional Pluralism and Subsidiarity 41

recently, played a significant part in the shaping of modern British governmental institutions.2 The British constitution, certainly from the time of the early Victorian political and administrative reforms, underpinned a structure of government that was in some degree unified rather than unitary. In sharp contrast with France and other European states such as Prussia and Austria there was in Britain no attempt to establish a permanent state administration emanating from the central authorities and exercising some degree of legal and political control over the whole country. The social and political interests embodied in the magistracy, in local corporations, in the Church of England, in local magnates exercising political patronage, and in many other independent social and economic organisations were strong enough to render the idea of a unitary state run by professional officials an extravaganza suitable only for foreigners not endowed with the English genius for liberty. The developing Victorian state certainly embodied institutional innovations capable of one day enforcing a range of uniformities, and the apostles of utilitarian administrative reform in the years after 1832 like Sir Edwin Chadwick could see much scope for the introduction of more rational and efficient methods of administration. The most striking of the administrative reforms was perhaps the emergence of a powerful Treasury able to enforce a strict control of public spending and to harness the House of Commons through the establishment of the Public Accounts Committee in 1860 to the same end. There was too the gradual emergence of ministerial departments as the preferred means of maintaining overall supervision of government spending and of those functions for which the government assumed a direct responsibility.3 But there was also firm rejection of the notion of a strong executive role for central government. Instead there was a desire to leave the provision of most services (which were in any case on a modest scale indeed) to authorities and agencies quite separate from the central institutions. A General Board of Health was established in 1848 with a variety of public health functions, but was allowed to fade away ten years later as its tasks were increasingly discharged by local authorities. Even the one outstanding example of decisive central government direction, the Poor Law Commissioners set up in 1834, gradually ceded their responsibilities to local bodies in the second half of the nineteenth century. Meanwhile elected local authorities had become firmly established in towns by the Municipal Corporations Act of 1835, the founding charter of modern local government. Essentially this established elected councils as the corporate bodies charged with carrying out locally whatever tasks Parliament by statute required them to perform or set within their discretion. And they had from the start independent revenue-raising powers in the shape of the rates, a tax on the ownership and use of property. The representative principle was extended to the counties and rural areas by 1888 and by the end of the century it was becoming clear that the notion of service provision


through special purpose local boards was giving way to a concentration of responsibilities in local authorities. Nowhere was this more clearly demonstrated than in the education field where the provision and running of schools became one of the principal local authority responsibilities by 1902. After the end of the First World War the provision of social housing also became a growing concern of local authorities so that already by 1939 British local authorities were almost unique in Europe as the providers on a large scale of subsidised council housing. The potential for central control and supervision of local elected councils was there more or less from the middle of the nineteenth century when grants for various purposes began to be paid to them by the Treasury, the Local Government Board, later on the Board of Education and other central departments. But so long as local councils complied with the sometimes rigorous formal requirements laid down for receipt of grant, they were usually left with wide discretion in the planning and provision of the various services they provided. The local education systems, for example, developed independently of central direction and there was in Britain nothing resembling the structures of state supervision of schools and of teaching common in continental Europe, even though there was from the middle of the nineteenth century onwards a national inspectorate for schools in England and Wales. And this was a situation that persisted until quite recently. After all, the decisive step towards central government intervention in the school curriculum was not taken until 1988.4 Following the Second World War local government spending increased greatly, boosted substantially by central contributions which gradually were for the most part consolidated into a block grant, a method of support that left the recipient authorities considerable room for exercising discretion in deciding how to allocate their resources among different services. Central financial support for local authorities was intended both to boost the provision of certain services – for example, public housing in the period 1945–60 – and to equalise available resources as between authorities with a healthy tax base and those far less favourably endowed. The rapid development of the grant system and the dwindling share of local revenues derived from the main source of local taxation, the rates levied on domestic and business properties, undoubtedly strengthened the view in Whitehall that local authorities were simply tools or agents within an overall system of service provision for which the government laid down the conditions and, if possible, claimed the credit. Yet despite the steady advance of central funding and of central policy demands in the years after about 1960, local authorities in Britain remained remarkably free to discharge their functions as they saw fit. They were still not subject to anything in the nature of prefectoral supervision, many detailed controls were dismantled during the 1950s as their original wartime justification passed away, there were only specific and occasional interventions by functional ministries to urge their particular priorities on local


authorities, and collectively local councils were usually successful in resisting proposals for structural reform. In short, there was a genuine pluralism in the local government world and politicians at the national level generally respected that as a fact of life. Nevertheless the foundations of this measure of institutional pluralism were under threat. The social elites in both what were known as the shire counties and in many of the larger county boroughs with strong traditions of municipal government were gradually weakening, and especially inside the Conservative party.5 In parallel some of the structural conditions on which local autonomy rested were changing. There was growing financial dependence on the Exchequer and increasing dissatisfaction on the part of the central government with the apparent inability of local authorities to control the rate of growth of their spending. At the same time it was becoming normal to criticise local authorities for their apparently cumbersome and hide-bound methods of work, and to question their capacity to operate efficiently.6 In the wake of the report of the Redcliffe Maud commission in 1969 the map of local authority jurisdictions in England was radically redrawn in 1972–74 in favour of fewer and larger authorities. But the most important effect of these changes was that party politics became dominant practically everywhere. This in turn increased the risk that in the event of serious party political antagonism emerging between the worlds of central and local government, the former would take drastic steps to impose its view of the terms on which local authorities should carry out their tasks and under what conditions. And this is precisely what happened during the 1970s and was then powerfully driven forward by the Thatcher Government after 1979. Legislation subjected local authorities to a much greater degree of central government control of their funding and expenditure than had ever been known before. Developments were set in train to reduce local functions and responsibilities substantially, for example, by the sale of council houses and the transfer of rented social housing to housing associations. In addition local councils were required by statute to subject their activities in many fields to the rigours of competitive contract and market testing. The outcome of the evolution just sketched out has been without doubt a shift away from the respect for institutional diversity and autonomy that had characterised the field of local government in Britain. It became possible to talk of a substantial centralisation of policy-making in many spheres, most notably school education, and this was accompanied by a significant strengthening of the instruments of inspection and supervision, all developments that have continued to intensify up to the present time. Yet even in the face of the qualitative increase in centralisation over the past twenty years or so lip service continues to be paid to the idea of local institutional pluralism, and there is still some reluctance to assert openly that the primary duty of local authorities is to act efficiently as the agents of the relevant central government department or agency in the provision of services.


Though a complex pattern of oversight by central departments and their agencies of the activities of the local service providers has taken shape, prefectoral supervision by an agent of the state, the classic European method of ensuring that local representative bodies are subject to the guidance and legal control of the central authority, has never been seriously contemplated.

England’s partners within the United Kingdom Until very recently, subject to one exception, there were no representative governing institutions at any other level than that of local communities. Yet Britain had been for a long time a tripartite kingdom – England, Scotland and Ireland – with an adjacent Principality, Wales. Apart from the shortlived experience of an Irish Parliament that came to an end in 1801 none of these national entities had any political institutions of their own that could claim to speak on behalf of their own people. That situation was changed after 1918 when most of Ireland gained de facto independence, whilst the six counties in the north came to constitute the province of Northern Ireland which remained in allegiance to the Crown, was represented in the Westminster Parliament, but also acquired its own institutions of self-government, a legislature and an executive. This peculiar example of a federal structure in one part of the United Kingdom (underlined by its inclusion in the formal title of the United Kingdom of Great Britain and Northern Ireland) was to survive until its abolition in 1972 to make way for direct rule of the province by a secretary of state in the British cabinet. It is important to recognise that this exceptional grant of self-government to Northern Ireland became acceptable to Westminster in the years after 1920 chiefly because British governments were weary of Ireland and its troubles, and were content to let that fragment of the country that insisted on its loyalty to the Crown get on with looking after its own affairs. In England itself most of the doctrinal passion stirred up by the arguments about Home Rule that had raged from 1886 to 1914 had drained away, not least because the large cohort of Irish Nationalists had departed from the Westminster Parliament. Provided the customary reservations regarding its ultimate authority and supremacy were made, Parliament was by 1920 willing to see powers devolved to Belfast and to let them get on with governing themselves.7 The bitter experiences of Northern Ireland during the past thirty years should not be allowed to obscure the fact that for about fifty years the province appeared to demonstrate that a system of devolution could be operated within the framework of the customary British constitution. This lesson was to be picked up again in the most recent and far more extensive efforts to create devolved institutions of political representation and government outside England. For political, religious and historical reasons Ireland was always a special case in its relationships with England. Scotland and Wales were more


thoroughly and more easily integrated into a unified British state. In the case of Scotland the Treaty and Act of Union of 1706 and 1707 had by mutual agreement of the two Parliaments incorporated Scotland into an entity to be known as Great Britain, though subject to the protection and even entrenchment of important features of Scottish nationhood such as the Presbyterian Church of Scotland, Scots private law and Scottish educational institutions. As for Wales it had never really achieved organised political identity and as a result was generally treated as something like a western extension of England. But the fact that Scotland and Wales were in certain ways absorbed into the English state which in turn became officially the British state did not mean that they were simply ruled like colonies by governors sent from London. In Scotland in particular local social and professional elites played a big part in running the country which was (like Wales) fully represented in the Westminster Parliament. Gradually, as representative institutions of local government developed in England, so a similar process got under way in Scotland and Wales. Then in the course of the twentieth century these nations acquired a degree of administrative autonomy and a voice in British cabinets. Scotland began to advance along this road as early as 1885 when a Secretary for Scotland was appointed for the first time and it then proceeded along it more rapidly and completely than did Wales which did not acquire a secretary of state until 1964. But by then both countries had substantially autonomous administrative institutions, their own budgets, and scope for pushing their own interests through territorial ministers sitting in the British cabinet. Of course, administrative devolution as it came to be called did not satisfy the political aspirations in Scotland and Wales to gain elected assemblies entitled to run domestic affairs in each country, and eventually at the end of the twentieth century the decision was taken to fulfil these aspirations by passing the devolution legislation. But again, this outcome should not be allowed to obscure the fact that first Scotland and then Wales did acquire under the system of administrative devolution and ministerial representation in London a substantial degree of autonomy in the management of their own affairs, albeit within a United Kingdom political and financial framework. In two cases, Scotland and Wales, devolved government involved distinctive administrative arrangements under the control of cabinet ministers. In Northern Ireland there was until 1972 a ‘home-rule’ solution that allowed extensive political autonomy to the province, though as noted above, this owed much to lack of interest in Northern Ireland shown by successive governments in London right down to the beginning of the ‘troubles’ in 1968. When the political authorities in Northern Ireland ran into really serious difficulties in maintaining law and order in 1972 this structure of selfgovernment was replaced by direct rule from London through a secretary of state, supported by a small staff and the existing provincial administrative services provided by the Northern Ireland Civil Service. Thus a certain sym-


metry was accidentally achieved in the principal form of devolution then prevailing. It was one that concentrated responsibility in the hands of British ministers charged with territorial functions and yet sharing in the collective responsibility of the cabinet. This tolerance of a territorial dimension to the distribution of ministerial functions, notwithstanding the rejection of this practice by most of those who tried to establish sound principles for the allocation and organisation of functions in the government,8 survives to an attenuated degree even today. The readiness to put up with anomalies extended as far as the acceptance within the British state of remarkable historical survivals like the Channel Islands and the Isle of Man. Both these dependent territories of the Crown have retained their own representative institutions, are not represented at Westminster, and are not under the direct supervision of any department of the national government. Whilst it may be held that these ancient possessions of the Crown are so small that there has never been any need to question their anomalous position, their survival does nonetheless demonstrate the willingness of British politicians to put up with oddities and unevenness in the institutional structure of the country and, indeed, often to argue that it is desirable to do so.9

Pluralism harnessed to public purposes Apart from elected local authorities and devolved administrative institutions there developed during the past century a formidable range of public, quasipublic and purely private bodies, most of which became involved in varying ways in carrying out functions that either had or assumed a public service nature. Categorisation of the myriad of agencies and organisations in this area is a difficult and perhaps unrewarding undertaking: they differ markedly in their genesis and formal basis, they acquire funds in many different ways, and where relevant have a range of different financial relationships with the central governmental authorities. They also reveal a remarkably diverse range of organisational characteristics.10 Some bodies remain dependencies of central departments of state, though intended to operate with substantial autonomy. This is especially true of the executive agencies set up since 1988 in an effort to separate the policy-making and financial allocation functions of government departments from the executive tasks falling to them. Over a considerable time many bodies have been set up specifically to carry out tasks which the relevant central department prefers to see dealt with ‘at arm’s length’ from its own activities. Research councils charged with the distribution of funds in support of different types of research are good examples of this method; similarly public funds for universities are shared out by further intermediate bodies appointed by, but separate from, the responsible government department. As for universities themselves they are bodies corporate by reason of charters granted by the Crown and in principle remain private self-governing institutions, though


by virtue of becoming ever-more dependent on the receipt of public funds they have now become subject to a steadily increasing battery of external controls.11 Many of the quasi-governmental bodies have essentially executive functions in the sense of providing a service to the citizen, others are concerned chiefly with the distribution of grants and perhaps other forms of support, whilst others are charged with regulatory functions. The latter may apply to the public and private sectors, and is likely to involve resort to legal procedures and enforcement in widely varying degrees. A good example of this latter category is the Charity Commission, a body of nineteenth-century origin equipped with statutory powers to regulate and supervise charities of all kinds. There are also many bodies which have mainly an advisory role, and that too can be discharged in many different ways. And formally outside the public sphere there is a vast spectrum of private organisations represented or expressing a large range of interests and causes. But in the contemporary world even many of the nominally voluntary and private organisations tend to be drawn into the network of public interests and official financial support, and sometimes end up offering what is regarded essentially as a public service, even though offered on an entirely private basis. The National Trust is a striking example of such a private organisation performing what are to a large extent public-interest functions. The St John Ambulance organisation with its first-aid work at large events all over the country is another. It has been a common feature of most of those bodies possessing some degree of public status and exercising functions of a public nature that they have generally been expected to exercise such powers as they have with a substantial degree of discretion. This is to some extent a reflection of habit on the part of the central authority which has, at any rate until very recently, shied away from assuming direct executive responsibilities except in certain areas such as revenue collection, the payment of state pensions or the provision of employment services, and preferred to keep its overt policy commitments to a minimum. Then, as the social-welfare functions of government widened, the central authorities preferred to rely either on local authorities or functional agencies separate from central departments of state to provide whatever services had been approved in legislation or to regulate those in the private sector who were making such provision. A further factor sustaining some discretion on the part of the executive agents was that the financial support they often received from the centre was, at any rate in the second half of the twentieth century, generally provided on terms which allowed for the flexible application of the funds. Only in the past two decades or thereabouts has it become clear that the central authority was losing faith in the capacity of such flexible financial arrangements to ensure that its priorities would be adhered to and its targets achieved. The idea of the central government as an enabling authority in many fields, and thus in some sense the partner of a varied range of subsidiary bodies such as local


authorities, was beginning to give way to a view of the central government as the driving force – controller and general manager – in something like a national network of service provision. Another factor upholding a relatively unsystematic structure of service provision in which different types of agent enjoyed substantial discretion in deciding how to operate was the underlying bias in the judiciary’s interpretation of statutes in favour of leaving discretion and responsibility with those authorities on whom the functions had been conferred. Clearly this preference for leaving discretion with the executive agents could usually find expression only where there was a statutory basis, and of these conditions local authorities used to provide the best examples. If legal disputes arose and came before the courts, then it was always likely that the courts would insist that the legally responsible body should use its powers and exercise whatever discretion it enjoyed. This approach reflected two deep-seated assumptions at work in the development of modern government in Britain. One was that there should (as far as is practicable) be clarity in the specification in legislation and in administrative practice of whatever functions were being established and of who was to take charge of them. There has been virtually no equivalent in British public law to the continental European method of defining powers broadly and in the abstract by stating what is to be done, but often with no reference to the officeholders or agencies who would actually be responsible for action. The other important assumption, this time on the part of the courts, has been that it is not for the judicial authorities to get involved in deciding what should be done and how. Their role has been to set out the relevant law and to elucidate what implications, for the most part mainly procedural in nature, that might have for the executive agents themselves. Again there was a strong disinclination on the part of the courts to substitute their judgement of what should be done – inevitably a policy judgement – for that of the agents charged with the statutory responsibility. Where public or semi-public bodies have been given a discretion to act, it was up to them to decide how best to discharge that responsibility.12

No theory of the State, but more power for the central government The absence of a coherent notion of the state as a set of legal norms intended to provide the framework within which the activities of all public authorities have to be set has been a familiar and persistent feature of British constitutional development. This outcome was in many respects a natural consequence of the individualist postulates of political and social life which were being hammered out by the end of the seventeenth century and have remained highly influential ever since. It left space for the growth of a public institutional pluralism which by the early decades of the twentieth century


was almost an article of faith whenever new functions were accepted and had to be assigned to suitable organisations. If they could not be taken on by local authorities, then the likelihood was that an ad hoc solution would be found by the setting-up of some special-purpose agency – public, quasipublic or even private – to do the job. What was usually ruled out at least until after 1939 was the assumption of direct responsibility by a central department of state. This situation that had many of the characteristics of administrative and political pluralism and was capable of producing a genuine dispersion of responsibilities in both public and private hands was, however, inherently unstable. The reasons are not hard to find. First, there was the ever-growing awareness in the later nineteenth century and after that the maintenance of political stability in a highly industrialised and urbanised society required engagement in a continuing process of social reform. This was bound to lead to higher public expenditure, to an increase in legislation, and to everwidening patterns of administrative action. Second, as the services provided or financed by national government expanded, and especially those directed to the development of a comprehensive welfare state after 1945, so the pressure to ensure equal standards of service for every social group and every part of the country grew ever stronger. It was the dynamic of the plea for equality of treatment that was ultimately to undermine and destroy the old institutional pluralism in the provision of many services, along with the variability in standards and inequalities of provision it necessarily implied. Third, national political activity was sharply focused on the acquisition of power at the centre, though the effects of this in terms of increasing public powers was limited for a long time by the checks built into a pluralist society and a dispersed structure of public administration and service provision. But all this began to change substantially in the second half of the last century as national politics was dominated by the competition of two large political parties, both of which came to believe that they had to offer the electorate a programme of action. This meant that the parties were competing for an opportunity to shape national policy in line with their respective policy commitments. It is in this context that the idea of the party manifesto took a firm hold of British politics and elections began to be seen as occasions on which the winning party gains a mandate to fulfil its manifesto promises. This still remains a compelling popular view of what an election is about. It is the opportunity for the electorate to decide whom it wishes to see in power and what policies it wants to endorse. Whatever democratic arguments may be advanced to justify this account of the electoral process, it is clear that potentially and in the absence of specific constitutional constraints, it must encourage the pretensions of the central political authorities to exercise a very wide supervision of the work of all other levels of public-service provision. And broadly speaking this is what has happened at an accelerating pace during the past fifty years or so. What


appeared as a wide diffusion of powers and responsibilities steadily gave way to a much more centralised state of affairs, especially in relation to the provision of financial resources. More recently there has for a decade and longer been a growing impetus on the part of the central government to demand that it should set standards and performance targets for a very wide range of services and activities. This suggests that a duty falls on all subordinate bodies of whatever kind or status to cooperate with the central authority in the achievement of whatever standards and performance targets it has set. In the eyes of a large part of the public it is then ‘the Government’ that has the responsibility for seeing that all its targets are met and the services to which they relate delivered. Whilst the driving force in this process of undermining a pluralistic dispersion of powers has undoubtedly been the party competition at the heart of the political system, it is also a fact that the customary constitution did not put any serious obstacles in the way of this evolution. Indeed, crucial elements in the traditional constitutional order – for example, the sovereignty of Parliament, the all-embracing responsibility of ministers, and the status of civil servants as the politically subservient agents of ministers – tended to facilitate the assumption by the national government of whatever powers it chose to demand for itself. Inexorably, therefore, the pluralistic dispersion of powers which was regarded as an outstanding characteristic of the way in which Britain was governed in the nineteenth century and beyond gave way in the second half of the twentieth century to a pattern of strong political and financial centralisation. Until about twenty-five years ago this was still often masked by the rhetoric of partnership and cooperation among different levels of public authority along with respect for the autonomy of private bodies. Such rhetoric is much fainter now. This far more centralised state remains, however, highly unsystematic in design and structure. In this respect the historical heritage of hostility to any systematic legal definition of what constitutes ‘the state’ remains strong and influential. Indeed new elements of diversity have been introduced. The measures of devolution recently put into effect in Scotland, Wales and Northern Ireland bring new imponderables for both the political cohesion of the United Kingdom and for the survival of common policies and equality of treatment for British citizens as a whole in many important sectors of social provision. Meanwhile local authorities have remained subject to firm central control, particularly in relation to the allocation of finance to them. In some service sectors like social housing responsibility has been taken away from them and placed to a large extent with appointed bodies and private contractors and agents. The same goes for functions like economic development and urban renewal where the use of private-sector organisations for most of the work to be carried out has become usual. In this way new forms of decentralised provision and activity have been created, most of which have been released from direct control by locally elected repre-


sentatives. Meanwhile, at any rate in England, local authorities remain exposed to the possibility of direct intervention by the central government if their performance in the provision of particular services, notably education, is judged to fall below the standards required of them, and they now face the possibility of elected regional authorities being placed above them. Something that can only be described as pragmatic interventionism is also at work in many other areas too where the services concerned are provided by organisations nominally independent of the central-administrative system, but supervised or financed either by agencies appointed by the central government or directly by departments of state and expected to have regard to ministerial policy. Even the National Lottery, a business run by a private company on a franchise granted on behalf of the government by a regulator, is exposed to ministerial claims to act as the spokesman of the public’s views of what good causes should benefit from lottery funds and to ministerial views about whether it could in the future be run in a manner more likely to remedy the ‘democratic deficit’ from which this appeal to the hope of private gain allegedly suffers.13 Thus, despite a heritage of pluralist diffusion of responsibilities and powers there are now few barriers left to the centralising influence of the political preferences of the national government. And in the complex and irregular pattern of public, semi-public and private institutions through which services of all kinds are now provided it becomes increasingly hard to identify where legal and political responsibility lies, and even harder to enforce meaningful political accountability at any level of the system. The driving force behind this shift away from pluralism and subsidiarity has been the urge of national-party leaderships to extend their capacity to take action ever more widely in order to satisfy what they believe are the expectations of the electorate. These expectations have in turn reflected the influence of ideological commitments, especially to the achievement of greater social equality and what used to be called ‘welfare socialism’. The pursuit of such aspirations within the British political and social context was always likely to result in an appeal to the central government to bring about beneficent change and improvement. The sharp focus of public attention on the national government reflects not only the dominance of nationally organised parties but also the concomitant weakness and lack of political leverage of the social groups acting at lower levels, in particular in the area of local politics, but also in the sphere of private interests and social action too. In short, countervailing forces with which the central authorities would expect to negotiate many policy outcomes have largely faded away in British political life. It is somewhat paradoxical that all this has happened within a constitutional framework that in principle imposes heavy burdens of accountability on politicians who accept ministerial office and, for this reason alone, exposes those responsible for executive action to what has become an almost limitless liability. This situation may have made sense


when the functions of the central government were far more restricted than they have now been for several decades, when the pressures of public criticism were far less heavy, and when media demands as they now exist were unknown. In contemporary conditions, however, the requirements of accountability, if taken at all seriously, render ministerial office extremely unattractive to all but those wholly obsessed by the pursuit of a political career. Rational officeholders might have been expected to seek to diminish rather than widen their areas of responsibility, but neither the dynamics of party competition nor the pressures of media attention nor the continuing fascination of the traditional constitutional demand that ministers must account to Parliament has left much space for cool appreciation of the benefits that might have been gained from stemming the tide of purely political centralisation. Instead the professional politicians who now dominate political life appear ready to accept all the disadvantages of their profession, including those which flow from the constant exposure to criticism and public blame that is now the normal consequence of holding political office.

Notes 1. Irvine of Lairg, ‘Britain’s Programme’, pp. 1 and 2. 2. Modern European notions of subsidiarity have their roots in Roman Catholic early twentieth-century theories relating to the conditions attaching to different levels of hierarchy in both church and society. They do not have much to do with self-governing communities. 3. See Sir Norman Chester, The English Administrative System 1780–1870, OUP 1981; also D. Roberts, Victorian Origins of the Welfare State, Yale 1960. 4. The Education Reform Act 1988 lays down for the first time the guidelines for a National Curriculum and makes provision for it to be introduced into state schools in England and Wales. 5. J. M. Lee, Social Leaders and Public Persons: a Study of County Government in Cheshire since 1888, OUP 1963. 6. The Herbert Report on Local Government in Greater London, Cmnd 1164 (1960), opened almost two decades of inquiry into and reports on most aspects of local government structure, management and finance. The report of the Royal Commission on Local Government in England (Redcliffe Maud), Cmnd 4040 (1969), was published more or less half way through this period. The Layfield report on local government finance, Cmnd 6453 (1976), brought this phase of inquiry to a close. 7. The Government of Ireland Act 1920 was intended to provide institutions of home rule for both parts of Ireland, but was in fact applied only to the six counties in the north. 8. The Report of the Machinery of Government Committee, Cd 9230, 1918, familiarly known as the Haldane report, expounded principles of functional organisation for the departments of government. It paid virtually no attention to the territorial principle, even as a possibility. 9. As, for example, in the report of the Royal Commission on the Constitution (Kilbrandon), Cmnd 5460, 1973.

Institutional Pluralism and Subsidiarity 53 10. M. Flinders, The Politics of Accountability in the Modern State, Ashgate 2001. 11. For example, under the Teaching and Higher Education Act 1998, it would appear that the freedom of universities to set fees autonomously (though in recent years they rarely did this in practice) has been extinguished through conferment on the minister of a power to penalise financially any institution which does not conform to his requirements. 12. Judicial decisions pointing in a contrary direction have not been uncommon. The decision in the famous case Roberts v Hopwood [1925] AC 604 involving the Metropolitan Borough of Poplar clearly upheld the primacy of national policy over local preferences, though the case turned on a conflict of opinion between the district auditor (an independent official) and the local authority about what was a reasonable minimum wage. Central government was not directly involved, though plainly opposed to the local authority’s policy. In the 1980s the Greater London Council (GLC) fares decision was hardly sympathetic to local autonomy, though this too was also unusual in involving conflict between two levels of local government, the GLC and the Borough of Bromley, with the ratepayers in the wings (Bromley BC v Greater London Council [1983] 1 AC 768, and House of Lords 1985). 13. Tessa Jowell MP, Secretary of State for Culture, Media and Sport, as reported in The Times, 3 July 2003.


Part II Institutions and Practices under the Customary Constitution


4 Symbols of Unity: Monarchy and Religious Establishment

Part I has been concerned mainly with the historical foundations and guiding principles of the customary constitution. In this and the following three chapters attention will focus mainly on the principal institutions through which British ideas of acceptable and effective constitutional government have been expressed and put into practice. Since the British constitution has been embodied chiefly in institutional practices, subject always to adaptation and change in the light of political and social needs and pressures, the discussion of how these institutions now function and have been understood within the customary constitution still calls for relatively frequent reference to earlier historical experience. But the main aim in Part II is to draw on the experience of the past twenty-five years in order to assess how the customary constitution was at any rate until recently generally understood and maintained. This in turn is intended to serve as a basis for the subsequent consideration in Part III of the ways in which the constitution has since 1997 been changed.

Constitutional monarchy Britain remains a constitutional monarchy or what some, such as the politician J. Enoch Powell, have preferred to call a parliamentary monarchy. Clearly the survival of monarchy testifies to a preference for preserving continuities: with the solitary exception of the years between 1649 and 1660 Britain – or more exactly England and Scotland – has always had a monarch as ruler and head of state. Monarchy as a form of rule reached its apogee under the Tudors, notably Henry VIII and Elizabeth I. During the seventeenth century Parliament’s resistance to the claims of the incompetent Stuart dynasty combined with the forces of religious dissent to impose substantial limits on the political discretion of the monarch. After the expulsion of James II in 1688, followed by the appointment by Parliament of his joint successors William III and Mary II, and the passage of the Bill of Rights, there could no longer be any doubt about the character of monarchy as 57


limited and constitutional. Steadily throughout the eighteenth century the monarch retreated from the active exercise of what had previously been comprehensive executive powers: the monarch began to reign rather than rule.1 Instead it was ministers who came to exercise executive authority on the monarch’s behalf and the political role of the monarch entered on a long but inexorable process of attenuation. By the closing years of the nineteenth century the monarch no longer played a significant part in the government of the country and the taking of major political decisions. True, Queen Victoria who was on the throne from 1837 until her death in 1901 still believed that she had an important political role, but in fact her influence was confined to the marginalia of public affairs and even she realised that it was her ministers – over whose selection also she had a declining influence – who ran the country. The longevity of Queen Victoria may well have sustained an exaggerated notion of the actual exercise of political authority by the monarch, an impression heightened in the design of the new Palace of Westminster with its elaborate stage set for the entrance of the monarch for the State opening of Parliament.2 But with her death and the continuing process of democratisation of British political life there was little room for illusions regarding the political status of her successors: it became clear that the monarch as such, the person wearing the crown, had no more than vestigial political rights and that he or she was confined principally to a symbolic and representational role. It is desirable to maintain as far as is possible a clear distinction between the monarch as a person and officeholder, and the crown as an institution persisting over time and functioning as a legal concept with substantial implications for the character and operation of public law in Britain. Unfortunately it is not easy to maintain such a clear distinction consistently. This is partly a consequence of the inherent arbitrariness – or even capriciousness – in the use of terms like Crown, Queen-in-Parliament, the Public, public authority and occasionally ‘the State’ in a wide range of formal instruments, including legal judgements.3 Almost a century ago the great legal historian F. W. Maitland described the Crown as ‘a convenient cover for ignorance’ and went on to assert that ‘it saves us from asking difficult questions, questions that can only be answered by study of the statute book’.4 Unfortunately, even Maitland was perhaps over-optimistic in this regard, since scrutiny of the statutes will not yield the certainty about what the term ‘Crown’ means that he seems to have envisaged. The difficulties are also in part due to the fact that the extent of the royal prerogative, that is to say the purely discretionary authority vested in the Crown, and the qualifications under which it can be exercised remains in practice uncertain and in some degree speculative. It may be necessary to challenge a particular action taken under the prerogative power before a conclusion can be reached either by a legal ruling or a political decision that establishes a new precedent or parameter for the use of the prerogative. Reference will be made again later

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in this chapter to the difficulties that undoubtedly stem from the dislike of formal definitions and general principle in the interpretation of constitutional language in Britain, and in particular the term ‘the Crown’. Meanwhile it simply has to be noted that in examining the role of the monarch and the implications of retaining a constitutional monarchy, it is not always possible to keep the monarch as someone who actually performs many public functions separate from the Crown as an institution in which most of the powers exercised on behalf of the monarch are still vested. The role of the monarch has first to be considered in terms of what powers she actually exercises and on what conditions. The powers that in principle are vested in the monarch together add up to the sphere of the prerogative. But with few exceptions such as appointments to the Order of Merit they can now be exercised only on the advice of a minister, and that usually means the prime minister. What is more, over a long period the prerogative has been whittled away through statutory regulation and the transfer of particular powers to ministers or other agents acting on behalf of or instead of ministers. The sphere of potentially autonomous and significant action by the monarch is, therefore, now exceedingly narrow. Until the 1920s it was assumed by some constitutional specialists that in some circumstances a real discretion might be exercised by the monarch in the appointment of a prime minister. But this important prerogative power has now atrophied, or more accurately become redundant, as a result of procedures for the election of leaders now followed by all the political parties.5 Thus, there is really no scope for doubt about who is the leader of the majority party in the House of Commons. The only circumstances in which a limited discretion to choose someone to lead a government might return would be those presented by a multi-party House of Commons in which it was not at all clear which parties were ready to come together in a coalition or to tolerate a minority government.6 Even in these conditions, however, it is doubtful whether the monarch would go beyond seeking information from the party leaders about what kind of alliances were acceptable to some and not to others, and who might be sustained in office even without an overall majority.7 What we can be sure of is that there would be no return to the discretion claimed and to some extent exercised by Queen Victoria in the 1850s and even later. The reason for this is simply that both in Britain and in other countries where it exists modern constitutional monarchy rests on the principle that the monarch has no partisan preferences and must abstain from any action which even appears to favour one political leader or party at the expense of another. Abstention from politics is the price of such neutrality. An interesting aspect of the power of appointment just referred to is that its exercise is nowadays bound to be public: when a party leader is summoned to the Palace to respond to the request to form a government, it is immediately known what the Queen has done. Normally this means that she has simply taken note of the result of a general election and in


accordance with constitutional convention summoned the leader of the party which has won a majority. Indeed, apart from the special case just referred to of persistent multi-party representation and no overall majority, it has become virtually impossible to construct circumstances in which the Queen might in principle be able to exercise a real discretion by virtue of the residue of her prerogative powers. As Bagehot wittily remarked long ago, if her prime minister sent to her her own death warrant duly set out in a bill properly passed by both Houses of Parliament, she would have to sign it. At a rather more realistic level we could, for example, envisage a situation of intense political controversy with a threat of civil strife in which the monarch might at least show signs of refusing to give the royal assent to a bill widely held to be subversive of the constitution itself such as a measure intended to restrict freedom of speech. But such an example is highly artificial since it postulates serious political crisis and seems to assume that there would be no politicians anxious to resolve such a crisis by political means. Similar considerations apply also to other possibilities such as the dismissal of a prime minister and the refusal of a dissolution of Parliament to a prime minister: an autonomous political act by the monarch in such circumstances cannot any longer be realistically envisaged.8 So it is reasonable to conclude that there is no prerogative power of real political significance that can in the normal conditions of political life be exercised independently by the monarch. And were political conditions sufficiently abnormal to suggest the possibility of action by the monarch, then it is highly likely that this would indicate a political crisis engulfing the monarchy as well. Political power has passed away from the monarch, she acts always on the advice of ministers, and she is no longer in any effective way a ‘prime mover’. Nevertheless, the occupant of the throne does have a certain residual influence in the sphere of government stemming from her position as head of state in a constitutional monarchy. Walter Bagehot famously identified ‘the right to be consulted, the right to encourage and the right to warn’9 as the three remaining rights of the monarch as an officeholder. After the lapse of nearly a century and a half we have to treat the right to be consulted with some reserve: after all no prime minister is likely to feel under an obligation to consult the monarch about the content of a party programme, and even in the case of the Queen’s speech setting out the legislative programme at the opening of a parliamentary session she will be told what it is to contain rather than being consulted about the proposals in it. The other two rights do remain available to the monarch, though what they mean in practice is veiled in obscurity. This follows from the fact that they are necessarily exercised, if at all, in private, and generally only in the regular meetings between the Queen and her prime minister. Given the extreme public discretion observed by the present monarch in relation to any expression of opinion that might be regarded as falling under the rubric of ‘encouragement’ or ‘warning’, it is reasonable to conclude that in private too she

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observes a similar degree of neutrality, even though her opinions on some matters such as the importance of marriage may be deduced from what she says in statements made on the advice of ministers as well as in her own life and conduct. The conclusion must be, therefore, that even when performed in strict confidence and privacy, the political role of the monarch has lost all effective signficance. She belongs completely to what Bagehot long ago characterised as the dignified department of the constitution.

Symbolic and representational roles Standing in sharp contrast to the highly attenuated constitutional role of the monarch in matters political there is the extensive symbolic and representational role which she performs. Obviously the Queen has innumerable duties to perform as head of state, many of which are of a ceremonial and formal nature. She presides over or is present on numerous national occasions, she receives and entertains foreign dignitaries, including ambassadors, and she performs the honours for innumerable organisations contributing in some way to domestic social life and service. The representational role is shown most vividly in state visits abroad when the monarch plainly has the function of representing – in the sense of standing for – the United Kingdom. Another aspect of the representational role which has been important for the present Queen is her position as Head of the Commonwealth, a curiously symbolic one since it rests on the general consent of the Commonwealth’s members rather than on any formal provisions. What the continuation of the Commonwealth actually owes to the survival of monarchy in Britain (and in a small number of older Commonwealth member states which share their monarch with the United Kingdom) is a matter for speculation. Certainly the Queen does in some intangible way symbolise a continuing association of states with a shared history and to some extent shared values and political habits: without the monarchy the bonds of sentiment would probably be much weaker and it would be harder to decide who or what would symbolise the tenuous bonds holding the Commonwealth together. Yet another important symbolic role at home has been and still is in some degree that of exemplifying certain moral values thought to be important in and to society. This role too was brought into prominence during Victoria’s reign when the idea of the monarchy as an embodiment of domestic virtues made its appearance. But the capacity to give this particular kind of moral lead has always depended considerably on personalities and circumstances, not least in recent years when the idea of the monarchy as an example of stable family life within the bonds of marriage has suffered from events within the royal family such as the divorce of three of the Queen’s children (including the heir to the throne). Whilst the monarch herself cannot be held responsible for the conduct of members of her family, the


institution of monarchy may well suffer if members of that family are perceived to fall short in the performance of their part in the wider symbolic role of the monarchy as an emblem of domestic virtues. This after all is to be expected of a monarchy which to an unusual degree has for many decades been a family concern in which many members of the family play a large part in carrying out the multifarious tasks imposed by the representational role of the institution. It should not, however, be thought that even in the performance of symbolic and representational functions the monarch acts independently in any serious sense or without advice. Many of the representational roles are laid down by tradition and habit like the State opening of Parliament or the Remembrance Day ceremonies. Others stem from ministerial recommendations to visit particular countries, including states within the Commonwealth. And even at home the monarch has sometimes to make appearances that reflect the demands of government policy, as for example greater attentiveness to Scotland in the wake of the introduction of devolved institutions. Naturally in the determination of the Queen’s programme of official commitments she is supported by her own staff who are able to offer advice and information on the invitations and proposals she receives. Should they consider that a particular proposal might expose her to the risk of criticism or involve political considerations, they are well able to seek guidance from the appropriate part of the government organisation on how to handle it. What is decisive is the need to sustain belief in the monarch’s devotion to duty and in her respect for the feelings and aspirations of all her subjects. A monarch who claims to represent the whole society has to accept that she belongs in some manner to the whole of that society. The performance of the symbolic and representational roles of constitutional monarchy in modern Britain has demanded of the sovereign a dedication to the duties of the office that few would dream of accepting voluntarily.

The Crown as a legal construct It is the monarchy as an institution embodied in a person and a family that attracts most public attention and publicity in modern Britain. But there is another aspect of the retention of a constitutional monarchy in Britain which has perhaps more pervasive significance in the field of constitutional relationships and that is the Crown as a legal construct. The Crown in this sense is an abstract concept with far-reaching legal consequences. It serves in many contexts as the unifying ground for the institutions through which Britain is governed and for the relationships they may have with each other. Ministers are ministers of the Crown; Parliament is in strict constitutional terms only sovereign when the two Houses are conjoined with the Crown, usually embodied then in the ministers who make up Her Majesty’s Gov-

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ernment; justice is dispensed by judges in the name of the Crown; civil servants are generally held to be Crown servants; police constables hold an office under the Crown; and the military forces of the country owe a duty of loyalty to the person who wears the Crown. In contexts such as these the Crown stands for an overarching authority, sometimes embodied in the monarch as a person, sometimes functioning as an abstract concept corresponding to an idea of the public good which officeholders are committed to serve, and sometimes appearing in a court of law as the prosecutor or defendant in a legal action. These remarks may already have suggested that the term ‘Crown’ bears certain resemblances to ‘state’, though clearly, since the Crown may also often be equated with the monarch, a real person, it can function as the ground of individual loyalties and institutional commitment in a manner which is unlikely to be possible in the case of ‘the state’. Within the sphere of law, however, and especially of all public law, the Crown does in a more straightforward way function like ‘state’ in many other countries, especially those of continental Europe. In the broadest terms the Crown is assumed to have the function of maintaining justice within the realm and the integrity of its institutions and legal procedures. The office of Attorney General in particular is committed to the performance of this role which is why he acts as legal adviser to the government, in some instances makes the final decision on criminal prosecutions as well as on other legal proceedings involving government agencies, and appears either in person or through other legal representatives in cases before the courts. As a result the decisions in many court cases are expressed in terms such as R v Human Fertilisation and Embryology Authority ex p. Blood (1999) CA.10 What this means is that the Crown through the Attorney General has enabled an individual (in this case Mrs Diana Blood) to take legal action in an effort to overturn a decision of the relevant authority. The principle of functional specialisation and responsibility has, however, been widely applied in the public sector and as will be mentioned below there are many circumstances in which legal proceedings can be brought directly against the offending authority without any need to bring the Crown into them. In foreign affairs, however, prerogative is still the main basis on which ministers and officials operate and take decisions, though if a treaty is signed which can only be effective if changes are made in British law, Parliament has then to be brought into the equation. Indeed, at the time of writing there is pending a decision in foreign affairs, namely, whether to join the European Economic and Monetary Union or not, which, it has been declared, is to be subject to a popular referendum. In this unusual instance it is clear that should a referendum eventually be held and result in a vote against joining the eurozone it would not be politically possible for the government to fall back on the prerogative powers to override such an outcome. To appeal to the inherent powers of the Crown in such a situation would look like an unacceptable gesture of


antiquarianism completely out of touch with contemporary political values and expectations. Yet just as it is possible to cite a case in which the claims of the prerogative would have to give way to the rights of the electorate, so there are contemporary examples of executive action by virtue of prerogative powers which illustrate how wide and politically convenient they still are. Both the commitment to participation in the Gulf War in 1990 and again to military intervention in Kosovo in 2000 required no further formal action than executive decisions taken by ministers in the name of the Crown. The same was true of the decision to participate in United States military action against Iraq in March 2003. Of course, as was finally accepted in this latter case, such decisions require political endorsement in Parliament and are certainly made easier to sustain if they have the support of public opinion too as events leading up to intervention in Iraq and in its aftermath showed all too clearly.11 Nonetheless, these examples aptly illustrate the continuing practical significance of the prerogative powers of the Crown in giving the executive a discretion to act in certain spheres that is still remarkably wide. Seen from a legal, administrative and even political perspective the evolution of the Crown as a concept can be regarded as one of movement towards ever-greater functional differentiation. Centuries ago when the monarch wielded real executive power it was at least plausible to regard him (or her) as constituting a unitary authority, though even then the monarch needed agents – officers of the Crown – to act on his behalf. But gradually the range of executive agents became ever wider and more varied, the authority of Parliament began to circumscribe that of the Crown, and the courts began to impose more and more qualifications on the interpretation of what the Crown meant and what its agents could properly do. The fiction of the unitary nature of the Crown was effectively abandoned in 1947 with the passage of the Crown Proceedings Act which made it possible for the Crown to be sued for breach of contract and tort in its own courts. Essentially this was a recognition of what had already started to take place, though under cumbersome and out-of-date procedures which were simplified or superseded by this measure. This process of subjecting the Crown in all its diverse and sometimes obscure manifestations to legal supervision has gone ahead for the past half century. Recent developments both in the shape of the law of the European Union and the incorporation of a code of human rights into British law in 1998 are accelerating the functional differentiation of the Crown just referred to. An interesting consequence of this is that the Crown as a legal construct becomes in many spheres little more than a holdall put together out of particular judicial rulings and statutory provisions. We are no nearer to specifying exactly what it means than when Maitland complained about it being a cloak for ignorance. Despite what can reasonably be regarded as the demystification of the Crown and monarchy that took place in the course of the twentieth century,

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the institution does continue to have enduring political and social effects. Undoubtedly the most important of these is that the Crown remains the ground of the authority to govern which is claimed and exercised by ministers. Despite the fact that most ministerial powers are nowadays set out in legislation and statutory instruments and thus have to be exercised with regard to a wide range of qualifying conditions, it remains important for the character of British government that ministers have individually and collectively inherited something of the aura of the Crown’s dignity as well as a measure of its discretionary authority to act for the good of the realm. It was George II, still an absolute ruler in his German principality of Hanover, who more than two and a half centuries ago confided to his Lord Chancellor in Britain his belief that ‘in this country Ministers are Kings’.12 As far as the monarch goes this is an even more obvious fact of life than it was in the eighteenth century. For ministers the intangible advantages of the survival of constitutional monarchy in Britain lie in the enhanced status it confers on them and the freedom of manoeuvre in the management of public affairs that they can still claim by virtue of their role as agents of the Crown carrying on the work of the Queen’s Government. Nevertheless, the impact of functional differentiation in so many spheres where the effective range of ministerial discretion has been diminished should not be overlooked, nor that of the pervasive thirst for publicity in the contemporary world that has steadily eroded the authority of all institutions, including both monarchy and its ministerial agents. The ‘efficient’ elements in the constitution now draw relatively far less benefit from an appeal to the ‘dignified’ than was possible when Walter Bagehot drew his famous distinction. It must also be remembered that Bagehot regarded the ‘dignified’ elements in the constitution as appropriate means of sustaining deference amongst the masses, and on this account as something like a bulwark against the advance of democracy. In a media-driven age in which deference has been widely replaced by strident demands for complete transparency in public affairs, such a plea has become untenable. It has often been argued that the survival of monarchy and Crown act as some kind of brake on the notion of citizenship in Britain since for many purposes British citizens remain subjects of the Crown. In fact passports now designate their holders as British citizens, and as a result of the Maastricht Treaty which came into force in 1993 they are also citizens of the European Union, though so far this is citizenship of a very limited nature. But whether the continued invocation in some spheres of legal argument of the notion of being a subject of the Queen seriously diminishes the rights of citizenship must remain doubtful, particularly as what is crucial to citizenship is that the rights involved in it can effectively be made good. So the argument about citizenship and the status of a subject often resolves itself into an ideologically coloured dispute about terminology. Indeed, cases occur in which the courts’ willingness to deploy the implications of being a subject of the


Queen turn out to the advantage of subjects pleading their case. This was vividly demonstrated in the decision of the Queen’s Bench Division towards the end of 2000 to declare invalid an ordinance of 1971 under which the inhabitants of the British colony known as the British Indian Ocean Territory had been removed from their homeland (principally the island of Diego Garcia) to make way for an American airbase to which the British Government had agreed by treaty. The judge, Lord Justice Laws, had no hesitation in invoking the language of ‘subjecthood’ in order to support his conclusions vindicating the claims of the Chagos islanders and setting out the nature and extent of the Crown’s duties towards them. The people were subjects of the Crown, by right of their British nationality as belongers in the Chagos Archipelago. The Queen had an interest in all her subjects, who rightly looked to the Crown, today to the rule of law given in the Queen’s name, for security of their homeland within the Queen’s dominions.13 Even allowing for the fact that judges in Britain do tend to invoke the Queen, the Crown and her subjects in tones which imply a degree of almost personal solicitude this case does illustrate how these traditional concepts can still be woven into arguments which effectively uphold a modern view of the protection of basic human rights under the rule of law. A further aspect of the social role of the monarch which sometimes attracts criticism stems from the part played by the Queen as the nominal source of honours conferred on her subjects and as in some sense the apex of a social hierarchy. As far as honours go, there is in fact today little that depends directly on the sovereign. The compilation of honours lists is to a large extent a bureaucratic operation with wide ramifications and intended to ensure that there is a regular distribution of signs of distinction and recognition of service such as will produce satisfaction at different levels throughout society. And over the years the system has undoubtedly been ‘democratised’ and ‘popularised’ so that honours of the humbler kind are bestowed on a wider range of people than formerly. Towards the top end of the scale the factor of direct political patronage exercised mainly by the government of the day and its civil service advisers is more marked, and to such an extent that it does often prompt criticism. Yet there appears to be something like an addiction to the receipt of honours in Britain, many of which are redolent of vanished imperial grandeur or confer, for example, through bestowal of a title, a degree of social status and even political influence which some are keen to acquire. That such distinctions are bestowed officially by the Queen and to a large extent presented personally to the recipients by her or a member of her family undoubtedly serves to maintain the popularity of the monarchy at large, quite apart from the pleasure it may give to those receiving such honours. That the head of state continues to

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be a monarch set apart from day-to-day political events and personalities has done much to help maintain an honours system which, as Bagehot cynically recognised long ago, makes a useful contribution both to keeping many people happy and to oiling the wheels of political life.14

Crown and Church In a highly secularised age many find it hard to take seriously any claims advanced on behalf of organised religion to be regarded as a significant element in the constitutional structure of the country. Churches may have their uses as the means of casting an odour of sanctity over particular public occasions, but religious faith and practice is now held to be essentially a private matter. In addition the Christian faith has lost its dominant position in British society and religious belief has become highly diverse in its manifestations. It would seem to follow that there is no longer any basis for giving public recognition to a particular body of religious faith, and certainly none for preserving such publicly sanctioned privileges as it may enjoy. Such is the dominant contemporary secularist view of how the United Kingdom is ‘constituted’ in respect of whatever might be the religious dimension of the life of its people. Yet indisputably institutional relationships and longestablished conditions affecting the Crown and two national Churches survive that stand in sharp contrast to the assumption that religious faith is now a purely private matter. In tackling this difficult and to some extent unfamiliar topic it is desirable to draw some distinction – hard though it is to do so with any fidelity to historical origins – between the relationships between the monarchy and the Churches on the one hand and the broader question of Church establishment and what it means nowadays. This section will focus on the first of these aspects of religious faith within the constitution. The Queen is often referred to as the head of the Church of England, though in fact her title is that of Supreme Governor. This derives from the break with Rome carried out by Henry VIII and endorsed by his Parliaments in the years after 1533. The reformation in England at this stage was concerned far less with doctrine and belief than with jurisdictions and powers: it was a struggle to decide who should control the church in England, the King and his Parliament or the Pope in Rome. It was typical of Henry VIII’s radical approach to the issue of powers that he had conferred upon himself the title of ‘Head of the church on earth . . .’ Along with this went the annulment of all papal rights in relation to the appointment of bishops, these passing to the King. After further upheavals in the years between 1547 and the accession of Elizabeth I in 1558, a great work of consolidation was then carried out at the beginning of her reign. An Act of Supremacy confirmed the Queen as ‘Supreme Governor’ of the Church of England, henceforth to be regarded as ‘the national church’. An Act of Uniformity restored the


doctrinal position as set out in the prayer book of 1552 and prescribed its use, subject to certain revisions. Shortly afterwards in 1562 Articles of Religion were approved by the bishops in a convocation and some years later in 1576 these were formally confirmed as the Thirty-Nine Articles setting out the doctrine of the Church of England which remain to this day, along with the Book of Common Prayer of 1662, the authoritative statement of the church’s core beliefs. The restoration of the monarchy in 1660 was followed by renewed efforts by intolerant Parliaments to reassert the duty of all subjects to observe the practices of the Church of England, but after the expulsion of James II in 1688 and the passage of the Bill of Rights in 1689 there were soon signs such as the Toleration Act 1693 that a degree of acceptance of religious dissent was becoming unavoidable. Under the Act of Settlement 1701 a Protestant succession to the throne was guaranteed, whilst the position of the sovereign as Supreme Governor was reaffirmed along with the obligation to preserve the integrity of the Church of England in respect of both its government and doctrine. Under the Treaty of Union of 1706, followed by the Act of Union of 1707, the status of the Presbyterian church as the established Church of Scotland was reaffirmed and guaranteed, though as a result of the completely different structure of the Church of Scotland with its Presbyterian form of government the monarch is not in any sense its supreme governor. She is, however, committed to its preservation and protection. There has been little change in the formal links between the monarch and the Church of England since the Act of Settlement. These links with the Church underline both the historic roots of the British monarchy and the religious dimension still possessed by the institution itself. There are three aspects of the relationships between Crown and the Church of England that deserve some brief attention: the requirement that the occupant of the throne must be a Protestant and in communion with the Church of England; the significance of the role of the monarch as Supreme Governor of the Church; and finally the broader implications of retaining a monarchy that has such an explicit religious dimension, including what is in some degree a sacral quality. In providing for a Protestant succession to the throne the Act of Settlement was a political measure intended to prevent any return of the Catholic descendants of James II. In taking this stand against the Roman Catholic Church it was also reaffirming the status of the Church of England as a national church in England. Under the Act of Settlement and the Accession Declaration Act 1910 as well as under the statutory provisions governing the Coronation oath the monarch is required to declare that he or she is a faithful Protestant and will uphold the reformed religion in the United Kingdom and preserve in England the doctrine, worship and government of the Church of England.15 These statutory obligations are given additional solemnity by the prominent part they play in the Coronation ceremony

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itself. Legislation cannot, of course, command an individual’s religious faith and devotion. The existing statutory position does, however, establish a clear presumption that the monarch has to be in regular communion with the Church of England and this in turn means that he or she has an obligation to maintain publicly the faith embodied in the national church. In an age of religious pluralism and extensive secularisation constitutional requirements of this sort inevitably strike an archaic note. They continue, however, to define an important part of the character of the British monarchy, and one that has plainly been endorsed by the present Queen. In principle all this could be changed, but this would require the destruction of historical continuities and an attempt to create a very different kind of monarchy. Whilst such a project would appeal to those who wish to see state and society wholly secularised, there is little evidence to indicate wide popular support for such changes. The title of Supreme Governor of the Church of England reflected an important aspect of the English reformation, namely, that it was driven forward by a determination to create a national church independent of external authority and intervention. This meant that this new national church would be shaped by Crown and Parliament, acknowledging in all civil matters at least their supreme authority. For a long time monarchs were with varying degrees of intensity and of political interest closely involved in the government of the Church of England, and especially with ecclesiastical appointments. But as the monarch gradually became ever more dependent on the advice of ministers, and especially of the prime minister, in the exercise of executive functions, so in relation to senior Church appointments the initiative in making recommendations to the Crown passed to the prime minister. Nowadays this usually involves the submission of two names to the prime minister who, as a rule, abides by the order of preference expressed. With the modern development of legislative institutions within the Church of England (even though the force of law is ultimately still given to Church Measures by Parliament) virtually all the other aspects of the Crown’s role as Supreme Governor have passed away from the monarch. This does not prevent her from taking a close interest in developments inside the Church, but whatever opinions she may have cannot be given public circulation. Thus what survives of the Queen’s role as Supreme Governor is manifest chiefly in ceremonies of a religious nature such as the distribution of the Royal Maunday money or Thanksgiving Services on various occasions which she attends. In the case of the Supreme Governor title it seems at least possible that with ingenious legal construction a formula might be found that would remove this now formal role without disturbing too seriously the other constitutional connections between the Crown and the Church. There is no doubt that the monarchy in Britain retains a religious dimension firmly rooted in the religious and political history of the country. But


the religious element in monarchy goes rather deeper than has so far been suggested. Monarchy in Britain retains some of the qualities of sacral monarchy, that is to say a form of civil rule that is also dedicated to the service of God and his justice. Historically this conception of monarchy can be traced back a very long time, even to the Old Testament.16 In the case of the British monarchy its sacral quality is most visibly displayed in the ceremonies of a Coronation, and perhaps too in a funeral such as that of Queen Elizabeth the Queen Mother in January 2002. The Coronation of the present Queen in 1953 was essentially a service of dedication, at the heart of which was the Anglican communion service. Ian Bradley aptly summarises the event as follows: ‘The Coronation Service itself is a series of ritual affirmations of the moral values necessary to a well-governed and good society. The key to the Coronation Service is the Queen’s promise to abide by the moral standards of the society.’17 What is of particular interest is that in offering these comments Bradley is drawing explicitly on a striking article written at the time of the Coronation by two well-known sociologists, Edward Shils and Michael Young.18 It is obviously difficult to say how much awareness of these sacred aspects of monarchy in Britain still survives and whether it would be enough to sustain at some time in the future another Coronation ceremony like that of 1953. What does seem to survive is some expectation that by embodying a range of moral virtues the monarch is able to symbolise spiritual values and a religious dimension of life that transcend the inescapable limitations of ordinary life. All this buttresses the social role of the monarchy, though it also imposes heavy responsibilities both on the reigning sovereign and her immediate presumptive successors. And this is so regardless of the fact that in the wake of the secularisation of British society only a tiny fraction of the population professes in a serious way the religious beliefs upheld by the Church and to which the Queen remains faithful.

The churches ‘established by law’ The Church of England in particular is often referred to as a ‘state church’. But this can only be a loose way of speaking, since it has never been treated as something like a department of state, regulated and controlled by a ‘ministry of religious affairs’ or some such body. In fact the Church and especially its bishops have generally enjoyed considerable autonomy in the running of the Church and its dioceses, and this was much extended in the course of the twentieth century. Moreover, whilst the history of the Church of England since the Reformation is punctuated by several ‘Acts of Uniformity’, intended in principle to ensure that all subjects of the Crown conformed with its beliefs and practices, in reality even under Elizabeth I many efforts were made to vindicate the claim that the Church of England aspired to be both national and comprehensive, and this inevitably meant acceptance of some degree of internal diversity in the interpretation of Christian

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doctrine. One of the crucial outcomes of the political and religious conflicts of the seventeenth century was the grudging acceptance of religious dissent and the emergence of the notion of religious tolerance. Though buttressed by many legal inhibitions on non-Anglicans (including their exclusion from entry to the universities of Oxford and Cambridge) the Church of England had to get used to living in an environment of religious pluralism and secular moral and political argument. Thus, even by the early years of the nineteenth century the Church exemplified social pluralism far more than the maintenance of religious orthodoxy. The legal restrictions on those who were not members of the Church were steadily dismantled during the nineteenth century, a process that coincided with the first signs of a general decline in religious belief. This in turn meant that the Church of England moved inexorably into a situation in which only a minority of the population could be regarded as active members, a development that long ago cast a question mark over its claim to be a truly national church. Nonetheless it has remained a church ‘established by law’, and the same goes for the Church of Scotland, though in that case the law defining establishment differs substantially from that regulating the Church of England and is far more restricted in scope. The shaping of the law relating to the Church of England has been a complex and often tortuous evolution. There is no such thing as a single ‘Establishment Act’, but instead a wide range of parliamentary enactments, measures and binding decisions reached within the Church, and an accumulation of case law from both the civil and ecclesiastical courts, all of which are ultimately subject to the Judicial Committee of the Privy Council as the final court of appeal. Indeed from an internal perspective the Church of England is subject to a remarkably dense pattern of regulation, much of which also concerns the freehold rights attaching to benefices and all the property rights making up the Church’s endowment.19 It is not surprising, therefore, that when the then Lord Chancellor, Lord Irvine of Lairg, brought a debate in the House of Lords on Church and State to a close in May 2002 he made it clear that disestablishment would be a lengthy and difficult undertaking and that ‘the Government believe that our collective time can be better spent in pursuing other priorities’.20 What is crucial to established status is that legal force has to be given to Church measures by Parliament and that in principle at least Parliament can still refuse to validate such measures. The most famous example of such a refusal occurred in 1927–28 when the revised Prayer Book was accepted by the House of Lords, but twice rejected by the House of Commons. The Church had then to soldier on for many years with no effective means of controlling the tendency towards erosion of what were in principle mandatory forms of worship. Much more recently the Commons did in 1993 debate the Priests (Ordination of Women) Measure and approved it by 215 ayes against 21 noes. This was a serious debate marked by at least one lengthy exposition of the theological


case against the proposal. Whilst it made clear the fact that matters of religious doctrine do not excite the range of passions expressed in 1928, it nevertheless suggested that secularist thinking is not quite so dominant in Parliament as it often appears to be. The part played by Parliament in Church legislation has, however, been much reduced in the wake of the greater autonomy conferred on the Church during the past eighty years or so to regulate its own internal affairs. Under the Church of England (Assembly) Powers Act of 1919, amended in 1969 by the Synodical Government Measure, provision was made for the preparation and submission to Parliament of Measures on matters requiring full legislative approval. These have to be submitted by the General Synod’s Legislative Committee to the Ecclesiastical Committee, a statutory body drawn from members of both Houses of Parliament. This body may send a Measure back to Synod’s Legislative Committee for reconsideration, but has no power to amend it. Where the Ecclesiastical Committee reports favourably on a Measure and the Legislative Committee is in agreement, it will be reported to both Houses for parliamentary approval and submission for Royal Assent. It is apparent that the procedures are elaborate and rather lengthy and that they strike a careful balance between leaving maximum autonomy to the Church in the preparation of Measures and preserving the ultimate authority of Parliament as the source of law. It is worth noting that the Ecclesiastical Committee has a duty to make known any views it may have on the expediency of a Measure ‘especially with relation to the constitutional rights of all Her Majesty’s subjects’.21 Whatever this means in practice, it certainly underlines the fact that it is hardly possible for the Church to take precipitate legislative action. Whilst synodical government does point towards Parliament’s willingness to delegate powers to the Church and as far as possible to let it look after its own affairs, it should not be assumed that the Church operates according to secular democratic procedures. A passage from the York Journal of Convocation in 1976 makes this clear as follows: [The Church] is not a democracy, governed by elected representatives, responsible to its electorate, nor is it a line-management hierarchy, distributing specific powers and responsibility on a command-obedience model . . . The basis of the Church’s polity can only be that of the recognition of the many diverse gifts graciously given to God’s people . . .22 The General Synod consists of three Houses, one representing the laity, a second the clergy, and the third consisting of the diocesan bishops. Its authority in the preparation of Measures depends on agreement being reached between all three Houses of the Synod. Moreover, the Church of England, in sharp contrast to the Church of Scotland, accepts episcopacy as a basic condition of Church government and this necessarily means that the

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bishops have a decisive role in the ordering of the Church’s affairs. Their status is enhanced by the fact that a substantial part of the Episcopal bench also sits in the House of Lords. For a long time this has meant twenty-six bishops, five of whom sit by virtue of a prescriptive right attaching to the sees they occupy, while the remainder are chosen in order of seniority in the tenure of their dioceses.23 Though this is one of the most visible signs of the continuing links between Church and state, it has less importance both within the House of Lords and in the internal government of the Church than is sometimes assumed. The bishops are not active participants in the routine work of the House of Lords, and most of them are shrewd enough to prefer to keep the General Synod at arm’s length from Parliament and its preoccupations. There is one further aspect of Church government that has to be mentioned, in part because it is deeply embedded in the legal regulation of ecclesiastical organisation, in part because its disappearance would certainly be noticed by a large number of people. This is the parochial system. In principle at least the Church of England seeks to maintain a network of parishes covering the whole country. The origins of this ante-date the Norman Conquest, though after that event it was rapidly extended and consolidated, a development to which the thousands of medieval parish churches in England still testify. What is of interest in the present context is that the parochial system embodies a range of legal obligations falling on the incumbents of parishes and of rights that their parishioners can claim. The vicar in charge of a parish is, for example, under an obligation to celebrate communion at least once a week, and he has duties to visit the sick, to prepare applicants for baptism (most likely to involve some instruction for parents), to celebrate marriages, to conduct burial services, and to prepare people for confirmation. Nowadays the performance of most of these duties is in response to requests from parishioners: the incumbent is not generally expected to go out and ‘compel them to come in’. What remains a significant constitutional effect of the parochial system is that it keeps alive the idea that the priest in charge of a Church of England parish ministers in principle to all his parishioners rather than just to those who belong to his church. Another responsibility of the parish incumbent is to keep the parish electoral roll (in effect a register of those who attend church and sign the roll), to ensure that a parochial church council is elected by those on that roll, and to make sure that two church wardens are elected annually. The latter have substantial responsibilities, in particular for the fabric of the church. The institution of church wardens is of very ancient origin and was confirmed in a canon of 1604. It continues to testify to a degree of lay involvement in managing the affairs of the local church. As this very brief summary indicates in formal and legal terms establishment has many ramifications. One dimension that has not been examined and can only be mentioned as a concluding item is that the Church of


England also constitutes a remarkably complex pattern of property rights. These include the rights of freehold that incumbents of benefices may possess, a range of material benefits (though now of a very modest kind) enjoyed by the incumbents of many offices in the church, the rights of patrons in relation to the appointments to church livings, and much else. In addition the Church draws much of the income it needs to finance its work from the extensive endowment administered by the Church Commissioners, a body operating more or less independently of the Church hierarchy. Of one thing it is possible to be quite certain: disestablishment and disendowment would almost certainly lead to a financial crisis threatening the survival of some of the finest medieval architecture in Europe. The British state might then, like the French, be forced to contemplate taking over the costs of maintaining a large part of this heritage.

The monarchy, the Church and the moral life of the nation Far-reaching secularisation and the decline of religious belief and practice are familiar features of contemporary British social life. The Church of England and its sister Church of Scotland are minority churches in their respective countries when considered by reference to the number of their adherents. Moreover, the past three decades or so have brought a striking increase in religious or faith diversity as a result of immigration, especially in many of the larger cities in Britain. One consequence of this change is that it has become more difficult to talk of a ‘Christian society’and indeed in some quarters such language would prompt sharp criticism. It follows that it is difficult now to give any precise content to the notion of a ‘national church’ which lay at the heart of both established churches for the best part of three centuries. But in these circumstances the constitutional and religious grounds for establishment are called into question. This was recognised over seventy years ago by one of the sharpest intellects in the Church of England, Hensley Henson, Bishop of Durham, when, under the impact of rejection of the revised Prayer Book by the House of Commons, he advocated disestablishment and wrote: The intimate association of Church and State in England . . . had many advantages when the policy of the State was confessedly Christian . . . But all this has changed in recent years. The State has become effectively secularised and now, under the fiction of neutrality, undermines the indispensable postulates of the Christian Religion.24 However, notwithstanding the passage of the years the nettle has not been grasped and the establishment survives. That it does so reflects understandable political inertia and reluctance to stir up what might be an extremely controversial process of unravelling the links between the Crown and

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Parliament on the one hand and the Church of England on the other. In addition it reflects a broader willingness in society to tolerate and even uphold the establishment, as has been shown by the support for present arrangements expressed from time to time in recent years by representatives of other Christian denominations and other faiths. They see in the formal status of the Church a continuing acknowledgement of the importance of certain moral values in what has become a largely secularist society living without the religious underpinning of morality taken for granted in the past. There are grounds too for believing that something like this view of establishment is widely held. Certainly it is testified to by the ready acceptance of a religious element in many public ceremonies, especially those of a commemorative kind. And it is on such occasions that the ties between monarchy and Church are most visible. For it is inherent in the nature of monarchy in Britain that, having surrendered its political powers to elected politicians, its primary role became that of expressing certain shared moral values and in this way seeking to sustain a collective morality holding the nation together. It is difficult to judge how effective the monarchy has been in performing this task in a public environment that has rendered the idea of a national morality as questionable as that of a national church. But monarchy and Church continue to see this role as a mission to which they are dedicated and there are few signs yet of genuine hostility to their so doing.

A rationalisation of monarchy? Occasionally professed reformers have tried to translate the customary British constitution into a formal constitution set out in a single document25 or, more modestly, to suggest how the monarchy might be ‘modernised’.26 Generally such schemes omit all reference to the established churches, assuming without question that religion has become an entirely private matter and that the survival of established churches under the customary constitution is simply an anachronism. As far as the monarchy goes, however, a new written constitution of the kind that has sometimes been envisaged could retain a constitutional monarch as head of state, as indeed happens in a number of European states still headed by a hereditary monarch. But regardless of whether such a formalisation of the British constitution were to be carried out so as to retain the monarchy or, more radically, to put in its place a head of state elected or appointed in some way, the difficulties and problems of such an act of constitutional rationalisation would lie in the details of the operation and in the multiple and often unforeseeable ramifications of such a step. Throughout society it would be found that a very wide range of institutions, organisations and procedures outside the political sphere as conventionally understood would lose what many of those involved in them perceive as a source of authority, of dignity and public recognition, and often too as the formal legal basis for perform-


ing whatever functions they undertake. This would apply, for example, in the field of higher education, in the patronage of scientific research and the arts, and in the charitable sector. The legal system, and especially the judges and the courts, would lose the integrating obligation to maintain justice at all levels which they acquire from the continuing presence of the Crown. In addition all sorts of procedural problems would be presented simply as a consequence of the disappearance of the Crown as a peg on which to hang innumerable exercises in problem-solving. At the higher levels of government the effects of formalising the constitution, including the role of the monarch as head of state, might paradoxically have initially less impact than in many other spheres of social organisation and activity. But over time it is here that a shift away from constitutional monarchy as it has evolved under the customary British constitution might have the most far-reaching consequences. For it would surely deprive ministers – elected politicians for the most part – of a subtle ingredient in the authority they possess. The holders of the great offices of state – the Prime Minister, the Lord Chancellor, the Chancellor of the Exchequer, the Secretary of State for Foreign and Commonwealth Affairs, the Home Secretary and perhaps a few more27 – would lose their links with that symbol of authority in the state which in a formal way ties all the separate institutions together. In a way without precedent since the execution of Charles I in 1649 they would be cut off from tradition and the appeal to past experience. They would no longer be able to draw on a reservoir of authority which, by enhancing the discretion they enjoy as a trust and recognising the value of such discretion for the governance of society, has contributed much to the flexibility of British political institutions and constitutional practices.

Notes 1. J. C. D. Clark, English Society 1688–1832, CUP 1985, offers a reinterpretation of eighteenth-century British beliefs about how society should be governed which underlines the continuing importance of religious belief as embodied in the Church of England and of the monarch’s role in government. But this does not seriously qualify the fact that after the Hanoverian dynasty succeeded to the throne in 1714 the monarch did steadily retreat from involvement in the regular business of government. 2. Interesting observations from distinguished contributors on the symbolism linking monarch and Parliament that was literally built into the new Palace of Westminster designed by Sir Charles Barry to replace the buildings lost in the fire of 1834 are to be found in Iain Ross (ed.), The Houses of Parliament: History, Art, Architecture, Merrell Publishers Ltd 2000. 3. See G. Marshall, Constitutional Theory, OUP 1971, Chapter 2, for a wide-ranging survey of the British use of the words ‘State’, ‘Crown’ and ‘executive’. 4. Maitland, Constitutional History, p. 418. 5. The difficulties affecting the emergence of a successor to Mr Harold Macmillan on his resignation as prime minister in late 1963 were due largely to the absence

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6.

7.

8.

9. 10.

11.

12.

13. 14.

15. 16.

17. 18. 19. 20. 21. 22. 23. 24.

in the Conservative Party of any provisions for the election of a leader who could then be asked by the Queen to form a government. This deficiency was remedied in 1965 when the party adopted rules for election of the leader by the party in Parliament. Mr Edward Heath became the first such elected leader in 1965. On situations when no single party has an overall majority see V. Bogdanor, The Monarchy and the Constitution, OUP 1995, Chapter 6. Also by the same author Multi-party Politics and the Constitution, CUP 1983, Part II. In anticipation of such a possibility the Scotland Act 1998, sections 45 and 46, confers on the Scottish Parliament the power of recommending one of its members to the Crown for appointment as First Minister. This applies regardless of the party composition of the Parliament. The controversial dismissal of the prime minister of Australia by the Governor General in 1975 would not constitute a valid precedent in the UK, not least because the Governor General was acting within the terms of a written constitution. Walter Bagehot, The English Constitution, ed. R. H. S. Crossman, Fontana 1963, p. 111. In the case referred to Mrs Diana Blood had failed to persuade the courts that she should be allowed to use her late husband’s frozen sperm in order to conceive. But the Court of Appeal allowed her to export the sperm to Belgium under European law and she was later able to have two children. The Blair Government retained the support of a majority in the House of Commons for its proposed intervention in Iraq in March 2003, but strenuously resisted all claims that Parliament was constitutionally required to approve going to war. Philip Yorke’s Life of Hardwicke, quoted in W. C. Costin and J. S. Watson, The Law and Working of the Constitution, Documents 1660–1914, Adam & Charles Black 1952, Vol. 1, p. 376. R v Secretary of State for the Foreign and Commonwealth Office and Another, ex parte Bancoult, QBD 3 November 2000. Bagehot, echoing Francis Bacon, referred to the Crown as ‘the fountain of honour’, but added that the Treasury was the ‘spring of business’. See English Constitution, Chapter 1. For further details see Bogdanor, Monarchy and the Constitution, pp. 43–4. Ian Bradley, God Save the Queen: the Spiritual Dimension of Monarchy, Darton, Longman and Todd 2002, provides a historical account of the idea of sacral monarchy. Bradley, ibid., Chapter V in particular. E. Shils and M. Young, ‘The Meaning of the Coronation’, Sociological Review, 1, 1953, pp. 63–81. Bradley, op. cit., draws extensively on this remarkable article. The major modern source on the legal status of the Church of England is to be found in N. Doe, The Legal Framework of the Church of England, OUP 1996. House of Lords Debates, 2 May 2002, col 815. Erskine May, The Law, Privileges and Usages of Parliament, 21st edn, Butterworths 1989, pp. 596–9. Doe, op. cit., p. 55. The five senior episcopal sees are Canterbury, York, London, Durham and Winchester. H. H. Henson, Disestablishment, Macmillan 1929, pp. 60–81 (80–1).

78 Reshaping the British Constitution 25. A serious attempt to codify the customary constitution in a single document was made by the Institute for Public Policy Research under the guidance of James Cornford and published by Maxwell Publishing Ltd in 1991 and 1993. Religious establishment does not figure at all in this version of a British constitution: the two established churches simply vanish. 26. The Future of the Monarchy, report issued on behalf of the Fabian Society Commission on the Future of the Monarchy, London 2003. 27. Plans to abolish the office of Lord Chancellor were announced in June 2003.

5 A Parliamentary Government: the Executive Power

A parliamentary executive The constitutional principles which govern the executive power in Britain are in essentials simple, familiar and, on a cursory reading at least, not greatly different from those that are upheld in many other examples of parliamentary government. There is a collegial executive, the cabinet, which usually has just over twenty members and is the ultimate source of authority for governmental decisions. The cabinet is presided over by the Queen’s first minister, the prime minister, who also determines who its members shall be. Ministers in the cabinet are collectively and individually ‘responsible’ to Parliament, though what this means is sometimes a matter of some uncertainty, not to say obscurity. The government as a whole is larger than the cabinet, containing nowadays up to a hundred members or thereabouts. The government in this sense constitutes a hierarchy of ministerial positions of differing status – cabinet members who are mainly secretaries of state or in a few cases holders of so-called ‘great offices of state’ like the Lord Chancellor and the Chancellor of the Exchequer, ministers not in the cabinet and in principle subordinate to a secretary of state, ministers of state who are somewhat lower in status than ministers, and finally parliamentary secretaries on the lowest rung of the ministerial ladder. It is generally held that all members of the government are bound by the principle of collective responsibility, and perhaps too by individual responsibility, though this is less clear-cut since within the government as a whole there is a loosely defined hierarchy of responsibilities and powers. Strictly speaking it is only ‘the Minister’ in charge of a department who can be held individually responsible for acts performed by him or in his name, but in practice subordinate ministers do much of the answering for ‘the Minister’. Appended to the government as it were there are parliamentary private secretaries who are unpaid and act as aides to ministers in Parliament. It is now assumed that they too are subject to collective responsibility, though as they hold no office under the Crown it is hard to discern a 79


constitutional reason for this. The constraints affecting them are in fact purely political. There is no formal constitutional requirement that members of the cabinet or of the wider government must be members of either House of Parliament, but by constitutional practice virtually all ministers are in Parliament, most of them in the House of Commons. There are specific statutory requirements ensuring that a small number of ministers must be in the House of Lords over and above the Lord Chancellor, who has since the middle of the seventeenth century presided over the Lords, is formally the head of the judiciary, and at the same time the senior minister in the cabinet with responsibilities corresponding roughly to those of a minister of justice in many countries.1 Taking a broad view of the matter it can be stated with some confidence that the government must consist overwhelmingly of parliamentarians: ministers can only operate in and through Parliament, and that means predominantly the House of Commons. The political executive does, of course, need administrative support if it is to function at all. This is provided mainly by the permanent civil service, a body of staff generally recruited on the basis of the principle of ‘fair and open competition’. What distinguishes the civil service constitutionally is that its members are, with few exceptions, expected to maintain party political neutrality and to serve the government of the day loyally whatever its party colour may be. In other words, the civil service is held to owe at least a residual loyalty to the Crown and is thus regarded as being outside politics and insulated against the public controversy inseparable from political life. Such are the basic principles which in theory at least still shape the parliamentary executive by which Britain is principally governed. Before we turn to a more detailed and critical examination of what they mean in practice it is worth making a general comment on an aspect of parliamentary government in Britain which has often been overlooked, at any rate in modern discussions of the matter. It is nearly always the notion of ministerial responsibility or accountability to Parliament as well as to a wider public that is pushed into the foreground of discussion. But it should always be remembered that ministers as officeholders exercise powers, most of them nowadays laid down in statutes and a variety of legal instruments. In using their powers ministers and their officials are subject to the rule of law, to put the matter in the simplest way possible. They have to act within the terms of whatever their statutory powers are deemed to be and nearly all their actions are in principle exposed to the possibility of challenge before the courts, even though in practice such a challenge may often be difficult to mount and costly to push to a conclusion. Being bound by some body of law imposes a serious dimension of legal accountability on officeholders and, in some circumstances, on their agents that is omnipresent, imposing all kinds of constraints, procedural and otherwise, on them.

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The picture of the parliamentary executive just sketched out has to be qualified in significant ways when we look at it in the context of the evolution of cabinet government in recent years. Britain has had something like a collegial government because the cabinet took shape as the ruling committee of whatever party or party faction believed that it could command a majority in the House of Commons. This feature of cabinet government was well developed by the first half of the twentieth century when political parties in Parliament had assumed many of their familiar characteristics as relatively disciplined bodies of representatives committed to the support of a government led by the leader of the majority party, or failing that of the largest party in Parliament. A cabinet generally consisted chiefly of leading figures in the dominant party and could properly be regarded as a committee charged with managing public affairs on the basis of party policies and commitments. The structure and operation of political parties – and by 1945 there were only two seriously in the game – tended to promote the emergence within the parties of a governing group, most of whom would normally secure a place in government if their party had gained an electoral majority. But other factors such as close and subtle social connections in the Conservative party, the internal diversity of interests and formative experiences in the Labour party, to some modest extent differences of ideology and moral outlook within both parties, and the survival of deference and respect for hierarchy in social life generally encouraged the belief that ideally the country should have at the helm a group of experienced politicians bound together by party loyalties and a readiness to share in a collective responsibility for the governance of the country.

From cabinet government to prime-ministerial government Serious doubts about the validity and even the practicability of this version of collegial cabinet government began to be voiced by the early 1960s. Both R. H. S. Crossman in his new edition of Bagehot’s The English Constitution (1963) and John Mackintosh in his book The British Cabinet (1962) pointed to the transformation of cabinet government into what began to be called ‘prime-ministerial government’. This established something like a tradition of debate about the powers of the prime minister, the significance (if any) of collective responsibility, and the extent to which it could be held that there was any longer genuine cabinet government. Since this is not a history of modern British government we will not pursue in any detail the process of accretion of powers by the prime minister, the reasons for this, and the effects it has had on the cabinet. It is, however, necessary to underline the extent to which modern prime ministers have acquired or simply attracted a range of powers which makes their role as leaders of a government not greatly different from that of an American president. Inevitably it is still possible to have a weak or irresolute prime minister who finds it hard to provide


the sense of direction now expected from the holder of the office, and it is also possible that difficulties inside the majority party or even in something like a coalition of parties will make it impossible for a prime minister to use his powers effectively. Such in large measure was the position of John Major (1990–97). And even a prime minister still backed by a party majority may behave in ways that prompt his or her removal by those who have hitherto been loyal supporters. Despite such experiences, however, the expectations of the office are that its holder will now exercise decisive leadership in the running of the government. Most of the powers of the prime minister stem from a long-established position as first ministers of the Crown and thus charged with ensuring that the Queen’s Government can be carried on. This general political responsibility has been strengthened and extended in the wake of the widening functions of government and what might be called the organisational rationalisation of the modern world. The acquisition of certain specific powers by the prime minister dates back to the early twentieth century, for example, the right to recommend a dissolution without consulting the cabinet.2 The right to appoint ministers to cabinet posts as well as to other ministerial positions reaches back even further, though it is only in recent times that this right has been exercised in an unqualified way, amounting more or less to the right to hire and fire at will. Of all the powers exercisable by the prime minister, that to appoint ministers, to move them about, and to sack them, is the most important. It rests on convention and the acquiescence of the political parties in Parliament, though it also gains some support as a legitimate assumption of the prerogative powers of the Crown. Its effect is to confer on the prime minister a powerful instrument with which to shape his or her cabinet and, more broadly, to determine the career prospects of all those in the majority party who aspire to office.3 But the patronage powers of the prime minister extend far more widely. A very large number of appointments to public bodies of all kinds and some of them of great importance like the chairmanship of the BBC board of governors are made by the prime minister, some senior positions in the judiciary and many in the civil service have to be approved by him, the recommendation to the Crown to appoint someone to a diocesan bishopric calls for his approval, and the nomination to life peerages is still to a large extent within his discretion.4 Most prime ministers have relied extensively on sources of advice within the Cabinet Office, in the political parties, in government departments, and in other places too when exercising their patronage powers. This has meant that outside the political sphere narrowly defined they have often been content simply to approve the suggestions put to them. But an energetic prime minister with a clear sense of the kind of people who should be advanced in public life can exert a substantial direct influence on many public appointments, as Margaret Thatcher demonstrated. In addition party connections and sympathies may be taken account of, as seems increasingly


to have been the case since 1997. What is clear is that so far there have been few, if any, constitutional impediments in the way of an accumulation of patronage powers in the hands of the prime minister, which reinforces the dominant position he (or she) long ago achieved in relation to members of the government. The accretion of powers by the prime minister has been a gradual, though steady, process, the pace of which has always depended on personalities and circumstances. But the long tenure of office by Margaret Thatcher (1979–90) and her methods of conducting government undoubtedly brought about something like a qualitative jump in the range of prime-ministerial activity and control over the whole field of central government work. In particular she showed an outstanding capacity to circumvent the formal structures of cabinet government – full cabinet and its committees – by using instead ministerial meetings and bilateral conversations with ministers and officials in order to push ahead her policy agenda. Of course, there remain exceptions to all generalisations about political practice and there were occasions, as in early April 1982 at the beginning of the Falklands crisis, when even a dominant prime minister like Margaret Thatcher appreciated the need to have full cabinet backing for the decision to prepare a naval expedition to retake the islands from the Argentine invaders. Her record in general does, however, confirm beyond any doubt that the prime minister can no longer be regarded as primus inter pares – first amongst equals – or even as equivalent to the chairman of a board of directors. He (or she as in that case) has become first and foremost the person who is seen as running the government and whose reputation and capacity are crucial in sustaining support for it both in the majority party and in the country at large. In other words the prime minister had by the 1980s become chairman and managing director rolled into one. The second and related point is that as prime ministers have risen, so ministers have for the most part declined. The Labour Government of 1945–51 presented perhaps the last clear example of an administration led by a prime minister, Clement Attlee, who attached great importance to getting through business efficiently and was a firm believer in committee methods of work. Attlee was able to operate with some success on that basis because he had a small group of colleagues who were for the most part heavyweights in his party, in Parliament, and to a considerable extent for the wider public as well. Thus the government really was managed by a ruling committee of the majority party.5 Some elements of similar conditions were to be found in several subsequent governments of both major parties, and no doubt this helped to keep something like the ideal of collegial governance alive. Nonetheless, the evolution of the main political parties has for thirty years or so been marked by a growing emphasis on their leaders as the people who project the parties and their policies to the electorate, who control the government if elected to office, and who must bear responsibility in a broad


political sense for all that is done by the government. In parallel with this enlargement of the role of the leader the process of professionalisation in political life has gone ahead, a crucial consequence of which has been the increased dependence of aspiring politicians on the parties and their leaders for their own career advancement. This goes a long way towards explaining the gradual disappearance from both main parties of the ‘grandees’ and heavyweights who could in the past expect to sit almost by right in a cabinet if they so wished. In effect a prime minister is now rarely checked in a serious way by the presence of colleagues whom he cannot afford to lose, though the government of Mr Blair has since its beginning in 1997 contained one minister – the Chancellor of the Exchequer – whose status and personality appear to put him on a quite different level from the rest of his colleagues in relation to the Prime Minister. Yet this stands out as almost an anomaly and is certainly an exception to what has become the normal pattern of relationships within the parliamentary parties and the governments emerging from them. As a rule the members of modern cabinets clearly owe their positions primarily to prime-ministerial favour and in themselves the majority lack the influence and party support that might allow them seriously to challenge either the practices of prime-ministerial direction and initiative or the policies pursued. Linked with this shift in the balance of political weight as between the party leader as head or potential head of government on the one hand and senior party figures who are likely to hold office on the other, a further change of a more-or-less objective and technical nature has taken place. This is the vast increase in the range of public business that comes before a government in one way or another and claims attention and perhaps action. This has imposed on departmental ministers an ever-increasing degree of specialization and concentration on the affairs of their particular segments of executive activity. This in turn means that collegial discussion and decision-taking round the cabinet table have atrophied. Decisions requiring some kind of collective deliberation are prepared and taken either in smaller bodies, often formal cabinet committees, or in ministerial meetings convoked by the prime minister entirely according to his judgement of political and functional convenience. Full cabinet, which as a rule brings together all senior members of the government once a week, has become an occasional ratifying body, sometimes a sounding board for matters brought before it by the prime minister, and on relatively rare occasions a forum for discussion of issues of major concern to the government as a whole such as the decision in March 2003 to take part in military action against Iraq. In short, the cabinet still confers an authority that a prime minister may need, but it does not in any serious sense direct the work of a government. In the light of the conditions outlined it might well be asked whether it is still appropriate to talk about ‘cabinet government’ or ‘collegial government’. A new and more accurate designation might be helpful, yet it is not


easy to decide what alternative would best reflect both contemporary operational realities and continuing constitutional assumptions. Virtually all statutory powers continue to be vested in ministers, whilst the prime minister acts largely on the basis of conventions with prerogative powers somewhere in the background. Ministers for the most part have extensive executive functions whereas the prime minister has few such formal responsibilities, though during the past twenty years or so he has accumulated a rather wide and miscellaneous range of powers and a composite administrative apparatus to assist him in their exercise; ministers continue to account publicly in various contexts for most of the actions and policies for which they are responsible, whilst the prime minister tends to be challenged on ‘the big picture’. Furthermore, the cabinet continues to meet regularly, even though its meetings are now far shorter than they used to be even fifteen years ago, and the Cabinet Office secretariat still acts as a vital supporting and coordinating instrument for the whole range of committees and other bodies operating as elements within the central network of government. So in practical terms the prime minister still works through something like a hierarchy of ministers of which the cabinet is the top layer. He (or she) still depends on cabinet colleagues for much of the effort needed to define, shape and implement party policies. Yet whilst the cabinet brings together all the senior colleagues of the prime minister, this fact no longer prevents him from dealing with ministers at all levels, with officials, and with formal and informal advisers on whatever basis he finds most useful for the conduct of government business. In such ways the cabinet has become a much more fluid and elusive component in the structure of British government than it used to be.

Responsibility and accountability in constitutional theory At the level of constitutional theory, however, the degree of change is less than it is in practical administrative and political terms. Notwithstanding the undoubted right of the prime minister to propose ministers for appointment and to bring about their resignation from office, and the control over the management of cabinet business he is acknowledged to have, formal authority for major executive decisions such as the introduction of an important piece of legislation derives from the cabinet. It is cabinet ministers who on their appointment still wait upon the sovereign, kiss hands and are presented with the seals of office. The procedures intended to govern the conduct and activities of ministers are set out in a document usually known as the Ministerial Code (previously Questions of Procedure for Ministers) which has in recent years been publicly available. Amongst other things this document prescribes rules relating to the private financial interests of ministers as well as such mundane matters as travelling expenses, gifts and overseas travel. But most striking of all is the affirmation at the beginning that


ministers must uphold the principle of collective responsibility, a principle subsequently defined as meaning that decisions reached by the cabinet or ministerial committees thereof are binding on all members of the government. This is clear confirmation of the formal authority which is still claimed for the cabinet as the institution that binds together what is nowadays a highly dispersed and heterogeneous structure of executive activity. The term ‘cabinet government’ has acquired a slightly anachronistic sound, but a convincing alternative for the purpose of constitutional classification remains elusive. What survives of that ideal now is a loosely structured collective political executive with strong prime-ministerial direction, disciplined by a collective commitment to accept and uphold whatever decisions are taken within the framework of the cabinet system as a whole.6 As an item of constitutional doctrine collective responsibility in government is akin to a piece of political dogma enjoining a duty of collective solidarity: ministers must hang together and accept a collective responsibility for what is done by the government. In normal conditions of single-party rule collective solidarity can be maintained fairly easily and a government is not exposed to the risk of being forced out of office. But in the event of a vote of no-confidence in the government being pressed to a vote in the House of Commons the collective responsibility of the cabinet is engaged, and nowadays defeat on such a motion would mean that the prime minister would be expected to ask for a dissolution of Parliament. It is worth noting that this duty was not so sharply defined in the nineteenth century before party alignments had solidified, since it was sometimes possible to set up a new government without a dissolution. Were conditions of multiparty representation and the absence of an overall majority for a single party to return, the consequences of a no-confidence vote would again become uncertain in the absence of formal provisions governing that eventuality.7 In fact there is a recent precedent for the engagement of collective responsibility in a vote of confidence. In 1979 the Callaghan Government was driven from office by such a vote, though it should not be forgotten how unusual was the position of that government. It had no overall majority and when the no-confidence motion of March 1979 was moved by the Conservative Opposition the government was deserted by the Scottish National Party which had generally up to then supported it. But collective responsibility engages individual ministers too in the sense that if they seriously dissent from a policy accepted by the cabinet, but no longer feel able to share in collective responsibility for it, then they are expected to resign. The conventions governing the manner in which individual ministers and the prime minister interpret collective responsibility have been continually changing for many decades now. It is in fact rare for a minister to resign on account of serious disagreement on a matter of policy, though this happened in March 2003 when the Leader of the House of Commons, Mr Cook, resigned from the cabinet mainly on account of the decision to participate


in military action against Iraq. His departure was accompanied by that of two other junior ministers.8 Individual ministerial resignations at cabinet level occur more commonly, however, for other more tangled reasons. A minister may have fallen out of favour with the prime minister, he (or she) may be unhappy about the way policy is developing in his own department or may be motivated by the pursuit of personal political ambitions. Sometimes incompetence on the job or even straightforward bad luck play a big part in preparing the way for a resignation. And in recent years the factor of media comment and campaigning has also become ever more influential in shaping the fate of ministers who run into serious practical and political difficulties. In most of these circumstances the attitude of the prime minister of the day and of the parliamentary party is decisive in determining whether a minister whose position is under threat stays in office or goes. In this context too the effort to maintain collective solidarity in the government again becomes a crucial consideration. For a long time the notion of collective responsibility also served the more mundane purpose of buttressing the maintenance of complete confidentiality in relation to cabinet proceedings and even to the existence of its committees. That wall of secrecy has been breached, at any rate to the extent that far more information has been made available for some years on the organisation of the cabinet, though the principle that its proceedings are confidential is still firmly maintained and as far as possible differences of opinion amongst ministers are not revealed. The pressures from the media have, however, made the core sectors of government much more porous (or transparent as some would say) than they used to be and may simultaneously have reinforced a growing willingness on the part of ministers to go along with the idea of ‘open government’. It is the principle of individual ministerial responsibility that has for a long time had a more pervasive day-to-day impact on the operation of the political executive in Britain than that of collective responsibility, though what it means or should mean has also regularly been a matter for dispute. For the most part it has been the penal aspects of responsibility which have been uppermost in the minds of many of those who have commented on the doctrine, and especially of its critics. Being responsible has often been taken to mean primarily being ready to accept responsibility for mistakes or failures, and then to accept whatever might turn out to be the appropriate penalty, including resignation from office. Of course it has long been known that this is more or less a fairy tale version of what the theory of individual ministerial responsibility means in practice.9 Whilst there have certainly been instances in the past when a minister has acknowledged in Parliament his responsibility for matters that went wrong and has as a result resigned, this has happened only occasionally and usually only when the individual concerned had become an embarrassment to the government of which he was a member.10 Far more common has been the determination of


ministers to fight off criticism, to deny or qualify their own responsibility, or simply to hang on to office for as long as the prime minister and their colleagues are ready to stand behind them. So in its penal application ministerial responsibility is rather like a paper tiger: it is often waved in front of ministers, but only rarely does it really frighten them. The fact that experience shows that ministers are rarely forced into resignation or penalised in some other serious way for their own failures or those of their agents is not, however, the end of the story. If the term accountability is allowed to take the place of responsibility we come closer to a doctrine which is still an important element in constitutional practice. As the Ministerial Code makes clear, ministers are accountable to Parliament for the policies, decisions and actions of their departments and agencies. Obviously this leaves room for a lot of interpretation of what such accountability involves and how varied circumstances or relationships between governmental organisations qualify the accountability of a minister. Yet despite the complexities and ambiguities of ministerial accountability, there is plenty of evidence that ministers (and to an increasing extent their official agents too) have to devote a lot of time and effort to accounting publicly in several different contexts for what they do or what is done on their behalf. This does not, however, mean that sanctions usually follow such exercises in public accountability. It simply means that if challenged or pressed ministers do habitually give an account of some kind or another of what they have done, nearly always in public, and must then face up to whatever response that account provokes in those to whom it is offered. Very often being accountable can, therefore, be equated with being answerable, with acknowledging a general obligation to provide in specified circumstances an answer. The crucial point is that the processes of accounting and answering are numerous and pervasive in British central government, and that far from diminishing they have probably increased in scale and intensity in recent years. This is in large measure a consequence of the continuing belief in the omni-competence of the central government and the ever-stronger urge on the part of the public to see culprits identified, to be able to blame them and, if possible, then to see them penalised or at least made uncomfortable. Notwithstanding the erosion of many formerly established social conventions and traditional moral standards, the moralistic, condemnatory impulse remains remarkably vigorous in British public life, and nowhere more so than in the House of Commons where the processes of accountability are brought into sharp focus. Not surprisingly the same outlook is also assiduously and intensively nourished by the media. All this adds up to a powerful impulse to sustain the demand for accountability in very many different spheres of both public and private activity. The fact that so many powers are vested in ministers provides one rationale of a constitutional nature for imposing the obligations of accountability on them. Moreover, the courts have for a long time tended to endorse


in their procedures and judgements the idea that ministers do in some real sense make executive decisions themselves or, insofar as they manifestly do not, must generally accept the decisions of their agents – their servants in old-fashioned parlance – as their own. Thus it has been natural for cases to come before the courts in terms of a variety of challenges to the decisions of specific officeholders, usually ministers. In this way government has been personalised and tied back to the actions of individuals. Supporting this is a long philosophical tradition which is individualistic in its presuppositions and inclined to a commonsense, functional view of what is involved in social action. In contrast, there has been little sympathy for such holistic constructions as the state, and, as noted in Chapter 4, the Crown has not on the whole been allowed to function as a screen behind which officeholders can hide their legal responsibilities.11 Apart from the influence of methods of statutory drafting and of the language of public law, there has also been an important political factor contributing to the emphasis on ministerial accountability. Modern parliamentary government in Britain springs out of a determination to make executive action subject to consent and political control. This endeavour was pushed forward in the nineteenth century chiefly by politicians who were not generally subject to strict party discipline and who for the most part were sufficiently independent financially to treat politics as a vocation rather in the sense characterised so decisively by Max Weber. It is not surprising that in this context political officeholders saw themselves as personally involved in the taking of decisions and that they were ready to accept to the full their own responsibility and duty to account. Moreover, until the First World War the scale of governmental organisation and activity was still small enough to allow ministers to be closely concerned with the details of policy-making and administration. There was a certain correspondence between the theory of ministerial responsibility and what actually happened. To a remarkable extent British government and the principal institutions on which it is based continued throughout the second half of the twentieth century to live off the stock of constitutional capital which had been built up in the course of the steady consolidation of responsible and representative government in earlier years. This goes a long way towards explaining why accountability has remained a central and, indeed, almost obsessive preoccupation. This element in the doctrinal heritage of British constitutionalism is still by no means exhausted. Within any serious system of responsible government there has to be scope for holding officeholders to account in a variety of ways. But it is also obvious that the procedures and methods of enforcing such accountability may vary greatly, and that the importance attached to political accountability as a factor in good government is variable too. At an institutional level, for example, the presence of numerous checks and balances in a system of government is in itself likely to impose limits on what office-


holders can do and thus makes a single-minded focus on the individual accountability of officeholders impracticable or simply unnecessary. Regular resort to the judicial resolution of disputes may play a part in such arrangements, whilst the presence of a federal system of government is virtually certain to introduce political and juridical checks and balances of some sort or other. In short, in more intricate institutional arrangements than have prevailed in Britain the exercise of power is likely to be controlled by different means to those embodied in the traditional emphasis in the British constitution on ministerial accountability and parliamentary control. The customary constitution has in modern times been somewhat unusual in retaining so strong a concern with the means of holding officeholders, and especially ministers, accountable. It is this preoccupation that has, for example, dominated the movement for parliamentary reform which has since the 1960s been a prominent element in the debate on constitutional issues. As a result there has during the past thirty years or so been a substantial growth in the procedures and methods available to Parliament for imposing accountability on ministers and, in a modified way, on officials too. But since this is a key factor in the consideration of the place of Parliament in British constitutional arrangements, the details of these developments and an assessment of its significance will be deferred until the next chapter. In the present context it is, however, desirable to make some reference to extra-parliamentary changes which have added new dimensions to the accountability equation and, to some extent, put question marks over the conventional emphasis on the notion and the repeated call by reformers for yet more institutional mechanisms to enforce accountability.

Accountability at large: the impulse to blame Three facets of the ever-widening scope of the demand for accountability are worth brief discussion. First, and most prominent of all, there is the rapid expansion and diversification during recent years of the opportunities for the media – radio, television, the press, and now interactive electronic communication – to engage in the business of calling people to account. Naturally, much of this activity is not carried out under the banner of accountability, but instead passes as news reporting, news interviewing, feature programmes, education and information services for the public, current affairs and so on. It is, however, characteristic of the contemporary approach by the media to the presentation of public affairs that the thrust of reporting and programme making is usually critical and often condemnatory. There is far more concern with exposing people for what went wrong than there is either with objective factual reporting or serious critical assessment. No doubt this is hardly surprising, since so much of the media output now available is conceived, designed and presented essentially as entertain-


ment. In addition much of it is expected to make a profit or at the very least to boost audience ratings. The situation is hardly any different in the press where, under the pressure of acute competition, so-called quality newspapers have become harder to distinguish from their unashamedly populist tabloid rivals. Inevitably the overall effect of this state of affairs is that for much of the time the viewers, listeners or readers are offered material designed to catch their wandering attention and to appeal directly to their emotions and prejudices. In the wake of the competitive struggle for the lowest common denominator of popular appeal the politicians and many other people with responsibility for services of many different kinds are put under the spotlight of publicity by the inquisitors of the media. Often enough this looks like the exaction of something like accountability, even though it has little resemblance to what used to be understood by accountability within the institutions of government. Politicians are ambivalent in their reactions to these developments. On the one hand they must find their constant exposure to what is often hostile and uninformed questioning burdensome and uncomfortable. In the most extreme circumstances media attention can amount to a campaign that may drive a politician from office, a fate which may not always be deserved.12 Yet politicians are also as a rule keen to have publicity for themselves and the party or government to which they belong. Thus, no matter what the inconveniences of this new and largely uncontrollable intervention of the media into the presentation of public affairs and thus, in some degree, into the definition of what is on the public agenda, political officeholders and aspirants to office usually cooperate and put a brave face on the trials to which they are subjected. After all, in an age of popular democracy and electronic communication, most politicians believe that it is better to be seen and heard even in disagreeable circumstances than to be forgotten. The rise of the media to a potent force in Britain has not established any new constitutional conditions relating to political accountability. But it has established the media as an alternative arena to Parliament for efforts to hold officeholders to account before the public. In some degree this has weakened Parliament, and in particular the House of Commons. It is well known that government announcements are often timed to suit the needs of the media and to gain maximum attention there rather than to fit into the procedural framework of the House of Commons. But far more significant than this shift of public stage is the impact of the ubiquitous pressures from the media on the attitudes and priorities of politicians and on the very notion of a parliamentarian. Politicians are compelled to learn how to perform effectively in conditions radically different from those prevailing at Westminster and inside their political parties. In some degree this means that they have to acquire the skills and style of the media world into which they are drawn, and this may well include an ability to entertain and divert an audience rather than to inform or inspire it. The acquisition of media


skills by politicians means that many of them then find out how best to neutralise the efforts of the interviewers and investigators to call them to account. And in catching up with their interrogators contemporary politicians are likely to draw on the advice and instruction provided by the growing body of news managers and experts in presentation – popularly known as spin-doctors – who are employed to support them both in government and inside the political parties. The outcome is a process of continuing interaction between officeholders and media presenters which is deeply ambiguous: it appears to widen and enhance public accountability, yet often it is little more than show and entertainment in which both sides collude. However this relationship is judged, it is hard to discern how it can strengthen accountability inside the institutions of government in any serious sense of that term. Two other features of contemporary society have served to reinforce a preoccupation with accountability. These are rising expectations of service standards, and acceptance of a managerialist approach to the provision of services. This is not the place to pursue either of these matters in detail. But it is worth indicating how they have shifted perspectives on what public bodies are thought to be doing and how they should tackle their tasks. Rising expectations have been in some respects a consequence simply of increasing wealth and wellbeing, but they have also owed much to technical and scientific advances and a wider awareness in society of what such advances mean in many spheres of life. What is now expected of medical services is one of the most vivid examples of this. Inevitably higher expectations make people more critical both of what is on offer and of the methods of providing services. This is where an accountability effect is likely to occur. There is less willingness to tolerate inadequate services and a stronger disposition to demand that those who are found to be responsible for inadequate service delivery should be called to account. Whether consciously or not governments have in recent years vigorously stimulated the expectation of better services more efficiently delivered. The Citizen’s Charter issued in 1991 by the Major Government was but the first in a long line of declarations of policy that encouraged people to expect and demand a rising standard of service in many sectors of public provision.13 Whether the implications of this approach were recognised back in 1991 is doubtful, but its adoption did signal a move towards a customer-orientated view of public service delivery that is now virtually taken for granted. Inescapably this implies an environment in which the customer wants to know what has gone wrong and when it will be put right. The shift to a managerialist view of how public services should be organised and provided can be traced back to the public service reform discussions of the 1960s, and in particular to the arguments put forward in the 1968 report of the Fulton Committee on the Civil Service.14 Many of the would-be reformers were animated by the belief that with the growth of


public services, and especially of those directed to improving levels of social and economic wellbeing, there had to be a change from a regulatory style of administration to one which was focused on applying resources to the handling of social problems and the strengthening of the economy. This, so it was widely believed, called for something like active management instead of what was seen as the emphasis on regulation and procedure inherent in the methods of traditional public administration. The call for better management in the public sector was reinforced too by the popularity at that time of concepts of planning (albeit of a purely indicative kind) and of rational organisational design directed to the achievement of greater efficiency both in the use of resources and in the fulfilment of goals. What was perhaps not clear to the reformers of thirty or more years ago was that the replacement of administration by management as the guiding light in the organisation of public services might ultimately lead to an emphasis on the performance of individual managers which would transform the structures and methods of the administrative system right across the board. For the authors of the Fulton Report and certainly for those involved in the early 1970s in trying to implement some of its recommendations, the call for ‘accountable management’ was not really at the top of the agenda. But nearly twenty years later and under the impact of a much more critical view of the role of the state and what its functions should be and how they should be handled, changes were set in train which have by now spread the gospel of ‘the new public management’ throughout the public sector. One of the most obvious consequences of this paradigm shift in the organisation of public services in Britain is the widespread identification of ‘managers’ in every sphere of provision and virtually at every level. And managers are people who are expected to be active in achieving results and in accepting responsibility for whatever tasks fall to them. The remarks just made about the emergence of a managerialist philosophy in government offer no more than a highly simplified outline of what has been a complex and still continuing process of change. Their purpose is, however, to indicate yet another contribution to the belief that accountability is important and to highlight the challenge that this evolution offers to traditional practices of political accountability through ministers. Within the sphere of the central government constitutional doctrine still affirms the responsibility of ministers and, as a result, their duties of accountability. Yet it is hard to see how the all-embracing accountability of ministers can be reconciled with a managerialist culture in which their agents – still civil servants for the most part – are expected to be effective managers, capable of taking decisions on the provision of services and ready to be accountable for them. The difficulty here is compounded by the functional dispersion of the central government administration which has been driven forward since 1988, so that by now well over two-thirds of the civil service works in well over a hundred and forty executive agencies detached from the parent


departments headed by ministers.15 The overall outcome of these developments has been in constitutional terms paradoxical. They have fortified the belief in the need for accountability in an administrative system where operational responsibilities have been diffused far more widely than before. Moreover, it is public officials of one sort or another who are closely engaged in management and for this reason alone they are expected to be capable of accounting for their performance and achievements. But no satisfactory methods of holding official agencies accountable either to Parliament or in other ways have so far been devised and put in place. This is to a large extent attributable to the fact that the overarching doctrine of ministerial accountability survives and drives much of the political argument and controversy both in the parliamentary context and in the media. Political officeholders do not really want to see their areas of formal responsibility cut down, despite the fact that they are now often much more remote from managing activities than they used to be in the past. Indeed sometimes they have sought to distance themselves from managerial decisions taken in executive agencies when it appeared convenient to do so, and then sometimes to reassert a right to intervene as if the agency were still part of the department.16 Overall the outcome is that the conventions and procedures governing who accounts for what, when and how have become ever more blurred and uncertain. Recrimination and efforts to pin blame often take the place of serious exercises in ensuring accountability for executive actions and policies.

The constitutional status of civil servants Some comments have already been made about changes in the administrative services at the disposal of the government. It is now necessary to look more directly at the constitutional status of the civil service and to consider how its relationship with the ministers who make up the political executive has evolved. Civil servants have remained servants of the Crown paid out of funds voted by Parliament, a condition established back in the second half of the nineteenth century. They have for a long time been recruited on merit in ‘fair and open competition’, though in modern times the factor of competition is for the recruitment of many employees more or less nominal. Furthermore, the body responsible for maintaining the principles of fairness and impartiality in recruitment, the Civil Service Commission, ceased to exist in its traditional form in 1991 and since then the delegation of recruitment to departments and agencies has proceeded apace. Civil servants must work within the confines of the law and they are expected to serve the public at large. Political neutrality continues to be a requirement and, as a consequence, civil servants generally have to abstain from overt party political activity. At the higher levels, anonymity and commitment to the impartial service of ministers of different parties have historically been key charac-


teristics of the British civil service and in principle remain so. From such conditions flowed a constitutional status that was until quite recently well defined and generally uncontentious. Civil servants were to be regarded as the agents of ministers, committed without qualification to assisting them in the formulation and presentation of policy and in the exercise of whatever statutory powers were vested in them, and to ensuring that the executive departments were run efficiently on behalf of ministers. The most important practical consequence of this view of the constitutional status of the civil service was that ministers accepted public and parliamentary responsibility for what was done by civil servants in their name. If all went well, ministers were entitled to claim credit, if difficulties arose or mistakes were made then as a rule ministers accepted blame and would cover their civil servants against public criticism of their conduct. These conventions too have been gradually eroded during the past quarter of a century as more light has been thrown on the real distribution of responsibility between ministers and officials. In terms of constitutional principle the position of civil servants in relation to ministers, and even more so in relation to Parliament has, however, changed little over the past half century and longer. Despite the introduction of political advisers in support of ministers and the increased readiness of prime ministers to make more frequent use in an advisory role of friends and supporters to assist both in framing policy and in putting it into effect, it is still not the case that Britain has a politicised civil service or one in which partisan political patronage plays a decisive part in determining who occupies senior civil service positions. In this respect the British civil service regime continues to differ markedly from what is found in many countries of continental Europe and in the USA. This state of affairs is to some extent puzzling and not entirely easy to explain. Clearly the civil service as a body of personnel still retaining something of a professional ethos and a strong tradition of neutral public service is generally hostile to the uncertainties and arbitrariness which usually go with acceptance of patronage appointment based on party sympathies. In this attitude civil servants are also probably in tune with public opinion notwithstanding the traditional willingness in Britain to denounce ‘bureaucracy’ and bureaucrats. Most recent polling data indicates too that the public mistrust politicians greatly and that they would not have any faith in officials holding their jobs by virtue of a party ticket. Finally there is the fact that most British politicians (and regardless of party) continue to believe that they are better served by loyal and relatively detached permanent officials than they would be by their own nominees, many of whom would not have the experience and knowledge of the professional civil servant. Perhaps too we should not underestimate the significance of the fact that the careers of politics and public service have in Britain been sharply separated one from the other for over a century now. As a result politicians do not see themselves as well qualified to intervene


actively in the career patterns of the civil service and to play a major role in nominations to more senior positions. It is one thing for ministers to give their stamp of approval to proposals from their officials and even sometimes to exercise a discretion in choosing one candidate for a senior post rather than another, but it would be quite a different matter if they were to become actively involved in the filling of posts. Notwithstanding the continuing subordination of civil servants to the ministers they serve and the consequences this has for their public visibility and the extent to which they can be identified with issues arising both in the making of policy and in its implementation, there has been some de facto change in the conditions under which the civil service operates. There is now a much wider range of parliamentary scrutiny of the work of government departments and agencies than there used to be twenty and more years ago. This all takes place in public and officials play a major part, though often alongside ministers, in appearing before select committees of both Houses of Parliament. In reports and inquiries of all kinds it has become quite normal to mention officials by name, especially in the context of allocating responsibility and blame.17 Two striking recent examples of this practice are provided by the Scott Report on Arms to Iraq and the report of the BSE Inquiry published in late 2000: both contain numerous passages describing what happened with full attribution on many occasions to the relevant ministers and officials.18 More generally, there has been a shift of mood in recent years towards acknowledging that the conduct of government should be more open and transparent, a process which recent legislation on freedom of information is intended to encourage when it comes into operation.19 But whatever might be the consequences of freedom of information provisions in the future, there can be no doubt that already the civil service works in a much more open environment than it used to do. Structural and organisational change has accelerated this process, most notably the effort to achieve a clear separation between executive activities and service provision on the one hand and policy-making, legislation and financial allocation on the other that has been pursued by successive governments since 1988. Executive activities are now entrusted to about 140 agencies, working for the most part according to published framework documents provided by their parent departments. To some extent this means that departments have in essence contracted their executive functions out to dispersed civil service units. Inevitably this means that at any rate in sectors likely to be of broad public concern (for example, the payment of all kinds of benefits, the issue of licences, the notification of employment opportunities or the running of prisons) the staff are more likely to be in the public eye than was previously the case and these conditions have been reinforced by the Blair Government’s belief in the desirability of setting performance targets and publishing what is then achieved. These developments strengthen the notion that officials should be held accountable for the


efficient provision of the services they manage. But it remains difficult to discern how officials with the status of civil servants can be brought effectively within the ambit of accountability in the manner of ministers. Constitutionally they do not account to Parliament (with the sole exception of accounting officers who constitute a special case), they cannot be voted down or forced from office by parliamentary action, and they work within limits still defined for the most part by the ministers they serve. So the call that is sometimes made for civil servants to be made more ‘accountable’ now that the existence and functions of many of them at the more senior levels are more widely recognised in public is misconceived in the absence of a readiness to make radical changes in the legal and political basis on which the central government and its dependencies rest. So long as powers continue to be vested chiefly in ministers and they alone remain politically accountable to Parliament for their use, it is impossible to bring civil servants directly into the political accountability equation. Whether the procedures for holding ministers to account are effective or not is a different issue and open to empirical examination and judgement. But conclusions reached in that regard do not seriously affect the constitutional principle that civil servants have so far no authority of the kind enjoyed by ministers and cannot, therefore, be treated as accountable in the same way and on the same terms.

The discretion of ministers as a centralising dynamic Elected politicians and, indeed, the holders of public office generally are exposed nowadays to much criticism for their alleged failings and inadequacies. Nonetheless they continue to be able to claim a remarkably wide range of political discretion. Politicians come to power and their right to put through whatever legislation their party manifesto calls for is not seriously questioned. Unfortunate events are bound to occur from time to time and most likely there will then be an insistent demand from the media and the public that ‘the Government’ should do something about it. Indeed, in the constant flow of comment on public affairs there is rarely any recognition of the fact that there are many problems which cannot be handled effectively by governmental action, or of the likelihood that ministers and their agents are inherently limited and constrained in the action they can undertake. Despite the efforts of Mrs Thatcher and others after 1979 to reduce or redefine the powers and responsibilities of the central government and of other public authorities too, the twentieth century faith in ‘providential government’ remains remarkably strong in Britain. There are even grounds for concluding that in an era of increasing wealth and more demanding expectations the tendency to regard ‘government’ as the key to solving virtually all problems in society has become stronger than it was before.


It is attitudes of this kind that have supported the claim that government in Britain has become unusually centralised both in its structures and operations. Further on in this study it will be necessary to look again at the notion of centralisation and to consider how far its range of application has to be modified in the light of recent measures of devolution. In the present context we are concerned with the most basic political aspects of centralisation and in this regard it would appear that the constitutional position remains much the same as it has been for several decades now. Drawing on the supremacy of Parliament and the right of the majority party to govern, the political executive in Britain makes extensive claims and is largely free from the checks and balances imposed by the need to accommodate the constitutionally recognised rights of competing institutions within the political system. Thus in practice the limitations that have been effective have been those stemming from the social power of organisations and associations within society. On the whole, however, there has in recent years been a decline in the capacity of such intermediate bodies to exercise influence directly over the government of the day. The trade unions have ceased to be a powerful ‘estate of the realm’; in an era of globalisation and the constant fusion of businesses to form ever larger conglomerate corporations the bodies officially held to be representative of industry have lost much of their significance in the economy; under the impact of mass higher education and state tutelage the universities cannot speak with authority; local authorities have continued to slip further and faster down the scale of prestige; and political parties no longer embody a degree of internal differentiation of interests and opinions significant enough to act as a reliable check on what their leaders may propose to do. As a result party dissent tends to be spasmodic, prompted by particular issues that arouse strong emotions or by dislike of particular personalities and what they appear to stand for. Only when the imminent prospect of electoral defeat concentrates the mind does it appear that a government or party leadership may be willing to change its policies or even its leader. The modern British political executive is, therefore, peculiarly free from restraints other than those it may perceive in public opinion on what it may attempt to do in the sphere of public policy-making so long as it retains the backing of a majority in the House of Commons. Naturally, there are objective limits to what a government can try to do, for example, those now imposed by membership of the European Union and the commitments this entails. But there are few signs that the political rhetoric of party competition and controversy in British public life has begun to reflect to a significant extent the changes that have taken place during the past forty years or so in relation to the conditions in which the United Kingdom Government has to operate and the powers which it can realistically hope to exercise. Indeed, there are signs that in relation to the delivery of benefits of all kinds the claims made by politicians and on their behalf by some of their sup-


porters are far more extravagant and implausible than was normal in the decade immediately following the Second World War. Yet this is perhaps not surprising in an era of populist democracy. In order to retain their popularity parties and leaders clearly feel under constant pressure to demonstrate their willingness to respond to demands claimed to be in line with popular feelings and preoccupations. This leads to competitive bidding in the promise of benefits to be provided by the national political authorities. And no matter how unconvincing this competition in the promise of future benefits might be, no party dares to refrain from taking part in it for fear of losing support. Instead they all remain trapped in a prisoner’s dilemma from which none can discern an exit. In one further respect the political executive in Britain has barely changed at all: it remains predominantly parliamentary with respect to the origins and career experience of virtually all its senior members and most of those of middle and junior rank too. There is virtually no room in its ranks for experienced officials, prominent businessmen or technocrats as there is in some Western democracies. At best there may be space for a few persons recruited from outside conventional political life by primeministerial patronage and given a seat in the House of Lords. As a natural consequence of this situation the style and priorities of most members of the political executive reflect their experience as party politicians and Members of Parliament, though without doubt a distinctive parliamentary style of behaviour and presentation is giving way to something that makes it far harder than it was in the past to distinguish politicians from those in many other spheres of activity who have to present themselves in one way or another to the public. The institutional framework from which most ministers emerge continues to make them highly sensitive to political imperatives, many of which are dictated by the limited time span of parliamentary life and the pressures of public accountability. They constitute a class of political entrepreneurs whose primary concern is to survive and secure re-election: they are and remain primarily political rather than executive managers. Ostensibly ministers have become more interested in output, performance and results than was usual some years ago. But much of this merely represents a response to populist pressures and demands rather than a serious desire to assume the role of the executive directors of a business. The constitutional role of the executive continues to be that of conferring – or trying to confer – some degree of coherence on the multifarious activities of what is now a complex and often messy network of organisations, some public, some quasi-public, and some private, which are charged with providing what are generally referred to as public services. Given the conditions under which they are expected to perform their functions, it is not at all surprising that ministers often fall short of the standards they set themselves and which the public appears to demand.


Notes 1. The dignity and antiquity of the Lord Chancellorship have not safeguarded it against the promise of abolition issued in June 2003. Chapter 4, note 27, also refers. 2. The assumption by the prime minister of the sole right to ask for a dissolution of Parliament is generally held to date from Lloyd George’s request for an election at the end of the First World War in 1918. 3. Under the rules of the Parliamentary Labour Party when in opposition the shadow cabinet is elected by MPs. This means that immediately after an election victory the prime minister’s discretion in allocating offices in the cabinet may be somewhat qualified. 4. Technically this statement is still correct in relation to the appointment of life peers. But in practice Mr Blair has voluntarily accepted some restrictions on his ability to put forward nominations for non-party life peerages. See Chapter 10. 5. K. O. Morgan, Labour in Power 1945–51, OUP 1984, contains material on how the cabinet functioned at that time. But even this example of what looked like collegial government sometimes ran into sharp internal divisions. 6. M. Burch and I. Holliday, The British Cabinet System, Prentice Hall 1996. 7. The Scotland Act 1998, sections 45 and 46, regulates in some detail what is to happen if the First Minister dies, resigns or is required by the Parliament to do so. A permanent multi-party situation in the House of Commons would almost certainly require similar rules or conventions to apply. 8. Clare Short MP, Secretary of State for International Development, resigned subsequently in May 2003. 9. S. E. Finer, ‘The Individual Responsibility of Ministers’, Public Administration, 34, 1956, p. 377, set the pattern for a long succession of critical commentaries on what individual responsibility has meant in practice. 10. This applied in the Crichel Down affair in 1953–54 which resulted in the resignation of Sir Thomas Dugdale MP, Minister of Agriculture. Dugdale was not ‘responsible’ in any direct sense for what happened in this tangled tale of land requisitioning and subsequent sales, rather it was officials who behaved arrogantly. But the minister had to be sacrificed to appease his party. For a somewhat partial account see L. F. Nicolson, The Mystery of Crichel Down, OUP 1986. Lord Carrington’s resignation as Foreign Secretary in 1982 after the Falkland Islands were invaded was in some respects quixotic, no matter how honourable his motives were. 11. The sphere of Crown privilege in relation to the disclosure of documents to the courts has been steadily narrowed during the 1990s by legislation and judicial decisions. 12. Constant adverse publicity certainly contributed to the resignation from the cabinet of Mr Stephen Byers (Secretary of State for Trade and Industry) in 2002, and of Ms Estelle Morris (Secretary of State for Education) later in the same year. But media criticism was not the only factor leading to loss of office by these two politicians. 13. The Citizens’ Charter: Raising the Standard, Cm 1599, presented to Parliament July 1991. 14. The Civil Service, Vol. 1, Report of the Committtee (Fulton), Cmnd 3638, 1968. For a contemporary comment see N. Johnson, ‘Reforming the Bureaucracy’, Public Administration, 46, 1968.

A Parliamentary Government 101 15. The initiation of these changes was announced in Next Steps, HMSO 1988. As a result executive agencies came to be called ‘next steps agencies’. 16. This appeared to happen in the case of Mr David Lewis, Director of Prisons, who was dismissed by the Home Secretary (Mr Michael Howard) in October 1995 following an adverse report on the escape of prisoners from Parkhurst Gaol. 17. It used to be almost unknown for officials to be named publicly. An early precedent for change was set in the report of the Tribunal of Inquiry into the Vehicle and General Insurance Co., HC 133, 1971–72. 18. Report of the Inquiry into the Export of Defence Equipment and Dual Use Goods to Iraq, and Related Prosecutions, by Sir Richard Scott, 5 vols, HC 115, 1999–2000; Report of the BSE Inquiry, Vol. 1, by Lord Phillips of Worth Matravers (and others), HC 887-I, 1990–2000. 19. Most of the provisions of the Freedom of Information Act 2000 do not come into operation until 2005, though this limitation does not apply to many procedural preparations referred to in the legislation.

6 Parliament: the Foundation of Legitimacy

Looking at the matter from the perspective of the long sweep of British constitutional history it can persuasively be argued that Parliament is the institution which has for several centuries been Britain’s substitute for a formal, codified constitution. It has stood at the intersection between the claims of royal authority and the demands of what was often called in the past ‘the political nation’. At crucial stages of political conflict and controversy it has embodied efforts to sustain effective government subject to genuine limits on the powers of the executive. For over three centuries it has stood for the virtues of government subject to deliberation and public argument, and has regarded the redress of the grievances of citizens as one of its enduring commitments. Moreover, the impact of Parliament has not been confined to Britain: it has from the nineteenth century onwards often served as a model in many other parts of the world for the development of parliamentary forms of government. Large claims – political, moral and constitutional – have almost since time immemorial been made on behalf of Parliament, and especially of its popularly elected component, the House of Commons. Of these the most far reaching has been the claim to supremacy – or sovereignty – in the making of laws. As far back as the later part of the sixteenth century the sovereignty of Parliament and the consent of the people were glimpsed as two sides of the same coin. Yet these far-reaching and portentous claims, which used generally to be treated with seriousness and respect, are now regarded with scepticism by many and appear to stand in sharp contrast with the real situation and role of Parliament. In short, there seems to be a gulf between what are still advanced as the constitutional principles of parliamentary government in Britain and the political reality of the day-to-day role of Parliament. Constitutional theory says one thing, politics points to something quite different. One of the main concerns of this chapter is to reflect on the tensions between the constitutional role still attributed to Parliament and the limitations affecting its capacity to fulfil this role. 102

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The House of Commons and the function of control The Crown in Parliament – which in modern political terms means the government of the day acting through the House of Commons – possesses in principle full sovereignty in the making of law and the final determination of public policy. This is what the theory of parliamentary sovereignty has been taken to mean – the legal and political supremacy of the United Kingdom Parliament in any jurisdiction falling within the ambit of its authority, and the political supremacy of the Crown’s ministers so long as they retain the confidence of the House of Commons. One fairly obvious consequence of this principle is that it has been difficult, and perhaps logically impossible, to sustain a formal constitution in Britain, since in that case the terms of the constitution would have to take precedence over the claims of Parliament. Nowadays it has become necessary to question how far parliamentary sovereignty remains a tenable basic constitutional proposition, a kind of Grundnorm of the British constitution. Political circumstances and commitments as well as formal institutional changes have raised serious doubts about whether it can any longer be sustained as a ‘fundamental’. The argument about parliamentary sovereignty will not, however, be taken further at this stage. Instead this discussion of Parliament under the British constitution will begin with a consideration of the principal functions discharged by Parliament under the British constitution and of the political values underpinning such functions. One matter of terminology needs to be clarified at the outset. Since terms like ‘parliamentary government’, ‘parliamentary sovereignty’, ‘the powers of Parliament’ or simply ‘Parliament’ are very familiar and in everyday use, they or some variant of them will often appear in what follows. But what they refer to in practically any modern context is the elected component of Parliament, the House of Commons. Unless qualifications to the contrary are made this is what they refer to here as a rule. Clearly the House of Lords is a component of Parliament, and its role and powers have to be examined in due course. But throughout the twentieth century the readiness of the House of Lords to exercise its formal powers has been greatly attenuated, and to such a point that when people talk about Parliament they generally have in mind only the elected chamber. Parliament, and especially the House of Commons, developed from the seventeenth century onwards a checking and controlling function in relation to the Crown’s ministers. Eventually this came to mean that a government had to have the confidence of the House of Commons and that if that support were withdrawn it would sooner or later have to resign. It is often forgotten today how sharp was the antagonism between Parliament and ministers of the Crown in the early years of the evolution of parliamentary government from 1660 onwards. The House of Commons in particular was hostile to the manipulative influence on it of the King’s ministers, and in


the more theoretical discussion of forms of government there was much support for something akin to a strict separation of powers between the legislative and executive branches of government. It was only amendment of the 1701 Act of Settlement in 1713 permitting ministers to remain in the House of Commons that finally paved the way for the emergence of genuine parliamentary government. But the idea that Parliament is for some purposes to be sharply distinguished from Her Majesty’s Government and that there is an underlying antagonism between the two continues to find expression both in many parliamentary procedures and in the attitudes of Members of Parliament. It is the job of Parliament to challenge the government, control it, and call its members to account.1 But the rise of disciplined political parties, often claiming a mandate to act by virtue of an electoral majority, has introduced a profound ambiguity into the relationship between Parliament and the government. Is the House of Commons there to confer authority on the executive and to exercise a critical and controlling function in relation to its members, or is its main function now to facilitate majority rule and the fulfilment of promises made by parties in an election? There can be no doubt that effective government does depend to a large extent on the capacity of politicians to manage their party majority in such a way that it continues to sustain them in office. This was a lesson familiar even in the nineteenth century when party discipline was much looser than it has since become. Yet it is also clear that the more imperative and demanding party discipline becomes, the harder it is for Parliament to discharge its critical functions of checking the executive and calling its members to account. Thus some kind of balance has to be struck between the requirements of strong and effective government on the one hand and encouragement of the kind of political conditions within parties that will allow Parliament to exercise its critical and controlling functions on the other. In recent times, and especially during the past thirty years or so, no such balance has been maintained: so long as governments have retained a majority in the House of Commons, they have generally insisted on having their way on virtually all proposals of importance they put before the House. In the face of such determination very strict limits are set to the exercise by Parliament of its critical and controlling function. Nonetheless, many efforts are made by the House of Commons to maintain that role and we return below to some further discussion of how this is done. Parliament has served as an arena in which another constitutional function of control has been discharged, and that is the practice of opposition. There is an institutionalised and constitutionally recognised opposition in Britain which is usually identified with the competition between two disciplined political parties both seeking to secure or retain an electoral majority and thus the right to form a government. Yet it is worth remembering that the practice of opposition has its origins in parliamentary life as it was in the mid-eighteenth century, well before the emergence of the kind of

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parties we are familiar with now.2 In the shaping of the practice of opposition a mixture of motives was at work. There was the crude desire to oust the current officeholders from their positions of power and profit; there was the realisation that the practice of opposing was a congenial and often effective way of conducting political argument; there was gradually an awareness that parties could be persuaded to back policies and thus to compete on the basis of offering a different mix of policies and perhaps even contrasting moral positions in public affairs; and eventually as the franchise was widened it was recognised that it was essential to vigorous parliamentary government that the electorate should be offered a choice. Since it was an accepted constitutional postulate that the Crown’s government must always be carried on, the role of the opposition became that of presenting itself both in the House of Commons and before the voters as the alternative government. Formal legal recognition of the position of ‘Leader of the Opposition’, including the payment of a salary, was given in 1937 by the Ministers of the Crown Act.3 Thereafter whoever held this position came to have a role on a variety of public occasions, quite apart from his (or her) rights enjoyed under the procedures of the House of Commons. Just over a quarter of a century ago funds began to be made available for support of the work of ‘opposition’ parties in the House of Commons, a step which both confirmed the institutionalisation of an official Opposition and at the same time recognised that as a rule there were other opposition parties which had also gained representation in Parliament.4 The fortunes of political parties since then have only served to confirm that the survival of the practice of opposition as an alternative government does depend a great deal on contingent political factors. Though it is predominantly associated with a two-party competition and, therefore, with the first-past-the-post electoral system, the practice of opposition does ultimately rest on the willingness of the electorate to concentrate support on only two dominant parties. No voting system can by itself guarantee that kind of outcome. Yet despite the signs of changing attitudes towards party affiliations and loyalties revealed in the 1970s and early 1980s as well as in general elections since 1992 the custom of treating the largest opposition party as Her Majesty’s Opposition has survived unscathed. It remains a decisive element in the British view of how under a parliamentary system the power of the incumbent government can best be controlled: it lies at the heart of what has often been called the ‘Westminster’ model of parliamentary government. The abuse of power is to be checked inter alia by the fear of losing office. Such a sanction can, however, only be effective when certain contingent political conditions are met and, moreover, when the official opposition presents itself as a viable alternative governing team. In the years since 1997 when there has been a government majority not far short of 200, an official opposition heavily defeated in two successive elections gaining about 165 seats and a second opposition party moving up to over 50 seats in 2001, doubts have been expressed about


whether the basic political conditions for effective opposition are any longer fulfilled. The attenuation of opposition forces in the House of Commons is, however, not a new experience. After the election of a National Government in 1931 the Labour Party survived and performed the role of official opposition with initially only 52 seats. There is a further aspect of the idea of opposition which in contemporary political and social conditions requires a mention, even though it is hardly a binding feature of constitutional law or convention narrowly defined. This is the fact that the habit of pitting government against opposition along with the dialectic of public competition in which they are nearly always engaged has been carried over from Parliament and the electoral process into many other spheres of social life. The assumed rivalry of parties absorbed in an enduring contest for public favour has perhaps more than any other factor stamped a particular configuration of argument on public life in Britain. Today this is most clearly visible (and audible) in the output of the electronic media. They present virtually all events and decisions as in some degree at least the outcome of a conflict or competition, and they assume without question that such matters can and should be discussed only in terms of the arguments for and against. This approach dominates comment on public affairs, but extends more widely into many branches of communication. Thus even programmes that are clearly presented as entertainment are likely also to be structured and designed so that they embody a contest between the protagonists of conflicting views. This suggests the presence of a profound underlying belief that this is the only worthwhile way of addressing the public and of catching their attention. This belief finds too almost daily expression in the call for ‘debate’ on matters which have excited public concern and been taken up by the media. Without doubt this emphasis on the clash of opposing points of view may make for more lively programmes, but a heavy price is paid in terms of the trivialisation of discussion and reinforcement of stereotypical attitudes and responses. Nor is the conventional press much better in this regard. Since newspapers operate under strong competitive pressures, they too have during the past two decades or so succumbed to a process of outbidding each other in the market for simplified presentation. This involves the virtual disappearance of objective factual reporting and its replacement by impressionistic and often opinionated comment. In the presentation of politics in the narrower interpretation of the term strict conventions, amounting almost to ‘law’, are applied by the media in order to preserve what is usually termed ‘balance’ and thus to offer fair treatment to all political parties. Inevitably, however, this too tends to strengthen the addiction to ‘debate’.

The function of legislating The function of exercising political control through the enforcement of accountability along with that of providing a framework for the exercise of

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the rights of opposition are basic procedural attributes of Parliament. But it has another vital function which is prima facie more positive and that is the function of legislating: Parliament is there to make laws in the interests of society and its citizens. Under the customary constitution Parliament was recognised as the sole source of statute law and unlimited in the exercise of its right to make laws. The legislative authority of Parliament is, however, no longer as sacrosanct as it used to be, even though much ingenuity is still invested in arguing that in theory it is. We need first to note that since in any event Parliament is only ‘sovereign’ as ‘the Crown in Parliament’, today this should read ‘the Crown’s ministers’ acting in and through Parliament. For most of a century now that has meant that Parliament has been a procedural filter through which legislative proposals generated predominantly by the executive have to pass. Though opportunities for the promotion of legislation by ‘private Members’ still exist, relatively little legislation now originates in Parliament itself or reflects a direct response to demands raised there. Instead, most bills are ‘programme’ measures derived from the public electoral commitments of the majority party forming the government. This means that the preparation of legislation is primarily an executive activity carried out subject to certain parliamentary procedures, nearly all of which can be applied in such a way as to guarantee that the will of the majority prevails. As a result Parliament rarely has a substantial direct impact on the content of legislation: in the Commons debate may allow the ventilation of issues not properly appreciated at the outset of proceedings on a bill, detailed consideration in committee may induce the government to make limited amendments to the text, and the skilful use of the House’s procedures may enable the opposition or even groups of determined Members operating independently of their party whips to delay the progress of a bill. But except on the relatively rare occasions when a serious revolt occurs within the majority party, a government can reckon on getting its legislative programme through the Commons more or less in the form it prefers. Nor does the need to go through similar procedures in the second chamber, the House of Lords, normally change this situation substantially. Consideration in the Lords adds a further time dimension to the passage of legislation, but provided the government is adamant in insisting on the passage of a bill it has the constitutional authority under the Parliament Acts to apply its majority in the Commons to ensure that it goes through even without the consent of the second chamber. Another aspect of legislating in the British Parliament merits comment at this stage, in part because it has consequences for the character and quality of law in Britain, in part because it throws light on the attitudes of politicians towards the function of legislating. This is that legislative texts presented to Parliament have for the most part to conform to what can be called the methods of common-law draftsmanship. Much of the legislative output of Parliament now consists of detailed provisions for the establishment of administrative organisation, procedures and powers required to enable


certain services, sometimes involving the payment of funds to recipients in one form or another, to be provided. At the same time a range of objectives for the services concerned may be formally laid down. Additionally, legislation may contain detailed organisational arrangements or at any rate define the main features of some new public body, leaving some of the detail to be filled in later through delegated legislation embodied in statutory instruments. In theory at least much modern legislation could have assumed a different formal character from that which it actually has. It might, for example, have had a much clearer logical structure moving from general principles to specific applications of such principles and then on to the procedural conditions, probably including any financial conditions, which are to govern the provision of whatever services are involved. But a well-defined structure in modern British legislation is the exception rather than the rule. This is not the result of perverseness nor is it accidental. It is in part the consequence of ministerial concern with converting broad policy aims into highly specific and, so it is hoped, workable schemes for their realisation. But it also owes much to the heritage of common-law judgements, interpretative doctrine and methods of formulating legally binding conditions that was carried forward into statutory draftsmanship in the course of the nineteenth century and later.5 Parliamentary draftsmen, even though they may have long experience in the legal services of government, emerge from a common-law experience and tradition and they shape legislation as that tradition and, more crucial still, the courts expect.6 Thus there is great emphasis on exactness in the formulation of statutory provisions and on the achievement of certainty as to the effects of what is laid down. The outcome is a statute book which, especially in the second half of the twentieth century, has become replete with detail, often to such an extent that it is virtually incomprehensible to all but a small number of lawyers and administrators. This approach to the formulation of law has encouraged the belief that the drafting of law is essentially a technical operation carried out by legal specialists who translate the political and policy requirements of ministers, along with any accompanying administrative requirements, into the appropriate legislative text. The guardians of this drafting skill are the members of the office of Parliamentary Counsel, still a remarkably small body of just over forty specialised lawyers who handle virtually all statutory drafting on behalf of the departments of state successful in their bids for legislative time each year. Whilst departments have to set out what they hope to achieve through legislation, it is Parliamentary Counsel who shape the formal instructions on which the drafting of each bill takes place. There can be little doubt that in terms of the legal conventions governing the process of drafting British statutes nearly always demonstrate a high standard of accuracy and technical refinement. But a price has to be paid for this extraordinarily concentrated method of preparing what is finally put to Parliament for its

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examination, amendment and ultimately approval or rejection. The method encourages the belief that drafting law is a purely technical activity, best left to lawyer specialists. Parliament’s concern, so the argument often goes, should be with the larger policy issues underlying legislation. This view has long been attractive to many members of the political class in Britain, but it is now reinforced by the gradual decline in the number of experienced lawyers in Parliament, a fact which by itself makes it ever harder for the House of Commons to examine legislation seriously and in any detail.7 In addition, the procedures of the House have not for a long time facilitated the close and effective scrutiny of bills. Debates at second reading are directed to the principles of a measure and thus focus on the policy and politics of the matter in hand. The consideration of bills in standing committees proceeds on a procedural basis copied in essentials from the floor of the House and thus tends to encourage repeated instalments of the kind of controversial and adversarial debate that has already taken place at second reading. This stage does in principle permit constructive amendments to be discussed and voted on, and it offers the government too time for inserting changes which for a variety of reasons it may be keen to make. The greatest weakness of the whole procedure does, however, lie in the absence of significant scope for a rational and informed attempt to improve the quality of the legislative proposals put before Parliament. It has sometimes been argued that this can be achieved only by the introduction into the legislative process of select committee methods of investigation and evidence collection. Yet it is doubtful whether this innovation – already provided for in a limited way and occasionally applied to a bill – really gets to the heart of the problem.8 This lies in the obstacles to effective legislative scrutiny inherent in the debating procedure itself, in the technical difficulty and often obscurity of legislative texts, in the sheer quantity of legislation put before Parliament and often in an unfinished state too, and in the contemporary shortage in the House of Commons itself of the kind of experience and skills demanded by the task. At least two further aspects of the function of legislating need to be mentioned as factors contributing to the weakening of Parliament’s role in the process. One is the contemporary flow of delegated legislation which in sheer quantity of pages far exceeds primary legislation.9 This is not a recent phenomenon, but reaches back to the early years of the twentieth century when it began to catch the critical attention of lawyers and politicians. The rapid growth of social and economic legislation during the Second World War and after led to the ever more frequent use of statutory instruments for the implementation of primary legislation. Such delegated powers now regularly fill five or six large volumes per year. Both Houses of Parliament have scrutiny procedures for such delegated legislation and in principle each House can reject instruments laid before it, though amendment is not as a rule possible at all. But over the content of such delegated provisions Par-


liament has in fact negligible influence. Both Houses provide for the most part a purely technical scrutiny and only if there is substantial disquiet about a statutory instrument is it likely that the government will be prompted into looking again at its terms. What is more, there are no coherent principles defining what matters in a statute can reasonably be left for subsequent regulation by statutory instrument as opposed to those that should go into the primary legislation, or what circumstances call for instruments to be subject to an affirmative vote rather than the so-called negative procedure.10 It is thus political expediency and administrative convenience that chiefly determine what aspects of law-making are left to be dealt with by executive action, subject to what is often enough only nominal parliamentary scrutiny. Parliament has surrendered its direct control over legislation in another way too which has far more serious implications for the survival of a sovereign Parliament. Since the European Communities Act 1972 under which Britain joined what is now the European Union the legislative powers of Parliament have been qualified by the treaty commitment to implement European law.11 This may involve accepting measures that have direct effect or, as is often the case in many areas of economic and social policy, of incorporating European Union directives into British law. This is a pre-eminent example of what is in essentials executive law-making. European Union directives originate in the European Commission, where already they are exposed to consultation and bargaining with interested parties. After that there is likely to be further negotiation between member states in the Council of Ministers and within other institutional structures of the European Union, including the European Parliament that increasingly now has what is known as a power of co-decision. These complex structures do not make it easy to follow closely the process of legislating within the European Union, but both Houses do make efforts to engage in scrutiny from the time that draft European instruments become available to the point at which the government has to reach a decision in the European Council of Ministers. There is as a rule no linkage in time between the emergence of directives from the Council of Ministers and the domestic legislative cycle. This may not matter much in practice because the eventual implementation in Britain of most European Union directives is achieved through the use of delegated powers, the very procedure which as already noted tends to limit scrutiny substantially in the case of domestic measures. Nonetheless both Houses do put considerable effort into scrutiny. The European Scrutiny Committee examines European instruments in the Commons and can recommend that since a proposal raises important legal or political issues it should be debated in a standing committee, though this is not a frequent occurrence. Much of the emphasis in Commons scrutiny has been on legal and technical matters. In the House of Lords the European Union Committee, operating through six sub-committees, engages in what is often

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a more broadly based scrutiny than occurs in the Commons, resulting in the transmission via the House to the government of numerous reports and recommendations. All this takes place in both Houses usually before the government has agreed to the measures concerned. Yet it is doubtful whether all this effort makes up for the effective exclusion of Parliament from the formulation of European legislative proposals and from opportunities to have a real impact on their final form. Nor have ways yet been found to enable Parliament to assess whether the implementing legislation (generally passed in the form of statutory instruments under the negative procedure) in fact reflects the agreed objectives of the relevant European directives. The whole process of European law-making with its many ramifications serves to underline the weakness not just of the British Parliament in this sphere, but of the legislatures of all member states. For it is questionable whether under the existing treaties national legislatures can claim any rights at all in relation to the enactment of European law. Measures are determined ultimately by governments acting in the ministerial councils of the European Union and it is up to these same governments to ensure that what is agreed is then embodied in their own domestic law. It is not surprising that national legislatures are then in a weak position from the early stages of European law-making right through to the final phase of domestic implementation. They can do little more than adapt their procedures as best they can to the surrender of powers that they once had.12

From administrative to political scrutiny A major function of Parliament that has in the course of the past thirty years or so received a great deal of attention is the scrutiny of governmental activity and of public administration. This function could be treated as a subdivision of the wider function of political control with which this review of Parliament’s role began. But political control and supervision has historically been closely associated with debate on the floor of the House of Commons and with the varied interactions there between Members and ministers. There is, however, another kind of scrutiny, until recently less visible and spectacular than many of the proceedings on the floor of the House, which is carried out by select committees. A select committee is essentially a group of Members of either House (and occasionally of both Houses acting jointly) charged with investigating some matter and reporting on it. The origins of this type of scrutiny and of the sort of committee used for it lie as far back as the eighteenth century when the House of Commons had to deal with a great deal of private legislation and found it convenient to refer much of that to small groups of members for report. In the following century select committees began to be used on an ad hoc basis to inquire into a wide range of issues which had for varied reasons become matters of public concern. Indeed, select committees had at that time some-


thing like the character of royal commissions set up by the House of Commons to present it with advice. And one select committee was set up in 1860, the Public Accounts Committee, which achieved permanence and prestige as the House of Commons’ watchdog charged with reporting on the accounts of public expenditure laid before Parliament by the Comptroller and Auditor General.13 Then for a long period in the twentieth century select committees went out of fashion and were used only spasmodically.14 But with the great expansion of public services and the nationalization of several basic industries and utilities after 1945 there gradually developed an awareness in Parliament that new instruments of scrutiny and investigation were needed. First a select committee on estimates was set up soon after the end of the Second World War, and a few years later came one on the nationalized industries. Together these provided a model for methods of continuing and regular scrutiny of particular sectors of public administration and management.15 The emphasis was on collecting evidence from officials on the manner in which they conducted business and ran services on behalf of ministers or, in the case of nationalized industries, the boards in charge of them. A direct critique of policy was not within the terms of reference of these committees, though there were ways of getting indirectly at policy issues. It was administrative scrutiny of this kind, widened in scope and deepened in intensity, that became the aim of many parliamentary reformers during the 1960s: Parliament, and especially the House of Commons, was to be reinvigorated and strengthened by the development of scrutiny by select committee.16 After various experiments this did indeed become the principal theme of parliamentary reform. In 1979 the new Conservative Government agreed to set up a full range of standing departmental select committees, and they together constitute a system that is now well established. Standing orders of the Commons require the appointment of select committees covering all the main departments of state, with the curious exception until recently of the Lord Chancellor’s Department.17 But in addition there are several select committees with responsibilities cutting right across the functions of government, for example, on deregulation, on environmental audit and on public administration. The latter also examines reports from the several parliamentary commissioners or ‘ombudsmen’ who now exist. There is too the European Scrutiny Committee which examines instruments coming from Brussels, and a considerable number of committees concerned with domestic matters relating to the House of Commons and its own procedures. It is worth noting at this point that there has been a parallel, though more restrained, development of select committee scrutiny in the House of Lords where, until quite recently, relatively little use was made of this method.18 Taking the two Houses together there is no doubt that the past twenty years have witnessed a remarkable extension of the investigatory resources of Parliament. The interface between the executive in its many

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guises and Parliament is far wider and more complex than it ever was in the past. There is a generic similarity in the terms of reference and powers of nearly all select committees. They are charged with examining the matters coming within their remit and have the power to call for ‘persons, papers and records’. Their duty is to report as and when they see fit to their parent House. In the case of the departmental select committees of the Commons their remit is to examine the expenditure, administration and policy of the department of government for which they are responsible, including whatever dependent agencies it may have. Select committees have the right to appoint specialist advisers to assist them in their inquiries, and there are some departmental select committees that are entitled to set up subcommittees. Select committees are small bodies, with most of them having no more than 11 members. Membership reflects the size of the principal parties in the House of Commons which means that the government nearly always has a majority in select committees. The party whips have a decisive influence on the selection of members to sit on select committees and the same goes for chairmanships. It cannot be assumed that members or chairmen have security of tenure, though most committees are now appointed for the life of a Parliament.19 Moreover there is considerable movement in and out of select committees as members gain preferment or simply decide that they are no longer interested in a committee’s work. Constitutionally the role of select committees in the House of Commons is to advise the House. They make no executive decisions and are not expected to. Their reports may be debated in the chamber and there is provision for the Liaison Committee (a committee of chairmen of departmental select committees) to recommend reports for debate in the time allocated for that purpose. In addition, and this is in fact much more important for select committees, their reports are indirectly addressed to the government which accepts an obligation to respond to reports and to inform the House of what, if anything, it proposes to do on the recommendations made. Certain aspects of the procedure of select committees are of great importance. They follow what is essentially a judicial procedure, inviting witnesses to answer questions and to provide evidence. In addition they consider written submissions, papers submitted by the departments, agencies or private bodies concerned in their inquiries, and they may draw on the help of a specialist adviser. They sit in public as a rule for the taking of evidence and nowadays the verbatim report of such proceedings appears more or less straightaway. For deliberation on the outcome of an inquiry and drawing up its report a select committee sits in private. Technically the reports of select committees should stay within the parameters set by whatever evidence has been given to them, and there is really only provision for one report, that of the committee as a whole. So-called minority reports can be produced only by the device of moving dissenting proposals in the course


of the deliberations on the report. These then appear in the minutes of proceedings and may in addition receive some attention in the body of the final agreed report. These remarks on procedure make it clear that select committees are intended to operate as non-partisan bodies. This is not to assert that they always do, and in fact it is often clear that partisan commitments play a big part in inquiries. But partisan feelings have to be restrained and kept in check if a committee is to hold together and eventually produce a report. Since they are small bodies in which the members are bound to get to know each other well, there is a strong attachment to fair play, equal opportunities to put questions and to make a contribution to the committee’s conclusions, and a realization that a committee’s influence is likely to be greater if there is consensus among its members rather than open disagreements. Under long-established procedures select committees must be regarded as informative and advisory instruments of Parliament, a principle that applies equally in both Houses. The impressive expansion of their activities in the House of Commons during the past twenty years has not significantly altered this constitutional position either in theory or in practice. They do in fact remain institutions primarily concerned with gathering information and making recommendations on the basis of their inquiries: the function they discharge is thus that of the critical scrutiny of governmental activities. There has, however, been a shift of emphasis and approach in their work, partly as a consequence of the desire to achieve publicity for what they do, partly the result of over-optimistic expectations of what can be achieved by select committees as they are presently defined and understood. Their proceedings are now generally public, their inquiries are widely publicised, and efforts are often made to secure maximum publicity for their reports, for example, by holding a press conference at which the chairman will present a report and answer questions about it. Furthermore, it has become normal for select committees to summon ministers as witnesses, a practice justified in part by the inclusion of the examination of ‘policy’ in the remit of most of them, but also regarded as useful because it attracts more public attention to a committee’s hearings. Certainly select committees do now range over policy and political questions to an extent unknown in the years before 1979, but it remains doubtful whether they are in a position even now to have much direct impact on policy. The difficulty lies in the tension between critical scrutiny of a relatively objective and nonpartisan nature on the one hand and party political loyalties and commitments on the other. When a committee is mainly concerned with the ‘how’ and ‘by what means?’of public services and administration, reasonable people can usually find much on which they can agree. The same usually goes for questions of expenditure, at any rate so long as the emphasis is chiefly on methods of spending money efficiently, though it is noticeable that departmental select committees have shown little real interest in the

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public spending element in their remit.20 To achieve relatively objective administrative and financial scrutiny calls for efforts to push party considerations into the background. But limits are often set to this effort to reach consensus by the majority’s unwillingness to challenge too openly what may be important party commitments or to inflict too much embarrassment or annoyance on the government or a particular member of it by endorsing severely critical conclusions to an inquiry. Equally the minority on a committee may be positively anxious to bring out a critical report in the hope that it will create difficulties for the government. What is more, there has been a tendency for some years now for departmental select committees to take up topics of immediate and controversial interest, sometimes under the influence of a chairman keen to gain attention for his (or her) committee. Such an approach may often call for forensic skills and a capacity for disciplined questioning that most committee members do not possess. When a well-publicised inquiry comes off the rails, as happened in July 2003 when the Select Committee on Foreign Affairs sought to investigate aspects of the preparation of material used by the government in support of its policy of intervention in Iraq, the reputation of the committee is likely to suffer.21 So as a rule committees have to strike a balance between the pursuit of an ideal of non-partisan scrutiny carried out without fear or favour and leading to whatever conclusions the evidence appears to justify and the desire to tackle topics that are bound to evoke party loyalties and partisan policy commitments. The experience of select committee scrutiny suggests, therefore, that in this sphere of parliamentary activity constitutional theory and practice still coincide to a large extent. The House of Commons now carries out a very large amount of detailed scrutiny of the affairs of government, in recent years issuing annually well over 200 reports on a wide range of subjects. A large proportion of back-bench Members, considerably in excess of 300 as a rule, are engaged in this work.22 In addition to the reports and special reports recording government responses virtualy all evidence both oral and written is published verbatim, constituting a vast information resource. Select committees produce countless recommendations and advice about matters of service provision and public policy implementation, and though it is fairly rare for a substantial change of policy to be offered in response to select committee pressure nevertheless what committees say does have a continuing influence on government and civil service thinking. Select committee scrutiny maintains an environment of critical attention and comment in which governmental bodies have to operate and conduct their business. Through the repeated interactions between members of such committees and ministers and officials something like an explanatory dialogue between Parliament and government is kept going, and this is an important contribution to the quality of parliamentary government. But, of course, this modest achievement falls well short of the grander role which many


reformers have during the past thirty years and longer hoped to see select committees performing. It has been argued by many that extended scrutiny of both policy and administration would become the means of altering the balance of power between the executive and the legislative arms of government. Parliament had become ever weaker in relation to the government, so it has often been affirmed, and select committees could and should make a major contribution to its revitalisation. This has not happened. In part this is for the obvious reason, already set out in the preceding remarks on the terms on which select committees operate, that the preservation of party government in the chamber of the House of Commons sets strict limits to the ability of select committees to challenge head on the policies and performance of a government. If Parliament seeks to perform a critical function above the party battle, then it has to accept that this is only practicable under procedural conditions neutralising much of the impact of party rivalry and disagreement. It then follows that critical scrutiny of this kind cannot seriously affect the capacity of a government and a party majority to put through their preferred policies. There is, however, another reason for the necessarily limited impact of reform through select committees. This is to be found in the somewhat academic view of politics and policy-making that inspired so many of those active in the reform movement. According to this view politics should be a much more rational activity than it often is, policy-making should be informed by more careful research, and the time cycles of decision taking should be lengthened to accommodate more thorough debate and consultation.23 No doubt similar ideas lie behind the contemporary advocacy by reformers of wider use of pre-legislative select committees. There is nothing inherently absurd in such a view of how political affairs should be managed. But in Britain it has nearly always come into conflict with popular prejudices about how political choices should be made and political argument conducted as well as with entrenched institutional arrangements governing the exercise of political authority. Amongst these institutional arrangements those of the House of Commons have remained pre-eminent. What many wouldbe reformers have overlooked is that their ideals could only be realized if the institutions themselves, and first and foremost the House of Commons, were redesigned and transformed. A few reformers may have sometimes contemplated this possibility, notably through the introduction of an electoral regime that would be likely to remove two-party dominance and open the door to a permanent no-majority situation in which coalition rule would always be necessary. So far, however, this state of affairs has not come about and as a result the House of Commons has no basis for claiming any rights of co-government. This is why its well-developed scrutiny function has had to remain within the bounds set by the principle of majority rule through Parliament as it has so far been embodied in British political experience.24

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Institutional differentiation within the House of Commons Parliament, and especially the House of Commons, is a highly complex institution as even a superficial study of its procedures demonstrates. It is not surprising, therefore, that there are many other features of the procedural framework which are of special constitutional significance. Three of them will be considered briefly now. The first is the time and space offered to the ‘Private Member’ in the Commons, the second is the status and role of the Speaker of the Commons, and the third is the matter of privileges. It might be thought that the notion of the ‘Private Member’ is obsolete and remote from the realities of contemporary practice in the House of Commons. After all, virtually all politicians are ‘professionals’ who rely on politics for their living. While occasionally really wealthy individuals do still embark on a political career, it is no longer common and may even expose them to critical public attention.25 In addition there is no evidence to suggest that such people would nowadays have a radically different view of a political vocation from those without earned or inherited wealth who see themselves as professionals in politics. If ‘Private Member’ were thought to suggest ‘independent Member’, that would be laughable since only in unusual circumstances can somebody now get into Parliament on an ‘Independent’ ticket, though there was one such example of an Independent gaining a seat in 1997, and yet one more in 2001.26 So something of a puzzle remains: why retain and appeal to the concept of a ‘Private Member’? After all, it is not something that is found in most other parliamentary systems, and not even in those that are of British origin. In terms of constitutional history the beginnings of an answer are to be found in the distinction drawn long ago between officeholders under the Crown – the King’s Ministers or, as they were often more abusively designated, ‘placemen’ – and Members of Parliament who were not officeholders. The former were public men, the latter were private persons, a distinction already familiar at the time of the Civil War.27 The line drawn between officeholders and all other Members of the House of Commons embodied the belief, already referred to, that Parliament was distinct from the Crown and had a duty and right to control the Crown’s advisers and agents. The theory and practice of opposition has its origins in the same set of ideas. Private Members were those not in office who sat on the ‘backbenches’ and often enough some of them saw themselves as opposing those in power. With the rise of disciplined political parties and the democratisation of politics the term ‘Private Member’ begins to sound somewhat archaic and ‘back-bencher’ becomes the more familiar designation. Yet the underlying notion of private Members persists and still finds expression in the procedures of the Commons and in the practices of political life. It is significant that the procedures of both Houses of Parliament are expressed chiefly by reference to what they allow individual Members to do.


In the Commons there is a basic assumption of the equality of all Members, even though there are some things that only ministers of the Crown can undertake, as for example the introduction of a government bill creating a public charge. Political parties receive no formal recognition in the Standing Orders of the Commons apart from a reference to what are called ‘Opposition days’, that is to say, days on which the opposition parties are entitled to name topics for debate. (It is worth noting by way of contrast that there is growing formal recognition of political parties in electoral law at both national and devolved levels. This may eventually point to the disappearance of Independent candidates, and this in turn would render the retention of the concept of Private Members in the Commons even less plausible.) The overall effect of the procedures governing the conduct of business in the Commons is to sustain the image of an institution composed of freestanding individual members, all enjoying equal rights under the rules according to which it operates. These rules, though they have the form of perfectly neutral conditions for the conduct of business, do confer special rights on certain officeholders, notably ministers of the Crown. But in formal terms they allow for the possibility that the Commons may see itself as sharply distinguished from the members of the executive who sit there and hold office under the Crown. In principle at least Private Members or backbenchers have grounds rooted in past experience as well as in the present procedural framework for seeing themselves as natural opponents of the executive. This is what the survival of this notion means in terms of constitutional tradition: Parliament is in the first place there to control and check the executive. In practice the situation is, of course, quite different. Members of Parliament are not ‘private’ in the sense in which many were in the nineteenth century and earlier and it is obvious that party dominance and the competition of government and opposition require Private Members to accept party discipline. It is similarly obvious that the membership of the Commons consists overwhelmingly of full-time professional politicians and that at any one time more than half of them have a greater interest in supporting a government than in criticising or opposing it. There is perhaps some irony in the fact that it is in the House of Lords, where the notion of Private Members has not had formal recognition in procedure, that many of the ideals of a chamber of independent equals still come closest to being realised. Members of the House of Lords receive only an attendance allowance and expenses instead of an income, party discipline is weak, many members are non-party cross-benchers, many still have independent financial means, and most are also at an age when they no longer have career ambitions. These and other characteristics make the ethos of the Lords markedly different from that of the Commons and more hospitable to genuine ‘Private Members’. Yet despite widespread recognition of the fact that the idea of Private Members in the elected House is encrusted with

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myth, it would be difficult to erase it from the procedures of the House of Commons. There would undoubtedly be strong hostility among Members of Parliament to substantial reductions in the opportunities still existing for Private Members to claim a share of parliamentary time for introducing bills and initiating debates. These are now restricted under Standing Orders to a limited number of Fridays (at the time of writing 13) when Private Members who have been successful in a sessional ballot are entitled to introduce bills. In addition to these legislative opportunities there are further Fridays left free for motions to be put for debate, and there are still further chances for Private Member initiatives, for example, for legislative proposals to be put under the ‘Ten Minute’ rule and for motions to be put on the adjournment of the House under Standing Order 9, a procedure still regularly used by backbenchers, which has the effect of requiring the presence of a minister to respond. There are now also regular opportunities for debating topics chosen mainly by backbenchers in morning sittings held away from the floor of the House in a room off Westminster Hall. The jealous safeguarding of these and many other opportunities for Private Members to take advantage of procedures allowing them to initiate something in the House does not, however, correlate at all well with the effects actually achieved. For example, bills launched by Private Members are not at all likely to reach the statute book unless they have government backing and, as a rule, drafting assistance too. Nevertheless, despite the manifestly limited results of Private Member activity, it is doubtful whether any government would risk the widespread resentment that further attenuation of Private Member opportunities would create. There is an awareness of the fact that the dominant position usually enjoyed by the government of the day in the control of Commons business makes it highly desirable to keep certain safety valves through which the frustrations of Members can be released, and this is precisely what the deference still paid to Private Members or backbenchers ensures. It preserves the ideal of a chamber of equals, with all sharing in the authority vested in the House of Commons as a whole. What is more, to rewrite the procedures of the House in terms more consonant with political realities would not only subvert these long-standing beliefs about the nature of Parliament but would also be exceedingly difficult in the context of the customary law and language of Parliament. It would in essence be no less difficult than an attempt to transform the terms of legislative drafting in Britain. There is some congruence between the constitutional role and status of the Speaker of the House of Commons and the rights of the Private Member. For well over three hundred years the Speaker has been more than the officer presiding over the sittings of the House. He (and so far only one woman, Miss Betty Boothroyd, now Baroness Boothroyd, has occupied the position


between 1992 and 2001) has been expected to defend the rights of the House, initially against the Crown, later against ministers acting for the Crown. Since the middle of the nineteenth century the Speaker has become increasingly detached from party political ties, even though those elected to the office inevitably start off as party candidates. But once in office they are expected to show impartiality and fairness in their dealings with all Members, regardless of party affiliation. It follows from this non-partisan understanding of the role that the Speaker nowadays is expected to refrain from expressing any views about public policy and the merits of issues before the House: his task is to preside over sittings of the House, to maintain order in debate, to protect the dignity of the House, and generally to see that business there is dealt with strictly in accordance with its procedures. The duties of the Speaker in the House of Commons differ considerably from those of the presiding officer in many other parliamentary bodies. In continental Europe the president of the principal parliamentary chamber is normally a far more ‘political’ figure than is the Speaker of the House of Commons, and the same goes for the Speaker of the House of Representatives in the United States, though this does not necessarily mean that such presiding officers have greater powers in relation to the control of proceedings. The role of the Speaker in the Commons is in Bagehot’s sense preeminently ‘dignified’, embodying an obligation to represent at all times the dignity and authority of the House itself. This in turn is held to require complete impartiality and abstention from party political engagement. He or she has relatively wide discretion in the interpretation of procedural matters and in making rulings on breaches of procedure, real or alleged, but in exercising these powers it is always important to pay careful attention to past precedent and the large body of parliamentary law and precedent that exists. The Speaker does not, however, act without advice and support: he or she can draw on Speaker’s Counsel (permanent legal advisers) and on the resources of the Department of the Clerk and its head who is the principal administrative officer of the House of Commons. The Speaker also has increasingly important administrative functions in relation to the management of what are now very extensive buildings and office premises as well as the large number of staff employed there. Under the House of Commons (Administration) Act 1978 he chairs the House of Commons Commission which is responsible for the overall administration of the House. In relation to the management of accommodation the Speaker looks to the Board of Management for support. This is composed of the heads of the six Commons departments and chaired by the Clerk of the House of Commons as Chief Executive. The Speaker does not have to discharge all the presiding functions of his office alone, however. In this regard he is supported by the Chairman of Ways and Means and two deputy chairmen who regularly take over part of the duties of the chair, and there is in addition a panel of chairmen who act as temporary chairmen of standing committees on bills as required.

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The constitutional significance of the Speaker’s office lies chiefly in the obligation falling on its holder to protect the rights of all Members of the Commons and to uphold the authority of the House. Perhaps more than in the case of any other of the ‘great offices of State’, as they are sometimes called, the office of Speaker underlines the principle that it is in the lower, elected chamber of Parliament that ultimate political authority is vested. In turn the Speaker draws his authority from the consent of Members and it is for this reason that he or she must nowadays be strictly non-partisan in the discharge of the duties of the office. In particular the Speaker has to exercise his wide discretion to call Members wishing to speak in debates in a manner that is perceived to be fair and allows for the expression of as wide a spectrum of opinions as the subject under debate seems to require. Unlike the practice in many parliaments participation in the proceedings of the House of Commons is not determined by those who manage the parliamentary parties. This may indeed be one of the reasons why the institution continues to believe that its life-blood is debate. Long ago it was the Crown that was viewed with suspicion by the Commons, but today the Crown’s ministers are entirely within Parliament, and most of them in the Commons. This allows them to control the bulk of business there, but at the same time reinforces the Speaker’s special commitment to safeguarding the rights of backbenchers of all parties. Such Members are by definition not officeholders and potentially all have an interest in calling the executive to account. Thus the office of Speaker and the manner in which it is procedurally defined and discharged in practice take us back to core values of the British parliamentary constitution – procedural fairness in an assembly of equals and government by consent of the majority through that assembly. This discussion of the office of Speaker has included reference to protecting the rights of Members of the Commons. This forms a natural bridge to some remarks on parliamentary privilege, since the appeal to the doctrines of privilege is one of the principal ways in which the rights of the House are affirmed. Historically Parliament – and this refers to both Houses – had the powers and privileges of a court, the High Court of Parliament. One of the most visible manifestations of the role of Parliament as a court is still to be found in the judicial functions of the House of Lords acting as a final court of appeal through its Appellate Committee. But in that capacity the House of Lords has assumed the characteristics of a panel of professional judges and except in certain formal respects is no longer acting as a chamber of Parliament.28 Both Houses do, however, still possess certain powers to maintain and protect their own privileges and to punish for contempt of Parliament. They have also retained jurisdiction over such matters themselves, even though nowadays both Houses would as far as practicable hand over minor offenders, for example, someone who interrupts proceedings, to the police. In essence privilege consists in a number of prescriptive rights deemed to be necessary for the proper functioning of Parliament. The most


important of these, and indeed the only one which continues to be regularly invoked, is freedom of speech for Members in the course of all parliamentary proceedings, a right that has its foundation in Article 9 of the Bill of Rights of 1689. The intention of this provision was to prevent any external interference with what Members were saying and doing in Parliament. Gradually over a long period a case law was built up so that it became clear, for example, that speech in Parliament was protected against court actions for libel or defamation. Much effort has gone into deciding what constitutes a ‘proceeding in Parliament’ and procedures were developed for dealing with contempts of Parliament in cases of alleged breach of privilege. In the case of the House of Commons there is the Committee of Privileges (to which recently ‘Standards’ was added) to advise and recommend when a breach of privilege has occurred. It is also worth noting that the misbehaviour of a Member can lead to the exercise of the House’s penal powers, including not only suspension but also, in especially serious cases, expulsion. Parliamentary privilege certainly remains an important element in the constitutional armoury of Parliament.29 But it has also to be said that its range and significance have diminished during the past quarter of a century or so. This is in part because privilege is a ‘no-growth’ area, since Parliament cannot add to the privileges it has established in the past. It is also in part because the meaning and applications of privilege have over the years been refined and made more precise, with the consequence that fewer breaches are likely to occur. In addition the scope for conflict with the courts has been reduced and there is now much more reluctance in Parliament to invoke penal sanctions for contempt than used to be the case. In 1978 the House resolved to use its penal powers as sparingly as possible and at the same time also decided that Members should first notify the Speaker privately of any alleged breach of privilege or contempt. It is then for the Speaker to decide whether the matter raised is sufficiently serious to warrant report to the House and subsequent investigation by the Committee on Standards and Privileges. This step has contributed to the sharp reduction in publicly reported privilege cases over the past twenty years or so, and has also made it very difficult to use allegations of breach of privilege as an indirect way of raising quite extraneous political issues, a game which was played quite often in earlier years. Privilege remains in the background as a means of affirming and preserving the rights of Members to say what they like in proceedings in Parliament (subject only to such limitations as the House itself allows) and to protect Parliament against overt external interference in its proceedings. But there are question marks hanging over some elements of parliamentary privilege, as was revealed in the outcome of the case known as A v UK which came before the European Court of Human Rights in 2002.30 While the UK Government and both Houses of Parliament apparently gained a decision upholding the protection afforded by Article 9 of the Bill of Rights 1689

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against any external interference with the freedom of proceedings in Parliament (in this case the House of Commons), in fact by holding the case to be admissible and taking it to judgement the Court was acting in a way forbidden by Article 9 to any British court. The case plainly revealed the tension between principles firmly established under the customary constitution and the abstract principles expressed in the European Convention on Human Rights. Another sign of loss of confidence in its own authority is the decline, especially in the House of Commons, in Parliament’s readiness to assert responsibility for the control of its own affairs and the conduct of its Members in the manner originally implied in the doctrines of privilege. As a consequence of a number of cases of financial impropriety and dishonest behaviour by certain Members (most of whom held ministerial offices) during the 1990s decisions were made which have largely taken away from the House of Commons the full jurisdiction that it had always asserted. A standing extra-parliamentary committee on Standards in Public Life was set up in 1994 to act as a watchdog and its reports have steadily encroached on the House’s own procedures for maintaining the appropriate standards of behaviour on the part of its Members. As part of the same movement a Parliamentary Commissioner for Standards was also appointed and reports to the Select Committee for Standards and Privileges. Much stricter rules for the declaration of interests and their entry in a public Register have been introduced and the new Parliamentary Commissioner is in effect the arbiter of their interpretation. There may be good reasons justifying these developments, but nonetheless they do diminish both the corporate responsibility of the House for the standards to be upheld by its Members as well as the individual responsibility of Members to police their own conduct. And there is another cloud on the horizon in the shape of the prospect of having to accept judicial arbitration of disputes affecting the rights claimed by the House. In the evolution of privilege disputes with the courts have occurred from time to time, though in recent years Parliament and the courts have sought to avoid or at least to mitigate such disputes about jurisdiction. Under the Human Rights Act 1998 it is possible that at some stage this will be more difficult, since it is at least theoretically possible that some procedure long applied by one or the other House of Parliament might be deemed to be in conflict with the code of rights. No direct clash between the courts and Parliament arising out of this legislation has yet occurred, but were it to do so it would amount to yet another encroachment on the exclusive jurisdiction of Parliament over its own affairs expressed in the doctrines of parliamentary privilege. The complex and sophisticated procedural framework of the House of Commons has been constantly adapted and developed over the years to accommodate the growing demands of executive government and the changing conditions of political life. But it remains in very important respects a structure of rules and methods of conducting public affairs


appropriate to a conception of parliamentary government and of Parliament as an institution as understood in the second half of the nineteenth century and on into the twentieth. Classical parliamentary government of this kind meant literally ‘governing through talk and debate’ and the House of Commons was the forum in which most of this took place. In theory the procedures of the House would still permit much of this ideal to be practised, but political realities and the manner in which the procedures are used rule this out. We return in the closing section of this chapter to some remarks on what is left of classical parliamentary government. At this point it is enough to underline the fact that there is now a noticeable gap between the conventions and practices of political life in most of its contemporary contexts and the formal conditions governing British parliamentary institutions. In the past it was generally assumed that informal rules and conventions would supplement and give vigour to the formal procedures available to Members. This assumption can no longer be taken for granted. Both in relation to personal moral standards and to the demands of party commitments and interests there have been profound changes which call into question the viability and effectiveness of the procedural models to which Parliament still adheres.

The House of Lords Most of this chapter has been concerned with the elected chamber in the British Parliament, with only occasional references to the second chamber, the House of Lords. There are notable differences between the two Houses of Parliament, though there are also important generic similarities in terms both of procedures and ideas about what constitutes parliamentary government. It needs to be emphasised straightaway that there is in the case of the House of Lords a gulf between its formal powers and the reality of how it can use these powers that bears some resemblance to the gap between the constitutional theory as set out in the procedural framework and actual political practice in the House of Commons. In principle the House of Lords has powers as a legislative chamber not significantly less than those of the Commons. It is entitled to debate bills, to examine them in detail and to amend them, and, if it so chooses, to reject them. Legislation may also be initiated in the Lords either by members of the House or, more likely, by the government.31 However, under the Parliament Acts of 1911 and 1949 the House of Commons – and that means the government of the day – is entitled to override any veto on legislation imposed by the Lords, though this does not apply to measures introduced first in the Lords and then sent down to the Commons. Financial measures, provided that they have been so certified by the Speaker of the Commons, can be passed within a few weeks without the consent of the Lords, while ordinary legislation can also be put through under the Parliament Acts with the effect that a delay of no

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more than 13 months after second reading in the Commons need occur. The only exception to this is that a bill to extend the life of a Parliament still requires the consent of the Lords. These measures are rarely applied, and in fact have been used only five times since they were brought in. However, the possibility that they will be invoked can never be overlooked when members of the second chamber attempt to hold up the passage of bills with a place in the government’s programme. Quite plainly, the effect of the Parliament Acts has been to inhibit the Lords substantially in exercising the powers that constitutionally they still possess. The statutory restrictions on the veto powers of the House of Lords have encouraged the development of conventions indicating how far it is reasonable for the House to go in seeking to amend and delay legislation. It is not uncommon for opposition to be expressed simply in order to suggest second thoughts and to prompt government amendments. Sometimes the motive may be more obviously partisan, as when the aim is to hold up the passage of a measure long enough to create some embarrassment for the government. Occasionally opposition occurs on what are held to be issues of conscience and in such circumstances it may be difficult to accuse the Lords of frustrating the will of the Commons. But the most important convention for the best part of half a century has been what is known as the Salisbury convention according to which the Lords will not seek to block a measure for which the government can claim to have an electoral mandate.32 Doubts have recently been cast on the continuing case for this convention, but so far it still holds good. Clearly its effect is to restrict greatly the scope for determined opposition to substantive features of nearly all government legislation. The formal limits on the powers of the second chamber mean that its role has for several decades now been seen mainly as that of a revising chamber. And there is no doubt that the Lords do for the most part subject legislation coming before the House to careful scrutiny, often proposing useful amendments, and providing an opportunity for the government to have second thoughts on specific issues and to propose changes. This revising function can be discharged expeditiously and with some efficiency chiefly because far less time is spent on partisan controversy and the posturing that goes along with that. In addition, there is an element of specialised knowledge, including legal knowledge, present in the Lords that often facilitates a constructive contribution to the relatively technical task of legislative revision. A further benefit of the scrutiny of bills in a second chamber is that the government too is able to use this stage in the legislative process for proposing its own amendments. Given the speed with which much legislation is prepared and the lack of thorough examination of the practical aspects of many proposals, it is not unusual for bills to come to the Lords in a highly unsatisfactory form. The time available for their passage through the Lords does at least then offer an opportunity for improvements to be


made. Nevertheless, it has to be remembered that the annual legislative cycle is unsatisfactorily organised. Parliament meets in October or November and a slate of bills is announced. Most are probably not yet ready to present and so it may be early in the following year before they begin to make progress in the Commons. Various interruptions follow, including time spent on the annual Budget statement, and it is thus well on in the parliamentary year before the House of Lords receives much of the legislation with which it then has to deal. This results in frequent congestion late in the session, perhaps even in an early recall of the Lords in order to clear the backlog of bills before the opening of the new session of Parliament. This hardly represents the best use of a revising chamber. The deficiencies in the preparation of programme bills before being launched into the legislative process are, however, mitigated to some extent by the fact that a significant proportion of government measures are now introduced first in the Lords and this makes for a better overall distribution of legislative effort during the session. One of the unusual characteristics of the Lords is that it still conducts most of its legislative business on the floor of the House and has nothing strictly analogous to the standing committee system of the Commons.33 Furthermore, no formal priority is given to government business, the presiding officer ex officio is currently the Lord Chancellor who has none of the powers of the Speaker of the Commons and does little more than sit on the Woolsack, and the standing orders of the House are both short and simple in comparison with those of the Commons.34 The House is, therefore, essentially a self-regulating body and its smooth functioning depends very much on the forbearance and good manners of its members as well as on the capacity of the Leader of the House (who is a member of the cabinet) to reach agreement on the programme of business with the Leader of the Opposition, the leader of any other significant party group, and the convenor of the non-party cross-bench peers. As a rule such informal collaboration works well, while in the conduct of debate members do maintain a remarkable degree of self-discipline and courtesy. For most of the time, therefore, whether sitting as the House in plenary session or as a Grand Committee to take the committee stage of a bill the House of Lords is sitting as a plenary body open to all its members. In this respect it still adheres to the model of a nineteenth-century parliamentary body in which all members can in principle play a part. This style is seen most clearly in the general debates on matters of public concern which individual members regularly initiate under procedures allowing them priority on Wednesdays. Such occasions are rarely marked by strong partisan feelings. Instead many of those who take part do so because they believe that they know something about the subject and can contribute to a constructive discussion. Apart from its revising functions and a contribution to informing the public through debate the Lords has also in recent years developed sub-

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stantially the function of scrutiny through select committees. Traditionally the Lords made little use of select committees apart from those dealing with domestic matters, including the procedures of the House. But it appointed a Science and Technology Select Committee in 1979, now a well-established and respected body. The Select Committee with the widest remit is that on the European Union (dating back to 1974 under a slightly different name) which now works through six sub-committees specialising in different areas of European Union policy-making. The European Union Select Committee of the Lords does not focus primarily on technical scrutiny of legal instruments emanating from the institutions of the European Union, but prefers to range widely over forthcoming proposals and policy development. As a result it provides in some respects a more informative treatment of Britain’s commitments to the European Union than that afforded by the parallel select committee in the Commons. Recently select committee activities have been extended to include sessional select committees on Economic Affairs and the Constitution. The steady expansion in the number of oral and written questions tabled by members is another noticeable feature of the past twenty years or so. The overall impact of the growth in the activities of House of Lords has been to turn it into a much more ‘full-time’ body than it ever was in the past. Indeed, it now sits for far longer hours and for a greater part of the year than do the elected chambers of many other neighbouring countries, and occasionally in recent years its sitting hours have exceeded those of the Commons too. Yet it has not become a chamber of professional politicians, its members receive only a daily allowance for attendance plus expenses, and in its day-to-day work it relies to a great extent on the readiness of its members to act out of a sense of public service. This takes us to the issue of the composition of the Lords. Until 1958 the House of Lords had a wholly hereditary membership apart from the Lords of Appeal in Ordinary and the 26 bishops of the Church of England who sat there. In 1958 life peerages were introduced and gradually came to supplement in a decisive way the hereditary membership. Life peerages were, broadly speaking, conferred either purely as honours recognising some form of distinction or as what are best described as political honours. In the case of the former it was not generally expected that those concerned would often attend the House, whilst it was assumed that many of the latter would regularly contribute to its work. In accordance with tradition the conferment of life peerages rested with the prime minister of the day, though with a contribution also from the leaders of the principal opposition parties. These changes gave the House of Lords a new lease of life by allowing for the introduction of new blood and in particular for the appointment of women. Gradually the House came to depend for the performance of its functions as a chamber of Parliament far more on the appointed life peers, many of whom were politicians who had served in the House of Commons


and in government, than on the hereditary members. But of course it remained basically a nominated body, the vast majority of its members there for life, and many of them never in fact taking any part in the work of the House. Additionally it had the capacity always to summon up a Conservative majority, though in practice its voting record during the last 30 years of the twentieth century by no means always indicated consistent support for Conservative governments. But under the conditions just outlined the legitimacy of the Lords remained open to challenge just as it had been in the impassioned debates about its reform in 1910–11. Major changes in the membership of the House of Lords were made in 1999 and these will be examined later in the context of contemporary constitutional reform. But apart from substantially reducing the House in size through the removal from it of all but 92 hereditary peers who remain there until a further stage of reform takes place, these changes have not affected its character as a body consisting solely of appointees. Along with the Canadian Senate it is the only example of a second chamber of a legislature still constituted in this way.35 Over a long period many different suggestions have been made for fulfilling the promise in the preamble to the Parliament Act of 1911 to bring about a ‘Chamber constituted on a popular instead of hereditary basis’. Even now this has not been achieved and that fact has crucial consequences both for the character of the chamber and its ability to exercise the powers it actually possesses. The unusual composition of the House of Lords with the heavy emphasis on age and experience in its membership goes a long way towards explaining why its deliberations so often have a relatively non-partisan character. There are no constituents to appease or appeal to, the party whips have generally not been oppressive and, in any event, cannot easily get into line people who hold their positions for life, and for those who have retired from active careers there are few ambitions still to be fulfilled. It is, therefore, not at all surprising that the atmosphere of the Lords differs so markedly from that of the partydominated Commons. However, whilst the quality of the membership of the House of Lords may well permit a more balanced approach to many of the questions that come before the House, the fact that it is a nominated or appointed membership means that it remains in a weak position whenever it is inclined to disagree with the Commons on any matter of substantial policy and party significance. It can impose some delay on the passage of contentious proposals, and if time is short the government may be ready to make concessions. Moreover, the style and content of debate in the Lords make it difficult for the executive simply to ignore the arguments put forward in support of amendments made to a bill, though sometimes it will simply do that. Overall, however, the political constraints affecting the House of Lords mean that its revising role is to a large extent concentrated on achieving technical improvements to bills and limited concessions on specific issues rather

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than on seeking to challenge broader questions of policy raised in proposed legislation, even though some of these may not have been attended to at all in the earlier stages of policy formulation and drafting. It would, therefore, be an exaggeration nowadays to claim that the House of Lords has substantial weight in a functioning system of constitutional checks and balances.36 Such a role was often attributed to it at earlier stages of British constitutional development, for example, in the later eighteenth century, when there was some support for the idea that liberty was best protected in conditions where the major institutions in the state really were able to check and limit each other. Despite the prevailing orthodoxy of parliamentary sovereignty established by Dicey at the end of the nineteenth century the theory of checks and balances surfaced again in the arguments about the powers of the House of Lords at the time of the Parliament Act 1911. This tradition still lingers on with some protagonists of the second chamber inclined to present it as a check or brake on the Lower House and the government. But checks and balances have always fitted uneasily into the mainstream of British constitutional practice, and experience with the House of Lords confirms this. In a modest way the Lords has in recent years been able to interpose some delay, to offer the opportunity for second thoughts, and occasionally to secure substantive changes in proposals put forward by the government. But this hardly amounts to a decisive role in maintaining anything in the nature of balance in the relationships between the principal institutions of the British state. Against this background it is not surprising that reform of the second chamber in ways that might confer greater legitimacy on it, and so enable it to use more effectively and more regularly the powers it actually has, continues to be elusive.

What survives of sovereignty and government in and through Parliament? In the concluding section of this discussion of Parliament in the British constitution two principal questions will be addressed. What survives of sovereignty or supremacy? What remains of classical parliamentary government? To some extent these questions refer to two sides of the same coin. There is the political and legal doctrinal question about parliamentary sovereignty and its survival in constitutional theory, but there is also the empirical question about the practices of Parliament and the extent to which they continue to reflect certain norms of parliamentary government as defined by the procedures of the institutions of Parliament. Inevitably it becomes necessary to move from formal rules to practice and then back again, and this is bound to make for somewhat ambiguous analysis. There can be little doubt about the restrictions placed in recent years on the jurisdiction of the British Parliament. The European Communities Act 1972 embodies an obligation to take over existing Community law and to


enact into British law future Community (now European Union) legislation. The same Act also makes provision for recognition of the final authority of the European Court of Justice in disputes taken to it. Subsequent European legislation and treaty amendments such as the Single Market Act of 1986, the Maastricht Treaty of 1993 and the Amsterdam Treaty four years later extended further the reach of European Union powers and competences. Meanwhile, the steady accumulation of European legislation through the on-going development of European Union policies meant that the scope for national legislative action was becoming in many sectors of public policy ever more restricted. The obligations flowing from membership of the European Communities – now the European Union for most purposes – have, therefore, become a decisive qualification de facto to the exercise of parliamentary sovereignty. It should be noted that the sovereignty limitations inherent in European Union membership differ from those that might have stemmed from many other treaty commitments. In the case of the latter certain conditions are freely accepted and can in principle be repudiated or terminated. But in relation to the European Union there is now longstanding acceptance of a continuing external source of law and, as a result of decisions of the European Court of Justice, of the autonomous legal order constituted by Community or European Union law. Nor is there at present any provision for withdrawal from this developing body of law, administrative regulation and political decision-making. Thus it follows that there is considerable artificiality in the argument still found in many constitutional law textbooks and in the mouths of politicians that the whole of this surrender of sovereignty is in some sense conditional on Parliament continuing to uphold the original legislation. Were that to be repealed, so it has often been suggested, Parliament would resume its original supremacy over British law. It is, however, not at all certain that there is any direct route back to the status quo ante. The courts have recognised European Union law and, indeed, have no option but to do so. Much of this is in fact British law made in compliance with Community or Union directives. It is not at all clear that repeal of the founding statute would have any immediate consequences at all for this large body of European law already in force and being upheld by British courts. It seems more realistic to assume that Community law as such could only be repealed or annulled by specific parliamentary action to make clear to the courts and to citizens what statutory provisions were no longer in force. In formal terms this might still be possible, but it is extremely difficult to see how in practice it could be done. Only in a situation of crisis akin to revolution does a complete revocation of the European commitment become conceivable. Whilst the restrictions on the sovereignty of Parliament are most manifest in membership of the European Union there are other ways in which Parliament appears to have limited its claims. Measures of devolution are now in force in three parts of the United Kingdom which confer varying

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degrees of legislative authority on provincial assemblies in Scotland, Wales and Northern Ireland. The devolution of powers is most extensive in the case of the Scottish Parliament, most limited in the case of the Welsh Assembly, and most precarious in the case of the Northern Ireland Assembly. In political terms it would be very difficult to repeal or modify these devolution measures, though in Northern Ireland the institutions set up under the legislation have been suspended four times since devolution began there in order to avoid collapse of the settlement altogether.37 However, at the level of constitutional principle it can still be held that all three pieces of legislation safeguard the ultimate authority of Westminster so that in theory at least they could be amended or repealed. Thus sovereignty remains intact. More serious in its longer term implications is the Human Rights Act 1998 which empowers the courts to find that a provision of British law is incompatible with the European Convention on Human Rights embodied in the Act. It is true that this provision was justified on the grounds that it presents less of a challenge to parliamentary sovereignty than a power to quash offending statutes would have done. But this argument appears to be somewhat disingenuous. The Human Rights Act is written in terms which appear to suggest that in the face of an incompatibility finding Parliament would really have no option but to amend the law in order to comply with the Convention. Furthermore, were Parliament to allow some statutory condition held to be breach of human rights to remain in force, there is at least a possibility that ways might be found of raising the matter before the court in Strasbourg. If that court were to find against the British legislation, it is hard to see how compliance could then be avoided other than by denunciation of the original agreements to accept the European Convention as well as repeal of the 1998 legislation. It is, therefore, very difficult to discern any escape from the state of qualified legal sovereignty that the British Parliament has now accepted. Above all the fabric of law in Britain now has woven into it so many conditions and rulings derived from outside the domestic jurisdiction that it becomes very difficult to discern how they might be removed or cancelled out. The erosion of sovereignty is thus plain for all to see, and especially for those involved in politics and administration. The evidence is now overwhelming that there are substantial areas of policy and law-making where decisions are made in European Union institutions and Parliament has at best to ratify such decisions and, as appropriate, enact them into British law. And it must now pay attention to the opinions of the courts on human rights issues and accept that these too may in some circumstances restrict Parliament’s discretion to shape law as it sees fit. Finally, there is one other qualification to the sovereignty principle that deserves a mention, even though its implications are open to argument. This is the readiness to provide for issues to be referred to a referendum, held either on a national basis as in 1975 on the question of remaining a member


of the European Economic Community (as it then was) or confined to particular parts of the United Kingdom, as has happened more than once on devolution proposals and legislation. Theoretically it can be held that if Parliament decides to provide for a referendum to take place, that is in itself a manifestation of its sovereignty. It is a discretionary act and it can be argued that its outcome, whatever that might be, is merely advisory and does not bind Parliament to respect it. Yet this is an argument that risks leading Parliament into something like logical self-contradiction when it has created a specific statutory requirement that a particular scheme can only go ahead after it has received support in a referendum, as was the case, for example, with the devolution proposals for Scotland and Wales in 1998. Having secured a positive vote from the electorate it would have been morally and politically impossible for government and Parliament not to have proceeded with the necessary legislation.38 Acceptance of occasional resort to popular consultations through referendum has recently been confirmed in legislation, though this is concerned only with steps to ensure procedural fairness as between the two sides to a question should a referendum be held.39 Though no legislation has yet been envisaged specifying exactly when the holding of a referendum extending beyond matters of local concern might become obligatory or could be triggered by something like a popular initiative, the willingness to resort to this method of testing public opinion implies that representative government can and should sometimes be supplemented or even replaced by a form of direct democracy. Whilst there is no doubt that a reasoned and principled case for the regular use of referendum procedures and popular votes can be made, it is also disingenuous to overlook the extent to which this argument does in fact qualify traditional accounts of parliamentary sovereignty and what it should mean for the terms on which the country is governed. The question marks hanging over what has been for more than a century the cardinal constitutional dogma relating to Parliament and its authority have, therefore, become serious. The doctrine survives, but it is increasingly difficult to conclude that it means what it has in the past been held to mean. If parliamentary sovereignty has become tenuous as an overarching constitutional principle, there may nonetheless be grounds for concluding that parliamentary government continues to have something like a real existence. As preceding sections have already indicated, the institutional conditions prescribing how Parliament should operate do undoubtedly embody a particular view of how the country should be governed through Parliament. But before passing judgement on what this means for parliamentary rule, it is necessary to make some comments on the political relationships and practices which coexist alongside the formal rules and the conventions. The work of Parliament (and this applies to both Houses, though in varying degrees) is in fact steered by party managers – the leaders, the whips, the ‘usual channels’ – and it is this that gives effect to much of

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the procedural framework. Standing orders in the Commons may provide that the House will set up a particular select committee, and it will require a motion to do so. But what makes a reality of this is the constant activity of the party whips making sure that members are secured for the committee, that they are ready to serve, and that any difficulties that arise on the way to finalising appointment of the committee are ironed out. All this is but a tiny part of the network of informal practices and relationships by which things get done as required by the formal procedures. But this informal network also wields power and expresses whatever is the prevailing balance of power in the Commons. The operation of party organisation in Parliament, and especially in the House of Commons, has usually been seen as a tribute to the British capacity to combine respect for formal rules with a pragmatic use of informal arrangements and relationships. The ‘usual channels’ of party communication and guidance have been accepted as the necessary instruments of effective party government, on the one hand facilitating the work of a government endorsed by the majority in the House and as a rule in the country too, on the other maintaining in a flexible and tolerant way the rights of the opposition to present an alternative and of other minorities to express their opinions too. The discipline exerted by parties, though sometimes perceived as irksome and even oppressive by those of independent spirit or with a natural tendency to rebel, has on the whole been accepted as a necessary condition of effective, representative government. This acceptance of the need for parties to hold together, to show support for their leaders and to demonstrate continually that they are fit to govern lies very deep in the British understanding of the parliamentary form of government. Moreover, the burdens imposed by party discipline have to some extent been mitigated by the opportunities provided by the procedures of the Commons for individual Members to engage in a variety of activities that offer the satisfaction of serving a public interest as well as attracting public attention. And for the most part this can be done without coming into overt conflict with party discipline and the demands it imposes. There are also other safety valves available. For example, certain matters arise from time to time that are treated as issues of conscience and Members are, therefore, free to decide as they see fit, though they may be exposed to pressure from constituencies, special interest groups and party colleagues too. There is also some evidence stretching back over some years now that despite the instructions regularly issued by party whips on how to vote in parliamentary divisions, occasional dissent by Members has become something that majority party managers have to tolerate, though strenuous efforts are made to bring Members into line if the scale of dissent threatens the survival of a government or an individual member of it.40 In fact often enough they have little alternative, especially when issues arise that divide opinion sharply inside a party. In the effort to maintain party unity the availability of patronage is important,


especially for the majority party. Since many Members of Parliament aspire to a ministerial career they are likely to bear in mind the importance of behaving in ways that will not do too much damage to their prospects. The very size of contemporary governments testifies to the fact that party leaders have a shrewd understanding of the significance of their ability to offer opportunities to the ambitious. For the past quarter of a century at least a somewhat precarious balance has been maintained in the House of Commons between the de facto dominance of the elected government and enforcement of accountability in a public arena as the primary function of Parliament. A procedural framework survived that still proclaimed the equal rights of all Members, but informal party relationships and organisation were used and accepted in order to ensure the pre-eminence of party leaders and compliance with whatever requirements the government set out as necessary for achieving its policy aims and fulfilling its democratic mandate. However, as a consequence of the ever greater priority accorded to party interests and advantage much of the process of exacting accountability has been ritualised and this in turn means that often the procedures applied have few real consequences either in terms of identifying who has been responsible for specific decisions or in terms of bringing about modifications in policy or executive action. Nevertheless, what still persists largely as a consequence of parliamentary procedures and the obligations they impose on ministers is an environment of critical attention and public argument: it is in such an environment that the activity of governing has to proceed. This is no doubt a somewhat residual view of the meaning of parliamentary government, very different from what it was held by many to mean even in the years shortly after the Second World War. Yet there are now signs of a further evolution of party loyalties and behaviour that threatens even this attenuated notion of what the authority of Parliament should mean in practice. The more or less complete professionalisation of politics has strengthened party discipline, or at the very least reinforced a willingness to conform to what are viewed as dominant current attitudes. Of course, there are occasional exceptions to this state of affairs, particularly when a matter like the endorsement of military action in Iraq arose which could plausibly be regarded by many both in the majority party and in other parties as an issue of conscience. In these circumstances, and to the embarrassment of the government, substantial dissent was expressed in two Commons votes held in March 2003.41 But for the most part observance of party discipline has become second nature for most Members. At the same time there is an increasing readiness to justify action taken or proposed by reference to what is presumed to be the level of popular approval for it, this having been ascertained by opinion polling, focus groups or other methods of supposed consultation. Naturally this tends to subvert the very idea of accountability

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within the institutional framework of Parliament, as well as the Burkean ideal of representatives who exercise their own independent judgement on public issues. All this has been happening in an era that has witnessed a rapid and pervasive expansion of every form of information technology, a process accompanied by an immense proliferation of the media professions. Such developments have the effect of making the processes of representative government as embodied in the procedures and practices of Parliament appear arcane and irrelevant. What is demanded is immediacy of presentation, something that can be achieved only through a focus on personalities and the simplification of both the issues at stake and the description of circumstances. In such conditions it is probably only in those aspects of parliamentary activity that generally do not attract much public attention that elements of parliamentary government as envisaged in constitutional theory still survive. It is widely believed in the light of opinion poll evidence that politicians both as individuals and as a group are not held in high esteem, and indeed are mistrusted by many people. It is possible that such conclusions represent self-fulfilling prophecies since often they are derived from the kind of questioning that tends to elicit predictable responses. When it comes to popular attitudes towards institutions, and especially Parliament, it has to be accepted that these are even harder to identify with confidence, in part because institutions are complex in nature and this makes them tricky objects for survey research. However, deference towards institutions and officeholders does appear to have declined in recent years, and there is a widespread willingness to assert the supremacy of popular judgement over the opinions of both representatives and experts. Yet despite this there are grounds of a negative kind for believing that the ideals of parliamentary government – Parliament as the source of continuing consent to majority rule, as the institution from which ministers have to be drawn, and as the only body with the authority to call those in power to account politically for their actions – still command widespread, though diffused and diluted loyalty in society at large. There is after all no evidence of substantial and committed support for plausible alternatives to parliamentary government fashioned in the image of the Westminster tradition. Despite the propagation of a constitutional reform agenda for well over a decade before 1997 by an active and articulate minority, there is little sign of the persuasive formulation of new ideas about how institutions might be differently structured and operated, and still less sign of broad popular support for new dispensations. The established constitutional procedures and the principles on which they are based have continued to weaken, but they still occupy the popular imagination as the only model available of how the country should be governed. Nowhere is this more obvious than in the theatre of Parliament itself.


Notes 1. The classical Liberal view of Parliament’s role was shaped by late nineteenthcentury political experience. It rests on a particular notion of how society can best be represented which has not gone unchallenged as was pointed out many years ago in A. H. Birch, Representative and Responsible Government, Allen & Unwin 1964. 2. On Opposition and its origins see N. Johnson, ‘Opposition in the British Political System’, Government and Opposition, 32, 1997, pp. 487–510 (487–90). 3. The legislation of 1937 has since been much amplified by the Ministerial and Other Salaries Act 1975 under which (sections 1(1)b and Schedule 2) salaries are paid both to the official Leader of the Opposition and five other party officeholders, including two in the House of Lords. 4. Financial support for the work of all opposition parties was initiated in 1975 and was often called ‘Short’ money after the then Leader of the House of Commons, Mr Edward Short, who piloted the scheme through. The level of support has been substantially raised since 1975 and its range widened in recent years in both Houses of Parliament. 5. Parliamentary drafting has its origins in the drafting of wills, trust deeds and similar documents by lawyers in private practice who were often engaged by Members of Parliament in need of help with the preparation of bills. Increasing public legislation in the 1830s and after led gradually to the formation of what is now known as the Office of Parliamentary Counsel, located after 1869 in the Treasury, but now a free-standing department of government. In 2002 it still employed only 42 qualified counsel. 6. See Sir W. L. Dale, Legislative Drafting: a New Approach, Butterworths 1977. 7. There are now generally about 80 to 90 MPs who belong to the legal profession (both branches). This number is not significantly lower than it was forty or so years ago, though it fell somewhat in 1997. But some of the lawyer MPs will be in government and there does appear to be some evidence that fewer lawyers of the highest calibre are going into Parliament than happened in the past. Part of the explanation for this is financial. See M. Rush and N. Baldwin, ‘Lawyers’, in Dawn Oliver and Gavin Drewry (eds), The Law and Parliament, Butterworths 1998, Chapter 10. 8. Under Standing Order 91, Standing Orders of the House of Commons 2003, a bill can be sent to a special standing committee which is then entitled to take evidence on up to three occasions before reporting back. 9. During the 1990s the number of Acts passed per year varied from a high of 69 (in 1991 and 1997) to a low of 41 (in 1994). In A4 size pages there was a high of 3865 pages in 2000 and a low of 2073 in 1997. The annual volume of statutory instruments (delegated legislation) regularly exceeded that of primary legislation by a factor of at least two. Source: R. Blackburn and A. Kennon, Griffith and Ryle on Parliament: Functions, Practices and Procedures, 2nd edn, Sweet & Maxwell 2003, p. 400. 10. The negative procedure for approving statutory instruments leaves the onus on opponents to move a prayer for annulment against them. Since amendments cannot be made the normal procedure generally amounts to passage on the nod, though there is also a mainly technical scrutiny carried out by what is now a Joint Select Committee on Statutory Instruments to alert both Houses to any unusual aspects of an instrument that has been laid before them.

Parliament 137 11. European Communities Act 1972, Section 2, provides for the direct effect (where applicable) of European law and the implementation of EU directives. 12. There is a government undertaking not to proceed to acceptance of directives and other formal commitments emanating from Brussels before Parliament has had an opportunity to examine them in draft and to complete the scrutiny process. This ‘scrutiny reserve’ is now set out in the Appendix to House of Commons Standing Orders 2003, pp. 138–40. But the reserve does not bind the government in all circumstances. 13. The office of Comptroller and Auditor General was originally instituted by legislation in 1866. Its holder now heads the National Audit Office. 14. See N. Johnson, ‘Select Committees and Administration’, in S. A. Walkland (ed.), The House of Commons in the Twentieth Century, OUP 1979, pp. 426–75. 15. There is an extensive literature on select committees beginning with N. Johnson, Parliament and Administraton: the Estimates Committee 1945–65, Allen & Unwin 1966, and D. Coombes, The Member of Parliament and the Administration: the Case of the Select Committee on Nationalized Industries, Allen & Unwin 1966, down to G. Drewry (ed.), The New Select Committees: a Study of the 1979 Reforms, OUP 1985. Subsequently still further studies of individual committees have been published. 16. B. Crick, The Reform of Parliament, Weidenfeld 1964, had a significant influence on the emergence of a parliamentary reform movement, symbolised by the founding of the Study of Parliament Group, an association of academics and clerks of both Houses in 1964. The SPG still flourishes. 17. A Commons Select Committee on the Lord Chancellor’s Department was finally set up early in 2003 and is now entitled the Select Committee on Constitutional Affairs. The fact that the Lord Chancellor had to be in the House of Lords necessarily inhibited the setting up of a House of Commons scrutiny committee. 18. Exceptions in the House of Lords were the European Communities Committee set up in 1974 and the Committee on Science and Technology in 1979. 19. Moves were made by Government Whips in 2001 to engineer the replacement of Mrs Gwynneth Dunwoody as chairman of the Transport Select Committee, but they backfired and she retained her position. This happened at the beginning of a Parliament when, in principle at least, there is a case for encouraging a degree of rotation in chairmanships. 20. Financial matters (unless they involve extensive waste or loss) are rarely held to be of great political interest. This and the fact that they may be technical in nature probably accounts for the relative neglect of financial scrutiny by departmental select committees. 21. The Select Committee on Foreign Affairs published its report on ‘The Decision to Go to War in Iraq’ on 7 July 2003, HC 813. It then reopened its inquiry and took evidence on 15 July 2003 from Dr David Kelly, a Ministry of Defence specialist on Iraq’s weaponry. His suicide on 17 July 2003 prompted the appointment of Lord Hutton, a senior law lord, to investigate the circumstances leading up to Dr Kelly’s death. The abrasive questioning of certain members of the Foreign Affairs Committee became an important element in the train of events under investigation. 22. Blackburn and Kennon, op. cit., p. 591, for a table providing detailed information on select committee activity. Apart from the US Congress no other foreign parliament rivals Westminster in the amount of written material published (and made available online) by the select committees of both Houses.

138 Reshaping the British Constitution 23. The belief that policy-making would be better if informed by more systematic information and research has a long history running from the Haldane report of 1918 (op. cit., Chapter 3, note 7) down to recent years and the rise of ‘think tanks’. Realisation of the ideal has, however, always proved elusive. 24. It is indicative of a different approach natural to a multi-party assembly that the European Parliament has since the Maastricht and Amsterdam treaties (1993 and 1998) acquired substantial rights of ‘co-decision’ in relation to the passage of EU proposals for legislation. This means that the Parliament is dependent on collaboration with other institutions of the EU: it is in no sense ‘supreme’. 25. A Register of Members’ Interests was formally introduced in 1975 and revised and tightened up in 1995 following the appointment of a Parliamentary Commissioner for Standards. As a result interests and wealth receive much publicity. 26. Mr Martin Bell won Tatton from the sitting Conservative Member, Mr Neil Hamilton, in 1997 on an anti-corruption platform. He stood down in 2001 in line with a promise he had given to do so. Dr Richard Taylor gained Wyre Forest from the Labour Party in 2001 on the single issue of opposition to the closure of a local hospital. 27. Irene Coltman, Private Men and Public Causes: Philosophy and Politics in the English Civil War, Faber & Faber 1962, provides a penetrating insight into the emergence of this distinction in the course of the conflict between Parliament and King. 28. The Prime Minister announced in June 2003 a proposal to set up a Supreme Court separated from the House of Lords. Though this was not clear at the time of the announcement, under the Constitutional Reform Bill [HC] 2004, clause 94, members of the new court will no longer be able to sit in the chamber during their tenure of judicial office. 29. On privilege, see especially G. Marshall, ‘The House of Commons and Its Privileges’, in Walkland, op. cit., pp. 204–46, and the same author’s memorandum on privilege presented to the Joint Committee on Parliamentary Privilege in 1998. Dr Marshall gave oral evidence on 7 April 1998: 1st Report of the Joint Committee on Parliamentary Privilege, March 1999, Vol. II, Minutes of Evidence, April 1999. 30. A v UK, European Court of Human Rights, decision issued on 17 December 2002. 31. In 2002–03 seven important bills were introduced first in the House of Lords, though this may have had something to do with the relatively technical character of some of them, for example, the Extradition Bill and the Sexual Offences Bill. 32. The convention took its name from the Conservative leader in the House of Lords, the Marquess of Salisbury, who wished to avoid unnecessary conflict with the Labour government in office after 1945 with a large programme of social and economic reform approved by the electorate. 33. The House of Lords has now introduced Grand Committees for the consideration of bills in addition to the committee of the whole House. A Grand Committee takes business off the floor of the House, but it remains open to all Members, and thus in principle at least still resembles a plenary sitting of the House. The House of Lords will have to find a new presiding officer if and when the Lord Chancellor’s post is abolished as proposed in June 2003. 34. The House of Lords will have to decide on how best to define the role of presiding officer and who should carry it out if and when the Lord Chancellor’s post is abolished as proposed in the Constitutional Reform Bill, clauses 11 and 12, referred to in note 28 above.

Parliament 139 35. Members of the Canadian Senate are appointed with a retirement age of 75 and on the basis of quotas for each province that take some account of population, though Quebec is generously over-represented. 36. Lord Irvine, then Lord Chancellor, drew attention in a speech in Germany to the large volume of amendments to government legislation made in the Lords, on average over 2000 per year in the ten years 1990–2000. Such overall figures are, however, very difficult to interpret, since amendments are made for so many different reasons and the bulk of them probably stem from the government any way. Lord Irvine of Lairg, ‘The Constitutional Revolution in Britain since 1997’, in Christiane Eisenberg (ed.), Parliamentary Cultures: British and German Perspectives, Wissenschaftlicher Verlag Trier 2001, pp. 17–26. 37. The Northern Ireland Assembly was suspended in late 2002 and was still suspended when the delayed Assembly election took place on 26 November 2003. 38. The procedural approach to referendums adopted in legislation has in fact varied. Under the 1978 legislation on devolution it was provided that the primary measure would only come into force if approved by referendum in Scotland and Wales and subject to 60 per cent of all voters saying ‘yes’. Both referendums had negative outcomes. In 1998 referendums were used in reverse order to secure a vote of approval in advance of legislation and with no reinforced majority required. Both gave approval, but by a very slender margin in Wales. 39. These and other procedural matters relating to future referendums are now regulated by the Political Parties, Elections and Referendums Act 2002. 40. On dissent from party discipline, see P. Norton, Conservative Dissidents: Dissent within the Parliamentary Conservative Party 1970–74, Temple Smith 1978: more recently, P. Cowley and P. Norton, ‘Are Conservative MPs Revolting? Dissension by Government MPs in the British House of Commons 1979–96’, Research Paper, University of Hull 1996. 41. Two votes on amendments to government motions were taken on 20 February and 18 March 2003. On the second occasion the government motion supporting intervention in Iraq was then carried by 412 votes For to 149 Against.

7 The Judiciary in the Constitution

The then Lord Chancellor, Lord Irvine of Lairg, is on record affirming that what we really have to remember is that the judiciary is part of government: it is an arm of Government: it is an arm of government within the separation of powers. It is the legislative, the executive and the judiciary which is, if you like, the classic separation of powers, although in this country we have never followed – and rightly in my view – an absolutist or purist approach to the separation of powers.1 To say the least this was a somewhat eccentric way of locating the position of the judiciary within the traditional constitutional order. Of course, it might be objected that Lord Irvine was simply expressing in very broad terms the quite obvious fact that viewed from the perspective of sustaining the system of law in a society a judiciary or the judicial power is part of the structures through which the society is governed. But almost as if he immediately realised that he had said something unusual Lord Irvine qualified his observation by stating that the judiciary’s position as ‘an arm of government’ was within the separation of powers, though this addendum was then qualified in time-honoured way by pointing to the wisdom of the British in refusing to take a slavish view of the separation of powers. Despite the nod in the direction of the separation of powers it is still reasonable to hold that to treat the judiciary simply as an arm of government (whether in lower case or graced with a capital G) does fly in the face of English and later British constitutional development as well as throwing some light on the pervasive dominance in contemporary political life of an executive outlook.

The independence of the judiciary It is worth noting at the outset that the notion of an independent judiciary was not originally intended to challenge either the appointment of judges by the Crown or even the introduction of partisan considerations into 140

The Judiciary in the Constitution 141

such appointments. Its purpose was to secure the independence of judges once in office and destined to be engaged in judging cases. In other words, the aim was institutional autonomy for the judiciary in the discharge of its functions. The principle of the independence of the judiciary in this sense was conclusively asserted in the Bill of Rights of 1689 and then embodied in the Act of Settlement of 1701. What this meant was that judges of the High Court (and effectively they constituted the whole of the professional judiciary at that time) were assured of security of tenure ‘during good behaviour’ both through the provision that the Crown could remove them from office only on receipt of addresses from both Houses of Parliament requesting this, and through charging their salaries directly to the Consolidated Fund rather than to annual parliamentary votes. The provision relating to the removal of judges turned out to be so difficult to invoke that it has guaranteed very high security of tenure, having been used successfully only once since 1701.2 In modern times the judiciary has become much larger than it was even at the end of the nineteenth century and now comprises several levels, namely the Lords of Appeal in Ordinary (the Law Lords as they are generally known), the Court of Appeal, the High Court with its three divisions, Circuit judges and recorders (who are basically part time). There is a similar but much smaller judicial hierarchy with different nomenclature in both Scotland and Northern Ireland. Judicial statistics are hard to interpret, but appear to indicate that there are close on 800 judges of senior status in the United Kingdom, still a remarkably small number compared with the number of professional judges in most European countries.3 Those judges in England and Wales at levels below that of the High Court enjoy less security of tenure and can in principle be removed from office by the Lord Chancellor who also recommends them for appointment. But in practice severe shortcomings have to be established if such serious disciplinary action is to be contemplated. Below the professional judiciary is the lay magistracy (present chiefly in England and Wales) consisting of a very large body of unpaid justices of the peace who deal with the bulk of minor criminal offences and sit in small panels under the guidance of a legally qualified clerk. In 2002 there were about 25,000 lay magistrates of this sort.4 At this level too termination of appointment can be effected by the Lord Chancellor, though provided magistrates carry out their duties competently they too can expect to stay in office until the relevant age for retirement. Over a long period the conditions outlined above confirmed judicial independence as a deeply entrenched constitutional convention embracing both independence in judging and a high degree of institutional separation from the other branches of government. The institutional separation of judges of the High Court was aided by the narrowness of the group of lawyers from which they were appointed and


the special nature of their experience as advocates practising before the High Court. Unlike all its continental neighbours Britain did not acquire in the modern era a fully professional judicial service, that is to say, one staffed by suitably qualified people recruited at an early age for a life-long career as judges. Instead, the higher levels of the judiciary were drawn (and still are almost exclusively) from one branch, that of barristers, of an independent legal profession. Notable effects of this practice have included emphasis on advocacy experience, a relatively high average age of appointment, respect for the autonomy of the legal profession as a whole, and for those appointed to the judicial bench a substantial degree of social prestige and material independence. When we add to factors of this sort the strong emphasis in British legal education on the knowledge and skills needed for private practice as a lawyer, and thus on the common law and its procedures, we do have the ingredients of a judiciary powerfully imbued with a belief in the validity of its claim to institutional autonomy and in the crucial importance of its own independence from external pressures in the task of finding and interpreting the law. It remains important that judges dispense justice in the name of the sovereign and up to now they have been recommended for appointment by her most senior political advisers. But they do not have the status of Crown servants and have no obligations to the Crown in any of its manifestations as the executive arm of government. Their overriding duty is to dispense justice and to uphold the law of the land in the name of the Crown and on behalf of Parliament. There is, of course, an element of mystique in all this that reinforces the exalted status of the judiciary. But it also expresses a continuing set of beliefs held both by officeholders and by the public at large that the judiciary is not an arm of government like any other, indeed is not in fact an arm of government in the guise of the executive power at all. Instead it is expected to be as far from ‘government’ and ‘politics’ as possible, a neutral power capable of protecting individuals in the enjoyment of their rights and property, and of maintaining impartially the rule of law. Naturally the judiciary has not always lived up to these high ideals, and in any event its evolution into the judiciary we have today extended over a long period of time. For over two centuries after 1701 party political influences and personal connections played a significant part in senior appointments. Indeed as recently as the 1920s and 1930s it was not uncommon for lawyers actively engaged in politics to be appointed to the bench, and even on occasion for judges to step down to take up a political appointment. Since the 1960s, however, there have been few signs of political partisanship playing a part in appointments, though clearly within the tightly knit community of barristers and judges it is not possible to exclude the influence of personal knowledge and contacts from processes leading up to appointments. Up to the present time the Lord Chancellor has remained head of the judiciary and is entitled to sit as a judge in the Appellate Committee of the House of Lords, though for


some years now he has only rarely done so. In addition, he has presided over the House of Lords (a passive role in fact) and as a member of the cabinet has clearly had the status of an active politician. Such a fusion of judicial, legislative and executive roles in one officeholder has inevitably excited criticism in contemporary conditions, not least on account of the impact of British commitments within the European Union and under the European Convention of Human Rights, both of which involve acceptance of the jurisdiction of courts which are bound to be unsympathetic towards the pragmatic mixing-up of functions that has been tolerated and even commended under the customary British constitution. Reference will be made later in Chapter 11 to the proposals now made to abolish the position of Lord Chancellor, to make important changes in the way judges are appointed, and to establish a new Supreme Court separated from the House of Lords. Most members of the judiciary have also until quite recently come from a socially privileged background, and this has been reinforced by the kind of higher education and legal training they then had. The restricted social experience of many judges and a broadly ‘conservative’ outlook may sometimes have coloured their judgements; though the extent of this has often been exaggerated by critics.5 Nor can it be confidently claimed that all members of the judiciary have always shown that they have the depth of legal knowledge and analytic ability demonstrated by the most distinguished judges of each generation. In all institutional settings there will, however, be variations in the capacities and performance of those involved, and the judiciary is no exception. What is remarkable is that as an institution it has retained for so long such a high degree of integrity in discharging its functions within the legal system and, despite many pressures bearing in on it as a result of social change and a relentless expansion in the functions of government, has retained both its independence and its commitment to the pursuit of justice in its decisions. There are, however, paradoxical elements in the independent role of the judiciary in Britain. The triumph of the doctrine of parliamentary sovereignty at the conclusion of the constitutional upheavals of the seventeenth century meant that Parliament was free to change the law as it saw fit, even to the extent of doing so in order to overcome the consequences of particular judicial decisions. The judiciary gained insulation against both legislative and executive interference in its judicial role, but at the same time it had to acknowledge the supremacy of statutes duly passed by Parliament. For a long time that did not matter too much, since there was not much legislation of the kind now familiar and little litigation calling for its interpretation. But as the volume of law-making began to increase in the nineteenth century the judges found that increasingly they had to interpret statutes, many of them directed to empowering public authorities to provide services or to regulate and control private activities. Broadly speaking the judiciary played safe in the interpretation of statutes by applying narrow


and literal conventions to the construction of legislation and seeking as far as possible to avoid any charge of substituting its view of the law for that expressed by Parliament in statutes. The effort to discover Parliament’s intentions and to ensure that they were faithfully followed became a cardinal rule of interpretation.6 By adopting this approach the judiciary was acknowledging the strength of a tradition of legal positivism that was firmly in the ascendant by the beginning of the nineteenth century both in the courts and more generally amongst lawyers and legal thinkers.7 And after all legal positivism was one of the necessary accompaniments of the theory of parliamentary sovereignty. One dimension of judicial activity was for the most part absent in the British constitutional development and that was the role of interpreting a specific body of constitutional law. Without a codified constitution and with nothing equivalent to the powers assumed by the Supreme Court in the United States the judiciary in Britain had as a rule to work within tightly stated terms of reference. Above all there was little scope for it to seek to bring any set of higher order moral and political values to bear on its resolution of the legal disputes that it had to resolve: the common law and its precedents along with statute had to suffice.

The judiciary as interpreter of the common law Those features of the judicial power in Britain just discussed point to the limitations on its range of action. Public policy – and therefore most of effective law-making – has been regarded as a political matter to be determined in and by Parliament. Nevertheless, there has always been another aspect of the judiciary’s approach to its task that both buttressed its independence and was eventually to underpin the wider role it has now acquired. Expressed simply, this is the fact that historically English judges were called upon to declare and develop the common law which was essentially judgemade law. Allowing for certain differences of form and principle the position in Scotland before and after the Union was not much different: Scottish judges interpreted Scots law. Common law was always and remains a body of principles and precedents chiefly intended to govern individual conduct and relationships, including the ownership and use of property. In some respects the common law has evolved as the traditional wisdom of society, elucidated, refined and developed both by the courts and to some extent by litigants themselves and their lawyers. In the modern era, however, the range of the common law has been hugely restricted by the extension of parliamentary legislation and delegated executive regulation. No longer are we willing to leave the shaping of legal relationships in many spheres previously thought to be unsuitable for public and enforceable regulation to the gradual and often uncertain process of legal argument before judges, leading in turn to the enunciation of principles and the establishment of new precedents.8


However, though the part played by the common law in the effective regulation of social life has been much diminished in favour of statute, the role of judges as guardians of the common law survives and remains of great constitutional importance. To a large extent the judiciary’s concern with the procedural requirements of justice and with their application in an environment of increasingly complex public law and regulation is sustained by the common-law heritage. Reasonableness itself has been a key concept in the modern development of legal thinking about the control of powers, natural justice and its implicit rules has been another, individual agency and responsibility yet another. Much of judicial reasoning, and more especially in the second half of the twentieth century, has been devoted to analysis of the meaning of such words and of the ways in which existing terminology and common-law principles might be adapted to yield answers to new and unfamiliar legal questions. The judicial preoccupation with procedural fairness reaches back a long way and yielded from time to time decisions that came to be seen subsequently as constitutive of the liberty of the subject in Britain and of the rule of law. In more recent times and especially since the 1970s it has become easier for aggrieved persons and organisations to secure judicial review of decisions taken by public authorities, and the procedures for that purpose have been vigorously developed on the foundation of this abiding concern for procedural fairness. Neither the legislative nor the executive arms of government sought actively to bring about this change: instead it sprang chiefly from the initiative and originality of the judiciary, and in particular of a fairly small number of unusually talented senior judges. Since it is in the activity of the judicial review of powers that the judiciary comes nearest (at any rate until the passage of the Human Rights Act 1998) to something akin to a constitutional jurisdiction, it is worth commenting further on it. In a very basic sense the task of judges in any legal system is to administer the law, and that must include both the judging of cases and the determination in appropriate circumstances of what the law is and thus of what it requires, for example, of the parties to a dispute. It has been settled doctrine in English law for centuries that the Crown could not be proceeded against in its own courts – a consequence of the principle that the King can do no wrong. Over a long period the courts found various ways of mitigating the effects of this principle, chiefly through the use of what were known as prerogative writs, though this left appeal to judges a somewhat hit-andmiss affair. A significant change was made by the Crown Proceedings Act 1947 which allowed for the Crown to be sued in civil proceedings. However, lawyers, litigants and judges continued to face difficulties in cases of dispute between the Crown or one of its agents on the one hand and a subject on the other, in which it was alleged that the subject’s rights to fair and proper treatment had been infringed by the Crown. The procedures dependent on the use of prerogative orders (as they came to be called) presented many


technical difficulties in relation to what kind of order would in a particular case be appropriate and offer hope of finding a remedy. Much simpler conceptually and generally more effective in practice was an application for judicial review of the decision of a public authority or administrative body on the grounds that it had exceeded or misused its powers. The aim here is either to establish what the law is by securing a declaration from the court or to secure an injunction determining whether a public body has acted illegally or wholly unreasonably. Such proceedings rest on the basic principle of the rule of law, namely, that all public authorities can act only within the limits, whatever they may be, of the powers vested in them. If they act ultra vires, that is, outside their powers, then at any rate in principle such action can be challenged before the courts and declared inadmissible. Until quite recently the scope for judicial review of this straightforward kind was rather limited, no doubt in part because during the period running from the mid-1930s until the late 1960s judicial opinion was, with some notable exceptions, singularly favourable to the claims of the executive to enjoy virtually complete discretion within whatever statutory framework it was acting.9 In addition the climate of public opinion during the war years favoured leaving wide discretion to the government to act as it saw fit for the public good, and this attitude seems to have persisted for some time afterwards in the face of a tidal wave of social and economic legislation intended to extend and consolidate the welfare state. More prosaically, those who drafted legislation were highly skilled in expressing powers conferred on ministers and other public authorities in terms that made legal challenge a difficult and uncertain business. But even in the early 1950s there were some signs of a reaction against the granting of so much discretion to ministers and officials, shown for example in the famous Crichel Down case which led to the resignation of the Minister of Agriculture, an inquiry into the actions of officials, and eventually to a change in policy on land disposals that required more attention to be given to the claims of former owners.10 This cause célèbre initiated a process which was to see more limits placed on the unfettered discretion of ministers and officials than previously, and in turn to establish a climate of opinion in which the courts were to take a much more critical view of executive claims than they had done earlier on. By ingenious interpretation and a shift of moral perspective they began to discover that it was possible substantially to widen the grounds for allowing judicial review of the lawfulness of executive actions. In two leading cases decided in 1968 and 1969 the courts significantly stretched and widened the scope of judicial review. In Padfield v. Minister of Agriculture11 the minister’s claim to possess an unfettered discretion under the revelant statute to dismiss a pricing complaint without reference to a committee of investigation was rejected. In Anisminic v. Foreign Compensation Commission12 the judges found ways of rejecting the effectiveness of an ouster clause in the legislation which purported to exclude any kind of


appeal to the courts. As a result the executive could no longer rely on timehonoured formulae such as ‘the minister’s decision shall be final and shall not be challenged in any court whatsoever’ to protect decisions from challenge. And in another case which was not actually a judicial review but an action for malicious prosecution, it was decided that if a question of public interest in the disclosure or non-disclosure of documents had to be resolved, then it was for the courts to do so and not the minister involved.13 During the 1970s the pace of judicial review quickened and in 1977 a simple ‘application for judicial review’ was introduced by Rule 53 of the Supreme Court, later given statutory confirmation by the Supreme Court Act 1981. What this did was to supersede the more complex procedures for prerogative orders which up to then had generally been used. Not surprisingly the simplification of procedure also had the effect of prompting a steady, though not dramatic increase in the number of applications for judicial review put forward every year. Cumulatively the increasing resort to judicial review of powers that now occurs has made the judiciary appear far more often than before to be the arbiter of how executive powers are used. If the matter were as straightforward as that, it would point to a rapid and substantial constitutional shift in favour of the courts (and presumably therefore of private citizens) and against the executive. But whilst there are developments in train which might one day confirm that kind of shift in the location of authority – principally the 1998 Human Rights legislation and the growing impact of European Union legislation and of the jurisprudence of the European Court of Justice – it is doubtful whether the judiciary’s far more creative use of judicial review does by itself yet add up to a radical change in the tradition of judicial restraint in relation to the imposition of limits on executive discretion. There are at least two main reasons for this view. One is simply that leading judges have on several occasions gone out of their way to stress that judicial review is a procedure for examining the lawfulness of a particular exercise of powers and not in any degree a procedure allowing a court to substitute its discretion for that of the executive agent entrusted with the right to determine the matter. In a case decided in 1982 Lord Hailsham (then Lord Chancellor) spoke in some detail about the purposes and limits of judicial review, stressing that: ‘The function of the court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law.’14 Some years later the then Master of the Rolls, Sir Thomas Bingham, remarked in more lapidary style that judicial review had ‘one function only, which is to rule upon the lawfulness of decisions’.15 The second reason for the preservation of restraint is that judicial review is allowed and exercised only when certain wellestablished criteria have been met. The principal grounds for review were neatly summarised by Lord Diplock in 1985 as illegality, irrationality and procedural impropriety, though he went on to say that there was no


finality about this list and that new grounds were conceivable.16 These headings are broad and to some extent blurred at the margins. Illegality is often straightforward, but becomes more difficult to pin down when the case turns on whether a power was used improperly or for a purpose for which it was not granted; similarly the application of irrelevant considerations, one of the possible forms of illegality and also of irrationality, is often contentious and open to argument. Further possibilities of illegality are to be found in unlawful delegation of a discretion from a superior authority to one that is subordinate to it, and in action that may fetter discretion so much that it cannot really be exercised at all. What all these possibilities of illegality mean in practice has to be deduced from the relevant case law. Irrationality is by no means straightforward. As a ground for review it has its roots in the notion of unreasonableness which was given currency in the famous Wednesbury judgement in 1948 when Lord Greene, Master of the Rolls, provided a definition of that degree of unreasonableness which would be sufficient to invalidate what had been done by a public body.17 Of course, this was not able to prevent a continuing discussion in legal circles and beyond that continues to the present time about the requirements of Wednesbury unreasonableness (or reasonableness, depending on which way one is looking at it). The tendency has been for unreasonableness to be interpreted so strictly that it became virtually impossible to imagine that any sane authority would behave in such a way. To some extent the difficulties of assessing unreasonableness are eased a little when the argument is cast in terms of irrationality, though that too is a term open to a wide range of interpretation. The principle of proportionality can be brought into the same context. This concept is an import from continental European jurisprudence, recommended in 1980 by the Council of Europe. It has begun to be invoked in cases where it has been alleged that the action taken was not reasonable in the circumstances and went far beyond what was necessary or justifiable. So far, however, proportionality has not been fully accepted by the English courts as a distinct ground for judicial review. Finally, there is the heading of procedural impropriety which covers failure to observe several of the rules or principles of natural justice such as the right to a fair hearing and the opportunity to make representations. The substantial merit of judicial review as it has been developed and expounded by the judiciary in recent years is that it has imposed much stronger procedural constraints on the exercise of powers and discretions by public authorities than were previously available. In this way it has contributed to a sharper awareness in British administration of the need to pay more regard to legal constraints and requirements intended to safeguard the legitimate rights and interests of those affected by the actions of public bodies. Amongst these constraints there is also the general requirement to give reasons for decisions which the courts would expect to be genuine and reasonable. All this represents a substantial strengthening of the rule of law.


What is more this development has taken place in a way that has preserved the neutrality of the judiciary and respected its refusal to get involved in substituting its discretion for that of the policy-maker or deciding authority. Some have criticised the judiciary for timidity in declining to adopt a more activist role, but such a criticism tends to overlook the risks associated with judicial attempts to tell the political authorities – executive or legislative – what to do. In particular it should not be forgotten that all recent experience – for example, during the time when Mrs Thatcher was prime minister and again while Mr Blair has been in office – suggests that the British political class in the shape of elected politicians remains defiantly aggressive about its right to make policy, to enact legislation, and then to adjust in operation what has often been pushed through Parliament in haste and without sufficient attention either to principles or practicalities. And there are even some politicians who are ready to criticise particular judicial decisions that they do not like, and to invoke public opinion in support of their views.18 So whilst the expansion of judicial review has had a real impact at the operational level in most public services by reinforcing the need to look carefully at issues of procedural correctness and legality, there are few grounds for believing that it has substantially affected the attitudes of the political executive to its role in government. This state of affairs continues to suggest to the judiciary that there is wisdom in maintaining judicial caution and restraint.

Recognition of a domain of public law What has been under discussion can be seen as the development of a more explicit sector of public law in Britain and in particular of something like a coherent body of administrative law. A. V. Dicey’s rejection in the early editions of his famous work in the closing years of the nineteenth century of the very idea of administrative law in England has for long enough been overtaken by judicial innovations that plainly acknowledge the existence of a substantial body of case law regulating the manner in which public administrative bodies are entitled to act. The definition of what is a public body sometimes presents problems, especially now that the boundaries between public and private service provision have become so fluid. But in this regard the courts have generally been ingenious and have found ways of treating as public bodies organisations which technically are no longer in the public sphere. On occasion this has involved asking whether the functions remain of a public nature, even though the executive agency in question has become private. If the answer is in the affirmative it is probable that public law remedies can then be brought into play in appropriate circumstances. The widening sphere of public-law jurisprudence has been built up for the most part pragmatically and on the basis of case law. In this process some


judges have during the past thirty years or so been keener than others to stretch the limits of judicial review and thus to enhance the impact of judicial rulings on the quality and propriety of public authority decisions. There has been considerably more specialisation in public law matters amongst judges, and within the framework of the Queen’s Bench Division of the High Court there is now an Administrative Court. Some efforts have been made chiefly outside the judiciary acting in its formal role to develop a more structured body of public law principles, though nothing like an authoritative code has so far emerged. And for some time there has been no shortage of reforming jurists, especially in the area of academic law studies, who have pressed for a widening of the field of administrative law so that its guiding principles would come to include much more in the shape of substantive value commitments that would in turn open the door to a far broader exercise of judicial discretion. The recent embodiment of the European Convention on Human Rights into British law by the Human Rights Act 1998 suggests at least the possibility of movement in this direction. The issue of human rights and the implications of the embodiment of a code of rights into British law will be examined later in Chapter 11. But since this development is already having an impact on the scope and content of judicial review some aspects of its significance for the broader constitutional role of the judiciary have to be noted at this stage. These stem mainly from the fact that the Convention, despite its weaknesses and limitations, does amount to a statement of both procedural and substantive rights that the judiciary has to apply to the interpretation of British law. It has to do this with the aim of establishing wherever possible the compatibility of British law with the human rights code. Such a requirement presents a novel challenge to the judiciary. Several of the articles in the Convention refer either wholly or primarily to what are principally procedural rights and values, for example, the prohibition of torture (Art. 3), the right to liberty and security (Art. 5), the right to a fair trial (Art. 6), prohibition of punishment without law (Art. 7), and more doubtfully the prohibition of discrimination (Art. 14). Invocation of these articles can often be dealt with more or less within the parameters of established British jurisprudence, though even these articles can throw up new problems as has happened in the case of the right to a fair trial. Here the issue arose as to the meaning of ‘an independent and impartial tribunal established by law’ when it was questioned whether temporary sheriffs appointed by the Crown in Scotland could be regarded as independent and impartial.19 In this instance the objection could, with some inconvenience, be met by the appointment of additional permanent sheriffs. It nonetheless illustrates how purely formal considerations can frustrate familiar and well-tried practices. More indirectly, questions have been raised about the acceptability of the Lord Chancellor’s judicial role in the light of his position as a member of the executive. Here a notion of the separation of powers is being invoked to


justify questioning the fusion of roles found up to now in the office of Lord Chancellor. Other articles in the Convention refer specifically to substantive values, albeit sometimes in a rather oblique way. For example, the right to liberty in Art. 5 is set within the context of legally valid reasons for restricting individual liberty. But it is not difficult to imagine circumstances in which the argument focuses on a right to liberty per se and any one of numerous objections to limitations on its enjoyment. Then there are articles that quite obviously refer to what might be called the basic values of a liberal society. These include a right to respect for private and family life (Art. 8), freedom of thought, conscience and religion (Art. 9), freedom of expression (Art. 10), freedom of assembly and association (Art. 11), the right to marry (Art. 12), and the protection of property and the right to education (First Protocol, Arts 1 and 2). Any or all of these provisions might at some stage compel members of the judiciary to tackle very basic issues about the meaning in specific circumstances of such open-ended and contentious terms as freedom of expression or the protection of property. The traditional neutrality of a judiciary committed in the first instance to the preservation of procedural propriety then becomes more difficult to sustain. What is more, in addition to seeking to demonstrate compatibility, the judges are now required to have regard to the jurisprudence of the European Court of Human Rights when reaching their conclusions in any proceedings in which breach of Convention rights has been alleged. This means that it may sometimes become difficult to avoid taking over whatever value judgements about substantive issues arising under the Convention have already been made by the European Court. All this opens up the prospect that the judiciary will gradually be forced to make more explicit the positions adopted on the substantive elements in this new code of rights. And the more it has to do this, the greater the likelihood that the judiciary will have to substitute its judgement of merits and policy for whatever position has been taken up by the executive or the legislature. However, there are still certain impediments in the way of too bold an advance by the judiciary into politically controversial areas, quite apart from the normal professional caution likely to be exercised by any body of experienced and learned judges. The appeal to Convention rights is not a straightforward matter. The Human Rights Act does not introduce any new procedures for launching a complaint based on alleged breach of Convention rights. Instead it refers somewhat vaguely to ‘proceedings’ before the British courts, and this has been taken in practice to mean that the issue of a possible breach of Convention rights or procedures has to be raised through existing procedures such as an application for judicial review or at an appropriate point in any other proceedings, for example, in an action for negligence against a public body. The practical effect of the procedural complexities which inevitably beset appeals under the Convention on Human Rights is that there is really no straightforward way in which a citizen can


challenge the validity of an executive action on the grounds that it breaches one of the rights protected by the Human Rights Act 1998, and still less is it possible simply to challenge the compatibility of some existing statutory provision with the Act. For example, it is probably impossible to question directly the validity of British law relating to school education on the grounds that some of its terms are in conflict with the right of parents to secure an education for their children which respects their religious convictions (First Protocol, Art. 2 refers), or to challenge the recent measures of the Scottish Parliament suspending the liability of Scottish students to pay university tuition fees in Scotland on the grounds that it conflicts with the prohibition of discrimination contained in Art. 14. This situation differs substantially from that prevailing in Germany, for example, where an individual can directly raise a complaint alleging a breach of his rights and where, in some circumstances, the validity of a statute can be exposed to an institutional challenge to its compatibility with the constitution. Nothing like this sharp definition of relevant procedures for invoking rights is achieved in the Human Rights Act. And to be fair, it has to be noted that within a common law system like the British it is probably impossible to secure the clear separation between the various specialised sectors of law sometimes to be found in continental European legal systems. Even in the USA where there is a long-established constitutional law jurisdiction exercised by the Supreme Court the survival of a common law heritage means that the routes to the Court remain many, various and uncertain. There is a further limit set to the likely impact of the incorporation of Convention rights which is of some importance. This is the fact that the rights guaranteed count against public bodies, but not generally as between private individuals. Admittedly there is some disagreement among jurists about this matter and it is now widely recognised that the Convention on Human Rights can be applied in actions between private persons (for example, in private family law cases and in privacy cases) where the court as a public authority has to uphold Convention values and standards when adjudicating. As a rule, however, private citizens cannot expect to use the courts as a means of compelling other private citizens to behave in ways thought to be implied by the Convention code of rights. The incorporation of the European Convention of Human Rights into British law points the way to something much nearer to a substantive constitutional jurisdiction for the judiciary. But it also in the first place provides for a widening of scope for familiar methods of judicial control of the exercise of powers, and this means that judicial policy can be developed further on the basis of existing methods and case law. This presages an effort to maintain continuity and to assimilate new standards and criteria of judgement gradually into the framework of judicial review. Provided both the executive and Parliament also exercise some care and restraint in relation to decisions affecting human rights, the risks of serious confrontation between


them and the judicial power are not great. But the potential for a more active involvement of the judiciary in constitutional controversy is now present to an extent not known only a few years ago.

The judiciary in public life and popular involvement in administering justice In concluding this chapter some comments have to be made on a number of unusual features of the role of the modern judiciary in Britain that in the broadest sense have a bearing on constitutional understanding of their position, even though they do not figure much in textbooks on the constitution. First, and most obvious, is the fact that the highest court of appeal, the Appellate Committee of the House of Lords, is still located in the second chamber of Parliament, though change in this matter is now promised. This panel of judges, generally known as the Law Lords, usually numbers 12. They can serve until the age of 75, and even after retirement may sometimes be called back into service. For most of the time the Law Lords operate simply as a group of judges who happen to be located in the House of Lords and could in principle just as well sit elsewhere.20 Their presence in the House of Lords is, however, a reminder of historical continuities since the chamber as a whole was in the past an ultimate court of appeal, and it is still the case that the Law Lords announce their judgements in summary form in the chamber. More important is perhaps the fact that the presence of the Law Lords in the House of Lords has underlined their link with both the Crown and the Lord Chancellor, the official head of the judiciary. The continued presence of judges in what is a legislative body unavoidably engaged from time to time in controversial political exchanges has, however, now been made the target of reforming legislation. Reference has already been made to the possibility of a challenge being made by the European Court of Human Rights to the continuance of the dual role of the Lord Chancellor as judge and legislator. Analogous issues arise with regard to all the other members of the Appellate Committee of the House of Lords, whilst the present Senior Law Lord is also on record as favouring a new supreme court separate from the House of Lords.21 In principle the active Law Lords can take part in the legislative work of the House of Lords, though in practice they rarely do except in relation to highly technical ‘lawyers’ law’. The position of retired Law Lords is less restricted and some of them do contribute to the legislative and scrutiny work of the chamber, bringing to it a useful element of legal expertise. Second, it has become very common in the course of the past thirty or forty years for governments to call upon judges to undertake a variety of investigative tasks for which they are held to be peculiarly well qualified. These have included chairmanship of long and exceedingly complex inquiries such as the arms for Iraq affair, the Dunblane massacre of school


children, or the inquiry into BSE.22 It is not only ministers who tend to be all too ready to ask judges to undertake such investigations. There is also often a widespread public sentiment in favour of asking a judge to inquire into events and actions which have shaken public confidence. Clearly judges are thought to have the skills, experience and the integrity called for on such occasions, and especially if the inquiry is to be held in public. Such demands on the judiciary do, however, entail certain disadvantages. For a relatively small judiciary the absence of two or three senior members for a year or two or even longer on investigative duties represents a serious loss both for the courts and for litigants. Furthermore, the recourse to judges by the executive for inquiry into what are often serious shortcomings and failures on the part of executive bodies or even particular officeholders does bring the judges concerned into the political arena. They may have to pass judgement on politicians or officials, and certainly on procedures and policies that have run into trouble. As a rule judges express themselves with care and prudence, so that their reputation for impartiality and accuracy is not undermined by the political sensitivity of the matters they often have to investigate. Nevertheless, this aspect of the calls made on members of the judiciary does underline the extent to which judicial and executive roles and functions are brought near to each other. Awareness of this situation might well lie behind Lord Irvine’s attribution to the judiciary of a role in government. Finally, there is the contribution that judges make to public debate and understanding. Some of this simply occurs through the normal operation of the courts and the publication of judicial conclusions and opinions. Some of it derives from the out-of-court activities of judges as legal experts and scholars, in which capacity they may write articles for learned journals, give lectures or even write books. There is also something like a function of expressing society’s moral conscience, most obvious in the remarks made by judges when sentencing in criminal cases. It is not often appreciated that in many countries judges refrain almost entirely from expressing moral as opposed to legal conclusions so explicitly. These contributions of the judiciary to the formation of opinion are facilitated not only by the social prestige enjoyed by judges but also by the simple fact that the higher reaches of the judiciary remain small in number and thus constitute a relatively cohesive group with a shared experience as lawyers and members of a private and jealously independent profession. They are used to expressing their opinions publicly and to audiences wider than legal specialists to an extent that is less likely to be found in the case of wholly professional stateappointed judicial services. Decked out in antiquated finery and still attached to the fashion of wearing wigs that went out by about 1800 the British judiciary has often been criticised for its remoteness from ordinary life and a somewhat exaggerated notion of the respect due to it. Much of this critique has little foun-


dation in fact, though the judicial taste for old-fashioned costume does expose the judicial bench to the risks of mockery in an age in which outward finery is no longer viewed as one of the props of authority. But whilst the judiciary as represented by the High Court is set on something like a pedestal, it is also necessary to remember that at the other end of the scale, as already mentioned, there is in England and Wales a large and active lay magistracy whose members deal with well over 90 per cent of offences. Magistrates courts are supported by legally qualified staff who assist and advise in their deliberations. But it is the members of this lay body who have to take the responsibility for deciding on guilt and on appropriate penalties. The lay magistracy testifies to the large element of lay participation in the administration of justice, and thus represents a significant constitutional commitment in the British justice system. Whenever suggestions have been made calling for a reduced role for lay magistrates or even their replacement by professional courts of first instance, the conclusive objection to such a change has been that the lay magistracy ensures that ordinary citizens do have the chance to play a part in the administration of justice in their communities. Nor is this defence of a lay magistracy seriously weakened by the objection that magistrates have until recently been predominantly middle class in outlook and experience. This may have been the case in many parts of the country half a century ago, but more recently under the influence of local advisory committees magistrates have been drawn more widely from most levels of society. So a lay magistracy survives amongst other reasons for the fact that it has a democratic flavour about it, opening the administration of justice to popular involvement. It is striking that much the same argument is deployed on behalf of the retention of lay juries for the trial before a judge of those indicted on criminal charges. It has been a prominent feature of English court proceedings in criminal matters for centuries that defendants have the right to have the facts of the case determined by a jury of their ‘peers’, that is, their equals. This means nowadays a panel of 12 persons selected at random from the electoral roll of the area where the trial is taking place. The task of the jury is to reach a decision on matters of fact and thus to bring in a verdict on the guilt or otherwise of the accused. In contrast the judge is there to ensure that the well-established procedures guaranteeing a fair trial are observed, to listen to the evidence, to give legal guidance where necessary, and finally to advise the jury on the whole case as presented to the court. This separation of functions in a criminal case is analogous to the distinction between questions of legality and those of policy familiar in other judicial contexts: the jury determines ‘policy’ in the sense of the outcome of the trial, the judge safeguards fairness and legality. What the jury has in common with the lay magistracy is the inclusion of ordinary citizens in the processes of dispensing justice. This suggests the conclusion that the administration of justice in Britain still embodies the notion that consent to its operations is more easily maintained if there


remains a substantial degree of popular involvement to offset the what often appears to be the remoteness of irremovable judges.

Notes 1. Changing the Constitution: the Process of Constitutional Change, 4th Report of the Select Committee on the Constitution, HL 69, 2001–02, Minutes of Evidence, p. 5. 2. Sir Jonah Barrington, a judge of the High Court of Admiralty, was removed from office in 1830 after being found guilty of embezzlement. 3. Official judicial statistics are somewhat confusing in presentation: the figure of 800 does not include district judges and recorders. 4. The statistical sources are again unclear. The figure in the text is taken from the official yearbook UK 2003: Statistics. But in the consultation paper Constitutional Reform: a New Way of Appointing Judges, Department of Constitutional Affairs, July 2003, the figure of 30,000 is given on p. 32. The higher figure might be thought to include Scotland, but there are signs in the consultation paper that it really applies only to judicial appointments for England and Wales. 5. J. A. G. Griffith, The Politics of the Judiciary, Fontana 1977, offered a widely read critique of the judiciary as it then was, though more on account of the kind of arguments judges used than of social or political bias. A recent treatment of the same topic is to be found in R. Stevens, ‘Government and the Judiciary’, in V. Bogdanor (ed.), The British Constitution in the Twentieth Century, OUP for the British Academy 2003, pp. 333–72. 6. Lord Bingham, the senior Lord of Appeal in Ordinary, underlined this point when giving judgement in Regina (Quintaville) v Secretary of State for Health, HL 2003, as follows: ‘The court’s task, within permissible bounds of interpretation, is to give effect to Parliament’s purpose.’ He went on to cite with approval Lord Wilberforce’s views on interpretation expressed in a case in 1981, in particular that the courts had no right to fill in legislative gaps. 7. Jeremy Bentham (1749–1832), the philosopher of full-blooded utilitarianism, wrote extensively on law and legal issues and was a thorough-going positivist; so was J. Austin (1790–1859), author of The Province of Jurisprudence Determined (1832) in which he presented what became an influential theory of law as a species of command. 8. Some social philosophers have vigorously defended the superiority of a system of common law as a flexible means of adapting society to changing needs and values through the processes of litigation and judicial interpretation. See F. A. Hayek, Law, Legislation and Liberty, 3 vols, Routledge 1973–79, in particular Vol. I, Rules and Order. 9. There was judicial disquiet about the growth of ministerial powers in the late 1920s and early 1930s: Lord Hewart, The New Despotism, Ernest Benn 1929, gave vivid expression to this. But after 1939 the mood on the judicial bench changed drastically and became with only a few notable exceptions amongst the judges highly favourable to executive discretion. 10. Much has been written about the Crichel Down affair which had immediate political effects and longer term implications for the development of administrative law in Britain: note 10, Chapter 5 refers. 11. Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (HL). 12. Anisminic v Foreign Compensation Commission [1969] 2 AC 147. 13. Conway v Rimmer [1968] AC 910.

The Judiciary in the Constitution 157 14. Cited in C. Turpin, British Government and the Constitution: Text, Cases and Materials, 4th edn, Butterworths 1999, p. 529. 15. Ibid., p. 529. 16. Lord Diplock made these remarks in the course of giving judgement in the case Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410. 17. Associated Provincial Picture Houses Ltd. v Wednesbury Corpn [1948] 1 KB 223, 230.9+6203. 18. Since becoming Home Secretary in 2001 the present holder of the office, Mr David Blunkett, has frequently criticised particular court judgements and even individual judges. 19. In the case Starrs v Ruxton the High Court of Justiciary in Edinburgh decided in November 1999 that the use of temporary sheriffs in Scotland breached a plaintiff’s right to a fair hearing before an independent and impartial tribunal under Article 6 of the European Convention on Human Rights. The conclusion was reached entirely on formal procedural grounds, namely, that because the sheriffs were temporary they could not be regarded as wholly independent of the executive in the person of the Lord Advocate for Scotland who had been responsible for their appointment. This meant that full-time, permanent sheriffs had to take the place of their temporary colleagues in order to meet the requirements of the Convention. No suggestion of executive impropriety of any kind or of any actual risk of injustice was made in the course of this case and others on the same issue. They stand out as striking examples of pure formalism taking precedence over practical experience. 20. Under the Supreme Court Adjudication Act 1873 it was intended to establish a new final Court of Appeal and to abolish the judicial role of the House of Lords. The Act was never implemented and then replaced by the Appellate Jurisdiction Act 1876 which professionalised the Appellate Committee, but left it in the House of Lords. 21. Lord Bingham of Cornhill, the senior Law Lord, has set out his reasons for favouring the establishment of a supreme court separate from the House of Lords. See ‘A New Supreme Court for the United Kingdom’, Spring lecture for the Constitution Unit UCL, published by the Unit 2002. Lord Bingham’s preferred option closely resembles the model proposed in CP 11/03 July 2003, published by the Department for Constitutional Affairs. 22. A spectacular recent example of resort to judicial inquiry is the appointment of Lord Hutton, a Law Lord, to inquire into the circumstances leading to the death of a Ministry of Defence weapons expert, Dr David Kelly, after his suicide in July 2003. See also Chapter 6, note 21.


Part III Reshaping the Constitution


8 The Customary Constitution in the Melting-pot

The reform agenda The preceding chapters have sought to show how any assessment of the nature of the British constitution very quickly has to embrace an evaluation both of institutions and of long-established, though continually changing political habits and conduct. To an unusual degree in comparison with many other democratic societies the constitution has been chiefly something like a commentary on how the country is governed, supplemented to some extent by reference to the legal conditions under which citizens may seek protection of their rights. This constitutional tradition, embodied in institutions and practices that may conveniently be characterised as the customary order or constitution, has had remarkable powers of endurance since something like modern parliamentary government was firmly established in the middle of the nineteenth century. Of course there has since been an uninterrupted process of adaptation to many and varied political demands and there has been no shortage of institutional changes and adjustments in the course of the last century to meet the ever-changing practical needs of government in an epoch marked by steadily expanding public powers, services and expenditure. Despite that, however, many continuities were maintained in the ground rules governing public life, and as a result it remained possible to regard the constitution as an outstanding example of how to combine pragmatic adaptation with fidelity to underlying principles and values. In recent years a different view of the matter has moved into the ascendant. The capacity of the customary constitution to endure and in some mysterious way to deflect and even transmute demands for reform is still widely acknowledged, and even sometimes praised by politicians. Yet this is not now always seen as on balance a virtue, but rather as a sign of an inability to change in the face of new and imperative demands and as an indication that the ‘old order’ as it might be called has run its course and needs to be radically reconstructed. 161


Among the principal criticisms of the constitution in recent years has been the claim that it facilitates the concentration of power in the hands of narrow political elites operating chiefly in London, that it thereby encourages an over-centralised pattern of executive government, that it tolerates and sustains unnecessary secrecy in public affairs, that it has taken too narrow a view of human rights with the effect that citizens have been forced to look to external jurisdictions to fill the gaps existing in their own law, and that it has failed to provide that degree of equal treatment and equal access to the means of political empowerment and individual achievement to which the citizens of a mature democracy are entitled. Such in broad terms has been the main thrust of the contemporary critique of the constitution. This critical assessment cannot be lightly dismissed. Much of the running in the reform debate has been made by academic writers on government, politics and constitutional law, but there has also for many years been a steady contribution from practising lawyers, including even a few judges, and from a wide range of private organisations (many of them so-called ‘think-tanks’) concerned with the study and analysis of various aspects of public affairs, the legal system and political life. As a result of these varied efforts over the past twenty years or so a serious case has often been presented to back the call for changes of various kinds.1 The customary constitution has, so it has been argued, increasingly failed to live up to the standards and principles which in theory it was meant to embody. First, it has to be recognised that it has failed to take proper account of a number of crucial political developments. Foremost amongst these has been the relentless consolidation of disciplined and competitive political parties during the last century. Particularly after 1945 these parties – and in reality there were only two that mattered – claimed carte blanche to govern and to fulfil their electoral commitments, their mandate as it came to be known, whenever they gained a majority of seats, no matter how small, in the House of Commons. On this basis it became reasonable to talk of ‘elective dictatorship’ as the political consequence of such conditions.2 Yet the constitution hardly took any notice of these changes. To a remarkable degree House of Commons’s procedures continued to reflect the ideal of a Parliament of independent Members (which never existed any way) dedicated to the vigilant assertion of their rights of control over the executive. But the reality was the dominance of parties and their leaders, and the continuing confrontation of government and alternative government. Inevitably these political realities have steadily reduced the scope for holding a government to account and for compelling it to modify its policies in the face of criticism and opposition. Thus a cardinal feature of the customary constitution – the control of the executive by Parliament – became as a rule little more than the routine response of politicians defending the status quo. A second criticism of Parliament – and bearing more directly on the failings of the Commons than of the Lords – has been that for a long time now

The Customary Constitution in the Melting-pot 163

Parliament has failed to discharge an effective role when legislating. Hasty, ill-considered and often unworkable legislation has been easily passed because governments have generally been willing and able to mobilise the support of compliant majorities. What is more the Commons has been all too willing to resign its law-making functions to the executive, accepting that the drafting of legislation is essentially an executive activity, and that any way much of the consequential detail will be filled in by administrative orders (statutory instruments as they are called) over which Parliament exercises little influence or control. The willingness of the Commons to allow its own legislative capacity to atrophy has had the further effect of encouraging among Members of Parliament an increasing indifference to and even intolerance of subsidiary bodies, including most notably local authorities. It has become almost a truism to assume that it is acceptable for them to be subject to often arbitrary legislative regulation or administrative direction. In this way a steadily intensifying centralisation was encouraged under constitutional traditions and conventions that had previously often been understood to point in quite different directions. A third source of dissatisfaction with Parliament’s performance in recent years has stemmed from its inability to adapt easily to the consequences of membership of the European Community and Union. Membership of the European Union has always presented serious constitutional difficulties despite the widespread reluctance on the part of most politicians to admit this or to face up to the task of defining them. But whilst the executive arm of government has on the whole been able to adapt to the routines of working within the European Union framework, Parliament, not surprisingly, has continued to see its authority eroded by membership and resents the threat to its supremacy as this has been understood under the customary constitution. In short no agreed and publicly recognised definition of the relationship between Parliament and the arcane institutional arrangements of the European Union has been achieved. Indeed, no real effort has been devoted to clarification of what remains a distant and sometimes uncomfortable relationship. Political hostility to many of the policies pursued by the governments of Mrs Thatcher, and especially during her later years in office, was another factor fuelling the call for changes in the way Britain was governed. Issues affecting human rights and the alleged inadequacy of traditional methods of safeguarding them also came to the fore during this period. In the wake of a rising tide of critical comment on institutional failings and constitutional inadequacies the case for far-reaching reforms was built up, especially in the years after 1990 when Mrs Thatcher was replaced by Mr Major. In Scotland, where the Conservative party was in what looked like terminal decline, the Scottish Constitutional Convention was set up in 1989 on the initiative of those political parties willing to take part and of private organisations and individuals. This body made an important contribution to


reviving the case for devolution and to working out proposals to that end. An increasing number of advocacy organisations – often presenting themselves as research bodies or ‘think-tanks’ – took up different elements in the reform agenda and made their contributions to the argument. Fairly quickly it became in many quarters, and especially amongst academics and journalists hovering on the margins of politics, something like the ruling orthodoxy to hold that the constitution was pretty well played out and needed radical therapy. After 1994 the leadership of the Labour Party moved steadily in this direction, so that by 1997 the party could proclaim its commitment to a far-reaching range of constitutional reforms in its election manifesto.3 These included ‘a modern House of Lords’, an ‘effective House of Commons’, devolution for Scotland and Wales, a freedom of information act, restoration of elected institutions in Greater London, ‘good local government’, ‘real rights for citizens’ and pursuance of the peace process in Northern Ireland. At this stage the initiative in relation to achieving this programme of constitutional reform passed entirely to the politicians. In parallel, however, with this commitment to the cause of constitutional change the new leadership of the Labour Party was also doing its best to commit the party to a substantial part of the economic policies pioneered by Mrs Thatcher and carried further by her successor. It might, therefore, be argued that the conversion to the cause of constitutional reform represented an attempt to fill what was seen by many supporters of ‘New Labour’ as an ideological gap created by the determination of the party’s leadership to move decisively towards support for the market economy and the policies entailed by that move. Yet whilst the impression has been created that all contemporary constitutional reform stems from the election of a ‘New Labour’ government under Tony Blair in 1997, this is in many respects misleading. Changes of a constitutional nature were made between 1979 and 1997, even though neither Margaret Thatcher nor John Major was keen to describe them as such. Indeed the former took a close interest in constitutional reform possibilities before her election victory in 1979, but on coming into office her attention was focused mainly on the economy and measures intended to reinvigorate markets.4 Her successor was deeply involved in bringing about one big constitutional shift, the Maastricht Treaty, but his preoccupation with disagreements on European issues within his own party led him to play down the treaty’s constitutional significance. What is more, some of the developments in the organisation of government and in relation to the extent of state responsibilities that took place in the twenty years after 1979 became well established and have endured. It is worth indicating what some of these were, partly to correct the notion that all recent constitutional reform dates from 1997, and partly because it serves to show that pragmatic adaptation still had a major part to play in the approach to constitutional change.


Right at the beginning of Mrs Thatcher’s time in office a full range of departmental select committees was set up which has provided the backbone of the House of Commons’s scrutiny system ever since. The whole process of administrative deconcentration within the central administration was launched in 1988 with the setting up of the initial executive agencies, known simply as ‘Next Steps’ agencies. Despite some modifications this dispersion of many of the executive activities undertaken on behalf of central departments is a familiar feature of the present administrative landscape. And it should be added that no satisfactory solution has yet been found for the constitutional difficulties still associated with the attempt to run in harness the accountability of ministers and that of officials publicly in charge of the provision of services, often provided under statute. Similarly the process of exposing civil servants to at least some of the disciplines of internal accountability for performance goes back to Mrs Thatcher’s effort to instil an efficiency ethos into the civil service and to impose something like a business model on public administration. All this endures, and in fact has intensified during recent years. Yet another aspect of contemporary reform efforts has its roots in Mr Major’s attempt to put the customer and consumer of services in the foreground by committing his government to a Citizens’ Charter.5 Though the Charter has slipped out of view now and was never intended to have direct and binding constitutional effects, the example lives on. Hardly any contemporary official document dealing with public services fails to put the customer, the consumer or the stakeholder (whatever these terms may mean) at the centre of its concerns and thus affirms at least by implication that all citizens have something like a constitutional right to receive a very wide range of services and benefits. To illustrate the approach to constitutional change in a very different sphere, it is worth alluding also to Northern Ireland and its troubled experience. For the most part bi-partisan policies in relation to the handling of the conflicts in the Province were maintained throughout the past twenty years, and indeed still further back. A crucial aim of policy was to achieve some degree of consensus on a political solution to the conflict between the two communities in Northern Ireland which would permit a return to devolved government. This outcome eluded Mr Major, but it did crown the strenuous efforts of Mr Blair when he brought about the Belfast Good Friday Agreement in 1998 and thus secured a basis for the setting-up of devolved institutions in the Province. Finally, even in the politically far less contentious area of judicial review of executive powers it needs to be remembered that it is in the period after 1977 and the Supreme Court Act of 1981 that the contemporary revival and significant extension of judicial control gathers momentum. And it is through calling into play the procedures of judicial review that the recent innovation of a code of human rights is often brought into play.


The rhetoric of reform: democratisation and modernisation The election of 1997 and its outcome did not in fact mark the dawn of a radically new age in the constitutional evolution of the United Kingdom. Some degree of piecemeal adaptation had been going on throughout the preceding years. Nevertheless the advent of the Blair Government did usher in important changes and at three levels – that of rhetoric, that of underlying assumptions about the nature of the British constitution, and that of specific commitments to constitutional legislation. Right from the start, and indeed well before the election of 1997, the Labour leadership had begun to characterise its programme of constitutional reform as one of democratisation and modernisation. These are slogans that continue to be used and are regularly invoked in reports dealing with the improvement or reorganisation of existing services. In principle it should have been possible for some specification or even definition of what these guiding principles or commitments in relation to constitutional reforms were intended to mean. But nothing substantive or persuasive of that kind has been provided, and so these words have functioned almost entirely just as slogans. Modernisation is obviously a loose and flexible term that can easily be used indiscriminately to recommend whatever it is proposed to do and to condemn implicitly or explicitly whatever arrangements are being changed. It lacks substantive content unless an effort is made to indicate what specific values or purposes the modernising changes are intended to further. Democratisation is in the contemporary world not much better.6 In theory it is possible to specify what kind of changes might be deemed to advance democratic practices and so bring about more ‘democracy’. But in practice this hardly ever happens. It might be claimed (and indeed has been often enough) that the establishment of a Scottish Parliament would of itself bring more democracy to the people of Scotland. As a broad political generalisation something might be said for this claim: institutions of self-government have been set up for Scotland, a new representative institution established based on new voting rights for people living in Scotland, and new opportunities have been created for a specifically Scottish public life to develop and for public authorities in Scotland to respond to needs expressed there. But acknowledgement of the persuasiveness of these claims does not prove that the changes they have involved have actually resulted in a qualitative improvement of democracy in Scotland. This is a matter for evaluation in the light of complex and often ambiguous evidence, and in any event only after there has been more experience of the broader consequences of the changes made. Moreover, it is easy to discern current examples of constitutional reform justified by an appeal to democratisation which are manifestly open to question. Whilst the use of party lists for elections in various contexts such as the new devolved assemblies and the European Parliament may lead to greater fairness for participating parties, for the ordinary voter the democratic balance sheet may


not record a plus at all. The possibility of introducing directly elected mayors in English local authorities may not mean much if hedged about with provisions which make it easier for councils to retain and even strengthen forms of internal organisation that are oligarchical rather than democratic and restrict scope for effective and public critical scrutiny. And it is hard to see how the replacement of hereditary members of one chamber of Parliament by yet more appointed persons can seriously be regarded as a move towards more democracy, no matter what may be the case for such a step. These are but a few examples of the weakness of the democratisation plea. If taken seriously, to democratise must mean to introduce more opportunities for popular participation into the structures of political representation and decision-making. This is not only difficult to achieve in a society already equipped with numerous representative institutions resting on universal suffrage, but it has to be recognised that there are serious counter-arguments against the case for ‘more democratisation’. It is at least conceivable that the real need is for more responsiveness and greater competence both from those who are already democratically elected to positions of authority at all levels of government, and from the bureaucracies acting on their behalf. But the way to achieve this might not be via more opportunities for democratic participation as conventionally envisaged: what may be called for is a complex mixture of institutional reform and improved knowledge and awareness on the part of citizens. It is precisely at this point, however, that the brittleness of the democratisation argument is exposed. There is unfortunately not a large amount of evidence indicating that citizens do generally want to make more vigorous use of either their rights to participate by voting or the opportunities they have to contribute to the maintenance of responsiveness in government. Indeed, the current wisdom is that voter apathy is increasing and that new ways should be found of making it easier for voters to exercise their rights. Whatever may be the validity of these claims, there can be no doubt that citizens do now see themselves and are explicitly encouraged by the institutions of government and most of the organs of opinion formation to see themselves primarily as consumers of services. But this shift of perception away from citizens as bearers of rights and of civic duties has occurred in the wake of an unprecedented wave of cultural popularisation that is held to legitimise virtually any claim that appears to have popular backing. It is this context that has facilitated both the appeal to democratisation and the belief that there is no need to define what it means. Instead, to promise changes which it is assumed on one ground or another are popular and correspond to what most people want is presented as a shift towards more democracy. The frequent invocation of opinion polls (equivalent in fact to a kind of consumer research), the use of focus groups to sound and test attitudes to policies proposed, the widespread resort to consultation exercises usually structured to produce the outcomes desired, these are familiar examples of how popular opinion is apparently


brought into the equation of public policy-making. However, even if such practices do sometimes make a modest contribution to identifying what are perceived as public needs and preferences, and thus to making government more responsive to them, this does not amount to democratisation or a more vigorous democracy. Indeed, such developments may signal the emergence of a populist view of how governments should behave that has little to do with democratic citizenship or with representative government. In short the plea for greater democratisation usually functions as a somewhat crude political slogan, though one with resonance for many different groups in a society increasingly shaped by populist demands and popular values.

Discarding history and tradition These comments on some aspects of the rhetoric of constitutional reform hardly do justice to the complexities and ambiguities of the changes that have been taking place for some time in the language of politics and of public life generally. But they may have gone far enough to indicate the extent to which these changes have culminated in the emergence and wide acceptance of certain simplifying concepts which could be used to bring the reform programme into focus. The issue of changes in the underlying assumptions about the character of the British constitution can be dealt with more briefly. The British constitution has been widely assumed to exemplify Edmund Burke’s famous characterisation of political order – and that of Britain in particular – as having the nature of a compact between the dead, the living and those yet to come.7 In other words, it lives and flourishes only through practices and traditions handed down, expressive of continuity in the society and to be modified only when there is a clear need to do so for the public good. Even those who have viewed the Burkean compact with scepticism have nonetheless generally agreed that a constitution of the British kind had to rely extensively on an appeal to tradition, past experience and precedent. Without that it can have little in the way of normative underpinning. After all, was not the case of the parliamentary opposition to Charles I initially at least that he had abused his powers and done things not sanctioned by tradition and legal precedent? In relation to present constitutional reform what appears to have taken place is an almost lighthearted dismissal of the appeal to past experience, institutional continuities and tradition. The past is no longer held to have much to say to the present, except perhaps where it is politically convenient to allow such an appeal to be made, notably in the case of the monarchy as an institution. Yet even in this regard it is fashionable to talk of ‘modernising’ the monarchy as if it were a piece of failing machinery or a dilapidated house. The dismissal of the appeal to past experience is, of course, merely the obverse of the plea for modernisation. It implies that there is no need to justify a change by


reference to current ills and the practical benefits of the reforms proposed. Instead change is taken to be a good in itself and the onus of showing that it is not is shifted to those who are doubtful about it. As far as the British constitution goes the bias in favour of change for change’s sake has very serious implications. The preservation of continuity and the appeal to conventions held to be established by precedent have been the basis on which much constitutional argument has always taken place and on which important liberties and rights were safeguarded. Once the past is discounted and becomes more or less disposable for the sake of satisfying current desires or needs, the British constitution becomes an extremely fragile and tenuous thing. It runs into the danger of losing most of its normative content and thus of failing to perform the most elementary functions of any constitution, that is, providing a framework for both the conferment of political authority and the effective limitation of its use. Towards the end of his famous study of what was then the new democracy in the United States of America, Tocqueville saw as one of the dangers facing the great political and social experiment he had surveyed the disappearance of an awareness of the past and of what might be learnt from past experience: ‘as the past has ceased to throw its light upon the future, the mind of man wanders in obscurity’.8 When the experience and practices of the past are discounted in an effort to reform a customary constitution like the British the reformers certainly run the risk of ‘wandering in obscurity’. Whether, however, a large part of the population of contemporary Britain is alive to this risk or is ever seriously disturbed by the constant erosion of tradition, social convention and firmly established practices in public life and politics that has been taking place is difficult to determine. Some evidence points to a fluidity in social life which has dissolved much of the foundation for any form of customary constitution, while there are also grounds for concluding that, whilst constitutional matters do not interest most voters, the majority of them do appear to have a distinct preference for sticking to what is familiar and have little faith in the alleged benefits of repeated institutional refurbishing. What can hardly be overlooked, however, is that recent constitutional changes have with only qualified exceptions so far done little to establish public support for alternative values which might replace the appeal to past experience and precedent on which the customary constitution has always been so heavily reliant. The principal items in the reform programme initiated in 1997 will be examined in the next three chapters. They will be followed by a consideration of the recent evolution of the European Union and its relevance to the programme of constitutional reform. After that some broader conclusions on the reshaping of the constitution are offered. Three items were at the top of the original agenda: the enactment of devolution schemes for Scotland and Wales and, when sufficient agreement could be found, for Northern Ireland; the passage of legislation to make the European Convention on


Human Rights binding in British law; and the removal of the hereditary element in the House of Lords as at least a first step towards complete reform of the second chamber’s composition. The first of these commitments was to require three complex pieces of legislation to set up devolved legislative and executive institutions and to confer new political rights on about 15 per cent of the British population. The second did not involve much in the shape of institutional innovation, but it did set out in statute new norms defining human rights which were to bind existing institutions, including the legislature, and to give citizens new opportunities to challenge actions alleged to infringe their rights. The third principal commitment was much narrower in scope and affected a single institution, the House of Lords. Yet it turned out to be difficult to enact without concessions and even at the time of writing the process of reforming the composition of the second chamber is far from concluded. These were the most prominent measures of constitutional reform to be taken in hand, all of which required legislation. But there were other changes carried through that were certainly presented as reforms, even though they were not always treated as explicitly constitutional in status. In parallel with reform of the House of Lords there was a commitment to ‘modernise’ the House of Commons, and for this purpose a Modernisation Committee was set up in 1997. This effort has continued until the present time, though its results have been fairly modest, in part a result of the fact that this is a sphere in which the government of the day, even if backed by an exceptionally large majority, cannot simply impose its will. Then there was the establishment of a Greater London Authority and a directly elected mayor for London, a measure which could be seen either as an example of devolution or as a gesture in the direction of a reinvigorated local government system. There was a commitment to pass a freedom of information measure, a promise discharged in the Freedom of Information Act 2000, much of which has not yet come into force. Whether this statute really has substantial constitutional significance must remain at present doubtful. Then there were changes in British electoral law to introduce various methods of proportional voting at several levels of the system of government. These were chiefly direct consequences of some of the constitutional reform measures just mentioned. Though it can be argued that, provided the principle of universal suffrage is accepted, electoral law on its own does not have constitutional status, the strength so far of the tradition of relative majority voting in Britain does mean that departures from that principle are in fact likely to have profound constitutional implications. In addition a variety of factors has since 1997 resulted in far more open recognition of political parties and regulation of important aspects of their internal affairs. This is a trend that also has a direct impact on traditional constitutional assumptions about the terms on which political life is to be conducted. Associated loosely with parties and innovations in electoral law


has been a tentative shift in favour of popular votes and the procedure of referendum. This has so far been limited in scope, but if pursued more vigorously could be taken as a serious attempt to introduce more democratic opportunities, even though as noted previously it is a practice that stands in sharp contrast to the claims made on behalf of Parliament as the embodiment of the ideals and practices of representative government. Finally, there has been a continuing acceptance of further substantial steps towards integration within the European Union, many of which in theory clearly imply the gradual absorption of new but so far undefined constitutional relationships. The busy legislative activity of the three years after 1997 was devoted extensively to what was hailed by the government as the fulfilment of a radical programme of constitutional renovation and renewal. Specific items in the programme were mainly justified by reference to particular problems demanding political solutions like the pressure for devolution in Scotland and the urgent need to make progress towards the pacification of Northern Ireland. But little effort was made to indicate what might be the qualitative differences in constitutional relationships and associated benefits to citizens that the reform programme was intended to bring about. Understandably it was widely asserted that devolution in particular would satisfy a variety of legitimate demands for new political rights and opportunities for selfgovernment. But this was not set into the context of wider national interests: it remained much more like an offer to satisfy rather narrow sectional demands. Looked at from the perspective of previous historical experience there is, however, no reason to conclude that the absence of well-developed arguments and justifications for the constitutional reform programme was in any way unusual. It was put forward and defended measure by measure in a pragmatic, politically opportunistic manner much as earlier reform programmes, for example, in and after 1832, after 1906, after 1945, and after 1979 were proposed and defended. In some of these earlier periods of reform the emphasis was more on social and economic changes than on constitutional innovation. All do, however, reveal a similar reluctance to advance reforms on the basis of something like an overall plan or scheme. Instead, there was a preference for proceeding from one issue to the next one, building step by step on each measure of change successfully put into place. Certainly at first sight the constitutional reform programme of the years after 1997 seems to follow the same pattern and to repeat the familiar pursuit of pragmatic adaptation so often achieved in the past. If this were indeed the case, then it would not be surprising if the outcome, from one perspective at least, had left the constitution very similar in nature to what it has always been: a collection of practices, sanctioned by law, political judgement and prevailing habits, that is understood by the participants in them as summarising the permissible way of governing the country. These practices are subject now as in the past to a process of continuing and


sometimes baffling adaptation, a testimony to the art of muddling through and to the fact that a customary constitution is always engaged in accommodating new customs and habits. This represents a benign and optimistic view of the present wave of constitutional change and, as will be suggested later, may seriously overestimate what now survives of the customary order.

Notes 1. For a thoughtful examination of constitutional reform proposals see R. Blackburn and R. Plant (ed.), Constitutional Reform: the Labour Government’s Constitutional Reform Agenda, Longman 1999. Appendix 1 of this volume contains ‘A New Agenda for Democracy’, the 1993 report of a Labour Party Policy Commission, and Appendix 3 provides relevant extracts from the 1997 election manifestos of the three main parties. A stimulating critique of the constitution as it was a decade ago from a more traditionalist standpoint is to be found in F. Mount, The British Constitution Now, Heinemann 1992. 2. The term ‘elective dictatorship’ was put into circulation by Lord Hailsham in his Dimbleby lecture 1976, delivered under that title. See also his book, The Dilemma of Democracy: Diagnosis and Prescription, Collins 1978. 3. Blackburn and Plant, op. cit., Appendix 3. 4. As Leader of the Opposition Mrs Thatcher appointed a party committee on House of Lords reform, chaired by Lord Home of the Hirsel. This resulted in The House of Lords: the Report of the Conservative Review Committee, published in 1978. She was also deeply involved in intra-party discussions and arguments about devolution. 5. Citziens’ Charter, op. cit., Chapter 5, note 13. 6. G. Graham, The Case against the Democratic State, Imprint Academic 2002, provides a trenchant critique of the contemporary language of democracy. 7. It is doubtful, however, whether Burke had anything like an organic theory of the state or society: he was too much of a utilitarian for that. See J. C. D. Clark (ed.), Edmund Burke: Reflections on the Revolution in France, Introduction, p. 87. 8. Alexis de Tocqueville, Democracy in America, World Classics edition, OUP 1959, p. 595.

9 Institutional Innovation: Devolution and Decentralisation

Much of the reform put into effect since 1997 has required legislation to establish new institutions. The most elaborate and ambitious elements in that part of the reform programme have been the three devolution measures to set up elected assemblies in Scotland, Wales and Northern Ireland. This legislation needs to be looked at in some detail, chiefly in order to throw light on how the devolution schemes have been designed and embodied in law, and how they differ one from the other. By this route it will also be possible to say something about the constitutional thinking underlying these measures. With regard to the effects of the various devolution schemes and the manner in which they have operated during the two years or so before the time of writing no attempt will be made to offer an assessment. To do so would call for a major exercise in the analysis of contemporary political and administrative developments and this was plainly impossible in the present context. Consequently, the assessment of consequences both in this chapter and later in this book is confined to the underlining of what might be regarded as some of the obvious effects of the creation of these new institutions, especially in relation to their bearing on other parts of the British institutional structure. Since devolution clearly exemplifies an effort to decentralise powers and responsibilities from the central political institutions to subordinate levels of government, it is appropriate to add to the consideration of devolution some remarks on other legislative measures and proposals intended to promote at any rate some degree of decentralisation at the level of local and regional governmental institutions.

Devolution models: the scheme for Scotland From union to devolution As a nation that once enjoyed political independence from England Scotland has a long history of efforts to maintain or regain elements of that former independence. This alone means that in the context of modern 173


debates about devolution the claims put forward on behalf of Scotland have always received something like a privileged hearing compared with the reception of those relating to other parts of the United Kingdom. This is understandable given the history of the relationship between England and Scotland. From 1603 to 1707 the crowns of the two countries were united, though each continued to be governed under its own laws and institutions. The Treaty and Act of Union of 1706 and 1707 brought about the absorption of the Scottish Parliament into the Westminster Parliament which could henceforth claim legislative supremacy over Great Britain, as the new state was then entitled. But the Treaty of Union also guaranteed certain special privileges for Scotland: the status of the Church of Scotland as an established, self-governing church was safeguarded; the universities and schools of Scotland remained protected against interference from England; and a substantial body of Scots law remained in force, subject to interpretation by Scottish judges and courts. Moreover, in the passage of new legislation it gradually became the practice to pass separate measures at Westminster for application in Scotland when some variation from the terms laid down for England seemed desirable. Executive government was for a long period a confused mix-up of political managers (usually Scotsmen), lawyers and special-purpose administrative authorities. But with the appointment of a member of the British government as Secretary for Scotland in 1885 the executive arm began to be rationalised and brought under something like unified control.1 In 1939 the Secretary for Scotland became a Secretary of State and all the administrative services reporting to him were brought together in the Scottish Office in Edinburgh. This structure of devolved administration, allowing to Scotland a voice in the British cabinet, was to endure until the Scotland Act 1998. This provided for the establishment of representative institutions in Scotland, a Parliament and an Executive, to which full responsibility for a wide range of domestic governmental functions was transferred. Administrative devolution, despite the undoubted benefits it often brought to Scotland in terms of preferential financial treatment, a reliable and non-corrupt administration, and a steadily increasing degree of special attention to Scottish legislative requirements at Westminster where Scotland was substantially over-represented in relation to the size of its electorate, never enjoyed widespread popularity. Thus it is not surprising that throughout the fifty years after 1945 there were recurrent calls for some kind of political devolution. So long as the Conservative and Unionist party was a powerful force in Scotland – and in 1955, for example, it still held more parliamentary seats than Labour – political devolution had little chance of being realised. But during the 1960s this bulwark began to weaken and the Scottish National Party, committed in principle to Scottish independence, began to make some progress. This was enough to jolt the then prime minister, Harold Wilson, into appointing in 1969 a Royal Commission on the

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Constitution. In fact this Commission did not have a remit to examine ‘the constitution’ in any broad and coherent sense of that term, but was confined essentially to looking into the possibilities for devolution in the whole of the United Kingdom apart from Northern Ireland, which at that time still had its own devolved institutions. The Commission, chaired for most of its duration by Lord Kilbrandon, a Scottish judge, ultimately produced a long report in 1973, notable chiefly for the range of options offered and the breadth of disagreement it revealed.2 Despite this the second Wilson Government which came to power in early 1974 without a clear majority decided to proceed with a scheme of devolution for Scotland and Wales. After further consultations and amid heated debates both in Scotland and at Westminster legislative measures were prepared and eventually passed in 1978. But after exhausting itself in the effort the government, by then led by Mr James Callaghan, did not have the satisfaction of seeing these schemes put into operation. The two devolution bills fell when they were both rejected in referendums in the two nations concerned. Shortly after in March 1979 the government itself was defeated in the Commons on an Opposition motion of no-confidence, chiefly because of the withdrawal of support for the government by the Scottish National Party. Defeat at the polls then followed. This encouraged the new prime minister, Mrs Margaret Thatcher, to conclude that devolution as a major political issue was off the agenda and that she could focus her attention exclusively on the programme of economic and social reconstruction which she believed she had been elected to carry out. However, whilst devolution was put out of mind in London, it did not go away in Scotland. After a decade had passed there was sufficient demand for another study of the matter in Scotland to encourage the setting-up of a Scottish Constitutional Convention which met from 1989 onwards. This body was open to representatives of all the political parties, though the Conservatives refused to take part and the SNP left before the deliberations really got started. But the work of the Convention and the proposals it produced in 1990 and then issued in revised form in 1995 fed directly into what was to become a firm policy commitment by the Labour party as it went into the 1997 election. It was also of crucial political importance that the Convention contributed greatly to the emergence of something approaching consensus in educated circles in Scotland on the desirability of political devolution. In parallel the Conservative Party’s strength in Scotland was draining away, in part the result of deep hostility there to many of the policies pursued by Mrs Thatcher with little regard to Scottish sensitivities and to the fact that after the 1987 election her party held only a few Scottish seats. It was not, therefore, surprising that after the Blair Government came into office in 1997 it easily secured a majority in the promised referendum in Scotland on devolution. The way was then clear for the introduction of the necessary legislation, the main elements of which had been hammered out both in the Scottish Constitutional Convention


and within the Labour Party in the preceding years. Before 1998 was out the Scotland Act had been passed. The Scotland Act 1998 The Scotland Act 1998 is a statute of substantial size containing 132 sections and 9 schedules. Part I provides for the establishment of the Scottish Parliament. This was to have 129 members, 73 elected from single-member constituencies based currently on the Westminster parliamentary map and 56 chosen from lists presented by registered political parties in 8 regions. For the additional members elected from regional lists a system of proportional voting is prescribed by Sections 7 and 8. Since list candidates may also stand in constituencies it is provided that the constituency results are to be made known before any seats are allocated to party lists in the regions (Section 7). Whilst the electoral provisions in the Act do not guarantee strict proportionality in the relationship between votes cast and the distribution of seats amongst parties, they do go a long way towards ensuring that the outcome of the regional list elections corrects substantially the voting results in the constituencies. This was demonstrated at the first elections in May 1999 when the Labour Party gained 39 per cent of the vote in the constituencies and nearly 73 per cent (53) of the single-member seats, but then picked up just 3 seats on the regional lists and ended up with only 43 per cent of the seats in the Parliament, with its quota of 56 seats leaving it well short of an overall majority in the 129-seat chamber. This outcome, notable chiefly for the fact that no single party gained an overall majority, compelled the Labour Party to enter into a coalition with the Liberal Democrats, an arrangement that has persisted ever since. The Scottish National Party did well at this first election, gaining 35 seats. In contrast the Conservative Party did not win any constituency seats, but did manage to gain 18 on the lists, a figure that actually put it one seat ahead of the Liberal Democrats in the final allocation of seats.3 The term of the Parliament is four years and the Act assumes that as a rule it will last for this fixed period. Nevertheless provision is made in Section 3 for the Parliament’s Presiding Officer to recommend dissolution and an ‘extraordinary election’ to Her Majesty if the Parliament resolves by a two-thirds majority of all its members to dissolve itself or if it fails to elect a First Minister as required in a range of circumstances by Section 46. This latter provision is reminiscent of certain terms of the German Basic Law. If a vacancy occurs in a constituency seat a by-election has to take place within three months, but in the case of a regional member vacancy the next person on the relevant party list moves forward to fill it. Provision is made in Section 19 for election of a Presiding Officer and deputies, and for a Clerk of the Parliament to be appointed. It is the former who has the duty to submit to the Queen for royal assent bills duly passed by the Parliament. The proceedings of the Parliament are regulated by stand-


ing orders for which a range of conditions are laid down in the Act. Some of these are familiar, as for example the requirement that proceedings should be public. Others are plainly intended to ensure that the Parliament does not trepass on the ground occupied by other institutions, in particular the courts. The Parliament is given broadly speaking the traditional power to send for persons and papers in pursuance of its investigatory rights, but it is also made clear that the Parliament is limited to inquiry into matters falling under its devolved powers and within the competence of Scottish ministers. The provisions regarding legislation are straightforward in their essentials, though complex in detail. The Parliament is entitled to pass laws (Section 28), but this power is limited by conditions laid down in Section 29, for example, that the Parliament cannot pass laws that would be in conflict with the European Convention on Human Rights and it is excluded from legislating on any of the reserved matters. The latter are set out in formidable detail in Schedule 5 which alone runs to about 17 pages. Some reserved items are expressed very broadly such as defence and fiscal, economic and monetary policy. Others are defined tightly by reference to the terms of existing legislation which are to be treated as reserved. The Parliament and the Scottish Executive are under an obligation to observe the restrictions placed on the Parliament’s legislative rights and the three law officers in Scotland are empowered to refer any matter of doubt about whether the Parliament is entitled to legislate to the Judicial Committee of the Privy Council for a ruling. In addition the Secretary of State for Scotland has the power under Section 35 to prevent the Presiding Officer from submitting a bill for royal assent in certain specified circumstances where it is deemed that national interests or the operation of law on reserved matters would be adversely affected. The purpose of these powers is to impose on the Parliament an obligation to reconsider any proposal which has run into such weighty objections. Overall the provisions ensure that the Scottish Parliament has extensive law-making competence in the functional areas handed over to it, and to a large extent it has been made autonomous in the shaping and application of its own procedures and standing orders. What is more it is a singlechamber legislature since the House of Lords has disappeared from the frame of Scottish devolved legislation. Nevertheless, it is by no means a ‘sovereign’ legislature in the sense in which Westminster has been regarded as sovereign. It is expected to operate within a framework that is quite tightly defined in legal terms, and there are the additional constraints stemming from the financial provisions contained in Part III of the Act and the reluctance of the Parliament to use the modest tax-varying power given to it in Part IV. Financially the Parliament and Executive are dependent on Exchequer grant from London, and while that has continued to be based on the pre-devolution ‘Barnett’ formula which has generally been favourable to Scotland, it is also true that the British government might one day decide


to modify the terms on which Scottish devolved institutions are financed.4 Moreover, there can be little doubt that the government in London must assume that broadly the Scottish Executive will respect the principal policy commitments of its national paymaster. An interesting example of this was provided by the Chancellor of the Exchequer’s 2002 Budget commitment to increased funding for the National Health Service. The targets set out for the years following down to 2005 related to United Kingdom spending and thus logically must have assumed that the Scottish Executive and Parliament would raise their spending in roughly the same way. There is thus far less scope for serious departures from national targets and standards in major priority areas such as this than the formal devolution of powers to the Scottish institutions appears to allow. The executive power is dealt with principally in Part II of the Act which is somewhat quaintly entitled ‘The Scottish Administration’. Some way into Part II it emerges that this refers in fact to those appointed by the Scottish Executive (that is, Scottish ministers) to serve it in an official capacity as civil servants. Such people, in reality the staff of the old Scottish Office and its departments, are declared to be members of the Home Civil Service and in various respects are subject to the authority of the Minister for the Civil Service, that is to say the British Prime Minister. In this somewhat convoluted way the Act purports to preserve something resembling a unified civil service. But the main provisions of this part concern the appointment of a First Minister by the Crown (Section 45), his power to appoint ministers subject to approval of the Parliament, and the collective responsibility of this political executive to the Parliament. There is also provision for junior ministers to be appointed and special provisions for the appointment by the First Minister of a Lord Advocate and a Solicitor General for Scotland, both of whom are to be members of the Executive. The former is head of the criminal justice system in Scotland and both law officers have special responsibilities within the Executive for ensuring that the Parliament and Executive act within the terms of the devolution provisions. Moreover, whilst all ministers have to be Members of the Parliament, the law officers do not need to be members. The Executive is thus essentially a parliamentary body, removable by a vote of no-confidence. No such vote has been passed since the Parliament was set up, but two other contingencies foreseen in the Act have occurred, first the death in office of a First Minister (Mr Donald Dewar in October 2000) and second the resignation in November 2001of his successor, Mr Henry McLeish, after a short time in office in response to widespread criticism of his conduct in relation to certain transactions connected with his constituency finances. In both cases the Parliament then had to agree within 28 days on a successor who the Presiding Officer is required to propose to Her Majesty for appointment as First Minister. In both instances the Presiding Officer also used his power under Section 45(4) to designate a member of the Executive to exercise the func-


tions of First Minister pending the choice of a successor. As the Executive has since its establishment been a coalition of Labour and Liberal Democrat parties, it was the leader of the smaller party in the coalition who took on this interim role whilst its senior partner went through the procedures necessary to elect a new leader. Basically this does not differ fundamentally from what nowadays would happen at Westminster were the Prime Minister to die or suddenly resign, though at Westminster the time constraints laid down in the Scotland Act are absent and convention alone still guides the procedure in most respects. But the crucial element of reliance on internal party procedures to yield a successor in the leadership of the majority or largest party is the same in both cases. In relation to the exercise of their functions Scottish ministers are to a substantial degree put in the same position as British ministers of the Crown, discharging their statutory functions on behalf of Her Majesty. They also inherit in the sphere of devolved functions such prerogative powers as may have rested with United Kingdom ministers of the Crown. But there are also limitations set out in the Act that stem from the fact that the Scottish Parliament and Executive enjoy only devolved powers and are required to operate within that framework. There is the obvious requirement that they must work within the terms of European Community law and of European Convention rights,5 and there are numerous specific matters listed in Section 56 which fall under what are called shared powers and thus involve acting in cooperation with ministers of the United Kingdom government, though it is later provided that the Crown may transfer such matters wholly to Scottish ministers. Section 58 confers on the Scottish Secretary of State comprehensive powers to require the Executive to act in ways that respect all relevant international obligations, and this goes as far as empowering him (or her) to direct that legislation be submitted to the Scottish Parliament if this appears to be necessary. Naturally, these are seen as safeguarding powers of last resort which are unlikely to be often invoked. Nevertheless, they do make it clear that the United Kingdom government retains powers to restrain the Scottish Executive should it stray outside its remit. Part III of the Act defines the system of public accounting to be adopted by the Scottish Parliament. This closely follows the model in force in Britain as a whole, with funds to be paid into a Scottish Consolidated Fund and payable out of that Fund only for legally enacted purposes, including those provided for by the Scotland Act. There is provision too for the appointment by the Crown on a nomination of the Parliament of the Auditor General for Scotland. This officer, charged with the supervision of the public accounts in Scotland, is given complete independence in the exercise of his functions and can be removed from office only by a two-thirds majority vote in the Parliament. The tax-varying power is conferred by Section 73 in Part IV of the Act. This power can only by exercised after the Scottish Parliament has passed a resolution to that effect and within the financial limit of a


maximum of 3p in the pound. There is a range of technical provisions governing what has to happen if this power is used and these undoubtedly reserve to the Treasury and the Board of Inland Revenue the power to maintain a unified and standard revenue collection system for the whole country. A Scottish taxpayer is, however, defined rather loosely as someone who is held to be resident in the UK and whose closest ‘connection’ in the relevant tax year is with Scotland. The fact that the power has not so far been invoked has spared the courts from having to decide what counts as a ‘connection’ and the Board of Inland Revenue from the need to make explicit its own operational conventions. There are many other detailed provisions in the Act which are brought together under the heading ‘Miscellaneous and General’ in Part V. Some of these are technical and take note of the consequences of having to operate the Act in conjunction with existing UK statutes. Others have substantial political and constitutional importance. For example, the Parliament is empowered to pay its members and the Executive, though under Section 82 it has to make deductions in the case of members sitting at Westminster or in the European Parliament at Strasbourg. Both members of the Parliament and of the Executive have to take an oath of allegiance in the form provided under the Promissory Oaths Act 1868 (Section 84). There is an important condition in Section 86 that heralds the revision of Scottish constituency boundaries for Westminster by removing the requirement for Scotland to have at least 71 members and imposing on the Boundary Commission for Scotland a duty to have regard to the quota of voters per constituency applying in England. This matter is now under review and eventually the recently established Electoral Commission will have to make recommendations to the government. Though nothing is likely to happen at the time of writing before the next general election, at some future date there will have to be a reduction of Scottish representation at Westminster, bringing it down to perhaps 59 members. This in turn will pose awkward problems for the Scottish Parliament since its 73 constituencies are based on the present Westminster map. But if that map were changed it is unlikely that the Parliament and the Scottish parties would want (or even be able) to follow suit and thus reduce the size of the Scottish Parliament. In Section 91 it is provided that the Parliament has to appoint an Ombudsman modelled on the 1967 Parliamentary Commissioner Act and in Section 95 there are detailed provisions relating to the appointment and removal of judges. These reserve to some extent the right of the British prime minister to recommend appointments to the two highest judicial offices in Scotland, but this is subject to advice from the Scottish First Minister. He in turn is authorised to make recommendations for other senior judicial appointments after consultation with the two senior Scottish judges, the Lord President of the Court of Session and the Lord Justice Clerk. The procedures for removal are elaborate and require a resolution of the Parliament and a recommendation from the


First Minister after he has been advised by a special tribunal to be chaired by a member of the Judicial Committee of the Privy Council. It is to be assumed that these provisions will rarely, if ever, be invoked, but they are of some constitutional interest on account of the manner in which they elaborate and formalise conditions laid down in the Act of Settlement 1701 under which judges might be removed from office on an address from both Houses of Parliament. One further set of provisions must be noted. These come under the heading ‘Juridical’ where Section 98 states that Schedule 6 has effect in relation to devolution issues. The schedule defines devolution issues with some care as questions about whether a legislative or executive act is or is not within the competence of the devolved institutions in Scotland. Such a devolution issue may be submitted to the Judicial Committee of the Privy Council for determination by the Advocate General or the Lord Advocate. Similarly the higher courts in Scotland may refer any such issue rising in proceedings before the courts for resolution by the Judicial Committee. The schedule also provides in a similarly elaborate manner for devolution issues arising from the Scotland Act to be raised in England and Wales and in Northern Ireland and then to be submitted for resolution by the Judicial Committee. Experience so far, admittedly short, indicates that frequent resort to judicial determination of devolution issues is unlikely. After all, there are many ways of reaching an accommodation on a matter in dispute before resort to the courts becomes inescapable. But there have already been a few references to the Judicial Committee of the Privy Council, chiefly from the higher courts in Scotland.6 In certain respects the Scotland Act reflects in its structure and terms the traditional British approach in the late nineteenth century towards the granting of the rights of self-government to colonies of British settlement. It establishes a representative institution and a government responsible to it. It confers on that representative body a comprehensive authority to make law and to formulate policy in all those spheres delegated to it. But this is in some contrast with the emergence of self-government in what were to become known as the ‘dominions’. There, as a rule, representative institutions were given full responsibility for ‘peace, order and good government’, and as a consequence of this had great freedom to develop towards complete self-government for their territories. In contrast a varied range of restrictions are placed on what the devolved institutions in Scotland may do and, as a result, on how devolution can develop in the future. The Scotland Act avoids the kind of statement of general principle and of longterm objectives so common in continental European constitution-making. For example, it does not include any explicit requirement that the new Scottish institutions should in the exercise of their powers have regard to the common or general interest of the United Kingdom as a whole, a condition that under some constitutions would be regarded as a necessary feature of a federal or quasi-federal system and a basis for constitutional review by a


court.7 Furthermore, the wide grant of powers is hedged in by the highly specific provisions relating to powers reserved to the United Kingdom Parliament and Government and by the numerous conditions intended to ensure that the Scottish Parliament and Executive remain within the spheres assigned to them. Above all the Scotland Act exemplifies in its length and detail the British preference for a method of constitutional design that is pragmatic in its terms, particularistic in its exclusive focus on the case in hand, and directed throughout to governmental problem solving. Though major new principles are at least obliquely proclaimed, they are offered rather as ‘facts’ than as normative proclamations of intent. Nowhere in the Act is this better illustrated than in its first section which simply states: ‘There shall be a Scottish Parliament.’ Virtually the whole of the rest of Part I of the Act is devoted to stating in detail how this body is to be constituted and how it must operate. And what it may do is defined essentially by reference to what it may not do, that is to say the powers reserved to the government of the United Kingdom.

Devolution model 2: devising a scheme for Northern Ireland Northern Ireland tends to be treated as something like an unwanted appendage to the British constitutional structure, and indeed much political and constitutional argument proceeds as if Northern Ireland were somehow detached from the rest of the United Kingdom, a matter best left to an appendix. Precisely because that particular perspective is often encountered it is worth underlining at the outset that the Northern Ireland Act 1998 opens by affirming that Northern Ireland remains a part of the United Kingdom and shall cease to be such only if and when a majority of its electorate decide to the contrary. The principal reason for passing from the case of Scottish devolution to that of Northern Ireland lies in the fact that in some important respects the mode of devolution enacted for the province resembles in principle that adopted for Scotland, that is to say that it is legislative devolution. However, it is also a model of devolution which differs profoundly from that in Scotland, and especially in relation to the design of both the Assembly and the executive authorities. A further introductory remark is necessary. In sharp contrast to Scotland and Wales the devolution settlement for Northern Ireland was intended to form the basis for bringing to an end the bitter conflict between the two principal communities in the province that had raged ever since the beginning of the ‘troubles’ in 1968. The British government knew that it could not impose a settlement intended to restore devolved institutions such as had existed before their suspension in 1972. Instead it had slowly and painstakingly to edge the parties to the conflict forward to the acceptance of a basis for political reconstruction and a return to constitutional politics. Such a basis was found in the Belfast Good Friday 1998 agreement. The scheme eventually embodied in the Northern


Ireland Act was, therefore, one that had been hammered out in tortuous and difficult negotiations involving not only the British government and the parties and factions in the province (some of them linked with and speaking on behalf of the paramilitary terrorist organisations ready to accept a cease fire) but also the Irish government and rather more indirectly the American government. Furthermore, the Act itself was part of a wider package of measures that was put together to secure the often reluctant support of several of the parties to the negotiations to what was in effect, so it was hoped, a peace settlement. Notable amongst these flanking measures was the promise of early legislation to reconstruct the police forces of the province on a rigorously non-sectarian basis. In short both the historical background of Northern Ireland and the circumstances in which devolution was achieved had no analogy at all in either Scotland or Wales. Part I of the Act is brief and contains mainly definitional statements. Of particular importance amongst these are the categories of excepted, reserved and transferred matters (Section 4), the concept of cross-community support, and the introduction of the terms ‘designated Nationalist’ and ‘designated Unionist’. Cross-community support is defined by reference to reinforced majorities drawn from both communities for the passage of legislation, whilst designation of adhesion to one or the other of the two communities is to be regulated in the standing orders of the Assembly. Legislative powers are dealt with in Part II, but in a manner that is by no means easy to follow. The Assembly’s powers are defined mainly by reference to what is not within its scope (the excepted matters set out in Schedule 2). But it had no powers at all until these were transferred to it by Order in Council at the end of 1999. This involved conferment on the Assembly of a reasonably full range of domestic functions, notably education, housing, health, social services, economic development, care for the environment and many aspects of rural affairs. Law and order and the criminal justice system remain within the responsibility of the Secretary of State for Northern Ireland, and are included in Schedule 3 setting out reserved powers. This means that it will be possible at a later stage to transfer part or all of the law-and-order functions to the Assembly should circumstances appear to justify such action. Transfer of powers from the reserved list to the devolved institutions (and in reverse from the transferred category back to reserved) requires a formal motion in the Assembly and then approval by the United Kingdom Parliament of an Order in Council. Obviously the serious difficulties standing in the way of securing the minimum of inter-party cooperation necessary to get devolution going, along with the continuing risks of violence in Northern Ireland, meant that it had to be something like a stage-by-stage process which in turn involved leaving with the British government far wider powers than was ever deemed necessary in the case of devolution in Scotland.


The use of the legislative powers granted to the Assembly is subject to a range of checks and limits. Some of these echo the provisions in the Scotland Act, for example, in the scope for referring a proposed bill to the Judicial Committee of the Privy Council for determination of whether it comes within the powers of the Assembly. But there is a degree of supervision of the legislative activities of the Assembly (and therefore of the Executive) by the Secretary of State which is peculiar to the case of devolution in Northern Ireland. Moreover, it is through the Secretary of State that all measures have to be submitted for royal assent, and he in turn is required to lay such measures before Parliament so that there is first an opportunity for objections to be raised. The rights of Westminster are, therefore, far more explicitly safeguarded in this devolution scheme than in that for Scotland. The most unusual features of the Northern Ireland Act arise in relation to the establishment of the Executive Authorities provided for in Part III. The Assembly is required to elect the First Minister and the deputy First Minister with the support of a majority of the full voting membership of both the designated communities, a requirement that then resulted in the leader of the largest Unionist party (Mr David Trimble) becoming First Minister and the leader of the largest Nationalist party (the Social Democrat and Labour Party), at that time Mr Seamus Mallon, becoming deputy First Minister. These two officeholders come near to making up a duumvirate heading the Executive since under the Act there are many circumstances in which they have to act jointly. They do not in any real sense appoint the members of the Executive to ministerial offices, the number of which may not exceed 10 without action by the Secretary of State. Instead the members are proposed by the parties represented in the Assembly and then elected by a d’Hondt procedure prescribed in Section 18. This means that all four parties designated as either Unionist or Nationalist – Ulster Unionist, Democratic Unionist, SDLP and Sinn Fein – eventually entered the Executive in late 1999, though a further six months were to pass before it became operational. There were many reasons for the delay: Mr Trimble faced an internal party crisis fomented by opponents of the Belfast Agreement in his own party that led to suspension of the Assembly in February 2000, whilst there were bitter arguments on all sides about fulfilment of the various flanking measures required either by the Agreement or the Act, most notably arrangements for the surrender of arms by the para-military organisations and for reform of the Royal Ulster Constabulary. But eventually the Executive Committee of 12 members (with only 10 ministerial portfolios, however) was able to meet and to begin to exercise the powers devolved to it. All members have to take a pledge of office which was carefully formulated as part of the Belfast Agreement’s ‘Strand One’ and then incorporated into Schedule 4 of the Act. Provision was also made for the appointment of junior ministers or deputies to the ministers. Whilst the executive power in Northern Ireland was to remain vested in the Crown, the prerogative and other executive powers in the


transferred sphere of functions were to be exercised by the Northern Ireland ministers. As to the Northern Ireland Civil Service, a separate and distinctive part of the British Civil Service, control over it was passed to the First Minister and the deputy First Minister acting jointly. The same applies under Section 23 to the Commissioner for Public Appointments for Northern Ireland. The effort to ensure exact proportionality in all parts of the new institutions is carried over to the internal arrangements of the Assembly too. It is required to set up under its standing orders ‘statutory committees’ to advise each of the ministers on policy, and these committees are constituted according to d’Hondt rules. Whilst the First Minister and deputy First Minister can be subjected to a no-confidence vote, confidence can be withdrawn from other ministers only for specified reasons defined in Section 30 (1), (a) and (b). These are absence of commitment to non-violence and failure to observe any other condition of the pledge of office. Thus we have a situation in which tenure of office does not depend on the Executive retaining the confidence of the elected body according to the normal conventions of a parliamentary regime, but rather on a continued commitment to very broad principles set out in the Belfast Agreement. In other words something like constitutional loyalty is taken to be a necessary condition of holding ministerial office, though admittedly it is not at all clear how these terms of the Act could actually be enforced and many would cast doubt on the ‘constitutional loyalty’ of some members of the Executive. Insofar as political accountability plays a part at all it can only be through the withdrawal of support by a party to the Executive from its leader or some other member holding executive office. Whereas the Scotland Act opens with the Parliament, it is not until we reach Part IV of the Northern Ireland Act that the main procedural conditions governing the establishment and modus operandi of the Assembly are set out. Like the Scottish Parliament the Assembly is elected for a period of four years and has the right to dissolve itself provided there is support from two-thirds of its members for this action. The electoral system prescribed is voting by Single Transferable Vote in 18 six-member constituencies. In relation to the population it serves the Assembly is considerably larger than both the Scottish Parliament and the Welsh Assembly, and it contains more party groups too, no doubt in part a consequence of the wider opportunities offered by the STV system. Provision is made for the election with crosscommunity support of a Presiding Officer who is responsible for ensuring that the Assembly operates in accordance with its standing orders. These in turn are specified in broad terms in Sections 41 to 43 of the Act and in Schedule 6. The Assembly has the power to conduct inquiries and to summon witnesses, provided whatever it wishes to investigate falls within the transferred sector of powers. Some features of the power to investigate are regulated in unusual detail, for example, it is laid down that the Presiding Officer shall summon committee witnesses in writing and by registered


post or recorded delivery. In contrast the remuneration and pensions of members and officers of the Assembly and of ministers and junior ministers are provided for in the Act only in broad terms, though since Northern Ireland’s institutions depend entirely on a block grant from the Treasury there was to be little chance of departing from the standards regarded as acceptable by the British government. As regards the membership of the Assembly’s committees this has to be in proportion to the numbers of seats held by political parties. This refers to what might be called ‘ordinary committees’ in contrast to the ‘statutory committees’ to advise ministers established under Section 29 and to which the stricter procedures involving application of d’Hondt rules apply. The Northern Ireland Act contains a wide range of requirements peculiar to the province and stemming from the different ‘strands’ in the Belfast Agreement. Part V provides for nominations to the North–South Ministerial Council and for participation in the British–Irish Council. There is also provision for a British–Irish Intergovernmental Conference to consider matters arising under the heading of excepted or reserved powers and for consultation with a Civic Forum on social, economic or cultural matters as proposed in strand one of the Belfast Agreement. Then in Part VII of the Act and in schedules there is provision for a Human Rights Commission (Schedule 7) and an Equality Commission (Schedule 8), the former having mainly advisory functions (covering proposed legislative bills too), and the latter functions that are both advisory and in some degree allow for the taking of legal action, for example, against defaulting public authorities. In line with the Scotland Act there are also provisions in Part VIII covering judicial scrutiny of devolution issues and their judicial resolution ultimately by the Judicial Committee of the Privy Council. Finally, the financial provisions of the Act appear in Part VI and are relatively brief, conferring on the Secretary of State the duty of paying into the Northern Ireland Consolidated Fund such amounts as Parliament may provide. Under the Act the Northern Ireland Assembly has, therefore, no revenue-raising powers of its own. It is worth noting too that the Act provides in some detail for collaboration between the responsible Northern Irish minister and the Secretary of State in the maintenance of what are described in Section 87 as ‘single systems of child support, social security and pensions for the United Kingdom’. To some extent these highly technical provisions are a means of bridging the transition from the state of affairs prevailing under direct rule to the coming into effect of the new Northern Ireland devolution arrangements. It is notable that in a sensitive area like this there appears to have been no dispute about maintaining unified UK standards. The Northern Ireland Act is in comparison with the Scotland Act convoluted and awkward in its structure. It does not proclaim something like the parliamentary principle in its bearing on the province, but approaches the setting up of an Assembly rather obliquely through an initial statement of


the powers that such a body would have, assuming that it were finally to be set up. This no doubt reflected the fact that when the legislation was drafted and put through Parliament it was by no means certain that the parties in Northern Ireland would be capable of achieving sufficient agreement among themselves to permit the new institutions to be established at all. Having dealt with prospective powers the Act goes back to the nature and terms of the executive authorities to be set up, and only after that returns to the composition of the Assembly and further aspects of how it is to function. Further on in the statute there are yet more conditions circumscribing in various ways what both the Assembly and the Executive may do and in particular setting out constraints on their discretions. The overall effect is that apart from being difficult to follow and to construe, the legislation does provide for a mode of devolution which is at one and the same time highly constrained and yet, within the constraints laid down, allows for a wide and largely autonomous exercise of powers. All this reflects both the delicate and ambiguous compromises hammered out in the Belfast Agreement and the doubts held by all participants in the negotiations leading up to the legislation about the capacity of the parties in Northern Ireland to work together and to fulfil the bargains struck. As far as the British government was concerned there had to be safeguards in the legislation enabling it to exercise some influence over the actual process of devolving powers and to intervene should that process be seriously threatened. The Northern Ireland Act itself was soon held to be inadequate for that purpose and so, almost immediately after the devolved institutions had at last begun to operate, the government took an even more radical step to intervene in the application of its own scheme for devolution in Northern Ireland. The Northern Ireland Act 2000, passed early in that year, empowered the Secretary of State to suspend the new Assembly and its associated Executive should this be deemed necessary on political grounds. Thus at least implicitly the British government undermined the responsibilities placed on the parties in Northern Ireland under its new constitution by reaffirming its own ultimate political discretion. At the time of writing these powers have been used four times when suspension of the Assembly and resumption of direct rule by British ministers was held to be the only way of averting the collapse of the new institutions altogether in the face of intransigence on the part of one or more of the Northern Irish parties. The longest of such suspensions has now been in operation since late 2002 and clearly puts a question mark over when and how the experiment with devolved government can be renewed, especially since in this instance the Assembly was suspended even at the time when elections to it were held in November 2003.8 Despite the many setbacks imposed by political circumstances in the Province the degree of devolution already provided and the further extensions that may become possible over time testify to the continuing readiness of the political authorities in London to keep Northern Ireland in a


unique constitutional category: it remains part of the United Kingdom of Great Britain and Northern Ireland, and indeed the Northern Ireland Act makes this clear in Section 1 by providing that this state of affairs may only be changed if a majority of voters were one day to vote for such a change. Nonetheless, the provisions in Schedule 1 for intermittent polls on the issue of joining the Republic do introduce a factor of conditionality into the government of Northern Ireland absent in all other parts of the United Kingdom. The Province now has a form of devolution that far more explicitly than the earlier ‘Home Rule’ model appears to make its place in the United Kingdom conditional both on respect for cross-community consensus inside Northern Ireland and the development of various kinds of institutionalised cooperation with the Republic of Ireland. These conditions were intended to meet demands expressed strongly by at least part of the Nationalist community. They do, however, introduce an awkward tension into this renewed effort to make devolution work. Is it likely that those whose deepest aspiration is for the achievement of a united Ireland will ever be wholehearted in helping to make a success of an experiment in self-government that leaves the British connection and all that that involves undisturbed? This ambiguity about sovereignty in Northern Ireland is likely to endure for the foreseeable future.

Devolution model 3: a qualified scheme for Wales The devolution of powers to the Principality of Wales is more modest in scope than that to both Scotland and Northern Ireland. Nevertheless the statute establishing a devolved regime turned out to be much longer than the other two devolution acts, amounting to 183 pages in all, of which just on a 100 pages are taken up by no less than 18 schedules. Apart from the prolixity of this measure it is also worth noting the curious fact that it is not entitled ‘the Wales Act’ in line with the other two devolution enactments, but ‘The Government of Wales Act 1998’. There are no doubt technical reasons stemming from the terms on which devolution has been constructed for Wales which explain why the legislation is so lengthy, but these differences do underline the fact that it was always taken for granted, as it was at the time of the previous attempt to enact devolution schemes, that Wales would get a different type of devolution regime from that held to be suitable for Scotland and Northern Ireland. And so it turned out again in 1998. Part I of the Act, extending to 20 sections, provides for the setting up of the National Assembly for Wales, determines its membership and how members are to be elected. The electoral regime is in all important respects the same as for the Scottish Parliament, that is to say 40 members are elected by relative majority voting in the parliamentary constituencies of Wales, whilst a further 20 are chosen from party lists presented in the five electoral


regions set up previously for the purpose of electing members of the European Parliament. The d’Hondt formula is applied to the counting of votes for the list candidates and the allocation of seats. Not surprisingly at the first election in 1999 the Labour Party won 27 of the 40 constituency seats, but as it gained only 1 more seat from the votes cast for the regional lists ended up just short of an overall majority. The Assembly sits for a four-year term and cannot be prematurely dissolved. The Act does not contain any provision analogous to that in the Scotland Act promising a review of Welsh parliamentary representation, presumably on the grounds that as the Assembly has received no devolution of primary legislative powers there is no case for reducing the present over-representation of Wales at Westminster. The procedures governing the filling of vacancies in the Assembly are also similar to those applying in Scotland. The Assembly is under Section 1 declared to be a body corporate and in the exercise of its functions to be acting on behalf of the Crown. In other words, insofar as the Assembly is carrying out functions which were previously vested in a minister (for the most part the Secretary of State for Wales), it has now become in theory at least the corporate embodiment of ministerial powers, statutory or otherwise, in Wales in relation to the functions entrusted to it. It is in Part II of the Act that the functions of the Assembly are dealt with. The conferment of functions – or powers – was to be effected by Order in Council laid before Parliament in advance of the first elections to the Assembly. Schedule 2 of the Act lists the 18 functional areas to be transferred to the Assembly, and these amount essentially to all the domestic matters previously administered under the authority of the Secretary of State for Wales. In addition to ministerial powers transferred there is provision for various other powers and property rights to be handed over to the Assembly, and it is specifically provided that Welsh health authorities shall be taken over by the Assembly. Under the heading ‘Ancillary powers etc’ in Section 34 and later it is worth noting that the staff of the Assembly are to have the status of civil servants (in effect this means in the main the staff of the old Welsh Office) and that the Assembly may promote private bills in Parliament (that is, just like a local authority). Further, there is provision in Section 34 for consultation at least once a year between the Secretary of State and the Assembly on the extent to which proposals in the Government’s legislative programme affect Welsh interests directly and would have effects in Wales. Whilst the Assembly has no power to pass legislation of its own in relation to any of its functions, it is allowed under Section 44 to pass subordinate instruments under the legislative enactments governing the functions transferred to it. In principle at least this could amount to significant scope for legislative activity analogous to the passage of primary legislation. It is also worth noting that subordinate legislation relating to Wales only is explicitly withdrawn from the usual modes of parliamentary scrutiny at Westminster by the same section of the Act.


It is only in Part III headed ‘Assembly Procedure’ that we arrive by somewhat tortuous routes at the matter of executive authority. First, there are various provisions for the drafting of standing orders for the Assembly by Commissioners to be appointed by the Secretary of State who also has to approve the initial standing orders. Then there are requirements for the election of a presiding officer and deputy by the Assembly, subject to the condition that these officers shall not come from the same party. Finally in Section 54 the appointment of Assembly committees is dealt with, first in general terms, and then much more specifically. Under Section 56 there has to be an executive committee set up consisting of a First Secretary and an unspecified number of Assembly Secretaries who in turn are to take responsibility for the functions allocated to the Assembly, subject to the discretion of the First Secretary to decide how best to share out the portfolios and to group together the functions transferred. In the event this has meant an executive committee of nine members. This is as near the Act comes to actually specifying an executive authority or government. Clearly the model in this regard was in some degree at least that of local government bodies: all authority is in principle vested in the elected corporate body and it is supposed in theory at least to act through something like an executive or policy committee. The Act also requires the Assembly to set up a range of subject committees, these to be equal in number to the number of executive committee members appointed by the First Secretary. These executive members are to sit on the relevant subject committee, but they are not held to be accountable to their subject committee in the way in which a minister is regarded as accountable to Parliament. In contrast, the subject committees may delegate functions to executive members, a procedure that is bound then to suggest something like a relationship of accountability. Similarly the Assembly as such may delegate functions to the First Secretary. There is also provision in Section 56 for standing orders to provide for opportunities for Assembly members (and subject committee members too) to question the First Secretary and his colleagues on their activities and decisions. The Assembly is further required to set up a scrutiny committee for subordinate legislation (though without any power to approve or reject such orders as are submitted to it) and an audit committee. Additionally the Assembly is required to establish regional advisory committees, though only one region is specifically mentioned in the Act, North Wales. This presumably acknowledges the fact that the new institutions are heavily concentrated in South Wales as well as the importance of the Welsh language in the north. There are many other provisions of the Act which regulate how the Assembly should be organised and operate. The equality of English and Welsh as languages for conducting business is confirmed; the Secretary of State may attend and take part in proceedings of the Assembly; the proceedings of the Assembly are covered by privilege and no action for defamation can lie against what is said there; disciplinary powers are conferred on the Assem-


bly in relation to the behaviour of its own members, and there is provision for a register of interests which members have to complete; in order to facilitate investigations the Assembly has in essentials the power to ‘send for persons and papers’ and can require the attendance of witnesses. Finance is dealt with in Part IV where it is provided that the Secretary of State shall ‘from time to time’ make payments to the Assembly to cover its expenditures. Other ministers of the Crown may make payments too and the Secretary of State must make an annual financial statement indicating all amounts paid to the Assembly. Loans may also be made to the Assembly and it is in turn empowered to raise loans, subject to the usual Treasury requirements. The Act contains no provision allowing the Assembly to raise revenue itself nor does it have any power to precept local authorities after the manner of the Greater London Authority. Financial dependence on London is, therefore, virtually complete. In this part of the Act there is also provision for the appointment of an Auditor General for Wales appointed by Her Majesty, though curiously the holder of this office is not to be deemed to exercise any functions on behalf of the Crown (presumably in order to affirm his status as a servant of the Assembly) and is to be treated as a Crown servant only for the purposes of the Official Secrets Act 1989. The Auditor General for Wales is entitled to call on the National Audit Office for assistance and his reports are to be submitted to the Assembly’s audit committee. There is also detailed provision for appointment by the Assembly of an auditor to audit the accounts of the Auditor General for Wales and it would appear that this person is expected to come from the private sector of the accountancy profession. Indicative of the links with financial control radiating out from Whitehall is the fact that the Treasury has the right to appoint the principal accounting officer of the Assembly and this officer in turn may have responsibilities to the House of Commons and its Committee of Public Accounts (Section 98(6). Under Section 101 it is also permissible for the Comptroller and Auditor General to carry out what are called ‘examinations’ of the finances of the Assembly and on these he would, of course, report to the House of Commons Public Accounts Committee. Apart from a reference to the Comptroller and Auditor General reporting on loans made to Scottish Ministers, there is no comparable provision in the Scotland Act to enable the Comptroller and Auditor General to inquire into the spending of monies voted by Parliament for the use of the Scottish Parliament in just the same way as are the sums paid to the Welsh Assembly. It has to be assumed that there were more doubts about the capacity of devolved institutions in Wales to maintain complete financial rectitude than there were in relation to the new Scottish institutions. Parts V and VI of the Act contain many more provisions intended to govern in some detail both the transfer of ministerial functions to the Assembly and the conditions under which it is expected to operate. Like the other devolved representative bodies and their executives it is subject to


Community (that is European Union) law, must observe the terms of the Human Rights Act 1998 and any international obligations affecting the discharge of its functions. Under Sections 109 and 110, along with Schedule 8, disputes about the powers of the Assembly are made subject to a very similar regime of judicial review as prevails for the Scottish Parliament and the Northern Ireland Assembly. Under Section 111 a Welsh Ombudsman is established, and the Act also imposes on the Assembly a duty to sustain and promote local government, in part through the setting-up of a Partnership Council (Section 113), to promote the interests of ‘relevant voluntary organisations’, and even to consult with private business interests. Not content with such general injunctions the Act also regulates in some detail how and what Welsh public records are to be kept. Most of the rest of this part and of Part VI are concerned with placing a number of duties of a general nature on the Assembly as well as with transferring to it the functions carried out at the time of enactment by a variety of specialised administrative bodies. So, for example, the Assembly has to produce a scheme for sustainable development and regularly update it (Section 121); it assumes responsibility for the work of the Welsh Development Agency which in turn absorbs the Development Board for Rural Wales and the Land Authority for Wales; and there is provision for the eventual winding up of Housing for Wales under the aegis of the Secretary of State as a stage on the way to the transfer of full responsibility for social housing to the Assembly. Much of the detail in the later parts of the Act and in several schedules reflects the need to amend a wide range of provisions in existing England and Wales legislation to take account of the transfer of so many domestic functions to the Assembly. In contrast there was in Scotland already a substantial amount of Scottish legislation dealing with the domestic functions transferred to the Parliament and this obviated the need for amendment of so many previous statutes. Though those who drafted the Government of Wales Act were not keen to present it as embodying in essence a ‘local-authority’ model of delegation of powers and a local-authority pattern of governance, this is what it really amounts to. Most purely domestic functions are vested in a corporate body – the Assembly – and its internal constitution was designed to resemble that then prevailing generally in local authorities. Though the Assembly formally performs its functions on behalf of the Crown and so is in Wales a substitute for ministers in the central government, the constitutional design seems to have envisaged rule through committee in the manner familiar until very recently in most local authorities.9 However, the Welsh devolution scheme has not in fact worked out like that. The First Secretary and the Assembly Secretaries alongside him who constitute the executive have tended to behave like a cabinet or government, and to relate to the Assembly on that basis. From the setting up of the Assembly in May 1999 until February 2000 a Labour administration was in power headed by a Westminster politician, Mr Alun Michael MP, who had also for a short time been


Secretary of State for Wales. But Michael was not popular in his own party and was resented by many as the prime minister’s nominee. The Labour party did not have an overall majority in the Assembly and so it was possible in early 2000 for a motion of no-confidence to get through, leading then to the First Secretary’s replacement by Mr Rhodri Morgan, also a Westminster MP, but far more congenial to his party in Wales. While the Labour party chose to avoid any formal coalition arrangement after Mr Morgan took over, he nevertheless reached agreements with Plaid Cymru, the largest of the minority groups in the Assembly, allowing it a degree of policy influence. Similar agreements were later made with the Liberal Democrats. All this helped to stabilise and strengthen his administration and to smooth the way for something more like a Westminster-style relationship between Assembly and executive. Given the formal provisions of the Act and the likelihood of no party having an overall majority the executive in Wales – often referred to now as the ‘cabinet’ – cannot, however, operate exactly like the government in London.10 Nor can the subject committees of the Assembly, even though they meet as a rule only every third week, be relegated to the margins of decision-making as is generally the case with select committees of the House of Commons. Nonetheless, experience so far indicates that within a short time the Welsh pattern of devolution has shifted away from the local government model to something much nearer to that of Westminster. In another respect too experience of Welsh devolution so far suggests that the absence of legislative powers does not make such a large difference as was initially assumed. This is partly because the Assembly does have the power to pass statutory instruments in pursuance of Westminster legislation and so like many government departments in London has scope for developing and applying whatever policies the legislation provides for. What is more, the absence of primary legislative powers in Wales and their presence in Scotland and Northern Ireland needs to be seen against the background of a United Kingdom which is in so many crucial aspects of economic and financial policy, social policy and cultural development both unified and interdependent. The scope for substantial variations in legislative policy is highly restricted, and this is without reference to the further constraints imposed by the dimension of European law and policy which is binding for every part of the United Kingdom. Nonetheless, the demand for a measure of legislative authority similar to that conferred on the two other devolved assemblies figures as a regular feature in the complaints of those who regard the Government of Wales Act as inadequate in its treatment of Welsh aspirations.11

The models of devolution compared In countries with a federal constitution or one that provides for relatively extensive and comprehensive devolution of powers to sub-national state level it is normal to find that the second-tier institutions are constructed


according to a reasonably consistent pattern in relation to such matters as what powers are devolved, what institutions of law-making and policy implementation are established, the terms on which political rights are granted, and the conditions specifying the relationships between the national governing institutions and the second tier. None of these conditions is met under the devolution arrangements now in force within the United Kingdom. There are substantial differences in what powers have been devolved in the three cases and in the conditions under which they may be exercised by the new authorities. The institutions, both the representative bodies and the executive authorities related to them, reveal significant differences also. As far as political rights go, in all three parts of the United Kingdom where new representative institutions have been set up, all citizens have gained the right to take part in elections for these bodies. But they do not do so under the same rules. All have to operate within a system of proportional representation, but while this involves a vote for closed-party lists to correct the ‘disproportional’ effects of simple majority voting in the single-member constituencies in Scotland and Wales, in Northern Ireland the method used is Single Transferable Vote with each parliamentary constituency returning six members. There are also notable variations in the size of the representative bodies in relation to the size of their electorates, with Northern Ireland having an assembly which is much larger in relation to population than the other two. With regard to the relationships between the devolved bodies and the national government and Parliament no clearly defined standard models were envisaged or prescribed in the legislation, though in all three cases a Secretary of State still survives along with varying degrees of representation at Westminster. This meant that much in the sphere of executive relations was left for the exercise of ministerial discretion at the centre to establish such administrative consultative procedures and agreements as might be deemed expedient.12 Whilst comparison of the devolution statutes does show up remarkable variations and differences there are, however, certain common features which have to be noted. First, along with the provisions governing the election of members of the European Parliament in Strasbourg and elections to the Greater London Authority, the devolution measures confirm the acceptance for some purposes of the principle of proportional representation. Relative majority voting in single-member constituencies is now confined to Westminster and local council elections. Inevitably this leaves such a method of voting open to further questioning and to the need to provide at least some reasons for excluding proportionality in these cases. So far the preferred argument in favour of relative majority voting for national elections has been that it reduces the risks of party fragmentation and hence of weak coalition rule. Given the different constitutional relationships inside local authorities this argument can hardly apply at that level. One constitutionally significant consequence of the move to proportional methods of


voting is that it has entailed statutory recognition of parties which have to register, for example, to establish a list of candidates for the regional lists in Scotland or Wales. In Northern Ireland the formal acknowledgement of parties extends even to a requirement that members of the Northern Ireland Assembly have to designate themselves as belonging to one ‘community’ or the other, this being the consequence of the provisions for reinforced majorities expressing cross-community consensus. Needless to say, no similar provisions exist in the other devolved assemblies.13 Second, all the devolution schemes provide for the ultimate resolution of devolution issues, that is, those relating to competences, by the Judicial Committee of the Privy Council. It is does not seem likely that there will be frequent reference to the Judicial Committee, and, as all past experience of devolved government in Northern Ireland suggests, there will be an effort to see that appeal to judges is as far as is practicable avoided and that such disputes as may arise are resolved informally by political means. There are other elements of binding legal obligations that deserve a mention. All three assemblies are subject both to European law and the Human Rights Act 1998, and have no right to trespass on the British government’s exclusive competence in these spheres. In the case of Northern Ireland there are additional layers of legal regulation. The Act provided for the setting up of a Human Rights Commission with the somewhat nebulous duty of keeping under review the adequacy of protection of human rights in Northern Ireland. No comparable body exists elsewhere in the United Kingdom. There is also now an Equality Commission which absorbed a number of existing organisations with a Northern Ireland remit and inter alia discharges in the province the responsibilities of the Commission for Racial Equality in the rest of the UK. This is but one of many examples of institutional arrangements that convey the constitutional message that Northern Ireland is more or less completely separate – and different – from the rest of Britain. Third, all three devolution schemes reserve the ultimate authority of Parliament to make laws for each of the three territories. In the case of Northern Ireland at the beginning of the sections dealing with the legislative powers of the Assembly there is a sub-section (5(6)) specifically reserving the right of Parliament to make laws for the province; in the Scotland Act Section 28(7) makes a similar reservation of the authority of the Westminster Parliament to pass laws for Scotland; and in the Government of Wales Act it was obviously assumed that no such reference to parliamentary authority was needed since the Welsh Assembly was receiving no delegation of primary legislative powers. It is, however, worth noting that the references now made to the authority of Parliament are somewhat muted in comparison with the earlier practice of referring boldly to the ultimate supremacy of Parliament, as for example in the Government of Ireland Act 1920 (repealed in fact by the Northern Ireland Act 1998). The sovereignty


of Westminster has become a shadowy notion, all the more so in the face of the fact that all three devolution measures were endorsed in advance by popular votes in their favour. This makes it all the more improbable that the claim to parliamentary sovereignty could be turned into a constitutional reality at some time in the future, except perhaps in the event of a serious return to civil disorder in Northern Ireland. Fourth, all three parts of the United Kingdom with devolved institutions preserve representation at Westminster, and in the case of Scotland this is for the present well in excess of what its population can justify. In contrast, none of the devolution statutes goes far towards specifying what is the justification for and purpose of representation at Westminster. Still less does any of them have an answer to the ‘West Lothian’ question, that is say why should English MPs have no right to vote on matters devolved to the non-English parts of the UK, while representatives from these territories remain fully entitled to vote on all English matters?14 The unspoken residual assumption must be that Members of Parliament from Scotland, Wales and Northern Ireland are sent to Westminster to take part in proceedings, legislative or otherwise, on matters still within the competence of the government of the United Kingdom, for example, foreign affairs or taxation policy. It is doubtful, however, that this really adds up to very much in terms of effective participation, and in any event most backbench MPs, regardless of where they come from, are generally more interested in particular services and the concerns of constituents than in the wider and more abstract issues of public policy. Yet it is precisely the bulk of these matters that have been withdrawn from the responsibility of UK ministers accountable at Westminster and transferred to subordinate governments and new assemblies. The devolution changes do in this way have serious consequences for the elected representatives both of the minority nations and of England. It is in the sphere of law-making in particular that the claim that devolution does not weaken the Union or the United Kingdom is hard to sustain. On the one hand devolution attenuates substantially the role of representatives from the minority nations at Westminster, whilst on the other it almost guarantees that when Parliament is legislating for England – still the major demand on its time and attention – the outcome can be determined by the votes of those who do not represent English constituencies and have no authority over the matters at issue in their own parts of the United Kingdom. This inequity in the distribution of political rights may well some day impose serious strains on the 1998 devolution arrangements and at the least force the United Kingdom Parliament to modify its own voting procedures. Fifth, there are several very specific ways in the executive sphere where the claims of the United Kingdom are affirmed and protected. The most important of these is in relation to the financing of devolution. With the single exception of the power of the Scottish Parliament to levy a supplementary rate of income tax not exceeding 3p in the pound, the new insti-


tutions have no revenue-raising powers and depend entirely on grants made available by ministers and approved by the Treasury. So long as the British government maintains the present relatively generous basis for calculating its annual allocations to the devolved administrations, it is probable that they will be content with that and tailor their spending plans to the finance made available. But were there one day to be changes in the methods of calculating grant, for example, to produce greater fairness in spending levels as between various parts of England and the rest of the UK, tensions might well result. Yet even in this situation it is perhaps unlikely that the new institutions would demand powers to raise revenue on a substantial scale since such an approach would thrust political responsibility for unpopular decisions on to the provincial politicians themselves. In addition the conferment of wide revenue-raising powers on the devolved institutions would present very difficult issues of equalisation of tax burdens across the UK, of tax administration and of fiscal policy for the central government. So far, therefore, the maintenance of a more-or-less unified taxation and revenue collection system remains one of the fundamental principles of the devolution settlements and has not been seriously disputed. Two other provisions tending to sustain the idea of a United Kingdom are those referring to the civil service and to the fact that the holders of executive authority exercise it on behalf of the Crown. In two of the devolved regimes – Scotland and Wales – the legislation provides that the civil services in both countries remain part of the Home Civil Service of the Crown, though in operational terms responsibility for their management passes largely to the Scottish executive and the Welsh Assembly and ‘cabinet’. In the case of Northern Ireland there survives a distinctive Northern Ireland Civil Service, simply carried over from the past in the new legislation. The relevant Section 23 is obscure in formulation, but appears to confirm that the civil service is a service of the Crown and that the overall responsibility for the Northern Ireland Civil Service and the Commissioner for Public Appointments is to be exercised jointly by the First Minister and the Deputy First Minister. It cannot at present be foreseen whether the preservation of a somewhat shadowy claim to be parts of a unified civil service will maintain in all the devolved regimes the constitutional status of the civil service as a source of impartial and politically neutral support for elected politicians. What is, however, likely is that the civil services in all three devolved territories will evolve separate and to some extent self-contained career structures, something that already occurred in the past in Northern Ireland. It remains to be seen whether this will be conducive to the recruitment of sufficient high-quality personnel for the top echelons of these devolved administrations. Sixth, of the devolution regimes now in place only one, that for Scotland, retains in principle the theory and practice of ministerial accountability as generally understood at Westminster. The Scottish executive is responsible


to the Parliament in Edinburgh and, as we know from the fall of the second First Minister it can be forced out of office if it loses the confidence of the Parliament. In the case of Northern Ireland the provisions enforcing crosscommunity representation and, indeed, parity between the Unionist and Nationalist communities render ministerial accountability in any normal sense impossible, quite apart from the debilitating impact on the authority of officeholders in Northern Ireland of any period of prolonged suspension during which powers revert to the Secretary of State. Of course, ministers in the devolved administration may give some account to the Assembly of what they have done or propose, but their tenure of office depends in reality on how the intricacies of intra- and inter-party relationships interact with the parallel complexities of the procedures laid down in the legislation, something already demonstrated more than once in the case of the first holder of the post of First Minister, Mr Trimble. And in relation to Wales the institutional model installed does, if taken seriously, rule out ministerial accountability by virtue of the corporate responsibility of the Assembly itself for the discharge of the functions given to it. But in practice it has not worked out like that and the Assembly appears to be adapting itself to something like the familiar pattern of ministers acknowledging their accountability to the Assembly, whilst the latter surrenders the powers which in theory it is expected to exercise. In conclusion, the devolution schemes now in operation are characterised by a large degree of tailor-made variation whilst nonetheless sharing certain common features and commitments. The variations in institutional design, in the powers conferred and in the conditions under which executive authority is set up and exercised no doubt reflect in large measure pre-existing political conditions, the prospects of securing agreement on a particular devolution scheme, and to some extent well-established and more or less unquestioned assumptions about what kind and degree of devolution would be appropriate to each of the three recipients of it. So there are political and practical explanations for the eclecticism to be found in the devolution settlements. Yet at the same time there are some common features that have the effect of reminding the devolved bodies that they continue to belong to the ‘United Kingdom of Great Britain and Northern Ireland’. There is membership of the British Parliament, the fact that the devolved institutions exercise executive powers on behalf of the Crown, the formidable power of the purse retained by HM Treasury, the retention of three Secretaries of State (though this is not in fact a binding statutory requirement and can be changed by the prime minister if he sees fit),15 the adoption of the principle of proportional representation and, therefore, acceptance of coalition rule as a normal feature of government, and the subordination of all the devolved bodies to the possibility of judicial review of the legality of their exercise of powers. It is not surprising that the determination to cater for so many variations of circumstance and to build in so many


precautions and reservations to safeguard the powers of UK ministers and what are now the largely theoretical constitutional claims of Parliament has resulted in such an ingenious and complex body of legislation. Set alongside the most famous of ‘devolved’ settlements, the constitution of the United States of America, it appears indeed as a monument to the capacity of contemporary British law-makers to smother whatever constitutional principles they may wish to articulate under the weight of detailed technical regulation and political expediency.

Further steps towards decentralisation in the reform programme Devolution is an important aspect of the wider issue of decentralisation. It is, therefore, relevant to conclude this account of the devolution schemes with a brief discussion of three other elements in the reform programme of which it can be said that they have genuine constitutional significance as opposed to being no more than straightforward changes in the organisation of certain public institutions. These are the Greater London Authority Act 1999 restoring a form of local government to the Greater London area, the Local Government Act 2000, and the plans which are gradually taking shape to allow for the possibility of establishing elected regional assemblies in England. Obviously all these measures affect in the first place the internal government of England and must be seen, therefore, as something like an official response to the implications of devolution for England. It is worth opening with a few quotations from the White Paper Your Region, Your Choice: Revitalising the English Regions, published in May 2002.16 In his preface the Prime Minister, Tony Blair, asserts that Devolution has strengthened Britain because it has allowed the different parts of the UK to give expression to their diversity whilst celebrating the values that bind us together as a nation. We believe that devolution can offer the same benefits to the English regions. This certainly suggests that the proposals set out in the White Paper are viewed in constitutional terms as somehow analogous to what has been done in Scotland, Wales and Northern Ireland. In the foreword, signed by the deputy Prime Minister, John Prescott, and by the then Secretary of State for Transport, Local Government and the Regions, Stephen Byers, it is asserted that the White Paper ‘sets out our plans to decentralise power and strengthen regional policy . . .’ Both in the foreword and later in the body of the document it becomes clear that the government envisages something like a hierarchy in the governmental structure of the United Kingdom. There is the central authority, Parliament and the British Government, though of these two it is the central government that receives far more attention than


Parliament. Policy areas of national importance remain with the national institutions which means in practice the central government which retains wide discretion to decide what is in fact a matter of national policy. Then there are the institutions of devolved government in Scotland, Wales and Northern Ireland and, hopefully, elected regional bodies in England to complement them. Below this level there are local authorities which remain ‘the community champion and chief service deliverer in their area’.17 According to the White Paper they will not lose their powers, though it is also made clear that once a regional authority is set up following a referendum vote in favour of asking for one, local government will be reorganised on the basis of a single tier of unitary authorities. In addition the government envisages many ‘cross-regional working arrangements’ which it promises to encourage, no doubt through its own strengthened regional offices. This is the desired organisational template both for government in England and for the United Kingdom as a whole. Its constitutional significance lies mainly in the fact that for England it envisages no basic constitutional innovation at all: the central government will use Parliament in the usual way to legislate as it sees fit for the internal governance of England, subject only to the constraint that in some circumstances such as the adoption of regional elected assemblies and of popularly elected mayors in local authority areas the approval of the electorate must first be gained in a referendum. Set within this context it is clear that the Greater London Authority Act 1999 belongs essentially to the category of local government re-organisation and is intended primarily to reverse the 1986 legislation abolishing the Greater London Council by re-establishing a single authority for the Greater London area. It leaves in place and with their powers intact the existing 32 London Boroughs, all of which are unitary authorities. Nor is the special position of the City of London affected. As far as powers go, the new Greater London Authority is more limited in scope than its predecessor, the Greater London Council, and has primarily strategic functions, chiefly in the sectors of transport, economic development, planning (in a limited way), environmental protection and culture. In addition in a complicated and indirect way a new Metropolitan Police Authority has been brought within the responsibility of the Assembly and the Mayor. There are, however, two features of the legislation that have implications for local authority structures generally and for the internal constitution of local government. To this extent they can properly be brought into the category of constitutional change. The first is the introduction of a popularly elected mayor and the second is the establishment within a local authority of a relatively clear distinction between a mayor with executive functions and a quite small elected authority which is primarily concerned with approving certain important matters like the budget and with continuing scrutiny of what the executive does. The popularly elected mayor is a notable innovation and was to serve as one of the models of internal local authority re-organisation recom-


mended by the Local Government Act 2000. The identification of scrutiny as one of the primary tasks of a small elected body (moreover, elected in London by the alternative vote system) was also taken over in some degree into the subsequent local government legislation. Indeed, local authorities as a whole in England have been required to re-organise their affairs so that something like a clear separation between a ‘cabinet’ and a scrutinising elected council is achieved. There is another aspect of the Greater London form of local government that may be intended to serve as a model, this time for such regional authorities as may be created at some stage in England. The Greater London Authority has been designed to remain small and confined chiefly to framework and strategy setting. It does not have extensive executive functions, though, of course, this is not to say that the dynamics of bureaucratic empire-building will not eventually lead to a much more extensive administrative apparatus than there is at present. But most of the executive functions are by the Greater London Act itself assigned to special-purpose bodies set up under it – Transport for London, the London Development Agency, the London Fire and Emergency Planning Authority and the Metropolitan Police Authority. Here the mayor has substantial powers of appointment, though even here he is constrained by various statutory requirements requiring Assembly and London Boroughs representation. Again this adaptation to Greater London circumstances of something like the agency model applied since 1988 in central government administration seems likely to be a pattern for any future regional bodies. Another striking feature of the legislation is the manner in which it imposes a forward-looking, strategydesigning duty on the mayor. Indeed so replete is the legislation with such provisions that it is hard to see what time the mayor can have left for resolving issues arising in the here and now. However, if the office is held by a highly competent and imaginative person who then stays there for at least two terms (eight years) it may be possible for him or her to make an impact by setting guidelines which prove effective in shaping future development and performance. Even so, however, there are still further limitations on the scope of the mayoral office. The Greater London Authority does not have independent taxing powers, though it is entitled to raise a precept on the London Boroughs and has done so. It can also acquire revenue from a range of charges it is able to levy. But to a large extent it depends on Exchequer grant and most of the executive bodies for which it has overall responsibility also benefit from ear-marked grants too. Thus the financial supervision from central government remains close. Furthermore, there are many spheres (notably public transport) in which ministers retain substantial powers to intervene and to seek to direct or influence the mayor’s policies. In summary, the new form of Greater London government has potential for making an impact in particular sectors of public policy, notably those like transport services that affect with growing intensity all major conurba-


tions. It is also possible that it will eventually help establish a new and more attractive profile of local authorities than this level of representative institutions has generally enjoyed in Britain over the course of the last half century and longer. And in one respect at least the political controversy within the Labour Party that finally led to Mr Ken Livingstone standing as a mayoral candidate and winning as an Independent held out a glimmer of hope for those who would like to see local authorities emerge in some degree from their long subordination to the demands of Westminster politicians and Whitehall administrative tutelage.18 But the Greater London Authority and its mayor do not represent a great constitutional leap forward, nor can their creation be set on a par with the devolution measures themselves. At best they may turn out to be harbingers of the future shape of local and perhaps regional authorities in England. Local government is beyond doubt in a weak constitutional position in Britain. It has never enjoyed any special protection under the customary constitution and remains strictly subordinate both to parliamentary legislation and to the supervisory powers (including the supply of finance) exercisable by the central government. However, so long as the government did not wish to become involved in the manner in which local authorities carried out their statutory functions and did not provide a major share of their income, the absence of a recognised constitutional status did not worry local authorities too much: within their assigned responsibilities they enjoyed substantial independence and their representative associations were treated with some respect. These conditions began to pass away during and after the Second World War, but did not finally vanish until the 1980s. Since then the instrumentalisation of local authorities as no more than the ‘deliverers’ of services has made rapid strides forward and they are now little more than the agents of the central authorities in the provision of services regarded as wholly national in character. Moreover, the local providers are subject to ever more meticulous setting of standards and targets from the centre and to the imposition of penalties for inadequate performance. The Local Government Act 2000 does little to alter this situation despite the rhetoric accompanying it about revitalising local communities and the democracy they are supposed to embody. It is true that the Act confers on local authorities something like a general competence to provide services deemed to be for the good of their area. But virtually nothing has been done to moderate the intensity of central supervision or to change the financial dependence of local government on centrally provided funds. Instead, the Act’s principal innovations concern the internal constitution of local authorities, and this is of some significance in the wider framework of constitutional reform. Without changing the corporate status of local councils and thus their theoretical possession of all the powers vested in a local authority, the Act requires local councils to change their patterns of internal governance in order to achieve something like an identifiable executive


authority distinct from the council itself and its committees. Originally, and in line with its thinking before the 1997 election, the government wanted to introduce something like the Greater London model across the board, that is, to allow for at least the possibility of popularly elected mayors being introduced generally. Such a radical redesign of the internal shape of local authorities ran into a lot of criticism, especially from the local authority associations and then in the House of Lords where the government was forced into amending its proposals substantially. The outcome was that the Act allows three options: a popularly elected mayor and ‘cabinet’; a leader elected by the council who then appoints a chief executive or town manager; and a leader or chairman elected by the council who in turn chooses from the council up to nine ‘cabinet’ members.19 Councils were required to examine these possibilities and then to submit proposals for their own internal reorganisation to the Secretary of State for his approval. If they decided to go for the elected-mayor model then they would have to submit this to local referendum before it could be put into effect and they also had to have an alternative in reserve in case an elected mayor were rejected by the voters. In the event very few councils indeed opted for either the elected-mayor solution or the mayor and appointed chief executive. The vast majority of councils opted for the model closest to the arrangements they were familiar with and most favourable to the vested interests of sitting councillors and local parties, that is to say the leader of the council and cabinet scheme. Only in a very small number of cases have the provisions in the Act for a petition to be drawn up demanding a referendum on the elected-mayor option been successfully invoked, and in the majority of those instances the local electorates have rejected the proposal. As a result the number of local authorities in which the electorate has been enabled to vote for a mayor with executive responsibilities has remained minute.20 The reform of the internal organisation of local authorities has turned out, therefore, to be something of a failure, at any rate in relation to the introduction of a directly elected and publicly accountable executive officeholder. Local authorities and the principal political parties controlling them have ensured that the authorities continue to be managed by relatively invisible small groups of councillors who are not in a straightforward way publicly accountable for what they do. Indeed, the reorganisations may in some respects have made accountability even more difficult to track down. Power in local authorities now rests mainly with small teams of councillors drawn either from the majority party or if there is no majority for a single party from some kind of local coalition. The members of this cabinet style ‘executive’, though distinctly part-time and normally without professional experience, are nominally at least in charge of the main services run by the council. The role of plenary council meetings has been much reduced and the dispersion of influence amongst a number of functional committees has given way to much more delegation of decision-taking either to ‘cabinet’


members or to officials. The introduction of scrutiny committees and, if the authority so decides, area committees has brought about much uncertainty about what these new bodies are supposed to do, how they should be constituted and how they should operate. So a scheme that might have been envisaged at the start as opening the door to more effective democratic methods of local government may have ended up simply reinforcing the oligarchical tendencies already strong in this sector. As has happened in other spheres here is a constitutional change in outline which fails to fulfil what might have been its original promise. Finally it is necessary to return to the issue of regional institutions in England. The White Paper of May 2002 represented an important stage in moving forward to the introduction of elected regional institutions in England. It was later followed by a bill introduced first in the House of Lords to facilitate popular votes in English regions on such a proposal, and the measure was eventually passed. The White Paper is driven (or so it appears) by the belief that regional institutions have to be offered to the English in order to make them believe that they too have got something out of the devolution deal and are not disadvantaged in comparison with their neighbours. But it is also driven by another belief, namely, that regional devolution in England has got to be sold on an economic benefits prospectus promising that regional institutions will operate so as to make each region richer. The historical evidence for such an effect from the impact of previous regional development measures is both weak and in part contradictory, but despite that the case for regional authorities continues to be pressed on such grounds. More important in reality is the government’s policy of strengthening its own agencies of regional development and functional oversight of local service provision, a process that has made big strides forward in recent years. Regional authorities on the lines envisaged would, so it is hoped, add support and legitimacy to the central government’s desire to see an effective tier of regional administrative coordination and supervision. The contents of the White Paper represent, therefore, an uneasy mixture of claims expressed in terms of what material benefits the proposed regional institutions could bring ‘where people want them’ and the alleged enrichment of political life by the introduction of this new layer of democracy. In design the proposed institutions would follow in one respect the Greater London Authority model, that is, a quite small elected body with mainly strategic functions. But there are to be no elected regional ‘governors’ and the executive arm will, therefore, be drawn from the elected body itself. There are the usual assurances that no new and extensive layer of bureaucracy will be allowed to emerge. It would appear that the regional offices of the central government might be further strengthened, but it is not intended to give the regional assemblies any direct revenue-raising powers. Most significant of all are two promises that have both political and constitutional implications. One is the promise (now embodied in the


Regional Assemblies (Preparations) Act 2003) that no scheme of regional government will be introduced in any region unless the proposal to have one has been first approved in a regional referendum. However, the decision on whether the conditions for holding such a vote are met is not to depend on the protagonists of regional institutions gaining a specified level of support for it. Instead the decision will be chiefly at the discretion of the central government and it is not difficult to envisage the ways in which vocal regional pressure groups will in some parts of England persuade the government that there is a really strong demand for a referendum on having an assembly.21 A further condition of moving in this direction already mentioned is that the price for having regional institutions will be that local authorities in the region concerned will have to be reorganised as unitary authorities. What this is likely to mean in practice is that county councils will disappear from the local government map, presumably to be replaced by unitary all-purpose district authorities. While there may be party political motives for this proposal, it is also likely that the authors of the White Paper wish to protect themselves against the accusation that the establishment of a regional layer of government will simply add an additional remote level to an already multi-layered system. In this connection it is striking that the White Paper makes no attempt at all to justify the existing pattern of regional areas or to explain how in most of them their inhabitants could ever see themselves as belonging together in any way. After all those living in Wick and Melrose do at least have in common an awareness of belonging to a nation, Scotland. But it is difficult to discern what Carlisle and Crewe or Penzance and Bristol have in common within their respective regions, not to speak of Oxford and Margate or King’s Lynn and Chelmsford. Notwithstanding the shaky empirical basis for so many of the assertions in the White Paper and the naivety of most of the political arguments it contains, it appears that the present government sees progress towards the establishment of regional institutions in England as equivalent to putting the coping stone on to its work of constitutional renewal of the territorial structures of government right across the United Kingdom.22 It remains uncertain, however, whether the process of devolution – or regional decentralisation as it might also be called – can be carried much further than it has been in the three major pieces of legislation affecting Scotland, Wales and Northern Ireland. England, which makes up about 85 per cent of the population of the United Kingdom and a similar proportion of the whole country’s national wealth is the oldest unified state in Europe, unified, moreover, through the efforts of its two most enduring institutions, the Crown and Parliament. Its government has radiated out from London for a thousand years and it is hard to believe that the inherited political shape of England, the manner in which the country is constituted, can somehow be reversed or dissolved by a somewhat flimsy piece of statutory engineering. This is the fundamental reason grounded in a long historical experience why


there are such severe limits to the scope for devolution in England. Were regional institutions to receive even the powers granted to the National Assembly for Wales the Parliament of the United Kingdom – which has already to a substantial extent reverted to being the Parliament of England – would be eviscerated, deprived of the larger part of its raison d’être. But politically more crucial still, ministers of the Crown in London would lose very many of their effective powers. HM Government and Parliament would at best be confined largely to levying taxes, sharing out the revenues and looking after defence and foreign relations. Such a construction appears to be quite unrealistic in political and constitutional terms. Apart from the intractable constitutional problems it would present, it would be as unacceptable to the majority of those in the national political elites as to the majority of English voters. Provided serious political tensions can be avoided or moderated the devolution of authority to the minority nations may gain an enduring place in the institutional structure of the United Kingdom, though it is still too early to predict this with confidence. But there is no evidence to suggest that it is a recipe that can be applied in any serious measure to England or that the English would in the majority find a fragmentation of their country and its institutions politically and constitutionally acceptable.

Notes 1. On the early stages of Scotland’s move towards administrative devolution see James W. B. Mitchell, ‘The Emergence and Consolidation of Scottish Central Administration 1855–1939’, D.Phil. thesis, University of Oxford, 1987. 2. Royal Commission on the Constitution 1969–73, Vol. 1, Report, Cmnd 5460, 1973. 3. The electoral system testifies to the likelihood that proportional representation, especially if it involves party lists, will benefit smaller parties and potentially strengthen their position in coalition bargaining. 4. The 1978 Barnett formula is named after its originator, the Chief Secretary to the Treasury, Mr Joel Barnett. It is a population-based rather than needs-based formula for allocating funds to Scotland, Wales and Northern Ireland. It involves adjusting the level of Exchequer grant on the basis of changes agreed between the Treasury and central departments for expenditure in England (or Great Britain in the case of Northern Ireland) and aims in principle at convergence of funding levels. Like all grant allocation formulae it is complex in detail and its outcomes have become increasingly controversial. Radical revision of the formula would be politically difficult. See Constitution Unit, UCL, The State of the Nations 2001, ed. Alan Trench, Imprint Academic 2001, Chapter 6, ‘Finance – the Barnett Formula: Nobody’s Child?’ 5. The Human Rights Act 1998 did not generally come into effect until October 2000, but as the Scotland Act came into force before that date it was held that the courts there had to take note of Convention rights straightaway. 6. References to and decisions of the Judicial Committee of the Privy Council on devolution cases are reported online. Since 2000 a small number of such cases


7.

8.

9.

10.

11.

12.

13.

14.

15.

16. 17.

has been reported, mainly stemming from reference by the higher courts in Scotland. The German Constitutional Court has developed a doctrine of ‘federal comity’ to apply to relations between the members of the Federation. See P. M. Blair, Federalism and Judicial Review in West Germany, OUP 1981. The Northern Ireland Assembly was first elected in mid-1998, but the commencement of devolution was delayed by political difficulties until December 1999. It can be argued that the suspension of the Assembly under the Northern Ireland Act 2000 is in conflict with sections 16 and 32 of the Northern Ireland Act, the first of which places a duty on the Assembly to elect a First and Deputy First Minister and the second of which appears to empower the Secretary of State to dissolve the Assembly and order a new election if it fails to perform this duty. However, the government preferred to allow a mock election to a non-existent Assembly to take place in November 2003 and suspension continues. At the time of writing, though a review of the operation of devolution in Northern Ireland is taking place, it remains uncertain when and whether the Assembly will be able to function again. The Local Government Act 2000 has shifted the operational structures in local authorities towards a clearer separation than used to exist between a political executive (made up of councillors) and a council with mainly ratifying and scrutinising functions. The Welsh Assembly model of devolution on paper at least seems to look back to the earlier patterns of local government organisation, that is, the control of policy through council committees. Though the Labour Party gained two seats and Plaid Cymru lost five in the Assembly elections 2003, this still left the Labour administration without a majority over all the other parties combined. So Mr Morgan stayed in office, but was slightly strengthened. In 2003, the Welsh Assembly appointed a commission chaired by Lord Richard of Ammanford, a former Leader of the House of Lords, to review its powers and functions. This body reported in March 2004 in favour of a larger Assembly, some legislative powers and a tax-varying power. There is no prospect of early action on such proposals. A variety of consultative bodies has been established to achieve coordination and maintain harmony with the UK government in London. A 1999 Memorandum of Understanding provided for ‘Concordats’ in several policy sectors. In some circumstances reinforced majorities are required, for example, under the Scotland Act, Section 3(1), relating to the Parliament’s power to bring about its own dissolution. The Labour MP Mr Tam Dalyell, was a strong and vocal opponent of devolution both in the 1970s and in 1998. His constituency in the 1970s was West Lothian and the question he posed came to be referred to as the ‘West Lothian question’. But it was not in fact a new question: it had been raised often in the controversies accompanying Gladstone’s Home Rule Bills of 1886 and 1893. In cabinet changes announced in June 2003 the Prime Minister initially appeared to have got rid of two of the secretary of state posts, but he then quickly resurrected them in formal terms at least by attaching Wales to the Leader of the House of Commons and Scotland to the Secretary of State for Transport (a Scot, moreover). The Secretary of State for Northern Ireland survived unscathed. Your Region, Your Choice: Revitalising the English Regions, Cm 5511, 2002. Ibid., Chapter 8, ‘Summary’.

208 Reshaping the British Constitution 18. Mr Livingstone was elected as an Independent and as a consequence suspended for five years from the Labour Party. He was re-admitted in January 2004, no doubt to guard against the risk of a loss of face by the party should its official candidate be defeated in a second contest with Mr Livingstone standing as an Independent. 19. The Local Government Act 2000 lays down detailed permissible alternative organisational schemes. Section 11 in particular refers to these. 20. As of March 2003 there were only 11 directly elected executive mayors in England, including the mayor of London. 21. The activities of lobbyists in the North East of England have had some success in propagating the idea that there is a groundswell of popular support there for regional devolution. A variety of public figures, including the Bishop of Durham, were enlisted to support this movement. Against this kind of background the government appears to believe that there is enough local demand for regional institutions to justify the holding of a referendum. 22. On 16 June 2003 it was announced by the Deputy Prime Minister’s Office that the Boundary Committee for England had been asked to carry out local government boundary reviews in three regions, the North-East, the North-West, and Yorkshire and Humberside, as required by the Regional Assemblies (Preparations) Act 2003 prior to the holding of a referendum on the setting-up of a regional assembly. This action did not entail a firm promise to hold any such referendum.

10 Reform at the Centre: the Primacy of Politics

In principle the sweep of constitutional reform was intended to embrace at any rate some of the central institutions at the heart of the British system of government. Parliament was on the agenda and in far-less-specific terms so were the political executive and the administrative organisations serving it that together make up the civil service. It has to be said at the outset that with one exception none of these central institutions was after 1997 the target of a specific measure of constitutional reform to which the government was politically committed. The exception was the second chamber of Parliament, the House of Lords, which figured in the original catalogue of reform measures promised in New Labour’s manifesto before the 1997 election. Here the initial commitment was quite straightforward: to abolish the hereditary principle in relation to membership of the second chamber. In relation to the other principal institutions at the centre the undertakings were vaguer and did not call for immediate action. The House of Commons was to be modernised and made more effective, though it was not explained what that might mean. There was something like a promise to look at electoral reform in relation to the Commons, but certainly no clear commitment to move towards a form of proportional representation for parliamentary elections. As for the political executive not surprisingly its shape, structure and operational principles were to be left to pragmatic adaptation at the discretion of the prime minister, and much the same can be said of the civil service. There had for some time been a call in some quarters for legislation to define the rights and duties of civil servants, and thus to clarify the boundaries between ministerial office and service of the Crown. But there was no definite sign of a desire to regulate by law relationships and procedures which had hitherto been to a very large extent left to the exercise by ministers of political discretion covered by the prerogative powers of the Crown.

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Reform in Parliament: the House of Lords The principal example of constitutional change affecting Parliament and requiring legislation was the measure that brought about the partial removal of hereditary peers from the House of Lords. This was achieved by the House of Lords Act 1999. The original intention as expressed in the 1997 Labour Party manifesto was to remove the right of all hereditary peers to receive a writ of summons to sit in the chamber, but this encountered stiff opposition on the grounds that it was unacceptable to make such a sweeping change when the terms on which the reform of the Lords would be completed were unknown. Thus, in order to make sure that its measure would secure approval in the Lords without resort to the Parliament Act procedures and consequential delays in making progress with other legislative priorities, the government struck a deal with Lord Cranborne, the Conservative leader in the House of Lords, under which the bill was modified to allow for the retention for ‘a transitional period’ of 92 hereditary peers. Two of these are hereditary officeholders under the Crown, 15 are peers elected by the whole House to serve as Deputy Chairmen in the chamber, and the remaining 75 are peers elected by their parties or in the case of cross-benchers their group. The size of parties and groups was defined by reference to affiliations recorded at the time of the passage of the Act. This meant that 42 Conservatives were chosen (of whom 1 subsequently became Chairman of Committees and thus moved into the cross-bencher category), 3 Liberal Democrats, 2 Labour, and 28 cross-benchers (that is, peers not taking any party whip).1 The notion of hereditary peers electing from their own ranks persons who are held in some elusive sense to represent them all in an attenuated House of Lords is in itself somewhat hard to justify, though it was defended at the time on the grounds that it was wrong to remove the whole of the hereditary peerage in advance of firm proposals to complete the reform of composition. The retention of some hereditary members has, however, had an even more bizarre consequence, namely, that as from the beginning of the 2002–03 session of Parliament it became necessary to hold elections to fill vacancies resulting from death in the ranks of those originally chosen to stay. Should the vacancy be among the Deputy Chairmen (as happened in January 2003), then all members of the House were entitled to vote, though the candidate had to be a hereditary peer from a list of those expressing willingness to stand held by the Clerk of the Parliaments. But if the vacancy were to occur in any of the party or cross-bench groups, the electorate then consists only of hereditary peers who are members of the relevant group in the House. This means that in the case of the Labour Party the electorate would consist of 3 persons and in the case of the Liberal Democrats of 4.2 The exclusion of most hereditary peers altered the political balance of the House of Lords and reduced its size considerably. Since the hereditary

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peerage was predominantly Conservative in party allegiance, the departure of most of its members removed the built-in majority possessed by the Conservative Party. At the end of 2002 that party did, however, remain the largest single party by a modest margin (217 Conservatives to 188 Labour). In contrast, the Blair Government still remained very much in a minority in the chamber, despite the appointment of numerous Labour supporters since 1997. This was mainly due to the continuing presence of a large contingent of cross-benchers (177 in December 2002) whose voting patterns are unpredictable and their readiness to vote intermittent.3 It is also worth noting that the introduction of a non-statutory Appointments Commission charged with making non-party proposals for life peerages has naturally resulted in a modest increase in the ranks of the cross-benchers.4 Notwithstanding these changes the House of Lords remains, however, a large legislative body with 693 members recorded at the end of 2002. The exact membership figure at any particular time is, however, not very significant, in part because death strikes not infrequently in a chamber where the average age is close on 70.5 Also, the number of members is no guide to how many can and do participate in the work of the House: for example, average daily attendance in 2001 was 355. The total membership just quoted includes bishops and Law Lords (active and retired), but the dominant element nowadays has plainly become the 550 or so persons appointed for life under the Life Peerages Act 1958. It is this group which most obviously owes its membership of the legislature to political patronage. Inevitably too the average age of its members is relatively high and this is always likely to remain so, if only because the demands on the time of members who participate are so substantial that active membership is difficult for those still in full-time employment. As a result the chamber is bound to have a membership whose age is in general well above the normal retirement age of the working population at large. It is also hardly surprising that formerly active politicians from the House of Commons, and especially ex-ministers, make up a substantial cohort of the life peers. In contrast to the House of Commons the Lords remains predominantly a chamber of part-timers and voluntary participants, despite the fact that its sitting hours now frequently exceed those of the Commons. Its members receive attendance allowances and limited expenses, and there is some scope since 2001 for claims to secretarial and research support costs provided these are linked to attendance. But overall the total running costs of the Lords are low (about £60 million per year, including the cost of support services), a factor not to be overlooked in relation to any radical shift in composition in favour of an elected membership. On the other side of the coin is the fact that the working membership of the chamber (generally estimated at about 400, though a somewhat lower figure is probably closer to reality) is bound to remain under current conditions somewhat fortuitous, consisting chiefly of those willing and able to attend. Almost by definition members young


enough to have full-time professional commitments cannot devote a lot of time to their functions as legislators, which means that the main burden of work falls on those who are fully retired or have careers in professions where they can have considerable control over their own time. A place of residence and work in or near London is a virtual necessity for members anxious to participate regularly. It has also to be remembered that the active Law Lords do not participate significantly in the legislative work of the House, in part because the shadow of a challenge on grounds of breaching the principle of the separation of powers has appeared on the horizon since the embodiment of the European Convention on Human Rights into British law, that the bishops are kept busy in their dioceses and so are not generally assiduous participants, and that there is a small, but gradually growing number of members who actually occupy non-ministerial full-time executive positions and, therefore, are effectively not available to take part in the work of the House.6 The tale of efforts to reform the composition of the Lords since the passage of the House of Lords Act 1999 is basically one of hesitant starts, muddled outcomes and continued adaptation of existing conventions and practices to meet the convenience of the ruling politicians. A royal commission on Lords reform was appointed in 1998, charged with reporting by the end of 1999. Its report came out in January 2000,7 but failed to gain strong support in the Lords or to persuade the government to make up its mind about what to do. Eventually a consultation paper under the title Completing the Reform was issued, addressed to the world at large and calling for opinions to be sent in by early 2002. This allowed scope for another White Paper summarising the results of the consultation to be issued, and after that the appointment of a Joint Committee on House of Lords Reform bringing together members of both Houses. This was left with a more or less free hand to make recommendations on composition to both Houses. At this stage the government almost gave the impression of standing aside from the issues at stake, indicating that it would accept free votes on whatever recommendations the Joint Committee might make. The assumption underlying its work was that it had to focus its attention on the question of whether there should be elected members and, if so, in what proportions. Its report, issued towards the end of 2002, offered a more-or-less exhaustive range of seven options running from no elected members through proportions of 20 per cent rising to 50 per cent and 80 per cent and finally 100 per cent.8 These confusing proposals were debated in both Houses in February 2003 and put to the vote. Whilst the Lords voted firmly in favour of retaining a wholly appointed chamber, the Commons contrived to reject all the options on offer (including the additional possibility of total abolition). The outcome of the votes in the Commons showed that an elected element of 80 per cent had more support than any other option, being defeated by a majority of only three. Nevertheless this wholly inconclusive outcome of the latest effort to reach


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a decision in Parliament on the future composition of a reformed chamber to replace what the government had dubbed ‘a transitional chamber’ left the future of the House of Lords still more uncertain and dependent on the political judgement of the government. Since the Prime Minister made clear before the debates on the Joint Committee’s options that he had concluded that the chamber should remain an appointed body, it was not surprising that later in the year he announced that the remaining hereditary peers were to be removed and that the membership of the Lords would, in the absence of any agreement on a viable reform proposal, remain wholly nominated. This outcome suggests that the saga of the unfulfilled preamble to the Parliament Act 1911 is likely to be repeated.9 It has often been asserted that the problem with House of Lords reform lies mainly in a failure ever to find agreement on composition. Most protagonists of radical reform want to see a wholly elected chamber, though there are some who would prefer total abolition. An elected chamber, so it is argued by some, would eventually result in a challenge to the authority of the House of Commons, an argument used by Mr Blair when in answer to a parliamentary question in January 2003 he made clear that he was in favour of a wholly appointed body so that there would be no risk of a rival to the Commons obstructing its will.10 This formulation was, of course, the familiar code for obstructing the will of the executive. There are also cautious reformers – most of whom are perhaps in reality supporters of the status quo – who support an appointed chamber, preferably with no elected members at all. Their claim is that this will preserve the admirable qualities of the current chamber and avoid the disadvantages of making room for more professional politicians. It is, however, worth considering whether the stumbling block is simply disagreement on composition, or whether a deep ambivalence about powers and functions is not one of the principal sources of a reluctance to undertake reform both on the part of the political executive and in the House of Commons generally. Virtually all of the official pronouncements of the past five years, and indeed most of the opinions expressed by independent commentators, point to the conclusion that there is no pressing need to amend significantly the powers of the second chamber or to change radically the functions it performs. It has been suggested that the Lords’ powers in relation to secondary legislation might be formally curtailed (they are almost never used any way), but there has been no strong call for the Parliament Acts to be made more stringent or for limitation of the practice of governments of introducing primary legislation in the Lords when it suits them to do so. As to functions there is a wide consensus that the primary role of the Lords is to act as a revising chamber. But the key issue – not often faced up to – is what this means. It certainly appears to embrace debate on the principles of bills coming to the Lords, clause-by-clause scrutiny, perhaps a degree of technical amendment, acting as a conduit for government amendments,


and much more doubtfully substantive amendment and possible rejection of a measure or parts thereof. The Royal Commission on the Reform of the House of Lords wrapped this matter up in a great deal of flannel.11 It was careful to say that the legislative function should go beyond a purely formal revising role and that the present suspensive veto should remain as a means of requiring the government and the House of Commons to ‘reconsider proposed legislation and take account of any cogent objections to it’.12 On this basis it concluded that the present position was ‘about right’ and that, having regard to the claim of the Commons to ultimate supremacy, the House of Lords did in fact act as a check on the ‘elective dictatorship’ which is in the eyes of many the reality of the British constitution. Historical experience also supports at least part of this argument. Since the enactment of the Parliament Act 1911 the suspensive veto has in fact rarely been invoked – only five enactments have been put through under the Parliament Acts in more than eighty years. This alone suggests that the House of Lords long ago reconciled itself to a very cautious view of its revising functions. This was confirmed by the so-called Salisbury Convention developed after 1945 to discourage any interference with legislation stemming from the manifesto commitments of a government, and reinforced by the growing awareness that no government was likely to accept the prospect of the Lords seriously modifying any of its plans. Thus the Lords is only very rarely inclined to insist on an amendment or rejection of a measure in the face of a government’s determination to use its majority to get its way. Amendments are carried relatively often at the committee stage of a bill, but if opposed by the government few of these will be pressed again when the legislation comes back from the Commons with its original terms restored or perhaps modified in a limited way to mollify opponents of it. What this analysis indicates is that the revising function is already severely limited in range and likely impact. It does not embrace a genuine and accepted right to amend and to reject. It is confined as a rule to a process of probing (often carried out through amendments proposed, debated and then withdrawn), to technical scrutiny and amendment, and to as much improvement of bills in respect of drafting, terminology and presentation as can be achieved in the time available. If this kind of assessment is accepted it might be held to justify a more realistic and honest statement of the revising function which would in turn allow the arguments for and against election and appointment to be put on a different basis from that which has been usual up to now. For if the second chamber is agreed to have no more than a limited and highly qualified revising function this could justify both some redefinition of its powers, including a retreat from the formal position of qualified equality as presently sanctioned by the Parliament Acts, and a radically different view of its appropriate composition. The principal ground for recommending an elected membership wholly or in part is that only elected persons can legitimately exercise full law-making powers. But if the


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second chamber does not have the full range of legislative powers, including the right to make substantive amendments and to reject, then there is far less objection to an appointed membership. Indeed, such a membership might well be able to offer greater competence in the performance of its restricted revising functions than could be expected of an elected membership. It is in relation to the passage of legislation that a serious issue of legitimacy arises from the present membership of the House of Lords. It is doubtful whether the same can be said of the other functions usually attributed to the chamber. The Joint Committee in its first report already referred to mentioned within a somewhat disorganised summary of roles performed by the Lords that of constitutional long-stop, the judicial function and the scrutiny function. Apart from its right to refuse to approve a measure extending the life of a Parliament, the Lords has no more powers in relation to supposedly constitutional measures than in relation to any other piece of legislation. What is more, the constitutional long-stop role clearly suffers from the lack of agreement about what is a constitutional measure implicit in the nature of the British constitution. The most, therefore, that the Lords can do is to debate and ventilate what some of its members may regard as constitutional issues. A wholly appointed body could continue to perform such a function. The same certainly goes for the scrutiny function, much of which is performed by select committees such as that on the European Union with its six sub-committees, and the Science and Technology Committee. Much of this work is of high quality and represents a praiseworthy commitment to the analysis of serious issues and complex areas of activity as well as more generally informing the public. Nevertheless it remains doubtful whether the impact on governmental policy is really significant. So scrutiny too is a function which hardly calls for the legitimation conferred by election. As to the judicial function this has long been in the care of highly qualified professional judges and it is merely a historical accident that as members of Britain’s highest court they happen still to sit in the Lords. Had it been decided to replace the present House of Lords by a wholly elected or even part-elected chamber, there is little doubt that the judicial function would then have had to move out into a separate supreme court.13 If, however, the objective of House of Lords reform is to establish an effective institutional check on the elective dictatorship presently exercised by the government through its command of the House of Commons and the absence of other formalised constraints on the use and abuse of its powers, the question of composition has to be considered in a quite different context. Perhaps the House of Commons Select Committee on Public Administration was edging nervously in this direction in a report on the Future of the House of Lords released in February 2002. Here we find the following statement:


But the House of Lords is not a political place where technocrats and philosopher kings debate issues in an entirely disinterested atmosphere – the second chamber is not primarily an advisory committee or quango, but a politically active chamber of the legislature. Therein lies its chief value. The expertise of the second chamber is of no value unless it is used effectively in the actual business of holding government to account and improving the quality of legislation.14 Even if a certain amount of internal contradiction in this pronouncement is discounted, it certainly appears to endorse a more active political role for a second chamber than can be found in the exercise of the revising functions as now practised. The Select Committee shied away from adopting a serious ‘checks-and-balances’ argument, but nonetheless envisages an overtly political role for the Lords. But the more firmly the case for a second chamber is made to rest on the need for effective checks on the unlimited discretion of a government acting in the name of a Commons majority, the stronger and more compelling becomes the case for setting up either a wholly elected chamber or one in which a clear majority of the members is elected. What is more it would then be reasonable for such a chamber to retain something very close to the powers enjoyed in law and constitutional theory by the current chamber. But these are nettles which the greater part of the political class in contemporary Britain, and in particular those who at any time happen to be in power, refuse to grasp. To do so would require reasonably clear answers to be given to explicit questions about the legitimacy of institutions and the terms on which they act. Virtually the whole weight of British political history counts against the possibility of such a clarification of choices, quite apart from the continuing strength of the preference for convenient delay and preservation of all those ambiguities so favourable to the claims of political officeholders. But if the objective of establishing a genuine counterweight to the claims of the executive power wielding its Commons majority is not accepted, and if further it is widely agreed that a second chamber operating on the present basis as a limited revising body is adequate and politically acceptable for the purposes it now serves, then the appointment of members may well be the surest way to preserve its modestly useful role in the constitution. In such a context the question of legitimacy becomes largely irrelevant. Yet as noted above there is no willingness to face up to these uncomfortable issues in the continuing argument about what to do with the House of Lords. Of only one fact can the observer be confident: no government is likely voluntarily to undertake a reform that might ultimately clip its own wings.

Reforming the House of Commons Reform efforts in the House of Commons have been undertaken under the banner of ‘modernisation’, which means that they have been guided and


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shaped by the government. For some time after 1997 little was done to effect change in the House of Commons, in part because a number of legislative priorities took precedence over a concern for procedural changes in the House. An Independent Commission on the Voting System was set up in 1997 under the chairmanship of Lord Jenkins of Hillhead and its report in 1998 quite predictably leaned towards reform of the electoral system in order to bring about more proportional voting.15 The report was quickly pigeonholed, much to the disappointment of the Liberal Democrats who had to accept the government’s unwillingness to consider the one set of changes that carried the almost certain prospect of radical changes in the terms on which parliamentary government in Britain operates. More significant was the decision in the early days of the Blair government to set up a Modernisation Committee in the House of Commons, chaired by successive Leaders of the House. This was intended to take the lead in considering how procedure might be modernised. The difficulty with a remit like this lies in the obvious fact that modernisation as a concept resembles a blank space waiting to be filled in with whatever meaning its advocates – and indeed its opponents – give to it. In this instance modernisation has been taken by its supporters to refer chiefly to rationalisation of working methods and times, in part to meet the convenience of Members, in part to make it easier for the government to programme its legislation and get it through Parliament with as little delay as possible. A range of procedural changes was introduced either as experiments or on an ad hoc basis, and then in late 2002 a package of changes emanating from this committee was ready for debate in the House. This was duly given approval for implementation in early 2003, though with some objections being raised by the opposition parties. Under Standing Orders for Public Business 2003 several of these changes remain ‘temporary’ and thus in theory are open to reversal or further change. The most obvious change has been in the sitting hours. The Commons now starts at 11.30 a.m. on Tuesdays, Wednesdays and Thursdays (2.30 p.m. on Mondays and 9.30 a.m. on Fridays) and aims to finish by 7 p.m. on those days. Perhaps to compensate for a somewhat shorter working day it has been agreed that regular September sittings will be held, though it remains to be seen how ‘regular’ these will be. Prime Minister’s Questions have been brought forward to noon on Wednesdays and statements are also to be made at lunchtime. In relation to the passage of legislation support for the principle of ‘pre-legislative’ scrutiny was strongly reaffirmed, the possibility of carrying over government bills from one session to another within an overall 12-month limit was accepted, and it was decided to continue with arrangements for programming bills, subject to more consultation with opposition parties on timing. Minor changes in the notice period for oral questions and in the time limits for speeches on the floor of the House were also agreed. In addition the ‘Westminster Hall’ debates (occasions for backbenchers to raise more or less any topic under the sun) and held during the


mornings were to become a permanent feature of procedure. The thrust of many of the changes that have taken place is fairly clear. First, they are intended to appeal to those who have long pressed for a more predictable and convenient pattern of work for Members through a shift (even if modest in extent) towards more normal hours of work. This includes a chance of returning home in the evening, though this is of little use to those who live well out of commuting reach of London. Second, they represent a further effort to make it easier for the government to organise and push through its legislative programme, in part by reducing the capacity of opposition parties to delay the passage of bills in standing committees by exerting pressure on time, a crucial resource from the point of view of a government keen to get its bills through Parliament. Nor is it likely that the readiness to make more use of pre-legislative scrutiny, a facility controlled by the government in any event, will make much difference in this context. And third, they furnish the prime minister and other ministers who go to the House to make statements (a practice greatly reinforced in recent years) with an even more convenient publicity platform somewhat earlier in the day from which to dominate the day’s news. The presence of an overwhelming government majority since 1997 does of itself create a somewhat abnormal situation in which to assess procedural reforms. A large majority makes it easier for the executive to get its measures through, at any rate until the wear and tear of office begins to have an impact on the parliamentary party by provoking discontent in its ranks. But it also means that the opposition parties lack the strength to contribute effectively to the design of reforms, some of which are then passed without a real consensus in the House on their desirability. So it can be argued that many of the changes made simply reflect the mood and aspirations of the present majority in the Commons as well as the style and working habits of the present government. Certainly there are few grounds for believing that they rest on any settled convictions bearing on what a ‘modernised’ House of Commons would look like and how it might restore in some measure what is widely believed to be the diminished standing of the chamber in the eyes of the public. Nevertheless, both reformers and traditionalists seem to be in broad agreement about what the House of Commons should be doing. As the elected chamber of the legislature on behalf of which large claims to authority are still regularly asserted it necessarily has the function of examining and approving legislative proposals, nearly all of which now proceed from the government. This legislative function embraces not only the conferment of all new powers on public authorities and the amendment or repeal of existing law but also the approval of all taxation and expenditure measures which must in any event proceed from a minister of the Crown. What is often overlooked, though it is a matter of crucial importance in the context of any analysis of the constitutional position of the Commons, is that it is


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mainly in the spheres of law-making and finance that the House has in principle real powers, even though their exercise independently of the executive has become largely theoretical under the impact of ‘mandated majorities’. The function of exacting accountability through the activities of debate and scrutiny in its many forms is both broader and more amorphous than the legislative function, and tends to receive more public attention. But that does not alter the fact that the passage of legislation is the most important authorising activity engaged in by both Houses. The initial stages of most legislation consist in debate, normally on the floor of the House and governed by the formal procedures of the chamber. Debate must always take place on a question of some kind or other and must terminate either in withdrawal of the question, that is, no vote is taken, or by determination of the question by means of a vote. Thus the procedure of debate is always in principle adversarial, even though many of the questions put are purely formal. Ideally debate is intended to allow participants to hear the arguments and then to decide how or whether to vote. This, of course, rarely happens in practice and is, indeed, starkly at odds with the requirements of party government. So dominant have become the claims of party discipline and loyalty that debate has become in many Commons contexts mere ritual, a space for the reiteration of familiar party positions. This state of affairs has in turn gradually eroded and dissipated the actual skills of debating that were previously thought to be essential to a successful career in the House of Commons. In addition social and cultural changes affecting public life, the impact of television on the presentation of both arguments and personalities, and the thorough-going professionalisation of political careers within parties have all conspired to displace the classical, nineteenth-century notion of a parliamentarian. At best no more than a few echoes of that survive. It is perhaps unfortunate that debate has become a pervasive and often crudely understood concept. Within the House of Commons legislative process the practice of debate is carried on after bills have received a second reading into the standing committee stage, since these bodies also examine bills in detail within the formal framework of debate, with amendments moved often simply for the sake of continuing a wider political argument. Despite the fact that the innovations proposed by the Modernisation Committee and now accepted by the Commons refer to pre-legislative scrutiny as a desirable practice (that is, reference of what is basically a draft bill to a select committee for discussion and analysis) and endorse more frequent programming of bills (that is, establishing a timetable for the principal stages of the legislative procedure), it remains the case that detailed legislative examination still proceeds almost entirely by adversarial debate. No change is envisaged here. But debate has become a looser term still, used widely in an undiscriminating way outside Parliament. Appeal is constantly made to the desirability of debate taking place on almost any matter that it is claimed


is of public concern, and by no means only within the confines of Parliament, but in the country at large. Even select committees, the activities of which take up a large part of the time of many Members who are not part of the government, are treated often enough as contributing to a ‘debate’ and have come to regard themselves as having this function rather than that of investigation and critical scrutiny of executive activities. The upshot is that for the most part debate has come to mean little more than controversial talk in an adversarial framework – often no more than a ritualised business of setting up aunt sallies for someone else to knock down. A similar loss of focus and, therefore, of purpose has affected the scrutiny function and that of ensuring that ministers and their agents and agencies remain accountable for what they do. Scrutiny in a broad sense is now carried out mainly by select committees, but just as debate has become pervasive, so has scrutiny. Backbench debates in Westminster Hall, adjournment debates, parliamentary questions, debates initiated in opposition time, and even general debate on bills may well include elements of scrutiny, at least to the extent that particular actions or proposals of executive agents may be exposed to questioning and the demand for information. But it is select committees which have since the early years of the movement for reform in the 1960s been hailed as the basic tools of scrutiny and, in that capacity, as the key to effective parliamentary reform. There is now an imposing range of select committees, covering every department of state as well as many other aspects of public administration and services, including the operations of the House itself. The sheer quantity of scrutiny work carried out is, therefore, very large and it results in the publication of huge amounts of evidence, opinion and recommendation. But, as already indicated in Chapter 5 there are severe limitations affecting select committees, notably that they have no powers and thus strictly speaking no decisions to take.16 It is, of course, part of the conventional wisdom that this multifarious activity of scrutiny makes governments sensitive to criticism and inclined to take some account of what select committees say. Sometimes this does indeed happen, and there can be no doubt that select committees of both Houses contribute something to the climate of argument and the range of information within which governments must act. But to demonstrate that this labyrinthine pattern of inquiry, questioning, informationgathering and reporting results directly in changes in executive decisions or intended action is hard. Occasionally the government is willing to change its course in response to scrutiny, but more often it will be a combination of circumstances, of which scrutiny is only one, that explains what then happens. Scrutiny as an activity is mainly justified by reference to what is most often cited as the rationale for nearly all parliamentary operations, namely, the pursuit of accountability. Parliament, and the House of Commons in


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particular, has the duty of holding the executive to account for what they do or is done on its behalf. Difficulties immediately arise when we ask what ‘holding to account’ or ‘being accountable’ or ‘exacting accountability’ actually mean and what the consequences of being accountable might be. It is possible to treat accountability as involving no more than the rendering of an account, rather like the duty of the treasurer of a club to present the accounts and to vouch for them himself. But while there is an element of this kind of accountability in the political world – for example, the Comptroller and Auditor General reporting on departmental accounts to the Public Accounts Committee of the House of Commons and the Committee in turn calling in Accounting Officers as witnesses – this kind of politically neutral and impartial accounting is not what most people have in mind when they think about accountability, and it is certainly not what politicians generally have in mind. In the public sphere in Britain to hold to account means in reality to have the possibility of blaming some officeholder for mistakes, errors of judgement, downright incompetence or worse. Accountability is demanded so that moral indignation can be appeased. This means that the varied procedures held to exact accountability are almost always applied in some confrontational manner or context, one in which somebody is under attack and exposed to the threat of having his or her position or reputation undermined.17 The inevitable consequence of this approach is that very often the effort to hold officeholders accountable is quite overshadowed by the competitive rivalry of political parties, the extreme reluctance of those in power to acknowledge mistakes or even to offer information about what they have done, and the obsession of their critics with trying to score points at the expense of their rivals. Not surprisingly, under such conditions much of the time and effort devoted to holding officeholders accountable is wasted and achieves no positive results. The preoccupation with accountability has intensified over a long period as the processes involved have become more and more politicised. It has also become a constitutional shibboleth which virtually nobody challenges: it is indeed rare to come across anybody prepared to question whether so much accountability is needed or serves any identifiable public interest. Instead it is simply assumed that virtually any process purporting to be directed to examining or probing accountability is a good, regardless of the quality, reliability or utility of its outcomes. Furthermore, much of the effort devoted to establishing accountability has for a substantial period been farmed out to non-parliamentary investigators, most notably during the past forty years or so to judges who are held to be particularly well-qualified to conduct inquiries, to evaluate evidence and to make sense of what may be complex and elusive matters.18 And far outside the circle of official accountability watchdogs there are the media, all of which have in varying degrees now climbed on to the accountability bandwagon and are keen to probe any allegation of failure in the public sphere coming to their notice.


The cult of calling officeholders of all kinds to account has become pervasive at a time when the effective capacity of Parliament to check and control the executive arm of government has been in steady decline. Short of something like a collapse of party discipline or an outbreak of deep public indignation in the face of misconceived action on the part of those in authority, there is hardly any scope within normal parliamentary procedures for officeholders to be censured or to be required to abandon whatever policy has been subject to an accountability inquisition. This means that for the most part accountability has no stronger meaning than ‘answerability’ – an obligation affecting a huge range of officeholders, high and low, to provide answers and information in a wide variety of contexts and in relation to a large and amorphous range of subjects. But the point about having an obligation (often of a rather vague kind) to answer is that it does not need to be associated with any likelihood of censure: the penal overtones of calling to account no longer have much practical significance. And for the most part this is what has happened. As a result of a persistent exaggeration of what can be achieved by calling people to account and of the need for such procedures, the concept of accountability has lost much of its constitutional relevance and effectiveness. It has become a constitutional cure-all, almost a mantra intoned by those who can see no way to restore meaning to the notion of checks and balances in the face of the virtually unlimited discretion enjoyed by the executive and its many agents. The balance sheet of House of Commons reform and ‘modernisation’ is not impressive. Both the accountability dogma and the cult of ‘debate’ encourage the engagement of much effort to very limited effect. The proliferation of departmental scrutiny has not been followed by significant developments in the shape of career opportunities for those Members not attracted to the ministerial ladder (or who may have been pushed off it), though the chairmen of select committees have gained more opportunities than they used to have to speak for their committees in public. Nor have the party machines relaxed their hold over appointments to select committees, though in a very few recent instances they have been forced to give way after trying to foist a new chairman on a select committee. In addition it remains as difficult as it has ever been to determine what kind of impact committee scrutiny has on decisions in government. In the House itself the debating model still holds sway despite the obvious decline in its popularity and in the ability of Members (and this includes ministers) actually to debate: mechanical ex cathedra pronouncements have become routine to an extent almost unknown a generation ago. And in the one sphere where in theory at least there should be scope for recovering powers – the legislative process – little has happened beyond steps to simplify and in some degree accelerate the handling of bills, thus making it easier for governments to get their legislation through. Even the encouragement of more scrutiny of bills by pre-legislative committees before they have been given final form for


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enactment can be a two-edged sword, giving a select committee a chance to inquire and suggest changes, but also subsequently making it easier for the government to insist on getting its measure through in the form already agreed. Few if any questions have been raised either about the gradual diminution of legal skills and experience among Members of Parliament, or about the disadvantages of a style of legislative drafting which tends to treat legislating as an exercise in the translation of the ambiguous expediencies of politics and administration into the sometimes arcane rigidities of modern British statute law. The modest results of reform efforts in the House of Commons testify to the deep-seated refusal of most of the participants in political life to take seriously the dangers which threaten the very notion of parliamentary government both in Britain and elsewhere. Parliament has to a substantial extent ceased to be in Bagehot’s terminology an ‘efficient’ part of the constitution, and even as a ‘dignified’ element its claims are not always taken seriously. Even what might be called the role of ratification – debate on a question followed by a vote intended to express, or perhaps to withhold confidence in the government of the day – has almost slipped away. Instead, approval in the Commons can normally be taken for granted, the activity of debate has lost much of its bite and sharpness, and ministers take heed of signs of dissent only when it is strongly expressed within the ruling party and appears also to reflect hostile feelings and opinions outside Parliament. While it is the tradition of parliamentary politics that still expresses the only way of conferring political authority within the ambit of British political experience, it has also to be recognised that the greater part of the contemporary electorate does not have a sophisticated grasp of parliamentary institutions and of how their country is governed. Within an environment like this the activities of both Houses of Parliament often take on the character of mere ritual, a show of which much of the public catches no more than a glimpse on its television screens from time to time.

The political executive: presidential pretensions The presence since 1997 of a large and until late 2002 generally docile party majority has favoured further consolidation of the power of the prime minister both in relation to his ministerial colleagues and to the broader network of administrative organisations serving them all. In these conditions the dominance of the head of government has become even more visible, especially in his public role, whilst within the structure of government it has also been in some respects substantially extended. The cabinet remains the formal centrepiece of executive authority. It is the forum in which those responsible politically and legally for the implementation of most government policies come together, but there is little reason to believe that it often deliberates seriously on important policy questions and then reaches a collective decision. The normal role of the cabinet is now to allow


its members an opportunity to air their opinions on a range of current issues and then, where it is required, to offer their endorsement to proposals put to them. It is only in exceptional circumstances such as the decision to take action to recover the Falkland Islands in 1982 and the possibility of joining in military action against Iraq in 2003 that the prime minister will consult with the whole cabinet in a serious way, though even then a final decision is likely to remain with the prime minister and a few senior colleagues. However, there continues to be a relatively wide distribution of ministerial effort in and through the formal and informal cabinet structure, and this underlines the extent to which the carrying through of executive action and the development of policies still depends mainly on departments and their ministerial teams. This remains the most important practical qualification to the ‘presidential’ status of the prime minister: he is not yet a ‘chief executive’ fully in charge of running the government, but has to discharge his ‘chief executive’ functions by working with and through a relatively large team of ministerial colleagues and their supporting administrative organisations. What is in some degree new since 1997 is the accretion round the prime minister at 10 Downing Street and in the Cabinet Office of quasi-executive ‘units’ intended for the most part to facilitate not only his direction of policy-making but also of what is fashionably called ‘delivery’, that is to say executive action by departments, by agencies dependent on them, or by public bodies which may be outside the sphere of central government altogether. These changes have taken place without the formal introduction of what would be called a Prime Minister’s Department, though the total staff coming within the ambit of the Office of the Prime Minister had reached about 150 at the end of 2002. Much of this expansion has been dedicated to achieving a substantial reinforcement of the prime minister’s capacity to intervene directly in both the development of policies in most spheres of government and in the monitoring of what is being done to meet the objectives and targets of official policy. In addition to the support of his own Office the prime minister can draw on the substantial resources of the Cabinet Office too. Although the Cabinet Office exists to service the cabinet and its committee system, it also works directly in support of the prime minister and in recent years has increasingly become something like a holding company for a range of units reflecting prime-ministerial priorities. The head of the Cabinet Office is also head of the civil service, an arrangement that underlines the significance of the extensive appointing powers at the disposal of the prime minister. As a result of the flexible and pragmatic shaping of the instruments of prime-ministerial direction of the work of the government there is now in place a structure that skilfully harmonises the appearance of cabinet government with the realities of sustained primeministerial leadership. This increasing concentration of power at the top of the governmental pyramid necessarily implies a wide discretion on the part


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of the prime minister to intervene in virtually any area of ministerial competence. This shift of emphasis in the terms on which the head of government may operate has in turn consequences for the viability of the doctrine of ministerial responsibility which will be referred to again below. What might be called the executive competence of the prime minister has been backed up by other measures bearing directly on his capacity to project to the world at large both himself and his policies. Since 1997 the information and communication services at his disposal have been enlarged and greatly strengthened in their capacity to reach out both to the public and to most parts of the government machine itself. The prime minister’s chief press adviser (operating most recently under the title of Director of Communication and Strategy) has acquired exceptional influence at the heart of the government, not simply on account of a close personal relationship with the prime minister of the day, but also because he has come to direct a coordinated system for the management, dissemination and control of news and information for which there is no close analogy in modern British political history. And it is the prime minister who is intended to be the main beneficiary of this tightly controlled system operating with the most sophisticated techniques of communication available. In addition, however, the prime minister has extended his own opportunities for making public appearances in which he is able to demonstrate his control of the public agenda. As mentioned earlier, Prime Minister’s Questions in the House of Commons has been turned into a weekly half-hour opportunity to engage in a bravura adversarial performance, one that is, moreover, the principal House of Commons occasion that receives widespread coverage, even if only in gobbet form, on television news programmes. Prime-ministerial statements are also made in the Commons on matters of wider general political concern, most often in the spheres of foreign affairs and defence in which the prime minister takes the lead. In the course of 2002 there was also the introduction of regular monthly prime-ministerial press conferences, providing yet more opportunities for shaping the perceptions both of the press and of the wider public, followed in 2003 by the prime minister volunteering for a six-monthly appearance before the Liaison Committee, a large body consisting of the chairmen of most select committees Alongside these innovations there continue, of course, to be many other opportunities for the prime minister to take the centre of the public stage. These range from speeches expected of him on formal occasions to the many appearances on television and in the press that are open to him. Far lower down the scale of public relations activity is a concern that a generation ago ranked much higher, namely, opportunities to address gatherings of the party faithful. And right at the bottom is the open public meeting, something that is now virtually extinct.19 These changes in the role of the prime minister both internally within the government and externally in relation to other institutions and to the


electorate at large confirm the wide scope enjoyed by the holder of the office to assume something very close to the role of a popularly elected chief executive or president. Clearly such developments have constitutional significance through the impact they have on the central institutions of government, but they have hardly been driven forward by notions of constitutional reform. The driving impulses behind them have been political and in some degree functional: how best to reinforce prime-ministerial leadership and ability to influence outcomes. How far a prime minister is able to act successfully in this way does, however, depend in large measure on contingent political circumstances, and since 1997 they have been singularly favourable to a presidential interpretation of the prime minister’s office. Whilst some degree of reversion to a more limited exploitation of the powers of the office is always conceivable, for example, as the result of some drastic political failure on the part of a prime minister or the accession to office of someone of limited talent, the expectation now established in the public mind is that a prime minister will manifestly direct the activities of his government. If he does not, then he is falling short of the duties of his office. This view of the authority enjoyed by the prime minister can now be regarded as having constitutional acceptability in all normal conditions. An important implication of this evolution is that it qualifies to a significant extent the effective operation of the traditional doctrine of ministerial responsibility, one of the lynch pins of the traditional constitution. The majority of ministers exercise powers conferred on them by statute, though some like the Foreign Secretary, the Defence Secretary and in some matters even the Chancellor of the Exchequer act often enough under the prerogative powers of the Crown. In principle at least ministers are responsible to the House of Commons for the exercise of the powers vested in them and could, therefore, suffer censure or even withdrawal of confidence in the House. But most of this belongs now to the realm of the purely theoretical – ministers are not in fact responsible in that way. If they are forced to leave office, then as a rule this happens because they have lost the confidence of the prime minister and of their party in the Commons, though none of this needs to be established formally in parliamentary proceedings. Instead ministers tend to become ‘untenable’ or ‘a liability’, and then they are dropped. It is perhaps an enforcement of responsibility in a very oblique way – they are paying the penalty of incompetence or just bad luck – but it is hardly acceptance of responsibility in the way in which it was formerly understood in constitutional theory. As has already been suggested, in the handling of the day-to-day business of government ministers are now at best subject to something like a duty of answerability at large, and though this is frequently burdensome and time-consuming, it can often be interpreted in ways convenient to the officeholder or perhaps avoided altogether. In addition most ministers no longer have behind them unified departments staffed by civil servants for


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whom they are expected to answer and for whose actions they accept direct responsibility. Instead, the creation of ever more executive agencies since 1988 has dispersed actual responsibility for action away from the departments. In operational terms this change has brought many benefits, but nonetheless has also made it much harder to define the extent and limits of the overall responsibility of the minister. There are partial exceptions to this state of affairs, notably the Treasury which at any rate in respect of its policy functions remains a small and unified department and which has in the years since 1997 been able to exercise an unusual range of powers under a politically powerful Chancellor of the Exchequer. However, what is at issue in the present context is neither the structural factors that have eroded individual ministerial responsibility nor the impact of exceptional relationships between politicians. What is at issue is rather the impact on the status of ministers of the continuing expansion and deepening of prime-ministerial powers. This trend has turned ministers into something like senior executives working under the guidance and scrutiny of a chief executive who may, if he chooses, dismiss them, move them to another post, or intervene at will in their departmental responsibilities. The foundations for the effective responsibility of ministers – formal and institutionalised powers combined with a stake in their party – have been steadily eroded, a process taken forward even more quickly since 1997 than before. As for the doctrine of ministerial responsibility in its collective application, the developments just outlined mean that its main significance now lies in its function as a principle of solidarity binding not only cabinet ministers but also all members of a government together. Ministers are expected to speak with one voice, at least in public, though in the media-driven conditions of contemporary public life gossip about alleged policy and personal differences is frequently passed on and then blown up in the press or radio and television into something like a political campaign for or against a particular member of the government. Collective responsibility in the sense of an obligation to accept policy collectively agreed in cabinet and, therefore, to resign from office if the member concerned can no longer conscientiously endorse the policy agreed is now invoked only in rare and unusual circumstances. This happened in the case of Mr Robin Cook who resigned from the cabinet in 2003 chiefly because he could no longer accept responsibility for the policy of military intervention in Iraq, and it applied rather more doubtfully to the slightly later resignation of Clare Short on the same issues.20 But collective responsibility has ceased to be a doctrine that plays a major part in defining the terms on which ministers in normal circumstances collaborate and from time to time part company with each other. Nowadays a minister is much more likely to resign because he or she recognises that they have become a serious embarrassment for the government as a whole, whether from personal inadequacy or political failure, rather than on account of conscientiously held differences of opinion about


matters of policy or political principle. Indeed, the sense of collective responsibility appears to be perceived chiefly in relation to the prime minister who leads and animates his government: it is to him (or her) that individual ministers see themselves as owing a responsibility as indeed Sir Alec DouglasHome frankly accepted long ago. In an era in which politics has become a professional activity pursued in and through a party, with the participants for the most part eagerly seeking career opportunities that depend chiefly on the leader’s favour, this evolution is hardly surprising.

Politicians and officials: the weakening of the civil service ethos Despite an erosion of ministerial responsibility and accountability in their various applications ministers have paradoxically become politically stronger rather than weaker in relation to the departments and agencies over which they preside. This is a development that goes back to the time after Mrs Thatcher took office in 1979. One of her guiding beliefs was that the influence of the permanent civil service over the political arm of government should be reduced and the ability of ministers to determine policy and direct their departments reinforced. To some extent she may have believed that this effect could best be achieved simply by the exercise of ministerial will power and a firm grasp of policy objectives, and for the most part there was during her time in office only a modest growth in the overtly political support and advice available inside the government organisation to back up ministers. More recently there has been some further growth in the number of political advisers and specialist aides at the disposal of ministers, though the overall numbers, barely over 80 across the departments, remain small, and even the staff and services at the direct disposal of the prime minister remain modest in scale. These trends have emphasised the political role of ministers both as people expected to be effectively in charge of their departments and as those who still take almost exclusive responsibility for the public presentation of what the government is doing. In other words it is ministers who still in the eyes of the public largely embody the executive power in Britain – it is they who are usually said to be taking decisions and causing things to happen. Yet in reality they are, as they have been for well over a century, dependent on the advice and effective support of their permanent officials for getting nearly all their plans and proposals put into effect. The presence of a relatively small number of partisan advisers working in departments for ministers and for the prime minister in Downing Street and the Cabinet Officer may often have a big impact on initial policy decisions, but can make little difference to the dependence of ministers in relation to the implementation of policy on the professional bureaucracy. Most of these permanent officials are civil servants, though compared with the position about forty years ago the civil service no longer has a virtually com-


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plete monopoly over the full range of services supporting ministers in the exercise of their powers. Moreover, during the past twenty years or so many structural changes have taken place in the organisation of departments and the services they provide. These have had an impact on the working conditions of many civil servants, and through the dispersion of executive responsibilities and the steadily greater differentiation in the kind of organisations deemed effective in providing public services they have certainly had the effect of making the administrative map of central government much more complicated than it used to be. The bulk of executive activities carried on by the central government has been delegated to agencies which are in principle intended to operate autonomously, subject to agreements with the parent departments about what they are expected to do and within what financial limits. The staff in these agencies – of which there are now over 140 and where over two-thirds of the civil service are now employed – retain the status of civil servants, though this no longer implies that uniformity of conditions of employment throughout the service is to be expected. Indeed, one of the motives for having agencies at all was to work towards much greater variation in the terms and conditions of civil service employment. In other words in principle employment conditions should fit the tasks to be performed rather than be based on the familiar principle of uniform state service. Apart from being subjected to extensive organisational change the civil service has during roughly the same period also had to absorb and adapt to a managerialist ethos. While the management gospel has been preached and imposed in slightly different versions, depending often enough on passing political priorities, there is no doubt about its key message: what matters in the public services is performance and results. This has entailed a shift of priorities for civil servants away from procedural values, the handling of relationships within the administrative system itself and the predominantly intellectual activity of formulating and adapting policy, towards the functions of management. Whilst there are many interpretations of what management means, there is no doubt that it is nearly always held to entail an activist role, a focus on the outcomes to be achieved and thus on the performance of those involved. Over a period of twenty years or more the term ‘manager’ has completely supplanted ‘administrator’ in the language used to describe the work of the civil service. Since the main concern here is with constitutional change this is not the place for a detailed description of organisational and operational changes within the civil service. What has been happening (and is still going ahead) is of practical importance and has consequences for the citizen. But any question about the constitutional status of civil servants is far narrower in scope. Whilst there has for well over a decade been much talk and controversy about the supposed constitutional implications of changes in the civil service, there has really been hardly any overt and formal change at all: civil


servants remain what they have been for long enough, servants of the Crown paid for out of funds voted by Parliament and for the most part employed in the service of ministers and owing to them the usual duties of loyal service and support. Thus in formal terms it remains true that the civil service has under the constitution no personality of its own, no distinctive voice in the State, and no right to voice publicly opinions on policy and the ends to be pursued in public affairs. Its internal regulation and code of conduct remain to a large extent within the discretionary sphere of Crown prerogative, a situation which means that it is predominantly ministers – most notably the prime minister as Minister for the Civil Service and the Chancellor of the Exchequer as controller of the purse strings – who effectively exercise the discretions still theoretically vested in the Crown. It is fundamentally for this reason that the British civil service remains unusual in the absence of statutory determination of most of the conditions under which it exists and operates. Nevertheless, the developments of the past decade or so have plainly had a varied impact on the civil service and this has prompted calls for changes in the terms on which it rests which would in turn have constitutional significance. The call for some kind of statutory regulation of the civil service has come from two different perspectives. There are those who have argued that the decentralisation within the service, the delegation of so much executive responsibility to managers expected to act on their own responsibility, and the continuing search for ways of enhancing performance within the public services renders much of the traditional doctrine of ministerial responsibility obsolete and unworkable. Consequently it becomes necessary to abandon the idea of officials as merely the invisible and obedient agents of ministers, to accept that they have defined responsibilities, and to provide in law for the recognition and protection of civil servants in the discharge of their functions. There is also the added argument that civil servants performing important management functions should be accountable to Parliament and on that account have the right to something like an explicit recognition of the ways in which they differ in status from ministers. The other approach to statutory regulation has concentrated more on ethical questions arising out of the traditional view of an official’s obligations to ministers. It is part of the inherited conventions governing the duties of civil servants that it has been assumed that it is unlikely that they will be exposed to serious ethical conflicts. They have been expected to serve impartially politicians of different parties and with sharply contrasting policies and, perhaps, moral commitments. The unspoken supporting premise of this argument is that there is a large measure of underlying agreement about the values of the political system and the parameters of acceptable public policy. In such conditions it is not prima facie unreasonable to assume that civil servants can serve with equal loyalty masters from competing political parties committed to different policies, though this is not


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an assumption widely accepted outside Britain.21 This comfortable assumption came to be questioned in the later 1980s in the wake of serious tensions between the government of the day and some of the civil service staff associations and such questioning has continued subsequently.22 It has been fuelled too by the continued erosion of the place of the staff associations and their representatives in the management of personnel relations within departments and their agencies, and by anxieties prompted by a belief that the civil service was in danger of being ‘politicised’. The meaning given to this notion was that considerations of party political affiliations were entering into appointments to and within the civil service. This practice – so it was argued – would undermine the political neutrality of officials and destroy one of the key relationships within the system of government, namely, the trust between ministers and their civil servants. In fact, however, hardly any serious evidence of such overt politicisation of the civil service, whether under Mrs Thatcher or subsequently, has been produced.23 Thus it became difficult to argue that political interference in the career patterns of the civil service was producing ethical dilemmas for staff. Nor has what might be called the argument from the extremism of politicians been at all persuasive, that is to say the suggestion that extremist policies resulted in crises of conscience for individual civil servants which in turn justified formalised arrangements for the protection of such persons. Yet the arguments about political or partisan influences and interference cannot be wholly dismissed as having no foundation in actual experience. There have been major shifts in the relationship between the political world and the administrative structures underpinning it that have produced tensions and, much more importantly, changes in the civil service’s perception of both its practical role and its own constitutional status. But these changes have not resulted from any substantial intrusion of political patronage into civil service career management: there is little evidence from the experience of the past twenty years that politicians have sought to influence directly senior appointments by securing them for partisans of the party in power. Certainly there can be no doubt that the range of partisan appointments inside the British civil service is small indeed compared with what is normal (under diverse legal and constitutional conditions) in many Western democracies. In contrast, as already indicated, political patronage in Britain has been confined mainly to the appointment of political advisers by ministers, the strengthening of the politically loyal support staff around the prime minister, and in some degree the wide range of public appointments outside the civil service that are in the gift of the head of government and ministers. Yet notwithstanding the relative insulation of the civil service as such from partisan interference in its personnel management and career planning, there are many signs that the service has lost or abandoned that degree of independence of judgement and distance from partisan objectives that it possessed a generation ago.


There are many different and often elusive sources of such changes. As a direct result of technological change over the past twenty-five years or so the civil service no longer operates so regularly via formal written documents which, provided they are properly recorded and filed, constitute over time something like the living memory of an organisation. Communication has become more informal, almost instantaneous and can be copied as widely as those involved care to allow. Almost certainly more business is transacted orally and often without detailed records being kept. The effects of this type of change along with the impact of a popular culture that values easy informality can be observed, for example, in the style and quality of official papers. Whereas the typical White Paper of thirty years ago was written in dispassionate prose, usually free of jargon and with the emphasis on factual content and reasoned argument, nowadays the style and approach of virtually any official statement of policy reveal a blend of management speak and populist propaganda. This change alone indicates that the officials who chiefly draft such documents see their role in terms different from what it was some time ago.24 How is this to be explained? The underlying reasons for these changes are to be found in an evolution of social and political values that has called into question most traditional notions of authority, not just in politics and government, but much more widely in social life. These changes have rendered the notion of a detached and wholly professional bureaucracy – a caste of guardians or mandarins – obsolete and generally unacceptable, a conclusion accepted in a highly qualified way as long ago as the Fulton Report of 1968.25 The civil service has not been able to escape the impact of changes in the society it serves: it has gradually been forced to reflect the contemporary preoccupation with results, performance, the early satisfaction of demands and aspirations. But in addition these pressures on the civil service have been brought into sharp focus by politicians, most notably by Mrs Thatcher and her colleagues after 1979 and then more recently by New Labour under Mr Blair. The strength of politicians relative to their officials has been greatly enhanced, and to this change must be added the much increased capacity of politicians to use to the full the management of news and public presentation by experts acting on their behalf. It is inevitable that civil servants working under these conditions should become widely politicised in a rather special sense of that term. Here politicisation does not mean that there has been a flow of political appointees into the civil service as a result of which the ethos of impartiality and political neutrality has been subverted or destroyed. Instead politicisation has assumed a quite different form, at once more subtle and discreet. The civil service, and especially its higher ranks, has had to adapt to the political and social environment in which it works. It has had to become more responsive to popular sentiments (which the younger cohorts in the civil service already express to some extent) and as a result of the well-established constitutional subordination to ministers has had to display


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that degree of commitment to current political aims and ambitions that the political leadership demands and the public appear to expect. A cool and sceptical approach to analysis of the latest fad taken up by politicians or by some vocal publicist is unwelcome to most politicians and, it must be added, to much of the public at large and the mass news media as well. So something like politicisation through social and political pressure has taken place with the consequence that the attitudes now in the ascendant in the civil service and in many other spheres of public service coincide quite closely with those of the political class itself. The evidence laid before the Hutton inquiry in autumn 2003 appeared to bear this out.26 There is another dimension to the adaptation of the civil service to the political world it serves that requires further comment. This is the thoroughgoing acceptance of a managerialist ethos and the effort to apply business methods – or what are seen to be business methods – to the tasks of both the civil service and the numerous branches of public service outside the direct control of the central government. There is no doubt that much can be said in favour of the intelligent use of the management methods familiar in private business within the public sector. Similarly, there is scope for the transfer of market-based thinking and the application of market conditions to the provision of at any rate some public services. Yet despite this and the fact that performance-led management methods have been advocated and applied in the British public services for several years now, the record of achievement remains patchy and unsatisfactory. Some activities are efficiently run and generally give satisfaction to the user: the issue of passports might be cited as an example. But there are many areas in which inefficiency and poor performance occur widely and improvement is hard to secure, though many of these are outside the direct responsibility of the central government, a fact that goes far towards explaining the current fashion of setting targets in the hope of boosting performance and service delivery. There are few grounds for believing that the application of some version of ‘new public management’ theory will by itself be enough to secure in many public services the high level of performance desired.27 Performance and quality of service depend on much else besides the latest smart management techniques. There is, however, a further difficulty arising from constitutional values that tends to inhibit the transformation of the civil servant into a high-performance manager. Traditional constitutional values have among other things emphasised the importance of due process in the handling of citizens’ claims and interests as well as the need to respect the varied demands of accountability imposed on the politician. It is the political officeholder who at different levels is still expected to accept responsibility for policy decisions and to be ready to answer for the consequences of such decisions. The official can, however, only sustain the political officeholder in his effort to meet these requirements if he in turn maintains and practices appropriate procedural safe-


guards. In other words, within a democratic system subject to the rule of law it is constitutionally necessary that the official should continue to maintain certain standards of conduct and honest dealing in the interests both of political officeholders accounting publicly for what they do and of themselves as permanent public servants. There is, therefore, always scope for tension between requirements apparently dictated by the managerialist ethos – find the shortest and cheapest route to maximum benefits – and the values underpinning a constitutional democracy. What is more, the likelihood of such tension has been increased as measures have been taken to give more attention to the protection of human rights. In contemporary Britain there are many signs that the cult of management has combined with the obsessive desire of politicians to take credit for the ‘delivery’ of services to displace the constitutional justification for a professional civil service committed to a notion of serving the public interest. In this way the ethical foundations for a permanent and politically neutral service have been eroded. It is not surprising that in this context little progress has been made towards the passage of a statute designed to set out formally the principal conditions of civil service employment, even though such a measure has appeared in the list of further constitutional reforms that the present government would like to see enacted. A select committee of the House of Commons has endeavoured to point the way forwards on this matter, but it must remain doubtful whether progress will soon be made.28 Beyond conventional generalities about loyalty and impartiality there is not much in the shape of well-defined constitutional values on which there is sufficient consensus to base such a statute. At a practical operational level it must also be questioned whether such a piece of legislation would make much difference in the light of the absence of a tradition of formal, enforceable regulation of most of the public services in Britain, though the contemporary trend towards more personal litigation about rights and claims may be paving the way for some change in this respect. Meanwhile, however, politicians and the populist demands they often voice are in the ascendant and such conditions make it hard to envisage a successful attempt to set out in binding terms a code to govern the conduct of officials and the duties and responsibilities they owe to the State. The residual constitutional heritage of the old, pre-Fulton civil service is to be found in the fact that the present-day civil service still remains for the most part outside the sphere of overt party activity and influence, and that by virtue of its ethical traditions and a long-standing discretionary code of conduct it continues to be remarkably free of corruption. But there is little left now of what was once prized as a unified and professional civil service of the Crown, committed to serve ministers of all parties with equal loyalty, yet having a scruple too for the preservation of an enduring public interest.29 It would for this reason be unrealistic to see in the civil service any serious constitutional check on the untrammelled discretion of politicians to act as they see fit in accor-


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dance with their interpretation of the democratic mandate they claim to possess.

Notes 1. House of Lords Reform: First Report of the Joint Committee on House of Lords Reform, HL Paper 17, 2002–03, Appendix 2. 2. Viscount Oxfuird (a deputy chairman in the Lords) who died early in 2003 was replaced by Viscount Ullswater in March 2003. The death later in the same year of Lord Milner of Leeds, a Labour hereditary peer, led to the choice of a successor, Lord Granchester, by the electorate of three referred to in the text. 3. In 172 divisions in 2001–02 the proportion of cross-benchers voting was as low as 8.6 per cent. 4. All 15 of the life peers appointed in 2001 on the recommendation of the nonstatutory Appointments Commission duly registered as cross-benchers. 5. The average annual loss through the death of members is currently 18. 6. The appointment of peers to full-time salaried official posts carrying executive responsibilities appears to be a recent innovation. People have been made life peers and have then taken up positions in the wider network of public bodies serving the government. This practice too appears to conflict with any notion of a separation of powers. 7. A House for the Future: Report of the Royal Commission on the Reform of the House of Lords (Chairman Lord Wakeham), Cm 4534, January 2000. 8. Op. cit., note 1. 9. Early in 2004 it was announced that a bill to complete the exclusion of hereditary peers from the Lords was to be deferred, perhaps to improve the chances of getting the Constitutional Reform Bill through the House. Chapter 6, notes 28 and 34 also refer. 10. House of Commons Hansard, 29 January 2003, Prime Minister’s Questions. The remarks were made in reply to a Labour MP and the question was probably ‘planted’. 11. Op. cit., Wakeham Commission report, especially chapters 3 and 4. 12. Ibid., p. 33. 13. The transfer of the judicial functions of the House of Lords to a separate Supreme Court has, for other reasons than those referred to here, now been promised by the government. See also Chapter 6, notes 28 and 34. 14. The Second Chamber: Continuing the Reform, HC 494-1, February 2002. 15. The Independent Commission on the Voting System, chaired by Lord Jenkins of Hillhead, reported in 1998 in favour of proportional voting for parliamentary elections. The appointment of the Commission had been intended to win the sympathy of the Liberal Democrats, the party in which Lord Jenkins was the most distinguished ‘elder statesman’. 16. The Public Accounts Committee can be regarded as in some degree an exception. Its remit is to examine and report on the public accounts and it is served by the Comptroller and Auditor General and the Audit Commission that he heads. Thus the PAC has functions that are at least of a semi-executive nature. 17. A vivid (and reprehensible) example of a confrontational approach to scrutiny was provided by the treatment of Dr David Kelly in July 2003 when he appeared before the Foreign Affairs Select Committee (see also note 25 below). At least some


18.

19. 20.

21.

22.

23.

24.

25.

26.

27. 28. 29.

Committee members plainly tried to use the witness as a stick with which to beat the government and the BBC. In the nineteenth century it was quite common for select committees to be set up by the House of Commons both to investigate improprieties of various kinds and to inquire into matters which raised issues of public policy. The virtual disappearance of the open public meeting now applies, of course, to all politicians. Mr Cook’s resignation was accompanied by that of Mr John Denham MP and Lord Hunt of King’s Heath. Ms Clare Short’s resignation somewhat later was more ambiguous: she had earlier threatened to resign, then decided to stay in the cabinet, and finally changed her mind and left. Partisan loyalties and connections are accepted as legitimate considerations in relation to senior civil service appointments in most European countries. The holders of such positions usually have the legal status of officials. Partisan appointments are normal in the USA too at senior levels of the administration, but these are openly classified as political positions to which members of the career civil service would not normally be appointed. Council of Civil Service Unions and others v Minister for the Civil Service, HL [1985] 1 AC 374; the case brought against Mr Clive Ponting under the Official Secrets legislation resulted in his acquittal by the jury in the High Court, notwithstanding the judge’s clear guidance in a contrary direction. A report issued by the Royal Institute of Public Administration entitled, Top Jobs in Whitehall: Appointments and Promotions in the Senior Civil Service, R.I.P.A. 1989, found no serious evidence of political influence on appointments. In parliamentary papers a more traditionally sober style of writing and presentation is still generally maintained by the Clerks serving both Houses of Parliament: no doubt their commitment to rigorous impartiality in the service of all Members has some influence in this connection. The Fulton report on the Civil Service, Cmnd 3638 (1968), was not entirely consistent. It criticised traditional generalist administrators (the ‘mandarins’), but fell short of giving whole-hearted endorsement to more specialised staffing methods and the encouragement of ‘technocrats’. The Hutton inquiry into the death of Dr David Kelly has in the evidence given to it thrown much light on the manner in which political and official roles are in many situations almost fused. The term ‘new public management’ came to play a leading part in management literature during the 1990s. House of Commons Public Administration Select Committee, A Draft Civil Service Bill: Completing the Reform, First Report 2003–04, HC 128-I. C. H. Sisson, The Spirit of British Administration, Faber & Faber 1959, p. 24.

11 Human Rights and the Reinforcement of the Judiciary

From ‘liberties and privileges’ to a code of rights The affirmation of rights, individual and corporate, in English and later in British constitutional and political development was grounded in the idea of liberties and privileges. These were usually granted or conferred by the Crown and often confirmed in charters, the most famous of which was the Magna Carta of 1215. In the course of a long evolution such liberties acquired for many the character of ‘fundamentals’: they were widely held to be basic to the relationships between King and subjects and to provide something in the nature of a guarantee that the monarch would uphold and respect the rule of law.1 During the first half of the seventeenth century there was controversy and ultimately civil war about the respective powers of Crown and Parliament. Underlying this conflict were questions about the sources of authority in the State – or Commonwealth as it was often called – and about the rights that a citizen could properly claim both against the King and even in some circumstances against Parliament itself. After all the demand for the independence of judges implied the need for a counterweight to Parliament as well as to the Crown, and the issue raised in this way – that of the right to a fair trial before an independent tribunal – is still with us in Article 6 of the European Convention on Human Rights. The conflicts of the seventeenth century came to a resolution in the settlement reached after the expulsion of James II in 1688, Parliament’s affirmation of its right to determine succession to the throne, and in the passage of the Bill of Rights in 1689. But whilst the Bill of Rights also took on something like the status of a founding charter for limited government subject to the rule of law and parliamentary approval, it was not a charter of rights in the modern sense. Instead when enacted into law it was entitled ‘An Act declaring the Rights and Liberties of the Subject, and settling the Succession of the Crown’.2 This was a thoroughly traditional English formulation, the main purpose of which was to reaffirm what was already held to be law and to restate the rights of Parliament in relation to the exercise of royal powers. 237


The thrust was essentially procedural and historical, subjecting the Crown to the consent of Parliament in the making of laws and the levying of taxes, and making it clear that the executive power had never been above the law or exempt from appeal to the courts. Within this framework the individual enjoyed in principle freedom to do as he pleased, subject only to such prohibitions of the law as were in force and had been validly made. This approach to rights mirrored the negative view of liberty to be found in the writings of both Thomas Hobbes and John Locke as well as in the doctrines of English common law. It followed from this approach that rights were regarded as best secured where public powers were strictly limited and their exercise subject to procedural constraints, thus leaving individuals free to act as they saw fit, but with due regard to the limits imposed by the criminal law and such enforceable obligations as they might have towards each other. In important respects the American Bill of Rights, passed over a century later in 1791 in the shape of the first ten amendments to the constitution, remains faithful to the British view of how best to formulate rights and limit powers, though the belief in the natural and inalienable status of certain rights has already taken root in the former colonies. But it too rests on a negative theory of liberty and accordingly puts a strong emphasis on safeguards intended to protect individuals against incursions of public power into spheres properly reserved to them. Modern bills of rights generally owe less to the Anglo-American example than to the Declaration of the Rights of Man and the Citizen proclaimed in the early stages of the French Revolution. Whilst this famous charter of rights was influenced by the American example and expressed many familiar liberal claims aimed at protecting individuals against abuses of public power, it also had the character of an abstract statement of universal validity of rights which all should enjoy by virtue of their status as human beings and as citizens of a properly constituted state. This early example of a systematic statement of human rights may have had a chequered history, not least in the country where it originated, but it also had enduring influence on the manner in which in continental Europe and beyond statements of rights were to be constructed. The aim of such documents has generally not been to reaffirm liberties and privileges assumed to have previous validity or to focus exclusively on procedural limitations imposed on public powers, though there have been circumstances as in Europe after 1945 when something like this motivation was strong. Instead the aim has been to specify rights held to inhere in individual citizens as such and which the state and society are under an obligation to respect. One consequence of this way of stating rights is that it becomes clear that they express ideas about the moral status of individuals and thus point towards a constantly evolving interpretation of the kind of treatment and entitlements implied by such rights. In line with this way of thinking about rights modern formulations of them tend not only to be very general in the language used, but also detached

Human Rights and the Reinforcement of the Judiciary 239

from any particular social context in which they are to be applied. What is always assumed, though not always made explicit, is that the rights granted and guaranteed can always in principle be the basis for claims that individuals can make when they believe that they may have been damaged in the enjoyment of their rights. Rights are thus seen by many as akin to trump cards to be played in disputes about what the implications of the rights at issue may be for particular individual claims. The regular playing of the rights card does, however, depend very much on the presence of a legal culture favourable to private litigation, a condition still best met in countries with a common-law heritage, including an independent legal profession. Most modern catalogues of rights continue to remain within the liberal tradition by containing a range of claims to protection against incursions of external power – freedom of speech is a claim to be protected against interference by public authority (and in some circumstances by private persons too) with the right to speak freely, whilst the right to a fair trial is a right to protection against a variety of practices deemed inimical to fair treatment before a court. But the rights postulated gain an added dimension of moral weight from their systematic presentation as a code of what are often entitled ‘basic human rights’. Furthermore, in the wake of a greater concern with equality as a key social and moral commitment, it did in the course of the twentieth century become increasingly common to advance the case for ‘positive rights’, that is, to a share in some particular benefit or service such as education, housing, work or medical care. Most liberal societies have tried to steer clear of enshrining such positive rights in their constitutions, though many have edged forward in this direction. In any event many of the social policies pursued in liberal democracies, and especially in Western Europe, have in practice come to acknowledge what look like positive rights to a share in particular benefits, and this tendency has in turn influenced the interpretation of rights expressed in negative terms, not least through the application of procedural conditions stemming from a principle of equal treatment. It is well known that the British legal and political tradition has been hostile to abstract statements of rights and has seen the protection of individual freedoms as best guaranteed by constitutional and political limitations on executive power and a reliably independent judiciary charged with the interpretation both of common law principles and of statutes. Nonetheless, in the wake of reconstruction after the end of the Second World War the British Home Office was ready to make a substantial contribution to the drafting of a European Convention on Fundamental Rights and Freedoms adopted by the Council of Europe in 1950. No doubt it was widely believed that Britain did not really need such a Convention – it was essentially something for those countries whose political and constitutional life had been disrupted by dictatorship and war. But Britain was ready to endorse the Convention and then in 1966 to allow the right of petition by British citi-


zens to the Commission and Court that were established in Strasbourg to hear claims alleging that Convention rights had been breached.3 But whilst the government (and by implication Parliament too) was ready to accept the reference of cases to Strasbourg and even to implement as far as possible the decisions handed down there, this was done as an act of grace and was in theory revocable: there was no acknowledgement of the Convention rights as part of British law, and above all no scope for litigants to appeal directly to Convention rights in the British courts. During the past twenty years in particular criticism of this situation became more persistent. It was argued by many that the British approach to the protection of rights resulted in a fragmentary patchwork of provisions which had the effect of producing much uncertainty, procedural complexity and highly variable degrees of protection. What was needed, so it was affirmed, was a more systematic statement of rights that would facilitate a higher standard of rights protection across the board. This meant having a new ‘Bill of Rights’ or alternatively incorporating into British law a substitute for that with which some British lawyers were already familiar, the European Convention on Human Rights.4 By the later 1990s opponents of incorporation of a bill of rights were beginning to weaken and when the Blair Government decided in 1997 to legislate in favour of such a measure it faced relatively little opposition. The outcome was the Human Rights Act 1998, a piece of legislation that in principle breaks with past habits and marks a radical change in the British approach to rights, their interpretation and their place in British law.

Incorporation of the European convention of rights into British law The aim of this fairly long introduction to the understanding of rights and of their protection in Britain is to underline the extent to which the incorporation of a code of rights into British law does break new ground. As has just been mentioned the demand for a formalisation of individual rights reaches back for at least forty years and became more insistent in the years after 1980. To some extent it is puzzling that the call for an explicit code of rights and its entrenchment in some way or other became stronger just at a time when the judicial review of powers was gaining in strength and range. It is possible that there was a diffused influence in favour of underlining human rights stemming from membership of what was then the European Economic Community and later the European Union, whilst it is certainly the case that in international relations generally there was an increasingly strong tendency to regard respect for human rights as the mark of a civilised society and their flouting as a ground for censure or even sanctions. All these influences were at work in Britain and contributed to the commitment of New Labour in 1997 to resolve the argument about human rights by passing into law a code of rights. There was no desire to embark on the drafting of


a new domestic code of rights, a course of action that would have unleashed long and frustrating arguments. Instead the simplest solution was to take over into British law the existing code with which some parts of the legal and political world were already familiar. This was done by appending most provisions of the European Convention on Human Rights to the Human Rights Act 1998. By contemporary standards the body of the Act is remarkably short: barely 15 pages are called for to set out the terms on which the code of rights is to be applied to British law and the conduct of public authorities. By late 2000 the Act came into effect and Britain was henceforth endowed with something like a charter of rights in the modern idiom. As an instrument of constitutional change the Human Rights Act is economical in design and entails little in the shape of institutional change: in this regard it is quite different from the devolution legislation. The Act is relatively simple in content and structure. It is concerned primarily with placing new responsibilities on the judiciary and with imposing obligations on public authorities, including ministers, to observe the code of rights in the exercise of all their functions. The courts are required by the Act to give effect to Convention rights in the judgement of any action alleging a breach of them and are obligated to have regard to the jurisprudence of the European Court of Human Rights in so doing. As far as is possible the courts are required by Section 3 to interpret British legislation in a manner that ensures that it is compatible with the terms of the European Convention, but if this proves impossible they may make a declaration of incompatibility under Section 4. The Act then makes provision for remedial action to deal with the consequences of such a declaration. This includes, if necessary, amendment by order in council of primary legislation, subject to affirmative resolutions in both Houses of Parliament approving such a remedial order.5 What the courts are not empowered to do is to declare parliamentary statutes null and void or to issue declarations of ‘unconstitutionality’. In this way the Act by implication claims to preserve parliamentary sovereignty and to circumvent the challenge to it that is logically implied in any acceptance of a higher or fundamental law purporting to bind Parliament and limit what it may pass into law. The Act makes it unlawful for public authorities to act in ways incompatible with Convention rights and public authorities are defined so as to include the courts as well as executive bodies.6 But it does not bind Parliament, except for the House of Lords acting in its judicial capacity. As far as the context within which the individual is enabled to allege an infringement of Convention rights goes, this is tied back essentially to legal proceedings. This may mean an ordinary legal action seeking to contest or nullify an executive act in which one of the grounds cited is that it breaches the rights code in some respect, or it may mean proceedings for judicial review in which infringement of a Convention right is advanced in order to challenge the legality


of what has been done. It follows that cases alleging breaches of human rights often involve appeal to the Convention as a supporting argument. Alternatively if an infringement of human rights has been confirmed a victim can then seek a remedy from the courts under Section 7. While it is not possible to go to the courts with anything analogous to the procedure of ‘constitutional complaint’ familiar under German constitutional law under which an individual can ask a specialised constitutional court to determine whether one of his basic human rights has been infringed by some act of authority, in practice to seek judicial review on grounds of an alleged breach of the Human Rights Act amounts to much the same thing. The code of rights itself is set out in Schedule 1 of the Act and is to a large extent simply a reproduction of the European Convention and of certain protocols to it. Most of the rights contained in it amount to the familiar ‘negative’ and protective rights formulated in classical liberal political theory – the right to life, prohibition of torture and degrading treatment, prohibition of slavery and forced labour, the right to liberty and security of the person, the right to a fair trial, no punishment except by law, the right to respect for private and family life, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association, the right to marry and found a family, the prohibition of discrimination. There are in addition two protocols, one guaranteeing protection of property, a right to education and a right to free elections, the other abolishing the death penalty except possibly in time of war. It would be possible to engage in a long and no doubt elaborate examination of both the foundations of this particular formulation of human rights and of the qualifications to which virtually all the items in it are subject. But rather than go down that path it will be more useful in the present context to focus on only a small number of points with a direct bearing on the application and interpretation of such a code in Britain. First, the Convention was drawn up shortly after the end of the Second World War and in many passages its language reflects what was for many of the countries then brought together in the Council of Europe their recent experience of the abuse of human rights and the trampling under foot of the rule of law. Thus, for example, the prohibition of torture in Article 3 and of slavery and forced labour in Article 4 echo the abuses of human rights perpetrated by the Nazi regime both in Germany and later in many other parts of Europe. Such declarations are best understood as political exhortations and statements of moral principle intended to guide behaviour in the future and to warn against repeating the failures of the past. No doubt in the case of the Convention it was at the outset hoped that there would be little need to invoke in legal argument many of the conditions in it derived from past abuses of power, though it must not be forgotten that a particular historical context is quickly forgotten after some years have passed and litigants begin to assert that words mean something quite


different from what they meant to those who originally used them to set out human rights. Second, many of the Articles do assert boldly and in general terms that a particular right exists, for example, ‘Everyone has the right to freedom of thought’ and ‘freedom of expression’. Two points are worth noting here. When rights are stated in the abstract and ‘out of context’, it is not unusual then to qualify them in various ways, since in the absence of at least some qualifications a wide range of unacceptable and impracticable consequences might ensue. This happens over and over again in the Convention where particular rights are stated and then qualified by restrictions on their enjoyment that are held to be justified. Thus the right to freedom of expression is qualified by amongst other things restrictions to safeguard national security, measures to protect health and morals, and regulations to preserve the impartiality and authority of the judiciary (for example, contempt of court provisions). All this is fairly straightforward, but it does mean that the Convention limits in some degree the range of future judicial interpretation of what it means and when and to what it applies. In contrast, for example, the American Bill of Rights contains provisions which, in typical late eighteenth-century manner, are formulated with great boldness and simplicity, chiefly in the shape of prohibitions on the authority of the lawmakers, for example, no laws to establish religion, no laws to abridge freedom of speech and of the press, and nobody to be forced to testify against himself. Such formulations no doubt appeared at the time to be very definite and unambiguous, but experience was to show that they left much room for argument by lawyers and litigants over what they meant and how they should be applied to varied and changing circumstances, and it was the courts, notably the Supreme Court, that came to meet the need for interpretation. Whilst the European Convention has certainly left room for interpretation by the courts, it must remain doubtful whether the more cautious and qualified manner in which the rights are formulated and the conditions the courts must observe when interpreting them will allow the judiciary to assume anything like the politically crucial role so often performed by the American Supreme Court and, indeed, by one or two other courts of constitutional jurisdiction. Third, whilst British lawyers and Home Office officials contributed substantially to the drafting of the Convention,7 it was intended primarily for insertion into legal traditions which were strongly influenced by Roman law principles and the concept of the State as a legal entity, by modern codification, and by legal cultures granting pride of place to a professional career judiciary and public services dominated by officials trained in law. A code of rights like the European Convention is well adapted to this kind of environment and unlikely to prompt much controversy or even to stimulate frequent appeal to the courts. The existing pattern of law in such civil law jurisdictions is generally too tightly woven to allow for that, and in any case


there is rarely a legal profession in private practice keen to represent aggressively the claims of clients in public law disputes. The situation in the United Kingdom is rather different. The framework of statute and common law is far less systematically structured than is the body of law in continental Europe and owes far less to public law doctrines and codification. The service of private clients has been at the heart of the British legal culture. This relies to a great extent on forms of legal representation which have evolved out of an adversarial procedure in the courts and attach great importance to using every available procedural weapon to assist individual clients involved in civil or criminal cases. There is also generally an underlying belief pervading the whole legal system that somewhere and somehow an answer can be found to every dispute by drawing on the resources of a fluid, amorphous and yet ingenious body of largely judge-made law. These conditions alone make it likely that there will be relatively more frequent resort to the invocation of human rights in Britain than generally happens on the European mainland. Added to this is the factor of novelty. Britain has not so far had such a formal code of rights to which law and official actions are expected to conform. It is not surprising, therefore, that at any rate until the novelty wears off both clients and their lawyers will treat the code of rights as a new and potentially useful tool in the prosecution of individual claims. If, for example, in an application for judicial review of a decision by the Home Office Immigration service or by a local planning authority a breach of Article 6 guaranteeing a fair trial can be alleged as a supplementary reason for quashing the decision on account of other procedural failings, then so much the better. No doubt in time such eagerness to invoke Convention rights will slacken, though that also depends on how the courts interpret them. Fourth, it is worth underlining the fact that as the Convention on Human Rights does put a lot of emphasis on the fulfilment of a wide range of procedural requirements, this places it very much in the mainstream of the development of judicial review over the past twenty years or so in Britain. For that reason alone many judges are perfectly familiar with the issues and arguments likely to arise in cases where infringement of human rights is alleged. The British courts have themselves been extending the scope of judicial review and have begun to try out new principles such as proportionality in cases involving alleged abuse of powers by public authorities. The real significance of the Human Rights Act 1998 lies in the widening of the terms of reference of the judiciary when dealing with disputes between individuals and public authorities. This aspect of the Act will be pursued further below. Meanwhile, it is enough to note that the possibility of appealing to human rights does not amount to quite such a revolution in British law or constitutional practice as it has been proclaimed to be by some of the more enthusiastic protagonists of the innovation. This is because to a large extent what it does is to widen and strengthen the basis for the judicial protection


of rights that was already before 1998 by no means as inadequate as was sometimes asserted. What has now happened represents an important step forward in an evolutionary process, even though it is also one which may at some stage in the future have far-reaching implications for British notions of the relationships between law and politics and between the citizen and the state.

The initial impact of the Human Rights Act 1998 It is now necessary to say something about the impact so far of the Human Rights Act. This involves paying attention to the way in which the judiciary has shouldered its new responsibilities and interpreted the terms of the European Convention in cases so far decided. At a later stage some comments are needed on the wider impact of the legislation on law-making, the attitudes of politicians towards their roles, and on administrative behaviour. The evaluation of cases is a difficult matter, especially for those who are not professional lawyers or legal scholars. There is also the purely practical difficulty that the Act has only been in operation since October 2000 and this makes it hard to draw firm conclusions from the number of cases so far considered and their final outcomes. In addition it is well known that there is always great difficulty in making qualitative assessments of the significance of a range of judicial opinions, expressed sometimes in a highly discursive way. But as far as quantity is concerned there is no doubt that in these early years the Human Rights Act has been frequently invoked. From October 2000 until February 2002 one monitoring organisation recorded 347 cases arising under the Human Rights Act.8 Out of this total claims were upheld in 72 cases, 18 of these under Article 3 (prohibition of torture, degrading treatment etc.), 3 under Article 4 (prohibition of slavery, forced labour etc.) and 51 under Article 6 (right to a fair trial). It was held that in 100 out of the total of 347 cases the Human Rights Act had no effect, but that in the rest it did affect the outcome, the reasoning or the procedure. It is safe to assume that it was generally the reasoning that was affected by appeal to the Act. In 274 cases no remedy was offered, 23 resulted in declarations, injunctions or orders of the court, and in 28 cases an order or decision was quashed. Most of these outcomes are typical of the normal working of the procedures of judicial review of administrative or sometimes political decisions. There were also 22 cases with a variety of different outcomes, and of these only three involved a declaration of incompatibility. What is clear so far is that the Human Rights Act is prayed in aid more often than it is cited as the exclusive ground of the action. This means that judges have to consider how significant the human rights element is in a case before them, and that in turn means that they have to take account of any judgements of the European Court of Human Rights on the matter that may be relevant. But it also means that much of the judicial reasoning will


follow familiar paths, especially in cases resulting from an application for judicial review. This effect can be observed in many reported judgements where the human rights aspects are initially dealt with and then in effect put on one side so that the judge or judges can work through to conclusions based on other relevant considerations. Perhaps the most crucial proviso of the Human Rights Act is the instruction to the courts in Section 3 to interpret British primary and subordinate legislation ‘So far as it is possible to do so’ in such a way as to render it compatible with Convention rights. This supersedes in human rights cases the normal rule of interpretation requiring the courts to establish the meaning of the statutory conditions at issue by construing their terms in a literal way and then relating that to the presumed intentions of Parliament. In contrast the judges are now being asked to use all the interpretative skills at their command to avoid a conclusion of incompatibility, that is to say a conclusion that would call into question the validity – or at least the tenability – of a parliamentary statute when measured against the requirements of the Human Rights Act. This is no doubt an ingenious alternative to granting a power to quash an offending legislative provision. From the point of view of the claimant, however, it may not always be seen as satisfactory.9 After all, he and his legal advisers are hoping to show that a particular legal provision or act performed on the basis of that legal provision offends against some article of the Convention. If that is found to be the case, then perhaps the claimant would be able to claim compensation and at the least would have the satisfaction of knowing that his action has prevented further use of the offending legal condition. But if the judge is able to interpret the statutory condition at issue so that the incompatibility alleged becomes compatibility, then the claimant may derive little benefit from the outcome. While it is clear that in cases coming before the courts the assertion of a breach of the Human Rights Act will often be difficult to sustain, it would appear that the basic principle of interpretation laid down in the Act is weighted against those who advance such claims. Experience so far bears this out. Declarations of incompatibility under Section 4 of the Human Rights Act – the counterpart of the rule of interpretation laid down in Section 3 – have so far been very rare, and it has become clear that judges, and especially in the Court of Appeal and the House of Lords, have shown outstanding ingenuity and intellectual subtlety in contriving to produce reasoned arguments for establishing compatibility with Convention rights of whatever legislative conditions are at issue.10 In several instances this has involved setting aside a previous finding of incompatibility by the judge who dealt with the case in the High Court.11 The Human Rights Act obviously applies to the interpretation of existing legislation as well as to all legislative proposals put to Parliament which now have to carry something like a seal of approval indicating that they are believed to be compliant with the Act. But its reach has been found to


extend even further, in particular to common-law doctrines and to procedural rules long established by the judiciary in the exercise of judicial review.12 Under the former heading one example is the shift away from reliance on the common law tort of breach of confidence in cases involving allegations of infringement of privacy to the application of Article 8 of the Convention affirming the right to a private life, and thus to a right of privacy, although it has to be noted that so far breach of confidence has been relied on in most of the major privacy cases decided.13 Similarly there has been a more tentative move in the sphere of judicial review towards some reappraisal of one of its cornerstones, namely, the standards of reasonableness set out in the Wednesbury decision of 1948. In contrast, there has also been hesitation about moving away from strictly procedural notions of reasonableness to standards that get nearer to passing judgement on matters of merit and, therefore, of policy. The majority of British judges remain cautious about using human rights and other relevant principles in such a way that they appear to be claiming to pass their judgement on issues of policy and, as a consequence, on what may be controversial political questions. But experience so far suggests too that it will remain difficult to draw stable and easily comprehensible lines of demarcation between elaboration of the procedural requirements deemed essential to meet the requirements set by Convention rights, and the implications of human rights for judicial rulings on the substantive matters that so often underlie cases alleging breach of rights. A notable example of this difficulty arose early in 2003 when Mr Justice Collins, sitting in the High Court, granted an application for judicial review of the Home Secretary’s refusal to grant any support under the Nationality, Immigration and Asylum Act 2002 to six asylum seekers who had, so it was alleged, failed to comply with the Act by not announcing their intention to apply for asylum ‘as soon as practicable’. The judge decided against the Secretary of State on procedural grounds, that is to say that the legislation breached Article 6 of the Convention by making no provision for appeal against what was an administrative refusal, and that the Home Office’s decisions in these cases were made without any serious effort to secure information about why the people concerned had not applied for asylum sooner. But underlying this rebuff there was obviously an issue of policy about the extent to which it was right to refuse even minimum support to an asylum seeker pending acceptance of his or her application. Indeed the judge referred to a common law principle established two centuries ago according to which no person could simply be left destitute. This was an issue also presented by the appeal to Article 3 and the prohibition it places on ‘degrading treatment’. The Home Secretary immediately revealed in a public statement his disagreement with the judge in this case and his annoyance at what he regarded as frustration of the purposes of the Act concerned. The decision of the High Court judge was quickly taken to appeal, but the Court of Appeal gave no comfort to the


Home Secretary. Instead it endorsed the reasoning of Mr Justice Collins and effectively told the Home Secretary that he had to revise his procedures for checking whether asylum seekers had good reasons for having failed to apply as soon as the Act seemed to envisage. The case illustrated both the robustness of the courts in handling human rights arguments and how difficult it may be to keep respect for the procedural requirements for satisfying Convention rights distinct from contentious and emotive issues of public policy.14

Human rights decisions: some illustrative examples of judicial conclusions It is worth illustrating the great variety of problems presented in the application of the Human Rights Act by commenting briefly on some of the cases so far dealt with. In an early case the Court of Appeal decided that so long as the statutory provisions were properly applied confiscation orders against repeat offenders or drug traffickers were in accordance with Article 6.15 Very soon after the Queen’s Bench Divisional Court concluded that planning law allowing the Secretary of State to be both policy-maker and decision-taker in certain appeal cases was in breach of Article 6(1) guaranteeing a fair trial (Times Law Report, 24 January 2001). This case, known generally as Alconbury, was to go forward to appeal to the House of Lords which in an exhaustive set of judgements overturned the original decision and managed to demonstrate that there was no inescapable conflict of interest or inability to observe principles of fairness in the role of a minister as deciding authority. Moreover, with a great display of learning Lord Hoffmann was able to show how often the European Court of Human Rights had itself accepted that political officeholders might be fully acceptable as decisiontakers in appeals of an administrative nature. What was being asserted here was that the right to trial by an impartial and independent tribunal should not be allowed to hand over discretionary administrative decisions for which a political officeholder was ultimately responsible to the courts: as Lord Hoffmann tartly observed, ‘The Human Rights Act 1998 was no doubt intended to strengthen the rule of law, but not to inaugurate the rule of lawyers.’16 Courts Martial were held to be compatible with the Convention in a decision of the Courts Martial Appeal Court in January 2001,17 whilst soon after the Court of Appeal decided that an order by the Home Secretary under immigration law to deport an immigrant who had no permission to stay in the United Kingdom, notwithstanding that this would separate him from his British-born wife who in turn had a child by a previous husband who had contact rights in relation to the child, did not infringe Article 8 conferring a right to a family life. In presenting his judgement Lord Justice Schliemann cited decisions of the European Court of Human Rights and


underlined the fact that whilst the British court had to review the decision, the executive was allowed a margin of discretion and the court would not substitute its own decision for that of the executive.18 Later in 2001 in a case engaging both Article 6 and the right to own property under Article 1 of the First Protocol to the Convention, the Court of Appeal concluded it was unable to read Section 127(3) of the Consumer Credit Act 1974 in a manner making it compatible with the Convention and that as a result a declaration of incompatibility had to be made. This decision was, however, later reversed by the House of Lords.19 An important clarification of the applicability of the Human Rights Act was achieved by the House of Lords in a decision of December 2001 when it modified existing case law and decided that Convention rights could not be invoked retrospectively in appeal proceedings.20 At almost the same time the House of Lords also decided that the refusal of the Director of Public Prosecutions to undertake to waive immunity from prosecution in relation to the husband of Mrs Diane Pretty, a lady suffering from motor neurone disease who wished to end her life but required help to do so, was not in conflict with Convention rights. In his leading judgement Lord Bingham examined the claim advanced on behalf of Mrs Pretty in relation to Article 2 (right to life), Article 3 (prohibition of torture etc.), Article 8 (respect for privacy and family life), Article 9 (freedom of thought, religion etc.) and Article 14 (prohibition of discrimination). Despite his sympathy for the painful predicament in which Mrs Pretty found herself, Lord Bingham concluded that the DPP had acted rightly and plainly had no authority to dispense or suspend laws, a principle laid down in the Bill of Rights of 1689. His colleagues all concurred.21 A decision of the Court of Appeal in January 2002 had the effect of defining certain issues bearing on conflicts between the guarantee of freedom of the press under Article 10 of the Convention and the right to privacy under Article 8 which had been raised in the case of Douglas and others v Hello Ltd. in an action alleging breach of confidence. The matters raised were complex, but in essence it was a question of deciding whether the right to privacy provided for in the Convention took precedence over freedom of expression as protected in Article 10 and, if it did not, whether it was reasonable to tell the claimants that they had a remedy in equity and should, therefore, seek damages in a civil action. The Court concluded that there was an adequate civil remedy available and no overriding public interest justifying restraint on freedom of expression. What this meant in practice was that celebrities who did not like gossip about their private behaviour and sexual adventures being published in the press would as a rule have to put up with it. More important, however, was the confirmation that the courts would exercise great care before allowing any derogations from the freedom of expression guaranteed in Article 10 and underlined in Section 12 of the Human Rights Act itself.22 A further issue of principle was dealt with in February 2003 when the House of Lords decided that exemption of the Crown from liability in


tort under the Section 10 of the Crown Proceedings Act 1947 which substituted a no-fault system of compensation for claims to damages did not involve any conflict with Article 6 of the Convention on Human Rights. What is striking about the reasoning which led to this conclusion is the emphasis placed in Lord Bingham’s judgement both on well-established common law principles and the careful historical analysis of the relevant legislation offered. It was made abundantly clear that whilst Convention rights (including the terms ‘civil rights’ in Article 6) had what was called ‘an autonomous existence’, they had to be set against civil rights recognised under particular systems of domestic law. The Convention did not guarantee any particular content for civil rights in a member state; domestic law had to be accepted as it was and then the Convention rights would be applied to it.23 Without doubt this kind of reasoning is carefully constructed and subtly qualified, expressing what amounts to a doctrine of judicial restraint in the interpretation of human rights in their bearing on existing domestic law. Yet it does not appear to be difficult to imagine justifications for a radically different view of what might be implied by applying the inescapably imprecise yardsticks of the Convention on Human Rights to domestic law. Herein lies the basic difficulty presented by the conferment of superior status on a code of abstract rights. Finally it is worth referring again to an earlier decision, that reached in Regina v A, where the Law Lords concluded that a provision of the Youth Justice and Criminal Evidence Act 1999 could reasonably be ‘re-interpreted’ in a manner rendering it compatible with the fair trial terms of Article 6 of the Convention. In his judgement Lord Slynn not only stressed that a declaration of incompatibility was to be understood as a last resort, but accepted that in order to satisfy Section 3 of the Human Rights Act it might be necessary ‘to adopt an interpretation which linguistically may appear strained’.24 Under such conditions four out of five members of the Appellate Committee were prepared to interpret Section 41 of the 1999 Act in such a way that it would permit the trial judge in a rape allegation case to allow evidence about the complainant’s previous sexual relations with the accused, notwithstanding that it appeared to be the aim of the legislation to debar such evidence. By this means the requirement of a fair trial was held to be satisfied. Whilst all five of the judges agreed in dismissing the appeal and thus avoided resort to an incompatibility declaration, one of them, Lord Hope of Craighead, reached this conclusion by a different route of judicial reasoning, one which relied chiefly on demonstrating that within existing principles of interpretation a trial judge had the discretion to admit certain kinds of evidence apparently held to be inadmissible by Section 41 of the statute at issue. The examples just cited provide some indication of the diversity and complexity of the issues raised directly or indirectly under the Human Rights Act during the first two years of its operation. There can be no doubt that the Act has been invoked to allow cases to be argued that might well not


have got to the courts before Convention rights were incorporated in British law. Yet this bold public law innovation does not so far appear to have changed substantially the character and methodology of a great deal of legal argument that has taken place since 2000 in human rights cases. The reasoning deployed retains familiar forms, often complex, casuistic and technical in the manner of the common law tradition. This reflects the approach both of the courts (and especially of the two higher courts, the Court of Appeal and the House of Lords to which all serious human rights cases are likely to go for final decision) and of the lawyers representing their clients. It also reflects the fact that the judiciary has to work within well-defined confines, seeking as far as is possible always to establish the compatibility of British law with Convention rights. This means that there is necessarily a heavy emphasis on conventions of interpretation and on the purely procedural aspects of the matters in dispute, all of which points towards very tightly argued judgements. It is not surprising that in these circumstances the judges have almost all been cautious and ‘conservative’ in their treatment of human rights claims. They appreciate the constraints within which they have to work and they remain sensitive to the prickly reactions of politicians and ministers to what might be presented as encroachment on the sovereign rights of Parliament. And it must be noted that for the most part the courts remain officially committed to the theory of parliamentary sovereignty and are careful to justify even decisions modifying the meaning of statutes by referring to what Parliament intended and the legal supremacy of its conclusions.

Innovation and continuity in interpreting rights The fact that the Human Rights Act has so far had a rather more modest impact than some of its more enthusiastic protagonists might have hoped for is attributable in part to the character of the Convention itself and to the limitations this places on judicial interpretation of it. There are also practical considerations at work such as the absence of legal aid for human rights actions and the uncertainty affecting such remedies as the successful litigant might actually secure. The code is now just over fifty years old and was drawn up under strong British influence. This is reflected chiefly in the emphasis placed on a specification of rights in procedural terms and the presence of a wide range of qualifications attaching to the rights set out in the Convention. All this is congenial to British judicial thinking and methods of interpretation. The Court of Human Rights in Strasbourg is also alive to the need for a cautious interpretation of human rights, argued with due respect for the different legal contexts to which a judgement has to apply. This also makes it easier for the domestic courts of states accepting the jurisdiction of the European Court to take account of its jurisprudence and to assimilate it to their own approaches. It is worth noting, however,


that at any rate to the layman the judgements of the Strasbourg Court are often easier to read and digest than their British equivalents, and that on the whole they reveal a style of reasoning that moves with less technical elaboration to the main issues and conclusions in a case. When the government originally presented its plans for human rights legislation it talked about ‘bringing rights home’, thus implying that somehow or other it was giving back to the people something they had lost or allowed to be taken over by foreign institutions.25 There was always a certain amount of hyperbole in this claim. But it was a convenient way of avoiding the awkward alternative of drafting an indigenous British bill of rights. A homegrown product might well have provided an even more carefully qualified charter of rights than does the European Convention, since it is likely that it would have been designed from the start both to state rights in as narrow a way as practicable and at the same time to restrict as far as possible the scope for the exercise of judicial discretion. The Convention was, therefore, almost certainly the best code of rights on offer. It is striking, however, how little impact some of the broader guarantees contained in it have had. Article 9 on freedom of thought, conscience and religion, Article 11 on freedom of assembly and association, Article 1 of the First Protocol on the protection of property and Article 2 of the First Protocol conferring a right to education have rarely been invoked. Even Article 14 prohibiting various forms of discrimination, which is the nearest the Convention gets to an equal treatment provision, has figured only occasionally in cases coming before the courts. That these articles have been so little used may in part be owing to procedural difficulties in appealing to such loosely formulated guarantees, in part simply to the rarity of serious disputes under these headings and the fact that British legal advisers feel more comfortable homing in on the more familiar procedural arguments raised by the right to a fair trial (what after all is a fair trial?) or the determination of one’s civil rights and obligations by such a procedure (what are ‘civil rights and obligations’?). But whatever the reasons may be for the relative absence of appeal to some of the more substantive guarantees in the Convention, there can be no doubt that this has been beneficial in terms of the constitutional and political reception of the Human Rights Act. The risks of serious political or ideological conflict have been reduced and it has even been possible for the Lord Chancellor who prepared the legislation to claim with some justification that its critics had grossly exaggerated the difficulties that might stem from it. One more feature of the Convention that may help to explain its so far modest impact is the absence in it of anything like a straightforward guarantee of equality of treatment or equal protection of the laws. In the common law tradition as well as in British constitutional practice there has generally been some suspicion of broad and abstract principles that purport to be of binding effect, and a preference instead for retaining discretion to treat each case on


its merits and to adapt guiding principles to particular and varied circumstances. Any strong equality of treatment condition could, for example, open the door to far-reaching challenges to executive discretion and often enough to the legislative bases on which such discretion has been exercised. At the present time notable examples of unequal treatment in the provision of public services are not hard to find: widely different levels and standards of service and care in the health sector, substantial differences in financial liabilities falling on Scottish students in Scotland as compared with those incurred by English students, variations as between Scotland and England in the meeting of care costs in old age, and large variations in levels of policing and thus of protection for individuals and communities, to mention but a few. If there is to be a strong reinforcement of equal rights in what is now often called ‘the stakeholder society’, then it would appear that the Human Rights Act will have to be developed further and its principles applied more vigorously than has so far happened. Despite the many qualifications that can be made to the terms on which basic human rights have been introduced formally into British law, the Human Rights Act does stand out as potentially the most far-reaching of the constitutional changes introduced after 1997. It provides grounds for challenging both legislation and executive action that were not previously available and it has strengthened the hand of the judiciary by adding a new dimension to the instruments available to them for controlling the exercise of powers and upholding the rule of law. Through the introduction of a new principle of interpretation and the requirement to take account of the jurisprudence of the European Court it has brought new legal concepts and arguments into British law and jurisprudence. We should not, however, forget that the judicial power – even when exercised by learned and prudent judges – is in Montesquieu’s phrase ‘en quelque façon nulle’.26 Judges can deal only with cases that come before them and in reaching their decisions they are bound to consider the consequences as well as the extent to which their judgements remain in sympathy with the values and aspirations prevailing in society and in politics. There is also plenty of room for adaptation and reappraisal in those sectors of public life most directly affected by the need to pay attention to formal human rights criteria. Executive and administrative organisations have to make sure not only that their procedures and the rules under which they operate are ‘human rights compatible’ but also that they adapt their day-to-day behaviour to take account of this new environment. It is not possible to estimate how far and in what ways administrative behaviour has already adapted to human rights law, and in any event this is bound to vary from one area of administration to another. What is more, a steady process of adapting to a wide range of judicial requirements as well as to ever more extensive publicity pressures and procedures intended to reinforce liability has been going ahead for some


time now in the public services environment. As a result most British administrative bodies are already aware of having to work within a more legalistic framework than was present twenty or thirty years ago. Human rights legislation is bound to reinforce this trend. Yet it is striking that there is so far hardly any evidence of a shift in public administration, national, local and regional, away from reliance on generalist qualifications and experience to the wider employment of people trained in law. To this extent there is no sign of a desire to emulate most of the bureaucracies of continental Europe. Another sector in which there is certainly no obvious sign of changes in style and content as a result of human rights legislation is that of legislative drafting and the design of statutes. So far there are no reasons for believing that the 1998 Act will lead to any significant departures from well-established and time-honoured methods of expressing in law the policy requirements stated by ministers and endorsed by Parliament. And account has also to be taken of the reactions of politicians to the new legal environment. So far there are few signs that elected political officeholders believe that human rights provisions directly affect their role in relation to policy-making and legislation, or that they are prepared to accept without protest some of the consequences of the judicial interpretation of such norms. In the political class there was widespread approval of the incorporation of Convention rights, but at the same time little appreciation of what its ultimate implications might be for the political discretion that ministers in particular claim to exercise. Political argument and discussion continues to show little taste for putting formal legal conditions in the forefront, and indeed it is not likely that this will happen so long as knowledge of the law and legal experience play such a modest part in the education of politicians and so many other public officeholders as is still the case. The prevailing assumption seems to be that politics will and can go on as before despite the elevated status now accorded to human rights. The development of a political and legal culture in Britain in which formal legal norms have a more important structuring role than has been the case in the past will take a considerable time, and may indeed not come to pass. Similarly accommodation to a stronger judicial role in the shaping of constitutional values intended to guide political action and public policy will take time and will call for wisdom and courage on the part of judges as well as tolerance and moderation on the part of politicians, not to speak of the media and many sectors of the public at large. It also assumes that the wider legal profession can develop a responsible and principled view of human rights claims rather than remaining attached to what so far has sometimes appeared to be an opportunistic and short-term approach to these matters. But if such favourable conditions are maintained, then there is in this reform a foundation for more coherent constitutional thinking and more consistent practice both in the understanding and application of human rights and in the behaviour of public authorities.


Proposals for further institutional reforms affecting the judiciary The constitutional changes discussed in this chapter refer to normative conditions to be observed by public authorities in the performance of their functions, the rights that citizens may claim, and the terms on which the judiciary is obliged to safeguard and apply these new conditions. In conclusion it is necessary to make a few remarks about a number of proposals for specific institutional changes that would at least indirectly have a bearing on how the broader provisions on human rights might be applied and developed in the future. These were first announced by the Prime Minister in the context of routine cabinet changes in June 2003 and were then presented a few weeks later in consultation papers as major measures of constitutional reform.27 One proposal is for the establishment of a new Supreme Court to take over the work of the Appellate Committee of the House of Lords, along with certain functions relating to devolution issues from the Judicial Committee of the Privy Council.28 In this way all judicial functions would be removed from the House of Lords. Another is for the setting-up of a Judicial Appointments Commission to take over from the Lord Chancellor all his present responsibilities for a very wide range of judicial appointments, that is to say either to make recommendations to the Queen for the more senior positions or to make the appointments himself where entitled to do so. In the same context the prime minister would also lose the appointing powers presently vested in him.29 A further related proposal is to abolish the office of Lord Chancellor, a measure entailing legislation and making it necessary for the House of Lords to decide how it would wish to see the functions of a presiding officer defined and by whom they should be exercised. One consequence of the proposal to abolish the office of Lord Chancellor is that a Secretary of State for Constitutional Affairs was appointed, intended for the time being at least to oversee the work of the Lord Chancellor’s Department and required also, until suitable legislative action has been taken, to act as Lord Chancellor. Finally, a review of the future of Queen’s Counsel was also announced, though in this case it was not entirely clear whether the government actually wished to proceed with any changes. The conferment of the status of Queen’s Counsel by the Lord Chancellor on those who at a certain stage in their legal careers apply for it almost certainly has an indirect bearing on the selection of qualified candidates for higher judicial appointments, but is otherwise a matter chiefly affecting the internal structure and practices of the legal profession, and in particular the Bar. It is hard to judge, therefore, whether this matter taken in isolation raises important constitutional issues, despite the fact that it was claimed as yet another piece of constitutional reform. Significant constitutional changes are usually justified by reference to the need to remedy abuses or to reform practices that are held to work badly or


have become unacceptable on political and perhaps moral grounds too. The consultative papers issued on the Supreme Court proposal and on an independent Judicial Appointments Commission say little either about the failings and weaknesses of the arrangements it is proposed to abolish, or about the principled reasons for the proposals put forward. It was emphasised in the case of a new Supreme Court that no criticism was being made of the manner in which the Law Lords perform their functions. The nearest the consultative paper came to a reasoned argument of principle for the proposal was a comment to the effect that in the wake of the Human Rights Act 1998 a stricter view has to be taken of what conditions guarantee the independence and impartiality of a judicial tribunal.30 But it is not proposed that a new and more rigorous version of the separation of powers theory should be applied generally to constitutional relationships in the United Kingdom: instead the change seems to have been motivated mainly by the feeling that British institutions should be brought into line with European models regardless of their different history and any evidence relating to how well they perform their functions. In fact the consultative document focused chiefly on practicalities like the shortage of space in the House of Lords for the Appellate Committee and how this could easily be overcome if a new court were set up and settled somewhere else. Above all the consultative paper was at pains to emphasise that the new Supreme Court is envisaged as a continuation of the Law Lords under another name, that is to say as a final court of appeal for the United Kingdom and certainly not as a supreme court in the American mould. Essentially what all this means is that an institutional change involving a sharp break with long-standing and effective procedures has been proposed for the sake of meeting an anxiety expressed in some quarters about a possible challenge under the Human Rights Act or, more doubtfully, under European Union law. In presenting the proposal and asking for comments no attention was paid to the possibility that the historically grounded arrangements evolved under the customary constitution might still be defensible, especially in the light of the absence of evidence that they are defective in operation. Similar general considerations apply to the proposals for taking judicial appointments out of the hands of the executive. No firm evidence was offered to the effect that current methods of appointing to judicial office are seriously unsatisfactory. Instead there are vague references to the case for more transparency, for a judiciary more ‘reflective’ of society, and to the possibility that the public might be losing confidence in the independence of the judiciary. The case for the proposed appointments commission appears to be based chiefly on the belief that somehow or other the independence of the judiciary will be enhanced if the executive is taken out of the business of appointments altogether, though, since so many judicial appointments are made formally by the Queen, it is accepted that it is difficult on constitutional grounds to divest her ministers of all responsibility. There are


hints of a desire to encourage some degree of social engineering in order to secure more diversity in the judiciary, and there is reference to the need to break with habits rooted in the past. There is, however, no acknowledgement of the fact that the establishment of an independent appointments commission will inevitably weaken the responsibility of the government as a whole and in particular of the prime minister and one of his current senior colleagues, the Lord Chancellor, for the integrity and quality of the justice system of the country. Yet none of this appears to have been seen as a constitutional issue of any importance by the authors of this scheme. Furthermore there is no recognition of the fact that appointment of judges by the executive (subject to a variety of safeguards) is a fairly common procedure in Europe and does not appear to fall foul of the Convention on Human Rights. Once again the reformers signalled that they have more faith in appointed worthies than in responsible ministers of the Crown. On the abolition of the office of Lord Chancellor no consultative document was issued, presumably because it was assumed that, despite the need for legislation to achieve this, the decision to move in this direction was entirely within the prerogative powers now exercised by the prime minister. The proposal has, however, prompted some critical reactions from both the judiciary and the legal professions. The Lord Chancellor has acted for a long time as head of the judiciary and in that capacity, as a member of the cabinet, was in a position to safeguard the status and interests of the judges right at the heart of government. It is by no means guaranteed that the system of justice as a whole will be strengthened or improved by the arbitrary dissolution of this long-established link between executive authority and those whose duty it is to safeguard the role of law. These proposals were set out in the Constitutional Reform Bill introduced in the House of Lords in March 2004. The judiciary was not consulted before the plans were announced and some of its senior members have subsequently expressed strong reservations. The Lord Chief Justice, for example, made it clear that in his view the abolition of the office of Lord Chancellor and of his role as both head of the judiciary and senior member of the political executive raised doubts about how effectively the views and interests of the judiciary would then be put forward within the government. Nor was he convinced that the changes proposed in relation to making of judicial appointments would necessarily help maintain the independence and high quality of the judiciary. In addition, it also became known that at least half of the current Law Lords were not persuaded of the case for setting up a new Supreme Court and thus dissolving the links with the Upper House of the legislature.31 Nevertheless, despite facing strong opposition and a variety of obstacles to swift passage of the bill, the government appeared to be determined to press ahead with its legislation. In circumstances of such uncertainty it is difficult to pass any considered judgement on this most recent


batch of constitutional reform proposals. Clearly a serious case for separating the Appellate Committee of the House of Lords from the parent body could be devised in appropriate circumstances, for example, if it were proposed to transform the House of Lords into a wholly or largely elected body. But nothing like this is presently contemplated and thus the proposal lacks a serious motivating context. In addition there is little evidence to show that much thought has been given to the impact it might have on the broader pattern of institutional relationships of which the Appellate Committee of the House of Lords is part. Much the same goes for the proposed judicial appointments commission, though in this instance there is more than a hint of doing something intended to appeal to certain fashionable beliefs and prejudices about the benefits supposedly to be gained from making institutions more representative in their composition of certain social conditions deemed currently to be important. Even the abolition of the ancient office of Lord Chancellor in its present form could be justified on principled grounds, especially if it were combined with plans for the appointment of a genuine Minister of Justice with appropriate functions. But the proposals have not been advanced on a serious empirical basis or in the light of explicit principles. Nor has an effort been made to examine what might be their wider effects on existing complex institutional relationships. Instead they have the appearance of hastily prepared suggestions for another instalment of institutional rejigging, devised in the first place to satisfy certain political impulses and justified pragmatically by appeal to whatever limited practical advantages can be claimed for them.

Notes 1. Gough, Fundamental Law, see above Chapter 1, note 1, refers. ‘Fundamentals’ as used in earlier periods did not refer to ‘basic human rights’ in the modern sense of a catalogue of protected individual attributes and claims, but to political fundamentals held to define the legitimate constitutional order. 2. One crucial element in the Bill of Rights Act 1689 was the provision subjecting a standing army to annual parliamentary renewal. The Act’s provisions for succession to the Crown were supplemented and completed by the Act of Settlement 1701. 3. The Commission and Court have since 1994 been fused into one and in principle the individual has direct access to the Court, though only when all alternative remedies have been exhausted. 4. From 1970 onwards there were many calls, chiefly from academic lawyers, for a British bill of rights. In 1982 the House of Lords Select Committee on the Bill of Rights published a thoughtful report which, though acknowledging many of the arguments for such a measure, on balance came down against it. 5. Human Rights Act 1998, Section 10. 6. In the House of Lords strenuous efforts were made to exclude the Church of England expressly from the Act, but this was resisted on the grounds that the Convention protected all religious bodies against unwarranted interference. But


7.

8. 9. 10. 11.

12. 13.

14.

15. 16. 17. 18. 19. 20. 21.

22. 23. 24.

in the case of the Church of England it can be held that it performs many public functions by law, including its own Measures. It is not clear, therefore, how effective these assurances could be in the event of a human rights challenge coming before the courts. The terms of the European Convention on Human Rights reveal at many points the compromises struck between common law and civilian (European) lawyers, and thus the original British influence. Articles 5 and 6 illustrate this. See A. R. Robertson, Human Rights in Europe, Manchester University Press 1963, Chapter 2. HRA Research Project, Doughty Street Chambers, www.doughtystreet.co.uk (2002). G. Marshall, ‘Two Kinds of Compatibility: More about Section 3 of the Human Rights Act 1998’, Public Law, Autumn 1999, pp. 377–83. A notable example was Alconbury [2001] UKHL 23, in which five judgements were delivered. For example, in Regina v A [2001] UKHL 25, a case involving the construal of legislative provisions purporting to exclude evidence of prior consensual sexual relationships in rape trials. The Law Lords concluded that if the right to a fair trial required it, the legislative bar on such evidence could be lifted by the trial judge. F. Klug and C. O’Brien, ‘The First Two Years of the Human Rights Act’, Public Law, Winter 2002, pp. 649–62. Leading cases are those of Thompson and Venables, and Mary Bell. The former is reported as Venables v News Group Newspapers Ltd, Family Court 430 [January 2001] and the latter as X (A women formerly known as Mary Bell) v SO, Family Court, 21 May 2003. Regina v Secretary of State for the Home Department, QBD (Admin Ct), Mr Justice Collins, 19 February 2003, EWHC 195; confirmed by the Court of Appeal, 18 March 2003 (Times Law Report, 19 March 2003). Regina v Benjafield (Confiscation Order), Court of Appeal (Criminal Division) [2001] 3 W.L.R. 75. Alconbury, op. cit., Lord Hoffmann’s judgement, para. 129. Courts Martial Appeal Court, judgement of 15 January 2001, reported in Times Law Report, 30 January 2001. Regina v Secretary of State for the Home Department ex parte Isliko and another, Court of Appeal 20 December 2000, Times Law Report, 20 February 2001. Wilson v First County Trust Ltd. (No 2), Court of Appeal, Times Law Report, 16 May 2001; subsequently reversed in UKHL, 2003. Regina v Kansai (No 2), House of Lords 29 November 2001, Times Law Report, 4 December 2001. Mrs Pretty’s case had a long and complicated history. After the House of Lords decided that the Director of Public Prosecutions was justified in refusing to promise her husband immunity from prosecution in the event of his assisting her to end her life, the issue was appealed to the European Court of Human Rights in Strasbourg which upheld the conclusions of the House of Lords. Pretty v United Kingdom (2346/02) [2002] 2 F.C.R.97 (ECHR). Douglas and others v Hello Ltd. (No 1), Court of Appeal [2001] 2 W.L.R. 992, Times Law Report, 16 January 2001. Matthews v Ministry of Defence, House of Lords 13 February 2003, Times Law Report, 14 February 2003. Regina v A, op. cit., note 11, Lord Slynn’s judgement.

260 Reshaping the British Constitution 25. Rights Brought Home: the Human Rights Bill, Cm 3782, issued by the Home Office, October 1997. 26. Montesquieu, L’Esprit des lois (The Spirit of the Laws), Book 11, Chapter 10. This is the famous chapter about the English constitution in which Montesquieu expounds his theory of the separation of powers. It is worth noting that he also writes in favour of short-term elected magistrates. 27. Constitutional Reform: the Future of Queen’s Counsel; Constitutional Reform: a New Way of Appointing Judges; Constitutional Reform: a Supreme Court for the United Kingdom, CP08/03, 10/03 and 11/03 respectively, Department of Constitutional Affairs July 2003. A further consultation paper entitled Constitutional Reform: Next Steps for the House of Lords, CP 14/03, was issued in September 2003. 28. Under legislation of 1981 the Supreme Court already exists, but the term refers to the superior courts of the UK collectively. 29. The prime minister’s power to recommend to judicial appointments relates to the Law Lords, judges of the Court of Appeal and certain other top-level positions such as Lord Chief Justice of England. 30. Op. cit., CP 11/03, para. 3, p. 11. 31. The critical views of Lord Chief Justice Woolf on some aspects of the proposed changes, in particular the proposal to abolish the Lord Chancellorship and to set up a judicial appointments commission, were reported in The Times, 7 November 2003.

12 The European Union: Towards a European Constitution

From the European Communities to a European Union There are many difficulties in the way of examining and characterising the consequences for the customary British constitution of membership of what is now the European Union. Britain has been a member since the European Communities Act 1972 came into force in 1973. At that time the European Union was usually referred to as the Common Market and, more formally, as the European Economic Community which was in turn much the most important of three related communities, the other two being Coal and Steel, and Euratom. In the thirty years since British accession what was seen as primarily an economic association has been engaged in a continual process of change that has made explicit the political dynamic inherent in these interlocking communities impelling them towards that ‘ever closer union of peoples’ which was the then-distant objective enshrined in the Treaty of Rome setting up the European Economic Community in 1957.1 What was in 1957 an association of 6 states became 9 in 1973 with the accession of Britain, Ireland and Denmark; then Greece joined in 1981, Spain and Portugal in 1986, and Austria, Finland and Sweden in 1995. This brought membership up to 15 and it will rise to 25 by 2004 when a further 10 states are due to take up membership, most of them in central Europe and formerly within the sphere of control of the now defunct Soviet Union. The European Union as it has been known since the coming into effect of the Maastricht Treaty in 1993 has not merely grown in size and diversity of membership.2 Though the core of its functions still relate to the maintenance and operation of what after acceptance in 1986 of the Single European Act became officially known as the Single Market, the competences of the Union have steadily widened, and especially in the course of the period stretching from the signing of the Maastricht Treaty on European Union in 1992 down to the present time. This has happened in part as a result of continuous pressure from integrationists within the Union and in several member states who have wished to see a strengthening of the powers of the 261


Union and its core institutions in Brussels, in part simply through the application of new powers held to be ancillary to the creation of the single market and necessary for that purpose. Under the Maastricht Treaty three ‘pillars’ of the Union were identified: first, all existing policies and commitments bearing on the completion of the single market; second, a sector of common foreign and security policy; and third, a range of additional areas of cooperation in aspects of justice and home affairs. The Amsterdam Treaty of 1997, coming into effect in May 1999, was intended to put some flesh on the bones of common action and policy outlined under the second and third pillars of EU development and in this way to push forward the processes of integration. It also signified recognition of the fact that the project to establish an Economic and Monetary Union agreed in the Maastricht Treaty, and from which the United Kingdom had secured an opt-out clause, was in fact going ahead and would come into effect at the beginning of 1999. A further treaty, that of Nice, was finally ratified in 2001 and, along with institutional and procedural changes intended to enable the EU to accommodate up to 12 new members, it too contained a number of provisions that in principle at least pointed towards further significant extensions of EU powers.3 These included a Charter of Fundamental Rights accepted subject to the proviso that ‘the question of the Charter’s force will be considered later’. There can be no doubt that the history of the European Communities and Union since 1973 testifies to a steady widening of the powers and competences vested in the central institutions. There are many sectors like agricultural policy and international trade and competition policy in which national governments can act in relation to the internal market only within the terms of EU law and policy, though outside that sphere they have a shared competence. In addition, to a large extent the implementation of regulations in fields of EU competence remains chiefly with the national administrative bodies. Similarly, there are other sectors such as social policy (a nebulous and flexible concept any way) where a step-by-step encroachment of EU norm-setting has got under way in certain areas, requiring national authorities to adapt their domestic law and policies to EU decisions and directives. And there are yet other sectors like justice, police operations, asylum policy, defence and foreign policy where so far only tentative steps have been taken to develop common action, and where the political obstacles to the surrender of national responsibilities remain formidable. Meanwhile the establishment of the European Monetary Union proceeded by stages leading in the ‘eurozone’ of 12 member states to the introduction of the common currency at the beginning of 2002. There have been no serious crises so far in the management of what is the most ambitious experiment ever undertaken by the EU, though it has to be noted that the members of the eurozone have so far failed to solve what is the most difficult problem facing an independent central bank (as the European Central Bank is intended to be under the relevant treaty provisions), that is to say the estab-

The European Union 263

lishment and maintenance of a single coherent framework of economic and fiscal policy for the whole of the eurozone within which the bank has to operate.4 However, whilst the evolution of the EU in recent years suggests an everexpanding association of states pooling more and more of their powers, and thus surrendering many of the responsibilities that have traditionally been held to constitute the raison d’être of an independent state, there are at least two other features of this development which point in a different direction. And these are particularly relevant to the constitutional significance of EU membership. The first is the fact that the Union still operates almost entirely on the basis of the pattern of institutions originally devised for the European Coal and Steel Community of 1951 and carried forward with minor modifications in the Treaty of Rome founding the European Economic Community in 1957. These institutions seek to combine the sovereign authority of nation states with supranational organisations charged with carrying forward the work of the EU and interpreting its now autonomous legal order. Despite the enlargement to 15 members and the imminent increase of that number to 25 very soon no radical departure from the original post-Second-World-War institutional formula has so far occurred. The institutional pillars of the EU remain the Council of Ministers (with some variations of title) which represents the member states and in which all crucial decisions are taken, the Commission consisting of appointed political bureaucrats which acts as the source of policy proposals and in some degree as the executive authority, the European Court of Justice charged with the interpretation of European law, and the European Parliament, directly elected since 1979, but possessing a consultative and collaborative role in relation to EU policy and law-making rather than autonomous legislative authority. This complex institutional structure, to which yet more consultative and supervisory bodies have been attached over the years, leaves the EU looking more like an association of states than an emerging pan-European single state. The second characteristic of the EU evolution is that it has remained impossible to achieve anything like general agreement on what might be the eventual political shape of this European construction. It certainly appears to have acquired some of the conventional attributes of a state, but only to a very limited extent and there continue to be profound differences of opinion within the Union about what the final end should be. In part as a result of such conflicting perceptions of the future the EU remains condemned to continuing arguments about finalité, a term usually referring less to ‘finality’ in the English sense of a definite and final conclusion than to the continuing pursuit of new ends (fins) and objectives. There is thus an unresolved and possibly insoluble conflict between those who want to know what their destination might be and those who prefer simply to travel hopefully in the direction of what they believe will be a harmonious ‘ever closer union of peoples’.


The impact on discretion in policy and law-making It is in the context of these very summary comments on some of the principle features of what is now the European Union that we must now try to pin down its principal implications for British constitutional principles and practices as they have hitherto been understood. The EU has become the source of law on matters within its competence. This does, not, however, take us very far towards defining what its range of powers is. Originally the European Economic Community was committed to the achievement of a customs union and free trade area. The Single European Act of 1986 took this much further forward by committing the Community to the achievement of a single market, an objective that in turn required important extensions of what might be called the implied powers of the Community to take or require action entailed by its wider policy commitments. Throughout the 1990s the sphere of Community and Union law-making was pushed out so that it came to embrace many aspects of harmonisation of standards, consumer protection, some elements of transport policy, competition and public procurement, harmonisation of company law, industrial policy, some elements of environmental and energy policy, and even of social policy insofar as, for example, it affects employment rights and conditions at work. More ambitious still are plans to achieve common policies and rules in some areas of justice and home affairs, and to move towards a common European defence and foreign policy. Yet despite this steady widening of EU powers and claims to act it remains virtually impossible at any point in time to state with accuracy what powers the European institutions actually have and to what extent they are entitled to use them in order to make law. Furthermore, whilst the EU can be said to have exclusive powers in some spheres, for example, support for agriculture or competition rules, it exercises many of its powers concurrently with the member states who also retain scope for action and rule-setting. This state of uncertainty in relation to the EU’s powers to make law or to establish the parameters within which the member states are expected to legislate themselves is inherent in the manner in which its powers have been developed and applied. There has been a process of continual accretion and extension, characterised generally by the conferment of imprecisely formulated general responsibilities on the Community institutions to be exercised when opportunity presents itself in the pursuit of objectives that have also usually been expressed in similarly vague terms. Thus it is hardly possible to say more than that there is now an extensive and ever-widening sphere of EU law-making that has replaced the full legislative discretion previously possessed by the member states. A further point of great importance in connection with the law-making competence of the EU institutions is that this has entailed the supremacy of Community law, a principle affirmed by the European Court of Justice well in advance of British membership.5 Consistently with this the European Com-


munities Act also acknowledged that Community law has to take precedence over domestic law and since 1973 the British courts have conscientiously done their best to comply with this requirement, though occasionally with signs of disapproval of the conclusions to which they were driven. There is logical coherence in the argument that Community or Union law must prevail over domestic law when in conflict with the latter. But a further doctrine evolved within the Community institutions and running in parallel with the precedence accorded to Community law is that of the acquis communautaire – sometimes translated as ‘the Community’s patrimony’. This is rather more of a political than a juridical concept, though it received formal blessing in the Article B of the Treaty on European Union (Maastricht) when it was elevated to the status of an objective of the Union. The political effect of this notion is to make it harder to change the scope and direction of the European Union, and to provide a formidable list of requirements that new members are expected to satisfy before admission to the club. The impact of the extensive legislative competences now conferred on the EU is plainly to reduce substantially the law-making capacity of Parliament: in any normal interpretation of the matter Parliament has surrendered both legal and political sovereignty to a substantial degree, no matter what may be said about its theoretical capacity to recover what has been lost. Indeed it has been estimated that already something like 50 per cent of domestic legislation originates in some way or other in Brussels.6 Nevertheless, it is doubtful whether most parliamentarians really perceive this loss of power as a radical change in their role and in their daily patterns of activity, and similarly most citizens remain for most of the time unaware of a direct impact on their own lives of law-making from or via Brussels. But if we turn from the scope of EU powers to the terms on which law is made in and through its institutions, it becomes much more difficult to brush aside the profound changes which have been taking place in recent years. Law emerges from Brussels predominantly in the form of regulations or directives. Regulations are made autonomously by the Commission (though often subject to elaborate consultation) in sectors where it exercises a genuine executive function, for example, the administration of the common agricultural policy (CAP), and they take effect directly, that is, those affected by them in the member states are expected to comply with them without further ado. Directives are prepared by the Commission in the exercise of its policy formulation responsibilities, but lengthy and complicated consultation procedures with other institutions have to be followed before they can be submitted to the European Council of Ministers, the EU institution that takes the final decision on all such proposals. Sometimes they may have to go to the European Council, the meeting of Heads of Government now institutionalised within the EU. Once they have been approved directives have the status of EU laws and are binding on member states as to the achievement of the objectives expressed in them. But they do not have


direct effect and it is left to the member states to take appropriate action to render them legally effective within their own jurisdictions. What this means is that once a directive has been approved (and there may be different voting procedures for that in the Council of Ministers depending on the relevant treaty provisions), the legislature of a member state is restricted in fact to the exercise of what amounts to little more than a delegated legislative authority. Moreover, since it is in reality the government of a member state that decides how best to implement a directive, this leaves it with a range of options. In Britain primary legislation may on comparatively rare occasions be needed, but the normal procedure, provided for in the accession statute, is to enact directives by the passage of statutory instruments or occasionally by legislative amendment if that turns out to be convenient. What does this superimposition of EU legislative requirements imply for the business of legislating in Britain, and indeed elsewhere in the EU? The outstanding effect of this way of handling legislative action in pursuance of Community policies and decisions is that law-making becomes almost entirely an executive activity. Admittedly, even before the enactment of European law became a regular occurrence such a state of affairs was already far advanced in Britain through the granting of wide discretion to the executive both in the preparation of primary legislation as well as in the enactment of delegated legislation involving the passage of countless statutory instruments with only minimal parliamentary supervision. The main effect of EU membership and of the resulting legal and political obligations is to incorporate into British constitutional practice yet another layer of executive law-making that allows even wider discretion and control to the agents of the executive, political and administrative. European Union law emerges from complex processes of bargaining in which many actors, national, regional and supra-national, come together in constantly shifting formations to hammer out what are nearly always bureaucratic compromises which have then to be enacted and implemented by the member states. Much of this bargaining goes on in secret and, even if that were not so, it would make little difference to the political character of the process itself. In relation to all this the Westminster Parliament remains on the sidelines. Its scope for intervening meaningfully in the process before final conclusions are reached in Brussels is strictly limited, and it is similarly unable to amend or reject the subsequent legislative action that may well be required by them. In effect Parliament in 1972 handed over its authority to make law in relation to the functions then exercised by the European Economic Community and subsequently conferred on the European Union by treaty amendments and additions. Parliament has in reality no option but to give its formal blessing to what is presented to it. Defenders of these changes can advance at least two lines of defence. One is that the British government always has a voice and, in some matters still,


a veto in the taking of decisions within the EU.7 Whilst it is true that any British government can (and usually does) try to safeguard British interests in the making of EU law and policy, this can be of little comfort to anyone concerned with the rights and powers of Parliament. Acting within the framework of the European Council of Ministers a British government has to play its cards as best it can to secure an outcome that will not prompt serious criticism or opposition at home. But it knows that it is virtually certain that it will have to accept some kind of outcome, even if a bad one, since that is what expresses the dynamic of the EU, the way in which it edges its way forward. So the claim that the government enjoys in the EU context anything like the discretion and authority it possesses in purely domestic policy-making is hollow. Then it may be suggested that both Houses of Parliament do their best to exercise some kind of influence on law-making from Brussels through their own scrutiny procedures. Again, it is true that the British Parliament has made a greater effort than almost any other national parliamentary body in Europe to establish means of trying to keep up with the flow of Community documents and proposals for policy development and further legislation.8 In the House of Commons there has been since 1974 a scrutinising committee, now called the European Scrutiny Committee, which examines a large amount of material issuing from Brussels, takes evidence, evaluates the legal and political significance of proposals, and may recommend debate of more important items in one of the three European Standing Committees which also now operate as forums to which ministers can be called to make statements and debate can take place. It is also possible to recommend debate on the floor of the House, though this is a rare occurrence. In the House of Lords there is also a Select Committee on the European Union working through six sub-committees to which members are coopted for up to three years at a time. The committee issues numerous reports on impending proposals from Brussels. For procedural reasons it is much easier in the House of Lords to secure time for short debates on such reports than is the case in the Commons. Certainly considerable time and energy is devoted in both Houses to tracking EU developments and proposals for action, and in making information and reasoned comment publicly available at various stages in the Brussels legislative process. Yet none of this can disguise the fact that Parliament remains essentially a spectator on the outside looking in on the emergence of law and policy in the EU. It has no formal status in these law-making processes and though the government has promised as far as is practicable not to approve EU proposals before scrutiny has taken place,9 it cannot mandate the government to follow a particular line. If and when a proposal finally emerges as a directive after some months or even years of intra-EU argument and consultation this will represent the product of executive rather than parliamentary law-making. Parliament then has under the terms of British membership of the EU no realistic alternative to giving its approval to whatever


measures are deemed necessary to incorporate such a directive into British law. As far as Parliament is concerned sovereignty pooled in the EU Council of Ministers is sovereignty given away. Similar conditions apply to the purely political function of participating in the formulation of EU policies at ministerial level, whether of heads of government meeting twice yearly as the European Council or of specialist ministers coming together in the Council of Ministers. All this involves continuous and repeated consultation amongst ministers within the EU framework, along with parallel close contacts at official level into which many parts of the Whitehall administrative organisation are drawn. There are also elaborate arrangements for giving administrative support to the British representatives at the Council of Ministers and for maintaining contact with the European Commission and its staff. Once more, however, this is essentially executive and bureaucratic politics, conducted within numerous relatively small closed groups whose members have for a wide range of reasons some kind of stake in the EU policy-making network. Since the pattern of relationships involved is extremely complicated, and the process of negotiation and consensus-seeking is continuous and without end, it is virtually impossible for any external national institution – and that is what Parliament has become in this connection – to make any impact on the outcomes to which the government finally gives its consent. Political sovereignty has been pooled just like legal sovereignty, though up to the present time to a lesser degree and subject to wider reservations concerning what the government of a member state may decide to do independently.

British law and EU law: who interprets what? Law-making has to be followed by implementation and the judging of disputes. Here too we find crucial elements of the autonomy of the European legal order that has been taking shape over the past forty or more years. As already indicated, by its decision in Costa v. ENEL the European Court of Justice affirmed the supremacy of Community law in relation to the domestic law of the member states. When Britain joined the Communities in 1973 this principle was embodied in the legal system and had then to be observed by the British courts when dealing with cases falling under European law, a term which included domestic law made in pursuance of directives as well as European law having direct effect or, in some cases, treaty provisions themselves. Under Article 177 of the European Economic Community Treaty (now Article 234) provision is made for national courts to refer an issue arising under European law to the European Court of Justice if it is uncertain or in dispute, whilst at the level of the national court of final appeal reference has to be made when there is doubt about interpretation of the relevant European law. These provisions serve as a means of securing


uniform interpretation of Community law since any conclusions reached by the European Court of Justice as a result of such a reference take their place in the case law through which the powers of the Community and the meaning of the legal instruments embodying them have been defined. The procedure for reference by national courts to the ECJ has done more than simply harmonise the interpretation of European law across the EU, it has also opened the way to a considerable degree of cooperation between national courts and the ECJ in the overall development of the new European legal order. As a result it was possible for Hoffmann J in a 1990 judgement to affirm that: The (EC) Treaty is the supreme law of this country, taking precedence over Acts of Parliament. Our entry into the European Economic Community meant that (subject to our undoubted but probably theoretical right to withdraw from the Community altogether) Parliament surrendered its sovereign rights to legislate contrary to the provisions of the Treaty on the matters of economic and social policy which it regulated.10 It has often been possible to affirm the primacy of EU law by creative interpretation of British statutes thought to be in conflict with it. Sometimes, however, no amount of ingenious interpretation can bridge the gap and it becomes necessary to take action to bring British law into line with the judicial determination of what EU law requires. Two cases that illustrate this are worth some attention. One came fairly early in British membership of the European Community, Macarthys Ltd v Smith (1979). The underlying issue in this case concerned equal pay for men and women, and more narrowly whether Parliament had through the Sex Discrimination Act 1975 which inter alia amended the Equal Pay Act 1970 satisfied the requirements of Article 119 of the European Economic Community Treaty setting out the principle of equal pay for both sexes. The Employment Appeal Tribunal thought that this had been done, but the employer (Macarthys) disagreed and appealed, contending that British law did not oblige an employer to offer equal pay to a woman taken on not simultaneously with, but successively to, a man. A majority on the Court of Appeal thought that a straightforward grammatical construal of the relevant British law did put it in conflict with European law, and that the case should be referred to the European Court of Justice for a ruling. This was done and that court quickly decided that equal pay did in fact mean equal over time as well as between men and women actually working alongside each other. As a result of this the employer conceded defeat when the case went back to the Court of Appeal. The decision is, however, rendered interesting and significant on account of some of the observations made by the then Master of the Rolls, Lord Denning. He had been prepared to take the common-sense view that equal pay must apply both to men and women working together and to a


woman coming in to succeed a man, and thus to dismiss the appeal. In elaborating his argument Lord Denning commented that: Article 119 is framed in European fashion. It enunciates a broad general principle and leaves the judges to work out the details. In contrast the Equal Pay Act is framed in English fashion. It states no general principle but lays down detailed specific rules for the courts to apply . . . without resort to considerations of policy or principle.11 These remarks neatly summarise what still remains an important difference of approach to legislative drafting, to the understanding of the role of judges, and to the range of arguments left open to litigants as between continental Europe and the British legal order. The arguments put forward on behalf of the employer were narrow and casuistic, designed to exploit a possible loophole in the list of ‘detailed specific rules’, presumably so that the wages bill could be kept as low as possible. In contrast the European Court of Justice and Lord Denning himself put the purpose of the legislation in the foreground of the legal argument in this case. A further point of great significance brought out in Lord Denning’s remarks in this case is that not only has Community law primacy, but that it must also be assumed that Parliament always intends to comply with Community or Union law. From this it follows that only if Parliament expressly legislates contrary to EU legal requirements would the judges be obliged to give priority to the domestic statute. This amounts to the conclusion that for all practical purposes Parliament has bound itself for the future – despite the fact that under the doctrine of implied repeal it used to be thought that it could not do so. A later series of cases attracting far more attention were those generally referred to as Factortame which preoccupied both the British courts and the European Court of Justice for the best part of ten years from 1989 to 1998.12 What was at issue here was the validity of British legislation, the Merchant Shipping Act 1988, some provisions of which had been used to exclude from registration in Britain fishing vessels managed and controlled from Spain. The owners of the Spanish vessels contested this on grounds of a breach of Community law dealing with equal rights of establishment for businesses throughout the Community. The Divisional Court was clear about the existence of a conflict of laws and made an order for interim relief which ‘disapplied’ the Merchant Shipping Act 1988, thus in effect overriding a parliamentary statute. The House of Lords subsequently decided that the Divisional Court had no power to make such an order and thereby to grant rights which went expressly against what Lord Bridge had once described as ‘Parliament’s sovereign will’. In the words of the Master of the Rolls, Lord Donaldson, in the Court of Appeal, ‘Any attempt to interfere with primary legislation would be wholly unconstitutional.’13 The House of Lords, therefore, made a reference to the court in Luxembourg which eventually ruled


against the British courts and held that the Merchant Shipping Act was indeed incompatible with Community law. Eventually the offending sections in the legislation were amended, and subsequently the trawler owners even won the right (with support again from the European Court of Justice) to bring an action for damages. Overall the impact of the various judicial decisions in this case was to establish that the British courts could no longer be inhibited from suspending the application of a United Kingdom statute when this was necessary in order to give effective interim protection of rights provided under Community law. In this way the legal sovereignty of Parliament was substantially qualified, though it is worth noting that this was still a somewhat oblique conclusion which seemed to imply that any ‘disapplication’ of statute would be temporary until Parliament (and that means in reality the executive) had corrected it and brought it into line with Community law. In other words, the door had not been opened to any procedure under which the courts might simply ‘quash’ a statute or declare it null and void. One of the general lessons of such cases is that they underline the complexity and uncertainty of the relationship between domestic and Community law as well as the fact that the relationship is dynamic because Community (and now European Union) law and jurisprudence are also constantly having to change in order to adapt to new situations. Notwithstanding what some commentators may still say about the theoretical ability of Parliament to take back what it has given away, or the argument that Parliament still retains that mysterious essence called ‘ultimate’ or ‘essential’ sovereignty, there can be no doubt that a serious breach has been made in the doctrine of parliamentary sovereignty. Of major practical significance is the fact that the need to apply and interpret European law has been a source of stimulus and innovation for the judiciary. They have had to take account of different legal systems from the one they are familiar with and to work with concepts and patterns of legal draftsmanship different from those that have developed in the common law tradition. On the whole, however, the process of assimilation appears to have gone ahead without much difficulty and it is clear that some judges (and only a minority are likely to be often dealing with disputes arising under EU law) actually welcome the opportunity to deal with legal issues in a broader and more flexible framework of guiding principles and more straightforward interpretative conventions than are familiar in the British courts. As for the citizen, he or she might have been expected to mistrust the intervention of foreign methods of interpretation as well as the intrusion of EU regulation into so many sectors of economic and social activity. Over against this has to be set the fact that the direct and perceived impact of EU law is restricted in scope and for the most part does not yet impinge on sectors of life that are politically and morally sensitive and likely to stir up strong emotions, though the ‘Metric martyrs’ case excited much comment and earned sympathy for the trader resisting


the heavy hand of local bureaucratic enforcement agencies.14 But for the most part the continuing application of European norms passes over the heads of the majority of people and is tolerated as yet another manifestation of the supposedly benign activity of the contemporary state. As a result there is a diffuse and persistent dislike of much that has happened as a consequence of the legal primacy of the Community (and now the European Union), but this rarely comes anywhere near a willingness actively to resist further steps down the road of integration and the harmonisation of many aspects of economic regulation, business activity and employment conditions.

Enlargement of the EU and the prospect of a constitution for Europe It is, however, possible that this situation will change in the years to come as a result both of the impending enlargement of the European Union and, more imminently, of the passage of what has been welcomed by many as a constitution for the European Union tailored to the needs of an enlarged and more heterogeneous membership. The accession of 10 new members to the EU that was formally confirmed in early 2003 does not of itself affect constitutional conditions either within the Union or in a member state such as Britain. Nonetheless, enlargement on this scale raises political and operational questions which extend beyond whatever changes in the structure of the EU and, therefore, in the rights of existing members have already been made or are likely to follow on from the recommendations of the Convention on the Future of Europe presented in July 2003 to European Union heads of government. The accession of so many new members with a radically different recent history from that of the 15 members of the EU as it was in 2002 is bound to affect in unforeseeable ways the internal dynamics and character of political relationships in the association. It is hard to see how and on what terms an organisation of 25 members (rising perhaps quite soon to 27 at least)15 can without substantial internal structural change retain enough coherence to allow it to take policy decisions and to secure their effective implementation. The Convention on the Future of Europe was from early 2002 engaged in trying to fulfil the mission given to it on the basis of the Laeken Declaration of December 2001 which proclaimed the need for ‘more democracy, transparency and efficiency’ in the EU. The Convention was a relatively large and highly heterogeneous body of 105 delegates (with an equal number of alternates) from the national governments and parliaments of existing and prospective members as well as from the European Commission and Parliament. It operated chiefly through its presidium under the chairmanship of a former French President, Valéry Giscard d’Estaing, a politician familiar with the bargaining processes of bureaucratic politics within the EU frame-


work. The majority of the Convention’s members were keen to take its deliberations as an opportunity to formulate a new constitution for the EU, but there were differences of opinion about what that should mean and what might eventually be the status of such proposals as the Convention finally agreed to put forward for ultimate approval by an Intergovernmental Conference of heads of government of all current and prospective member states. Technically, the Convention was charged with making recommendations for the consolidation and simplification of the existing complex pattern of treaties and amendments to treaties that is the EU’s substitute for a formal constitution. But the work of the Convention was also treated as an occasion for amending and updating the treaties and for trying to take account of some of the consequences of forthcoming enlargement, though this latter problem had to some extent already been met by treaty amendments made at Nice in 2000 and supporting decisions of the heads of government. Thus, for example, it was already agreed that in order to accommodate new members the Commission would at any rate for some time to come have to increase somewhat in size and that the five large states with two commissioners each would have to be content with one. Similarly, changes in the complex rules for qualified majority voting in the Council of Ministers were approved in order to take account of the arithmetic of a larger membership. Nevertheless, there were many outstanding issues of institutional structure, competences and voting rights that remained to be resolved in the course of the Convention’s work The final report of the Convention presented to the European Council in July 2003 bore the title ‘The Draft Constitutional Treaty for the European Union’ and was eventually published in Britain as a command paper.16 The draft constitution is a long document, much of which is taken up with consolidation, restatement and amendment of the existing treaties. But it does contain numerous proposals for institutional change that might in theory have far-reaching effects. In the present context only some of the salient aspects of the proposed constitution will be singled out for brief comment. The draft proposes that the practice of having a six-month presidency rotating amongst the member states should be replaced by the appointment by the European Council of a president (who is not to hold any national mandate) who would hold office for a longer period (at least two and a half years) in order to give more continuity to the management of the business of the Council of Ministers. This amounts to an effort to strengthen the main political organ of the Union, the body in which the governments of the nation states constituting the Union sit, enact legislation and take the final decisions on most important matters. There is provision for the president of the European Commission to be nominated by the heads of government, but to be given greater ‘democratic’ legitimacy by subjecting the appointment to formal approval by the European Parliament. It is also proposed that the Commission should after 2009 have only 15 voting members,


a scheme flanked by complex rotation procedures for voting and non-voting members to ensure that all members are represented in the Commission. Another proposal aimed at strengthening the executive arm of the EU is that a new post of ‘Union Minister for Foreign Affairs’ should be created. Its holder would be appointed by the European Council and would in addition become a vice-president of the Commission. Such a step is regarded by many as a means of giving more weight to the EU in the international community and in defence and security matters, though it is also viewed with suspicion by others opposed to any emergence of a European defence capacity separate from the North Atlantic Treaty Organisation, in which the USA is the dominant partner. In relation to the representative components in the EU it is proposed that the European Parliament’s rights of co-decision in relation to legislation should be substantially widened. At the same time as a gesture towards meeting the complaints of national parliaments that they are left out in the cold, the draft proposes that they should be permitted to challenge legislative initiatives coming from the Commission on the grounds that they breach the principle of subsidiarity, though how this could operate and what it might mean in practice remains very opaque. In relation to how powers are distributed between the member states and the central institutions the draft prepared by the Convention aims to bring about a substantial increase in the number of policy areas which would no longer be subject to the unanimity rule and thus to the ability of a single member state to impose a veto on EU action. These and other similarly contentious matters were all held to be within the remit of the Convention, many of whose members had a much more ambitious view of their task than mere simplification and rationalisation of the existing treaties. They looked forward to the emergence of a genuine constitution for the Union which would contain certain crucial ‘state-defining’ elements. Already the draft put forward opens with a high-sounding declaration of political objectives (a grandly teleological statement of the kind so familiar in the evolution of the Communities), and includes a charter of fundamental rights intended to be binding at least in relation to EU law and institutions. Additionally there are proposals for a European citizenship endowed with wider rights than those currently recognised, conferment of legal personality on the Union, and a broad range of conditions intended to confirm commitments by the member states to establish and maintain common policies in many fields, including security, defence and foreign affairs. Potentially all this has far-reaching implications for the political discretion of all member governments as well as for their domestic constitutional provisions. The draft constitutional treaty also embodies the existing provisions relating to the common currency, the euro. Under the Maastricht Treaty Britain secured an opt-out from this project, but it is now a going concern for 12 of the 15 current member states. The new members too will in stages be


obliged to join the eurozone. Acceptance of a common currency clearly has implications for the political discretion of national governments and for their internal political accountability. For Britain entry into the eurozone remains on the political agenda notwithstanding widespread disagreement about its desirability and practicability, not to speak of the timing of such a move. The timing has been made particularly sensitive because in 1997 a referendum was promised on any proposal from the government to adopt the euro, and so far it has always seemed unlikely that entry would be approved in a popular vote. Nor has that degree of convergence between the British economy and economic conditions in the eurozone been achieved which, in the view of the government, continues to be a prerequisite of entry. Regardless of the economic case for acceptance of the common currency, it is clear that such a step does have important constitutional implications, even though this has been denied by many of its supporters. For it is undeniable that it would remove from the responsibility of national authorities powers affecting the management of the economy that so far at least in principle have been subject to domestic political control. At the present time it is far from clear what kind of constitutional treaty or draft constitution will finally be approved by the Union’s heads of government, and indeed to what extent the whole project of having a ‘constitution’ will survive in its present form. The Convention’s draft was subject to argument and negotiation from October to December 2003, but when it went forward to the Intergovernmental Conference agreement on a final text proved unattainable. Some member states were hostile from the start to any substantial amendment of the Convention’s draft, chiefly on the ground that this would risk unravelling the careful (and often obscure) compromises already achieved.17 Other members, and especially some of the existing smaller states and some of the prospective new members, strongly opposed proposed changes in the allocation of voting rights in the Council of Ministers that had previously been embodied in the Treaty of Nice. They preferred to stick to the earlier provisions chiefly in order to protect themselves against what is seen as the dominance of the four largest member states. The British government adopted an ambiguous approach to the draft constitution as finally presented to the heads of government. Without doubt it started off by being sceptical about the whole project and the need for a European constitution. It would have preferred instead a straightforward consolidation exercise that would have amounted to little more than what government ministers described as a ‘tidying-up’ operation whilst the Convention was at work. But it was not able to restrain the enthusiasts for a constitution of some sort or other within the EU, and in any event it was unable to influence the Convention’s deliberations in any decisive manner. So when the intergovernmental discussions got under way after the draft had been presented it concentrated on arguing that the draft (as amended


at various stages) did not embody any far-reaching changes in the scope, powers and working practices of the European Union, that for that reason there was no case for submitting whatever constitutional document was finally accepted to a referendum, and that any way the government had successfully safeguarded all vital British interests in the negotiations. These were expressed in terms of maintaining national autonomy through the retention of veto rights in relation to defence and foreign policy, taxation and social security policies. On the basis of a claim to have secured acknowledgement of these so-called ‘red lines’ the government professed to be broadly satisfied with the draft, including the amended voting procedures on which the initial effort to reach agreement foundered. Critics of this position have argued that it rests on a short-sighted and superficial view of the matter, and that the draft constitution in anything like its present form would at the very least open the door to a substantial shift of powers away from the member states to the central institutions of the Union. It does, for example, herald a significant reduction in the number of matters subject to the unanimity rule in the Council of Ministers, it opens the door to interventions by the Commission in sectors so far relatively immune to such action, and in its very language, a curious admixture of the grandiose and the bureaucratic, the draft constitution points again, as have all preceding treaties, to the possibility of yet more integration and regulation promoted by the central institutions. Since the final shape of the European constitution remains subject to further negotiation at the time of writing it is not possible to decide between these competing claims, and there is no way of assessing with confidence what are likely to be the constitutional consequences of commitment to something like the current draft.18 On the one hand there can be no doubt that the draft constitution as it was presented does have the potential for promoting more and closer integration as, indeed, was plainly the intention of many of those closely concerned with producing it. The draft does, for example, give more leverage to the European Council, the Commission, in a modest way to the European Parliament, and it provides for an EU Foreign Minister. These are signposts pointing to more joint action and rule-making, provided that there is the political will to achieve that. But just as important as specific institutional and procedural changes is the political and legal potential inherent in a document like the draft constitution. Past experience shows that the evolution of the European project has always depended greatly on the ability of the core institutions – and this means principally the Commission, the permanent bureaucracy, the European Court, and a wide range of interests throughout the Union associated with its continuing development – to expand and deepen their activities on the basis of whatever remit the governing treaties confer on them. And this remit has usually been open-ended and flexible: in this regard the draft constitution is no exception. Thus it is reasonable to conclude that the impact of the draft con-


stitution – whenever finally accepted and ratified – will be determined mainly by the manner in which its guardians in Brussels interpret and apply it. There is, on the other hand, another rather different view of the prospects. The EU depends also for its capacity to act and take decisions on the attitude of its member states. They have shown themselves, and especially in many of the arguments leading up to acceptance of enlargement, to be tenacious defenders of national interests. This makes common policy-making hard, and these problems will increase with enlargement. The draft constitution is to a substantial extent a sewing together of commitments already agreed in anticipation of the arrival of a dozen new members, and it lacks any notable and dominant mission for the future comparable with establishing the Single Market after 1986. This means that the political wear and tear of trying to manage a much larger and more heterogeneous organisation in the future is likely to be particularly heavy. Moreover, on certain large issues affecting European relations with the USA and the rest of the world there are serious internal differences within the Union and this in turn has implications for its position on a range of difficult issues arising in what is now a globalised economy. So uncertain is the outlook in relation to all these matters that it is at least possible that, far from turning out to be the blueprint for a new wave of integration, the draft constitution may ultimately compel a reappraisal of the pace and range of the whole project of ‘ever closer union’.19 The impact of a new European ‘constitution’ on the British constitution and the institutions and practices it sustains will, therefore, depend both on the formal status and content of such an instrument, its specific content and, most important of all, on the ways in which it is then put into operation. If it turns out that only highly qualified extensions of EU central policy responsibility in specific areas such as a common European approach to the handling of asylum seekers occur, this would leave the constitutional position in Britain (and elsewhere) much the same as it is at present: a continuing erosion of legislative sovereignty to the disadvantage of domestic parliamentary institutions, limitation of the interpretative discretion of the courts through their subjection to EU law, extension of executive discretion to make both law and policy at European level, but at the same time some narrowing of the fields in which the executive acting as the British government can exercise a genuine political discretion to act as it sees fit in the national interest. These effects of membership of the European Union have already been absorbed in varying degrees, and it is probable that this process of continuing and often ambiguous adaptation could continue. At the other end of this scale of possible outcomes lies the application of a new European constitution with extensive and expanding binding effect. It could mean, for example, that the charter of fundamental rights included in the Convention’s report would at the very least take precedence in the sphere of European law over any existing domestic human rights provisions, that


some of the objectives laid down in the constitution might be taken as binding member states to policies not now within the remit of the EU, and that the powers of European institutions such as the Parliament and the Commission might be strengthened at the expense of national governments and legislatures. And in principle too it might seek to bind member states to pursue a common foreign policy and thus to deny them the right to take independent action in respect of whatever matters were held to be within the ambit of that common foreign policy In these and many other ways the draft constitution could by extension, implication and ingenious construction in the future eventually restrict still further the scope for genuine selfgovernment and the notion of accountability in government that still exists. On the one side there would be a developing European system of government claiming to derive legitimacy from its new codified constitution. On the other the viability of the customary constitution in Britain would be exposed to yet further serious challenges and erosion.

Playing down the consequences of ‘ever closer union’ As far back as Harold Macmillan in 1960–61 politicians keen to encourage the European project have often been all too willing to pretend to themselves and the electorate that the onward march of integration in the EU is wholly without serious political effects – it is no more than a benign process promising ever greater economic prosperity – and that in any event Britain will play a leading role in the EU and always be able to protect its ‘vital interests’. Neither of these propositions is true: the slow and hesitant progress over many years towards an ‘ever closer union’ has resulted in the acquisition by the EU of at least some of the qualities of ‘statehood’, Staatlichkeit as it is often called in German, and this has inescapably had consequences for the autonomy and character of the internal constitutional order not just in Britain but in other member states too. There is one feature of evolving constitutional doctrine within the EU which might be advanced in mitigation of any critical assessment of the tendency of the Union to extend the range of functional sectors within the competence of its central institutions. This is the principle of subsidiarity, nowadays often cited as something like a guarantee that the EU will remain a thoroughly decentralised association of quasi-sovereign states. The principle is taken to mean that powers shall only be exercised at the Community or Union level if it is clear that the objectives to be pursued cannot be more effectively achieved by action taken at the national level. This principle was proclaimed in the Maastricht Treaty and reaffirmed in the Amsterdam Treaty of 1997. It is again underlined in the draft constitution for the EU.20 Amongst the criteria held to justify Community action are the prospect that without it the treaties might be contravened, that Community action would bring obvious benefits in comparison with action by individual member


states, and that central initiatives in Brussels are needed to achieve harmonisation and common standards. At first sight subsidiarity looks rather like a principle according to which powers and functions are to be divided in a federal system between two levels of government. Yet it does not really have this character. Without something like an explicit division of powers and their allocation to different institutional levels, subsidiarity fails to take shape as a genuine constitutional principle at all. Instead it stands as a general statement of preference for allowing powers in the EU to be exercised as far as is practicable at the second-tier level of the nation states or, if practicable, at a lower level still.21 The term ‘subsidiarity’ itself throws no light on who determines what is subsidiary and what is not, and for that reason alone it is doubtful whether it can provide a firm basis for the distribution of powers within a federal state. Nor does the doctrine admit anything like the American constitutional principle that all powers not formally conferred on Congress and the President rest with the states as the original depositories of popular sovereignty. Finally, it should be noted that so far subsidiarity has not been sufficiently well defined as a legal principle to permit juridical concepts defining its scope to take shape in legal proceedings, though the draft constitution does now rather hesitantly pave the way for such a development by conferring jurisdiction on the Court of Justice in cases involving alleged breaches of the subsidiarity principle.22 Within a political structure aspiring to evolve in a federal direction subsidiarity may have merit as an overarching declaratory principle, but it has to be given substantive content through an actual allocation of powers and independent and reliable means of interpreting such conditions in case law. The view advanced here of the inescapable effects of EU membership on various features of constitutional autonomy finds little reflection in popular attitudes towards the development of the EU. Whilst membership has never been really popular in Britain and there remain many signs of hostility towards further integration and in particular to membership of the eurozone, no serious challenge to continued membership of the Union has so far been made.23 Two reasons for this acquiescence of public opinion may be advanced. One is that the loss of legal and legislative autonomy still does not impinge visibly and directly on most people most of the time. Certainly, there are many in industry and commerce who have to face up to the burdens of European regulation, though much of this stems from domestic law-makers simply fulfilling EU obligations, and often in a pedantically meticulous way. But these are rather specialised addressees of EU requirements and rarely seek or gain widespread popular sympathy. It would doubtless be different if the EU had tax-raising powers and were able to make use of these. Another reason is that the impact of EU legal norms via decisions on cases arising in the courts and perhaps proceeding all the way to the European Court of Justice is both diffused and highly selective. Though there is now a large body of European case law this is not some-


thing that is generally of wide concern and of which many people are aware. So the tide of European law can seep slowly and almost imperceptibly into the fabric of British law as, indeed, Lord Denning forecast it would do long ago. And in addition it should not be forgotten that the appeal of benefits promised is never to be underestimated: European integration began as an economic project, Britain finally joined the Communities under that banner, and for most of the electorate it retains that character and promise. Membership of the European Union has presented peculiar and enduring difficulties for the British state. The EU is in essentials a political association constructed on the basis of continental European public law methods and procedures for the purpose of reaping the benefits of an enlarged single competitive market. In terms of political legitimacy it has always been a ‘topdown’ construction, relying on impulses from politicians, bureaucrats and technocrats in individual states or in the Commission in Brussels to take it forward from one stage of integration to the next. The democratic and representative elements have always been weak, and despite some efforts in recent years to give to the European Parliament the appearance of greater authority, this condition of ‘democratic deficit’ is likely to persist. This stems from the fact that the basic building blocks of a common language and a shared common historical heritage are absent in Europe. It follows that impulses from below to develop a European political consciousness remain faint and often enough confused. The European Union continues, therefore, to be a curious and probably unique mixture of what are in formal terms independent nation states and supra-national institutions to which they have entrusted wide areas of policy-making and legislation. As a result of this the Union continues to be in something like perpetual motion, a state of affairs encouraged by the teleological bias of European political and constitutional thinking which insists on the need for unremitting effort to move forward to achieve new goals. Yet the final political goal remains both elusive and obscure. Is it to be a European state under a federal constitution or is it to be something much nearer to the rather messy ‘enterprise association’ dedicated chiefly to the pursuit of economic benefits but with miscellaneous political ambitions attached that exists at the present time?24 This question has to remain unanswered at the present time and for this reason alone no definitive conclusions can yet be drawn about the continuing constitutional effects of membership of the EU. At this stage perhaps all that can be said with some assurance is that overall the effect of the methods and procedures under which the EU operates has been and will continue to be something akin to a hollowing-out of the domestic institutions of self-government. In their place the British government and Parliament must adapt themselves to a species of bureaucratic government in which politicians and appointed officials of many different nationalities take part. Whilst many domestic officeholders in government and in Parliament may appear still to be per-


forming familiar functions, in reality they do so only under conditions determined externally through the bargaining processes of the EU. They become subject to a species of bureaucratic government in which politicians and appointed officials mingle and exchange roles in the exercise of the powers conferred on the institutions of the Union. It may be held nonetheless that British ‘sovereignty’ somehow or other survives when exercised in common with other states which have accepted the same sacrifice of independent decision-making authority. But if this is the state of affairs that already exists and is to be reinforced in the future, then the time must have come to revise a large part of our constitutional language in a manner that would bring it back into much closer contact with reality.

Notes 1. The UK was represented at the negotiations in Messina on the proposed Common Market only by an official observer. See M. Camps, Britain and the European Community 1955–63, OUP 1964. 2. The title ‘European Union’ replaced several Community designations contained in the founding treaties, though for some purposes the term ‘European Community’ remains legally correct until the current treaties have been amended or replaced. 3. The discrepancy between the 10 new members scheduled for 2004 and the figure of 12 referred to in the text is explained by the acceptance in the treaty of Nice of Romania and Bulgaria as potential members, but deemed not yet ready for admission. 4. The European Central Bank became operational in January 1999 and is provided for in the treaty on European Union (Maastricht 1992). It is flanked by a larger European System of Central Banks (ESCB) and for some purposes by the European Council and Commission. There is also the Stability and Growth Pact 1997 intended to enable the European Commission to insist on budgetary discipline in member states of the eurozone. By late 2003 in the face of French and German deficits above the 3 per cent level prescribed the Pact began to look unworkable. 5. The doctrine of the primacy of Community law was first affirmed as a necessary condition of the Community’s legal order in the case 6/64 Costa v ENEL [1964] ECR 585. 6. See Gisela Stuart, The Making of Europe’s Constitution, Fabian Society December 2003, p. 13. However, no explanation of the assumptions underlying this estimate of the extent of the Brussels impact on domestic legislation is given. 7. It is difficult to state exactly what matters are still subject to the unanimity rule in the Council of Ministers. The White Paper, A Constitutional Treaty for the European Union, Cm 5934, September 2003, refers somewhat vaguely to treaty changes and ‘other areas of vital national interest such as tax, social security, defence, key areas of criminal procedural law . . .’ (p. 32, para. 66). It also states that unanimity must remain ‘the general rule’ in relation to the common foreign and security policy. Qualified majority voting was in principle much extended to facilitate creation of the single market after 1986. 8. Serious efforts have been made by the Danish Parliament to retain control over EU legislative proposals.

282 Reshaping the British Constitution 9. The best that the European Scrutiny Committee of the House of Commons could achieve was a resolution in November 1998 pledging the government to do its best to avoid approval of EU proposals before completion of the scrutiny process. See R. Blackburn and A. Kennon, Griffith & Ryle on Parliament, Functions, Practice and Procedure, 2nd edn Sweet & Maxwell 2003, pp. 606–9. 10. Cited in C. Turpin, British Government and the Constitution, 4th edn, Sweet & Maxwell 1999, p. 356. The case was Stoke on Trent City Council v B & Q plc [1991] Ch 48, 56. 11. Ibid., p. 346. The case was Macarthys Ltd v Smith (1979), All ER 325 CA. 12. The first case was R v Secretary of State for Transport ex p. Factortame Ltd [1989] 2 CML R 353. The Court of Appeal’s view was broadly upheld by the House of Lords in 1990, but subject to seeking an opinion from the European Court of Justice. That court decided in the opposite sense and this then brought about legislative amendment to comply with Community legal requirements. For more details of the succession of Factortame cases, see Turpin, op. cit., pp. 353–5. 13. Turpin, op. cit., p. 353. 14. The judgement in the ‘Metric martyrs’ case turned on whether the 1972 European Communities Act could be invoked to amend the subsequent 1985 Weights and Measures Act. See ‘Analysis’ in Public Law, Autumn 2002, pp. 399–406, where Lord Justice Laws’s effort to provide a reason in constitutional law for upholding the action of the local authority in enforcing European law is criticised. According to Laws LJ ‘constitutional statutes’ are not subject to the doctrine of implied repeal and can be changed only by express amendment. 15. There are differences of opinion within the EU about how far the association might ultimately extend. This raises the question of where the limits of Europe are in geographical, historical, political and cultural terms. The application for membership from Turkey presents these issues in an acute way. In principle the EU is committed to considering this application favourably, but progress on it has so far been very slow. 16. Cm 5897, August 2003. Slightly later the government brought out A Constitutional Treaty for the European Union, Cm 5934, in which it set out what was claimed to be its approach to the negotiations on the proposed constitution. 17. Gisela Stuart, op. cit., note 6, offers in the pamphlet referred to an incisive and disillusioned account of how the Convention was driven to its conclusions by the four leading members of its Presidium. 18. Negotiations to overcome deadlock on the draft constitution, in particular on the rules for weighted voting in the Council of Ministers, were received after the Spanish electors voted for a change of government in the wake of terrorist bombings in Madrid on 11 March 2004. 19. The famous phrase ‘ever closer union’ contained in the preamble to the 1957 Treaty of Rome has disappeared from the parallel introductory passage and statement of objectives (Part I, Article 3). But it has not gone away entirely and reappears in the preamble to the Charter of Fundamental Rights where the peoples of Europe are described as ‘creating an ever closer union among them’. Cm 5934, op. cit., p. 33. 20. Draft Constitutional Treaty, Article 9 (1) and (3) (August 2003 version) set out the principle of subsidiarity. Two protocols appended to the draft also provide for national parliaments to be informed and given the opportunity to present objections to any proposal that is held likely to be in breach of the principle of subsidiarity. The Court of Justice is also explicitly given jurisdiction to hear actions alleging infringements of subsidiarity.

The European Union 283 21. See Johnson, Can Self-Government Survive?, pp. 34–5. Chapter 2, note 12. 22. Protocol on the Application of the Principles of Subsidiarity and Proportionality, Cm 5934, op. cit., pp. 152–3. 23. The question put to the voters in the 1975 referendum was whether they wished to approve the results of the Wilson government’s ‘re-negotiation’ of the terms of Britain’s entry into the European Communities and thus to stay in. 24. The notion of an ‘enterprise association’ which has common objectives as contrasted with the purely procedural ‘civil condition’ where individuals pursue their own ends within the terms defining such a condition is deployed by Michael Oakeshott in On Human Conduct, OUP 1975, particularly Parts II and III.

13 Beyond Custom and Tradition: the Politics of ‘What Works’

The nature of the process of constitutional reform Outcomes are not infrequently shaped by the way in which they are sought and this is as true of the current wave of constitutional reform in Britain as of the pursuit of political objectives in many other spheres. The reform programme examined here was wholly determined by the government that came to power in 1997 and has then been carried forward and to a substantial extent implemented by its efforts and commitment. Owing to the weakness of the official Opposition little was contributed from that quarter, whilst the greatly strengthened Liberal Democrat Party, though highly sympathetic to constitutional reform, also failed to exert significant influence despite the initial inclination of the Prime Minister to allow the party’s leaders to have a consultative voice and to raise their hopes of progress towards some form of proportional electoral system for parliamentary elections. Yet despite the efforts to present the reforms as elements in a coherent reform programme, what was designed and enacted in the years after 1997 had far more the character of a palette of measures pragmatically put together and presented to Parliament and country item by item. Insofar as there was an overall ideological justification for reform this was offered in terms of ‘modernisation’ and ‘democratisation’. But these terms are empty until given content, and no serious attempt has been made to define what they mean within the context of changes in the British constitution. In particular little was said about the values in respect of citizenship and political relationships that were to be advanced through the reform programme, and still less was there any willingness on the part of those in charge of the reforms to provide a coherent account of the kind of state or pattern of government that might be expected to have taken shape in Britain at the conclusion of the reform effort. The record of reform so far carried out justifies the conclusion that what has been done remains well within what is widely believed to be the British tradition of pragmatic ad hoc adaptation. The range of commitments was 284

Beyond Custom and Tradition 285

wide, and some of them, most notably devolution, were grounded in what were perceived by many to be genuine political demands in certain parts of the country. But much else finds its place within two streams of opinion that have been influential in Britain in recent years. One of these expresses a wide-ranging critique of British institutions, presenting them for the most part as tired, out-moded and often ineffective. This might be described as the institutionalist critique, though to say this is not to imply that this approach has always been grounded in careful analysis of the conditions for institutional stability in the modern world or that those expressing it have generated all that many viable reform proposals. What is more, most exponents of the institutionalist critique tend to remain attached to many features of the existing order and so have shied away from radical innovations such as an elected second chamber, directly elected executive mayors or provision for popular initiatives. The other stream of opinion can be designated that of managerialist improvement. This has its roots in the later 1960s and was strongly expressed during the Thatcher era, at first principally with reference to the public and private sectors of the economy and then to administrative and organisational performance within the sphere of government. All this was thought to have little bearing on the constitution and practices sustained by it. ‘New Labour’ has also been strongly attracted to a managerialist approach to reform, especially in relation to the public services and their ‘delivery’. This was recommended for application both to services for which the government has some direct responsibility and to many others for which it controls funding and the setting of standards, though having no operational responsibility at all for actual provision. In the rhetoric used to present public service reform schemes for most of the time since 1997 emphasis has been placed both on improving and expanding the services that people actually receive – better schools or shorter waiting times for hipreplacement operations – and on reforming the organisations, personnel and operational methods to be found in the public sector. To change the conditions under which many public services are financed and provided inevitably runs into many obstacles, especially in terms of persuading staff that existing practices and prevailing vested interests need to be changed. The performance-oriented view of reform in the public services did, however, from the start rub off on to the arguments advanced for constitutional reform. Much of that too has been presented as somehow or other designed to raise the performance of British institutions, improve the delivery of services, and so contribute to the overall project of making the population better off. Yet the managerialist view of constitutional reform rests on a serious confusion, a category mistake: at any rate within the tradition of liberal constitutionalism constitutional norms, rules and conventions are intended to provide conditions to be observed in the governance of the country and in the exercise of the rights of citizenship. They have little or nothing to say directly about what specific policy objectives should


be pursued either by politicians or citizens or in what quantities and at what speed. A mood of institutional discontent (an almost natural state of affairs in academic and media circles) and managerialist revivalism thus came together with the instinctive pragmatism of British political and administrative elites to produce a mainly pragmatic and piecemeal adaptation of the constitution. Inevitably this ruled out anything like a coherent exercise in ‘constitution-making’, something that after all may only be conceivable either in the face of political collapse or in stable societies already equipped with a codified constitution and thus perhaps familiar with the idea of comprehensive constitutional revision.1 Against the background of this eclectic approach to constitutional reform followed since 1997 it has remained possible for the reformers to claim when political expediency appeared to demand it that after all the customary constitution is still in place, the reforms fit into the supposedly seamless web of institutional improvement in modern Britain. In other words, continuity appears to have been preserved.

From precedent and history to performance and the future A customary constitution like the British necessarily rests on the appeal to history and past precedents: these are, it might be argued, the principal source of its continuing legitimation. It follows that the acknowledgment of convention must also be an important factor sustaining the constitution. The aspirational underpinnings of the current bout of constitutional change appear, however, to be of a different kind. As already suggested, they can be traced back to the impact of managerialist thinking and of a renewed faith in markets propagated in the 1980s. Such thinking encouraged a belief that organisational and management skills could be successfully applied to the tasks of wealth creation and the improvement of public services. What this amounted to was the belief that the state could be remodelled (and perhaps slimmed down in the process) in order to meet the needs of a dynamic, market-oriented, ever-changing society. In this society the demands of the individual were initially exalted and the importance of social ties played down: in Mrs Thatcher’s famous and perhaps misunderstood words, ‘there is no such thing as society’.2 But it also proved possible to adapt this set of beliefs about individual motives and the benefits of relying on the market to a more solidaristic view of society, one in which all have a stake and nobody is excluded. This in turn points at least to the possibility of ambitious programmes of social and political reform to promote this vision of the inclusive society. A few signs of this shift of moral emphasis occurred even before 1997,3 but after that date became unmistakeable. In addition there was growing awareness both of economic globalisation and its effects, and of the extraordinarily far-reaching impact of information technology


on the economy, on social organisation generally and on the lives and habits of individuals. The notion of ‘modernisation’ fitted perfectly into such a context: a forward-looking, dynamic society could be expected to give its support to a programme of modernising constitutional reforms, designed pragmatically to improve performance in every sector of life. This approach to constitutional reform stood in stark contrast to the British heritage of thinking about the nature of the country’s constitution. It rejected the appeal to history and decried the relevance of past experience.4 It also treated the appeal to precedent as little more than an invitation to remain shackled to obsolete practices and values. The pursuit of a modernising reform agenda inevitably meant that many practices enshrined in the ‘old order’ of the customary constitution had to be eroded or abandoned. Such developments have been prominent in the executive arm of government (a much more malleable organisation of the cabinet under prime-ministerial direction, replacement of hierarchical structures by informal and flexible organisation in the civil service) and in the adaptation of the working arrangements of the House of Commons (more convenient working hours, fewer votes, more efficient programming of legislation and consequential curtailment of its detailed examination, less time spent in formal debate). The trend is less marked in the House of Lords, even though the greater part of the hereditary peerage has been removed from membership, and it has been even more limited in relation to the judiciary, though the judges are now open to more public comment and even criticism than was the case only a few years ago. The crumbling of respect for tradition, precedent and convention reflects changes in social behaviour as much as particular theories about how society can best be organised to cope with the demands expressed within it. But though the glue provided by the customary constitution binding people and institutions together has been seriously eroded, a process accelerated by the programme of constitutional reform itself, there is little evidence to show that reform has yet begun to provide a new glue to replace what has been lost. Indeed, politicians appear to be held in less esteem than before the reforms, there is no sign of substantial increases in voting at elections, and the level of participation in public life (including political parties) shows no steady upward movement. Even the conferment of new responsibilities for the protection of basic human rights on to the judges does not seem to have stirred more than a few ripples here and there. These indicators, tenuous and changeable though they may be, suggest that the reshaping of the constitution has in fact intensified a condition already well established, namely, one of constitutional anomie. The appeal to precedent and conventions intended to govern conduct is at a discount in virtually all sectors of society, including the sphere of politics. Within the parameters now set by the customary constitution it is not surprising that what has emerged is yet another chapter of pragmatic institutional rejigging, achieved this time in an envi-


ronment where outside certain academic and professional legal circles the standard of constitutional argument is low and participants all too easily fall into general political talk. In the absence of a serious normative commitment defining the values animating the reform programme the doctrinal core of what remains of the customary constitution has become little more than the recital of fictions and the reiteration of current political prejudices and aspirations.

How is the form of government to be designated? The broadest of all designations of the form of government familiar in most European states and in some parts of the Commonwealth is ‘democracy’. But this term is now used so widely and in such an undiscriminating manner that it has ceased to indicate any specific form of government or pattern of institutions. It is necessary to move down a step from the highest level of generality and to consider what designations are available which point to particular institutional arrangements that might be held to characterise a particular form of government. In relation to Britain and its constitution the main candidates are constitutional monarchy and parliamentary government, representative democracy and popular democracy. The last term is perhaps not widely used, but the reason for putting it forward lies in the desirability of having a term falling short of ‘direct democracy’, but combining elements of representation and popular participation through referendum. What has to be done now is to consider how far any or all of these characterisations fit the British constitution in the wake of recent reforms. Constitutional monarchy has a somewhat archaic ring to it, despite the fact that the United Kingdom undoubtedly remains in formal terms a constitutional monarchy. Under the constitution as it has evolved throughout the reign of the present Queen the role of the monarch has receded even further from any overt political intervention. It has become purely formal and symbolic, a means of representing at home and abroad the dignity and continuity of the British state and its major institutions, and of upholding certain moral and social ideals that still command some admiration. Constitutional monarchy is in many respects a Burkean concept, suggesting both limited government and the crucial importance of historical continuity and tradition as means of linking the generations in society. It is the social rather than political evolution of recent years that has exposed constitutional monarchy to threats not dissimilar from those discerned by Walter Bagehot nearly one hundred and fifty years ago, namely, the loss of the mystery or mystique associated with the institution. Despite a variety of suggestions for ‘modernisation’ emanating from reforming sources in recent years nothing has been done explicitly to change the constitutional parameters within which the Queen discharges her functions. But the institution, and in particular the members of the royal family who participate in the representa-


tional tasks associated with monarchy, is exposed to such a degree of intrusive publicity that it has become far more difficult than it used to be to sustain the position of the monarchy as the ground of real and effective authority. Nearly everything about monarchy is now personalised (and often trivialised in the process), so that it has become increasingly difficult for most people to grasp the fact that in constitutional terms the monarch is not a person occasionally seen wearing a crown, but simply an institution and officeholder. Constitutional monarchy draws our attention chiefly towards the executive powers in the system of government and the institutions through which they are exercised. Public powers in the sphere of the central government stem either from the royal prerogative or are laid down in statutes, and whatever their source they are chiefly exercised by ministers. Moreover, where statutes lay down powers to be exercised by public bodies which are in principle autonomous and quite separate from the structures of the central government, it is nearly always a minister who is then entitled to exercise supervision and, often enough, control over them. From this situation two narrower institutional designations can be derived. One is that of cabinet government, the other that of prime-ministerial government. Cabinet government survives to the extent that a committee of ministers remains the ultimate repository of executive authority. Most statutory powers are vested in individual ministers and thus the members of the cabinet for the most part appear there as the heads of departments and thus to some extent at least as the spokesmen of departmental interests. But the conditions under which executive activities take place in the contemporary network of public organisations have rendered collective consideration of government policies a rarity. Thus cabinet government as an institutional description no longer fits the role of ministers in the collective supervision of what the executive does. It suggests at most a functional distribution of powers and responsibilities, and indicates a set of coveted positions to which the professional politician can aspire. But as a constitutional category it carries a flavour of the archaic in the face of the well-known ability of its chairman to lead and direct the affairs of the government as a whole more or less in the manner he or she chooses. Nevertheless, while prime-ministerial government is certainly not an archaic designation, it too is equally unsatisfactory as a serious contribution to specifying what kind of executive government now exists. The problem can be best recognised by a brief comparison with the position of the American President. The prime minister has often in modern times been compared with the president, and sometimes it has even been suggested that the former enjoys far wider discretion than the latter, chiefly owing to his command of a parliamentary majority. Yet if a British prime minister may in some circumstances have greater control over policy decisions and his colleagues in the executive than many American presidents enjoy, it has to be remembered


that a prime minister owes his strong position very largely to a continuing exercise of political will and the presence of favourable partisan political configurations. In contrast the American president enjoys much greater institutional authority, and over a long period as the functions of the federal government have increased so presidential authority has been widened and consolidated. This does not mean that Congress has lost its ability to frustrate presidential aspirations nor that partisan interests are not crucial to what any particular president can achieve. But alongside these contingent political factors there is the authority of the office, grounded in the powers conferred on it by the constitution and popular election, and enriched by the political experience of succeeding generations. In comparison the prime minister lacks a comparable legitimation in constitutional terms for the very extensive powers he is now able to exercise. To describe him as the Queen’s ‘first minister’ or as ‘first among equals’ is to take refuge in further archaicisms. He (or she) has become a political leader, endorsed as a rule by a majority of those who vote in a general election and expected then to direct the affairs of the government.5 To that extent prime-ministerial government is endorsed by the voters. Whilst this state of affairs is fully accepted in day-to-day political commentary, it receives hardly any recognition in constitutional law or language. Nor is it reflected in any noticeable changes in the formal powers conferred on the prime minister. In relation to this crucial element in the governing institutions of Britain the constitution remains silent and unchanged. It leaves the prime minister always in search of popular approval, but does little to strengthen the claims to authority made by holders of the office Parliamentary government is a broader category of constitutional definition and is still regularly advanced as appropriate to the characterisation of the form of British government. Indeed, the recent wave of reforms has to some extent been justified as serving the cause of reinvigorating parliamentary government. Yet it is plain that parliamentary government as understood under the customary constitution is now a highly attenuated phenomenon. That model postulated not only a sovereign Parliament, theoretically at least omnicompetent as the source of legislation, but also something like the continuous and comprehensive supervision of executive actions and policies by Parliament. It assumed that in essentials at least the country was governed through Parliament (and mainly the House of Commons) and by ministers sitting in and accountable to Parliament. Reasons have already been presented at an earlier stage in this study for concluding that the claim to complete sovereignty is now purely formal. Even more evident in day-to-day practice is the fact that Parliament no longer has the capacity to exercise anything like a continuous supervision of what the executive has done or proposes shall be done in the future. It is true that a wide range of parliamentary proceedings and practices has been developed during the past twenty-five years or so which appear to back up the claim that Parliament


is still calling the government to account and thus putting into effect what is regularly hailed as the cardinal principle in modern British parliamentary government. But many of these performances amount now to little more than the enactment of rituals rather than the demonstration of an effective capacity to exercise the authority claimed by Parliament. It can, of course, be claimed that this is all part of a continuing process of adaptation by Parliament to the conditions under which Britain now has to be governed, and that so long as the acknowledgement of ultimate parliamentary authority survives – and on the whole it does – it still remains plausible to describe the system as one of parliamentary government. But this is not an entirely satisfactory response to the suggestion that much that goes on in Parliament is ritual, devoid of substantial effects. There are many institutions which retain and cherish some elements of ritual performance as a means of sustaining a sense of identity and commitment in their members and supporters. But a problem arises when it becomes apparent that much of the activity carried on in and through a complex institutional structure like Parliament has few discernible and measurable effects on what is actually done by and on behalf of the government and the manifold services for which it accepts responsibility. And this is the situation in respect of much debate on the floor of both chambers, the multifarious investigatory activities of the majority of select committees, the legislative procedures of both the Commons and the Lords when set against their almost negligible real effects on the content of the statute book, morning debates amongst MPs sitting in Westminster Hall, and the greater part of parliamentary questions under current procedures and habits. In all these matters and more widely still the gap between the effective capacity to achieve at least some identifiable results and the claim to all-embracing authority advanced on behalf of Parliament justifies the conclusion that the category ‘parliamentary government’ can nowadays be used only in a highly qualified way. The claims of party commitment and popular appeal have become dominant factors in Parliament, and especially in the Commons. What is crucial here is the interdependence of party commitment and popular appeal: parties offer programmes to the electorate as well as the prospect of a career in politics to their candidates, but, in order to succeed and gain power, they need the kind of leadership that is capable of reducing a programme to a few basic promises and then of winning the support of a majority of voters. It is on this essentially populist foundation that parliamentary government in Britain has assumed the character of ‘mandated majority government’ or, as some writers prefer to call it, ‘majoritarian democracy’. What is taken as majority consent to a programme and a leader then supports practices in office that bear little resemblance to parliamentary government as it was understood until quite recently. These remarks have so far referred mainly to parliamentary government as manifest in the proceedings of Parliament. From the perspective of White-


hall and Downing Street parliamentary government survives in a limited way chiefly as a collection of legitimating procedures, some of which have to be observed, and others which it is expedient to continue to acknowledge. But how these procedures are observed and to what extent lies very much within the discretion of the political officeholders (and in some circumstance officials too) who are subject to them. Moreover, some of these procedures, nominally designed to secure accountability, are regarded too as useful political opportunities to be exploited by ministers and others in political life. Prime Minister’s Question time is a notable example of the latter, chiefly because it tends to attract television coverage, though it is worth noting that in principle at least it also offers to the Leader of the Opposition a similar chance to shine on the political stage. The most important element of parliamentary government still surviving is, however, to be found in the fact that the political group from which the executive still proceeds is overwhelmingly drawn from the elected House of Parliament. Service in the House of Commons is still a prerequisite of a successful political career though, as the average age of entry into politics has fallen, so there has been a tendency for the length of parliamentary experience of those who achieve cabinet rank to shorten. Nonetheless the political executive still emerges through the parliamentary filter and from the highly competitive context of British electoral politics and intra-party activity. As a result the British governing elite at national level still consists mainly of parliamentary entrepreneurs rather than straightforward intra-party careerists as is so often the case in continental Europe. To this extent the ideals of parliamentary government combine with the dynamics of the first past-the-post electoral system to maintain a degree of competition in political life that still at regular intervals connects the people with their rulers and in so doing contributes to the preservation of the most important of all democratic possibilities, namely, the ability of an electorate to get rid of a government. And it is only through voting for Members of Parliament that the electorate has the opportunity to bring this about. Two further designations for the system of government merit some brief comments. These are representative democracy and popular democracy. In relation to the meaning of representation and what is involved in being a representative, at least two major shifts of practice and understanding have taken place in the course of the past half century or so and both have been accentuated by some of the recent reforming legislation. The first is a steady erosion of the notion of representation that underpinned both the Burkean view of the duties of a representative and equally much of the classical liberal account of the matter as enunciated by, for example, John Stuart Mill in Representative Government in the middle of the nineteenth century. It was assumed then that to represent involved a capacity to speak and act on behalf of the people represented, and to do so not as a delegate or appointed spokesman but as a representative chosen to exercise judgement in the han-


dling of public affairs on behalf of those he represents. The representative was certainly not a mere delegate nor was it thought to be crucial that representatives should mirror certain arbitrarily selected features of the society’s social structure or distribution of opinions. This understanding of representation flourished in a society in which the electorate was small, part of it at least was well-informed about public affairs, and representatives generally enjoyed financial independence. It all suggested a House of Commons of independently minded Members and loosely structured political parties. As already noted in Chapter 6 echoes of this idea of representation still linger on, finding expression in a variety of parliamentary procedures and conventions. But this theory of representation, so powerfully expressed by Edmund Burke, is for practical purposes all but dead.6 The second big change is to be found in the shift away from an idea of geographical constituencybased representation to one based on parties organised nationally and seeking support in constituencies across the country as a whole, or in a particular national sub-division of it. Nearly all Members of Parliament now carry a party label and subscribe to the disciplinary rules of their party. This is the foundation on which, so many would argue, an enlarged electorate’s ability to choose representatives has been reconciled with the requirement of effective government. Gradual and evolutionary change does not in general allow for sharply defined transitions from one state of affairs to another. Thus, whilst there has undoubtedly been a shift away from an idea of representation emphasising the independence of judgement expected of the representative and towards acceptance of the primacy of party ties in the competition for electoral support, many residues of earlier assumptions and practices survive, as indeed has already been pointed out previously. The procedures of the House of Commons still assume for many purposes a chamber of independent representatives, Members habitually defer to the presumed views of their constituents whilst at the same time affirming their own independence of judgement, and occasionally, as already indicated at an earlier stage, a genuinely independent candidate with no party affiliations even secures election. And in relation to reform of the composition of the House of Lords it has been asserted by many that it is important to retain a large ‘independent’ element, something that is only likely to be achieved through appointment rather than election. But these residues of earlier practices and values function chiefly as myth, supporting an ideal of political representation that has given way to the dominance of parties who claim both to articulate what the voters want and believe and serve as the principal means of sustaining the executive branch of government. What is more the role of parties in the operation of contemporary democracy has been strengthened in recent years, notably through the steady increase in public financial support provided for them both in election campaigns and in their parliamentary work, and through the formal recognition granted to them in the Political Parties,


Elections and Referendums Act 2001. This piece of legislation became necessary in part to take account of the introduction of different voting systems involving the use of lists for elections to the devolved assemblies and to the European Parliament. The election of candidates from party lists requires the registration of parties, and the same goes for many of the conditions in this legislation dealing with the limits on election expenditure prescribed, publication by parties of details of all substantial donations, and the presentation of accounts of expenses incurred by parties and candidates. Following recommendations of the Committee on Standards in Public Life the Act also established a permanent Electoral Commission with a range of oversight functions, including the review of electoral boundaries and the encouragement of voters’ participation in the democratic process. This latter remit reflected the anxieties aroused by the signs of increasing voter apathy as manifested in declining turnout at general elections and the low level of voting at many other elections.7 There is no doubt some irony in the fact that the decline in voter participation coincides both with falling membership numbers in most political parties and the even more visible domination of national elections by the principal contending parties and their leaders. In this context representative democracy means little more than a procedure allowing the voters to express a combined preference for a leader and party, along with whatever amalgam of policies he (or she) is offering. This does not mean that even in this attenuated sense representative democracy is not worth having: it still permits a vote of no-confidence in a party and its leader, and it still enforces some degree of responsiveness to what are taken to be the voters’ feelings and opinions. But as currently practised representative democracy amounts in the first place to a means of legitimating majoritarian government and does little to strengthen democratic procedures within parties or citizen participation in political life. The references just made to falling voter participation and to the device of the referendum provide a bridge to the idea of popular or direct democracy. The arguments against the feasibility and even desirability of popular democracy and extensive direct participation by voters in public decisionmaking have long been familiar and do not need to be rehearsed again here. Yet there are features of the current stage of political and constitutional evolution which point to some sympathy for what may loosely be termed an ‘appeal to the people’. The rhetoric of constitutional reform since 1997 has frequently invoked democratisation and more ‘democracy’ as a major objective of many of the reforms; in the day-to-day operations of government far more regular use has been made of various devices for identifying popular opinions, expectations and reactions to decisions taken than ever before; and there has been at least some recognition in the legislation referred to above of the probability that referendums will sometimes be held and that such a procedure should be subject to a variety of conditions intended to ensure fairness as between the two sides to any referendum campaign. In


fact, however, the advance towards acknowledging the use of referendum as a normal constitutional procedure has been highly qualified and tentative. Whether a referendum is held at all depends on a parliamentary decision to provide for such a vote, and in accordance with traditional doctrine the outcome of a referendum cannot bind Parliament and a fortiori a government. Thus in theory at least a British referendum can have only consultative status, though in practice it is highly unlikely that a government would ignore the outcome of such a popular vote. If, for example, the proposal to join the eurozone and to accept its common currency were submitted to a referendum as promised by the present government, and then rejected, it is virtually inconceivable that the government would nonetheless go ahead with this step. A referendum remains, however, a relatively rare occurrence. Over the past thirty years it has been used just once at national level (in 1975 on staying in the European Communities) and only seven times at provincial or regional level, on devolution issues and the establishment of an elected mayor in Greater London.8 The form of referendum just referred to is essentially discretionary: it depends on a government decision and parliamentary authorisation of that. In two contexts, however, there has recently been a move towards procedures resembling to some extent that of popular initiatives, that is, procedures enabling a specified number of voters to require a popular vote to be held. One example of this is the provision included in the Local Government Act 2000 facilitating a poll on the introduction of directly elected mayors. Whilst the procedure was brought into play in a small number of towns and cities in England, it was not widely used and it seems unlikely to be invoked again in the future, even though it remains on the statute book. The other example is the promise of popular votes on the introduction of elected regional assemblies in England contained in the Regional Assemblies (Preparations) Act 2003. In this instance, however, the factor of government political discretion remains very strong, and indeed the measure can be described as a remarkable exercise in the art of conferring on the minister by statute the widest scope possible for using the facility of ordering a popular consultation to be held in such conditions as are likely to maximise the prospects of securing the outcome desired. Not only is the minister empowered to decide whether ‘the level of interest’ in a region is such as to justify holding a referendum, but he is also given powers both to carry out supporting reviews of local government organisation and to finance various other activities preliminary to the actual holding of a popular vote. The prospect of regional assemblies in England may enjoy little popular support, but the paving legislation clearly illustrates the extensive scope granted to the government to manipulate the use of the referendum procedure in order to increase the prospects of securing the outcomes it prefers. These provisions leave no scope for a popular initiative for or against regional assemblies, though of course interested parties and groups


remain free to lobby for or against the possibility. Indeed, under the Political Parties, Elections and Referendums Act 2001 the Electoral Commission will have the duty of ensuring that in any referendums held on the establishment of regional assemblies the organisations campaigning for and against the proposal receive fair treatment in respect of any public financial support made available.9 It is clear that movement towards any kind of direct voter participation in decision-taking has been and remains hesitant, limited in scope and carefully qualified. Whilst politicians are content to contemplate the use of referendums to a degree not thought constitutionally acceptable thirty or so years ago,10 they remain highly suspicious of any use of the device that threatens their own political discretion and binds them to procedures and outcomes qualifying that. Despite the deference now paid to popular opinions and preferences, to consultation and the participation of communities, the practices of direct democracy have not entered the canon of constitutional renewal to any substantial extent and still less on a principled basis. The hostile response of the Blair Government in 2003 to the call for a referendum on the prospective constitution for the European Union illustrated the continuing attraction of a constitutional stance that leaves the ruling party and government free to act as they see fit in their own political interest. In this unusual case, however, concerted political pressures had by April 2004 apparently persuaded the government, despite the political risks involved, to reverse its opposition to holding a referendum at some stage on whatever constitutional treaty or constitution might emerge from Brussels.11 Neither the continuing process of constitutional adaptation by the setting of precedents and the reappraisal of conventions nor the more explicit structural constitutional reforms enacted since 1998 have simplified the task of deciding what are the most adequate constitutional categories to apply to the terms on which Britain is currently governed. Much of the traditional language is now out of touch with reality or can be applied only at such a high level of generality that it specifies very little in terms of what institutions can do and how they relate to each other. But this is the natural consequence of a predominantly piecemeal approach to constitutional reform and the resolute refusal to embark on stating principles and laying down definitions. Like Humpty Dumpty most British politicians prefer words to mean what they say they mean.

Pluralism, diffusion of powers, checks and balances Whilst there are many grounds for concluding that the Blair Government’s preoccupation with the delivery of services and the achievement of targets has significantly reinforced the well-established tendency on the part of the central authorities to try to control as much as they can from the centre, it is also true that the decentralisation of functions and the diffusion of powers


has been an important element in the programme of reform. It is, therefore, necessary to consider how the kind of decentralisation that has taken place can best be characterised and the extent to which it has operated as a genuine counterweight to the centralising forces also at work. The devolution schemes plainly confer powers on elected bodies in Scotland and Wales and, whenever the institutions re-emerge from suspension, in Northern Ireland. The restoration of institutions of local government to Greater London represents another measure of devolution in England, and perhaps a similar claim might be made for what are so far simply proposals for regional assemblies in England. All these arrangements take a range of responsibilities out of the hands of central government departments and locate them with new representative bodies. But this has been done in a manner which preserves the vital interests of the central executive authorities rather than in any explicitly stated political interest of the Union as a whole. The new devolved institutions have either no revenue-raising powers, or only very limited scope for raising their own funds. Inevitably this arrangement makes them highly dependent on the United Kingdom Exchequer, and may tend to undermine the sense of responsibility both of those in office in the devolved institutions and especially of parties in opposition. Moreover, the scope for using the powers conferred on the devolved bodies to diverge from national policy or standards remains in practice very restricted. There is, however, one aspect of devolution in action not apparent in the founding legislation that reveals most clearly its limitations as a means of diffusing powers in the United Kingdom generally. Devolution has been conferred on the non-English nations in terms that appear to detach them and the services they provide or supervise from the rest of the country, that is, England. Indeed in the southern half of Britain the impression often conveyed by ministers in their public statements is that even though a legislative measure or policy decision applies only to England, somehow or other they are speaking and acting on behalf of the whole country. In other words, as has happened sometimes before, it is all too easy now to mistake England for the whole and to treat the devolved parts of the United Kingdom as peripheral areas of little interest or importance to the 85 per cent of the population living in England. Of course, there are some ministers whose departments do indeed have ‘UnitedKingdom’-wide functions such as Work and Pensions, the Treasury and Defence. But others like Health and Education which command much public attention are confined entirely to England. In short, devolution may be working well as a means of relieving the national government of burdens that it is content to pass on to others, and it is certainly seen by many in the devolved nations as satisfying a demand for their own distinctive representative institutions. But this has been done in a manner that tends to promote a dissociation of the minority nations from the development of national policies formulated chiefly with the needs of England in the fore-


ground of attention. As a result there is no reason to believe that devolution has so far imposed substantial limitations on the underlying forces sustaining the centralisation of policy decisions in Britain. The same can be affirmed with even more confidence in relation to local authorities and, should they one day emerge, regional assemblies in England. Notwithstanding internal organisational changes intended to allow for more coherent executive direction little has been done to strengthen local powers or to reduce the dependence of local authorities on central financial allocations and central distribution of certain revenues. Even more intensively than previous administrations the Blair governments have seen local authorities primarily as their agents charged with providing a range of services expected to meet national standards set by the central authorities. Regional assemblies would be unlikely to change this situation substantially, in part because their powers would be restricted mainly to economic development and strategic planning and they too would have no direct revenue-raising capacity.12 It is also one of the intentions underlying regionalisation in England to simplify the pattern of local authorities in any region accepting a regional assembly by getting rid of the two-tier system where it still exists. The two tiers of district and county councils would be replaced by a single tier of unitary authorities. From the perspective of the centre changes of this kind amount to a simplification of the government’s supervisory role, as well as affording the prospect of using the proposed regional tier as a convenient layer of overall supervision of expenditure and performance at the disposal of the central government. What is more, developments in this direction would facilitate a strengthening of the administrative agents of ministers charged with the pursuit of government objectives and strategies in many areas of domestic policy. What have been presented as measures for the decentralisation and dispersion of political responsibilities suffer from the absence of coherent supporting justifications for them. They have not been firmly tied back to the rights and responsibilities of self-government, no theory justifying diffusion of powers by reference to pluralism has been put forward, and still less has the case for restoring effective checks and balances in relation to the exercise of power by the central government been deployed. Nor has there been much concern with the implications of devolution for the state of the Union as a whole, for example, in relation to equal treatment for all its citizens. There are relatively familiar and persuasive arguments to be derived from past British experience as well as from that of related political systems like the American that could be used to motivate and justify a wider diffusion of public responsibilities and powers than has prevailed in Britain for many years now. But there is little benefit to be had from institutional changes which fail to recognise that genuine measures of devolution, decentralisation or dispersion of powers have to bring rights and responsibilities together. This means that the right to choose a course of action has to be


accompanied by a duty to accept the consequences of this, most obviously by the raising of taxes or the levying of charges if this proves to be necessary. Recent constitutional changes in the sphere of decentralisation reveal little awareness of the need for a normative rationale for them that goes beyond vague promises of the material benefits expected to flow from them. But those carrying through the reforms have been cautious about stirring up too much enthusiasm for self-government below the national level or about allowing too many opportunities to move away from national policies, priorities and standards. They appreciate all too well the threats to their own political discretion and claims to omnicompetence inherent in serious dispersion of powers. For that is a road that might lead to conditions favourable to a revival of effective checks and balances in the constitution. To act as a check an institution of whatever kind needs more than formal powers: it must also have a strong sense of having interests to defend and people to represent. Acceptance of such conditions remains a highly unwelcome prospect to the dominant, self-absorbed British political class and the institutional positions they occupy. This is what explains many of the ambiguities and limitations of their approach to the diffusion of powers within the British political system.13 A parallel effort to create the impression of popular involvement and consultation has taken place at the instigation of central government in the sphere of what is nowadays often called civil society, but more concretely is the world of private associations, organised interests, pressure groups, in short, the sphere of active pluralist organisation in society. The independence and autonomy of this large and varied sector of activity has declined for many reasons, economic, social and moral. It has to be remembered too that the range of regulation and legal obligation has extended greatly, so that many activities which previously could be tackled by voluntary groups have been put out of their reach by the complexity of the conditions to be observed and high costs. For understandable reasons politicians and many others with a stake in public life have become worried about the signs of a decline in the readiness to join and participate in the activities of a very wide range of voluntary bodies – churches and social clubs, charitable organisations and local community groups, political parties and local authorities. There is some irony in the fact that the growing individualisation of so many aspects of social life, equivalent in effect to a retreat into purely private and self-regarding activities, contrasts sharply with the constant appeals to the importance of local communities and cooperation between small groups working at that level in the maintenance (or recovery) of a healthy social fabric. There has, therefore, been for at least a decade now a growing emphasis on the virtues of voluntary social action and on the need to engage people in efforts to improve the social context within which they and their children live. This approach has been seen as particularly important in towns and cities where there are problems of multiple


deprivation and of tensions between communities of different ethnic origins. In principle all this points towards the need for a revived and invigorated pluralism in all sectors of social and economic life, and in qualified ways the constitutional reform programme has at least been presented as a means of helping to provide a framework for such a revival. But once again reservations are in order in relation to many of the efforts made to engage people in constructive social cooperation. There has been a significant increase in centrally established and steered funding agencies, many of them set up to address particular social problems or sectors of society. Even the National Lottery – essentially a private business with a franchise to provide the lottery on behalf of the government – cannot escape from time to time expressions of government interest both in how the Lottery has been run and in the kind of ‘good causes’ to which a large part of its profits are ultimately distributed. Indeed, the National Lottery constitutes an interesting example of how catering to the propensity of individuals to gamble in the hope of winning a fortune also creates conditions in which a new sector of national regulation takes shape and the dependence of supposedly independent local groups on hoped-for national grants and subventions is increased. This is such a widespread phenomenon now that it is possible to discern the emergence of a managed or guided pluralism under which apparently independent social organisations are brought into the ambit of the policy objectives and priorities of the national government. Once again, such developments may bring benefits in some spheres of social life and for particular groups in society, but they are unlikely to encourage the sort of vigorous independent pluralism which was so often seen under the customary constitution as a significant factor in a pattern of checks and balances derived from the structure of society itself and strong enough to impose limits on the exercise of power by ministers and their agents.

The rule of law and the rights of citizens The use of law in the management of social life has become more prominent in the course of the past twenty years or so. The web of binding regulation affecting innumerable activities carried on by both public and private bodies as well as by private individuals has become ever more dense and comprehensive. There has been a great proliferation of public and semipublic agencies engaged in regulation, inspection, the provision of finance in the form of grants, performance assessment, the mounting of social initiatives, the collection of evidence and statistics, the conduct of research. No matter how strong the desire to maintain the benefits of informal social action and to avoid administrative complexity, such developments nearly always entail some reinforcement of the highly regulated context within which most people now live. That in turn strengthens the perception of a legally structured environment and of the prospect that problems and


difficulties may often have to be solved by resorting to legally binding adjudication. The widely perceived growth of what is often described as a ‘compensation culture’ testifies to the greater awareness of risk in society, one of the consequences of which is a substantial expansion in insurance services designed to mitigate the possible effects of risk, for example, in professional life and in the sphere of many public services where protection against legal actions seeking compensation for alleged injury or loss has to be provided. These developments have occurred in the broader context of an ideological shift in moral and political thinking away from a concern with duties and obligations to the affirmation of rights as the defining attributes of a civilised society. What is more, it is not just rights in the sense understood in the customary constitution as specific and concrete rights formulated and defined generally in terms of protections available to individuals against restrictions on their liberty to act, but human rights abstractly expressed and for which universal validity is claimed. This is not the place to explore the various grounds on which the protagonists of universal or fundamental human rights have sought to justify their commitment. It is enough to say that this represents a declaration of moral belief which, if it is taken seriously and its logic pursued rigorously, has profound implications for the customary constitution, for the claims made by and on behalf of Parliament and government in Britain, and indeed for liberal democracies generally and for the nation state’s position in the international order. The most crucial implication of all is that interpretations of human rights – normally that has to be the business of judges – should take precedence over the political discretion that democratic theory has always and necessarily allowed to successive generations. In short, the arrival of a rights-based culture appears to herald a substantial reduction in the role of democratically elected political officeholders. The principal constitutional innovation of the Blair Government in the field of rights has been the enactment of the Human Rights Act 1998, a matter already discussed in Chapter 11. As suggested there, the incorporation of the European Convention of Human Rights into British law was carried out cautiously and with some effort to avoid any overt revision of the doctrine of parliamentary sovereignty. Moreover, since the incorporation of a code of rights into British law was done against the background of at least twenty years of expanding judicial review of the acts of public authorities, it was possible for the judiciary to regard the new code as essentially a means of deepening and enriching their own well-established approach to the control of powers. So, despite the statutory commitment imposed on the judiciary to give priority in their interpretation of statutes to determining whether they can be held to be compatible with the human rights code, a great deal of continuity with preceding methods of interpretation has been maintained. New impulses have been brought into domestic jurisprudence, and they will continue to influence judicial conclusions


in the years to come. But so far the impact of human rights law has been evolutionary rather than revolutionary. In the consideration of the case for bills or charters of rights the emphasis has usually been on the benefits such statements of rights may have for individuals and a large number of social organisations. Less attention has usually been given to whether Britain has – or is likely soon to have – the kind of legal culture appropriate to a rights-based society. Before saying something about this matter, it is worth noting a certain ambiguity in the understanding of rights that may result in disadvantages for society as a whole regardless of the benefit afforded to individuals. The political rhetoric so often associated with human rights usually sees them in traditional and old-fashioned terms as means of protecting individuals against abuses of power. Indeed this is one of their principal purposes. But rights are also claims – or the foundation for claims – of a purely self-regarding kind that individuals and their legal advisers may choose to advance. As a consequence of this inescapable feature of the possibility of appealing to a rights code, there is always some risk that the emphasis on rights will encourage their use as tools of self-interest and thus work against the principle of altruism that underpins notions of duty and responsibility. This is why judicial caution in the evaluation and interpretation of human rights claims may well contribute to the protection of society against the negative effects of its own enthusiasm for conferring a special status on rights. The question whether Britain has a suitable legal culture for the absorption of human rights and their binding interpretation by the courts into the consciousness of society at large is important, but permits of no straightforward answer. Indeed, there is an initial problem about what ‘legal culture’ means to different people. It will be taken by many to refer to the practices and doctrines of lawyers and the courts, more or less equivalent to ‘how the law works here’. But what it is intended to refer to in the present context is the wider perception of the role of law in society and prevailing ideas of justice and equitable treatment for citizens as well as of acceptable limits to the powers exercisable by public authorities. This is much closer to the German concept of Rechtskultur for which there is no adequate English equivalent.14 As already mentioned, legal regulation and the binding judicial resolution of disputes have become more common in recent years. Public bodies of all kinds are more sensitive to the threat of legal challenge and have introduced many new procedures to guard against it. Individuals are more inclined to put forward legal claims or to dispute decisions affecting them on legal grounds. And clearly the legal profession has become far more interested in rights claims than it used to be. Despite the generally high costs of litigation and the restrictions placed on the availability of legal aid,15 the outcome is a more litigious society than formerly. Nevertheless, it remains doubtful whether this indicates the emergence of a rights-oriented legal culture which might herald abandonment of that crucial component


of the customary constitution, the preference for seeking political rather than legally binding redress of grievances. The presence of a strong private legal profession deeply attached to advocacy, and the greater readiness of individuals to pursue their claims and to demand their rights suggest that vigorous use will be made of the possibility of appealing to human rights law. Yet this still falls short of a readiness to use rights regularly as trumps both in private litigation and in the pursuit of claims against public authority. What are the sources of reservation in this connection? They are to be found in the ingrained dislike in British society of the coercive aspect of the enforcement of rights through law and the courts, and a continuing strong preference for resolving conflicting claims through processes of mutual accommodation wherever practicable. And there is a parallel reservation about the too rigorous application of the principle of equality of treatment. The contemporary advocate of a constitution entrenching human rights as its highest values tends to underestimate the significance of these two strands of doubt about the benefits flowing from such commitments. When rights are appealed and their meaning is then defined judicially, such decisions are as a rule final and conclusive, assuming that they have been taken by the highest available court of appeal. In principle they bind all and sundry and, depending on the prevailing constitutional relationships, it may be very difficult to alter them. In such a situation in Britain there would no longer be any point in invoking the powers of Parliament or in seeking to hold ministers accountable for whatever might be the effects of such rulings. In effect most of those features of the customary constitution that in the past were held to demonstrate its superiority as a flexible body of precedent compared with the rigidity of a formal or codified constitution would have been abandoned. Similar considerations apply in the case of equality of treatment. It is a laudable ideal, but in Britain the idea of ‘fairness’, a more loosely textured and informal concept, has usually earned more sympathy, extending even to its use in legal judgements. In contrast a large part of the population has always revealed some antipathy towards pushing the principle of equal treatment too far, preferring the idea of treating each case on its merits, even though the price of that may be a bit more inequality In the sphere of private associations of all kinds there has similarly been tolerance of difference and diversity, and a dislike of state interventions to impose rules or to establish uniformity. The fact that the quality and quantity of public services vary greatly in different parts of the country is accepted as more or less inevitable, and in the recent devolution settlements numerous examples of actual or potential inequality of treatment as between the nations with devolved government on the one hand and England on the other have so far been viewed with equanimity. But here too there is at work an insight into what can easily become the coercive effects of an undiscriminating demand for equal treatment. The zealous enforcement of rights and the determined pursuit of


equal treatment can lead to situations in which, to echo the defenders of negative liberty, people are forced to be free for their own good.16 The rejection of an outcome of the kind just alluded to remains deeply embedded in common law thinking and thus in many of the institutional practices and relationships still assumed by many to characterise the traditional customary constitution in Britain. Amongst politicians there is in general less sensitivity than there used to be to what could turn out to be in the longer term the logic of a binding code of human rights. Meanwhile, there is some hope that so long as the main burden of the interpretation of rights falls on British judges shaped chiefly by their experience in the application of domestic law, the treatment of rights will remain cautious and sensitive to the great variety of competing claims and arguments that almost always arise in cases where a rights entitlement is in dispute. The judiciary’s role under the constitution has been widened and in some degree strengthened. But most judges still prefer to be lions under the throne rather than the moral preceptors of the nation.

The erosion of self-government A society can be said to be self-governing when it has control over the kind of institutions it wishes to maintain for the purposes of self-government and is able to take independently such decisions as are deemed necessary in the interests of its citizens. Self-government in this sense is compatible with acceptance of a wide range of treaty obligations and is not affected by the obvious fact that virtually all countries are exposed to a variety of constraints stemming from external circumstances. But it is very doubtful whether ‘shared sovereignty’ is compatible with self-government, since this plainly means that the right to reach decisions on certain matters has been surrendered in favour of arrangements requiring that such decisions will only be made in association with at least one other state. In other words a new decision rule has been substituted for the old one allowing a state to reach its decisions independently. Self-government has both internal and external aspects. The former refers to the extent to which the members of the state are able to become political participants and engage in public life. This aspect of self-government points to the important fact that at any rate in the contemporary world a state claiming extensive independence but denying any effective rights of participation to its citizens would hardly be regarded as a good example of what self-government means. The external aspect of self-government refers to the extent to which a state may have willingly abrogated some of its independent decision-taking powers to external institutions. If it has done this on a significant scale then it will have limited its right of self-government. In relation to both these aspects of self-government the balance sheet of the past decade or so is negative. Some reasons have already been suggested


for the reluctance to diffuse powers effectively and to provide opportunities for active citizenship and the acceptance of responsibility by individuals and organisations. To move very far in that direction might threaten the ability of the central government to pursue its preferred policies, to claim credit for results and to set priorities. Thus endorsement in the abstract of more democratic participation and more community involvement has remained strictly within the framework dictated by the requirements of mandated majority government as understood by most professional politicians and their parties. None of the constitutional measures of recent years, including those providing for devolution, has done much to push responsibilities outwards and downwards with the aim of reinvigorating active citizenship and widening the opportunities for engaging in the practices of self-government. It is, however, the continuing development of the European Union and the impact of this on the scope for self-government retained by member states that have attracted most political attention for more than a decade now. Some of the major recent changes in the European Union have their origins in the Maastricht Treaty of 1992 and have, therefore, little to do with the programme of constitutional change initiated in Britain after 1997. In the negotiations preceding the Maastricht Treaty British reservations about the efforts then under way to push forward the integration process in Europe were fully displayed, not least as a result of the divisions in the Conservative Party which did so much to undermine the position of the prime minister, John Major. The final agreement contained opt-out conditions in favour of Britain, for example, from the proposed European Monetary Union and from what was known as the ‘Social Chapter’. On coming to office the Blair Government immediately signalled a much more sympathetic approach to the European Union and plans to enlarge and strengthen it. The opt-out from the Social Chapter was reversed in favour of acceptance of many of its conditions, and, whilst an exceedingly cautious approach to the possibility of one day entering the eurozone was maintained, it was moderated by expressions of hope that this would ultimately take place and by initiatives taken to encourage cooperation in both defence and foreign policy. Thus the prevailing political rhetoric became focused on gaining a place at the heart of Europe, on taking the lead and on encouraging reform of the European institutions and practices. The results of this shift of emphasis have, however, been modest in scope and in effect. Despite the agreements of 2000 at Nice on enlargement through the admission of at least ten new members by 2004, and subsequent efforts to devise more effective methods of managing a much larger Union, there is so far little sign of radical structural change in the European Union or of a displacement of the claims of the French government, supported by its German ally, to continue to act as ‘the motor of Europe’.17 The prospects for Britain’s position in the European Union have also been rendered even more uncertain as a consequence of the Blair government’s crucial decision after 11 September 2001


to commit itself unreservedly to support the American government in what was called ‘the war on terror’. This led ineluctably to support for the subsequent decision of the US administration to take military action against Iraq in early 2003 and to participation in the military campaign to remove the Iraqi regime. The most prominent opponents of this policy both in the Security Council of the United Nations and in the European Union were the French and German governments, with the former being ready to use the dispute to underline the case for a European foreign and defence policy stance clearly differentiated from that of the United States. In the light of the British commitment to the primacy of preserving a relationship of partnership with the United States, it is difficult to discern how any common European foreign policy can be devised, at any rate in relation to the more serious issues arising in international politics. This prospect in turn has implications for the British relationships inside the European Union in the coming years. At the very least it is likely that the friction and discontent prompted by membership of the Union will continue. The root of the problems associated with British membership of the European Union is to be found in a different history from that of continental Europe and different perceptions of society, political conduct and constitutional rules and practices. The European Union is an association of states constructed on the basis of continental European public-law principles. It is characterised by ready acceptance of bureaucratic methods and procedures, by a corporatist approach to reaching agreement on policies, and by acceptance of something like an oligarchy of established parties as the normal way in which political opinion is expressed and transmitted to the decision-makers. None of this fits easily with parliamentary government as it has been understood in Britain nor with ideas of representative or popular democracy. Above all there is no widely acknowledged place in the political practices and working conditions of the European Union for the accountability doctrine as understood in British experience, and in particular as requiring the accountability of elected officeholders – ministers. These remarks imply no judgement of the merits or otherwise of these contrasting political and constitutional practices and values. Indeed it is possible that the dominant continental European approach to the management of political affairs expresses values worthy of imitation and a more realistic appreciation of the character of contemporary advanced industrial societies than is to be found in Britain. But before engaging in normative disputes it is desirable simply to recognise that there are significant differences in respect of dominant political conceptions as between Britain and the larger part of the European Union, and that these will continue to hamper British efforts to assimilate what are in reality widely perceived as alien political values. It is a striking feature of the Blair Government’s approach to domestic constitutional reform that no effort at all has been made to suggest that any-


thing important might be learnt from the European Union or its member states. It is, of course, always naive to imagine that in the business of shaping its institutions one country can borrow in some straightforward way from the practices of another or from such an artificial and ambiguous structure as the European Union. The transfer of practices and associated values from one kind of historical experience to another is always beset with difficulties and misunderstandings. Yet in the light of the professed desire to be ‘at the heart of Europe’ it is not unreasonable to expect that at least some gestures might have been made towards learning from continental European constitutional experience which, at least in many individual member states of the Union, is rich and varied. But there has been hardly any evidence of such an interest in the methods of government of our closest neighbours, still less of an urge to gain substantial knowledge of them. This attitude testifies not only to the insular and parochial nature of British thinking about constitutional reform but also to the ambivalence of the Blair Government about the whole European project. The aspiration to have a place ‘at the heart of Europe’ reflects the vanity of politicians rather than a rational appreciation of the amount of influence Britain can hope for in the European Union. Equally it suggests a failure to understand why there is no prospect at all of reforming the institutions of the European Union in the image of the British constitution. If the idea of accountability in its various institutional manifestations is to be given practical effect this must be done within a framework that can have meaning for the voters. Political accountability requires institutions operating on a manageable scale, elected representatives who depend in some direct way on an electorate capable of identifying who are the officeholders, and a structure of public services and administration that is both reliable in operation and non-corrupt. None of these conditions is fully or even adequately met within the European Union. The belief that the European Parliament can be reinforced so that it becomes capable both of supplying the ‘legitimacy deficit’ said to exist and of functioning as a genuine pan-European representative body amounts to the pursuit of a chimera. There is no common language, no fully shared historical experience, no ‘European’ public opinion, and so far no genuinely European political parties. Thus the essential basic ingredients for an institution capable of representing a European electorate and of aspiring to control ‘the government of Europe’ are absent. The extraordinary feature of the ‘European project’ is that while many people in positions of some responsibility both in Britain and in other member states are able to recognise these and many other failings in the enterprise, in general they remain silent about them as if confessing that any suggestion that it is unrealistically ambitious and might be in need of radical reappraisal would amount to its abandonment altogether. Whatever may be the final outcome of the constitutional deliberations set in train in 2002 on the future of Europe,


it is very doubtful indeed that it will change in any decisive manner the existing institutional structures, working procedures and legal conditions of the Union. This is the inescapable consequence of the strength of embedded interests inside an association founded above all on the principle of mutual exchange and bargaining. But the price to be paid for failing to adapt the Union to a completely changed world will continue to be the piecemeal erosion of the practices of self-government in the member states and thus the undermining of the very democratic values to which the Union professes allegiance. It is hardly surprising that the constitutional reformers active in the Blair Government have been reluctant to confront any of the formidable difficulties involved in reconciling what they like to see as constitutional revival at home with the steady advance of the powers of the European Union at the expense of the British Parliament and government.

Reshaping the constitution to suit the needs of elective dictatorship Despite the best efforts of the protagonists of constitutional reform to present the changes of the past six years or so as the fulfilment of a radical reform programme, there are few grounds for accepting such a view of the matter. The constitution has not been reshaped or cast in a new form. New institutional devices have been inserted into it, some familiar features of the traditional constitutional landscape like the prescriptive rights of all hereditary peers to sit in the House of Lords have been swept away or further eroded like the maintenance of a professional and politically neutral civil service. But many of the visible signs and ceremonies of the ancien régime like the state opening of Parliament, the rituals of Budget day or Prime Minister’s Questions, the survival of eighteenth-century costume in the courtroom, and the regular distribution of the fruits of official favour in the shape of honours bestowed by the monarch remain intact. In respect of the normative content of the customary constitution – the extent to which its rules and conventions continue to have binding effect – the reform programme has had the effect of rendering its contours and the terms on which it rests even more blurred than they already were before ‘New Labour’ came to power. In part at least this is because the bulk of the reform programme amounted to a collection of measures tailored to meet particular political considerations – satisfying the demands of the devolutionists in Scotland and Wales, finding a way forward to peaceful coexistence between the embattled communities in Northern Ireland, appeasing the liberal-minded lobbies for human rights, freedom of information and a variety of other good causes, remaining true to ‘old Labour’ traditions by removing hereditary peers from the House of Lords as the first stage in an ill-thought out attempt to reform the second chamber, and above all conveying that sense


of movement and anticipation that has been at the heart of the commitment to modernisation. It might, however, be argued that this is the only way in which a customary constitution can be reformed: it simply does not permit total revision or a complete reworking of its conditions. Nor is there much reason to believe that the British public at large is strongly attracted to the idea of comprehensive constitutional reform or to the preoccupation with abstract argument and the coherence of principles and institutional relationships that would be to the fore in any effort to achieve a thoroughly reformed constitution. Thus it is not surprising that the Blair government undertook reform in what was in reality a more or less traditional way: it sought pragmatically to make changes where it could by adapting, changing and adding to the familiar institutional landscape. Even as the reform effort proceeded, however, the measures it involved were defended less as a coherent and radical plan for modernising the constitution18 and more as practical and above all pragmatic adaptation of the constitution to the dynamic conditions of a society intent on creating more wealth by competing successfully in the globalised world economy and on combining renewal of much of the social and economic infrastructure with the promotion of ‘social inclusivity’. The beauty of such slogans as the latter lies in their ambiguity: they can be used to appeal to the ideological commitments of the egalitarian as well as to the hopes of those who see social inclusivity as a new version of the promise of a successful career for all with the ability and ambition to use the opportunities open to them. In summary, the measures of constitutional reform already put into effect, those enacted and not yet in force such as the Freedom of Information legislation, and those promised like the proposed abolition of the Lord Chancellorship and a new final court of appeal, amount for the most part to a set of pragmatically devised experiments. These can be understood and characterised from either of two perspectives, one of a strictly practical nature, the other seeking something nearer to a theoretical understanding. At the practical level the reforms have had the overall effect of maintaining unimpaired the capacity of a British government, working to some extent through the familiar institutions of the customary constitution, to exercise the maximum discretion in the pursuit of whatever happen to be its political objectives and interests. Given the very large parliamentary majority enjoyed since 1997 by the Blair Government constitutional reform has strengthened the practices of ‘mandated majority government’ or, as some prefer to call it, ‘elective dictatorship’. A contrasting perspective sees the reforms as measures suitable for facilitating the better management of the kind of state once characterised by Michael Oakeshott as an enterprise association.19 A state of this sort is one appropriate to a society in which most people are not regarded as being in the first place individuals capable of taking substantial responsibility for their own lives, and for the lives of those


dependent on them, but chiefly as people joined in the pursuit of common objectives and as the recipients of all manner of benefits, many of these being provided for them by a beneficent central authority. By virtue of its very nature and flexibility the customary constitution placed no formal barriers in the way of those active political forces in Britain which throughout the last century sought to bring into existence a centrally directed welfare dispensing state. Since the customary constitution consisted for the most part of purely procedural conditions constraining the behaviour of officeholders and the use of the authority entrusted to them, it could not guarantee the preservation of the kind of liberal order which in the era of liberal constitutionalism stretching from the mid-nineteenth to the midtwentieth century it was almost universally assumed the constitution was intended to sustain. So in modern Britain, and especially after 1945, the customary constitution turned out to be compatible with a providential notion of government well adapted to the needs of an enterprise association, whether of the welfare state variety after 1945 or in the shape of a revived market economy imposed by a centralised political drive after 1979. However, no matter in which general direction politicians were seeking to move – towards the wider provision of services and benefits through government initiatives or towards a reduction in such public provision – one feature of British political life became a constant: acceptance of the right of a party majority to implement its programme, whether this was one calling for ‘more state’ or less. Inevitably that always meant more centralised power – more legislation, more direction from the centre, and the encouragement of ever greater expectations of what might be achieved by energetic political leadership exerted from the centre. In the course of time, however, this process of absorbing the claims of centralised rule deprived the procedural constraints embodied in the customary constitution of most of their effectiveness, and certainly of the possibility they once offered of functioning as the rules of what Hayek called ‘a constitution of liberty’.20 There is not much evidence to suggest that the programme of constitutional reforms discussed in this book has substantially changed this situation or the general thrust of political and social development in Britain towards a welfare-oriented society predominantly inspired by centralised political initiatives. This type of society in Britain does, however, have distinctive characteristics that differentiate it substantially from the ‘social state’ or the ‘European social model’ that is often held up as an example to be imitated. It has avoided wholesale commitment to a high level of universal benefits financed out of a mix of compulsory insurance payments and taxation that is characteristic of the European social model, and continues to lay more stress on benefits related to needs provided out of public funds and under the overall control of the Treasury. An obvious consequence of this is that the share of British social provision met out of public funds


remains more effectively within political control than is usually the case with the European equivalents, and this is a matter of some advantage when a government is dealing with the whole spectrum of social benefits. More important still social welfare provision and every type of public social service have to be seen within a context in which market relationships and their importance both as the keys to economic prosperity and as a stimulus to efficiency across the whole society have a prominence and level of acceptability to be found in only a small number of member states of the European Union. Whilst there is no direct causal relationship between the customary constitution and this particular social and political outcome, there is little doubt that the kind of constitution that Britain has so far had helped to facilitate a much more rapid rate of adaptation to the conditions of a globalised competitive economy. It did not erect artificial barriers against the reassertion of market relationships and methods, it continued to maintain a bias favouring individual enterprise in the face of collectivist pressures, and it placed few obstacles in the way of the more or less uninhibited flow of information round the world as a result of the rapid advance of information technology. We are left with paradoxical conclusions. Constitutional reform has not heralded a new determination to bring about in the sphere of British ruling institutions a rule of laws and a wide dispersion of powers such as animated many of the American founding fathers. Despite the prominence given to the protection of human rights, no coherent framework for the enforcement of rights both in public law and in the institutions of government has been provided. Instead, rights will receive more attention, but on terms which seek to suggest that no fundamental changes are contemplated. Whilst much of the old, customary constitution appears to remain in place, there is now little understanding of the normative conditions on which it rested and little sympathy for their restoration. Indeed the appeal to tradition and inherited practice is generally dismissed out of hand as backward-looking, a reaction that is perhaps understandable in view of the fact that so much of what passes for tradition has become little more than nostalgic performances to reassure those who are anxious about the passing of the old order. In addition there are few signs of a recognition of the fact that the customary constitution, though never ‘designed’ in an explicit manner to further certain ends, nonetheless was intended at various crucial stages in its evolution to have the effect of imposing constraints and limitations on the exercise of power by those in authority and thus to protect individuals in the enjoyment of whatever possibilities were open to them. In the present era of constant change and adaptation of institutions – embracing not just the constitution but virtually all sectors of social organisation and activity – political opportunism and pragmatic problem-solving have become the distinguishing qualities of those in charge of public affairs. And this situation is likely to persist so long as it remains congruent with dominant values and


expectations in society. The age of liberal constitutionalism has indeed passed away. Nor is the situation fundamentally different in neighbouring societies with formal codified constitutions also proclaiming the values of liberal constitutionalism: there too the heritage survives in only a fragmentary form in the face of the dominance of party interests, the tolerance of ever denser patterns of bureaucratic regulation, and the pressures of mass popular opinion as transmitted by the media. Until only a few years ago the British customary constitution remained tough enough to stand in the way of many procedural changes sometimes proposed by those who hoped to reform it, though it could nearly always be circumvented if suitable ways of doing so could be found. This is no longer so. The spate of constitutional reforms testifies to the virtual disappearance of the customary constitution as a significant source of authority in the governance of society. Here and there discordant opinions and dissenting voices can still be heard, questioning the merits and presumed benefits of what has been done. But the popular mood at the beginning of the twentyfirst century seems to be one of indifference and cynical tolerance, suggesting that most people are content to leave public affairs and politics to professional politicians and those who shape public perceptions on their behalf. What appears to guide the elites of contemporary political life was perhaps expressed most succinctly by Alexander Pope over two and a half centuries ago: For forms of government let fools contest; Whateer is best administered is best. For modes of faith let graceless zealots fight; His can’t be wrong whose life is in the right.21 On several occasions in the course of this study reference has been made to the opinions of another voice from the past, that of Walter Bagehot whose essay The English Constitution first appeared in 1867. In it he drew a distinction between the ‘dignified’ and ‘efficient’ parts of the constitution that has continued to appeal to those writing about the customary British constitution. Bagehot’s argument about the role of dignified institutions and practices in conferring authority on the efficient means of government is not entirely clear, not least in respect of why grand and dignified institutions should be so well adapted to eliciting those feelings of loyalty and trust on which political authority has ultimately to rest. Nonetheless, the distinction has remained popular, not least because it appeared to be reflected in so much of British political and constitutional development since Bagehot’s time. But whilst there are still some examples of dignified performances which appear to lend support to the operation of the efficient parts of the constitution, the distinction now has relatively little explanatory value in defining the character of the British constitution or explaining how


it works. In short the distinction has become outmoded in the wider context of a ‘demystified world’ pervaded by rationalistic and instrumental thinking. In relation to the British constitution as it now exists a sharper instrument than the distinction between dignified and efficient elements is called for if we are to grasp its character and condition. What is required is something like a theory of fictions. The customary ‘unwritten’ constitution appears to have survived, but most of the principles which, according to the majority of commentators on it, are embodied in the institutions, laws and practices it sustains have in fact become fictions. They are not regularly reflected in political and administrative reality and they do not have the practical effects they are supposed to have according to the normative account of the constitution. But in contemporary democratic conditions where there is so much emphasis on appealing to the people in terms they can understand, these fictions continue to be very useful to those professionally engaged in party politics and in the pursuit of office. By winning a majority in the electorate they hope to be able to claim a popular mandate to govern. The political class has discovered – and after all there is evidence suggesting that this is a well-founded conclusion – that it is easier to govern on the basis of a constitution that rests on a range of fictions than it would be if the constitution provided for real and effective constraints on the exercise of political discretion in carrying through the business of government. In this way they retain maximum freedom to decide how best to pursue their objectives and at the same time to satisfy popular opinion. This is why there has never been much support in practical politics for a real effort to replace the customary constitution by a formalised and codified instrument of government and declaration of the rights of citizens. Such a ‘total revision’ of the customary constitution could not take place without the erection of institutional boundaries that would in turn tend to limit the virtually complete discretion now claimed by the executive power. Often enough in the past it has been taken for granted that the natural way to reform a customary constitution like the British is to proceed incrementally, resolving problems that have become acute and damaging, but always trying to maintain institutional continuities and familiar ways of proceeding wherever it is practicable to do so. But piecemeal adaptation may have its limits if there is no longer a sufficiently strong attachment to the customary practices and the values underpinning them to offer the prospect of combining genuine improvement in the terms and conditions of government and citizenship with the preservation of meaningful links with past experience and habit. The current reform programme appears to assume that after a flood of institutional changes, motivated at least in part by the hope that they will eventually contribute to greater prosperity and individual well-being, it will be found that the terms and conditions of government and politics – how the country is ‘constituted’ and how authority is gained


and exercised – remain basically unchanged. This appears to be an unrealistic and over-optimistic picture of the future if the customary constitution indeed no longer has the vitality to serve recognisable and acceptable political purposes. After all it is hard to overlook some of its more obvious failings: it cannot any longer be relied on to control and check the exercise of political power, it shows little capacity for preserving self-government in the manner in which it has traditionally been understood, it may not be strong enough to hold the United Kingdom together in the post-devolution era, it places little check on bureaucratic growth, and it may not even prove effective in conserving habits of civility in society at large. If weaknesses such as these are taken seriously, it becomes necessary to consider whether there is an alternative approach to constitutional renewal, and in particular to the achievement of changes that might begin to tackle the challenge of devising counterweights to set against the claims of the ‘elective dictatorship’ and ‘mandated majority rule’. To go down this path would inevitably involve acceptance of some degree of formalisation or codification of the terms of the British constitution. This means that certain constitutional conditions or instruments would have to be given a special status above that of ordinary law and entrenched in some way. Such steps would in turn imply qualification of the doctrine of parliamentary sovereignty, brought about not by stealth or neglect, but explicitly. Acknowledgement of such general conditions would be helpful in shaping an institutional framework for the operation of effective checks and balances. This in turn might entail some degree of separation of Parliament from the Executive to reduce the latter’s power over the former, a change that would become easier to envisage if the practice of mandated majority rule were made more difficult to sustain as a result of electoral reform. There could be a place for a new second chamber elected on a different basis from the House of Commons and acknowledging in some degree the desirability of bringing nations and regions more explicitly into the constitutional framework of the United Kingdom. One of the consequences of such a change might then be the need for amendment of the present devolution settlements to resolve the anomalies in them regarding English political rights as well as to affirm a general obligation to sustain the Union and further its interests. A new statute for local government setting out at least the principles of local self-government could also be envisaged along with radically different financing arrangements. And in time, if certain laws came to be regarded as ‘fundamental’ or ‘basic’, it would be consistent with such a change to permit a supreme court, already experienced in the protection of human rights, to disallow measures in breach of such basic laws. These remarks on alternatives to pure pragmatism are not to be taken as the outline of another programme of constitutional reform. Almost certainly new possibilities not at present within the range of constitutional design


will come into view in the future. Moreover, these comments on alternatives make no reference to the changes in social and political attitudes that would have to occur for most of them to be regarded as realistic possibilities. Their purpose is simply to illuminate the dilemma facing constitutional reformers in Britain. It is understandable that many regret the decline of the customary constitution which has at different times in the history of Britain been remarkably successful in striking a balance between the needs of good government and the claims of individual liberty. But the foundations in the social and moral life of the nation for infusing that kind of constitution with sufficient vitality and normative force to restrain the abuse of power in the name of democracy have almost certainly been eroded beyond recall. An appeal to the past and to pre-existing rights and liberties can no longer be a sufficient basis for reform and renewal. The time has surely come to recognise that if the benefits of limited government under law, respect for individual liberties and responsibilities, and acknowledgement of the virtues of self-government are to survive in more than a formal and occasional sense, this will call for a very different understanding of what a constitution is for and what constitutional reform means than has been demonstrated in recent years.

Notes 1. Sweden’s constitution was overhauled and a revised version of it took effect in 1975; in Switzerland a revision of the 1874 constitution came into force in 2000 after being approved in a referendum. In contrast Norway still has in essentials the constitution of 1814 which survived separation from the Swedish crown in 1905 and German occupation 1940–45. 2. Mrs Thatcher’s intention was almost certainly to contrast self-help with reliance on the state as the primary source of support. For comments on the remark, see Margaret Thatcher, The Downing Street Years, Harper Collins 1993, p. 626. 3. The 1991 Citizens’ Charter, Cm 1599, was an early example of an effort to assure people that as consumers of services they had a right to expect certain standards of performance in the public sector. 4. It is paradoxical that ‘history’ has recently become the stuff of popular entertainment despite the reluctance in public affairs to admit the relevance of historical experience. But history as entertainment is spiced with references to how close events and personalities in the past are to what we can observe in the present. 5. Under current electoral law it is not unusual for a successful party leader to win power without the backing of a majority of the electorate, though it will generally be a majority of those who actually vote. 6. In his Address to the Electors of Bristol, 3 November 1774, Burke explicitly denied that an MP was entitled to put local interests above his duty to represent the general public interest. The doctrine was for a long time received wisdom, but now has far less resonance in British politics. It is noteworthy that the Conservative Party which might be expected to endorse a traditional view of repre-


7.

8.

9. 10.

11.

12.

13.

14.

15.

16. 17.

sentation now accepts that MPs have a duty to consult ‘local party interests’ and to take a lead from what they say. This was made evident, for example, in the controversy over Mr Iain Duncan-Smith’s leadership in autumn 2003. Voter turnout has shown a declining tendency in all recent elections. For example, general election percentage poll figures were as follows: in 1997 – England 71.4, Wales 73.5, Scotland 70.3, Northern Ireland 67.1; in 2000 – England 59.4, Wales 61.6, Scotland 58.2, Northern Ireland 68.0; in local elections a poll of 30 per cent is not uncommon while in the European Parliament election of 1999 it reached only 23 per cent. Referendums were held in Scotland and Wales in 1979 and again in 1997, and there have been two votes in Northern Ireland, in 1973 on the border and remaining part of the UK, and in 1998 on the Good Friday (Belfast) agreement providing for devolved institutions. In addition there was a popular vote in 1998 on the plan for an elected mayor in Greater London. Referendums on regional assemblies in three regions were proposed by Mr John Prescott MP, Deputy Prime Minster, on 16 June 2003: Chapter 9, note 15 refers. In her first major speech as Leader of the Opposition Mrs Thatcher spoke out against the referendum on remaining in the European Communities after the conclusion of the so-called renegotiation. She grounded her arguments in part on Dicey’s objections to the use of referendums as being in conflict with the principle of parliamentary sovereignty. Her arguments now have a quaintly oldfashioned flavour of which the author is keenly aware since he advised her in the preparation of this speech. In the face of a sustained though disparate campaign for a referendum to be held on whatever constitution for the European Union is finally agreed by member states, Prime Minsister Blair informed the House of Commons on 20 April 2004 that he was ready to concede such a popular vote after completion of parliamentary proceedings on the treaty documents. In his statement Mr Blair eschewed the word ‘referendum’: had he been inclined to use constitutional categories ‘discretionary plebiscite’ might have been appropriate. Your Region, Your Choice: Revitalising the English Regions, Cm 5511, May 2002. This White Paper sets out the proposals for gradually setting up regional authorities in England. According to paras 5.6 and 5.7 such bodies might have the power to raise a small precept on the second-tier authorities, subject to central government approval. Chapter 9, note 15 refers. It is difficult to know whether to take seriously the apparent commitment of the Conservative Party in October 2003 to localism and the return of many functions to ‘local communities’. But whether control of the police, for example, could be given to smaller and more ‘local’ bodies than the 43 existing police authorities in England is highly questionable. Rechtskultur refers to a society’s conception of law and justice, and to the way in which the role of law in the society should be understood both by citizens and realised in institutions. Public spending on legal aid reached £792 million in 2000–01 (source: UK 2003 Statistics, HMSO). Determined efforts are being made to stem the rate of increase, though it is hard to do so. Chapter 2, note 4, Isaiah Berlin, Two Concepts, pp. 16–19. Immediately after the Brussels negotiations in December 2003 on the proposed European constitution ended without agreement, the French President reaffirmed his support for a ‘pioneer’ group of member states, presumably to be led by


18.

19. 20. 21.

France, which would move ahead more quickly to further integration. Though the claim to be the driving force in European integration has been prominent in statements of French policy towards the European Communities and Union for many years, what precisely more rapid integration would mean in reality has nearly always been left obscure. In his statement to the House of Commons announcing both cabinet changes and a string of proposed institutional reforms Mr Blair concluded by asserting that all the measures he had announced were ‘essential acts of constitutional modernisation’, and that he believed no party could in future revoke them. Hansard House of Commons Debates, 18 June 2003, Col 357. Oakeshott, On Human Conduct, chiefly Part III. F. A. Hayek, The Constitution of Liberty, Routledge 1960. Alexander Pope, An Essay on Man, Ep. iii.

Bibliography The list following makes no claim to be a comprehensive bibliography of writings on the British constitution. It consists mainly, though not exclusively, of works appearing in recent years and consulted by the author. It does not include official documents such as Command papers or Parliamentary reports.

Political institutions and politics Birch, A. H., Representative and Responsible Government, Allen & Unwin 1964 Blackburn, R., and A. Kennon (ed.), Griffiths & Ryle on Parliament: Functions, Practice and Procedure, 2nd edn, Sweet & Maxwell 2003 Blackburn, R., and R. Plant (ed.), Constitutional Reform: the Labour Government’s Constitutional Reform Agenda, Longman 1999 Bogdanor, V., The Monarchy and the Constitution, OUP 1995 Bogdanor, V., Politics and the Constitution: Essays on British Government, Dartmouth 1996 Bogdanor, V. (ed.), The British Constitution in the Twentieth Century, OUP 2003 Burch, M., and I. Holliday, The British Cabinet System, Prentice Hall 1996 Carmichael, P., and B. Dickson, The House of Lords: Its Parliamentary and Judicial Roles, Hart Publishing 1999 Chapman, R. (ed.), Ethics in Public Service for the new Millennium, Ashgate 2000 Daintith, T., and A. Page, The Executive in the Constitution: Structure, Autonomy and Internal Control, OUP 1999 Flinders, M., The Politics of Accountability in the Modern State, Ashgate 2001 Foley, M., The Politics of the British Constitution, Manchester University Press 1999 Goldsworthy, J. D., The Sovereignty of Parliament: History and Philosophy, OUP 1999 Hadfield, B. (ed.), Northern Ireland: Politics and the Constitution, Open University Press 1992 Lord Hailsham of Marylebone, The Dilemma of Democracy: Diagnosis and Prescription, Collins 1978 Hansard Society Commission on Parliamentary Scrutiny, Report, The Challenge for Parliament: Making Government Accountable, Vacher Dod Partnership Ltd 2001 Hazell, R. (ed.), Constitutional Futures, OUP 1999 Hazell, R. (ed.), The State of the Nations 2000: the First Year of Devolution in the United Kingdom, Imprint Academic 2000 Hennessy, P., The Prime Minister: the Office and Its Holders since 1945, Allen Lane 2000 Holliday, I., A. Gamble and G. Parry (eds), Fundamentals in British Politics, Macmillan 1999 Jowell, J., and D. Oliver (ed.), The Changing Constitution, OUP 1985 Judge, D., A Parliamentary State, Sage Publications 1993 Leigh, I., Law, Politics and Local Democracy, OUP 2000 Marshall, G., Constitutional Conventions, OUP 1984 Parris, H., Constitutional Bureaucracy, Allen & Unwin 1969 Rao, N., Reviving Local Democracy: New Labour, New Politics?, Policy Press 2000

318

Bibliography 319 Riddell, P., Parliament under Pressure, Gollancz 1998 Stevens, R., The English Judges: Their Role in the Changing Constitution, Hart Publishing 2002 Stone Sweet, A., Governing with Judges, OUP 2000 Trench, A. (ed.), The State of the Nations 2001: the Second Year of Devolution in the United Kingdom, Imprint Academic 2001

Law and the constitution Allan, T. R. S., Constitutional Justice: a Liberal Theory of the Rule of Law, OUP 2001 Bates, T. St J. (ed.), Devolution in Scotland: the Legal Aspects, T & T Clark 1997 Brazier, R., Constitutional Reform, OUP 1991 Brazier, R., Constitutional Practice, 3rd edn, OUP 1999 Gobert, J., Justice, Democracy and the Jury, Ashgate 1997 Gough, J. W., Fundamentals in English Constitutional History, OUP 1955 Institute for Public Policy Research, A Written Constitution for the United Kingdom, Mansell Publishing Ltd 1993 Marshall, G., Constitutional Theory, OUP 1971 Richardson, G., and H. Genn, Administrative Law and Government Action: the Courts and Alternative Mechanisms of Review, Oxford 1994 Robertson, A. H., Human Rights in Europe, Manchester University Press 1963 Robertson, D., Judicial Discretion in the House of Lords, OUP 1995 Sterett, S., Creating Constitutionalism? The Politics of Legal Expertise and Administrative Law in England and Wales, Ann Arbor 1997 Turpin, C., British Government and the Constitution: Text, Cases and Materials, 4th edn, Butterworth 1999 Vincenzo, C., Crown Powers, Subjects and Citizens, Pinter 1998 Waldron, J., The Dignity of Legislation, CUP 1999

Theory and history Barker, R., Legitimating Identities: the Self-Preservation of Rulers and Subjects, CUP 2001 Bentley, M., Public and Private Doctrine, CUP 1993 Davies, E. T., The Political Ideas of Richard Hooker, SPCK 1946 Greenleaf, W. H., The British Political Tradition, Vol. 3, A Much Governed Nation (2 Parts), Methuen 1987 Manin, B., The Principles of Representative Government, CUP 1997 Peacock, A. A., Rethinking the Constitution: Perspectives on Canadian Constitutional Reform. Interpretation and Theory, OUP 1996 Schmitt, C., The Crisis of Parliamentary Democracy, translated with Introduction by E. Kennedy, MIT 1985 Sisson, C. H., The Spirit of British Administration, Faber & Faber 1959

Church and state Bradley, I., God Save the Queen: the Spiritual Dimension of Monarchy, Darton, Longman and Todd 2002 Brose, O. J., Church and Parliament: the Reshaping of the Church of England 1828–1860, Stanford 1959

320 Bibliography Doe, N., The Legal Framework of the Church of England, OUP 1996 Hastings, A., History of English Christianity 1920–1950, 3rd edn, SCM Press 1991 Medhurst, K., and G. Moyser, Church and Politics in a Secular Age, OUP 1988 Moyser, G. (ed.), Church and Politics Today: the Role of the Church of England in Contemporary Politics, T & T Clark 1985

Index Act of Settlement 1701 68, 141 Act of Union 1707 15, 174 Attlee, C. R., Prime Minister 1945–51 83 Austria 16, 41, 261 Bagehot, Walter 10, 30, 60, 81, 88, 223, 312 Barnett formula 177–8 Belfast Agreement 182, 185–6 Belgium 16 Berlin, Sir Isaiah 25 Bill of Rights 1689 15, 57, 68, 141, 237 Bingham of Cornhill, Lord 147, 249, 250 Blair, Tony, Prime Minister 1997– 3, 84, 149, 164, 165, 213, 232 Boothroyd, Baroness 119 Bridge, Lord 270 British constitution contrasted with codified constitutions 11–15, 19–20 customary nature of 2, 4–5, 13, 17, 18–19, 22, 35–6, 163, 168–9, 311–12, 313 as institutional practices 2, 6, 10, 161 reform plans for 5, 9, 11, 164, 169–70, 171 rights under 22, 24, 26, 28, 33–4, 238–9 survival of 13, 163 weakening of 34–6 Bryce, James, Viscount 12 Burke, Edmund 168 Byers, Stephen, MP 199 cabinet government 81–2, 84–5, 86, 289–90 Callagham, James, Prime Minister 1976–79 175 centralisation 40, 48, 97–8, 162 Chadwick, Sir Edwin 41 Charity Commission 47

Charles I 22, 168 Charles X (of France) 12 checks and balances 216, 296–300 Civil service 165, 224, 228, 230, 234 management in 93–4, 96, 229–30, 232 political neutrality of 80, 94–6, 230, 231–3 Coke, Sir Edward 30 Collins, Mr Justice 247 common law 17, 25, 144–5, 304 consent, principle of 21–5 Conservative party 17, 81, 174, 175, 176, 211 constitutionalism, liberal 9–10, 15–17, 312 constitutions, written 12, 14 conventions 13, 17, 18 Cook, Robin, MP 86–7, 227 Court of Star Chamber, abolition of 14 Cranborne, Lord 210 Crichel Down case 145 Crosssman R. H. S. MP 81 Crown 25, 30, 35, 64 as a legal construct 58–9, 62–7, 76 Crown Proceedings Act 1947 64, 145 decentralisation 199, 298, 299 democratisation, of constitution 166, 167–8, 299 Denmark 14, 261 Denning, Lord 269–70, 280 devolution, see also Northern Ireland, Scotland, Wales 50, 131, 169, 173, 297 issues, appeals on 181, 184, 192, 195, 255 models compared 193–9, 297 representation at Westminster under 180, 196 Dewar, Donald, First Minister Scotland 1999–2000 178 Dicey A. V. 31, 149 Diplock, Lord 147 Donaldson, Lord 270

321

322 Index Economic and Monetary Union 63, 262, 305 elective dictatorship 214, 215, 308–9 electoral law 170, 194, 217 Elizabeth I 57, 67, 70 Elizabeth II, see monarch and monarchy Elizabeth, Queen Mother, funeral of 70 England, Church of 14, 41 established status of 67–9, 70–4 General Synod of 72 Monarch, head of 67 parochial system 73–4 executive power in Britain 31–2, 79–80, 81, 84–5, 97–9 European Communities, see European Union European Communities Act 1972 29, 110, 129–30, 261 European Convention of Human Rights 37, 123, 131, 143, 150–1, 152, 169–70, 177, 212, 237, 239, 240–5, 251, 252, 257, 301 European law 268–72 European Union 3, 5, 27, 32, 34, 37, 57, 65, 110–11, 130, 163, 246, 261–2, 264, 280, 306–7 bureaucratic politics in 266–8 constitution for 272–8 growing powers of 265–6 impact on British Parliament 110–11, 266–8 Finland 261 France 16, 41 Freedom of Information Act 2000 170, 309 French Revolution 11, 23, 238 fundamentals 10, 11, 314 George II 65 Germany, constitution of 14, 16, 152 Giscard d’Estaing, Valéry 272 Greater London, government of 24, 199, 200–2, 295 Greece 261 Greene, Lord 148 Habeas Corpus Act 1679 15 Hailsham, Lord, Lord Chancellor 1970–74, 1979–87 147

Hart, Herbert 25 Henry VIII 57, 67 Henson, Hensley, Bishop of Durham 74 Hobbes, Thomas 25, 238 Hoffmann, Lord 248, 269 Hope of Craighead, Lord 250 human rights 301–2, 303 Human Rights Act 1998 29, 123, 131, 145, 147, 150–1, 152, 195, 240–5, 252, 253, 256, 301 cases under 248–51 declarations of incompatibility with 246 impact of 245–8, 251 institutions 285–6 Ireland, Republic of 260 Irvine of Lairg, Lord, Lord Chancellor 1997–2003 40, 71, 140 James II 57, 68, 237 Jenkins of Hillhead, Lord 217 Judicial Appointments Commission 256–7 Judiciary 22, 30, 141, 142, 144–5, 153, 154–5, 255 judicial review by 145–9 recruitment of 141–3 jury, institution of 155 Kilbrandon Commission on the Constitution 1969–73 174–5 Labour party 3, 81, 106, 174, 176, 240, 285 Laws, Lord Justice 66 legal culture 253–4, 302–4 legislation delegated 109–10 drafting of 107–8, 254, 271 Liberal Democrats 176 liberty, ideas of 25–8 Livingstone, Mr Ken, Greater London Mayor 202 local authorities 33, 41–3, 202–4 Locke, John 25, 238 Lord Chancellorship, abolition of 143, 255, 257–8, 309 Louis XVIII 12 Louis Philippe, French King 12

Index Mackintosh, John, MP 81 Macmillan, Harold, Prime Minister 1957–63 278 magistrates, lay magistrates 141, 155 Magna Carta 14, 22, 237 Maitland, F. W. 15, 58, 64 Major, John, Prime Minister 1990–97 88, 163, 164, 165, 305 Mallon, Seamus, Deputy First Minister, Northern Ireland 184 managerialism 92–4, 234, 285–6 mandated majority 291 Mary II, Queen 57 McLiesh, Henry, First Minister Scotland 2000–01 178 media 91 Michael, Alun, Welsh First Secretary 1999–2000 192–3 Mill, John Stuart 292 ministers accountability of 80, 90–1, 92–3, 220–2, 233 collective responsibility of 86–7, 227 individual responsibility of 87–8, 226–7 powers vested in 89–90, 97–8 responsibility of 79, 80, 85–90 modernisation 36–7, 75–6, 166, 168, 170 Monarch constitutional roles of 58, 59–60, 288–9 Head of Commonwealth, as 61, 67 honours, and 66 representational role of 61–2 monarchy, see also Monarch 75–6, 288–90 moral significance of 75 religious dimension of 69–70 Montesquieu, Charles Louis de Secondat 15, 253 Morgan, Rhodri, Welsh First Secretary, 2000– 193 Municipal Corporations Act 1835 41 Napoleon I, French Emperor 12, 23 National Lottery 51, 300 National Trust 47 Netherlands 14

323

Northern Ireland Assembly, powers of 183–4 Civil Service, Northern Ireland 185, 197 devolution for 45, 165, 182–8 electoral law in 188 Executive authorities in 184 suspension of Assembly 131, 187 Oakeshott, Michael 309 Opposition, role of 105–6 Parliament Church Measures in 71–2 consent needed 22–3, 24 House of Commons 17, 293–4: Clerk of 120; debate in 219; Department select committees of, see also scrutiny function 113, 114–16; legislative functions of 106–11, 162–3, 219; modernisation of 209, 217, 219, 222, 287; Private Members, role of 107, 112–19; Public Accounts Committee of 41, 112, 221; Public Administration, Select Committee of 215–16; scrutiny function 102–6, 111–15, 220–1; Speaker of 119–21, 122; Standards and Privileges, Select Committee on 122 House of Lords 35, 73, 80, 103, 118, 121, 124–9, 170, 177, 209, 287, 293, 308: composition of 127–9, 170, 210–13; functions of 125, 126, 213–14, 215; judicial role of 121, 153, 215, 255, 258; legislative procedures in 125, 126, 214; select committees in 127, 267 Parliament Acts 1911 and 1949 124–5, 128, 129, 213 Parliamentary Counsel 108 parliamentary government, category of 290–2 parliamentary privilege 121–3 Plaid Cymru 193 pluralism 43, 46–8, 296–300 political parties 16, 32, 49–50, 51–2, 133, 134, 162 Pope, Alexander 312 Portugal 261 Powell, J. Enoch 57

324 Index Prescott, John, Deputy Prime Minister 199 Prime Minister, office of 82–5, 223–6, 289–90 powers of 82–5, 223–6, 289–90 support services for 224–5 Prussia 41 referendum, provisions for 63, 294–8 Reform Act 1832 15, 22 Regions, English Regions 199, 204–6, 295 representative principle 24, 293–4 Russian Federation 15–16 Russian Revolution 15 Schliemann, Lord Justice 248 Scotland, and devolution 29, 132, 173–6 representation at Westminster 150, 180 Treaty of Union with 33, 45, 174 Scotland, Church of 45, 68, 71, 72, 174 Scotland Act 1998 174, 176–82 Scottish Constitutional Convention 163, 175 Scottish Executive 178, 179–80 Scottish National Party 86, 174, 176 Scottish Parliament 176–8, 182 separation of powers 34 Short, Clare, MP 227 Single European Act 1986 264 Slynn of Hadley, Lord 250 Smith, Sir Thomas 31 sovereignty and a parliamentary executive 32, 80, 99

parliamentary sovereignty 28–31, 101, 103, 129–33, 195–6 Spain 11, 261 state, British idea of 27, 48, 50 subsidiarity 51–3, 278–9 Supreme Court, proposal for 255, 256, 258 Sweden 261 Switzerland 14, 32 Thatcher, Margaret, Prime Minister 1979–90 3, 27, 82, 83, 97, 149, 163, 164, 165, 175, 228, 231, 232, 286 Tocqueville, Alexis de 169 tradition 9, 168, 286–8, 311 Trimble, David, First Minister Northern Ireland 184, 198 United Kingdom, non-English members of 33, 44–6 United States of America Constitution of 12, 14, 235, 243, 274, 279, 298 due process in 25 Presidency of 289–90 Supreme Court of 17, 144, 152, 243 Victoria, Queen 58, 59 Wales 43, 132 devolution model for 188–93 Weber, Max 89 Welsh Assembly, powers of 188–91 First Secretary in 190, 191 ‘West Lothian’ question 196 William III 57 Wilson, Harold, Prime Minister 1964–70, 1974–76 174

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