Reshaping the British Constitution: Essays in Political Interpretation

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

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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

Reshaping the British Constitution

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

Reshaping the British Constitution

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.

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Part I The Underpinnings of a Customary Constitution

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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-

12 Reshaping the British Constitution

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-

Constitutions and Constitutionalism 13

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-

14 Reshaping the British Constitution

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

Constitutions and Constitutionalism 15

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

16 Reshaping the British Constitution

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

Constitutions and Constitutionalism 17

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.

18 Reshaping the British Constitution

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

Constitutions and Constitutionalism 19

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

20 Reshaping the British Constitution

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

22 Reshaping the British Constitution

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

24 Reshaping the British Constitution

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

Foundations and Principles 25

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

26 Reshaping the British Constitution

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

Foundations and Principles 27

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,

28 Reshaping the British Constitution

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

Foundations and Principles 29

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.)

30 Reshaping the British Constitution

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,

Foundations and Principles 31

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

32 Reshaping the British Constitution

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

Foundations and Principles 33

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-

34 Reshaping the British Constitution

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

Foundations and Principles 35

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

36 Reshaping the British Constitution

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

Foundations and Principles 37

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

38 Reshaping the British Constitution

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

Foundations and Principles 39

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

42 Reshaping the British Constitution

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

Institutional Pluralism and Subsidiarity 43

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.

44 Reshaping the British Constitution

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

Institutional Pluralism and Subsidiarity 45

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-

46 Reshaping the British Constitution

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

Institutional Pluralism and Subsidiarity 47

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

48 Reshaping the British Constitution

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

Institutional Pluralism and Subsidiarity 49

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

50 Reshaping the British Constitution

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-

Institutional Pluralism and Subsidiarity 51

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

52 Reshaping the British Constitution

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.

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Part II Institutions and Practices under the Customary Constitution

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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-

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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-

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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-

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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

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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

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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

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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-

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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

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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

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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.

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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-

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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.

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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

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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

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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

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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-

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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-

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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,

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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-

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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 ev