Peter Leyland Book About Constiution

THE CONSTITUTION OF THE UNITED KINGDOM
This acclaimed book provides a topical and contextual outline of the principles,
doctrines and institutions that underpin the United Kingdom constitution. The
third edition of The Constitution of the United Kingdom has been comprehensively
revised and updated to take account of recent constitutional developments and
debates. This includes: the revised framework for devolution following the 2014
referendum in Scotland, the constitutional ramifications of the realignment of UK
politics reflected in the result of the 2015 general election and the debate over the
possible replacement of the Human Rights Act 1998 with a British Bill of Rights.
The chapters are written in sufficient detail for anyone coming to the subject
for the first time to develop a clear and informed view of how the constitution is
arranged and how it operates. The main themes include: discussion of the history,
sources and conventions of the constitution; later chapters deal with: constitutional
principles, the role of the Crown, Parliament and the electoral system, government
and the executive, the constitutional role of courts including the protection of
human rights, the territorial distribution of power between central, devolved and
local government, and the European Union dimension. In addition, the book offers
analysis of the evolution of the uncodified UK constitution, its strengths and per-
ceived weaknesses, and of reforms aimed at its modernisation.
Cover description
UK Constitution: To the Lighthouse
Number Ten Downing Street, headquarters of the government and the Executive,
is represented at the centre of the composition, both as a lighthouse and a beam
of light. The relationship with parliamentary democracy is suggested by an iconic
ballot box below the ‘10’. The time, 1215 on the face of Big Ben, is a reminder of
Magna Carta and the long ancestry of the contemporary constitution. At the base
of the purple triangular pyramidal lighthouse, the portcullis symbol stands for the
Westminster Parliament, the legislative branch and the heart of UK politics. A civil
servant in bowler hat and umbrella beside the portcullis represents the executive.
Just above, the Union Jack, depicted in the form of beams of red on blue canton,
juxtaposed with yellow stars. This is a reference to the limits of sovereignty and the
UK’s relationship with the European Union, while also showing the constitutional
protection of rights under the European Convention of Human Rights, now incor-
porated through the Human Right Act 1998. The symbols of the judicial branch
and the rule of law in the form of the UK Supreme Court forms a counterbal-
ance in the opposite upper corner. All three emblems in close proximity delineate
the separation of powers and overlapping powers. The national emblems of the
devolved parts of the UK: Wales (a dragon), Ireland (a shamrock) and Scotland
(St Andrews Cross—white saltire on azure field, in the shape of pyramids) occupy
the right hand side. The enthroned Queen Elizabeth II in coronation robes with
royal standard (a red lion rampant) denotes constitutional monarchy.
Putachad, Artist
Constitutional Systems of the World
General Editors: Peter Leyland, Andrew Harding and Benjamin L Berger
Associate Editors: Grégoire Webber and Rosalind Dixon
In the era of globalisation, issues of constitutional law and good governance are
being seen increasingly as vital issues in all types of society. Since the end of the
Cold War, there have been dramatic developments in democratic and legal reform,
and post-conflict societies are also in the throes of reconstructing their governance
systems. Even societies already firmly based on constitutional governance and the
rule of law have undergone constitutional change and experimentation with new
forms of governance; and their constitutional systems are increasingly subjected to
comparative analysis and transplantation. Constitutional texts for practically every
country in the world are now easily available on the internet. However, texts which
enable one to understand the true context, purposes, interpretation and incidents of
a constitutional system are much harder to locate, and are often extremely detailed
and descriptive. This series seeks to provide scholars and students with accessible
introductions to the constitutional systems of the world, supplying both a road map
for the novice and, at the same time, a deeper understanding of the key historical,
political and legal events which have shaped the constitutional landscape of each
country. Each book in this series deals with a single country, or a group of countries
with a common constitutional history, and each author is an expert in their field.
Published volumes
The Constitution of the United Kingdom; The Constitution of the United States;
The Constitution of Vietnam; The Constitution of South Africa; The Constitution of Japan;
The Constitution of Germany; The Constitution of Finland; The Constitution of Australia;
The Constitution of the Republic of Austria; The Constitution of the Russian Federation;
The Constitutional System of Thailand; The Constitution of Malaysia; The Constitution
of China; The Constitution of Indonesia; The Constitution of France; The Constitution
of Spain; The Constitution of Mexico; The Constitution of Israel; The Constitutional Systems
of the Commonwealth Caribbean; The Constitution of Canada; The Constitution of Singapore;
The Constitution of Belgium; The Constitution of Taiwan; The Constitution of Romania
Link to series website

http://www.hartpub.co.uk/series/csw
The Constitution of the
United Kingdom
A Contextual Analysis
Third Edition
Peter Leyland
OXFORD AND PORTLAND, OREGON

2016
Hart Publishing
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First published 2016
© Peter Leyland
Peter Leyland has asserted his right under the Copyright, Designs and Patents Act 1988
to be identified as Author of this work.
All rights reserved. No part of this publication may be reproduced or transmitted in any form
or by any means, electronic or mechanical, including photocopying, recording, or any information
storage or retrieval system, without prior permission in writing from the publishers.
While every care has been taken to ensure the accuracy of this work, no responsibility for loss
or damage occasioned to any person acting or refraining from action as a result of any
statement in it can be accepted by the authors, editors or publishers.
Crown copyright material is reproduced with the permission of the Controller of HMSO and
the Queen’s Printer for Scotland. Any European material reproduced from EUR-lex, the official
European Communities legislation website, is European Communities copyright.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library.
ISBN: PB: 978-1-84946-907-4

ePDF: 978-1-84946-909-8
ePub: 978-1-84946-908-1
Library of Congress Cataloging-in-Publication Data

Names: Leyland, Peter, lecturer in law, author.
Title: The constitution of the United Kingdom : a contextual analysis / Peter Leyland.
Description: Third edition. | Portland, Oregon : Hart Publishing, 2016. | Series: Constitutional systems
of the world | Includes bibliographical references and index.
Identifiers: LCCN 2016001021 (print) | LCCN 2016001591 (ebook) |
ISBN 9781849469074 (pbk. : alk. paper) | ISBN 9781849469081 (Epub)
Subjects: LCSH: Constitutional law—Great Britain.
Classification: LCC KD3989.L49 2016 (print) | LCC KD3989 (ebook) |
DDC 342.41—dc23
LC record available at http://lccn.loc.gov/2016001021
Typeset by Compuscript Ltd, Shannon
Preface to the Third Edition
This edition of the Constitution of the UK : A Contextual Analysis has
been thoroughly updated to address the main constitutional develop-
ments since 2012. These include: the referendum in 2014 on Scottish
Independence, the subsequent changes to Scottish devolution, modifi-
cations to the voting system at Westminster referred to as EVEL, new
initiatives in local government, and the implications of significant case
law in the area of judicial review and human rights.
Once again, I am deeply grateful to many colleagues and friends for
their help and support. Special thanks to my fellow editors Andrew
Harding, Ben Berger, Grégoire Webber and Rosalind Dixon. I would
also like to mention Gordon Anthony, Nicholas Bamforth, Nicola
Lupo, Sandro Torre and Sebastian Payne. At Hart Publishing thanks go
to Bill Asquith, Tom Adams and Mel Hamill.
Finally, I would like to warmly congratulate Putachad for producing
another brilliant cover.
Peter Leyland
2 March 2016
vi
Contents
Preface to the Third Edition��v
Table of Cases��xiii
Table of Legislation�� xvii
1. UK CONSTITUTION: CONTEXT AND HISTORY��1

PART I: CONSTITUTIONAL CONTEXTS��1
Introduction��1
What is Liberal Democracy?��2
Freedom of Expression and the Broadcasting
and Print Media��4
Phone Hacking, Media Influence
and Constitutional Oversight��8
The UK Constitution, Constitutionalism
and Good Governance��11
PART II: HISTORY��14
The Importance of History��14
Qualifying Absolute Monarchy��14
The Emergence of Parliament and the
Path to Democracy��17
Defining the Nation: What is the United Kingdom?��19
Empire, Commonwealth and Europe��21
Conclusion��23
Further Reading��23
2. THE SOURCES OF THE CONSTITUTION��25
Introduction��25
PART I: SOURCES OF THE CONSTITUTION��26
Statute Law��26
The Common Law��27
European Union Law��28
European Convention on Human Rights��30
Legal Treatises��31
The Law and Customs of Parliament��32
The Royal Prerogative��32
viii Contents
PART II: CONSTITUTIONAL CONVENTIONS��32

Defining Conventions��33
The Practical Importance of
Constitutional Conventions��37
Conclusion��42
3. CONSTITUTIONAL PRINCIPLES��45
Parliamentary Sovereignty��47
The Rule of Law��65
Separation of Powers��71
Conclusion: Redefinitions of Power��81
4. THE CROWN AND THE CONSTITUTION��85
What is the Royal Prerogative?��87
The Constitutional Role of the Monarch��90
Does the Monarch Retain Real Power?��95
What is the ‘Crown’?��96
Public Interest Immunity��97
Liability of the Crown in Tort and Contract��98
Evaluation: Reform or Abolition?��99
Conclusion�� 101
Further Reading�� 102
5. PARLIAMENT�� 105
Introduction�� 105
PART I: ELECTIONS AND THE HOUSE
OF COMMONS�� 108
The Electoral System�� 108
Alternatives to First Past the Post?�� 111
Electronic Voting�� 113
The House of Commons and the Formation
of a Government�� 113
PART II: THE HOUSE OF COMMONS�� 115
The House of Commons and the Role of MPs�� 115
The Speaker�� 117
Government and Opposition�� 118
Contents ix
Parliamentary Privilege�� 119

Parliamentary Standards, the Conduct of
MPs and the Expenses Scandal�� 120
PART III: THE HOUSE OF LORDS�� 125
Introduction and History�� 125
Composition of the House of Lords�� 127
House of Lords: What Next?�� 129
PART IV: PARLIAMENT AS LEGISLATOR�� 133
Public Bills�� 134
Private Members’ Bills and Private Bills�� 139
Parliamentary Scrutiny of Delegated Legislation�� 139
PART V: PARLIAMENT AS WATCHDOG�� 140
Parliamentary Questions�� 140
Departmental Select Committees�� 141
Public Accounts Committee and the
National Audit Office�� 149
The Parliamentary Ombudsman�� 152
6. GOVERNMENT AND EXECUTIVE�� 157
The Prime Minister�� 158
The Prime Minister and the Cabinet�� 160
The Prime Minister: Policy Formation
and Implementation�� 163
Prime Minister’s Press Office and Government ‘Spin’�� 167
Shaping Government Departments�� 168
Political Accountability and Individual
Ministerial Responsibility�� 171
Ministerial Responsibility: Answerability
or Resignation?�� 172
Codes of Practice and the Scott Report�� 173
Ministerial Responsibility and the Press�� 175
The Civil Service�� 176
New Public Management and Executive Accountability�� 178
The Constitutional Reform and
Governance Act 2010�� 182
x Contents
Government Openness and the Freedom of

Information Act 2000�� 183
E-Government Revolution�� 186
7. THE CONSTITUTIONAL ROLE OF
THE COURTS�� 191
PART I: SURVEYING THE CONSTITUTIONAL
ROLE OF THE COURTS�� 191
Common Law and Statutory Interpretation�� 192
Reforming the Office of Lord Chancellor�� 196
Appointing and Dismissing Judges�� 198
A Supreme Court for the United Kingdom�� 201
PART II: ADMINISTRATIVE LAW AND
JUDICIAL REVIEW�� 203
Introduction to Administrative Law�� 203
Red Light and Green Light Theory�� 205
The Impact of Judicial Review�� 211
Distinguishing Public Law from Private Law�� 213
The Requirements of Standing�� 214
Grounds of Judicial Review�� 215
The Question of Merits�� 218
Judicial Review Cases�� 219
PART III: THE CONSTITUTIONAL
PROTECTION OF RIGHTS AND
THE HUMAN RIGHTS ACT 1998�� 222
Vertical or Horizontal Effect�� 225
Proportionality Review�� 226
Replacing the HRA with a British Bill of Rights?�� 236
8. DEVOLUTION AND LOCAL GOVERNANCE�� 243
PART I: DEVOLUTION�� 246
Background to Devolution�� 246
Scottish Devolution�� 247
Welsh Devolution�� 255
Contents xi
Power-Sharing in Northern Ireland�� 258

Funding Devolution�� 262
Intergovernmental Relations�� 263
The Politics of Devolved Government�� 264
Relations with Europe�� 267
Devolution and the Courts�� 268
PART II: DEVOLUTION AND ENGLAND�� 273
Addressing the West Lothian Question�� 274
Devolution and Parliamentary Reform�� 276
PART III: LOCAL GOVERNMENT�� 279
Introduction to Local Government
in the United Kingdom�� 279
From London to Manchester: The Consolidation
of Citywide Government?�� 280
The Framework of Local Government�� 283
The Financing of Local Government�� 285
From Compulsory Competitive Tendering
to Best Value�� 287
Local Government, Citizen Participation
and the Big Society�� 288
Accountability Mechanisms�� 291
The Prospects for Local Government�� 292
9. CONCLUSION: THE UK CONSTITUTION:
FACING THE FUTURE�� 297
UK Membership of the EU�� 298
The Dynamics of Devolution�� 300
Constitutional Protection of Citizen Rights�� 301
The Case for a Codified Constitution?�� 302
Index�� 309
xii
Table of Cases
Court of Justice of the European Union
Amministrazione della Finanze dello Stato v Simmenthal

SpA (Case 106/77) [1978] ECR 629�� 53
R v Secretary of State for Transport, ex parte Factortame
Ltd (Case C-213/89) [1990] ECR I-2433�� 54
Van Gend en Loos (Case 26/62) [1963] ECR 1�� 28, 52
European Court of Human Rights
Hirst v United Kingdom (No 2), App no 74025/01,

6 October 2005�� 237
Lawless v Ireland (No 3) (1961) 1 EHRR 15�� 234
United Kingdom
A v Secretary of State for the Home Department

[2004] UKHL 56��233, 234
Anderson, Reid and Doherty v Scottish Ministers
[2001] UKPC D5, [2002] HRLR 6�� 270
Anisminic v Foreign Compensation Commission
[1969] 2 AC 147�� 217
Associated Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223�� 206, 207, 216,
218, 219, 226
Aston Cantlow and Wilmcote with Billesley Parochial Church
Council v Wallbank [2003] UKHL 37�� 214
Attorney-General v De Keyser’s Royal Hotel
Ltd [1920] AC 508�� 88, 89
Attorney-General v Guardian Newspapers Ltd
(No 2) [1990] 1 AC 109�� 184
Attorney-General v Jonathan Cape Ltd [1976] QB 752�� 34
Axa General Insurance Ltd v Lord Advocate
[2011] UKSC 46��271–73
Barrett v Enfield BC [2001] 2 AC 550�� 99
Begum case. See R (on the application of SB) v Head Teacher
and Governors of Denbigh High School
Belmarsh case. See A v Secretary of State for the Home Department
Bradlaugh v Gossett (1884) 12 QBD 271�� 120
British Railways Board v Pickin [1974] AC 765�� 49
xiv Table of Cases
Bromley v Greater London Council [1983] 1 AC 768�� 219

Bulmer v Bollinger [1974] 2 All ER 1226�� 28, 52
Burmah Oil Co Ltd v Lord Advocate [1965] AC 75�� 28, 68
Campbell v Mirror Group Newspapers Ltd [2004] 2 WLR 1232�� 226
Case of Proclamations (1611) 12 Co Rep 74�� 86
Conway v Rimmer [1968] AC 910�� 97
Corporate Officer of the House of Commons v Information
Commissioner [2008] EWHC 1084 (Admin), [2008] WLR (D) 155��5
Council of Civil Service Unions v Minister for the
Civil Service [1985] AC 374�� 89, 90,
216, 218
Credit Suisse v Allerdale BC [1997] QB 306�� 288
Darnel’s case (1627) 3 State Trials 36�� 16
Douglas v Hello! Ltd [2001] 2 WLR 992�� 226
Duncan v Cammell Laird and Co Ltd [1942] AC 624�� 97
Duport Steels Ltd v Sirs [1980] 1 WLR 142, HL�� 78
Ellen Street Estates v Minister of Health [1934] 1 KB 590�� 51
Entick v Carrington (1765) 19 State Tr 1029�� 27, 66
Five Knights’ case. See Darnel’s case
Garland v British Rail Engineering Ltd [1983] 2 AC 751�� 195
GCHQ case. See Council of Civil Service Unions v Minister for
the Civil Service
Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 3 All ER 411�� 224
H v Lord Advocate [2012] UKSC 24�� 26
Hazell v Hammersmith and Fulham LBC [1992] 2 AC 1�� 288
Heather v Leonard Cheshire Foundation and HM
Attorney-General [2001] EWHC Admin 429��225, 226
Imperial Tobacco v Lord Advocate [2012] UKSC 61�� 271
Inland Revenue Commissioners v National Federation of
Self-Employed and Small Businesses Ltd [1982] AC 617�� 214
Jackson v Attorney-General [2005] UKHL 56,
[2006] 1 AC 262�� 48, 49, 62, 65,
126, 137, 194
Liversidge v Anderson [1942] AC 206�� 68
Lord Chancellor’s Practice Direction [1966] 1 WLR 1234�� 193
M v Home Office [1994] 1 AC 377��27, 77, 220
Manchester City Council v Pinnock [2010] UKSC 45�� 239
Martin v HM Advocate [2010] UKSC 10�� 270
Nottingham City Council v Secretary of State for the
Environment [1986] AC 240�� 219
O’Reilly v Mackman [1983] 2 AC 237�� 213
Padfield v Minister for Agriculture, Fisheries and
Food [1968] AC 997�� 217
Pepper v Hart [1993] 1 All ER 42�� 193
Table of Cases xv
Porter v Magill [2001] UKHL 67, [2002] 1 All ER 465�� 291

Prohibitions del Roy (1607) 77 ER 1342, 12 Co Rep 63�� 38, 74
R v A (No 2) [2002] 1 AC 45�� 224
R v British Broadcasting Corporation, ex parte Prolife
Alliance [2003] UKHL 23, [2003] 2 WLR 1403�� 229
R v Chaytor [2010] UKSC 52�� 124
R v Chief Constable of West Midlands Police, ex parte
Wiley [1995] 1 AC 274�� 97
R v Disciplinary Committee of the Jockey Club, ex parte
Aga Khan [1993] 2 All ER 853�� 214
R v Lord Chancellor, ex parte Witham [1997] 2 All ER 77�� 220
R v North and East Devon Heath Authority, ex parte
Coughlan [2000] 2 WLR 622 �� 221
R v Panel on Takeovers and Mergers, ex parte Datafin
[1987] 1 All ER 564�� 213
R v Secretary of State for Employment, ex parte Equal
Opportunities Commission [1995] 1 AC 1�� 54
R v Secretary of State for Foreign Affairs, ex parte World
Development Movement Ltd [1995] 1 WLR 386��215, 220
R v Secretary of State for Social Services, ex parte Child
Poverty Action Group [1990] 2 QB 540�� 215
R v Secretary of State for the Environment, ex parte
Rose Theatre Trust Co [1990] 1 QB 504�� 215
R v Secretary of State for the Home Department,
ex parte Brind [1991] 1 AC 696�� 68
ex parte Cheblak [1991] 1 WLR 890�� 80
ex parte Daly [2001] 3 All ER 433�� 227
R v Secretary of State for the Home Department, ex parte
Fire Brigades Union [1995] 2 All ER 244��89, 221
R v Secretary of State for the Home Department, ex parte
Northumbria Police Authority [1989] QB 96�� 89
R v Secretary of State for Transport, ex parte Factortame
(No 2) [1991] 1 AC 603, [1991] 3 CMLR 769��53, 195
R v Shayler [2002] UKHL 11�� 229
R (on the application of Bradley) v Secretary of State for
Work and Pensions [2009] QB 114��152, 153
R (on the application of Cart) v Upper Tribunal
[2011] UKSC 28�� 210
R (on the application of Chester) v Secretary of State for Justice and
McGeoch v Lord President of the Council [2013] UKSC 63�� 237
R (on the application of Equitable Members Action Group) v
HM Treasury [2009] EWHC 2495 (Admin)�� 153
xvi Table of Cases
R (on the application of Evans) v Attorney-General

[2015] UKSC 21�� 94
R (on the application of Mohamed) v Secretary of State for
Foreign Affairs [2010] EWCA Civ 65�� 98
R (on the application of Q) v Secretary of State for the
Home Department [2003] EWHC 195 Admin,
The Times, 20 February 2003�� 79
R (on the application of the Prolife Alliance) v British
Broadcasting Corporation [2002] 2 All ER 756, CA�� 227, 229, 236
R (on the application of Rogers) v Swindon NHS Primary Care
Trust and Secretary of State for Health [2006] EWCA Civ 392�� 233
R (on the application of SB) v Head Teacher and Governors
of Denbigh High School [2005] EWCA Civ 199,
[2005] 2 All ER 396; [2006] UKHL 15�� 231, 232, 236
R (on the application of South Wales Sea Fisheries) v
National Assembly for Wales [2001] EWHC
Admin 1162, [2002] RVR 134�� 271
R (on the application of Ullah) v Special Adjudicator
[2004] UKHL 26�� 238
Ridge v Baldwin [1964] AC 40�� 217
Roberts v Hopwood [1925] AC 578�� 218
Robinson v Secretary of State for Northern Ireland
[2002] UKHL 32��271, 272
Roy v Kensington and Chelsea and Westminster
Family Practitioner Committee [1992] 1 AC 624�� 213
Starrs and Chalmers v Procurator Fiscal, Linlithgow
[2000] HRLR 191�� 270
Stockdale v Hansard (1839) 9 Ad & El 1�� 120
Thoburn v Sunderland City Council [2003] QB 151,
[2002] 3 WLR 247�� 26, 55
Wednesbury case, See Associated Provincial Picture
Houses Ltd v Wednesbury Corporation
X (Minors) v Bedfordshire CC [1995] 2 AC 633�� 99
YL v Birmingham City Council [2007] UKHL 27��225, 226
United States
Brown v Board of Education of Topeka 347 US 483 (1954)�� 194

Bush v Gore 531 US 98 (2000)��194, 199
Marbury v Madison (1803) 1 Cranch 137,
5 US 137 (1803)��50, 194
US v Nixon 418 US 683 (1974)�� 72
Table of Legislation
European
European Constitution�� 29
European Convention on Human Rights�� 3, 25, 27, 30, 31, 45, 50,
57, 67, 192, 195, 196, 223,
225–28, 236–40, 270, 302
Art 2��227, 233
Art 3��79, 227
Art 4(1)�� 227
(2)�� 227
(3)�� 227
Art 5��227, 234, 235, 270
Art 6�� 76, 210, 270
Art 7�� 227
Art 8�� 79, 225, 228
Arts 8–11�� 227
Art 9�� 231
Art 10�� 4, 230
(2)�� 229
Art 14�� 235
Art 15�� 234
Art 46�� 237
Protocol 1�� 227
Treaty of Amsterdam��28, 298
Treaty of Lisbon 2007��28–30, 52, 56, 57,
298, 299
Treaty of Maastricht (Treaty on European Union) (TEU)�� 28, 116, 135,
244, 298
Art 3B�� 244
Art 4.3�� 53
Art 5.3�� 244
Art 5.4�� 244
Treaty of Nice��28, 298
Treaty of Rome 1957��22, 27, 28, 52, 53
Art 5�� 53
Art 119�� 54
Treaty on the Functioning of the European Union (TFEU)
Art 48(6)�� 56
Art 157�� 54
xviii Table of Legislation
France
Constitution
Art 2�� 232
Loi no 2002-228 of 15 March 2004�� 232
Ireland
Constitution 1937�� 21
Italy
Constitution 1948
Art 104�� 199
Art 138�� 62
Law 59/97�� 170
South Africa
Constitution 1996��2
United Kingdom
Primary Legislation
Acquisition of Land Act 1919�� 51

s 7(1)�� 51
Act of 1543�� 19
Act of Settlement 1701�� 17, 26, 41, 46,
74, 77, 201
Act of Union 1536��19, 247
Act of Union 1707��20, 27, 55,
246, 255
Act of Union 1800��20, 21, 27
Anti-Terrorism, Crime and Security Act 2001��55, 233, 234, 236
Appellate Jurisdiction Act 1876�� 129
Audit Commission Act 1998�� 291
Bill of Rights 1689�� 17, 19, 26, 40, 41, 45, 55,
63, 73, 94, 106, 119, 195
Art I�� 17
Art IV�� 17
Art VI�� 17
Art IX��49, 106, 119, 124
British Railways Act 1968�� 49
Broadcasting Act 1990��9
Broadcasting Act 1996
s 3(3)��9
Table of Legislation xix
Communications Act 2003�� 6, 187

s 319��7
s 320��7
Constitutional Reform Act 2005�� 41, 46, 75, 76, 81, 129,
191, 197, 200–03
Pt 3�� 201
s 3�� 197
s 18�� 198
s 26�� 202
s 27�� 202
s 40��249, 270
Sch 9�� 249
Constitutional Reform and Governance Act 2010�� 39, 174, 176,
182, 183
Pt 1�� 90
Pt 2�� 90
s 3�� 182
s 5�� 182
s 6�� 182
s 7(4)�� 182
s 8�� 182
Criminal Justice Act 1988
s 171�� 89
Criminal Justice and Public Order Act 1994�� 67
Crown Proceedings Act 1947
s 1�� 98
s 2�� 98
s 28�� 97
Damages (Asbestos-related Conditions) (Scotland) Act 2009�� 272
Data Protection Act 1998�� 187
Defence Act 1842�� 89
Deregulation and Contracting Out Act 1994�� 80, 139, 195
Education Act 1944�� 279
Employment Act 1980�� 79
Employment Protection (Consolidation) Act 1978�� 176
Environmental Protection Act 1990
s 159�� 96
Equal Pay Act 1970�� 176
European Communities Act (ECA) 1972�� 27, 28, 45, 52,
54, 57, 195
s 2�� 195
(1)�� 54, 57
(2)��54, 267
s 3��54, 195
xx Table of Legislation
European Parliamentary Elections Act 1999�� 63

European Union Act 2011�� 29, 30, 55–57,
62, 300
s 2�� 56
(3)(a)�� 56
s 3�� 56
s 4�� 56
s 5�� 56
s 6�� 56
s 18�� 57
European Union (Amendment) Act 2008�� 29, 52
Federation of Malaya Independence Act 1947�� 21
Fixed Term Parliaments Act 2011��39, 92, 160
Freedom of Information Act 2000�� 5, 82, 98, 123, 146, 157,
163, 177, 183–86, 188
Pt II��98, 184
s 1�� 184
s 23�� 184
s 24�� 184
s 26�� 184
s 50��5
s 53�� 185
Freedom of Information (Scotland) Act 2002
s 30�� 266
Government of Ireland Act 1914�� 63
Government of Ireland Act 1920��20, 259
Government of Wales Act 1998��27, 55, 202, 246, 255,
256, 269, 271
ss 3–7�� 255
s 22(2)�� 256
ss 64–68�� 255
Sch 2�� 256
Government of Wales Act 2006�� 255, 257, 258, 271, 300
s 93�� 257
s 94�� 257
s 95�� 271
s 108(4)�� 271
(5)�� 271
ss 110–115�� 258
s 114(2)�� 258
Sch 7�� 258
Greater London Authority Act 1999�� 280
s 154�� 282
s 155�� 282
Sch 23�� 282
Table of Legislation xxi
Greater London Authority Act 2007�� 281

Pt VI�� 281
Health and Social Care Act 2008
s 145�� 226
Health and Social Care Act 2012�� 153
House of Lords Act 1999��128, 129
Housing Act 1925�� 51
Housing Act 1985�� 279
Pt III�� 279
House of Lords Act 1999�� 63
Human Rights Act (HRA) 1998�� 3, 4, 25, 27, 30, 45, 50, 55,
57, 58, 67, 76, 79, 81, 82,
192, 195, 196, 205, 210, 214,
215, 218, 222–41, 270,
297, 301–03, 305
s 2��238, 239
s 3��223, 224, 226, 238
(1)�� 224
s 4�� 224, 235, 238
s 6�� 226, 231, 236
(2)�� 225
(3)(b)�� 225
s 7�� 215
s 19�� 225
Hunting Act 2004��49, 63, 137
Identity Cards Act 2006�� 138
Indian Independence Act 1947�� 21
Intelligence Services Act 1994�� 163
Interpretation Act 1978�� 193
Irish Free State (Agreement) Act 1922�� 21
Legal Aid, Sentencing and Punishment of Offenders Act 2012��69, 222
Legislative and Regulatory Reform Act 2006�� 194
Life Peerage Act 1958��63, 128
Local Government Act 1888�� 279
Local Government Act 1972�� 279, 283, 284
s 101�� 285
s 137�� 289
s 151�� 291
Local Government Act 1974
Pt III�� 291
Local Government Act 1985��279, 284
s 2�� 287
xxii Table of Legislation

s 13(1)�� 284
Pt II�� 286
s 3�� 287
s 6�� 287
Local Government Act 2000��61, 285
Pt I�� 288
Pt II�� 289
Pt III�� 291
s 2�� 288
s 3�� 288
s 4�� 289
s 8�� 289
s 11�� 289
s 12�� 289
s 21�� 289
s 34�� 61
ss 34–36�� 289
Local Government Devolution Act 2015�� 293
Local Government Finance Act 1982�� 291
Local Government Finance Act 1992�� 285
Local Government (Scotland) Act 1994�� 284
Local Government (Wales) Act 1994�� 284
Localism Act 2011��61, 62, 279, 282, 290–93
s 1�� 291
s 21�� 62
s 53(3)�� 62
s 72�� 62
Sch 2�� 62
Magna Carta 1215��14, 15, 55, 73, 86, 222, 301
Art 39��15, 222
Mental Health (Public Safety and Appeals) (Scotland) Act 1999
s 1�� 270
Merchant Shipping Act 1988�� 53
Pt II�� 54
s 14�� 53
Metropolis Management Act 1855�� 218
Ministers of the Crown Act 1975�� 169
Municipal Corporation Act 1835�� 279
National Audit Act 1983�� 150
National Health Service and Community Care Act 1990
s 60�� 96
Table of Legislation xxiii
Nationality, Immigration and Asylum Act 2002�� 79

s 55�� 79
Nigeria Independence Act 1960�� 51
Northern Ireland Act 1998�� 27, 202, 246, 258–60,
269, 272
Pt II�� 260
s 5(2)�� 260
(6)�� 260
s 16(8)�� 272
s 68�� 259
s 73�� 259
Northern Ireland (Elections) Act 1998
s 1�� 260
Northern Ireland (St Andrews Agreement) Act 2006�� 261
Official Secrets Act 1911��176, 183
s 2�� 183
Official Secrets Act (OSA) 1989��176, 183, 222, 229
s 1�� 229
s 4�� 229
Overseas Development and Co-operation Act 1980
s 1�� 220
Parliament Act 1911�� 19, 27, 36, 39–42, 59, 63–65,
92, 126, 128, 137, 138, 159, 160
s 2�� 64
(1)�� 63
Parliament Act 1949��19, 41, 63–65, 126, 137, 138
Parliament Recognition Act 1689�� 17
Parliamentary and Health Services Commissioners Act 1987�� 152
Parliamentary Commissioner Act 1967�� 152
Sch 1�� 152
Sch 2�� 152
Parliamentary Standards Act 2009�� 123
Petition of Right 1628��15, 16, 26
Police and Criminal Evidence Act 1984�� 25
Political Parties, Elections and Referendums Act 2000�� 109
Prevention of Terrorism Act 2005�� 236
Prison Act 1952
s 47(2)�� 227
Public Order Act 1986�� 222
Race Relations Act 1976�� 176
Recall of MPs Act 2015
s 1�� 124
Reform Act 1832�� 18, 55
Reform Act 1867��18, 31, 55
xxiv Table of Legislation
Reform Act 1883�� 18, 55

Reform Act 1884�� 18, 55
Regional Assemblies (Preparations) Act 2003
s 1�� 61
Rent Act 1977
Sch 1�� 224
Representation of the People Act 1918�� 27
Republic of Ireland Act 1948�� 21
Scotland Act 1979�� 60
Scotland Act 1998��27, 55, 202, 246, 248, 250, 251,
253, 256, 258, 269, 270
Pt IV�� 251
ss 5–8�� 249
s 28�� 50
ss 28–39�� 250
s 29�� 272
(2)(b)�� 248
(d)�� 239
s 44�� 270
s 45�� 249
s 46�� 249
s 98�� 249
Sch 5�� 248
Sch 6�� 249
Scotland Act 2012�� 251
Scotland Act 2016��244, 248
Security Services Act 1989
s 3�� 66
Senior Courts Act 1981��213, 220
s 31(3)�� 214
Sex Discrimination Act 1975�� 176
Sexual Offences (Amendment) Act 2000�� 63
Statute of Westminster 1931�� 21
Supreme Court Act 1981. See Senior Courts Act 1981
Town and Country Planning Act 1971�� 288
Trade Union and Labour Relations Act 1974�� 78
Transport Act 2000
ss 163–77�� 282
Transport (London) Act 1969�� 219
Treaty of Union 1707�� 20
Tribunals Courts and Enforcement Act 2007�� 210
Wales Act 1979�� 60
Wales Act 2014�� 258
War Crimes Act 1991�� 63
Table of Legislation xxv
War Damages Act 1965�� 28, 68

Welsh Church Act 1914�� 63
Youth Justice and Criminal Evidence Act 1999�� 224
Zimbabwe Act 1979�� 22
Secondary Legislation
Civil Procedure Rules (SI 1998/3132)

Pt 54�� 213
Defence of the Realm Regulations�� 88
Rules of the Supreme Court (SI 1965/1776)
Ord 53�� 213
South Wales Sea Fisheries (Variation) Order 2001 (SI 2001/1338)�� 271
United States
Constitution��14, 74, 142, 199, 236

Art II, s 2�� 199
Patriot Act 2001�� 236
xxvi
1
UK Constitution
Context and History

Democracy – Freedom of Expression – Mass Media –
Constitutionalism – Good Governance – History – Monarchy –
Parliament – United Kingdom – Empire – Commonwealth –
Europe
PART I: CONSTITUTIONAL CONTEXTS
INTRODUCTION
O UR DISCUSSION BEGINS by explaining why the u nwritten

UK constitution is unusual. In general the constitution is the
text that sets out the fundamental and superior law of the
nation. It not only describes the main institutions of the state, but also
provides a framework of basic rules that determine the relationship
between these institutions. In addition, it will usually provide in outline
the legal and non-legal rules and procedures that define the system of
central and local government. At the same time, the constitution nor-
mally places limits on the exercise of power and sets out the rights and
duties of individual citizens. Tom Paine explained that it is the property
of a nation, and not of those who exercise the government: ‘A constitu-
tion is a thing antecedent to the government, and always distinct there
from.’1 In nearly every other state the term constitution refers to this
document (or series of documents) that contains this fundamental and
1 T Paine, Rights of Man [1791] (London, Penguin, 1969) 213.

2 UK Constitution
superior law of the nation. The constitution of the United Kingdom is

unwritten/uncodified in the sense that it is not contained in any single
document. Furthermore, a codified constitution, as a form of higher
order law, will generally be entrenched. A specified procedural device
(eg a referendum or a higher majority plus federal ratification) must
be followed to introduce changes, which makes a codified constitution
relatively difficult to amend. In contrast to most others, the UK consti-
tution is not entrenched. In consequence, it is relatively flexible, in the
sense that any aspect can be changed by way of ordinary legislation and
certain aspects can be modified by convention (discussed in Chapter 2).
The next point to stress is that constitutions will often be designed
to deliver a particular system of government, and, at the same time,
respond to prevailing local conditions. The founding fathers who
drafted the constitution of the United States were keen to include strong
institutional inhibitions on the exercise of anything approximating to
kingly powers, while also creating a federation with a territorial divi-
sion of authority between central government and State governments.
On the other hand, the Soviet constitutions in Russia under Lenin and
Stalin following the revolution in 1917 were conceived to deliver an
ideological commitment to a socialist state of workers and peasants.
The capitalist system of economics and individual property is expressly
rejected in the text of these constitutions. We might compare the South
African constitution, which followed a protracted struggle to overturn
a previous regime based on apartheid. The 1996 constitution seeks to
achieve reconciliation between ethnic groups, and it is intended to create
a democratic state committed to non-racialism and non-sexism and to
the advancement of human rights and freedoms and the achievement
of equality. The United Kingdom lacks a written constitution which
has been custom-built to achieve particular goals, but rather the nation
has acquired in piecemeal fashion over the span of several centuries a
constitution which supports a liberal democratic system of government.
WHAT IS LIBERAL DEMOCRACY?
Next, we need to be clear about what is meant by liberal democracy.2 In

setting out a model of democracy Professor Sunstein has explained
2 For further discussion see J Morison, ‘Models of Democracy: From Represen-
tation to Participation’ in J Jowell and D Oliver (eds), The Changing Constitution, 5th
edn (Oxford, Oxford University Press, 2005).
Constitutional Contexts 3
that ‘the central goal of a constitution is to create the preconditions

for a well functioning democratic order, one in which citizens are
genuinely able to govern themselves,’3 and he advocates a form of
deliberative democracy which is marked out by political account-
ability and a high degree of reflectiveness and a general commitment
to reason giving. More commonly, this term liberal democracy refers to
the fact that power and legitimacy are reached through the indirect
consent of the population as a whole. The consent to be governed is
achieved after an electoral process delivers representatives to a Parlia-
ment. The majority in Parliament vote for laws which, to some extent
at least, reflect the will of the majority. However, when looking at
constitutional systems, it would be a mistake to believe that a system
of majority rule, in itself, satisfies the credentials of liberal democracy.
This is because, while it may be accepted that in some matters the will
of the majority should prevail, in regard to others, a crucial feature of
‘liberal democracy’ is that there are limitations on majority rule. For
example, the interests of minorities must always be protected to some
degree. In practical terms, this means that political parties may offer
policy choices to the electorate regarding say, higher or lower levels of
taxation, the role of the public sector, and particular policies to pursue
in education, health, social services, and law and order. However, the
constitutional arrangements in a liberal democratic system must pre-
vent the tyranny of the majority from prevailing by establishing strong
constitutional guarantees. This is normally achieved in the field of civil
liberties by means of a charter or bill of rights, which will set out the
extent of rights which will be protected (eg freedom of speech and
religion, freedom to demonstrate, freedom from arbitrary arrest, and
so on). However, the United Kingdom with its uncodified constitution
relied on ordinary laws, and a tradition of restraint demonstrated by
the executive organs of the state, until the Human Rights Act (HRA)
1998 incorporated the European Convention on Human Rights into
domestic law.
3 C Sunstein, Designing Democracy: What Constitutions Do (Oxford, Oxford Univer-
sity Press, 2001) 6.

4 UK Constitution
FREEDOM OF EXPRESSION AND THE BROADCASTING

AND PRINT MEDIA
A key hallmark of liberal democratic systems is the recognition of

basic freedoms and, in particular, freedom of expression. It is worth
briefly pausing to see how the role of press and broadcasting media
operates and is regulated under the UK constitution. First, as we just
noted, this right to free expression, included under Article 10 of the
European Convention on Human Rights, has become integrated as
part of domestic law since the enactment of the HRA 1998 (which is
discussed in Chapter 7). Although this freedom might be limited under
specific laws (eg incitement to racial hatred, or defamation) freedom of
expression must allow for a general right to project opinions through
the publication of newspapers, pamphlets, and magazines and through
access to television, radio, and cinema. The magnification of the politi-
cal function of the media might be understood in terms of its ‘capacity
to discover and publish what authority wished to keep quiet, and to give
expression to public feelings which were not, or could not be, articu-
lated by the formal mechanisms of democracy.’4 It was this potential
which turned the broadcasting media into major actors on the public
scene. Politicians employ the mass media to further their ends, but they
are also extremely wary of the capacity of the press and broadcasting
media to bring the mighty down by rooting out incompetence and
wrongdoing. The demise of Richard Nixon as President of the United
States, following the exposure of the Watergate break-in, and its cover-
up, is a classic example of investigatory reporting providing the basis
for subsequent official action, eventually resulting in the President’s
resignation. Ministerial resignations in recent years have been attribut-
able in part at least, to campaigns pursued in the press and broadcasting
media.5
In an investigatory capacity the media go beyond providing read-
ers, listeners and viewers with information and the range of ideas and
opinions which enables them to participate in a political democracy by
performing a vital role as public watchdog.6 The scandal in 2009 which
4 E Hobsbawn, The Age of Extremes (London, Abacus, 1994) 581.

5 One such example was the resignation of the Secretary of State for Transport,
Stephen Byers, in May 2002.
6 E Barendt, Freedom of Speech, 2nd edn (Oxford, Oxford University Press, 2007) 418.
erupted over the excessive and in some cases fraudulent expenses

claimed by MPs can be cited as a high-profile example at the core of
the political system.7 The disclosure of these abuses was triggered by
journalists from the Sunday Times (Heather Brooke and Jon Ungoed-
Thomas) and Sunday Telegraph (Ben Leapman) making use of the Free-
dom of Information Act 2000. They had requested further information
on MPs’ expenses, including the disclosure of claim forms and support-
ing documents. These applications had been refused. They followed
the procedure under section 50 to refer the matter to the Information
Commissioner and then to the Information Tribunal. Both decided
that a fuller breakdown of the expenses should be provided. On final
appeal to the High Court it was confirmed that a correct balance had
been reached between the privacy of MPs and the legitimate public
interest in the disclosure of this information, given the deep flaws in the
additional costs allowance system for MPs which had been identified.8
Not only did this reporting result in a revision of the system for claim-
ing expenses but also a number of MPs and peers were successfully
prosecuted for fraudulent claims. In other words, in a positive way the
media is capable of acting as an important counterweight to politicians/
government in a system where, as we shall see, the executive organs of
the state are strong. (For further discussion of this scandal in relation
to Parliament, see Chapter 5.)
This capacity of the media to act as a check on the democratic process
is clearly very important. The experience in Italy in the first decade of
this century draws attention to the potential problems if the indepen-
dence of the broadcasting media is undermined: ‘In a country resting
on universal suffrage, … the corruption of information—through the
overwhelming control of the media, especially television, both private
and state—is a pre-condition for the debasement of democracy.’9 The
Italian state institutions operating under the constitution were not able
adequately to withstand the conflicts of interest that arose with the elec-
tion of a Prime Minister who was not only in a position as the owner
of national TV channels to manipulate opinion in his favour, but also,
7 P Leyland, ‘Freedom of Information and the 2009 Parliamentary Expenses
scandal’ [2009] PL 675.

8 Corporate Officer of the House of Commons v Information Commissioner and others
[2008] EWHC 1084 (Admin); [2008] WLR (D) 155.

9 M Jacques, ‘The Most Dangerous Man in Europe’, The Guardian 5 April 2006.
6 UK Constitution
as Prime Minister, capable of using his influence to make appointments

to the state broadcasting channels to suit his interests.
Perhaps surprisingly, there is no specific constitutional protection in
the United Kingdom, but could a comparable situation arise here? First,
as Members of Parliament, ministers already have a duty to act in the
interests of the nation as a whole, as well as special duties to their con-
stituents. Second, under the ministerial code of practice (referred to in
Chapter 6) all ministers, including the Prime Minister, must ensure that
no conflict arises, or appears to arise, between their public duties and
their private interests. The list of declared personal interests must cover
all kinds of financial interests, as well as relevant non-financial private
interests, such as links with outside organisations (including broadcast-
ing organisations).
However, there have never been any formal restrictions on private
ownership of the print media, and the press is subject to two forms
of self-regulation carried out by the Independent Press Standards
Organisation (IPSO) set up in 2014 to replace the Press Complaints
Commission and the Independent Monitor of the Press (IMPRESS).
Many national newspapers continue to display strongly partisan alle-
giances. For example, the Daily Telegraph and Daily Mail have consistently
supported the Conservative Party, while the Daily Mirror has endorsed
Labour. On the other hand, The Sun, the News of the World, The Times
and the Sunday Times, owned by Rupert Murdoch, switched allegiance
from Conservative to Labour in 1997 and then back to the Conser-
vatives between 2010 and 2015. As the discussion of the News of the
World scandal below demonstrates, newspapers reflect the views of
their owners in their editorials, and they seek to influence the political
opinions of their readers, especially at election times. However, by way
of contrast, cinema, radio, and television have been subject to varying
kinds of statutory regulation. Technical progress has made the media
increasingly difficult to control. Such regulation has to address the
conflicts of interest that inevitably arise in the quest to open up mar-
kets by allowing bidding for broadcast channels. The Communications
Act 2003 lays down the conditions for the granting of licences and, in
doing so, it sets limits on cross-media ownership (eg combining print
media with broadcast media).10 Equally, the legislation seeks to protect
a wider public interest by controlling the editorial line. It sets out special
10 Communications Act 2003, c 5.

impartiality requirements relating to elections and referendums.11

Further, it requires that the news generally on broadcast television and
radio is reported with due accuracy.12 Moreover, the Office of Commu-
nications (OFCOM) as regulator is under a statutory duty to ensure that
its licensees do not project their own views on politically controversial
matters. In a democratic system there needs to be a strong public inter-
est dimension to state regulation in this field.
In addition, there are mechanisms in place to safeguard the relative
independence of the BBC as state broadcaster. The BBC is required to
be impartial. It must refrain from expressing its own opinion on current
affairs or on matters of public policy.13 The corporation operates under
a renewable Royal Charter which requires the governors of the BBC to
act as regulators and makes them ultimately responsible for its manage-
ment (the director general appointed by the governors is responsible
for the day-to-day running of the organisation). To minimise political
manipulation, the appointment process for BBC governors is con-
ducted under certain guidelines (the Nolan principles)14 by the Office
of the Commissioner for Public Appointments (OCPA). After the
interviewing process, recommendations are put forward to the Secre-
tary of State for Media and Culture, and then to the Prime Minister.15
In sum, in the domain of broadcasting the BBC and other broad-
casters can act as a conduit for criticism of politicians as long as this
criticism is not part of an agenda set by the broadcaster. Despite the
absence of a constitution, citizens are generally able to express them-
selves, and the freedom of the press and broadcasters to disseminate
information in the United Kingdom is constrained by an intricate com-
bination of formal regulation and informal safeguards.
11 Ibid.
12 Communications Act 2003, ss 319 and 320.
13 G Robertson and A Nicol, Media Law (London, Penguin, 2002) 826.
14 These are: selflessness, integrity, objectivity, accountability, openness, honesty,
leadership.
15 The Hutton Inquiry (2004) into the death of government scientist David Kelly
in 2003 exposed the tension which often exists between the BBC and the govern-
ment over the reporting of news and current affairs. See A Doig and M Phythian,
‘The Hutton Inquiry: Origin and Issues’ (2005) 58 Parliamentary Affairs 104.
8 UK Constitution
PHONE HACKING, MEDIA INFLUENCE

AND CONSTITUTIONAL OVERSIGHT
Important issues pertaining to the degree of constitutional a ccountability

in relation to the media were vividly highlighted in 2011 in the so-called
‘Hackgate’ scandal. The hacking into mobile phones came to the fore-
front of public attention again after the May 2010 general election when
Prime Minister Cameron appointed Andy Coulson, former editor of
the News of the World, as his Director of Communications at Number
10 Downing Street. In 2007 a former royal editor of the News of the
World and a private investigator working for the paper were convicted
and imprisoned for hacking into the voicemails of Buckingham Palace
aides. Coulson was editor of the newspaper when this criminal activity
was revealed. This appointment by the Prime Minister was controversial
partly because of the connection with News International through the
News of the World, but mainly because there were allegations that illegal
practices, such as phone hacking, had been widespread at the paper,
raising the possibility of editorial collusion in law breaking. As further
accusations began to emerge, Coulson’s position became untenable and
he resigned in January 2011. The resignation severed the direct link
with News International. Although there were no allegations of serious
wrongdoing by the Prime Minister or any other ministers, this did not
prevent Mr Cameron’s judgement from being called into question for
going ahead with the appointment with only limited vetting, despite the
warnings that had been received by his personal office.
Following in the footsteps of Lord Northcliffe (1865–1922) and
Lord Beaverbrook (1879–1964), the press barons of previous gen-
erations, Mr Rupert Murdoch as owner of News International and
a leading shareholder in BskyB has exercised a significant influence
over domestic politics in the United Kingdom for many years. At a
time when News International was seeking to extend its ownership by
completing the takeover of BskyB, concern began to focus on the posi-
tion of the Murdoch press as further revelations emerged. It was well
known that leading political figures from both main parties, including
Prime Ministers Thatcher, Blair, Brown and Cameron, have been keen
to obtain the endorsement of the Murdoch press. The question that
has been asked as a result of the scandal over phone hacking concerns
the wider implications of the nexus between News International and
successive governments. The price of gaining approval from these
papers might be measured in terms of both regular access to political

decision-makers at the highest level and influence over the decision-
making process. The association may not only have affected policy
formation generally, but might be regarded as particularly undesirable
in situations where government policy requires a balancing of the wider
public interest against the commercial interests of this company with its
extensive media holdings. The bid by Mr Murdoch’s News Corporation
for BSkyB for increased market dominance highlighted this problem.
The Culture Secretary and Ofcom, the media regulator, were faced with
having to decide whether the bid should be allowed to proceed at all (as
a fit and proper [corporate] person to continue to hold a broadcasting
licence),16 and what, if any, conditions should be imposed before the
deal was allowed to go ahead. Further questions relating to the public
interest have arisen in the past, for example, over the acquisition by Sky
of screening rights over major sporting events including Premiership
football, Test cricket and Ryder Cup golf.
In addition, the revelations associated with the hacking scandal drew
attention to the cultivation of relationships involving, on the one hand,
News International journalists and executives and, on the other, senior
politicians and the police, including officers at the highest level of the
Metropolitan Police. However, the concern was not simply that such
influence has penetrated deeply into public life, but that it led to at least
some degree of complicity in unlawful conduct and morally reprehen-
sible practices by News International (and probably other newspapers).
The targets of gross invasions of privacy by the press have been
the victims of serious crime as well as celebrities. The government’s
response to the outrage directed towards News International was to
set up a public inquiry in July 2011 with a wide remit. It was chaired by
Lord Justice Leveson, a senior judge, and the Inquiry was empowered
to compel witnesses to appear before it. Lord Justice Leveson later
reported on the alleged widespread invasions of privacy by journalists
hacking into mobile telephones and the conduct of criminal investiga-
tions into the matter by the Metropolitan Police, in particular relating to
their failure to pursue inquiries concerning newspapers owned by News
International despite possessing clear evidence. Furthermore, it looked
16 See Broadcasting Acts 1990 and 1996, s 3(3).

10 UK Constitution
into payments made by newspapers to Metropolitan Police officers for

information relating to criminal investigations that were in progress.17
At the same time this scandal was investigated in depth as a matter
of parliamentary oversight by two departmental select committees.18
The Culture, Media and Sport Committee summoned the key players
in News International, including Rupert and James Murdoch,19 while
the Home Affairs Committee heard evidence from senior figures in the
Metropolitan Police.20 The televised select committee hearings resulted
in reports and recommendations. The cumulative effect of the public
inquiry and these parliamentary investigations was to draw attention
to the pervasive influence of News International, the murky practices
of journalists working for News International and other papers, and
the extent of criminal wrongdoing. In consequence, some journalists,
newspaper executives and policemen were liable to prosecution and
faced terms of imprisonment. However, it was difficult to formulate
general recommendations to prevent the repetition of such conduct in
the future.
Arguably the key recommendation of the Leveson Inquiry was
ignored. This was to replace the deeply flawed and ineffective Press
Complaints Commission with a new voluntary, independent, self-
organised regulatory system supported by a backstop of legislation in
order to ensure that the regulatory and investigatory element was inde-
pendent and effective. The government was reluctant to legislate in the
face of press resistance. The difficulty in placing restrictions on the media
and strengthening laws relating to privacy is that such laws run the risk
of inhibiting the investigative role of the media which, as we have seen
above, is crucial in establishing the accountability of government and
individual politicians. The Independent Press Standards O rganisation
17 Leveson, ‘An Inquiry into the Culture, Practices and Ethics of the Press: Vols
1–IV, 29 November 2012’: webarchive.nationalarchives.gov.uk/20140122145147/

www.levesoninquiry.org.uk/about/the-report.
18 Related issues raised were also considered by other parliamentary committees,
eg the House of Lords Select Committee on Communication. See Select Commit-

tee on Communications’ 3rd Report of Session 2010–12, ‘The future of investiga-
tive journalism’, HL Paper 256, 16 February 2012.
19 Culture Media and Sport Committee, ‘News International and Phone-
hacking’ Eleventh Report of Session 2010–12, HC 903-1, 1 May 2012.

20 Home Affairs Committee, ‘Unauthorised tapping or hacking of mobile com-
munications’ Thirteenth Report of Session 2010–12, July 2011, HC 907.

(IPSO), the main revamped self-regulatory body s upported by most of

the newspaper industry, falls well short of having the investigatory pow-
ers and independence identified by Leveson. In relation to the police,
a protocol was introduced requiring government ministers and police
officers to disclose their dealings with the media.
THE UK CONSTITUTION, CONSTITUTIONALISM

AND GOOD GOVERNANCE
The UK constitution has evolved in the sense that the rules which have
come into being have been accumulated as a response to circumstances,
and they can be regarded as the residue of a historical process with par-
ticular laws and conventions incorporated following significant events.
Apart from describing institutions and procedures, the starting point in
drafting a codified constitution or modifying an existing constitution
is to come as close as possible to reaching a consensus on any limits
imposed on the majority. As we observed above, each constitution
reconciles these issues in its own individual fashion. Unlike most other
constitutions, the UK constitution has not been designed according
to any ideology or theory to deliver a particular system of govern-
ment. Despite lacking any guiding principle, the UK system could also
be said to display the characteristics of what might be described as
constitutionalism.21
The vast majority of constitutions set out a framework of rules
which, if applied and interpreted in the spirit intended, would produce
if not a version of liberal democracy, at least conditions of good gover-
nance. The point to stress is that the constitution needs to be supported
by mechanisms which allow the commitments in the text to be imple-
mented. In many constitutions there is a significant gulf between the
statement in the constitution and actual compliance. In the majority of
cases it is achieving substantial conformity with the rules that becomes
the crucial issue. Indeed, as one well-known commentator puts it: ‘The
fundamental notion of the Rechtsstaat or the rule of law was … not
conceived out of the blue and introduced without resistance. It was, in
21 A Harding and P Leyland, ‘Comparative Law in Constitutional Contexts’ in
E Örücü and D Nelken (eds), Comparative Law Handbook (Oxford, Hart Publishing,
2007) 322ff.
12 UK Constitution
fact, the fruit of political conflict and scholarly disputes stretching over
many centuries.’22 Rather than compliance with strict constitutional
rules, in the United Kingdom the interpretation of some of the impor-
tant constitutional conventions may arise as a matter of debate and
controversy (see the discussion of individual ministerial responsibility
in Chapter 6).
The first point would be to note that any exercise of political power
will be bounded by a system of higher order rules which will usually be
set out clearly in the constitution. The second point is to recognise what
these rules are likely to concern. For example, in virtually every case
these rules will specify the procedure for making valid legislation, and
a distinction will often be drawn between what can be the permissible
content of ordinary legislation as opposed to law relating to the consti-
tution itself. Further, the higher order rules contained in the constitu-
tion will outline the method for the formation of the government, and
the rules may place limits on the action taken by the executive organs of
the state, including the civil service and the police, in the implementa-
tion of law. Finally, the constitution may provide that a court (often a
constitutional court) has the capacity to invalidate legislation or execu-
tive action which fails to comply with the law of the constitution. Con-
stitutionalism is defined in terms of adherence to the rules and to the
spirit of the rules. As Professor De Smith has observed: ‘[this] becomes
a living reality to the extent that these rules curb arbitrariness of discre-
tion and are in fact observed by the wielders of political power.’23
A genuine constitution for reformers in the eighteenth century, such
as Tom Paine, restrained and regulated the exercise of absolute power.
Apart from its positive aspects, namely, dealing with the generation and
organisation of power, a constitution may be taken to comprise a series
of devices designed to curb discretionary or unlimited power. It seeks
to establish different forms of accountability24 not simply through a
system of freely elected government, but by placing restrictions on the
power of the majority. This accountability is reliant on transparency,
22 R Van Caenegem, An Historical Introduction to Western Constitutional Law
(Cambridge, Cambridge University Press, 1995) 17.

23 S De Smith, ‘Constitutionalism in the Commonwealth Today’ (1962) 4
Malayan Law Review 205.

24 See C Harlow, Accountability in the European Union (Oxford, Oxford, University
Press, 2002) ch 1, ‘Thinking about Accountability’.

and it is acted out in a number of familiar ways:25 an obligation for the

government to be responsible to the elected Parliament; legal limits
established by the courts (often including a constitutional court) on
the exercise of public power; formal financial accountability in public
affairs; accountability through contractual agreement where public ser-
vices are provided by private organisations; and, additionally, account-
ability through the intervention of constitutional oversight bodies such
as parliamentary select committees, ombudsmen, and courts (discussed
in later chapters).
Moreover, the constitution also results in further ground rules in
the form of laws, codes of practice, and conventions being adopted
to ensure fair play at every level.26 Finally, an equally significant char-
acteristic of constitutionalism is a degree of self-imposed restraint
which operates beyond the text of the constitution, and its attendant
rules, especially on the part of political actors and state officials. The
point to stress here is that all nations have a constitution of some kind,
but constitutionalism is only established in a true sense where political
behaviour is actually contained within certain boundaries. In the first
place, the rules need to embody a defensible constitutional morality
which accords with principles of good governance27 but the constitu-
tion also represents a sufficiently widely accepted political settlement.
In the second place, there must be a general adherence at all levels to
the constitutional rules and the wider body of law and conventions
associated with them. In the United Kingdom we will soon discover
that there is a debate about the adequacy of constitutional safeguards,
especially in relation to the exercise of executive power, but although
the rules are often embodied in informal conventions, there is generally
a high degree of compliance by the main political actors.
25 For a discussion of the development of such mechanism in the United
ingdom, see D Oliver, Constitutional Reform in the UK (Oxford, Oxford University

K
Press, 2003) chs 1–3.
26 Loughlin points out: ‘Like all representational frameworks, a constitution is a
way of organising, and hence also of generating, political power … and orchestrat-
ing the public power of the state’: see M Loughlin, The Idea of Public Law (Oxford,
Oxford University Press, 2003) 113.
27 For a discussion of ‘good governance’ from a global perspective, see FN
Botchway, ‘Good Governance: The Old, The New, The Principle and The
Elements’ (2001) 13 Florida Journal of International Law 159.
14 UK Constitution
PART II: HISTORY
THE IMPORTANCE OF HISTORY
In general, constitutions are formally adopted as a specific text of spe-

cial importance introduced at a decisive moment in a nation’s history
to achieve obvious goals. For example, the constitution of the United
States was approved after the success over the British in the American
War of Independence. The ‘Bill of Rights’ was adopted as the first
10 amendments in 1791, but apart from a further 17 amendments
the constitution has remained in its original succinct form. The First
Republic in France was introduced shortly after the revolution of 1789,
and the most recent Fifth Republic was introduced in 1958 to redress
the instability of previous constitutions by bolstering the presidential
role. In modern times there has been no single domestic event that
has required a comprehensive revision of the UK constitution and so
the United Kingdom has no constitutional text with this special status.
Rather, the constitution is comprised of a variety of sources including
statute law, common law, and constitutional conventions (the sources
of the constitution are discussed in Chapter 2). The constitutional
arrangements for the United Kingdom have evolved in phases reflect-
ing the political, social, and economic experiences of many centuries.
The events selected for coverage are dealt with thematically rather than
in chronological sequence, and they are intended to set the scene for the
discussion that follows in subsequent chapters.
QUALIFYING ABSOLUTE MONARCHY
The first recurring theme worth mentioning involves certain qualifica-

tions which have been placed in the exercise of the absolute authority
of the monarchy. An obvious starting point looks back to medieval
times, and relates to the dispute between the King and his barons which
culminated in the drawing up of the Magna Carta of 1215.28 The feudal
system originally operated on the basis that the King’s barons or nobles
held their lands from the King in exchange for an oath to him of loyalty
28 www.bl.uk/treasures/magnacarta/translation.html; C Breay, Magna Carta:
Manuscripts and Myths (London, British Library, 2002).

History 15
and obedience, but with the obligation to provide a fixed number of

knights whenever these were required for military service. By the reign
of King John this feudal obligation for service was expressed through
the imposition of arbitrary financial payments determined by the King
and his entourage of royal officials, which were often used to maintain
an army. The barons were dissatisfied with what they regarded as a
form of unjust taxation, and they were sufficiently united to insist on
the King recognising a disparate catalogue of demands. The shopping
list of grievances was very much a top-down settlement favouring the
barons and covering not only the celebrated right to justice in Article 39
but also the freedom of the Church, recognition that London and other
cities should enjoy their own liberties and customs, navigation of rivers,
inheritance, guardianship of land, seizure of property and feudal dues.
As one commentator has observed: ‘[A] common core was an under-
taking by the crown to observe a precisely formulated code of behav-
iour towards their subjects or, in other words, to respect their rights and
liberties as specified in the charters.’29 The charter became famous as
a constitutional document not simply because it refers to some funda-
mental rights, for instance by providing that no one should be denied
justice or punished except by judgment of their peers or by the law of
the land, but because, at the beginning of the seventeenth century, in
resisting absolute Royal authority, its significance was championed by
Chief Justice Sir Edward Coke and it was relaunched and elaborated
as the Petition of Right 1628. The impact of the original charter was
marginal as within weeks King John, encouraged by the Pope, reneged
on his promise to uphold the undertakings contained therein. Although
only selected provisions of the Magna Carta were later confirmed by
future Kings and the English Parliament, certain rights and liberties may
be traced back to the original document, which included limitations on
Royal power.30
The limitation on royal authority by constitutional means was
achieved in stages. The Tudor monarchs, notably Henry VIII and
Elizabeth I, were very powerful, and they were personally active in
the affairs of government, but by this period Parliament also became
increasingly important. While these Tudor monarchs were able to domi-
nate Parliament, they also ruled through Parliament in order to legalise
29 Van Caenegem, above n 22, 17.

30 A Arlidge and I Judge, Magna Carta Uncovered (Oxford, Hart Publishing, 2014).
16 UK Constitution
their actions: ‘the sixteenth century had a concept of the supremacy

of law, embodied in the rule of the common law and sovereignly con-
trolled by statute, which limited the free power of monarchy and was so
recognised, in theory and practice by the Crown.’31
The seventeenth century was of great constitutional significance.
The Stuart Kings, particularly Charles I (1625–49), sought to claw
back the initiative from Parliament by re-asserting the divine right of
kings to govern. An obvious problem for the King was that Parliament
had to be summoned when he wished to raise taxes, for example,
to pursue foreign policy, to fight wars, or to crush insurrection. The
Petition of Right in 1628, which arose after a person had been impris-
oned for refusing to pay a loan imposed by the King (see Darnel’s Case
1627, also known as ‘the Five Knights’ Case’)32 had already signalled dis-
satisfaction, because Parliament rejected the idea of taxation without
its consent, and it questioned the Crown’s authority to impose arbitrary
imprisonment and martial law. The struggle between the Crown and
Parliament came to a head with the Civil War (1642–49). As well as
contesting the right to impose taxes without Parliament’s consent, men-
tioned above, the King’s authority to summon and dismiss Parliament at
will was also called into question. The resistance of MPs to the King’s
demands when Parliament was recalled culminated in an event of sym-
bolic importance. The King entered Parliament in person with soldiers
at his side in order to arrest five dissenting MPs. The Speaker of the
House of Commons refused to co-operate with the King’s demands in
an act of open defiance. At this point factions within Parliament were
prepared to resort to armed insurrection to resist the King’s demands.
In the struggle that followed parliamentary forces prevailed over those
of Charles I, and the King was tried and executed in 1649. Oliver
Cromwell’s Commonwealth under the Instruments of Government
lasted only a few years before the restoration of the monarchy with the
accession of Charles II in 1660.
Charles II’s reign was relatively uneventful in regard to constitutional
matters. However, he was succeeded by his brother James II, who was
not only a Roman Catholic, but, like his father Charles I, was prepared
to disregard the will of Parliament. The use of his royal authority
to promote Catholics to prominent positions in what had become a
31 G Elton, England Under the Tudors (London, Methuen, 1974) 483.

32 (1627) 3 State Trials 36–37.
History 17
strongly Protestant nation sparked a strong backlash with far-reaching

constitutional implications. With the prospect of revolt on the horizon,
James dissolved Parliament in 1688 before fleeing the country. In
the meantime the opponents of James II invited William of Orange
(a Dutch Protestant), who was married to James’s daughter Mary, to
take up the throne on certain conditions. The position of the King in
relation to Parliament was set out in the Bill of Rights of 1689, later
enacted as the Parliament Recognition Act of 1689. This landmark doc-
ument was not a charter of citizens’ rights in the modern sense, because
it was not concerned to define comprehensively the rights of citizens.
Nonetheless, it is extremely important for setting in place certain fun-
damentals of the contemporary constitution. In particular, it confirmed
that it was illegal for the Crown to execute laws, raise taxes, or keep an
army in peacetime without the consent of Parliament (Articles I, IV,
and VI). It provided not only that a freely elected Parliament should
meet on a regular basis, but also it gave formal recognition to the privi-
leges of P arliament, which included a right to free speech and debate
for MPs, and it gave them the right to regulate their own proceedings
without limitation or interference either from the Crown or from the
courts. Shortly afterwards, the Act of Settlement 1701 regulated the
succession to the throne and also established the security of tenure of
judges. In sum, as Hill observes: ‘The men of property [were] secure
and unfettered in their control of local government; as taxpayers they
determine government policy … [they] won freedom—freedom from
arbitrary taxation and arbitrary arrest, freedom from religious persecu-
tion, freedom to control the destinies of their country through their
elected representatives, freedom to buy and sell.’33 (The constitutional
role of the Crown is considered further in Chapter 4.)
THE EMERGENCE OF PARLIAMENT AND THE

PATH TO DEMOCRACY
As has just been stressed, the UK Bill of Rights of 1689 established

that ultimate Sovereignty was vested in the King in Parliament, not in
the King alone. The power of the Crown and the prerogatives of the
Crown were thereafter restricted. In theory at least, unlimited authority
33 C Hill, The Century of Revolution (London, Abacus, 1978) 263 and 265.
18 UK Constitution
had been granted to Parliament as the body with unrestricted l aw-making

capacity. However, this change was only a limited step towards parlia-
mentary democracy in a modern sense. The problem was that Parlia-
ment represented elite groups and it mainly protected property rights.
The idea of a representative Parliament had been in evidence at least
from Edward I’s Model Parliament of 1295, whose membership was
based on the principle of two knights from each county, two bur-
gesses from each borough, and two citizens from each city. Further,
by 1341 the House of Commons was meeting separately. In fact, the
composition and powers of Parliament re-emerged as an issue of great
constitutional importance during the course of the late eighteenth
and early nineteenth centuries. As well as the development of politi-
cal ideas associated with popular ‘revolutions’ in America and France
which recognised citizen rights, the nation itself was experiencing rapid
transformation. There were new pressures associated with industrialisa-
tion, the growth of population, and the rapid expansion of towns and
cities. While the complexion of the nation and the distribution of its
population was in the course of changing, only a small minority had the
right to vote, and the geographical division into constituencies sending
members to the House of Commons no longer corresponded to where
the centres of population were now located in the industrial cities and
towns of the Midlands and the North. Reform Acts in 1832, 1867,
1883, and 1884 went some way towards extending the right to vote,
and to redistributing seats more evenly but it was not until 1918 that
universal suffrage for men and votes for women over 30 were secured,
with women securing equal voting rights in 1928.
At the beginning of the twentieth century, the extension of the
franchise had far-reaching constitutional consequences. More rep-
resentative political parties (eg the Liberal and Labour Parties) were
given a mandate from the wider electorate to introduce programmes
of social reform, and, having obtained a majority in the elected House
of Commons, the government in power claimed authority to achieve
its political goals. On the other hand, the House of Lords (sometimes
referred to as ‘the Upper House’) comprised the titled nobility (titles
were originally granted directly by the King, but by the nineteenth cen-
tury candidates were nominated by the Prime Minister) who originally
derived their wealth and influence from the ownership of land. Peers
were able to pass on their titles to the next generation by heredity, and
as members of the House of Lords they had a traditional right to sit
History 19
and vote in P arliament. During the nineteenth and early twentieth

centuries the landed aristocracy began to use this voting power in the
House of Lords first to delay the process of parliamentary reform, and
later to oppose the manifesto commitments and budget proposals of
the elected Liberal Government. This opposition precipitated a consti-
tutional crisis. The House of Lords as the unelected legislative chamber
was expected to defer to the House of Commons in financial matters
and when it not only blocked legislative proposals but also refused to
pass a budget in 1909 it was eventually forced to agree to have its pow-
ers significantly qualified by way of the Parliament Acts of 1911 and
1949. The composition of the House of Lords remains unresolved,
but a category of peers appointed for their lifetime only (life peers) was
introduced in 1958, and in 1999 the majority of hereditary peers were
excluded from participating in the business of the House. (The role of
Parliament is discussed in Chapter 5.)
DEFINING THE NATION: WHAT IS THE UNITED KINGDOM?
Another dimension to domestic constitutional evolution has con-

cerned the formation of the United Kingdom, comprising England,
Wales, Scotland, and Northern Ireland. In Chapter 8 we will consider
the constitutional implications of recent devolution provisions, but at
the outset, it is useful to be familiar with the territorial reach of the
sovereign nation. In the case of Wales, conquest of the principality by
England was completed under Edward I between 1272 and 1307. Royal
authority over Wales was later set out in Henry VIII’s reign, first by an
Act of 1536 ‘for laws and justice to be ministered in Wales’ which also
allowed Wales to return MPs to Westminster, and second, the details of
the political and legal assimilation of the union between England and
Wales were contained in another statute of 1543.
Edward I and other English kings ultimately failed in their attempts to
overwhelm Scotland by force, but the thrones of Scotland and England
were eventually united, when in 1603 James VI of Scotland succeeded
Elizabeth I as James I of England. James had been unsuccessful in his
attempt to effect a union of the two kingdoms in an administrative
sense. Under the restored constitutional monarchy of William III and
Mary, which was set in place by the Bill of Rights of 1689, it was not
long before the Scots were faced with a choice. In essence, either the
20 UK Constitution
Parliaments of England and Scotland would have to unite, or there

would have to be a separation of the monarchies.
Taking account of the economic advantages of fusing the two
nations, the Scottish Parliament opted for union. The Treaty of Union
and the Act of Union with Scotland 1707 were of enormous signifi-
cance. This agreement was recognition that England and Scotland were
to come under a single Parliament of Great Britain and that the rule of
succession for the two thrones would be the same. However, as part
of the deal Scotland retained many of its national institutions (church,
legal system, and educational system).
The relationship between England and Ireland has been both tur-
bulent and complex. In brief, England had assumed direct rule over
Ireland in 1534, and Henry VIII was recognised as King of Ireland in
1541. The Catholic majority (later to generally support the Nationalist
cause) were hostile to British rule, which tended to favour Protestant
settlers (termed ‘Unionists’ as they remained loyal to the Crown and
favoured maintaining close association with Westminster) introduced
into Ireland mainly from Scotland by the English. There were many peri-
ods of rebellion, which were sometimes brutally suppressed. Following
resolutions by the Parliaments in Westminster and Dublin, Ireland was
eventually united with England at the beginning of the nineteenth
century. This union was achieved by the Act of Union of 1800, which
also confirmed the place of Irish MPs at Westminster. However, the
prevailing arrangements were not acceptable to Irish N ationalists (who
formed a substantial majority, particularly in the South of Ireland),
some of whom resorted to intermittent violent struggle. Apart from
repressive measures to confront the unrest, the political response of the
Liberal Party (pioneered by WE Gladstone) was to attempt to introduce
a considerable degree of Irish self-government in domestic affairs, but
each of the Home Rule Bills of 1886, 1893, and 1912 was unsuccess-
ful. This was largely because they failed to satisfy the competing claims
of Nationalists and Unionists. To accommodate deep-seated differ-
ences, the Government of Ireland Act of 1920 was based on partition
between the six counties in the North, comprising Northern Ireland
with a Parliament in Belfast, and the remainder of Ireland with a Parlia-
ment in Dublin. However, the 1920 Act was only implemented in the
North. A form of devolved government based at Stormont was set up
in 1921 and Unionists secured a promise to allow the North to give its
consent before any future assimilation with the South. The situation
History 21
concerning devolved government in Northern Ireland will be discussed

further (in Chapter 8). Almost at the same time, the British Govern-
ment reached an agreement with representatives of a provisional
government of Ireland to allow an Irish Free State to be established.
The Irish Free State (Agreement) Act of 1922 excluded the 26 counties
of the South from jurisdiction of the UK Parliament under the Act of
Union of 1800. The current Irish constitution dates from 1937, and
the Republic left the Commonwealth under the Republic of Ireland
Act 1948, which paved the way for the formation of an independent
Republic of Ireland in 1949.
In sum, the term United Kingdom now refers to a sovereign state which
includes England, Wales, Scotland, and Northern Ireland.
EMPIRE, COMMONWEALTH AND EUROPE
At the beginning of the twentieth century the United Kingdom was a

powerful imperial nation. A quarter of the world’s population was ruled
directly or indirectly from Westminster. Despite victory in World War I
(1914–18) and World War II (1939–45), the diminution of Britain’s
military, economic, and political influence was reflected in the transi-
tion from this vast empire to a self-governing Commonwealth. Viewed
from a constitutional perspective this transition occurred in phases.
First, there were self-governing colonies, referred to as dominions,
which included Canada, Australia, South Africa, and New Zealand.
The Balfour Declaration of 1926, later enacted through the Statute of
Westminster 1931, established that the Westminster Parliament would
not legislate for the dominions without their consent. In the words of
one commentator: ‘Its main effect was to end the Empire-wide writ of
the United Kingdom Parliament.’34
After World War II, the British withdrew from India in 1947 and the
Indian Independence Act of 1947 created independent dominions of
India and of Pakistan. Malaysia was granted independence under the
Federation of Malaya Independence Act 1957. The rapid decolonisa-
tion of Africa began with Ghana gaining independence in 1957. In the
34 R Holland, ‘Britain, Commonwealth and the End of Empire’ in V Bogdanor
(ed), The British Constitution in the Twentieth Century (Oxford, Oxford University Press,
2003) 638.
22 UK Constitution
West Indies, Jamaica and Trinidad were granted independence in 1962.

Withdrawal from Africa was completed when, after a protracted dispute
and civil war, the Zimbabwe Act of 1979 formally granted indepen-
dence to Zimbabwe (formerly Southern Rhodesia). In each of these
nations the Westminster Parliament gave up its local jurisdiction, and
a new constitution was adopted usually featuring prominent elements
of the Westminster model, together with a system of law based on the
common law. The British Commonwealth has continued as a club of
nations of ex-British colonial status with the Crown symbolically at its
head. The nations co-operate in the common interests of their peoples
and in the promotion of human rights, international understanding, and
world peace.35
As the influence of empire and Commonwealth waned, and UK
economic involvement with the United States diminished after World
War II, so the importance of Europe has increased. The Treaty of
Rome 1957, which set up the Common Market (EEC) without UK
inclusion, was a first step towards Churchill’s vision of a ‘United States
of Europe’36 which would be able to avoid the recurrence of war by
featuring a close partnership between France and Germany together
with other nations. The United Kingdom eventually joined the EEC
(now the European Union (EU)) on 1 January 1973 after protracted
negotiations. Although the United Kingdom signed up to a mainly
economic treaty, from a constitutional perspective, membership of this
supra-national organisation resulted in a sacrifice of sovereign power
in a number of areas. A new hierarchy of law was recognised which
meant that a set of European institutions were capable of making
laws which could override the authority of the UK national Parliament
and UK domestic courts (this issue is discussed in Chapter 3). Despite
being highly controversial across the major political parties (Conserva-
tive, Labour, and Liberal Democrat), EU membership was entered into
without consulting the electorate. The post hoc 1975 referendum settled
the issue of association with Europe decisively in favour of continued
EU membership after a passionate campaign during which otherwise
strict rules of party loyalty (including collective Cabinet responsibil-
ity discussed in Chapter 6) were suspended. In recent years there have
35 For a fuller statement of principles, see www.thecommonwealth.org/Internal/
20723/key_declarations/ and the Harare Commonwealth Declaration, 1991.

36 Winston Churchill set out these ideas in a speech delivered in Zurich in 1946.
History 23
been significant changes to the EU, with successive Treaties granting

membership to many more nations (from nine in 1973 to a current
total of 25 states) and extending the range of policy areas which are
subject to EU law37 (see Chapters 2 and 9 for further discussion of the
European Union).
CONCLUSION
In this preliminary discussion we have seen that the most distinctive

feature of the UK constitution is the fact that it lacks formal codifica-
tion. Nevertheless, it displays the broad characteristics of what has been
termed liberal democracy and achieves this without having guarantees set
out as part of a set constitutional framework. Moreover, the constitu-
tion has been presented as a product of history, in the sense that many
crucial aspects relating to the monarch, Parliament, the protection of
rights, and the territorial extent and organisation of the nation have
evolved in response to significant events.
The next chapter will reveal that, in the absence of the authority
provided by a single text, the constitution can only be approached by
reference to a range of disparate sources, including formal law, but also
including many pivotal constitutional conventions.
FURTHER READING
Arlidge A and Judge I, Magna Carta Uncovered (Oxford, Hart Publishing,

2014).
Bagehot W, The English Constitution (London, Fontana, 1963).
Barendt E, Freedom of Speech, 2nd edn (Oxford, Oxford University Press,
2005).
Blick A, Beyond Magna Carta: A Constitution for the United Kingdom (Oxford,
Hart Publishing, 2015).
Bogdanor V, The New British Constitution (Oxford, Hart Publishing,
2009).
37 See I Ward, A Critical Introduction to European Law, 3rd edn (Cambridge,
Cambridge University Press, 2009) ch 1.

24 UK Constitution
Holland R, ‘Britain, Commonwealth and the End of Empire’ in

V Bogdanor (ed), The British Constitution in the Twentieth Century
(Oxford, Oxford University Press, 2003).
Loughlin M, The British Constitution: A Very Short Introduction (Oxford,
Oxford University Press, 2013).
Loughlin M, The Idea of Public Law (Oxford, Oxford University Press,
2003).
Maitland F, The Constitutional History of England, 10th edn (Cambridge,
Cambridge University Press, 1946).
Marshall G, ‘The Constitution: Its Theory and Interpretation’ in
V Bogdanor (ed), The British Constitution in the Twentieth Century
Morison J, ‘Models of Democracy: From Representation to Participa-
tion’ in J Jowell and D Oliver (eds), The Changing Constitution, 5th edn
Mount F, The British Constitution Now (London, Heinemann, 1993).
Oliver D, Constitutional Reform in the UK (Oxford, Oxford University
Press, 2003).
Sunstein C, Designing Democracy: What Constitutions Do (Oxford, Oxford
University Press, 2001).
Tombs, R, The English and Their History (London, Allen Lane, 2014).
Van Caenegem R, An Introduction to Western Constitutional Law (Cambridge,
2
The Sources of the Constitution


Statute Law – Common Law – European Union – European
Convention on Human Rights – Legal Treatises – Law and
Customs of Parliament – Royal Prerogative – Conventions
INTRODUCTION
T HE UNITED KINGDOM has a constitution but it is not a

codified constitution. In other words there is no single docu-
ment (or series of documents) that is known as constitution.
The lack of a codified constitution also means that there is no body of
rules which is antecedent to the institutions of state and government
and which could therefore be said to form an act of foundation. Despite
the fact that there is no fundamental law relating to the constitution, it
is possible to approach a description of the constitution by reference
to a number of key constitutional sources. To take an obvious example,
the Human Rights Act 1998 makes the individual rights defined under
the European Convention on Human Rights (ECHR) of central consti-
tutional importance, but, at the same time, many other statutes may be
of relevance to constitutional practice in the field of human rights: for
instance, the Police and Criminal Evidence Act 1984 deals more specifi-
cally with police powers and the rights of the individual.
In many nations today the constitution is linked to a system of repre-
sentative government, but in the United Kingdom in particular, there is
much less reliance on legal rules and safeguards, and much more reliance
on constitutional conventions which are underpinned by a commitment
to a democratic system of government. The evolution of the constitu-
tion has been possible because conventions are capable of being easily
26 The Sources of the Constitution
modified to accommodate changing circumstances. All constitutions

are to some extent uncodified, with their own conventions, but a
distinguishing feature of the UK constitution is that so much of its
constitutional practice is governed by conventions. In consequence,
particular attention in this chapter is devoted to discussing conven-
tions as a source of the constitution and their significance in relation
to constitutional practice. First of all we will consider the other sources
of the constitution.
PART I: SOURCES OF THE CONSTITUTION
STATUTE LAW
In the United Kingdom the basic principle of the constitution is the

doctrine of parliamentary sovereignty. Since the Bill of Rights of 1689
the courts have recognised Acts of Parliament as the highest source
of law. In one sense it might be true to say that all statutes passed by
Parliament that have not been repealed are part of the constitution.
This is because each one has been passed to set out or refine particular
areas of law and there is a coincidence between ordinary law and the
constitution. However, in practical terms, it is obvious that certain stat-
utes are of special constitutional importance. The Petition of Right 1628
concerned the principle of no taxation without representation. The Bill
of Rights 1689, although not a modern Bill of Rights, as discussed in
Chapter 1 secured a Protestant succession to the monarchy (a position
that was confirmed by the Act of Settlement 1701). The Bill of Rights
also formally confirmed that the seat of power had swung towards
Parliament as part of a constitutional monarchy.
The nature of constitutional statutes was considered in Thoburn v
Sunderland City Council 1 and has been recognised subsequently by Lord
Hope giving judgment in the UK Supreme Court.2 While Laws LJ in
Thoburn did not set out any special test to determine the question of
what would qualify, it was explained that constitutional statutes are
pieces of legislation which condition the legal relationship between
citizen and state in some general, overarching manner, or which enlarge
1 [2002] 3 WLR 247.

2 See H v Lord Advocate [2012] UKSC 24 at para [30].
Sources of the Constitution 27
or diminish the scope of what might be regarded as fundamental

constitutional rights. A number of important constitutional statutes
that will be the subject of discussion in later chapters were recognised
by Laws LJ as falling into this category (constitutional statutes are dis-
cussed at greater length in Chapter 3). The Acts of Union with Scotland
in 1707 and with Ireland in 1800 dealt with arrangements for combining
the English Parliament first with the Scottish Parliament and then the
Irish Parliament. The Parliament Act 1911 set limits on the powers of
the House of Lords in regard to legislation. The Representation of the
People Act 1918 extended the vote to all men over 21 and women over
30, and the Representation of the People Act 1969 reduced the voting
age so that all adults over 18 could vote. The European Communities
Act 1972 incorporated the Treaty of Rome and in so doing placed
important limitations on the sovereignty of the Westminster Parlia-
ment. The Scotland Act 1998, the Government of Wales Act 1998, and
the Northern Ireland Act 1998 set out the principles for devolution.
The Human Rights Act 1998 had the effect of incorporating the ECHR
directly into English law and in so doing provides the United Kingdom
with what is, in effect, a bill of rights.
THE COMMON LAW
In a system where judicial precedent applies, judicial decisions are

binding and are used to develop the law on a case-by-case basis. The
common law has always been an important source of the constitution.
Certain aspects of private law, particularly concerning contract and
tort, are comprised of rules originating from judicial decisions. There
are particular landmark cases that have expanded the common law
in a constitutional context. These decisions remain of constitutional
significance. For example, the case of Entick v Carrington3 concerned
trespass and placed limits on powers of the Crown and Secretary of
State to interfere with the person or property of the citizen without
lawful authority. More recently, the UK Home Secretary was found to
be in contempt of court for ignoring an order of the High Court in
M v Home Office4 (discussed in Chapter 3). However, it is important to
3 (1765) 19 State Tr 1029.

4 [1994] 1 AC 377.
note that decisions of the courts (including the Supreme Court, for-
merly the House of Lords) may be amended and overridden by later
statutes, eg the decision in Burmah Oil Co Ltd v Lord Advocate5 prompted
the UK Parliament to pass the War Damage Act 1965, which had retro-
spective effect. The courts accept the validity of Acts of Parliament and
thus validate the concept of parliamentary sovereignty. Although they
do not directly challenge legislation, part of their role is to interpret stat-
utes under established rules of statutory interpretation (see Chapter 7).
EUROPEAN UNION LAW
The European Communities Act 1972, which came into force on

1 January 1973, made the law of the European Community (now the
European Union (EU)) an important constitutional source. In Van Gend
en Loos6 the European Court of Justice had explained the implications
for member states of becoming a member:
The Community [now EU] constitutes a new legal order of international
law for the benefit of which the States have limited their Sovereign
rights … Independently of the legislation of member states, Community
law therefore not only imposes obligations on individuals but is also intended
to confer upon them rights which become part of their legal heritage.
Some categories of EU law have direct effect, which means that any
rights or obligations enjoyed by or imposed on any individual under
the Treaties can be enforced in the English courts. This body of law
is confined to those areas covered by the Treaty of Rome 1957 and
subsequent Treaties. Each Treaty (ie the Maastricht, Amsterdam, Nice
and Lisbon Treaties) has been incorporated into UK domestic law by
statute. The law emanating from Europe that applies in the United
Kingdom includes regulations, directives, and decisions. EU mem-
bership also means that rulings from the European Court of Justice
can be binding on domestic courts within the United Kingdom. The
importance of the EU was recognised by Lord Denning in Bulmer v
Bollinger,7 when he famously described the Treaty of Rome as being
‘like an incoming tide. It flows into the estuaries and up the rivers.
5 [1965] AC 75.
6 Case 26/62 [1963] ECR 1 at 12.
7 [1974] 2 All ER 1226.
It cannot be held back, Parliament has decreed that the Treaty is hence-
forth to be part of our law.’ Where it applies, EU law operates as a
higher order law and will have the effect of overriding domestic legal
provisions. The proposed European constitution was not proceeded
with after it was rejected in referendums held in France and Holland in
2004. The E uropean Constitution has been followed by the Treaty of
Lisbon which was signed on 13 December 2007. Notwithstanding the
opposition expressed to the attempt to introduce a European Constitu-
tion, this treaty contains many of the same provisions. For example,
it includes: a redistribution of voting weights between the Member
States and qualified majority voting; removal of the national veto in
areas such as climate change, energy, security and emergency aid; new
powers granted to the European Commission, European Parliament
and the European Court of Justice mainly in the fields of justice and
home affairs; and a co-decision procedure which puts the Parliament
on an equal footing with the Council for most legislation, including the
budget. The Lisbon Treaty was adopted and incorporated into UK law
by the European Union (Amendment) Act 2008 and it came into force
on 1 December 2009. (For further discussion of the EU see Chapter 3.)
The Treaty of Lisbon and the European Union Act 2011
Next, we turn to the implications of the Treaty of Lisbon and the

European Union Act 2011 on domestic constitutional arrangements.
From a constitutional angle we have already noted that the sacrifice of
sovereign power in a number of areas to a supra-national economic and
political organisation was a consequence of UK membership of the
European Economic Community (now the EU). As an important step
towards European stabilisation, a European Constitution was agreed
between member states in 2004.8 Although it was abandoned follow-
ing rejection in referendums in France and Holland, it was pointed out
above that many of its provisions found their way into the Treaty of
Lisbon. To some extent this measure might be regarded as a consolida-
tion process, knitting together the provisions of previous treaties into a
more coherent whole. As with national constitutions, moving towards
a constitution at European level seeks to embed a general commitment
8 www.unizar.es/euroconstitucion/Treaties/Treaty_Const.htm.
to core values and objectives, in this case, human dignity, freedom,

democracy, equality, respect for human rights, security, justice, as well
as economic freedoms, free movement of goods, capital, people, and
services.
Of course, the EU can already pass laws applying in member states
relating to external trade and customs policy, the internal market,
agriculture and fisheries, and many areas of domestic law, including
employment, the environment, and health and safety at work. The
Treaty of Lisbon has extended law-making into additional areas, includ-
ing aspects of criminal justice, and asylum and immigration law but the
UK and Ireland were able to negotiate a selective opt out. Further, to
facilitate more effective action among the greatly increased family of
nations, there is a redistribution of voting weights between nations and
the principle of voting by qualified majority is more generally applied,
but with a veto for members on foreign policy, defence, and taxation.
Some advocates of a European constitution shared the belief that a
reinvigorated Europe under a new constitution would enable Europe,
as a collective force, to be better able to stand up to its major competi-
tor, the United States, but also to resist the awesome power of finan-
cial markets and of global capitalism. For example, where individual
nations have been increasingly unable to act to regulate and control
the pressures exerted by multinational companies dominating markets,
it might be reasoned that a Europe-wide regulatory system would be
much better placed to intervene to protect consumers and to protect
the environment.
EUROPEAN CONVENTION ON HUMAN RIGHTS
Since the Human Rights Act (HRA) 1998 came into force in October
2000 the ECHR is incorporated as part of UK law. The ECHR can
be regarded as amounting to a constitutional charter of rights. As we
shall see in later chapters, the ECHR is an international treaty setting
out basic individual rights including: right to life; liberty and security;
prohibition of torture and slavery; right to fair trial; no punishment
without law; right to respect for privacy and family life; freedom of
thought, conscience, and religion; freedom of expression; freedom of
assembly and association; and prohibition of discrimination. All public
bodies, including the courts, are legally required to act in a way that is
compatible with the above rights, and a remedy may be sought if these
citizen rights are breached (see Chapter 8).
LEGAL TREATISES
The lack of a codified constitution has meant that academic and legal
treatises that describe and analyse the nature of the constitution as it
has evolved assume special status. For example, there are classic works
that may be cited with authority when seeking to establish how the
constitution operates. Walter Bagehot’s The English Constitution pro-
vided an influential account of parliamentary democracy during the
mid-Victorian period. It was famous for making a distinction between
the ‘efficient’ and ‘dignified’ parts of the constitution. The book was
published at about the same time as the Second Reform Act of 1867
extended the right to vote to 1.5 million male householders and distrib-
uted more parliamentary seats to the main industrial towns. Probably
the most influential contribution has been An Introduction to the Study
of the Law of the Constitution by AV Dicey, which was first published in
1885. Although this study was and still is controversial, for instance in
the sense that it might be characterised as hostile to modern forms of
democracy, Dicey nevertheless provides arguably the most persuasive
explanation of the core concepts of parliamentary sovereignty and the
rule of law. Parliamentary practice and procedure, which is obviously an
important part of the contemporary constitution, is frequently deter-
mined by reference to A Practical Treatise on the Law, Privileges, Proceedings
and Usage of Parliament, now in its 23rd edition. This work is referred to
simply as ‘Erskine May’ after the constitutional theorist who produced
the original volume. Contemporary studies by constitutional experts
are also relevant where there is a lack of clarity over aspects of consti-
tutional practice. However, relying on academic sources is apt to pres-
ent problems, since experts may differ in their interpretation of how
constitutional doctrine applies. For example, the studies by Professors
Christopher Forsyth and Sir William Wade and Professor Paul Craig on
the subject of administrative law adopt markedly different approaches.9
Constitutional treatises should be regarded as subordinate sources, which
9 See W Wade and C Forsyth, Administrative Law, 11th edn (Oxford, Oxford
University Press, 2014); P Craig, Administrative Law, 7th edn (London, Sweet &
Maxwell, 2012).
are only resorted to by the courts and other constitutional players when
there is no other established authority.
THE LAW AND CUSTOMS OF PARLIAMENT
The law and customs of Parliament refers to the resolutions of the two
Houses of Parliament that establish parliamentary practice (standing
orders of the House). This body of rules is of great political impor-
tance and it ranges from the regulation of debates to the functions
of the leaders of the government and opposition. MPs and peers can
change these rules. For example, the recommendations of the Select
Committee on Procedure (1978) were adopted following the 1979 gen-
eral election resulting in the introduction of the House of Commons
Departmental Select Committees to scrutinise the work of government
departments. It is important to note that as parliamentary rules and pro-
cedures are established by standing orders, they fall outside the scope of
both legislation and common law.
THE ROYAL PREROGATIVE
Many powers are exercised by ministers and officials under primary

or secondary legislation, but the Royal Prerogative refers to those pow-
ers which have been left over from the period when the monarch
was directly involved in the process of government. These remaining
powers, now mainly exercised by ministers, include: making treaties;
declaring war; deploying the armed forces; regulating the civil service;
and granting royal pardons. The prerogative powers continue to be
important for the operation of government in these areas, and the
prerogative powers have been recognised by judges in developing case
law. (The nature and extent of prerogative powers are discussed in more
detail in Chapter 4.)
PART II: CONSTITUTIONAL CONVENTIONS
Conventions are a particularly important source of the UK constitu-

tion and they are also crucial to understanding how the c onstitution
functions. In the remainder of this chapter conventions will be

discussed in more detail. An observer of the UK constitution would
Constitutional Conventions 33
build up a very incomplete account of its workings if attention was

given only to legal rules, since conventions, in the words of one com-
mentator, ‘provide the flesh which clothes the dry bones of the law.’ It
is evident that: ‘The legal structure of the constitution is everywhere
penetrated, transformed and given efficacy by conventions.’10
Conventions are the source of the non-legal rules of the constitu-
tion. They may be characterised as being associated with laws but at
the same time they are distinct from them. They lubricate the formal
machinery of government and assist in making government work. In
this sense they have an important practical dimension. It is very difficult
to settle constitutional disputes without understanding them. Moreover,
conventions allow what would otherwise be a rigid legal framework to
be kept up to date with the changing needs of government because they
are capable of evolving. In subsequent chapters we will be looking in
detail at a number of conventions, but first we need to understand why
conventions have been difficult to define and note the different areas
in which they apply.
DEFINING CONVENTIONS
The difficulty in defining conventions is mainly because they encom-

pass a wide range of practices, some of which are a lot more certain
than others. The important thing to remember is that they determine
many of the practices of government and aspects of conduct of state
institutions. They are not the result of a legislative or a judicial process
but rather often arise from what Professor Turpin calls ‘the hardening
of usage’ over a period of time. A failure to adhere to an important
convention might lead Parliament to cast a disputed practice into leg-
islative form.
Perhaps the most influential definition derives from AV Dicey, who
explained that11
the ‘conventions of the constitution’ consists of maxims or practices which,
though they regulate the ordinary conduct of the Crown, of ministers, and
of other persons under the constitution, are not in strictness laws at all.
10 Sir Ivor Jennings, The Law and the Constitution, 5th edn (London, University of
London Press, 1959) 81 and 113.

11 A Dicey, An Introduction to the Study of the Law of the Constitution, 10th edn
(Basingstoke, Macmillan, 1959), 24.

In recognising that conventions were mainly the customary rules

which determined how the discretionary powers of the state were
exercised, Dicey drew a special distinction between laws, which he
explained were enforceable in the courts, and conventions, and he
maintained that conventions were ‘rules intended to regulate the
exercise of the whole of the remaining discretionary powers of the
Crown.’ It is important to recognise that for Dicey the key character-
istic is that conventions, unlike laws, are not enforceable in the courts.
Conventions consist of the understandings, habits, practices, maxims,
and precepts that are necessary to regulate the conduct of the sov-
ereign, the Prime Minister, ministers, and officials, and also that of
other constitutional players. It is true to say that conventions are not
directly enforced in quite the same way as laws, but that the existence
of conventions has been recognised by the courts as part of judicial
reasoning. For example, in Attorney-General v Jonathan Cape Ltd 12 the
Attorney-General on behalf of the government was unsuccessful in
getting the court to enforce in the public interest the confidentiality
requirement which forms part of the convention of collective Cabinet
responsibility by getting the court to issue an injunction to prevent a
former Cabinet minister from serialising his memoirs. However, as
one commentator notes:
The Attorney-General may be said to have been victorious in this case in
gaining judicial acceptance of the principle that a legal obligation of con-
fidentiality attaches to Cabinet proceedings, even though the court decided
that the Crossman diaries no longer … retained their confidential character,
and so fell outside the protection of the law.13
Sir Ivor Jennings, approaching the task of definition from a different
perspective, suggested that three questions should be posed in order
to identify a valid convention.14 The first task is to determine whether
there is a precedent for the practice. Finding this out involves ascer-
taining how often and how consistently a practice has been observed
previously. The second question asks whether those operating the
12 [1976] QB 752.
13 C Turpin and A Tomkins, British Government and the Constitution, 7th edn
(London, Butterworths, 2011) 181.
14 Jennings, n 10 above, 131ff.
constitution have accepted the convention as binding. Could it be said

that an obligation is created by the practice under consideration? While
the first question merely requires a descriptive response, this second
question is much more problematic. Some conventions are both rela-
tively easy to identify and to follow and they are accordingly regarded
as binding, for example, the requirement that the Prime Minister must
be a member of the elected House of Commons. However, this is not
always the case. For example, the convention of individual ministerial
responsibility is of enormous constitutional importance. It concerns
the accountability of the executive to Parliament, but there is consid-
erable uncertainty over the exact way in which it applies. As we shall
see in Chapters 5 and 6, there is debate among experts concerning
how ministers are accountable to Parliament for shortcomings in their
department, and, in particular, the circumstances when resignation by a
minister is required. The final question posed by Jennings acknowledges
the strong pragmatic dimension to the constitution. It asks whether
there is a good political reason for the existence of a convention. By
taking another example we can see what Jennings had in mind. The
deference of the House of Lords to the House of Commons is very
important. The legitimacy of the Commons has increased because it
is the democratically elected House of Parliament. This approach also
illustrates that many conventions have arisen because of usage over a
period of time. During the constitutional crisis that followed the rejec-
tion of the budget in 1909 (explained further below) Prime Minister
Asquith reminded King George V that it had been established that the
Sovereign acts upon the advice of his or her ministers. He asserted
respectfully that there was no longer any doubt that the final decision-
making power rests with the elected government enjoying the confi-
dence of Parliament.
In some situations it may be difficult to know whether a practice
has actually been recognised as a convention. Determining the validity
of a convention may come down to establishing whether the actors
regard the conduct as binding upon them. Dicey believed conventions
formed part of a constitutional morality that is positive. Conventions
are followed because a failure to obey them would lead to legal difficul-
ties. For example, Parliament must assemble each year to pass financial
resolutions and make a budget to raise taxes and pay for the govern-
ment, armed forces, local government, etc. Dicey’s account does not
explain why parliamentary sessions continue beyond setting a budget.

In contrast, Jennings believed that disregarding conventions would
result in political rather than legal problems. The refusal of the House
of Lords to pass the budget in 1909 serves as an excellent illustration.
This action by the Lords was in clear breach of a convention, and this
failure to pass a Finance Bill prompted a political crisis for the obvious
reason that a government without a budget to pay officials and the
armed forces, and so on, could not govern. From the moment of the
budget’s rejection a stalemate existed between the elected House of
Commons and the mainly Conservative hereditary peers in the House
of Lords. After protracted negotiations, King George V agreed to cre-
ate sufficient peers to secure the passage of a Parliament Bill, curbing
the powers of the Upper House, but only if there was a mandate from
the electorate for the reform. After the general election in December
1910 returned a Liberal-dominated coalition committed to reform, the
Conservative peers in the House of Lords backed down and passed the
Bill. Apart from removing the general veto over legislation exercisable
by the House of Lords, the Parliament Act of 1911 placed in statutory
form what had been regarded as a convention, namely, that the House
of Lords could not veto or delay money Bills.
We can conclude this brief discussion by recognising that there is
no way of knowing with certainty what an established convention is,
except from the behaviour of the sovereign, politicians, or other offi-
cials responsible for operating it as part of the constitution. At least,
it might be said of some conventions that they are rules of political
practice that are regarded as binding by those to whom they apply. In
this sense it could be claimed that they therefore provide a prescriptive
view of what should happen in a range of given situations. However,
Professor Griffith has rejected an approach to the constitution which is
over-dominated by backward-looking conventions and he takes a much
more pragmatic view—‘the constitution is what happens’ and goes on
to suggest ‘if it works, it’s constitutional.’15 Since it is difficult to reach
a satisfactory definition beyond this discussion, it will be informative
to introduce some of the main conventions applying to the respec-
tive state institutions. Their constitutional importance will become
more fully apparent as we proceed with this discussion in subsequent
chapters.
15 J Griffith, ‘The Political Constitution’ (1979) 42 MLR 1 at 19.

THE PRACTICAL IMPORTANCE OF

CONSTITUTIONAL CONVENTIONS
Before discussing the various elements of the constitution in more

detail, it is important to be familiar with some of the main constitu-
tional conventions. It will be apparent from the examples discussed
below that many of these conventions are imprecise and may change
over time.
(1) The Crown
Most of the important conventions that operate in relation to the

sovereign bear witness to the passage of authority away from the
Crown, and in the majority of cases there is very little discretion left
with the monarch. For example, it has long been established that the
royal assent to Bills completing their passage through the House of
Commons and the House of Lords is never refused by the reigning
monarch. To do so would undermine the capacity of a representative
Parliament to pass legislation. By way of contrast, there are conventions
where some discretion may have to be exercised. It is a well-established
convention that the sovereign appoints the leader of the majority party
in the House of Commons to form a government and become Prime
Minister. Assuming one party enjoys such a majority, the leader of that
party will always be chosen to form a government. However, if no
party emerges from a general election as a clear winner (as occurred
after the 1931, 1974 and 2010 general elections) it was believed that the
monarch could decide whom to call upon to form a government. It is
well known that George V acted as facilitator in 1931 to allow Ramsay
MacDonald to emerge as the Prime Minister of a National Labour
government; however, after a hung Parliament was elected in 2010, ‘The
Queen and her advisers were insistent not only that she would in no way
be involved in the government formation process, but that she should
be seen not to be involved.’16 Previously, it appeared that advice may be
taken from experts, but the final decision over whom to appoint rested
with the monarch. In practice, after both the 1974 and 2010 general
16 V Bogdanor, The Coalition and the Constitution (Oxford, Hart Publishing,
2011) 19.
elections, the incumbent Prime Minister remained in office exploring

the p ossibilities before offering his resignation and recommending his
successor. As the changes in practice between 1931 and 2010 illustrate,
the convention has evolved. (For further discussion see Chapter 5: The
House of Commons and the formation of a government.) Bogdanor
recognises that the situation has changed, in effect side-lining the
Queen, a result of the fact that by the end of the twentieth century the
monarchy had become an increasingly symbolic institution. The lack of
clarity on such an important question has led to calls for statutory pro-
cedures to be set in place which would determine the outcome should
this situation recur.17
One of the most important constitutional conventions requires
the Sovereign to act upon the advice of the Prime Minister and his
or her ministers. In practice, although the business of government is
conducted in the name of the Crown the key decisions are taken at
ministerial level. Also, the sovereign’s speech given from the throne
in the House of Lords at the opening of each session of Parliament
setting out government policy is always written by the Prime Minister.
Further, it has been recognised by convention that, upon the request
of the Prime Minister, dissolution of Parliament will be granted by the
Sovereign allowing a general election to be held. Finally, it has long been
established that the sovereign in person cannot sit as a judge in his or
her own courts.18
(2) Prime Minister, Cabinet and Executive
Turning next to conventions in relation to the government and the

executive, the roles of the Prime Minister and Cabinet have developed
and continue to develop by convention. Sir Robert Walpole, usually
regarded as the first Prime Minister, depended heavily on the King’s
patronage and mainly operated as the King’s spokesman in Parliament.
Walpole, who was officially appointed First Lord of the Treasury, dis-
liked the use of the term ‘Prime Minister’, which carried with it the
connotation that he was royal favourite.19
17 Fabian Commission Report, The Future of the Monarchy (14 July 2003). See
Fabian Society website, publications archive.

18 See the famous case of Prohibitions del Roy (1607) 77 ER 1342; 12 Co Rep 63.
19 H Wilson, A Prime Minister on Prime Ministers (New York, Summit Books, 1977) 8.
Modern Prime Ministers continue to consult the monarch by having

regular meetings, but by the nineteenth century the appointment of
Prime Ministers came to depend on the results of the election process.
The person sent for had to be capable of forming a government com-
manding a majority in Parliament. It has also been established by con-
vention that the Prime Minister and the Chancellor of the Exchequer
must be members of the House of Commons and, as a result, directly
accountable to the electorate.
Furthermore, until very recently there had never been any law setting
out the formal limits on any of the prime ministerial powers. However,
the provisions contained in the Fixed Term Parliaments Act 2011 stand
out as an important exception. This is because, in future, barring excep-
tional circumstances such as the loss of a vote of no confidence in the
House of Commons, general elections will be held at five-year intervals
under the new Act rather than following the convention which has
allowed the Prime Minister to request that the monarch dissolve Parlia-
ment any time within the five-year maximum length of a Parliament set
out in the Parliament Act 1911 (see Chapter 6).
We shall see later that the Prime Minister’s powers have grown enor-
mously. Also, the precise relationship between the Prime Minister and
the Cabinet has never been defined with any precision. For example,
it has been suggested that during the course of the twentieth cen-
tury the Cabinet system changed from the Cabinet acting as the sole
decision-making body to the situation that prevailed up to the late 1970s
where decision-making took place within Cabinet committees. Under
Prime Ministers Thatcher and Blair, the Cabinet, rather than acting as
decision-making body or a principal forum for debate, met for regular
collegiate team-building and informal exchanges of views on policy
matters at senior ministerial level.20
The Constitutional Reform and Governance Act 2010 provides a
good example of legislation seeking to clarify an area that previously
depended largely on convention. As we shall see in Chapter 6, the Act
puts the running of the civil service on a statutory footing with formal
recognition of the Prime Minister’s power to manage the service. At the
same time it sets out procedures for the appointment of special advis-
ers to the Prime Minister’s personal office and in other government
20 A Seldon, ‘The Cabinet System’ in V Bogdanor (ed), The British Constitution in
the Twentieth Century (Oxford, Oxford University Press, 2003) 129.

departments. The role of 10 Downing Street and the Cabinet Office in

co-ordinating government had expanded according to the requirements
of the office of Prime Minister from the period of World War I until
the development of the contemporary machinery of government, but
this occurred without any formal regulation by statute.
Further conventions of central constitutional importance relating
to the Prime Minister and Cabinet are discussed in later chapters. In
particular, collective Cabinet responsibility requires the Cabinet to unite
around a policy position or for dissenters to resign. The convention
arose from the need to provide the sovereign with advice that was not
conflicting (see Chapter 5). Individual ministerial responsibility con-
cerns the accountability of ministers and the executive to Parliament
and requires ministers to be directly answerable to Parliament for their
actions (see Chapters 5 and 6).
(3) Parliament
Looking back historically, it has already been observed that the attempt
of monarchs in the seventeenth century to govern without Parliament
led to conflict between Parliament and the King. Since the Bill of Rights
of 1689 it has been established that Parliament is summoned at least
once a year. Furthermore, it is a convention of fundamental constitu-
tional importance in the Westminster type of parliamentary system that
the government should command a majority in the House of Com-
mons, and that if it is unable to do so the government should fall. The
rationale behind the convention is obvious. The government requires a
majority in the elected chamber to pass the legislation it needs to govern
effectively. The Prime Minister used to determine the date of an elec-
tion within a five-year limit, as set by the Parliament Act 1911. However,
the Prime Minister must offer to resign if his or her party loses a vote
of confidence in the House of Commons. The defeat will trigger a
general election.21 The strong impetus towards party organisation and
discipline within Parliament (particularly the House of C ommons)
21 Such a resignation followed by a general election last occurred in 1979 when
Prime Minister James Callaghan was defeated in a House of Commons vote of

confidence by a single vote.
has resulted from the application of this convention, which has been
recognised since 1841.22
Also, the so called ‘Salisbury convention’ recognises that the House
of Lords should not use its delaying power under the Parliament Acts
1911 and 1949 in respect of legislation which forms part of the elec-
toral programme of a governing party, once again showing deference
to the elected House of Commons. Many procedural questions relat-
ing to Parliament are determined by convention and these include: the
time allocated in the House of Commons to the official opposition;
the fact that political parties are represented on committees according
to the percentage of MPs supporting them; and the ‘pairing’ arrange-
ments for MPs through which government and opposition whips allow
for the non-attendance of MPs for votes in the House of Commons.
Finally, the Speaker is elected by members of the House of Commons
to preside over the House. Although the MP selected as Speaker will
have been a member of the government or opposition party, it is a
convention of the highest importance that she or he will, as Speaker,
act with strict impartiality.
(4) Judges and the Courts
The Bill of Rights 1689 and the Act of Settlement 1701 formally
recognised the importance of judicial independence by securing the
tenure of judges. But there are a number of conventions relating to the
judicial role. It is generally acknowledged that the professional conduct
of judges should not to be questioned in Parliament, except where
there is a substantive motion for dismissal. (Senior judges can only be
dismissed by Parliament using this procedure, and no senior judges
have been dismissed in modern times.) Until very recently there was no
clear separation of powers in the United Kingdom, as we will see when
discussing the role of the Lord Chancellor in Chapter 7. The Constitu-
tional Reform Act 2005 has established a UK Supreme Court outside
of Parliament and reformed a system of judicial appointments that pre-
viously depended upon informal soundings to determine the suitability
of possible judicial candidates (see Chapter 7). Nevertheless, it was
22 P Norton, ‘The House of Commons and the Constitution: The Challenges of
the 1970s’ (1981) 34 Parliamentary Affairs at 266–67.

already an accepted convention that judicial appointments were made

on merit (and not on the basis of political affiliation) and that serving
judges should not have any active involvement with party politics. (In
Chapter 7 we will assess how the courts deal with questions of legality
under the rule of law.)23 The other side of this coin is the convention
that ministers, as members of the executive branch, should avoid direct
comment on specific cases under consideration by the courts during the
course of litigation (particularly if the case involves the government).
CONCLUSION
In this chapter we have observed that the uncodified UK constitution

is comprised of a number of different sources, but it is quite clear
that statute law is the predominant source of the constitution, as is
evidenced by the recent battery of legislation reforming aspects of the
constitution (devolution, human rights, and freedom of information
Acts have been introduced since 1997, to name but a few examples).
The doctrine of sovereignty proposes that Parliament is all-powerful
and, in theory at least, has the capacity to determine the nature of the
constitution. The limits of this doctrine will be critically examined in
the next chapter. However, a substantial part of the discussion has con-
centrated on conventions as a constitutional source. Conventions vary,
from well-established practices that will be applied with predictable out-
comes to rather vague guidelines open to interpretation in the way that
they are applied. Failure to adhere to conventions can have far-reaching
consequences. The constitutional crisis following the budget in 1909,
discussed earlier, was caused because the House of Lords chose to
ignore the convention that recognised the predominance of the House
of Commons over the House of Lords on financial matters. Legisla-
tion in the form of the Parliament Act 1911 was necessary to prevent a
similar situation occurring. It has been suggested by some writers that a
23 Principles of judicial review have been developed which recognise the respec-
tive roles of the executive and the courts in regard to the decisions of public bodies.
In cases referred to them the courts deal with the legality of acts of public authori-
ties and set in place procedural safeguards, but the courts do not step into the shoes
of the decision-maker. See eg S Sedley, ‘The Common Law and the Courts’ in Lord
Nolan and S Sedley (eds), The Making and the Remaking of the British Constitution (Lon-
don, Blackstone, 1997).
more extensive process of juridification or codification would serve to

clear up other ambiguities surrounding the way conventions apply. It is
worth remembering, however, that all constitutions have conventions.
The UK constitution has more than its fair share, because the constitu-
tion as a whole has not yet been codified.
In general conventions have served the constitution well in filling
a gap between constitutional formality, in the sense of defining what
the actors should do to make the constitution work, and political real-
ity, in the sense of determining how such conduct might be modified
to take account of changing circumstances. In essence, conventions
provide built-in flexibility that can be regarded as a tremendous advan-
tage. However, certain conventions, in particular individual ministerial
responsibility, are of crucial importance in defining the mechanism for
accountability and for the control of executive power. Many writers
have argued that the rules surrounding this convention have not been
modified sufficiently to account for modern conditions of government
and the emergence of what is often termed the contracting state (see
Chapter 6 and the discussion of ‘elective dictatorship’).
FURTHER READING
Anthony G, UK Public Law and European Law: The Dynamics of Legal Inte-
gration (Oxford, Hart Publishing, 2002).
Bogdanor V (ed), The British Constitution in the Twentieth Century (Oxford,
Bradley A and Ewing K, Constitutional and Administrative Law, 15th edn
(London, Longmans, 2010).
Brazier R, Constitutional Practice: The Foundations of the British Constitution,
3rd edn (Oxford, Oxford University Press, 1999).
Dicey A, The Law and the Constitution, 10th edn (London, Macmillan,
1959).
Griffith J, ‘The Political Constitution’ (1979) 42 MLR 1.
Leyland P, ‘Constitutional Conventions and Preservation of the Spirit of
the British Constitution’ Diritto Publlico, Anno XX (2014), n 2, Maggio-
Agosto 2014, 411–31.
Marshall G, Constitutional Conventions: The Rules and Forms of Political
Accountability (Oxford, Oxford University Press, 1987).
Munro C, Studies in Constitutional Law, 2nd edn (London, Butterworths,

1999) ch 3.
Taylor R, ‘Foundational and Regulatory Conventions: Exploring the
Constitutional Significance of Britain’s Dependency on Conventions’
(2015) Public Law 614.
Van Caenegem R, An Introduction to Western Constitutional Law (Cambridge,
Wilson R, ‘The Robustness of Conventions in a Time of Modernisation
and Change’ [2004] PL 407.
3
Constitutional Principles

Parliamentary Sovereignty – Rule of Law – Separation of Powers
INTRODUCTION
A NY DISCUSSION OF the British constitution depends upon

a knowledge of the sources of the uncodified constitution,
allied to familiarity with the main principles which underpin
the current workings of the constitution. These concepts can be linked
to landmarks in constitutional history mentioned earlier, but, at the
same time, they are of central importance to current practice, and
they are open to interpretation in different ways. For example, it was
noted in the opening chapter that the Bill of Rights of 1689 makes the
Crown subject to the will of Parliament and that it also recognises that
Parliament (Crown, Lords, and Commons) has unlimited legislative
authority. In short: ‘The principle inherent in the Bill of Rights is the
supremacy of Parliament in law.’1 It will be necessary when discussing
the sovereignty of Parliament to assess what this apparently absolute
doctrine now means, given that the European Communities Act 1972
has been interpreted as allotting special status to European Union (EU)
law, and the Human Rights Act (HRA) 1998 requires judges to inter-
pret statutes according to the European Convention on Human Rights
(ECHR).
Another point worth making at the outset is that these doctrines are
related to each other. Laws gain their legitimacy from a democratically
elected sovereign Parliament before being scrutinised as part of the
1 C Munro, Studies in Constitutional Law, 2nd edn (London, Butterworths, 1999) 128.
46 Constitutional Principles
legislative process, but, at the same time, when implementing any such
laws, there needs to be a way of protecting citizens from arbitrary treat-
ment. Or, to put it another way, any discretionary powers given to the
police or officials must have legal bounds. Dicey was at pains to stress
that: ‘In England the idea of legal equality, or of the universal subjec-
tion of all classes to one law administered by the ordinary courts, has
been pushed to the utmost limit.’2 The rule of law was regarded by
Dicey as the idea that has the potential under the common law to qualify
the supremacy of Parliament, but we will soon discover that the rule of
law is difficult to define and it is not a neutral concept. Rather, it must
have a strong moral dimension. Professor Jowell has pointed out that it
‘bears an aura of moral compulsion and over the years has been invoked
to restrain the abuse of official power.’3
The final concept discussed in this chapter is separation of p owers.
Constitutions necessarily describe different kinds of powers and func-
tions and delineating the distinction between such powers and functions
is frequently a central issue in drafting a constitution. The objective is
almost invariably to prevent the concentration of too much unchecked
power in one set of hands. Obviously, the United Kingdom lacks a
custom-designed constitution embodying a strict separation of powers.
Nevertheless, the concept and language of separation of powers is still
relevant. Two aspects are mentioned as a prelude to the discussion that
follows later in this chapter. First, the judicial review procedure that has
developed under the rule of law results in the judicial branch oversee-
ing the activities of the executive branch to prevent abuses of power.
In this regard, the issue of judicial independence has been addressed
at important moments in constitutional history to allow the courts to
perform such a role. For example, the Act of Settlement of 1701 (see
Chapter 1) protected judges from summary dismissal, and the recent
Constitutional Reform Act 2005 (see Chapter 7) sets in place a system
for judicial appointments that seeks to minimise executive interference.
Second, in the United Kingdom there is no separation between the
legislative and executive branches since ministers must be Members of
Parliament. Such a fusion between legislative and e xecutive functions
(Basingstoke, Macmillan, 1959) 193.

3 J Jowell, ‘The Rule of Law Today’ in J Jowell and D Oliver (eds), The Changing
Constitution, 5th edn (Oxford, Oxford University Press, 2004) 6.

Parliamentary Sovereignty 47
at the heart of the system (as exemplified in the former p osition of

the Lord Chancellor: see Chapter 7) has led commentators to consider
whether formal and informal ‘checks and balances’ which exist as part
of constitutional practice are sufficient to achieve adequate constitu-
tional accountability by ensuring the containment of a powerful execu-
tive branch.
PARLIAMENTARY SOVEREIGNTY
The legal sovereignty of Parliament was regarded by Dicey as the

founding principle of the constitution. In his words, it meant that
‘Parliament … has under the English constitution the right to make
or unmake any law whatever; and, further, that no person or body is
recognised by the law of England as having a right to override or set
aside the legislation of Parliament,’ and it is ‘the very keystone of the
law of the constitution,’4 in the sense that the sovereignty of Parlia-
ment is a fundamental rule upon which no legal limits could be placed.
This emphasis on the absolute power of Parliament is because in the
absence of a codified constitution the all-powerful position of Parlia-
ment in its capacity to act as law-maker assumes special importance. In
the first place, parliamentary sovereignty holds that, in theory at least,
Parliament comprising the House of Commons, the House of Lords,
and the Sovereign has the capacity to pass or repeal any law without any
legal limits. As Blackstone remarked, it confirms that ‘Parliament can do
everything that is not naturally impossible.’5
Second, a crucial aspect of the sovereignty of Parliament is that
provisions in a more recent statute will prevail over those in an older
statute. This is the essence of the doctrine of implied repeal and it
would appear to follow from this proposition that Parliament cannot
bind its successors. This limitation is because any pre-existing law can
be superseded by an Act passed by a later Parliament. And it is a rule that
has special importance in a constitutional context, because, on one view,
if this applies strictly, it means that the entrenchment of constitutional
principles/bill of rights is not possible. The capacity of P arliament to
4 Dicey, above n 2, 40 and 70.

5 W Blackstone, Commentaries on the Laws of England, Book 1, 19th edn (London,
Sweet & Maxwell, 1836) 161.
reconstitute itself and entrench basic principles has been the subject of
much theoretical debate in academic circles.6 For example, a critique by
Sir Ivor Jennings of the orthodox theory argues that the rule of rec-
ognition as explained by Dicey is a common law concept.7 It has been
accepted by the courts that statute law is superior to the common law.
In consequence, it follows that Parliament can enact legislation chang-
ing this rule by drafting a statute that requires the courts to accept that
some Acts of Parliament are protected from repeal by simple majority
vote. In other words, if judges are subordinate to Parliament then Par-
liament can tell the judges what rules to follow in determining whether
or not a statute is unconstitutional. At a practical level, following the
far-reaching changes of recent years, it will be important for us to con-
sider below whether the conference of power on other bodies has had a
significant impact on sovereignty. To put it simply, has sovereignty really
shrunk, as some commentators have contended?8
There is an influential view developed by Wade9 and Allan which
maintains that Parliament’s sovereignty is itself established through
judicial acceptance under the common law: ‘Legislation obtains its
force from the doctrine of Parliamentary sovereignty, which is itself a
creature of the common law and whose detailed content and limits are
therefore of judicial making. Parliament is sovereign because the judges
acknowledge its legal and political supremacy.’10 The next step in this
argument is to maintain that a statute which flies in the face of com-
mon law values, eg because the measure is outrageously undemocratic,
might be declared invalid by the courts. (As we note when discussing
the Jackson case below, some House of Lords judges have repeated the
highly controversial suggestion that primary legislation in extremis might
by challenged in the courts.)11 One obvious objection to the common
6 See J Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Oxford,
Oxford University Press, 1999) ch 2, ‘Defining Parliamentary Sovereignty’.

7 I Jennings, The Law and the Constitution, 5th edn (London, University of
London Press, 1959) 152ff.

8 Munro, above n 1, 149.
9 W Wade, ‘The Basis of Legal Sovereignty’ (1955) 13 Cambridge Law Journal 172.
10 T Allen, Law, Liberty and Justice (Oxford, Oxford University Press, 1993) 10.
The point has been made that it could hardly, without circularity, be a doctrine based
on statutory authority.
11 See Lord Steyn, Lord Hope, and Baroness Hale in Jackson v Attorney-General
[2005] UKHL 56, [2006] 1 AC 262.

law view takes things back a stage further and questions the legal source
of judicial authority to make the common law: ‘The only alternative
consistent with the argument is to think judges conferred authority on
themselves.’12
Third, the sovereignty of Parliament means that there is no other
body that has authority to challenge the validity of laws made by
Parliament in the proper manner. This aspect of the doctrine contradicts
a view held earlier that ‘an Act of Parliament could be disregarded in so
far as it was contrary to the law of God or the law of nature or natural
justice … [when] the supremacy of Parliament was finally demon-
strated by the Revolution of 1688 any such idea has become obsolete.’13
Article IX of the Bill of Rights of 1689 provided that ‘proceedings in
Parliament ought not to be impeached or questioned in any court or
place out of Parliament.’ This assertion has been taken to mean that stat-
utes passed by Parliament cannot be challenged by the courts in regard
to their validity. For example, in British Railways Board v Pickin14 the plain-
tiff was adversely affected by a private Act of Parliament, namely the
British Railways Act 1968. He attempted to argue that it was invalid on
the grounds that Parliament had been misled as to relevant facts during
the Bill’s passage through Parliament and also that certain procedural
rules (standing orders) of the House of Commons had been ignored.
The challenge was rejected on final appeal to the House of Lords.
Lord Morris confirmed: ‘When an enactment is passed there is finality
unless and until it is amended or repealed by Parliament.’ On the issue
of the courts not being able to question the way legislation is passed,
Pickin remains good authority. However, in Jackson v Attorney-General 15
(discussed in more detail below) it was unanimously held that the courts
had jurisdiction to determine whether the disputed statute (the Hunting
Act 2004) was a valid Act of Parliament. Had the court decided that
this was not a valid statute, it would not have been able to set aside the
legislation (the legislation would remain in force), but the court had the
power ‘to ascertain the validity of a purported Act of Parliament.’16
12 J Goldworthy, The Sovereignty of Parliament: History and Philosophy (Oxford,

13 Munro, above n 1, 130.
14 [1974] AC 765.
15 Above n 11.
16 A Young, ‘Hunting Sovereignty: Jackson v Her Majesty’s Attorney General’
[2006] PL 192.
A further crucially important point about legal sovereignty that will

be relevant in relation to many issues under discussion in this book is
that this principle determines the relationship between Parliament and
the courts. It means that although the courts have an interpretative
function in regard to the application of legislation, it is Parliament, and
not the courts, which has the final word in determining the law. This is
markedly different from most codified constitutions. For example, in
the United States, the Supreme Court held in Marbury v Madison17 that
it could determine whether laws passed by Congress and the President
were in conformity with the constitution, permitting judicial review of
constitutional powers. The situation in the United States is that ulti-
mately there is judicial rather than legislative supremacy.
Before we further examine the current limits of sovereignty it is
worth pointing out that with each of the measures of constitutional
reform introduced post-1997 great care was taken to preserve the
sovereignty of the Westminster Parliament (for example, in regard to
devolution, see section 28 of the Scotland Act 1998). Also, the HRA
1998 is specifically designed not to undermine the doctrine of sover-
eignty. The courts cannot invalidate primary legislation which conflicts
with rights under the ECHR; they are empowered only to make what
is called a ‘declaration of incompatibility’ (see Chapter 7 for a more
detailed discussion).
Express Repeal and Implied Repeal
In explaining the limits of parliamentary supremacy, it is important to

understand the difference between express and implied repeal. Express
repeal is relatively straightforward to set out. This is when a later statute
declares that the whole or part of an earlier statute is being amended
or repealed by the provisions that are being currently introduced. In
legal terms there is general agreement among commentators that the
power of the Westminster Parliament expressly to repeal legislation
remains in place despite developments such as EU membership and
the HRA 1998. However, it would be more accurate to say that any
limitations to this power are likely to be political rather than legal.
17 (1803) 1 Cranch 137.

For example, if Parliament decided to remove the right to vote at elec-

tions the resulting law would be legally valid, but the attempt to take
away such a basic right might, at the same time, precipitate demonstra-
tions and civil unrest. Similarly, there would be no legal impediment to
Parliament repealing, for example, the Nigeria Independence Act of
1960 with provisions that purported to re-impose colonial status. Such
an Act would, however, be unenforceable, and would no doubt also
result in strong condemnation from Nigeria itself.
If we turn to implied repeal, the situation in regard to the scope of Par-
liament’s power is less clear when there is a lack of consistency between
an earlier and a later statute, without any guidance as to which will apply.
There was, at one time, clear judicial authority to support the idea that
a later statute will always prevail over an earlier one. A seminal case on
this point is Ellen Street Estates v Minister of Health.18 A court had to deter-
mine what should happen where a provision (or provisions) in an earlier
statute clashed with those in a later statute, and whether an attempt to
bind a future Parliament was valid. This conflict concerned the construc-
tion of the Acquisition of Land Act 1919 and the Housing Act 1925.
Section 7(1) of the Acquisition of Land Act 1919 was worded so that it
might appear to bind later statutes, and the compensation scheme in this
Act was more generous than that in the Housing Act 1925. A litigant was
seeking to take advantage of the earlier scheme. However, the Court of
Appeal held that, even if it had been the intention of the earlier Parlia-
ment to bind future Parliaments, the provisions of the later statute would
take precedence. Maughan LJ stated: ‘The legislature cannot, according
to our constitution, bind itself as to the form of subsequent legislation
and, it is impossible for Parliament to enact that in a subsequent statute
dealing with the same subject-matter there can be no implied repeal.’19
We need to examine why this doctrine stated by Maughan LJ has
been significantly qualified by recent constitutional developments.
Dicey was able to argue in the late nineteenth century that parliamen-
tary legislation was supreme in the hierarchy of law, and that all statutes
emanating from Parliament had equal authority, with the most recent
prevailing. It is clear that this is no longer the case since certain Acts of
Parliament have come to have special significance.
18 [1934] 1 KB 590.
19 Ibid, at 597.
Sovereignty and European Union Law
It will be obvious that EU law emanating from the Treaty of Rome (and
subsequent Treaties such as the Treaty of Lisbon 2007 which was incor-
porated into UK law by the European Union (Amendment) Act 2008)
and developed by the European Court of Justice has fundamentally
qualified the concept of parliamentary sovereignty. The EU comprises
an additional institutional layer of government, operating at supra-
national level. For example, it consists of the European Commission,
which is formed from Commissioners appointed by the governments
of member states. This body is expected to represent the interests and
objectives of the EU and is mainly concerned with initiating propos-
als, decision-making, and the implementation of rules throughout the
EU. The Council of the EU, which comprises ministers from member
states, exercises legislative and executive powers and functions. Further,
there is a European Parliament, which consists of members elected in
each member state. Although the European Parliament was not origi-
nally designed as a law-making body, it has to be consulted in the leg-
islative process under the co-decision procedure. The important point
to stress is that the European legislative process gives rise to particular
forms of law which apply in the United Kingdom. Most prominently,
there are regulations, which have general application in all member
states, and there are directives, which are sometimes capable of having
direct effect in the event that they are not implemented by individual
member states. Membership of the EU means that for as long as the
1972 Act and successive legislation incorporating later Treaties remain
in force, the UK Parliament has surrendered its powers to legislate in
regard to those areas covered by EU law.
The effect of EU law may be to confer rights directly on individu-
als that national courts must protect. As Lord Denning recognised in
Bulmer v Bollinger 20 (see Chapter 2), this body of law has direct effect
within member states and it has to be applied by the courts. When con-
sidering the limits of sovereignty we need to be clear about the status
of EU law within individual member states. The decision in Van Gend
en Loos 21 paved the way for the establishment of the supremacy of this
body of law by developing the doctrine of primacy. It was in this ruling
20 [1974] 2 All ER 1226.

21 [1963] CMLR 105.
that the ECJ held that ‘the [EU] constitutes a new legal order of interna-
tional law for the benefit of which the states have limited their sovereign
rights, albeit within limited fields, and the subjects of which comprise
not only Member States but also their nationals.’ For our purposes,
the radical impact of EU law can be demonstrated by reference to the
landmark decision in R v Secretary of State for Transport, ex parte Factortame
(No 2).22 The facts concerned the granting of fishing rights. The
Merchant Shipping Act 1988 (section 14) established a new register of
UK vessels restricted to those who satisfied certain conditions. One of
these conditions specified that only vessels with 75 per cent or more
UK ownership were eligible for registration. It was argued by the appli-
cants, who were directors of Spanish companies, that this requirement
infringed the anti-discrimination provisions of the Treaty of Rome on
grounds of nationality. The matter was referred by the House of Lords
to the ECJ in Luxembourg.
The ECJ ruled that domestic courts were required to ensure effec-
tive protection of EU law rights. The Merchant Shipping Act 1988
obviously contravened rights recognised under EU law, and it followed
that the UK domestic courts should not be precluded from granting
interim relief to protect these rights. In line with its earlier decision in
the Simmenthal Case 23 the ECJ had focused on the effectiveness prin-
ciple and on the obligation of national courts under Article 5 (now 4.3
TEU) of the Treaty to ensure observance by setting aside obstructive
national rules which precluded or limited the grant of an appropriate
remedy. The ECJ did not actually specify the conditions under which
a national remedy, such as interim relief, should be granted in a given
case. The House of Lords was left to decide this point in accordance
with national principles. However, the ECJ made clear that a rule that
prohibited absolutely the grant of interim relief would contradict the
principle of effectiveness.24
In Factortame (No 2) the House of Lords recognised that domestic
legal systems were required under the Treaties to enforce directly
22 [1991] 1 AC 603, [1991] 3 CMLR 769.

23 Case 106/77, Amministrazione della Finanze dello Stato v Simmenthal SpA [1978]
ECR 629.
24 See P Craig, ‘Britain in the European Union’ in J Jowell and D Oliver, The
Changing Constitution, 5th edn (Oxford, Oxford University Press, 2004) 99.
e ffective rights under EU law. Following this ruling by the ECJ,25 the
House of Lords issued an injunction preventing the minister from
enforcing the nationality requirements under Part II of the Merchant
Shipping Act 1988 which were in conflict with EU law. Lord Bridge
stated: ‘to insist that, in the protection of rights under [EU] law, national
courts must not be inhibited by rules of national law from granting
interim relief in appropriate cases is no more than a logical recogni-
tion of [the] supremacy [of EU law].’26 This decision confirmed that,
in those areas covered by the Treaties, Parliament no longer reigns
supreme; it will be European and not domestic law which predomi-
nates. In R v Secretary of State for Employment, ex parte Equal Opportunities
Commission 27 the House of Lords, building on the Factortame decision,
recognised that even a primary statute could be declared incompatible
with EU law and held that in the instant case domestic equal opportuni-
ties legislation was contrary to Article 119 (now TFEU Article 157) and
EU directives. Their Lordships further held that all national courts now
had authority to review primary legislation where issues of compatibil-
ity with EU law arose.
UK membership of the EU represents a significant qualification to
the principle of parliamentary sovereignty. The doctrine of primacy
requires that EU law prevail over domestic law in all areas covered by
the Treaties. Although the European Communities Act (ECA) 1972
and the legislation incorporating subsequent Treaties passed through
Parliament in the same way as other statutes, these measures can be
regarded as a special kind of legislation. There is general agreement that
the ECA 1972 (and subsequent Acts incorporating the Treaties) could
be expressly repealed by Parliament. This step would be necessary if
the United Kingdom ever decided to bring to an end its membership
of the Union. However, assuming that this does not happen, the effect
of sections 2(1), 2(2), and 3 of the ECA 1972 is to make the European
Treaties, and the legislation emanating from them, the most authorita-
tive source of UK law. After it was established in the courts that the
will of Parliament had been to make domestic law subject to EU law, a
major exception to the principle of implied repeal had been established.
25 Case C-213/89 R v Secretary of State for Transport, ex parte: Factortame Ltd [1990]
ECR I-2433.
26 [1991] AC 603 at 658.
27 [1995] 1 AC 1.
The wider constitutional and legal implications of such qualifica-

tions to sovereignty have become increasingly apparent. In Thoburn v
Sunderland City Council 28 it was stated that ‘In the present state of its
maturity the common law has come to recognise that there exist rights
which should properly be classified as constitutional or fundamental …
And from this a further insight follows. We should recognise a hierarchy
of Acts of Parliament: as it were “ordinary” statutes and “constitu-
tional” statutes.’ Laws LJ proceeded to reason that the two categories
must be distinguished on a principled basis. In essence, he suggests
that constitutional statutes are pieces of legislation which condition the
legal relationship between citizen and state in some general, overarch-
ing manner, or which enlarge or diminish the scope of what might be
regarded as fundamental constitutional rights. Such legislation might do
both these things. The special status of constitutional statutes follows
the special status of constitutional rights. Many examples can be cited
from the well-known landmarks of constitutional history. Any such list
would include: the Magna Carta 1215; the Bill of Rights 1689; the Act
of Union 1707; the Reform Acts which distributed and enlarged the
franchise; the HRA 1998; the Scotland Act 1998; and the Government
of Wales Act 1998. After making this distinction Laws LJ controver-
sially suggests that ordinary statutes may be impliedly repealed while
constitutional statutes may not repealed in this way. There would be a
requirement of express or specific words in the later statute to achieve
the result. In brief, it would appear that this amounts to recognition of
a higher order of laws operating at a constitutional level. An area where
the constitutional status of statutes will be put to the test is in situa-
tions where the government uses its power to dominate Parliament to
produce legislation that undermines the rights and liberties of citizens.
The Anti-Terrorism, Crime and Security Act 2001, which granted the
authorities extended powers to detain terrorist suspects, is one such
example, which is discussed further in Chapter 7.
Stemming the Erosion of Sovereignty: The European

Union Act 2011
There has been considerable, and it appears growing, evidence indicat-

ing disenchantment with the European Union from the wider electorate
28 [2003] QB 151.
in the UK and also in other European member states.29 In particular, the

views of the Eurosceptic wing of the Conservative Party were reflected
in a 2010 manifesto commitment preventing the transfer of any further
sovereignty to Europe without a mandatory referendum. The European
Union Act 2011 was passed in an attempt to prevent the incremental
ceding of power to the EU.30 In particular, the Act introduces a com-
plicated series of ‘locks’ by providing for parliamentary approval and
a referendum to be held throughout the United Kingdom on new EU
treaties, proposed EU treaty changes31 or where the European Council
has adopted an Article 48(6)32 decision which would transfer significant
powers from the UK to the EU. For example, section 2(3)(a) states that
the Act providing for the approval of the treaty cannot come into force
until ratification by referendum has taken place. The minister is required
to present a statement before Parliament with reasons on whether a
given provision falls within Article 48(6) and to judge whether it is sig-
nificant enough to trigger a referendum.33 Moreover, the Act requires
that the referendum approving the treaty provision or extension of
powers must be held before the government agrees to implement the
provision of EU law. This suggests that having negotiated and agreed
on the treaty or provision at EU level but before bringing it into effect,
there must now be approval by Parliament and approval by referendum.
Another clear objective of this Act is to ensure that legislation would
have to be passed before a ‘ratchet clause’34 or bridging clause in the EU
Treaty could be used.35
29 For example, www.democracymovementsurrey.co.uk/dyk_pollwatch.html;
the United Kingdom Independence Party (UKIP), a party which campaigns on the
single issue of UK withdrawal from the EU, polled 3.2% of the votes cast in the
2010 general election; France and Holland rejected the EU Constitution in refer-
endums held in 2005.
30 The Act enables the UK to ratify a Protocol to allow additional European Par-
liament seats for the UK and 11 other member states during the current European
Parliament term, and to legislate for the extra UK seat.
31 European Union Act 2011, s 2 and s 3.
32 European Union Act 2011, s 4 sets out cases where a referendum is required.
Under s 6 of the Act certain types of decisions are made subject to the referendum
requirement.
33 European Union Act 2011, s 5.
34 This refers to self-amending provisions granting further powers to the EU
brought in by the Lisbon Treaty.

35 A rachet clause in this context refers to provision that national vetoes block-
ing European issues can be progressively dispensed with under the Lisbon Treaty.
The status of existing EU law is not affected by the 2011 Act.

However, section 18 contains what has been controversially termed a
sovereignty clause.36 The clause states that directly applicable EU law
is recognised in the United Kingdom only by virtue of section 2(1) of
the European Communities Act or by virtue of any other Act of Parlia-
ment. This approach recognises that EU law already in force is valid.
It means, for example, that the supremacy clause in the Lisbon Treaty
guaranteeing primacy continues to apply. It would take the express
repeal of the European Communities Act 1972 and other relevant
legislation by the UK Parliament to have the effect of nullifying these
commitments. Although the Act does not affect the primacy of exist-
ing EU law it has the potential to undermine the future development
of Europe. Given the hostility to the EU, substantial treaty changes are
unlikely to gain popular approval in the future, but if the provisions are
strictly interpreted it raises the spectre of regular referendums at pro-
digious expense. These might be triggered on relatively minor technical
matters of EU law of little interest to the wider electorate. Another
question now arises as to what the courts should do in respect of an Act
of Parliament that, after a ‘no’ vote in a referendum, derogates from an
EU Regulation or Directive. Would the derogating Act be interpreted
so as to trump EU law?37 This is a complex piece of legislation which,
quite apart from the referendum requirements, appears to place a con-
siderable burden on ministers and on parliamentary time.
The Human Rights Act 1998 and Sovereignty
A limit to the doctrine of implied repeal is equally relevant to any

discussion on human rights. In effect, the HRA 1998 incorporates the
rights contained in the ECHR. The Act allows the courts to provide
effective legal remedies for the breach of Convention rights while for-
mally adhering to the doctrine of parliamentary sovereignty. As we shall
36 Professor Craig and several others giving evidence before the European
Scrutiny Select Committee considered it nothing more than a restatement of dual-

ism and nothing to do with sovereignty. See www.publications.parliament.uk/pa/
cm201011/cmselect/cmeuleg/633/63307.htm#a11.
37 European Union Bill Report, 13th Report of Session 2010–11, Select Com-
mittee on the Constitution, HL Paper 121.

see later (Chapter 7), the effect of the Act is to put all public a uthorities
(government and civil service, local and devolved government, the
police, and the courts) under a legal duty to uphold this charter of
rights. To inhibit non-compliance, ministers, when introducing parlia-
mentary Bills, are required to issue a statement to the effect that the
proposed legislation will be compatible with Convention rights, and this
statement is published on the face of the Bill. The Act appears at one
level specifically to preserve parliamentary sovereignty if a court makes
a declaration of incompatibility this does not invalidate primary legis-
lation. However, in an important sense here, too, there is no implied
repeal, since the courts have been required from 2 October 2000 to
interpret all subsequent legislation in a way that is compatible with
Convention rights, if it is possible for them to do so. The purposive
construction of subsequent statutes (the rule of construction which
requires the courts to give priority to Convention rights when interpret-
ing any statute) results in this provision under the HRA 1998 prevailing
over a subsequently enacted statute. This exception to sovereignty is
confined to situations where the courts are called upon to interpret the
will of Parliament in respect to European Convention rights. Unlike the
New Zealand model, there is no provision in the HRA 1998 to apply
the doctrine of implied repeal when interpreting the Act, which means
that Convention rights will be presumed by the courts to be protected,
unless it is expressly stated to the contrary in a subsequent statute. (See
Chapter 7 for further discussion of the effects of the HRA.)
Political Sovereignty: Elections and Referendums
Dicey argued that political sovereignty (as opposed to legal sovereignty,

which rests with Parliament) lay with the electorate and it is therefore
associated with representative and responsible government. Political
sovereignty is based on the doctrine of the mandate. It means that
manifesto policies are carried out by legislation passed by Parliament
(we will be noting that the extension of franchise actually strengthened
the power of government, not that of Parliament). However, the for-
midable powers to legislate without constitutional qualification allow
a government with a popular mandate to make wide-ranging changes,
including constitutional reforms. Thus, according to the Whitehall
Model of executive dominance expounded by Birch, the government
controls Parliament and not Parliament the government.38 Indeed,

the term ‘elective dictatorship’ was used by Lord Hailsham to explain
how parliamentary sovereignty had turned into the sovereignty of the
House of Commons, which in turn is dominated by the party machine
in the hands of the Prime Minister and the civil service.39 However, it
can be argued that a different notion of popular sovereignty has been
emerging as part of the contemporary constitution. According to the
traditional model of the constitution which persisted until the mid-
1970s, MPs were elected as representatives of their constituents and
were sent to Parliament to decide matters on their behalf. Where there
was a matter of major constitutional importance (eg Parliament Act
1911 restricting the powers of the House of Lords) which arose and
needed to be settled urgently by reference to the wider citizenry, a gen-
eral election was used to determine the issue. Two elections were held
in 1910 to ensure the government had a mandate for House of Lords
reform. In February 1974, at a time when the nation was in the throes
of a miner’s strike which was causing fuel shortages and power cuts,
an early election was called on ‘who governs Britain?’. However, ref-
erendums have since been used to gauge public opinion.40 In order to
put an end to the controversy following the decision by Prime Minister
Edward Heath’s government to join the European Economic Commu-
nity (European Union) in 1973 without gaining the approval of voters,
a referendum was held by his successor as Prime Minister, Harold Wil-
son. The referendum campaign allowed both pro- and anti-common
market views in both main parties to be articulated and then put to the
electorate. The decisive vote in favour had the desired effect of remov-
ing the question of UK withdrawal from the forefront of politics. The
referendum arising from the 2010 coalition agreement on whether to
change the electoral system to the alternative vote method has been
the only other national referendum since, and the decisive ‘no’ vote has
similarly had the effect of erasing electoral reform from the immediate
political agenda. In order to placate demands north of the border for
38 A Birch originally expounded this view in 1967; now see The British System
of Government, 10th edn (London, Routledge, 1998) 163ff.

39 Lord Hailsham, ‘Elective Dictatorship’ (Richard Dimbleby Lecture, 1976).
40 ‘Referendums in the United Kingdom’ Report with Evidence, House of
Lords, Select Committee on the Constitution, 12th Report of Session 2009–10,

HL Paper 99.
independent status the Westminster government conceded a binding

referendum on Scottish independence which was held in September
2014. Although the statistical margin of 55 per cent to 45 per cent in
favour of the union would appear to indicate that the matter had been
settled, in practice, the campaign added impetus to the cause of Scottish
Nationalists. In response the pro-union parties (Conservatives, Liberal
Democrats and Labour) entered into a strong commitment to confer
more powers on the Scottish Parliament, including tax-raising pow-
ers and other executive functions. Despite proceeding down this path
with the promise of further legislation, Nationalist success in the 2015
General Election has demonstrated the rising tide of support for the
Scottish Nationalists.
In light of what appears to be an emerging trend by politicians to set-
tle questions that are perceived as controversial and challenging by using
this device, the question arises as to whether a clear rule or convention
should be adopted to determine the circumstances when a referendum
should be held. It has been suggested that the litmus test might be that
a fundamental constitutional issue is at stake.41
Although national referendums might be regarded as exceptional,
since 1975 regional referendums have become an increasing part of
the contemporary UK constitution. Perhaps most prominently they
have been employed in relation to the introduction of devolution (see
also Chapter 8). The form of devolution proposed in the Scotland
and Wales Acts of 1979 was made contingent not just on gaining
majority approval in referendums in Scotland and Wales but also on at
least 40 per cent of those entitled to vote voting ‘yes’ for each of the
schemes to be activated. The threshold was not achieved and the pro-
posals therefore lapsed. No such requirement was included two decades
later when altogether different forms of devolution were put to the vote
in Scotland, Wales and Northern Ireland. The decisive votes in favour
in Scotland and Northern Ireland were a welcome demonstration of
support for the proposals that had been agreed by the Westminster
Parliament (see Chapter 8). Nevertheless, the Welsh Assembly govern-
ment was successfully launched despite only being approved by the
narrowest of margins. Equally, the introduction of an elected Mayor
and Assembly for London depended on first gaining approval in a
London-wide referendum. In effect, referendums have been used in
41 Ibid.
each of these cases to consolidate major constitutional change. Popular

endorsement arguably lends more permanence to the reform. Margaret
Thatcher’s government was able simply to abolish the Greater London
Council as a level of local government. However, it would be much
more difficult in terms of practical politics for the central government
to sweep away devolution and/or the London Mayor and Assembly
without first gaining approval at a referendum.
In recent years there have been statutes to introduce regional gov-
ernment and local government reform which employ referendums.
These go beyond testing the water in advance of reform but rather
are intended as a mechanism to promote deeper participation in the
political process. The implementation of proposals for elected regional
assemblies42 depended on a referendum being held in each of the
designated regions to approve the principle.43 There was no scope
under the Act to hold a general referendum in England on the broad
principle of democratically elected regional government. The decision
to set up the referendum process on a region-by-region basis at the
behest of the Secretary of State was included because of a lack of polit-
ical support for regional government in most parts of England. In the
event the proposals for the north-east were overwhelmingly rejected,
but had this scheme been approved in this referendum, a single English
region would have been given a different form of regional governance
while citizens in the remainder of England would not have been given
the opportunity to vote on this important constitutional issue. Under
the Local Government Act 2000 a referendum to replace an existing
local council with an elected mayor and cabinet or a leader and cabinet
would be held following a petition signed by five per cent or more of
local electors.44 As part of the ‘big society’ project to empower commu-
nities the Localism Bill (enacted as the Localism Act 2011) would have
allowed referendums to be held on local issues, triggered by a petition
of the local community.45 If it had been put into effect this proposal
would have taken power away from elected local politicians.
42 Your Region, Your Choice: Revitalising the English Regions, Cm 5511 (2002).
43 Regional Assemblies (Preparations) Act 2003, s 1.
44 Local Government Act 2000, s 34.
45 I Leigh, ‘The Changing Nature of Local State’ in J Jowell, D Oliver,
C O’Cinneide (eds), The Changing Constitution, 7th edn (Oxford, Oxford University
Press, 2015) 291.
At the same time, the Localism Act might be regarded as a centralising

measure as it empowers the Secretary of State to use referendums both
to test support for elected mayors in England’s largest cities46 and to
block the spending of local authorities if this threatens to exceed the
limits set by the Department of Communities and Local Government
and the Treasury.47 Also, it will be apparent from the discussion above
that the European Union Act 2011 introduces complex provision for
the holding of referendums in a negative sense to prevent the erosion
of sovereignty at the hands of the Europe Union.
In terms of the overall national picture this discussion reveals that
there are no clear ground rules on the conduct of referendums. In com-
parison, codified constitutions are likely to specify in some detail the
circumstances when referendums must be held. For example, in Italy
the adoption of constitutional amendments is made conditional on
popular approval.48 As we have seen, referendums have been included
in recent statutes for many different reasons. This trend promises to
have an impact in ways that may not have been anticipated. It is very
expensive to organise referendums, which might act as a disincentive to
holding them with any frequency. For reasons of cost, these changes
will almost certainly mean that referendum questions will be combined
routinely with other elections.49 In consequence, voting in the UK may
increasingly involve selecting candidates to serve at various levels of
government and deciding other matters at the same time, ranging from
local policy issues to technical questions of European Community law.
In turn, the progressive reliance on referendums to determine such
issues may have the effect of eroding the position of elected politicians
otherwise expected to act as decision-makers on behalf of the wider
electorate under the traditional model of the constitution.
The Jackson Case: A Revised Interpretation of Sovereignty?
Finally, we must consider Jackson v Attorney General.50 The decision by

the House of Lords must be viewed in light of the wider debate over
46 Localism Act 2011, s 21 and Schedule 2.

47 Localism Act 2011, s 72.
48 Italian Constitution 1948, Art 138.
49 Localism Act 2011, s 53(3).
50 Above n 11.
the respective roles of Parliament and the judiciary.51 It has already been
noted above that the issue of parliamentary sovereignty took centre
stage when the courts were recently called upon to consider the valid-
ity of the Hunting Act 2004, which banned the hunting of foxes with
dogs in the face of strong opposition from the hunting lobby. Also,
we have seen how the Parliament Acts 1911 and 1949 radically modi-
fied the powers of the House of Lords.52 The Hunting Act 2004 was
relatively unusual in that it had been repeatedly rejected by the House
of Lords, and the House of Commons eventually invoked the override
procedures set out under section 2(1) of the Parliament Act 1911 and
the Parliament Act 1949 which allowed legislation to be passed into
law without the approval of the House of Lords.53 It is important to
remember that by passing the Parliament Acts of 1911 and 1949 Par-
liament had, in effect, reconstituted itself after the settlement of 1689
by changing the method for approving legislation in circumstances
specified in these Acts. The claimants attempted to argue that the 1949
Act, which had reduced the delaying power of the Upper House to one
year, was made by a form of subordinate legislature,54 and that it had
not been validly enacted. In consequence, they sought a declaration
that it should have no legal effect. It was possible to present such a case
because the Parliament Act 1949 also depended upon section 2(1) of
the Parliament Act 1911 and, therefore, it too only received the approval
of the House of Commons and the Crown (and not the House of
Lords). The effect of the 1949 Act was to increase the powers granted
to the House of Commons, and the claimant’s case further rested on
the proposition that this extension by the House of Commons of its
own authority ran counter to the principle that delegates are prevented
from increasing their own powers.
51 See J Jowell, ‘Parliamentary Sovereignty under the New Constitutional
Hypothesis’ [2006] PL 562.

52 The Life Peerage Act 1958 and the House of Lords Act 1999 modified the
composition of the second chamber.

53 The Parliament Acts have been invoked on rare occasions: the Government
of Ireland Act 1914, the Welsh Church Act 1914, the War Crimes Act 1991, the
European Parliamentary Elections Act 1999, the Sexual Offences (Amendment)
Act 2000.
54 According to a view expressed by W Wade, Constitutional Fundamentals
(London, Stevens, 1980) 27–28.

The House of Lords (Judicial Committee) rejected this argument.

Their Lordships held that the Parliament Act 1911 clearly provided that
‘any’ legislation passed in accordance with section 2 would be an Act of
Parliament, and that such legislation should not be classified as a species
of subordinate legislation. Taking full account of the historical back-
ground leading up to its passage, their Lordships preferred to view the
effect of the Parliament Act 1911 as a restriction of the powers of the
House of Lords rather than an extension of the powers of the House
of Commons. It was also held that there was nothing in the 1911 Act
which prevented the use of the procedure laid down in its provisions to
amend the Act. In other words, the 1949 Act, which had the effect of
doing precisely this, by restricting the delaying power to one year, was
deemed to be valid.
According to Dicey, the basic rule of the constitution is that Parlia-
ment has unlimited sovereignty. Parliament is omnipotent and therefore
any valid law passed by Parliament would be recognised by the courts
and it would trump any previous Act, including a law modifying the role
of Parliament.55
On the other hand, critics of Dicey, notably Jennings, believed that
legal sovereignty merely refers to the fact that the legislature has for the
time being powers to make laws of any kind in the manner and form
required by law,56 implying that effective qualifications to sovereignty
might be effectively included. This judgment has not resolved the
academic dispute, but some obiter statements depart from a Diceyan
position by envisaging possible limits to parliamentary sovereignty.
Lord Steyn and Baroness Hale stated that new laws could be passed
to change manner and form in respect to the passage of legislation,
by for example introducing a two thirds majority rule applying under
particular conditions. Certain limits to sovereignty were linked to the
exceptions contained in the Parliament Act 1911. Seven judges (out of
nine) opined that any statute not receiving the consent of the House
of Lords, which extended the life of a Parliament beyond the five years
stipulated in the Parliament Act of 1911, would not be recognised by
the courts as valid.57 On this view, it can be claimed that Parliament has
bound its successors in regard to any Bill containing such a provision.
55 See quote from Dicey, above n 2, and ibid, ch 1.
56 I Jennings, The Law and the Constitution, 5th edn (London, University of
London Press, 1959) 152ff.
57 Young, above n 16, 193.
The Rule of Law 65
The Law Lords have been criticised at a technical level, perhaps

unfairly, for failing clearly to resolve the conflicting legal issues raised
in Jackson. However, it should be stressed that it is the political con-
text which is of central importance here. In the first place, under the
rules of the constitutional game as it is currently played, opening up
the possibility of a successful direct challenge to legislation because
of its failure to gain the approval of the unelected House of Lords
would undermine the democratic process, and therefore probably
precipitate a response from Parliament anyway. In the second place,
as Lord Bingham recognised in his judgment, the modification to the
principle in the Parliament Acts which has allowed the elected House
of Commons to prevail over the House of Lords has been accepted
by political players from all parties since the passage of the 1911 and
1949 Parliament Acts. Reference to practice appears to confirm the
famous truism that ‘the constitution is no more and no less that what
happens.’58 Finally, an emerging judicial view is also implied in some of
the judgments which questions the unqualified supremacy of Parlia-
ment and foresees the possibility of judicial intervention to invalidate
legislation where it involves flagrant abuse of power (threats to human
rights, removal of judicial review, etc).59 It should be apparent that a sig-
nificant step in the direction of challenging sovereignty through court
decisions would fundamentally change the balance of the constitution
(see Chapter 9 for further discussion on this point).
THE RULE OF LAW
The conception of the rule of law expounded by Dicey needs to be

understood together with the doctrine of parliamentary sovereignty.
This is because the related concept of the rule of law, in effect, imposes
qualifications to what appears to be the unlimited nature of parliamen-
tary sovereignty. As Dicey explained:
The sovereignty of Parliament and the supremacy of the law of the land …
may appear to stand in opposition to each other, or to be at best only
counterbalancing forces. But this appearance is delusive; the sovereignty of
58 J Griffith, ‘The Political Constitution’ (1979) 42 MLR 1, 19.

59 M Elliott, ‘The Sovereignty of Parliament, the hunting ban and the Parliament
Acts’ (2006) 65 Cambridge Law Journal 1, 3.
Parliament, as contrasted with other forms of sovereign power, favours the

supremacy of law, whilst the predominance of rigid legality throughout our
institutions evokes the exercise, and thus increases the authority of Parlia-
mentary sovereignty.60
The rule of law is formally defined by Dicey as having three rather dif-
ferent connotations.
First, it recognises the predominance of regular law over arbitrary
power. There is an assertion that no one should be punished except for
a clear breach of the law established in the ordinary courts. In a more
general sense, the rule of law means that there should be an absence of
arbitrary power and suggests that government and other public bodies
require lawful authority in order to act. In terms of the practice of gov-
ernment in a contemporary context, this would rule out wide discretion
placed in the hands of the executive which is not subject to strict legal
qualification. In practice, it is not uncommon for modern legislation to
grant wide discretionary powers. For example, section 3 of the Security
Services Act 1989 empowered the Home Secretary to issue a warrant
authorising the taking of action for the purpose of assisting the service
to discharge any of its functions in connection with the obtaining of
information. This could be done without the need to actually specify
any suspected offence. Indeed, the proliferation of discretionary pow-
ers is a characteristic of the modern state.
Second, the Diceyan approach to the rule of law requires strict
equality before the law in the sense that no one is above the law and all
persons are equally subject to the jurisdiction of the ordinary courts.
This is a principle which, in theory, applies from the highest govern-
ment ministers and top officials to the most humble citizens. It means
that the government and the executive should be amenable to control
by the courts. This control element was important for Dicey as it forms
the basis of his criticism of the droit administratif (see discussion of the
red light and green light theories of administrative law in Chapter 7).
While the French system is characterised as affording special protection
to officials, in contrast, the rule of law principle of equality was dem-
onstrated by the famous decision in Entick v Carrington.61 This was the
60 A Dicey, An Introduction to the Law of the Constitution, 10th edn (Basingstoke,
Macmillan, 1959) 406.

61 (1765) 19 St Tr 1030.
The Rule of Law 67
occasion when Lord Camden CJ made an affirmation of the normal

process of law. It was held that, in the absence of a statute or common
law granting authority, the actions by the representatives of the King
were unlawful.
On closer examination, the idea of equality can be seen to be quali-
fied in a number of respects. In the first place, certain groups enjoy
legal immunity. To take some obvious examples, MPs are granted
special (parliamentary) privileges, the Queen has immunity from legal
proceedings, and diplomats also enjoy immunity. In the second place,
inequality is present because discretionary powers are given to officials.
They are granted powers that members of the public do not have
(eg to raise taxes, to make compulsory purchases of land). Also, legisla-
tion frequently distinguishes one category of persons from another. To
cite some examples, as part of housing law land lords are granted rights
not granted to tenants, and likewise under employment law employers
enjoy distinct rights to their employees.
Third, in the absence of a codified constitution, Dicey pointed out
that the rights of individuals have been defined and enforced by the
courts. He argued that the British constitution is a result of the ordinary
law of the land, in the sense that remedies protecting the liberties of the
citizen have been developed under the common law. The concept of
negative liberty works on the basis that, rather than setting out rights in
positive form, conduct is lawful unless it contravenes specific law. From
a Diceyan standpoint, the common law principles of natural justice (see
the discussion of judicial review in Chapter 7) that are applied by the
courts might be regarded as an expression of the rule of law. However,
the view that rights in general can be protected in this way is difficult
to sustain in the constitution as it functions today. In practice, there
has been increasing reliance on statute law to set out rights and qualify
rights. The most important recent example of this trend was the enact-
ment of the HRA 1998. The HRA 1998 has the effect of incorporating
the ECHR into domestic law, and so from 2 October 2000 the Conven-
tion became a surrogate ‘Bill of Rights’ for the United Kingdom. (See
Chapter 9 for wider discussion of the debate surrounding constitutional
codification.)
The numerous statutory provisions that have reduced rights or
qualified rights equally cast doubt on Dicey’s faith in the common law
as the primary legal means for protecting the citizen’s liberties against
the state. For example, the Criminal Justice and Public Order Act 1994
placed further restrictions on the right of citizens to demonstrate and

introduced important qualifications to the right to silence in criminal
trials. Faced with such assaults on individual liberty, judicial eloquence
has not been backed up by effective action. In Liversidge v Anderson62
Lord Atkin stated:
In this country, amid the clash of arms, the laws are not silent. They may be
changed but they speak the same language in war as in peace. It has always
been one of the principles of liberty for which on recent authority we are
now fighting, that the judges are no respecters of persons and stand between
the subject and any attempted encroachment on his liberty by the executive.
Lord Atkin’s worthy defence of freedom is found in a dissenting judg-
ment. The minister’s decision to detain persons of external origin with-
out cause was upheld by the House of Lords. It has been suggested that
the outcome might have been different in today’s climate of increased
judicial activism, but the point is that the courts cannot be depended
upon to uphold rights, especially when there is a climate of great public
fear and concern. Further, in R v Secretary of State for the Home Department,
ex parte Brind,63 the House of Lords was not prepared to intervene to
prevent a government broadcasting ban aimed at political parties sym-
pathetic to paramilitary organisations in Northern Ireland who were not
prepared to denounce the use of violence to secure their political aims.
In general, the rule of law prevents governments from legislating ret-
rospectively because of the injustice that such measures would be likely
to cause. There have been exceptions, for example, where the implica-
tions of a court ruling threaten to have far-reaching consequences for
the government.64
The Response to Dicey
Does the rule of law enable us to distinguish democratic government

from dictatorship and does it provide a sound basis for setting out con-
stitutional rights? According to Dicey’s view, a society is governed under
62 [1942] AC 206, 244.

63 [1991] 1 AC 696.
64 For example, the decision in Burmah Oil Co v Lord Advocate [1965] AC 75
prompted the War Damages Act 1965.

The Rule of Law 69
the rule of law only if it meets his criteria, and it ultimately amounts
to a political judgment whether a nation achieves such standards. In
Dicey’s formulation an emphasis is placed on individual rights rather
than social rights. The concept has the effect of excluding all but his
definition of what comprises a liberal democracy from having the rule
of law. Jennings launched a substantial critique of Dicey’s conception
of rule of law65 because he argued that the rule of law must amount
to more than: ‘law and order is better than anarchy.’ It is a doctrine
which must be seen to exist within a context of democratic govern-
ment. The problem is that without a moral dimension the rule of law
could as easily be applied to a tyranny as to a liberal democratic society.
It could describe any society where law and order exists, including the
German Third Reich. Ferdinand Mount has attacked Dicey’s doctrine
of the rule of law as being inescapably narrow, addressing rudimentary
personal rights such as free speech and assembly but overlooking ‘the
complex and diverse local and national bureaucracies both inside and
outside the governmental system which had already become a feature
of British life.’66
It is not surprising then that the Diceyan view has faced sustained
criticism from left-of-centre advocates of progressive social reform,
like Jennings, Robson, and Laski, because the rule of law overlooks
the problem of addressing collective rather than individual social and
economic rights.67
Formal equality under the law means very little if a large propor-
tion of the population suffers from economic and social marginalisa-
tion. From a left-of-centre standpoint constitutional rights need to be
defined beyond the liberal agenda of freedom of speech, religion, and
assembly to include basic rights to housing, health, and education. Fur-
thermore, in the current environment particularly in light of the intro-
duction of courts fees and cuts to the availability of legal aid contained
in the Legal Aid, Sentencing and Punishment of Offenders Act 2012,
the question of access to the law itself is controversial. A reduction
65 The Law of the Constitution, 10th edn (London, University of London Press,
1959).
66 F Mount, The British Constitution Now: Recovery or Decline? (London, Mandarin,
1993) 58.
67 J Jowell, ‘The Rule of Law Today’ in J Jowell and D Oliver (eds), The Changing
Constitution, 5th edn (Oxford, Oxford University Press, 2004) 8.

in the availability of legal assistance means that for many people the
prospect of obtaining redress in the courts is not a realistic option. As
a result there has been the emergence of alternative forms of redress:
eg ombudsmen, law centres, and the citizens’ charter (which has been
rebranded as Service First). Bradley and Ewing argue that ‘it is not pos-
sible to formulate a simple and clear cut statement of the rule of law as
a broad political doctrine.’68
On the positive side, the rule of law has left the United Kingdom
with a political and legal culture with an emphasis on due process.
Put in simple terms, there is an expectation that government and the
apparatus of state power will be exercised by ministers and officials
operating within law. In turn, this power is arbitrated by an independent
judiciary. It is generally the case that rule of law principles operate as
a set of institutional restraints to the exercise of executive power. The
rule of law addresses certainty in decision making and it determines
how a satisfactory balance between rule and discretion can be reached
when putting the law into effect. The problems might arise if the courts
become too intrusive, as many would argue that the judges should have
a subordinate role to a democratically elected Parliament and any gov-
ernment formed from it.69 Nevertheless, the judicial oversight function
is very important and is closely related to the role of judicial review in
its supervisory role under the ultra vires principle which will be dis-
cussed later (see Chapter 7).
Dicey developed these ideas in a different era. The rule of law was
presented as an ideal. Now it should be the basis for criticising, not
admiring, our legal culture. In response to the profound changes that
have taken place since Dicey, public lawyers and political theorists have
been required to adapt these principles. We need to consider in the light
of current constitutional practice the reality of questions about the
ability of government to predominate over Parliament often referred to
by Lord Hailsham’s term ‘elective dictatorship’. Indeed, it has been sug-
gested that the United Kingdom has witnessed the triumph of a ‘Model
of Governance’ over a ‘Model of Law’ in which regulation has become
the basic technique of administration, and administrative programmes
68 A Bradley and K Ewing, Constitutional and Administrative Law, 14th edn
(Harlow, Pearson, 2006) 105.

69 See, eg, M Loughlin, Public Law and Political Theory (Oxford, Oxford University
Press, 1992) 197ff.

Separation of Powers 71
are reduced to numbers and evaluated according to measures of value

for money.70 If this is the case, how can the situation be redressed? In
subsequent chapters we will see the need to identify the shortcomings
of the mechanisms for control at the level of the administrative state
and in regard to the conferment of rights.
In a somewhat different sense, the rule of law might imply that law
and order is always better than anarchy. However, the rule of law is
not achieved simply by the semblance of order (eg citizens generally
conforming to arbitrary and unjust law in Nazi Germany 1933–45 or
in Soviet Russia, particularly under Stalin 1922–53) but it depends on
restraints that apply to governments and that governments apply to
themselves. The terms of reference of the Hutton Inquiry established
by Tony Blair as Prime Minister provided scope to investigate the
inner workings of government following disquiet over the justifica-
tion for UK involvement in the Iraq war.71 Prime Minister Major set
up the Scott Inquiry (discussed in Chapter 6) following the collapse
of the Matrix Churchill trial. Both investigations were sanctioned not
withstanding the potentially far-reaching implications for the govern-
ment. In contrast, the Prime Ministers of Italy (Berlusconi 2001–06
and 2008–11) and Thailand (Thaksin Shinawatra 2001–06) have used
their authority to suppress investigation of alleged abuse of the politi-
cal system and ignored objections to a conflict of interest between their
personal positions and their political office. The rule of law suggests
that law and order and political liberty are mutually dependent, and it
demands respect for what we termed constitutionalism (see Chapter 1). In
the United Kingdom this will usually be associated with adherence to
procedural rules and adherence to important constitutional conventions
(discussed in Chapter 2).
SEPARATION OF POWERS
The rationale behind the prescriptive doctrine of separation of pow-

ers is to avoid the concentration of power in the hands of a single
70 See, eg, C Harlow and R Rawlings, Law and Administration, 3rd edn (Cambridge,
Cambridge University Press, 2009) 59ff, and C Harlow, Accountability in the European
Union (Oxford, Oxford, University Press, 2002) 189.
71 Report of the Inquiry into the Circumstances Surrounding the Death of Dr David Kelly
CMG by Lord Hutton [2004] HC 247.

person or body. The diffusion of authority among different centres of

decision-making has long been regarded as a safeguard against totalitari-
anism and a means of preventing the abuse of power. Contemporary
views of the separation of powers originate from eighteenth-century
thought. In The Spirit of Laws72 Montesquieu stated that all would be
lost: ‘if the same man or the same ruling body, whether of nobles or
of the people, were to exercise these three powers, that of law making,
that of executing public resolutions, and that of judging crimes and civil
causes.’ Tom Paine had written in 1792:73 ‘From the want of a consti-
tution in England to restrain and regulate the wild impulse of power,
many of the laws are irrational and tyrannical, and the administration
of them vague and problematical.’ The constitution of the United
States is heavily influenced by the idea of limiting and checking power.
A clear distinction is made between legislative, executive, and judicial
functions. For example, the legislative body is an elected Congress com-
prising the Senate and the House of Representatives. Congress is able
to initiate legislation but this requires presidential approval. Equally, the
President can initiate legislation, which requires approval from Con-
gress. Another feature is that the government is formed from outside
Congress. However, Congress has assumed a crucial role in keeping
check on the government by a network of committees. The President
has executive power and is responsible for appointing the government.
However, the most important nominees for government and also for
the Supreme Court require the approval of the Senate. An element of
tension between the three branches is deliberately built into the system.
The Watergate Affair involved the investigation by Congress of serious
malpractice and a subsequent cover-up by the President, and it dem-
onstrated that even the President could be forced to resign for a gross
abuse of power.74
The UK constitution, by way of contrast, has no clear separation of
powers. Rather, there is a limited separation of functions and a consid-
erable number of overlapping powers. This does not mean, of course,
that legal process is not employed as means of subjecting governmental
power to legal control. But it might be more accurate to characterise
the constitution as having a number of checks and balances. These will
72 Baron de Montesquieu, De L’Esprit des Lois [1748] Book XI, ch 6.

73 T Paine, Rights of Man [1791] (London, Penguin, 1969) 217.
74 See US v Nixon (1974) 418 US 683.
be considered at greater length in chapters five and six. Although the

concept of separation of powers has not been deliberately incorporated
into the UK constitution there is a long history of placing limits on the
exercise of power. The Magna Carta, which was drawn up in 1215 as
an agreement between the King and his barons was an early attempt to
place formal limits on the exercise of royal power. In the seventeenth
century the attempt by James I, and more especially Charles I, to revive
the doctrine of absolute kingship based on divine right, led to the civil
war between King and Parliament between 1642 and 1649. The conflict
arose from the attempt to rule and raise taxes without the assent of
Parliament. It resulted in a victory for Parliament and a short spell of
republican rule under Oliver Cromwell.
The monarchy was restored shortly after Cromwell’s death. Although
Charles II was prepared to accept the throne on terms set out by Par-
liament, his brother James II provoked a renewed crisis by seeking to
re-establish absolute rule and to favour Catholics in a nation which was
predominantly Protestant. His conduct was in blatant defiance of Par-
liament, which was dissolved by the King in July 1688. This prompted
a crisis. This attempt to rule without Parliament and then the prospect
of a Roman Catholic successor to the throne in fact led to a collapse
in support for the King, who fled from the country. At this point the
terms of a new constitutional settlement were set out by an assembly
of peers and MPs that declared itself to be Parliament. William of
Orange, who was married to Mary, James II’s daughter, was invited by
Parliament to take over the throne. Clearly, the supremacy of Parliament
over the absolute supremacy of kings was demonstrated by the passage
of the Bill of Rights of 1689, which engineered the change to the royal
succession. However, apart from securing a Protestant succession, the
Bill of Rights was primarily intended to make far-reaching limitations
on the absolute power of the monarch. In the first place, it provides
that Parliament cannot be suspended by the monarch except with its
own consent. Second, it confirmed that the levying of taxes must be
approved by Parliament, and third, it states that a standing army cannot
be formed in peacetime without the consent of Parliament. The courts
accepted this political settlement as law by recognising that statutes
passed by Parliament, not, as previously, ‘enacted by the monarch in
Parliament’, had to be enforced and that its enactments take precedence
over the common law. In sum, Parliament had imposed conditions on
the power of the King.
Fusion of Powers
It has already been pointed out several times that the UK constitution
evolved gradually. It was not designed according to a blueprint which
took on board the concept of separation of powers. In consequence,
until very recently there has been no clear demarcation between legisla-
tive, executive, and judicial functions in the contemporary state. In fact
there are institutions which combine more than one of these functions.
The sovereign is technically part of all three branches. From the throne
in the House of Lords, the Queen opens each session of Parliament.
The government governs in her name. Justice is dispensed through the
royal courts. In practise however, there is a strong element of consti-
tutional limitation on the exercise of royal power. This is to the extent
that there is no active contribution to the routine workings of govern-
ment. In addition to legislation such as the Act of Settlement of 1701,
this has often been achieved by the recognition of important conven-
tions in relation to the exercise of prerogative power. Also, it was con-
firmed in Lord Coke’s landmark judgment in Prohibitions del Roy75 that
the King, in person, was not able to judge disputes.
The most obvious overlapping of powers is in Parliament. Rather
than having a clear separation between legislature and executive as
exemplified in the US constitution, the UK government is formed from
within Parliament. It survives only if it is able to maintain its majority
in the House of Commons. Indeed, this is what Walter Bagehot writing
in the nineteenth century was keen to emphasise when he stated that
‘the efficient secret of the English Constitution may be described as
the close union, the nearly complete fusion of executive and legislative
powers.’76 After the majority party in the House of Commons is recog-
nised as the government, its continuation in office depends upon being
able to maintain a majority whenever there is a vote on government leg-
islation or on major issues of confidence. The whips (party managers)
have emerged to deliver this majority. As a result, there is no real imped-
iment to the legislative competence of Parliament. This is because the
government is able to count on its majority in the House of Commons
to secure the passage of its legislative programme. What we described
earlier as the supremacy of Parliament is, in fact, the supremacy of the
75 (1607) 77 ER 1342; 12 Co Rep 63.

76 W Bagehot, The English Constitution [1867] (London, Fontana, 1963) 65.
executive. It was noted earlier that this feature of the constitution has
been termed ‘elective dictatorship’. A central concern is to prevent the
abuse of power by establishing legal means of controlling power, and a
key question for any student of the constitution is whether ministers as
Members of Parliament are made sufficiently accountable to Parliament
for their actions (see Chapter 6).
Parliament, the Lord Chancellor and Supreme Court
As part of the traditional constitution there has been an overlap

between legislative and judicial powers in several different ways. The
office of Lord Chancellor demonstrated this overlapping of powers
and functions most graphically. First, the Lord Chancellor as a member
of the House of Lords was head of the judiciary and President of
the Chancery Division of the High Court. This position allowed the
incumbent to sit personally as a judge in the House of Lords77 and the
Judicial Committee of the Privy Council and to determine which other
Law Lords sat on appeals.78 Second, this was because the incumbent
held executive office as ministerial head of a government department
and, by virtue of this position, was given a seat at the Cabinet table.
Third, the Lord Chancellor not only had the right to participate in the
legislative proceedings of the House of Lords but also presided over
the House as its Speaker. In common with other ministers, the Lord
Chancellor introduced legislation and participated in debates. This
position produced a direct conflict of interest. For instance, the Lord
Chancellor’s Department (now renamed the Ministry of Justice) had a
central role in the appointment of senior judges. Parliament is primarily
a legislative and scrutinising body, but it contained the Judicial Com-
mittee of House of Lords, which was until October 2009 the highest
domestic appellate court. The Lords of Appeal in Ordinary (the Law
Lords) were the judges that made up the highest domestic appellate
77 The Constitutional Reform Act 2005 prevents the Lord Chancellor from sit-
ting as a judge. It also allows the Lord Chancellor to be a serving member of the
House of Commons.
78 Also, under the Constitutional Reform Act 2005, from 2006 the Lord Chief
Justice is designated as head of the judiciary and an elected Lord Speaker presides
over the House of Lords.
court while h aving the right to sit as peers in the House of Lords.79
Also, the appeals to the House of Lords sometimes involved political
matters of controversy concerning the government. As we will see
in Chapter 7, after the Human Rights Act was passed incorporating
Article 6 of the ECHR, doubts were raised over the propriety of Law
Lords being members of the legislature and of the Lord Chancellor act-
ing as a Cabinet minister while sitting as a judge in such a court.
The Constitutional Reform Act 2005 not only expressly recognised
the constitutional importance of separation of powers but it provided
for the introduction of a United Kingdom Supreme Court to replace
the House of Lords. The new court has a similar jurisdiction to the
House of Lords. Further, the methods of judicial appointment and of
court administration have been modified. Post 2009 newly appointed
Supreme Court judges, despite still having the title ‘Lord’, no longer
have the right to sit in the House of Lords, and any previously appointed
Law Lords are disqualified from participating in the legislative work of
the Upper House whilst they remain in judicial office. Nevertheless,
the House of Commons and the House of Lords can sit as courts that
have the power to discipline their own members. The Attorney-General
is the law officer of the Crown. In this capacity he or she acts as the
government’s principal legal advisor, but the Attorney-General is also
a minister who is able to initiate criminal and civil proceedings in the
courts when this is seen as in the public interest. There is an expectation
that ministerial duties will be performed independently of the govern-
ment but there may be a clear conflict of interest. (For example, the
Scott Inquiry was critical of the advice given by the Attorney-General
over the use of public interest immunity certificates to prevent evidence
going before the courts.)
The Judicial Role
In the light of the overlapping of powers characteristic of the constitu-

tion, to what extent does the United Kingdom have an independent and
impartial judiciary? With the notable exception of the Lord Chancellor,
79 The Law Lords, with some other senior judges, have also been eligible to
sit on the Appellate Committee of the Privy Council to hear appeals from mainly
Commonwealth jurisdictions.
who was always a prominent supporter of the government, senior

judges are not appointed on grounds of their political affiliations and
they have been granted protection against summary dismissal since
the Act of Settlement of 1701. The rule of law doctrine, as explained
above, requires the government/executive to operate according to
the law. An independent judicial branch is required to ensure that this
occurs. In recent times the judicial review procedure has become the
principle method of challenging the legality of the actions of public
bodies, whether they are operating under statutory powers or under
prerogative powers. Procedural reforms and the development of the
grounds of judicial review have contributed to a heightened profile for
the courts and a period of greater judicial activism. There has been an
enormous increase in the number of cases coming before the courts.
During the late 1980s civil servants were alerted by a general circular
called ‘The Judge over your Shoulder’ to be aware of judicial review. In
the estimation of some commentators, the courts were assuming the
guise of a surrogate opposition at a time when the official party politi-
cal opposition in Parliament was particularly weak. However, there is a
danger that the authority of Parliament could be undermined by exces-
sive judicial activism.
Indeed, ministers have claimed that instances of judicial activism
undermine the authority of Parliament and their ability to implement
policy. On the other hand, securing executive accountability to the
law must equally be regarded as central to judicial review. The friction
between the executive and the courts is often most obvious in areas of
government competence falling under the Home Office. The examples
which follow will serve to illustrate this in different ways. In M v Home
Office80 an asylum seeker from Zaire was seeking judicial review of a
decision by the Immigration Service (an executive agency which is part
of the Home Office) to deport him, but the hearing coincided with the
date set for his repatriation. The prospect of deportation before the
judicial proceedings were complete led M’s lawyers to make an emer-
gency application to the court to put matters on hold. The application
was successful and an undertaking to the judge was given from the
Home Office not to act while the case was pending. This instruction
was not adequately communicated by the Home Office to the Immi-
gration Service. In the meantime, M was flown out of the country.
80 [1994] 1 AC 377.
Contempt proceedings were brought by M’s lawyers against the Home

Secretary for ignoring a court order. This boiled down to a question of
whether the courts were in a position to issue coercive orders against
ministers. The sovereign’s courts were taking punitive action against the
Crown in the guise of her ministers.
The House of Lords held that the judge in the original case had juris-
diction to issue injunctions, including interim injunctions, against min-
isters and other officers of the Crown. At the same time, an injunction
would be binding against the Home Secretary personally, notwithstand-
ing the fact that he was operating in an official capacity and according
to advice given to him. Reaching this conclusion involved drawing a
distinction between the immunity from judicial process enjoyed by
the Queen in person, and making a finding against a minister in his
or her official capacity (or his or her department) or against a minister
personally. It was reasoned that a finding of contempt against a gov-
ernment department would, in circumstances such as those applying in
the instant case, ‘vindicate the requirements of justice’ and ensure that
orders of the court are obeyed. This is a highly significant outcome,
since it illustrates that the courts will intervene if a government depart-
ment seeks to interfere with the administration of justice.
In Duport Steels Ltd v Sirs 81 Lord Scarman and Lord Diplock recog-
nised the danger of judges being drawn into politics and realised that
too much discretion in disregarding a statute could lead to uncertain
and arbitrary law. A steel company took an action against a trade union
contesting the union’s immunity from tortuous liability under the Trade
Union and Labour Relations Act 1974. In particular, the court had
to decide whether or not secondary picketing by workers during the
course of an industrial dispute was lawful. This was at a time when
the Conservatives had recently won an election on a promise to curb
trade union power but this proposal (including a provision to outlaw
secondary picketing) was a matter of great public controversy between
the major political parties. The Court of Appeal, presided over by Lord
Denning MR, found in favour of the steel company. The House of
Lords overturned the decision and by doing so upheld the statutory
rights of trade unions. Their Lordships by overruling the Court of
Appeal were not supporting the political position of the trade unions
81 [1980] 1 WLR 142, HL.

in their industrial action. They were merely fulfilling their constitutional

role in interpreting the statute according to the will of Parliament. Lord
Scarman stated that ‘the constitution’s separation of powers, or more
accurately functions, must be observed if judicial independence is not
to be put at risk.’ A few months later the Employment Act 1980 came
into force and outlawed the practice of secondary picketing that had
been deemed by the House of Lords to be lawful under the previous
statute.
In a somewhat different context there is a constitutional convention
(albeit a weak one) holding that ministers should not directly criticise
judicial decisions. Such attacks have the potential to undermine the
role of the courts in policing the executive under the rule of law. In
what we have described as a period of judicial activism, the courts have
been much more prepared to intervene in judicial review cases setting
limits on executive power. Government ministers (both Conservative
and Labour) have responded by being much more forthright in their
criticism of the courts, especially where they appear to stymie the main
thrust of legislation. A good example of such a clash was the ministe-
rial reaction to a successful challenge to the Nationality, Immigration
and Asylum Act 2002. The Act was introduced to clamp down on what
the government portrayed as a flood of bogus claims for asylum. In
R (on the application of Q) v Secretary of State for the Home Department 82 there
was a challenge by way of judicial review to the way the measures were
being applied by the Immigration Service. It was held that the require-
ment under section 55 of the Act that claims must be made as soon as
reasonably practicable was being interpreted in a way that was unlawful.
Its effect was to deny natural justice, and the consequent withdrawal of
all support to those who did not make prompt claims would leave asy-
lum seekers destitute. In turn, this interfered with the rights of asylum
seekers under the European Convention on Human Rights by being
in breach of Articles 3 and 8. (Since 2 October 2000 the HRA 1998
requires the courts to interpret legislation in a manner which is consis-
tent with Convention rights.)
The decision in the Administrative Court was strongly attacked
by the Home Secretary, and the press (including The Times and the
Telegraph) took their cue from the minister with accusations that the
judge was deliberately overturning the will of Parliament and thereby
82 [2003] EWHC 195 Admin, The Times, 20 February 2003.

undermining government policy. However, the conclusions reached

in the Administrative Court were largely supported by the Court of
Appeal, and no further appeal to the House of Lords was attempted by
the Home Office. In other words, far from deliberately thwarting the
will of Parliament, the judicial branch was merely performing its role
by ensuring that executive power was being exercised according to the
rule of law.83 Judges do not personally respond to criticism by ministers
and the press. It has been suggested that a convention to prevent out-
spoken attacks of this kind should be followed more strictly to preclude
attempts by politicians to apply pressure on the courts.
The examples that have just been discussed suggest that to a con-
siderable degree the judicial branch is prepared to follow a line which
is independent of government. However, in certain policy areas the
courts have been extremely reluctant to overturn decisions made by
government. This has been especially true in cases involving national
security, for example, R v Secretary of State for the Home Department, ex parte
Cheblak,84 where the court held that a statement from the authorities
that their action in serving a deportation notice was for national security
reasons was sufficient under the enabling Act.
Overlapping Powers
It has been explained that concepts of the separation of powers have

often attempted to distinguish legislative, executive, and judicial func-
tions and propose that one organ of government should not exercise
the functions of another. However, if we examine the role of the exec-
utive in the United Kingdom, we find there is an overlapping of both
executive and legislative powers and executive and judicial powers. The
executive functions of ministers and their departments are frequently
combined with powers to formulate delegated legislation. It is com-
mon for legislation to provide scope for sub-rules and regulations to
be drawn up by officials. The term ‘Henry VIII clause’ is applied when
there is wide discretion in the making of delegated legislation.85
83 See A Bradley, ‘Judicial Independence under Attack’ [2003] PL 397.

84 [1991] 1 WLR 890.
85 See, eg, the Deregulation and Contracting Out Act 1994.
Conclusion: Redefinitions of Power 81
Equally, the growth of the administrative state resulted in officialdom

having judicial functions in many policy areas ranging from the alloca-
tion of means-tested benefits to the determination of immigration
appeals. Of course, procedural safeguards were incorporated as part
of the adjudication process operated by tribunals and other bodies but
it is significant that the status of tribunals has been changed with the
introduction of a national tribunal service comprising a First-tier and
Upper-tier tribunal. Tribunals are now closer to being administrative
courts presided over by judges and independent of the departments
whose decisions they review. The constitutional reforms introduced
by the Labour administration between 1997 and 2001 have had a far-
reaching impact on the shape of the constitution and it is not surpris-
ing that there have been shockwaves which have resonated since their
introduction. For example, the HRA 1998 and the devolution legislation
have extended the constitutional dimension to the role of the judiciary.
In response, the Labour government reacted with further reform
introducing the Constitutional Reform Act 2005 which, as we shall see
in Chapter 7, addresses the conflicts which arise from the overlapping
powers and functions that were integral to the Lord Chancellor’s office.
CONCLUSION: REDEFINITIONS OF POWER
It is worth asking how useful this eighteenth-century conception of

separation of powers is, given the present shape of the state and tak-
ing account of the way power is currently exercised. The position
has changed radically over recent years. For example, since 1979, the
United Kingdom has experienced: privatisation of public utilities; com-
plex layers of state regulation; deregulation; new public management;
the creation of ‘next steps’ agencies; contracting in the public sector;
compulsory competitive tendering in local government; public–private
partnerships; the citizen’s charter; and health service reorganisation (to
name but a few of the most prevalent initiatives). State institutions,
particularly central and local government, are increasingly tied into rela-
tionships with business, with the voluntary sector, and with consumer
groups in many different ways. These modified approaches clearly have
important implications in the shaping and management of our public
institutions. Frequently services are publicly funded but the service is
delivered under contract by the private sector (such services ranging
from prisoner escort, street cleaning, and refuse disposal to school

meals). It will be apparent that the term ‘governance’ has been used to
describe the divergent patterns and tangled interweaving of public and
private bodies.86 In addition, the HRA 1998 and the Freedom of Infor-
mation Act 2000 have imposed additional obligations on public authori-
ties in their dealings with the citizen. Another dimension has been the
increasing prevalence of EU law as part of the domestic scene. What
this really means is that the United Kingdom now has a ‘multi-layered’
constitution87 comprising policy networks at sub-national (ie devolved),
national, and supra-national level. On the one hand, the public have
been conferred with a new sets of rights and, on the other, there are
increasingly dense networks through which power is exercised. Chan-
nels of accountability and perception between the political masters
and end users are often blurred (take, for instance, the hostile public
reaction to many aspects of EU policy). Such complexity may even call
into question the predominant role of the state, and, in particular, the
capacity of any government to intervene effectively by legislative means
to address contemporary problems. For example, levels of immigration
have remained high despite legislative initiatives in this field by succes-
sive administrations. As the UK constitution lacks any sense of overall
design, the extent to which the separation of powers should have a cen-
tral future role can be questioned. The most important consideration
may be avoiding potential conflicts of interest between constitutional
players rather than reshaping the institutions according to a particular
model. In sum, these developments suggest that it is no longer real-
istic to analyse our constitution in terms of a unitary, self-correcting
constitution.
The idea which has been central to this discussion is that under a
constitutional framework, whether formal or informal, power must
have limits, and in order to achieve such limits there needs to be a divi-
sion of power. In the UK constitution the separation of powers is an
untidy concept. The idea certainly does not apply in the strict sense, as
it does to a much more obvious extent in the United States. It is more
accurate to conclude by emphasising that there are conventions that
86 See, eg, R Rhodes, Understanding Governance: Policy Networks, Governance, Reflexiv-
ity and Accountability (Buckingham, Open University Press, 1997).

87 See N Bamforth and P Leyland, ‘Introduction’ in N Bamforth and P Leyland
(eds), Public Law in a Multi-Layered Constitution (Oxford, Hart Publishing, 2003).

Conclusion: Redefinitions of Power 83
are observed which safeguard some division of power and functions

between the various branches of government. For instance, parlia-
mentary select committees dominated by the party that forms the
government frequently criticise the government and thereby provide
some check on the executive. Judges generally display caution in mak-
ing judgments that are politically sensitive. Ministers usually show some
reserve in their criticisms of judicial decisions. The Lord Chancellor
as the minister overseeing the process confirmed the appointment of
judges for many years before the introduction of a Judicial Appoint-
ments Commission on grounds of professional competence rather than
political affiliation. The idea of checks and balances rather than separa-
tion of powers conveys the importance of creating a tension between
institutions with different constitutional functions. But reaching a
satisfactory balance between these considerations remains problematic
and the far-reaching changes that have been introduced in recent years
threaten to present further challenges (see further Chapters 7 and 9 on
the constitutional role of the courts).
FURTHER READING
Allan T, Law, Liberty and Justice: The Legal Foundations of the British Constitu-
tion (Oxford, Oxford University Press, 1993).
Bingham T, The Rule of Law (London, Allen Lane, 2010).
Bogdanor V (ed), The British Constitution in the Twentieth Century (Oxford,
Craig P, ‘Dicey: Unitary, Self-correcting Democracy and the Rule of Law’
(1991) 106 Law Quarterly Review 105.
Dicey A, Introduction to the Study of the Law of the Constitution, 10th edn
(London, Macmillan, 1959).
Elliott M, ‘The Principle of Parliamentary Sovereignty in Legal,
Constitutional and Political Perspective’ in J Jowell, D Oliver and
C O’Cinneide (eds), The Changing Constitution, 8th edn (Oxford, Oxford
Goldsworthy J, Parliamentary Sovereignty: Contemporary Debates (Cambridge,
Goldsworthy J, The Sovereignty of Parliament: History and Philosophy (Oxford,
Gordon M, Parliamentary Sovereignty in the UK Constitution (Oxford, Hart

Publishing, 2015).
Jowell J, ‘The Rule of Law and its underlying values’ in J Jowell, D Oliver,
MacCormick N, Questioning Sovereignty: Law, State and Practical Reason
1999).
Rawlings R, Leyland P and Young A (eds), Sovereignty and the Law (Oxford,
Wade W, Constitutional Fundamentals (London, Stevens, 1980).
Young A, Parliamentary Sovereignty and the Human Rights Act (Oxford, Hart
Publishing, 2009).
4
The Crown and the Constitution


Royal Prerogative – Constitutional Monarchy – The Crown –
Public Interest Immunity – Abolition
INTRODUCTION
T HE UNITED KINGDOM has a hereditary monarch as head

of state. The Queen performs an important role as the personi-
fication of the nation. She appears on the national and interna-
tional stage and in this capacity she is often associated with occasions
of pomp and ceremony that evoke memories of imperial glory. It is
particularly this feature that distinguishes the British monarchy from
its counterparts in Holland, Belgium, and Scandinavia. However, as we
shall see in the discussion that follows, although only limited power is
exercised by the Queen on her own initiative, many constitutional func-
tions still require her direct involvement. The path to constitutional
monarchy has involved both the deliberate curtailment of royal power
and its gradual erosion. The terminology is somewhat misleading. The
government is still described as Her Majesty’s government, central
government acts in the name of the Crown, and the courts are pre-
sided over by Her Majesty’s judges, but in modern times the monarch,
although head of state, has a greatly subordinate constitutional role to
Parliament, the government, and the courts. This is now accepted by
reigning monarchs without question. In this chapter we will first discuss
the institution of the monarchy, the royal prerogative, and the nature of
the Crown as part of the current constitutional framework.
During the Middle Ages and Tudor times kings and queens ruled
through the exercise of the royal prerogative, but the idea that the
powers of the monarch should be limited by law can be traced back
86 The Crown and the Constitution
at least as far as the Magna Carta of 1215. It was later established that
general laws could not be made by way of proclamation—only Parlia-
ment could enact laws. It was also recognised that the King himself
could not act as a judge, but must act through the judges in the courts.
Since the Case of Proclamations1 it has been recognised that the scope
of the prerogative can be determined by the courts. As we noted in
Chapter 1, the events of the seventeenth century, and in particular the
Civil War 1642–49 and the ‘Glorious Revolution’ of 1688, are signifi-
cant in English constitutional history because they signalled the decisive
end of any pretensions to absolute monarchy, with most powers over
legislation and delegated legislation eventually passing to Parliament.
This coincided with the emergence of the doctrine of the supremacy
of Parliament described by Dicey. This trend was reinforced in the
eighteenth century with the Hanoverian succession to the throne (of
George I in 1714), by which time ministers were directly responsible
for the day-to-day running of government. The scope of govern-
ment activity was then much more limited, with only a few Whitehall
departments (such as the Treasury, the Foreign Office, and the Board
of Trade), but as the foundations of the modern administrative state
were laid in the late nineteenth and twentieth century, with the role of
government being greatly expanded, so the monarch became increas-
ingly peripheral to the central activities of the executive. In this sense,
the influential nineteenth—century writer on the constitution Bagehot
was correct when he commented in reference to Queen Victoria that
‘she reigns but does not rule’.2
The abdication crisis which erupted in 1936, once again, confirmed
the pre-eminence of Parliament and prime ministerial government
over the monarch.3 Edward VIII shortly after succeeding to the throne
decided he would like to marry his mistress, the American divorcee,
Mrs Simpson. The Prime Minister, Stanley Baldwin, with the support of
his Cabinet and the leader of the opposition, made it clear that, given
the King’s position as head of the Church of England and the marriage
vows that would be entailed, this match was constitutionally unaccept-
able. Edward therefore had to choose between the hand of Mrs Simpson
and continuing on the throne. Confronted with what amounted to an
1 (1611) 12 Co Rep 74.
2 C Munro, Studies in Constitutional Law, 2nd edn (London, Butterworths, 1997)
256.
3 A Taylor, English History 1914–45 (London, Pelican, 1975) 490ff.
What is the Royal Prerogative? 87
ultimatum from the Prime Minister and his government, Edward gave
up the throne in favour of his brother, who became King George VI.
It will already be apparent from these examples that the evolution
from a ruling monarchy to a constitutional monarchy took many hun-
dreds of years.
Moreover, the link with the past has special significance because, for
a nation which has not experienced a recent political revolution, the
monarchy represents tradition and continuity. The Queen, as a symbol
of national identity, can be said to personify the state. She performs
an important constitutional role but is, in fact, left with very little real
political power. It is a convention of the highest constitutional impor-
tance that the monarch always follows the advice of her ministers. Many
of the most far-reaching powers which formerly were exercised by the
monarch, mainly prerogative powers, are now in the hands of the Prime
Minister and the government. Although these powers are exercised by
the government, they are still performed in the name of the monarch.
WHAT IS THE ROYAL PREROGATIVE?
The majority of issues involving the use of the prerogative are con-
cerned with governing the country. The prerogative includes crucial
areas such as the conduct of foreign affairs, defence, and national
security, and when outlining the Queen’s constitutional role it will be
apparent that she has a major presence in many areas but exercises only
limited power because the prerogative is now in the hands of the Prime
Minister, ministers, or officials. The royal prerogative comprises residual
powers and functions which were originally associated with the mon-
arch. In considering the royal prerogative and its exercise it is useful to
draw out a contrast between what appears to be the site of legal power
as opposed to the constitutional reality of where power actually resides.
In practical terms, the powers encompassed by the term ‘prerogative’
are of great importance for the effective working of government. They
range from the conduct of foreign affairs, the making and ratification
of treaties, the preservation of national security, the maintenance of
the defence of the realm, and the exercise of the enormous powers
of patronage available to the Prime Minister. Certain prerogatives
are now regulated by constitutional conventions to enable govern-
ment to function. The way these powers are exercised has recently
been considered by parliamentary committees, and there have been

recommendations to introduce statutory regulation in order to achieve
greater clarity in respect to the scope and application of the prerogative
and to achieve increased parliamentary approval and scrutiny.
The prerogative involves distinguishing between of two elements:
(a) the personal prerogatives of the monarch; and (b) the political pre-
rogatives, that is, those used by the government/executive/Crown in
foreign affairs and domestic policy. Generally speaking, government
operates within the parameters conferred by Parliament under statutory
provisions. There are certain areas where the prerogative provides the
legitimation for the use of a common law power and confers certain
immunities on those using it. Considerable controversy has arisen over
the definition and extent of the prerogative, particularly between the
accounts of Sir William Blackstone in the eighteenth century, who
stresses the ‘special pre-eminence’ of the King’s powers, and Dicey in
the nineteenth century, who was of the view that:
The prerogative appears to be both historically and as a matter of actual fact
nothing else than the residue of discretionary or arbitrary authority, which is
at any given time legally left in the hands of the Crown … Every Act which
the executive government can lawfully do without the authority of the Act
of Parliament is done in virtue of this prerogative.4
This is a broad definition embracing all the non-statutory powers of the
Crown of a residual (ie leftover) nature. Judicial decisions have tended
to reflect the Diceyan position.
The centrality of the concept of parliamentary sovereignty to the
constitution means that, as a general rule, statutory powers prevail over
the prerogative. Parliament has the capacity to curtail prerogative pow-
ers. In situations where there is a conflict between statute and the pre-
rogative, the statute will always prevail. The leading case illustrating this
principle is Attorney-General v De Keyser’s Royal Hotel Ltd.5 In 1916 during
the course of World War I the government, acting in the name of the
Crown, took control of a hotel to accommodate the headquarters of
the Royal Flying Corps under the Defence of the Realm Regulations. It
then denied the legal owners any right to compensation. Compensation
4 A Dicey, Introduction to the Study of the Law of the Constitution, 10th edn (London,
Macmillan, 1959) 424.

5 [1920] AC 508.
What is the Royal Prerogative? 89
appeared to be available to them under statute, namely, the Defence Act

1842. It was argued by the Crown that since it had been acting under
prerogative power in wartime any compensation for the requisition of
this hotel was a matter within its discretion. However, the court held
that this was now governed by statute. The statutory power in effect
superseded the prerogative. Lord Atkinson stated that
after the statute has been passed, and while it is in force, the thing it empow-
ers the Crown to do can thenceforth only be done by and under the statute,
and subject to all the limitations, restrictions and conditions by it imposed,
howsoever unrestricted the Royal prerogative may theretofore have been.
But the De Keyser principle also suggests that where a statutory provi-
sion covers the same grounds as the prerogative, the latter falls into
abeyance and might be re-activated should the statute be repealed.
There may be areas where statutory powers and prerogative pow-
ers can exist in parallel without inconsistency.6 However, the House
of Lords has more recently held that it was unlawful to act using the
prerogative power where Parliament has given a minister a specific
statutory power. In R v Secretary of State for the Home Department, ex parte
Fire Brigades Union7 there was a successful challenge by the Fire Brigades
Union when the minister sought to introduce a method for compensat-
ing victims under his prerogative powers. In doing so, in effect, he was
by passing the scheme which had not yet been activated but had already
been approved by Parliament under section 171 of the Criminal Justice
Act 1988.
In a somewhat different context, the decision of the House of Lords
in the GCHQ case8 is of great importance. The challenge concerned
a decision (under her prerogative powers) by the Prime Minister, as
Minister for the Civil Service, to ban the union membership of civil ser-
vants at the government communications headquarters in Cheltenham
without any prior consultation. In a famous judgment in which Lord
Diplock explained the principles of judicial review (see Chapter 7), it
was established beyond any doubt that, in principle, the exercise of
prerogative powers by ministers could be subject to judicial review.
6 R v Secretary of State for the Home Department, ex parte Northumbria Police Authority
[1989] QB 96.
7 [1995] 2 All ER 244.
8 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
However, it was also recognised by Lord Scarman that the capacity of

the courts to intervene might be qualified by other factors:
[T]he law relating to judicial review has now reached the stage where it can
be said with confidence that, if the subject matter in respect of which pre-
rogative power is justiciable, that is to say if it is a matter on which the court
can adjudicate, the exercise of the power is subject to review in accordance
with the principles developed in respect of the review of the exercise of
statutory power.9
In other words, while in general prerogative powers can be challenged,
certain types of exercise of the prerogative are non-justiciable. For
example, these areas would include decisions relating to: the making of
treaties, the defence of the realm, the prerogative of mercy, the grant
of honours, the dissolution of Parliament and the appointment of min-
isters. The application for judicial review was ultimately unsuccessful in
the GCHQ case because the Prime Minister was able to bring forward
sufficient evidence to show that the failure to consult in the proper way
had been made because of legitimate concerns over the risk to national
security.
There has been an important recent trend towards qualifying pre-
rogative powers. The running of the civil service is no longer one of the
personal prerogatives of the Prime Minister. Although the management
of the service remains with the Prime Minister, it has been placed on
a statutory footing for the first time under Part 1 of the Constitutional
Reform and Governance Act 2010. The Act does not apply to the
management of the diplomatic and security services which still remain
under the prerogative (see Chapter 6). Under Part 2 of the same Act,
treaties which are negotiated under ministerial prerogative powers must
now be laid before Parliament for ratification.
THE CONSTITUTIONAL ROLE OF THE MONARCH
The pivotal convention which applies to the monarch is that he or she is

bound to act on the advice of his or her ministers. The fact that the UK
constitution can be described as a constitutional monarchy rests upon
this and other conventions. In other words, many things are done in the
name of the monarch, and are performed under prerogative powers,
9 Ibid, at 407.
The Constitutional Role of the Monarch 91
but the monarch’s action is frequently governed by constitutional

practice or by other political actors. However, there are also important
technical questions over whether the residue of important, but some-
times ill-defined prerogative powers left in the hands of a reigning
monarch can be justified in a contemporary constitutional context. For
example, given the difficulties that have arisen with the formation of
a government (discussed below) it has been suggested that legislation
should be passed to determine who would become Prime Minister in
the event of a future hung Parliament.10
(1) The formation of a government—The basic rule is that following a
general election the monarch will always call upon the leader of the
majority party in the House of Commons to form a government.
A majority in the House of Commons is, of course, necessary to ensure
that legislation can be passed. Given that the ability of voters to elect
a government is the principle at the heart of parliamentary democracy,
it is extremely important that the monarch accepts the verdict of the
electorate in performing this role. The electoral system usually provides
a clear winner, but this is not always the case. For example, after the
February 1974 election neither the Conservatives nor Labour secured
an overall majority. Labour emerged from the election with 301 seats,
five more than the Conservatives, but the Conservatives polled a higher
aggregate total of votes. To form a government either the Labour
Party or the Conservative Party required the support of a combination
of Liberals, Scottish Nationalists, Welsh Nationalists, and Northern
Ireland MPs. The constitutional role of the monarch in this situation is
to ensure that a viable government is formed. This means she should
ask the leader of the party most likely to be able to sustain a govern-
ment to become Prime Minister. After the February 1974 election,
Mr Heath, the incumbent Prime Minister, did not resign but was unable
to reach agreement with the Liberals. In consequence, the Queen had
no real alternative to sending for Harold Wilson, whose Labour Party
had the largest number of seats. Mr Wilson managed to govern for six
months with a minority government before calling another election.
After the 2010 general election which also delivered a hung Parliament,
the incumbent Labour Prime Minister remained in 10 Downing Street
until it was clear after negotiations between politicians that the Con-
servative and Liberal Democrats had reached an agreement to form a
10 See, eg, D Bean, The Future of the Monarchy (London, The Fabian Society, 2003).
government (rather than a Labour-led rainbow agreement of Liberal

Democrats and other minor parties). At this point Gordon Brown was
in a position to recommend to the Queen that she should invite David
Cameron to form a government. Crucially, the Queen’s neutrality was
not compromised as it might have been had she been drawn into the
government formation process.11
All the main political parties (Conservative, Labour, and Liberal
Democrat) now elect their leader by process involving the balloting
MPs and party members, but until 1965 the Conservative Party did not
have a formal method for electing its leader. As a result, when a serv-
ing Conservative Prime Minister had to leave office prematurely, the
monarch performed the task of deciding who should be the successor.
This occurred with the resignations of Prime Minister Eden in 1956
and Prime Minister Macmillan in 1963.
(2) The calling of elections—Until recently the Prime Minister could
decide to call an election at any time within the five-year period speci-
fied by the Parliament Act 1911. Once the decision had been taken
by the Prime Minister to call an election, the monarch was obliged,
according to convention, to dissolve Parliament. It was clear that this
power to dissolve Parliament could not be exercised independently of
the intervention of the Prime Minister. There have been exceptional
situations. One such arose in February 1974 when no party emerged
from the election with a majority in the House of Commons. It has
been suggested that, had Harold Wilson been unable to win a vote in
the House of Commons after being invited to form a government, the
Queen might have been in a position to refuse a request for a dissolu-
tion of Parliament, at least until other party leaders had been given the
opportunity to attempt to form a government that was acceptable to
Parliament. The Fixed Term Parliaments Act 2011 has taken the power
to determine the timing of an election away from the Prime Minister
by setting general elections at five-year intervals (see further Chapter 6).
(3) Ministerial appointments—In regard to ministerial appointments
at all levels the monarch follows the advice of the Prime Minister in
approving the selections that he or she makes. There is no requirement
that the monarch is consulted by the Prime Minister over the suitability
2011) 17.
The Constitutional Role of the Monarch 93
of these choices, and there is no longer power to refuse any of these

choices. In the eighteenth and nineteenth centuries there were some
instances when the monarch was reluctant to take advice. There is noth-
ing that formally prevents the monarch expressing his or her opinion
about the suitability of the choices proposed by the Prime Minister.
George VI was reported to have expressed clear reservations when
Winston Churchill selected Lord Beaverbrook as Minister for Aircraft
Production and member of the War Cabinet in 1940, but nevertheless
the Prime Minister’s choice prevailed.12
(4) Appointments and honours—There are many other official appoint-
ments which are conferred by the monarch, but these choices are nearly
always made on the advice of the Prime Minister. These include the
creation of peers, the appointment of archbishops and bishops, the
appointment of all senior judges, and the conferment of most honours,
such as knighthoods. However, the Queen is personally able to select
members of the royal household, including her Private Secretary. In
addition, there are a few honours that remain in the personal gift of
the Queen.
(5) Assent to legislation—In respect to passing of legislation, it should
be remembered that, following its passage through Parliament, the royal
assent is required for a bill to become law. It is an established conven-
tion (certainly since Queen Anne’s refusal in 1708 to sign the Scottish
Militia Bill—and on that occasion she was acting on ministerial advice)
that the monarch never refuses to give the royal assent to legislation,
and that to do so would be unconstitutional. However, it might be
argued that there could be extreme circumstances when refusal of the
royal assent would be justified, for example, if Parliament approved
legislation that sought to postpone indefinitely a general election in
peacetime. The royal assent is also required for legislation passed by the
Scottish Parliament, Northern Ireland Assembly and Welsh Assembly.
(6) Following ministerial advice and collective responsibility—It is a crucially
important convention of the constitution that the Queen always acts on
the advice of her ministers. This doctrine is demonstrated at the open-
ing of each session of Parliament. The Queen’s speech setting out her
government’s policy is, in practice, always written by the government.
12 R Brazier, Constitutional and Administrative Law, 7th edn (London, Penguin,
1994) 125.
Another equally important convention, collective Cabinet responsibil-

ity, is derived from the idea that any advice to the monarch should be
unambiguous. This convention requires that members of the Cabinet
are bound to defend the policy agreed around the Cabinet table, or
alternatively a minister should resign from the government (this con-
vention is discussed in greater detail in Chapter 6). It should be stressed
that there is no active involvement by the monarch in the routine busi-
ness of government. She has access to classified information and has
confidential weekly meetings with the Prime Minister during which she
is briefed on government policy. On these occasions the Queen can
express her views and provide advice. However, the Prime Minister is
not under any obligation to take account of these views. It is of crucial
importance that the monarch is perceived as being above politics and
impartial when it comes to performing the main constitutional func-
tions. The Queen has resisted any such association, but Prince Charles
as heir to the throne has been criticised for his involvement with con-
troversial issues which have a political dimension.13
(7) Commander-in-chief of the armed forces—The Queen performs an
important symbolic function as the nominal head of each of the armed
forces, but under the Bill of Rights 1689 the keeping of an army by the
Crown is made subject to the consent of Parliament. While the forces
are now largely regulated under statute, ministers act under the preroga-
tive to direct the armed forces in their strategic operations.
(8) Head of state—As head of state, the Queen represents the nation
on the international stage. In this capacity she hosts events at home and
makes visits abroad. However, the Prime Minister, the Foreign Secretary,
or other senior ministers will be entirely responsible for determining
any matters of government policy or negotiating treaties that involve
meetings with other heads of state or heads of government, and in this
capacity ministers will be acting under their prerogative powers.
(9) Head of the Commonwealth—At the turn of the twentieth cen-
tury the British monarch was the figurehead for the British Empire.
Independence has been conferred on virtually all former colonial pos-
sessions and many (53 nations and 2 billion people) have joined the
13 This question was brought to public attention after a contested information
request by a Guardian journalist in 2005 for the release of correspondence con-

cerning environmental issues between the Prince and various ministers, and finally
resolved by the courts in 2015. See R (Evans) v Attorney General [2015] UKSC 21.
Does the Monarch Retain Real Power? 95
British Commonwealth, which seeks to promote co-operation between

member nations. The Queen has a mainly symbolic role at its head.
DOES THE MONARCH RETAIN REAL POWER?
A famous statement of the constitutional role was provided by Bagehot

in the nineteenth century when he stated ‘she has the right to be con-
sulted, the right to encourage and the right to warn,’ meaning by this
that the monarch had become a ‘dignified’ rather than an ‘efficient’
(ie working) element of the constitution.14 We have already observed
that in nearly every case the monarch’s powers and discretions are
constrained by established conventions. However, the hung Parliament
after the February 1974 election illustrates that there may be occasions
when a convention is not clearly defined, and where considerable dis-
cretion is left in the monarch’s hands.
The present Queen has the accumulated experience of having worked
with 10 different Prime Ministers since she acceded to the throne in
1952. She is kept very closely in touch with the exercise of govern-
mental power by means of a weekly audience with the Prime Minister
during which she is fully briefed about the affairs of government, and
she has access to all Cabinet papers. The meetings with the Prime
Minister are strictly confidential, which allows her the opportunity to
express views about matters of government policy. For example, it was
widely reported in the press that there were misgivings expressed by
the Queen over certain aspects of Margaret Thatcher’s domestic policy
during the late 1980s. Also, in times of crisis, such as the involvement
of British troops in the war in Iraq in the Spring of 2003, the Queen is
kept fully informed of the latest developments. It should be emphasised
that the Prime Minister is not under any obligation to take account
of any royal opinions. Indeed, if a declared position on controversial
political matters were to leak out, this would undermine the reputation
for impartiality which is so important to the monarch’s constitutional
role. Bagehot could almost be describing the present position when he
summed up the powers of Queen Victoria more than 100 years ago as
the rights to be consulted, to encourage and to warn ministers, but it has
14 W Bagehot, The English Constitution (London, Fontana, 1963) 111.

been s uggested in light of the Queen’s current role that the right to be
informed and to advise could now be added to the list.15
WHAT IS THE ‘CROWN’?
The Crown refers to the Queen in her official or her personal capacity.
It is also the generic term used to refer to persons or bodies exercising
powers which historically were the monarch’s personal powers. Thus
the ‘Crown’ is applied to the executive branch of government. Ministers
are of course servants of the Crown and in general statutory powers
are conferred by Parliament on ministers in person.16 The blanket
concept of the Crown conflicts with reality because it suggests that
the diverse elements of the executive are a unified whole, with the con-
cept of the Crown masking the fact that there are often conflicts and
tensions between central government departments. We have already
noted that the political prerogative is exercised by, or on the advice of,
the Crown. In consequence, the term ‘Crown’, as it is employed in the
United Kingdom, is a product of constitutional history, and it might
be described as anachronistic. Comparable powers in Europe or the
United States would be constitutionally exercised by, or on the advice
of, what is called the state, executive, or government.
The Crown has enjoyed certain legal immunities. For example, it may
be able to avoid liability under a statute that is not expressed as being
applicable to it. Such immunity has allowed public bodies to remain
outside the scope of statutory provisions which otherwise provide for
social welfare, employment rights, and public safety. However, most
contemporary legislation has tended to restrict or entirely dispense with
this immunity.17 The intention has been to ensure that government
departments are not shielded from obligations that are placed upon
them.
15 R Brazier, ‘The Monarchy’ in V Bogdanor (ed), The British Constitution in the
Twentieth Century (Oxford, Oxford University Press, 2003) 78.

16 H Wade and C Forsyth, Administrative Law, 11th edn (Oxford, Oxford
University Press, 2014) 35ff.

17 See, eg, National Health Service and Community Care Act 1990, s 60, and
Environmental Protection Act 1990, s 159.

Public Interest Immunity 97
PUBLIC INTEREST IMMUNITY
The immunities enjoyed by the Crown have also been important in

a judicial context. In proceedings involving the Crown (ie the vari-
ous manifestations of the government) there are occasions where the
normal rules of evidence are waived to protect a wider public interest.
In an adversarial system, discovery is an important part of the trial
process. This rule enables the parties to the action to examine informa-
tion and documents from the other side. In general, courts will order
the disclosure of relevant documents that are not voluntarily produced
to allow a case to be prepared thoroughly in advance. At the same time
this access to evidence reduces the possibility of either side being sur-
prised or ambushed by the production of unexpected issues. In criminal
cases, there is an even stronger right to be notified in advance of the
prosecution’s case because of the importance of acquitting the inno-
cent. However, it has been recognised by the courts that the Crown (and
certain other public bodies, for example the police) occupied a special
position. Crown privilege, now termed public interest immunity (PII),
can be invoked if it is considered contrary to the public interest for the
document(s) to be released on specified grounds, for example, doing
harm to national security or revealing the name of a police informer.
Although section 28 of the Crown Proceedings Act 1947 provides that
the courts can make an order for the discovery of documents against
the Crown, this right of discovery is subject to the major qualification
that it does not affect the rule that evidence can still be withheld if the
wider public interest so demands.
The courts in cases such as Duncan v Cammell Laird and Co Ltd,18
Conway v Rimmer 19 and R v Chief Constable of West Midlands Police, ex parte
Wiley 20 have been required to strike a balance between defining this
public interest, on the one hand, and, on the other hand, ensuring that
the power to withhold information is not abused by public authorities
to shield them against legitimate claims from aggrieved members of the
public or defendants. Defining the extent of such immunity touches
on some fundamental questions. For example, how far ought official
bodies to be allowed to cloak their activities in a veil of secrecy by
18 [1942] AC 624.
19 [1968] AC 910.
20 [1995] 1 AC 274.
reventing the release of information when matters are being disputed

p
in open court? These issues were brought to wide public attention in the
Matrix Churchill affair in 1992. The directors of the Matrix Churchill
company were prosecuted for selling defence equipment (a supergun)
to Iraq in contravention of an arms embargo, and they were prevented
by public interest immunity certificates signed by ministers from dis-
closing their association with the security services. It was argued that
ministers should not have been advised by the Attorney-General that
they were under a duty to sign these certificates when the guilt or inno-
cence of these defendants was at stake. Finally on this point, the Free-
dom of Information Act 2000 introduces a legally enforceable right to
information but in Part II it also sets out Public Interests exemptions.
This area of the law may be developed further by the courts in light of
the FOI 2000 (see eg R (Mohamed) v Secretary of State for Foreign Affairs
[2010] EWCA Civ 65).
LIABILITY OF THE CROWN IN TORT AND CONTRACT
The United Kingdom lacks a well-developed theory of the state and

of a state administration,21 which means that contracts are entered into
by Crown servants as agents acting on behalf of the Crown itself. It
has been established that officials responsible for negotiating contracts
on behalf of a government department are not personally liable under
contract because it is the principal (the department) and not the agent
(the official) who is responsible. A general right to sue the Crown under
contract is provided by section 1 of the Crown Proceedings Act 1947,
which removes the need to obtain the leave of the Attorney-General to
bring an action against the Crown. Until 1947, prior to this enactment,
a petition of right was required to recover damages from the Crown.
Similarly, under section 2 of the Crown Proceedings Act 1947, the
Crown (as opposed to the state) is liable in tort (which covers the other
civil wrongs under the common law). For example, it can sue or be
sued in the courts where there is a claim for negligence. In addition, as
an employer, the Crown is liable for torts committed by its employees
while in the course of their employment. It is also worth pointing out
21 See further J Allison, A Continental Distinction in the Common Law (Oxford,

Evaluation: Reform or Abolition? 99
that other public bodies such as local authorities are in a similar p

osition
to the Crown with regard to their general exposure to liability in tort.
In most respects, the Crown is treated in the same way as any other
defendant, that is, to initiate an action against the Crown a litigant sues
the department concerned or the Attorney-General.
There are, however, fundamental limitations to the award of dam-
ages against the Crown and other public bodies.22 The extent to which
individuals or corporations are able to recover damages from govern-
ment and governmental bodies has the potential to call into question
the place of private law remedies. A general right to recover damages
against the Crown or a public body in regard to the manner in which it
performs its statutory duties would indeed carry with it serious implica-
tions. More specifically, if policy matters were amenable to challenge
by means of a claim for damages, this would be an indirect method of
influencing the formulation and application of policy by democratically
elected and publicly accountable bodies. Broadly speaking, the courts
have been reluctant to grant damages for pure economic loss, except
where there is a contract. As Professor Harlow puts it:
The judges have always been concerned to maintain the ‘floodgates’. They
do not wish to contribute to the creation of a society bent on litigation,
premised on the illusion that every misfortune merits compensation.
Even if there is little concrete evidence to justify fear of a ‘compensation
culture’, … many modern cases are … test cases, … with serious implica-
tions for public funds.23
EVALUATION: REFORM OR ABOLITION?
The monarchy is a costly institution to preserve and it has been the sub-
ject of considerable controversy in recent years. In fact, there has been
a varying tide of media criticism which has ebbed and flowed prompted
by: the failure of royal marriages; the Queen’s initially cold reaction to
the death of Princess Diana (the former wife of Prince Charles and
22 See, eg, X (Minors) v Bedfordshire County Council [1995] 2 AC 633, which set nar-
row limits on claims against local authorities working under a statutory scheme, and
Barrett v Enfield Borough Council [2001] 2 AC 550, which recognised access to a court
before a claim could be struck out.
23 C Harlow, Understanding Tort Law, 3rd edn (London, Sweet & Maxwell,
2005) 150.
mother of his children, William and Harry); and the inappropriate

comments and conduct of certain other members of the royal family.
The British monarchy is an institution which retains many arcane proce-
dures, and its members have been accommodated at taxpayers’ expense
in palatial finery. While the associated pomp and ceremony of trooping
of the colour to celebrate the Queen’s birthday and the state opening of
Parliament might be an attraction for visitors from abroad, spectacles
on a grand scale can be objected to as expensive and anachronistic
luxuries. There have been calls to review the extent to which state fund-
ing through the ‘civil list’ should go beyond supporting the monarch
and her immediate heirs, and to assess whether the public purse should
extend to a total of seven royal palaces and to pay for transport in royal
yachts, trains, and planes.24 In other words, it might be suggested that
the British monarchy could be trimmed down, assuming a lower profile
and becoming more like its Scandinavian counterparts.
An equally trenchant objection is that:
The monarchy remains symbolic of privilege over people, of chance over
endeavour, of being something, rather than doing something. We elevate
to the apex of our society someone selected not on the basis of talent or
achievement, but because of genes.25
Given this type of criticism, namely of a class-based system founded
on privilege by birth right, it is not surprising that republican alterna-
tives have gained a more prominent place on the political agenda.26 For
instance, there have been proposals to replace the monarchy with a
republican constitution.27 However, in devising an alternative it would
be difficult to match the range of significant constitutional functions
which are exercised by the Queen to a new office without including
significant changes to the role of Prime Minister, the Cabinet, and
the civil service. The design of the office of President as Head of
State viewed from an international perspective can have many forms.
24 R Blackburn and R Plant, ‘Monarchy and the Royal Prerogative’ in Constitu-
tional Reform: Tbe Labour Government’s Constitutional Reform Agenda (London, Longman,
1999) 145.
25 ‘Time for the Monarchy to Step Aside’, The Observer, 30 June 2000.
26 A Gray and A Tomkins, How We Should Rule Ourselves (Edinburgh, Canongate,
2005).
27 Commonwealth of Britain Bill 1995–96.
Conclusion 101
The United States (or French) variant of a directly elected President

with formidable executive powers and the ability to veto legislation28
would be much too radical a departure for the UK constitution to take
on board. On the other hand, a directly elected President with a mainly
ceremonial role similar to that granted to the President of the Irish
Republic could serve as a possible model. Even if the type of role for
a future President is defined, a further question which arises concerns
reaching agreement on the type of candidates who might be suitably
qualified to stand for election and hold such a high profile public office.
Indeed, the difficulty in reaching sufficient consensus upon an accept-
able alternative was recently demonstrated when a referendum was held
in Australia in 1999. Despite misgivings over the status quo expressed
in opinion surveys, the Australian electorate rejected the republican
alternative to the Queen as head of state which was on offer.
CONCLUSION
Many nations throughout the world have not accepted the republican
case and continue to have constitutional monarchies. Spain can be cited
as an example of a European nation which has welcomed the introduc-
tion of a constitutional monarchy in recent times. After the divisive
Spanish Civil War (1936–39), which was followed by a generation of
fascist dictatorship, Juan Carlos was named by Franco as his successor.
His accession to the throne in 1975 reinstated a recognised dynasty and
provided a means of reconnecting with a legitimate tradition associ-
ated with the nation’s history. However, Juan Carlos was intent on
democratic reform and after elections were held a hereditary monarchy
became the central feature of a new liberal democratic constitution
adopted in 1978. Under the constitution the King has limited powers
but he acts as a symbol of the ‘unity and permanence’ of the state and
also stands in a position of neutrality, safeguarding the regular functions
of the institutions of the state.29 The robustness of the new constitu-
tion was tested in 1981 when decisive action by the King, at the very
pinnacle of the constitution, thwarted a military coup. At the same time,
28 M Vile, Politics in the USA (London, Hutchison, 1976) 183ff.

29 V Comella, The Constitution of Spain: A Contextual Analysis, 2nd edn (Oxford,
Hart Publishing, 2013) 8, 71ff.
this intervention arguably demonstrated the value of a constitutional

monarchy which is backed by strong public support.
Turning back to the United Kingdom, there is wide acknowledge-
ment (even by detractors) that Queen Elizabeth II has performed her
constitutional functions with an unflinching dedication to duty; rather,
it is the prospect of a less sure-footed successor who might lack equiva-
lent respect for accepted constitutional practice which has raised doubts
about the future of the institution. Abolition of the monarchy is not
on the immediate horizon. As has been noted above, it would require a
written constitution embodying the comprehensive codification of the
current conventions relating to the monarch, many of which have been
discussed in this chapter. Indeed, notwithstanding the criticisms set
out above, it can still be argued that the institution of the monarchy in
the United Kingdom is very important in constitutional terms, because
the reigning King or Queen personifies the nation as head of state and
confirms a link with the nation’s past constitutional history. Moreover,
as Bagehot stressed, the presence of an experienced and respected
monarch acts as a stabilising influence, particularly during times of war
or of political crisis.
FURTHER READING

Bogdanor V, The Monarchy and the Constitution (Oxford, Oxford University
Press, 1995).
Blackburn R, ‘The Prerogative Power of Dissolution of Parliament: Law,
Practice and Reform’ [2009] PL 766.
Blackburn R, ‘Monarchy and Personal Prerogatives’ [2004] PL 546.
Brazier R, ‘The Monarchy’ in V Bogdanor (ed), The British Constitution in
the Twentieth Century (Oxford, Oxford University Press, 2003).
Brazier R, Constitutional Practice, 3rd edn (Oxford, Oxford University
Press, 1999).
Brazier R, ‘Constitutional Reform and the Crown’ in M Sunkin and
S Payne (eds), The Nature of the Crown: A Legal and Political Analysis
Craig P, ‘Prerogative, Precedent and Power’ in C Forsyth and I Hare
(eds), The Golden Metwand and the Crooked Cord (Oxford, Clarendon
Press, 1998).
Conclusion 103
Freedland M, ‘The Crown and the Changing Nature of Government’

in M Sunkin and S Payne (eds), The Nature of the Crown: A Legal and
Political Analysis (Oxford, Oxford University Press, 1999).
Loughlin M, ‘The State, the Crown and the Law’ in M Sunkin and
S Payne (eds), The Nature of the Crown: A Legal and Political Analysis
Pimlott B, The Queen: A Biography of Queen Elizabeth II (London, Harper
Collins, 1996).
Tomkins A, Public Law (Oxford, Oxford University Press, 2003) ch 3.
104
5
Parliament

Electoral System – House of Commons – House of Lords –
Government and Opposition – Legislation – Parliamentary
Committees – Parliamentary Privilege – Watchdog Functions –
Ombudsman – Audit
INTRODUCTION
I N THE UNITED KINGDOM, Parliament is the body in which

the legislative power is vested. It consists of an elected House of
Commons and a House of Lords that is largely comprised of life
peers (appointed for their lifetime) but with a residual membership of
hereditary peers (whose titles are inherited), bishops and Law Lords
(see later discussion on the composition of the House of Lords). In
addition, in order for legislation approved by Parliament to become
law, the royal assent is required. Apart from acting as the legislature for
the United Kingdom, Parliament authorises the levying of taxation and
controls national expenditure and it keeps a check on the executive. In
this capacity it provides the main forum for providing political account-
ability. It also acts as a sounding board for the nation by debating issues
of public concern and by giving the public and other vested interests
the chance to lobby their MPs.
This chapter will consider Parliament’s role as part of the contem-
porary constitution. However, it should be remembered that a power
struggle between Parliament and the monarch was an important feature
of constitutional history. Parliament’s origins were merely as an advi-
sory body to the King. It was made up of the land-owning aristocracy
and the established church, who were represented in the House of
106 Parliament
Lords. The House of Commons consisted of elected representatives of

the gentry on a roughly geographical basis. Parliament functioned as a
kind of representative body of local interests available for consultation,
but by the fifteenth century it also assumed a more prominent role in
passing legislation. Under the Tudor monarchs (Henry VIII, Mary I,
and Elizabeth I) it reverted to a more passive role. However, although
it could be summoned and dismissed at will, Parliament was required
by the King to approve requests for the raising of revenue. The con-
stitutional clashes of the seventeenth century were a direct result of
attempts by the King to rule without recourse to Parliament. This over-
looked the established practice that the King could not enact statutes
without the consent of the two Houses of Parliament. ‘Parliamentarian
theories maintained that God originally conferred the highest pow-
ers of government on the community as a whole, rather than a single
person.’1 During the seventeenth century such responses to absolute
monarchy led to Parliament asserting its role. The Civil War was waged
by Parliament against King Charles I, and constitutional constraints
were finally placed on the monarchy towards the end of the seventeenth
century by the Bill of Rights of 1689. This established that Parliament
must meet on a regular basis. It also conferred special privileges on
Parliament. For example, Article IX of the Bill of Rights provides that
the freedom of speech and debates and proceedings in Parliament shall
not be called into question by any court.
Since devolution the role of the Westminster Parliament has been
affected by the so-called ‘West Lothian question’. The problem is that,
since Scotland acquired its own Parliament and executive with powers
over devolved matters, Scottish MPs at Westminster can vote on matters
affecting England, while English MPs no longer have voting rights over
devolved matters. There is a similar situation in respect to Wales and
Northern Ireland, which also have their own law-making assemblies.
Devolution has modified the role of Westminster MPs representing
constituencies in Scotland, Wales, and Northern Ireland because local
constituents are more likely to turn to members of the devolved bod-
ies to deal with problems concerning devolved matters coming under
the devolved executives—for example, agriculture, education, environ-
ment, housing, and health. A Scottish constituent is therefore much
1 J Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Oxford,

Introduction 107
more likely to go through a Member of the Scottish Parliament if he or

she needs help with resolving a devolved matter. Thus the workload of
Scottish, Welsh and NI MPs to Westminster has been much reduced.
English Votes for English Laws
The government elected in May 2015 has sought, at least partly, to

address the West Lothian question by using their majority to change the
internal procedure in the Westminster Parliament for the passage of
government legislation affecting England. The version of English Votes
for English Laws (EVEL) that has been implemented means that any
bill designated by the Speaker as an English bill will have an extra stage
in the House of Commons. It is considered by a Grand Committee
composed of only English MPs. In effect, the Grand Committee has a
veto on the legislation before the bill proceeds to the report stage, taken
by the whole House. Such a change is controversial for a number of dif-
ferent reasons. At a time when the Scottish Nationalists have emerged
as a powerful political force in Scotland, with 50 plus members elected
north of the border, this marginalises their involvement by partly trans-
forming Westminster into a Parliament for England on many domestic
questions. Further, English MPs on the committee are given an extra
opportunity to vote compared to other MPs, and as the Conservative
Party has won a substantial majority of constituencies in England, it
means that it is likely to dominate the Grand Committee. In any future
situation where one or more parties formed a government, having
an overall majority in UK constituencies, but another party enjoyed a
majority in English constituencies, the veto in the hands of the Grand
Committee would potentially undermine parliamentary sovereignty.2 In
addition, the technical question of what counts as English legislation is
problematic. In terms of drafting, bills may have one or just a few sec-
tions applying only to England. Would such a bill qualify for the revised
procedure? Viewed more generally, legislation for England concerning
devolved functions (eg health, education, social security, to name but a
few) may have wider implications for the rest of the United Kingdom.
This is because spending levels in England are directly reflected in the
2 V Bogdanor, ‘Why English votes for English laws is a kneejerk absurdity’, The
Guardian, 24 September 2014.

108 Parliament
calculation of the Barnett formula which determines the block grant

allocation for Scotland, Wales and Northern Ireland. Another issue is
that the Speaker must now perform a task equivalent to statutory inter-
pretation in setting out the boundaries of devolution. She or he has
to determine whether a bill is an English bill, and, given the potential
debate over the knock-on implications of prospective legislation, there
is a danger that his or her impartiality might be called into question by
having to rule on this question. In addition, it is unclear whether the
rulings by the Speaker on this question are subject to judicial scrutiny.3
(The impact of devolution is discussed further in Chapter 8.)
PART I: ELECTIONS AND THE HOUSE OF COMMONS
Before we look at the way both Houses of Parliament operate, it is

important to investigate the relationship between the House of Com-
mons and representative government. In order to do this, there will be a
brief discussion of the electoral system and the role of political parties.4
THE ELECTORAL SYSTEM
The simple majority or first-past-the-post method of election in the

United Kingdom has contributed to the political dominance of large
parties. During the eighteenth and nineteenth centuries, the Tories and
Whigs were the names of the parties in the ascendancy, but both tended
to represent narrow factional interests, in particular, the landed gentry
and the industrial entrepreneurs. By the end of the nineteenth century
the Conservatives (originating from the Tories) and Liberals (originat-
ing from the Whigs) were the main parties who alternated in power.
The Labour Party as the political voice of the trade union movement
was founded in the late nineteenth century. After World War I, Labour
began to replace the Liberals as the main left-of-centre party. However,
3 P Reid, ‘“English Votes on English Law”: Just Another Running Repair’ UK
Const L Blog (28 October 2015).

4 For an overview, see J Curtice, ‘The Electoral System’ in V Bogdanor (ed), The
British Constitution in the Twentieth Century (Oxford, Oxford University Press, 2003).
Elections and the House of Commons 109
Labour was mostly in opposition until 1945. Since the end of World
War II, the Conservative and Labour Parties have alternated between
government and opposition.
The simple majority system operates by dividing the nation into
645 approximately equal constituencies in terms of population, each
of which sends a single member to Parliament. It produces MPs who
represent clearly defined geographical areas and, as we shall see, an MP
might be regarded as an ‘ombudsman’ for his or her own constituents.
Candidates selected by the political parties, and independent persons
who pay the required deposit of £500 and are able to get sufficient
nominations, can stand at general elections or at by-elections. The
Political Parties, Elections and Referendums Act 2000 regulates the
conduct of political parties and establishes an election commission to
oversee the electoral process. The Act also requires political parties
to be registered and it imposes restrictions on the source of donations
to prevent foreign and anonymous support for political parties. The Act
further requires that any donation of over £5,000 to a political party is
declared. Both the Labour and Conservative Parties faced criticism fol-
lowing the 2005 election for accepting loans from donors in order to
circumvent the provisions of this Act.
The electoral system is extremely straightforward to understand.
A voter simply puts a cross next to the name of his or her preferred
candidate. The candidate receiving the most votes wins the seat. This
is whether or not he or she receives a majority of the votes cast in that
constituency. Although it is not in any sense proportionate, ‘first past
the post’ registers the relative support between the parties with the
widest following in the country. The major parties nearly always win
the seats in their heartlands, but the outcome of elections is decided
in more marginal constituencies, where a shift in support between the
main parties will lead to a change in the member elected. The system
favours parties polling nationally over 30 per cent of the popular vote.
Moreover, a single party receiving between 40 per cent and 45 per cent
of the national vote stands a good chance of gaining an overall major-
ity of seats in the House of Commons and therefore of forming a
government. In 1997 Labour achieved an overall majority of 180 seats
with just under 44 per cent of the popular vote, and their majority
hardly diminished when they received 42 per cent of the popular vote
in 2001.
110 Parliament
2001 General Election Results
Labour 42% popular vote 413 seats 62.7% seats

Conservative 32.7% popular vote 166 seats 25.2% seats
Liberal Democrat 18% popular vote 52 seats 7.9% seats*
* The remaining proportion of votes and seats went to smaller parties and
independents, eg Scottish Nationalists, Welsh Nationalists, Democratic Unionists, and
Sinn Fein.
However, the 2001 result also shows that the system tends to favour
two large parties because, to get elected, a concentration of support is
required in any given constituency. Parties with national support which
is distributed more thinly find it difficult to pick up seats. The Liberal
Democrats with national support at around 18 per cent succeeded in
having candidates elected only in the parts of the United Kingdom
where there are pockets of concentrated support. Equally, the Scottish
and Welsh nationalist parties benefited from the intensity of support in
parts of Scotland and Wales. The Greens, with less than five per cent
nationally, were unable to get a single member elected to the Westmin-
ster Parliament. Constituencies in Northern Ireland are contested by
locally based parties mainly representing the loyalist majority (Ulster
Unionists and Democratic Unionists) and the republican minority
(Social Democratic and Labour and Sinn Fein).
After the 2010 general election, for the first time since February
1974, no party emerged with an overall majority of seats in Parlia-
ment. Although the Conservatives improved their percentage vote
by four per cent they failed to achieve sufficient seats for an overall
majority. The Labour Party share of the vote fell by six per cent, which
was its poorest showing since 1918. The Liberal Democrats marginally
increased their share of the popular vote but won five seats fewer than
in 2005. Nevertheless, on this occasion as third national political party
holding the balance of power between the other two major parties they
were in a position to negotiate a coalition deal with the Conservative
party which lasted for the full parliamentary term.
Labour 30% popular vote 258 seats 40% seats

Conservative 36.1% popular vote 307 seats 47.5% seats
Liberal Democrat 24% popular vote 57 seats 8.8% seats
The distortions in representation caused by first past the post were

once again illustrated by the results of the May 2015 election which
had a turnout of 66.1 per cent. Although opinion poll evidence had
predicted another hung Parliament the Conservative Party managed to
win a narrow overall majority of 12 seats. This increase to more than
51 per cent of seats was achieved with less than a one per cent increase
in national support for the Conservative Party since 2010. The Scottish
National Party (SNP) was the other big winner in the election, mainly at
the expense of Labour. The SNP managed to pick up all but three seats
North of the border, with 50 per cent of the popular vote in Scotland.
The other national fringe parties (United Kingdom Independence
Party (UKIP), British National Party (BNP) and Greens) had failed to
win a single seat in 2005 and 2010 but managed to increase their share
of the popular vote. In 2015 the vote for UKIP rose spectacularly to
12.6 per cent but in contrast to the SNP, Welsh Nationalists and Ulster
parties the support for UKIP was widely dispersed. In consequence, it
only managed to have one MP elected. The steep decline in the popular
vote for the Liberal Democrats resulted in the party losing all but eight
of its seats at Westminster.
Conservative 36.9% popular vote 331 seats 51% seats

Labour 30.4% popular vote 232 seats 36% seats
SNP 4.7% popular vote 56 seats 9% seats
Liberal Democrat 7.8% popular vote 8 seats 1% seats
UKIP 12.6% popular votes 1 seat less than 1%
Others 22 seats
ALTERNATIVES TO FIRST PAST THE POST?
In a situation where two parties predominated, the endorsement of

one side in preference to the other at elections allowed the party with
most seats to claim a popular mandate for policies. It also ensured that
its legislation passes through the House of Commons without much
disruption. This has been the case even when a government has a small
overall majority in the House of Commons. The risk of defeat in the
voting lobby is a strong incentive for tribal party loyalties to prevail over
112 Parliament
personal conscience on any single issue. The system generally provides

decisive government, since a party with a majority can carry through its
policies without having to enter into pacts and compromise, as is often
the case where a system of proportional election is adopted. Advo-
cates of ‘first past the post’ might still argue that, on most occasions, it
provides a clear outcome, and that it also prevents ‘extreme’ minority
parties from doing well. These are crucial strengths which should be
retained. Opponents of the present system, particularly the Liberal
Democrats and UKIP, not only object because minority parties are
greatly under-represented, but also because the shifts between political
parties which govern has allowed lurches from the relatively extreme
positions adopted by the Labour and Conservative Parties. The emer-
gence of coalitions from the centre is regarded as preferable.
The coalition agreement after the 2010 general election included a
commitment to hold a national referendum allowing voters a choice
between the retaining the present system or changing it in favour of the
alternative vote (AV) system. AV is a preferential system that maintains
single-member constituencies and seeks to ensure that all MPs have the
support of more than half of the electors in their constituency. It works
by allowing voters to rank candidates in order of preference. Candidates
are elected outright if they receive more than half of the votes. If no
candidate gains a majority on first preferences, the second preferences
of the losing candidates are redistributed successively until a candidate
emerges with more than half the votes. AV was decisively rejected in
the May 2011 referendum. Such a system may be a barrier to extrem-
ist parties but opponents point out that it is not more proportional
than first past the post and likely to result in the election of the least
unpopular candidate. Rather, an additional member system similar to
the one operating in Scotland and Wales for the devolved Parliament/
Assemblies would compensate for the gross disparity of first past the
post. This approach would rely on electors having two votes; one would
be counted on a simple majority basis, while the other would be pro-
portional and based on a party list.5 Of course, there are many different
systems of proportional representation that might be adopted as an
5 www.electoral-reform.org.uk/additional-member-system. See also ‘The

overnance of Britain: Review of Voting Systems: The experience of new vot-
G
ing systems in the United Kingdom since 1997’, Ministry of Justice, January 2008,
Cm 7304.
alternative. All the alternatives are more difficult to understand and each
system has different strengths and weaknesses. For example, party list
systems, such as the one now used in the United Kingdom for European
Union elections, accurately reflect the votes cast for each party, but this
method of election tends to give a great deal of power to the party lead-
ership in drawing up the lists. Where it is used for electing national Par-
liaments (eg Israel), minority parties often end up holding the balance of
power, and this method of voting provides an opportunity to extreme
minority parties. Another feature which advocates of the status quo see
as a disadvantage of proportional systems of election is that they often
result in permanent coalition governments where, rather than follow-
ing up manifesto commitments put to the electorate, policy deals are
thrashed out by politicians in private after the election has taken place.
ELECTRONIC VOTING
Electronic voting at election time by computer is on the horizon.

It would cut down the expense of elections and allow results to be
declared as soon as the polls close (assuming a secure system is devised).
However, quite apart from the normal electoral process, more frequent
consultation online from the citizen’s home is in prospect. Such an
innovation would amount to an entirely new form of participatory
democracy by allowing dialogue between government and the wider
citizenry. The prospect of broadening consultation to inform decision-
making by central and local government might be welcomed. It could
help deliberations on many routine matters. On the other hand, the
holding of online plebiscites as indicators of the public mood would
have to be rigorously controlled, as testing the water in this way could
easily be abused by government. For example, in order to justify the
introduction of repressive legislation following a violent crime or ter-
rorist attack the Home Secretary might calculate on getting ‘knee jerk’
approval for such measures in an electronic vote.
THE HOUSE OF COMMONS AND THE FORMATION OF

A GOVERNMENT
In terms of the broader constitutional context we can see that Parlia-

ment is crucial to the formation of the government. After a general
114 Parliament
election, the leader of the party with a majority in the elected House of
Commons will be invited by the monarch to become Prime Minister.
The procedure for the change of government in the event of a hung
Parliament was put to the test following the 2010 general election.
The guiding principle according to the Cabinet Secretary was to keep
the Queen out of the political fray. Gordon Brown as incumbent was
entitled as Prime Minister to remain in 10 Downing Street while the
parties negotiated to form a government. Moreover, it would have been
perfectly within the prerogative of the incumbent Prime Minister for
the new Parliament to meet in order to test the opinion of the House
of Commons.6 After an agreement has been reached or a vote taken,
the Prime Minister will either be in a position to continue, assuming
the agreement includes his party or the vote supports his party. If he is
unsuccessful, then he will be in a position to resign and to recommend
his successor. Gordon Brown resigned on 11 May 2010, four days after
the election, and recommended to the Queen that David Cameron be
appointed as his successor. This means that ‘Politics continue to be
organised around the linchpin principle of the Westminster system—
the need for governments to secure and retain the confidence of the
popularly elected house.’7 The first job the Prime Minister has to per-
form is to select a government from the MPs elected to the House of
Commons and peers who are members of the House of Lords. The
predominance of the House of Commons over the House of Lords
has given rise to the recognition of a convention dating back to 1902,
that in order to be accountable to the electorate, the Prime Minister
must be a member of the House of Commons. In 1963 Lord Home
and Lord Hailsham, two of the leading contenders to succeed Harold
Macmillan, renounced their inherited titles in order to be viable can-
didates to take over as Prime Minister, and Home (Sir Alec Douglas
Home) actually succeeded to the Premiership.
We have noted that one of the most important constitutional con-
ventions requires that a government maintains its majority in the House
of Commons. This convention dictates that the Prime Minister of a
government that is defeated in the House of Commons on a vote of
confidence must offer his or her resignation prompting an early general
2011) 21.
7 Ibid, 23.
The House of Commons 115
election. The last recent occasion when this occurred was in 1979. The
Labour government of James Callaghan lost a vote of confidence by
a single vote, giving rise to an early election. The requirement that a
governing party sustains its majority in the House of Commons has
a very important influence on the way Parliament operates. It means,
for example, that, even where there are considerable factional divisions
within a party in government on matters of policy, there is still a strong
reason for backbench MPs on the government side to support the
party line. This is because failure to do so could result in the loss of a
confidence vote leading to an early general election and possible defeat
at the ballot box.
PART II: THE HOUSE OF COMMONS
THE HOUSE OF COMMONS AND THE ROLE OF MPs
The House of Commons consists of 650 elected MPs, each of whom

represents an individual constituency which is based on geographical
area. MPs who are not members of the government or shadow govern-
ment are referred to as ‘backbenchers’.8 Apart from representing their
constituents, MPs participate in debates, vote on legislation, and serve
on parliamentary committees. The House of Commons is presided
over by the Speaker (and three deputies), who is elected by MPs. The
Speaker detaches him/herself from previous party associations and
has enormous authority. He or she determines who can contribute to
debates and is required to rule on procedural matters as well as per-
forming a quasi-judicial function when dealing with internal disciplinary
issues concerning the conduct of MPs.
MPs are sent to Parliament to represent their constituents, but they
are not delegates. They may win their seat on the basis of manifesto
pledges made by a political party to the electorate. However, once
elected, there is no formal mechanism available to individual electors to
compel their MP to follow manifesto policies. On the other hand, the
political party to which MPs belong (exceptionally there may be MPs
who do not belong to a major political party) is in a position to exert
8 R Brazier, Constitutional Practice, 3rd edn (Oxford, Oxford University Press,
1999) ch 10.
116 Parliament
pressure to encourage them to tow the party line. MPs may seem free
to dissent from this position and vote with the opposition or abstain
from voting. The divisions in the Conservative Party over the European
Union led to a number of rebellions by Eurosceptic MPs. This made it
difficult for the government of Prime Minister John Major, 1990–97,
to introduce legislation incorporating the Treaty of Maastricht (which
extended the role of Europe with the formation of the European
Union). The matter was subject to a vote of confidence, but the govern-
ment narrowly prevailed. In 1995 the same divisions in the Conservative
Party in the House of Commons prompted Major to trigger a leader-
ship election that he was able to win against his Eurosceptic opponent.
Prime Minister Tony Blair, who enjoyed a much larger majority, lost the
support of a significant minority of backbench MPs over some issues
(eg the introduction of foundation hospitals and the war against Iraq).
Behind the scenes, the party machine (whips) exerts strong pressure on
individual members. In consequence, MPs who persistently vote with
the opposition may lose the endorsement of their party (have the whip
withdrawn). This punishment can be imposed on a temporary or on a
permanent basis.
Also, there is a geographical and local dimension to the role of MPs
which has been re-enforced with the electoral success of the SNP in
Scotland. MPs seek to represent the interests of their constituents and
promote what they regard as their constituency interests. There are
many examples of MPs articulating local views on contentious matters.
One such issue concerns opposition voiced in Parliament to proposals
to build a third runway at London’s Heathrow Airport. Local opposi-
tion is spearheaded in Parliament by local members. MPs will take up
grievances on behalf of their constituents. But there may be limits to
such support. MPs may be reluctant to back a local cause when this
conflicts with the official party line.
The adversarial character of parliamentary politics has exerted an
enormous influence on the procedures that have developed. A two-
party system derived from having rival factions outbidding each other
to act as advisers to the monarch (one in government; the other in
opposition). In order to succeed in an adversarial system political par-
ties have tended to be made up of broad coalitions of individuals with
diverse shades of opinion. The factions need to keep together for a
government to maintain its majority in Parliament. Nevertheless, if the
policies of a party change too much, or if the leadership loses touch
with the grass roots, the tension caused may result in rebellions inside
the party and defections to other parties. One of the most dominant
Prime Ministers of recent times, Margaret Thatcher, faced a leadership
contest and was forced to step down because of divisions in her own
parliamentary party.9
Parliamentary questions provide an important opportunity for
individual members to raise matters on behalf of constituents and of
general concern. MPs are expected to represent the interests of con-
stituents whether or not they are political supporters. ‘Question time’
is the highlight of the parliamentary day, and it brings matters to the
attention of the wider public. It will be pointed out below that ‘ques-
tion time’ is also a procedure that permits MPs to call the executive
to account for its actions. Early-day motions are another method for
drawing attention to a matter of concern. There are limited opportuni-
ties for backbench MPs to initiate debates on subjects that they feel are
important. Adjournment debates are available for raising issues and are
held at the end of parliamentary business. These may be matters that
cause embarrassment to the government, but emergency debates are
granted only occasionally by the Speaker.
The question of representation in Parliament, and particularly in
the House of Commons, should also be considered in terms of the
extent to which it achieves a gender and ethnic balance.10 The Parlia-
mentary Labour Party had many more women than the Conservatives
and the Liberal Democrats between 1997–2010. This was because of
a deliberate policy before the 1997 election that favoured the selection
of female candidates. Ethnic minorities are unevenly represented, with
only a handful of MPs. The Scottish Parliament (40 per cent) and the
Welsh Assembly (50 per cent) have among the highest concentrations
of female representation in Europe.
THE SPEAKER
The Speaker of the House of Commons was the elected official who
spoke for his or her fellow members by communicating requests to
9J Cole, As It Seemed to Me (London, Phoenix, 1996) 375.

10See, eg, R Campbell and J Lovenduski, ‘Winning Women’s Votes? The Incre-
mental Track to Equality’ (2005) 58 Parliamentary Affairs 837.
118 Parliament
the King or Queen. In the present set-up, the Speaker (and the deputy
speakers), apart from presiding over debates and determining the order
in which members speak, performs an important quasi-judicial function
in giving rulings on procedural points of order that arise. This includes
whether a bill is considered to be a money bill and whether a bill is an
English bill qualifying for the EVEL procedure discussed above. It is
important to note that the Speaker is disqualified from direct participa-
tion in debates. In addition, he or she retains a historic role in formally
representing the views of the House of Commons to the monarch.
GOVERNMENT AND OPPOSITION
The official opposition has a vital part to play in the parliamentary

system.11 It will be obvious that the role of the opposition is to oppose
the government of the day, both by raising reasoned objections to its
legislative proposals, and by criticising its performance as a government.
The opposition also has to present itself as a government-in-waiting.
As well as having a distinct set of policies, it has an alternative leader
and government team in what is termed a ‘Shadow Cabinet’. On top of
any earnings as MPs, the Leader of Her Majesty’s Opposition and the
opposition Chief Whip are paid salaries, which is further acknowledge-
ment of their formal status. In order to perform its function, the official
opposition and other opposition parties are granted parliamentary time,
and they are represented on all parliamentary committees. The opposi-
tion has a particularly important role in relation to public expenditure.
A certain amount of time, called supply days (now opposition days), is
set aside to debate in detail the estimates for public expenditure, but
these opposition days can be used to discuss other policy issues.
The opposition will often chose a sensitive topic which is likely to
cause embarrassment to the government in anticipation that the debate
will attract adverse publicity and a modification of policy. But the out-
come of debates and votes in the House of Commons are usually a
foregone conclusion. This is because the government whips are nearly
always able to ensure a government majority for the ruling party (see
references to ‘elective dictatorship’).12 However, an effective opposition
11 G Ganz, Understanding Public Law, 3rd edn (London, Fontana, 2001) 30.
12 From Lord Hailsham’s phrase: Elective Dictatorship (London, British Broadcast-
ing Corporation, 1976).
may be able to cause long-term political damage to the government. For

example, although the administration of Prime Minister John Major
survived for several more years, the government’s credibility was seri-
ously damaged by criticisms of economic mismanagement levelled at it
by the opposition following the United Kingdom’s forced withdrawal
from the European Exchange Rate mechanism on 16 September
1992. A degree of co-operation between government and opposition
is required to allow many parliamentary procedures to operate and to
facilitate the passage of legislation. For example, there will usually be
agreement over the amount of time to be devoted to clauses of a gov-
ernment Bill. Finally, as a potential leader, the Prime Minister may con-
fide in the Leader of the Opposition on matters of national importance
or crisis, for example, where UK forces are engaged in action overseas.
PARLIAMENTARY PRIVILEGE
Parliament has been given a number of important legal privileges which

allows it to conduct its constitutional role without interference from
the Crown or from the courts, and these amount to a source of consti-
tutional law in their own right.13 The grant of these special privileges
by the sovereign must be related to the struggle between the King and
Parliament which came to a head in the seventeenth century with the
English Civil War of 1642–49 and the ‘Glorious Revolution’ of 1688.
The English Bill of Rights of 1689 provided under Article IX that the
freedom of speech and debates or proceedings in Parliament ought not
to be impeached or questioned in any court or place outside Parliament.
The special privileges afforded to Parliament have been unchallenged
by the Crown since 1688. In the absence of a codified constitution
as a form of guarantee, these privileges are demanded from the mon-
arch by the Speaker of the House of Commons and confirmed (as a
symbolic gesture) at the beginning of each parliamentary session. In
effect, this acknowledges the independence of Parliament, and Parlia-
ment is granted special rights to do certain things without having its
legitimacy or its authority challenged by the sovereign, the government,
or the courts. This means that, for example, in theory, MPs have an
13 C Munro, Studies in Constitutional Law, 2nd edn (London, Butterworths, 1999)

ch 7.
120 Parliament
u nqualified freedom of speech. In practice, this means that what is said

in Parliament cannot be the subject of defamation actions or prosecu-
tion in the courts. However, if this privilege is abused MPs may be
disciplined by Parliament itself. The absolute freedom of speech can be
regarded as the most significant of the privileges enjoyed today. This
immunity has the potential to enable MPs to voice concern about mat-
ters of public concern in Parliament in circumstances where they would
otherwise be forced to remain silent. It permits accusations in Parlia-
ment which, if repeated outside, would result in legal proceedings. For
example, in 1955 at the height of the so-called ‘Cold War’ Kim Philby
was exposed in Parliament as a spy. This revelation was the prelude to
uncovering of the biggest security scandal in British history.
In Stockdale v Hansard 14 the courts conceded jurisdiction to the House
of Commons and refused to provide a remedy after being presented
with a Speaker’s warrant asserting that it was not for the court to inquire
into the business of Parliament. Lord Denman stated: ‘Whatever is
done within the walls of either assembly must pass without question in
any other place.’ Further, the case of Bradlaugh v Gossett 15 confirmed that
the courts have no power to intervene in relation to the internal man-
agement and procedures of the House of Commons. It also recognised
that Parliament is able to determine the nature and limits of parliamen-
tary privilege. The recognition of parliamentary privilege has meant
that Parliament has the right to control its own internal p roceedings
without question. Moreover, Parliament is a court which can discipline
and, if necessary, imprison its own members for misbehaviour. In
recent years further steps have been taken to oversee the activities and
behaviour of MPs.
PARLIAMENTARY STANDARDS, THE CONDUCT

OF MPs AND THE EXPENSES SCANDAL
The conduct of some MPs became a particular cause of concern dur-

ing the 1990s and again in 2009 following the disclosure of apparently
excessive claims for expenses. In 1994 Lord Nolan, a senior judge
from the judicial panel in the House of Lords, was given the task of
14 (1839) 9 Ad & El 1.
15 (1884) 12 QBD 271.
reformulating guidelines in respect to regulating the conduct of MPs

and setting up the Committee on Standards in Public Life. Public duty,
selflessness, integrity, objectivity, accountability and openness, honesty
and leadership were identified as forming the principles that should
underpin the codes of practice. These principles should be applied to
MPs. Furthermore, Members of Parliament are required not to bring
the office of Member of Parliament into disrepute. One issue which
brought this matter to the attention of the public was the revelation
that some Conservative MPs (eg Tim Smith and Neil Hamilton) had
received cash for asking questions in Parliament on behalf of private
individuals, including Mohammed Al Fayed, the owner of Harrods. The
disquiet was not because of the association with outside interests. It has
already been pointed out that significant number of Conservative MPs,
and some Labour and Liberal Democrat members, have links with busi-
ness. Equally, the parliamentary Labour Party was formed to further the
aims of the trade union movement and other affiliated bodies on the
left of politics. The problem was that a number of MPs were present-
ing themselves as consultants and were acting through agents without
declaring this role. In return for cash they promised to raise issues in
Parliament. The concern was not only that there had been no declara-
tion of interest, but also that this had the potential to interfere with an
MP’s main job, namely, to represent the interests of their constituents.
It has been established as a matter of principle that MPs should declare
any personal interest in a matter brought before Parliament. For this
purpose a Register of Members’ Interests is published and there are
strict rules governing the financial interests that have to be declared.
Failure fully to disclose such interests is regarded as a serious matter,
which will lead to disciplinary action.16
The Parliamentary Commissioner for Standards has an investigatory
role and MPs are required to co-operate with any investigation that is
undertaken.17 The Standards Commissioner performs the functions
previously carried out by separate Select Committees on Members’
Interests and on Privileges. These committees were combined in 1995,
with the formation of a new House of Commons Select Committee
16 See First Report of the Committee on Standards in Public Life, Cm 2850 (1995).
17 See P Leopold, ‘Standards of Conduct in Public Life’ in J Jowell and D Oliver
(eds), The Changing Constitution, 7th edn (Oxford, Oxford University Press, 2011)
404ff.
122 Parliament
on Standards and Privileges. It is chaired by a respected member of

the opposition, has 11 members, and a quorum of five, with the power
to appoint sub-committees. This Committee oversees the work of the
officer of the House of Commons, the Parliamentary Commissioner
for Standards, Kathryn Hudson. She is responsible for the maintenance
of the Register of Members’ Interests and advises MPs on the registra-
tion requirements, but she also has the task of investigating specific
complaints about the conduct of MPs. The Committee on Standards
considers matters relating to privileges referred to it by the House, and
matters relating to the conduct of MPs, including specific complaints
about MPs’ conduct which have been made to the Commissioner and
referred by him to the committee. In particular, the committee has
power to order the attendance of any MP before the committee, and to
require that specific documents or records in the possession of an MP
relating to its inquiries, or to the inquiries of the Commissioner, be laid
before the committee. In July 1996 the House adopted the committee’s
proposals for a Code of Conduct for Members, which was accompa-
nied by a Guide to the Rules relating to the Conduct of Members. In
recent years under Labour a steady stream of cases have been referred
for investigation. For example, in 2006 the failure of the then Deputy
Prime Minister, John Prescott, to declare a stay on the ranch of an
American tycoon (who had previously expressed a business interest in
a government-sponsored project) attracted much attention in the press.
The investigation and report by the Commissioner demonstrate that
these procedures are strictly enforced, but also reveals the complexity
and ambiguity of some of the rules governing what MPs and ministers
are expected to enter on the register.18
A major public scandal erupted in 2009 in regard to inflated and in
some cases fraudulent expenses claims from MPs. The matter came
to light after Freedom of Information requests from three journalists
investigating such claims were successful.19 There had been attempts to
prevent detailed disclosure from taking place in the courts by Speaker
Martin of the House of Commons20 and some MPs had been keen
to pass a private members bill that would have made them exempt, or
18 Select Committee on Standards and Privileges, Thirteenth Report, 20 July 2006.

19 See P Leyland, ‘Freedom of Information and the 2009 Parliamentary
Expenses Scandal’ [2009] PL 675.
20 See ‘Speaker “Leaned On” over Expenses’, BBC News, 28 May 2009.
partially exempt, from the provisions of the Freedom of Information

Act.21 The argument by the press that the publication of details of
members’ expenses claims was in the public interest was upheld by the
Information Commissioner and later confirmed by the High Court. To
understand this affair in context it should be recognised that MPs in
the UK receive a salary of £74,000 which is about average in compari-
son with their European counterparts22 but were allowed to claim up
£100,000 for office expenses. The House of Commons had published
a Green Book which was intended to provide detailed guidelines about
the rules concerning the financial allowances available to MPs. The
Department of Resources, formerly the Fees Office, was responsible
for administering the rules and ensuring compliance. The principles
set out left little doubt that elected politicians were expected to set an
example of probity and honesty. All expenses claims should have been
above reproach and reflected actual usage. It became apparent from
these disclosures that many MPs maximised financial gain. For example
by regularly changing the designation of their second home, a practice
referred to as ‘flipping’, they were able to sell off the original prop-
erty at a profit while claiming back the full cost of renovation. Some
MPs, including one Cabinet minister, sold these secondary properties
at a profit after having received repayments and mortgage relief, but
avoided payment of capital gains tax on the sale. The payment of family
members as staff was another practice which was called into question.
The publication of details also revealed what might be termed ‘creative
abuse of the rules’ with inappropriate claims, some of which appear
almost comical in the light of the principles set out in the Green Book
for Members referred to above. The catalogue of abuse which was
placed in the public domain by the Daily Telegraph caused considerable
damage to the credibility of the entire political class in the eyes of the
general public. Parliament responded by passing the Parliamentary Stan-
dards Act 2009 which established an Independent Parliamentary Stan-
dards Authority with responsibility for overseeing the pay and expenses
of MPs. A recent reform allows voters to petition for the removal of
miscreant MPs from office. Under the new legislation the possibility of
21 The Freedom of Information (Amendment) Bill was introduced in 2006 but
failed to complete its parliamentary stages in 2007.

22 news.bbc.co.uk/1/hi/uk_politics/7961849.stm#France.
124 Parliament
an early election arises when an MP is either: imprisoned; suspended

from the House for 10 days or more; or found guilty of submitting false
claims of expenses. If such a petition receives the support of at least
10 per cent of voters the sitting MP loses his or her seat and it will result
in an early by-election.23
Another interesting aspect relating to parliamentary privilege arose
when in R v Chaytor and others 24 a group of three MPs and a peer facing
criminal charges of false accounting relating to their expense claims25
argued on final appeal before a nine-judge panel of the Supreme Court
that the Crown Court had no jurisdiction to try them on the grounds
that this would infringe parliamentary privilege. Article IX of the Bill
of Rights of 1689 was used to suggest that freedom of speech and
debates or proceedings in Parliament ought not to be impeached or
questioned in any court. After examining the relevant law, Lord Rodgers
pointed out that the very fact that the House authorities co-operated
with the police in the investigations suggested that they did not regard
the allegations as falling into the category over which a privileged claim
would be made. Lord Phillips concluded that ‘[P]recedent, the views of
Parliament and policy all point in the same direction. Submitting claims
for allowances and expenses does not form part of, nor is incidental
to, the core essential business of Parliament, which consists of collec-
tive deliberation and decision making.’26 Moreover, it was further held
that the House does not assert any exclusive jurisdiction to deal with
criminal conduct, even where this relates to or interferes with proceed-
ings in committee or in the House. Where it is considered appropriate,
the police will be invited to intervene with a view to prosecution in the
courts. After this alleged criminality had been exposed it would indeed
have been a matter of great public concern if these political figures had
been seen to use this ancient privilege to escape the full force of the law.
In the event three MPs, Chaytor, Devine and Morley, as well as Lord
Hanningfield, were subsequently prosecuted and imprisoned after being
found guilty of false accounting.
23 Recall of MPs Act 2015, s 1.

24 [2010] UKSC 52.
25 See P Leopold, ‘Standards of Conduct in Public Life’ in J Jowell and
D Oliver (eds), The Changing Constitution, 7th edn (Oxford, Oxford University Press,
2011) 399.
26 R v Chaytor and others [2010] UKSC 52, para 62.
The House of Lords 125
We turn next to consider the role of the House of Lords. While it is

generally acknowledged that the House performs an important revising
function, its role and composition have been a matter of constitutional
debate for more than a century.
PART III: THE HOUSE OF LORDS
INTRODUCTION AND HISTORY
Although members of the House of Lords are not elected, the so-called
Upper House has broadly similar functions to the House of Commons.
It scrutinises legislation as it passes through Parliament, and it requires
the government to account for its policies. The House of Lords oper-
ates as a revising chamber with more time available and, in many cases,
more expertise to perform this task. The House of Lords, which serves
as the second chamber in the United Kingdom, is a very unusual body.
In common with the Canadian Senate, it is entirely unelected and, as
well as having a legislative role, it has performed the crucial judicial
function of being the highest domestic appellate court, although it was
announced in June 2003 that a Supreme Court would be established
to perform this judicial appellate function. The House of Lords has
been the subject of reform on several occasions, the most recent and
far reaching, certainly in terms of composition, was in 1999, when the
hereditary element was heavily pruned. This was to be the prelude to
further reform, but, to date, there has been a lack of consensus as to
what should happen next. While most commentators and politicians
recognise that a second chamber should continue to have a role as a
body which revises legislation and helps to scrutinise the executive,
there has been much disagreement over the composition of the House
of Lords or any such body that might replace it.
The prospect of conflict between the two Houses resulting in grid-
lock has generally been avoided because there is an important conven-
tion (known as the ‘Salisbury’ convention) that establishes that the
government’s manifesto commitments, in the form of Government
Bills, are not voted down by the House of Lords at second reading
stage.
The legitimacy of the Lords had been called into question with the
extension of voting rights during the course of the nineteenth century.
126 Parliament
As a hereditary body the House of Lords largely represented the landed

aristocracy, but the social and economic changes resulting from the
Industrial Revolution, including the growth of towns and cities, the
emergence of powerful industrial interests, and the activities of protest
movements and organised labour had an important bearing on politics.
The response of the House of Lords to electoral reform is particu-
larly relevant to this discussion. When the first Reform Bill of 1832
proposed a limited extension of voting rights and a fairer distribution
of seats, the landed aristocracy in the House of Lords attempted to
prevent the Bill’s passage through Parliament. It resisted again at the
beginning of the twentieth century when a Liberal government was
elected on a radical manifesto. The tactics of the Conservative opposi-
tion in the House of Lords, which thwarted the government’s attempts
to introduce many of its policies by voting them down, triggered a con-
stitutional crisis. The clash between the two Houses culminated in the
rejection by the House of Lords of the Finance Bill (Budget) of 1909.
This intervention departed from what was believed to be a convention
that prevented the Lords from blocking money Bills. To overcome the
stalemate, the Liberal government was required to contest two elections
in 1910. The first was on the budget, and the second on the govern-
ment’s proposals to curtail the powers of the Lords permanently. The
prospect that the King would create enough Liberal peers to vote in
favour of the Parliament Bill and thereby overwhelm the opposition
prompted sufficient Conservatives in the House of Lords to back down
and vote in favour of reform.
The Parliament Act, which became law in 1911, clipped the wings
of the House of Lords by replacing its capacity to veto legislation
with a delaying power of two years (this was later reduced to one year
by the Parliament Act 1949). The delaying power has been used on
only a handful of occasions since 1949. The reluctance to invoke this
power confirms the subordinate role of the House of Lords.27 It is
mainly a revising chamber. In addition, the Parliament Act 1911 entirely
removed any rights to veto or delay financial Bills. Nevertheless, in
order to provide some balance between the two Houses the 1911 Act
left the House of Lords with an absolute power to reject any legislation
27 As was pointed out in Chapter 3, the constitutional status of the Parliament
Acts was recently considered by the House of Lords in Jackson v Attorney-General

[2005] UKHL 56.
which sought to prolong the lifetime of a Parliament and, at the same

time, it reduced the maximum period between parliamentary elections
from seven to five years. The present House of Lords is left with the
power to delay legislation for up to a year. It can also amend and veto
secondary legislation emanating from the Commons. In October 2015
the House of Lords used the procedure to veto controversial rules to
cut tax credits proposed by the government. Following the publication
of the Strathclyde Review in December 2015 the government proposes
to respond by legislating to remove the veto over statutory instruments
and replace it with a power to send laws back to the Commons requir-
ing MPs to vote again on the measure in question.28 The government
maintains that the change is justified as the unelected Lords lacks the
legitimacy to interfere with the programme of an elected government
with an absolute veto on secondary legislation. On the other hand,
secondary legislation is frequently employed to introduce controversial
changes and there is serious concern over the effectiveness of Parlia-
ment as a revising chamber given the fact that a government with a
majority in the Commons is nearly always able to count on getting
its legislation through Parliament. This change will alter the balance
between the two Houses in favour of the Commons and the govern-
ment of the day.
COMPOSITION OF THE HOUSE OF LORDS
The House is composed of a number of different categories of peers.

Viewed from a historical standpoint the Upper House of peers repre-
sented the families who had been elevated to the nobility by the King
(dukes, marquises, earls, viscounts, and barons). It contained peers
whose ancestry dated back to the medieval period. They also repre-
sented the interests of the established church. The power to appoint
peers, which originally lay with the sovereign, has effectively since the
eighteenth century been in the hands of the Prime Minister, whose
nominees are rubber-stamped by the sovereign. An appointments com-
mission, which is meant to be independent, is expected to take over the
role of making recommendations for life peerages.
28 Hansard, 17 Dec 2015: Column 1740, Strathclyde Review.

128 Parliament
By the time the Parliament Act 1911 reformed the House of Lords, it
was already evident to many that birth right was not a legitimate qualifi-
cation for service in a modern legislature. Moreover, the predominance
of hereditaries was iniquitous because the Conservatives were able to
muster a majority by summoning their supporters amongst the heredi-
taries to vote. This built-in Conservative majority presented a particular
problem for Liberal and later for Labour governments. Nevertheless,
until 1999 hereditary peers, numbering over 758 out of 1,325, remained
the largest single group. The House of Lords Act 1999 removed the
voting rights of all but 92. A ballot was held among the hereditary peers
to establish which of their number were to remain as a residue of work-
ing hereditary peers. It was argued that the 92 were necessary to provide
continuity until the next phase in the process of reform was completed.
The Lords Spiritual, representing the Church of England, also have
a traditional right to sit in the House of Lords. The Archbishops of
Canterbury and York and 24 other bishops are entitled to participate
in the affairs of Parliament. Although the leaders of other denomina-
tions may be given life peerages, there is no guarantee of equivalent
representation. The Royal Commission sought to address this anomaly
by suggesting that all the major religions should be represented in a
reformed second chamber.
By far the largest category of members is that of the (around)
705 life peers. The Life Peerage Act 1958 allowed the appointment of a
new category of barons serving for their lifetime only. In addition, the
1958 Act removed the sex discrimination barrier that had prevented
women from sitting in the House of Lords. Although life peerages were
available as an alternative to the hereditary principle from 1958, it was
not until the election of Labour in 1964 that it became accepted prac-
tice to appoint exclusively life peers (there were a handful of hereditary
peerages awarded as an exception during Margaret Thatcher’s term as
Prime Minister, eg to Viscount Whitelaw and Viscount Tonypandy).
It is worth noting that nominees for life peerages have fallen into two
main categories. A certain number have been created on a regular basis
as the political nominees of the main political parties. It has been a
convention that, in order to perform the role of opposition effectively,
opposition parties should be entitled to make recommendations to
the serving Prime Minister. A substantial proportion of these political
appointments is made up of politicians with experience in the House of
Commons or at European, devolved, or local level. The second c ategory
of nominees comprises those appointed in recognition of exceptional

contributions to the wider community. Included under this head are
captains of industry, retired leaders of trade unions, distinguished aca-
demics, former senior civil servants, retired generals, admirals, and air
marshals, leading figures from the professions, arts, and sciences, and
so on. The intellectual distinction and specialist knowledge of many life
peers contributes to the high quality of debate in the House of Lords
and to the contribution it makes as a body which revises legislation.
With the exception of ministers and shadow ministers, peers are not
paid, but are entitled to claim back expenses for travel, subsistence, and
secretarial costs.
The last distinct category is that of the Law Lords, created under
the Appellate Jurisdiction Act 1876, who are appointed to serve on the
highest domestic appellate court and are made life peers. The judicial
committee had 12 working Law Lords with further retired Law Lords,
who have the right to sit and vote for the remainder of their lifetime.
There was a convention that serving Law Lords do not routinely partici-
pate in political debate. However, the Constitutional Reform Act 2005
has replaced the judicial committee of the House of Lords with a UK
Supreme Court, and this change has ended the anomalous situation
which allowed the Lord Chancellor, and the most senior serving judges,
to also be members of the legislature.
In January 2016 out of 820 members the party strengths in the
House of Lords based on declared allegiances were: Labour 213, Con-
servative 250, Cross Bench 178, Liberal Democrats 111. Of the total
eligible to sit in the House, 213 are women. Daily attendance averages
between 350 and 450 peers.
HOUSE OF LORDS: WHAT NEXT?
As has already been observed, the House of Lords Act of 1999 partially
tackled the anomaly of hereditary peers, but this was intended only as
a temporary measure until such time as the composition of a second
chamber could be agreed.29 Each of the various options for reform has
29 For an evaluation of reform so far, see G Phillipson, ‘“The Greatest Quango
of Them All”, “A Rival Chamber” or “A Hybrid Nonsense”? Solving the Second

Chamber Paradox’ [2004] PL 352.
130 Parliament
far wider constitutional implications. If the United Kingdom was to

follow most other nations and introduce an elected second chamber,
this would provide an important element of democratic legitimacy. The
method of election and gap between elections could be chosen on a
different basis from the House of Commons; also the terms of office
of members could be for a different period. In addition, the constitu-
encies could be drawn so as to introduce a significant regional dimen-
sion. However, there are reasons for objecting to an elected, or mainly
elected, second chamber. If it is accepted that the House of Commons
should continue to have a predominant role, the democratic legitimacy
of a reformed second chamber arising through election could be prob-
lematic. It might lead to the second chamber asserting its authority, and
thereby acting as a competitor to the House of Commons. It could,
for example, delay legislation more regularly, disrupting the process of
government. Another potential drawback is the danger that an elected
second chamber might duplicate the political tribalism of the House of
Commons, with members dragooned by the party machine. Politicians
mindful of having to face the voters at some future date would be less
likely to display the relative independence compared to the Commons
demonstrated by many members of the House of Lords in recent years.
Moreover, there is evidence to suggest from a comparative study of the
situation in Ireland, Spain, and Italy that the contribution of a second
chamber as an effective legislative body tends to be undermined where
the government enjoys a majority in both Houses.30
The recommendations of the Royal Commission under the chair-
manship of Lord Wakeham,31 which was set up to address the funda-
mental problem of the composition of a reformed body and subsequent
White Paper,32 in fact demonstrates the difficulty of reaching consensus
on the next stage of reform. The Royal Commission considered that
there should be an elected element of between 65 and 195 members
(up to about 20 per cent) serving for between 12 and 15 years, elected
at different times. Second, it recommended that the remaining mem-
bers should be appointed by an independent statutory appointments
30 M Russell, Reforming the Lords: Lessons from Overseas (Oxford, Oxford University
Press, 2000) 150–52 and 226–27.

31 The Royal Commission on the Reform of the House of Lords, A House for
the Future, Cm 4534 (2000).

32 The House of Lords Completing the Reform, Cm 5291 (2001).
commission operating under statutory guidelines designed to correct

the u nder-representation of groups such as ethnic minorities, women,
minority religions, and so on. The White Paper also opted for a very
limited elected element of 20 per cent of the 600 members, an insuf-
ficient proportion to satisfy the pro-election lobby. However, it pro-
posed that 330 would be nominated by the main political parties and
that only 120 members would be appointed by the independent elec-
tion commission. In 2003–06 successive reform proposals were voted
down and strongly criticised as failing to satisfy either those favouring
a predominantly elected second chamber or those preferring a mainly
nominated body.
By international standards the membership of the House of Lords
remains extremely large at over 800 members, and only a limited pro-
portion of peers attend on a regular basis. Recent proposals, based on
300–500 members, only go a limited way to answering the compelling
case to reduce the size of the House but in a reformed house it is envis-
aged that all members will be regular participants. The coalition agree-
ment between the Conservatives and Liberal Democrats following the
2010 general election included a pledge to reform the House of Lords
before the 2015 general election. In 2012 the government introduced a
bill after a joint committee of both houses had scrutinised a draft bill.33
In essence, the government proposed to change the composition of
the House of Lords while retaining its present functions and powers.
Strong emphasis was placed on its importance as a revising chamber.
The reformed House would have comprised a mainly elected chamber
of 462 members, with 360 elected members and 90 appointed mem-
bers, including 12 bishops (but surprisingly there were no proposals to
include representatives of other denominations). Another contentious
feature was the arguably excessive duration of the term as candidates
were to be elected by the single transferable vote system for a non-
renewable 15 years, with a third of the membership up for election at
each general election. It would have involved a transitional period dur-
ing which some existing peers would have remained in place. The bill
lacked sufficient support and was abandoned after its second reading in
the House of Commons.
As mentioned above, an elected second chamber has a claim to
legitimacy in a way that is different from an appointed chamber and for
33 House of Lords Reform Bill 52, 2012–13.

132 Parliament
this reason runs the risk of becoming a competitor to the House of

Commons. The fear in some quarters is that a reformed upper house
might challenge the primacy of the elected lower house. This tendency
was recently illustrated by the further neutering of the House of Lords
with the proposed removal of its veto over secondary legislation after
it stepped in to reject a crucial aspect of government policy in October
2015. One advantage of an appointed chamber has been that many
individuals with talent and experience have been elevated to a peerage.
Such expertise has contributed greatly to the standard of debate and
the capacity of the upper house to improve the quality of legislation
but on the downside many peers have other commitments which makes
their attendance irregular. Members of the reformed House would have
received full remuneration.
Notwithstanding any transformation of legislative procedures in the
House of Commons in response to the West Lothian question that has
seen the introduction of English Votes for English Laws (EVEL), there
have been proposals to link reform of the House of Lords to the issue
of territorial governance.34 For example, the Labour Party proposed in
its 2015 manifesto a constitutional convention to consider replacing the
present House of Lords with an elected Senate for the regions. Precise
details were to be worked out by the convention but the key element
would be regional representation of territory rather than population as
with other second chambers. Under the US system, States enjoy equal
representation in the Senate, irrespective of their size or population.
This arrangement ensures bigger States in terms of population do not
dominate decision-making. A reformed second chamber could provide
territorial representation based on regions as applies to other second
chambers. Such a body of up to 400 members (but preferably smaller)
could be ‘indirectly elected’, possibly by elected local politicians from
the different nations and regions of the UK or elected directly by pro-
portional representation. A territorially composed Senate would give
the devolved nations and the English regions a much stronger voice and
act as a forum to settle disputes. Despite the persuasive case for intro-
ducing change along the lines referred to in this section as a response
to devolution no proposals for Lords reform have been made by the
Conservative government elected in May 2015.
34 P Scott, ‘The Upper Chamber and the Territorial Constitution’ UK Const
L Blog (22 July 2015).

Parliament as Legislator 133
PART IV: PARLIAMENT AS LEGISLATOR
We will now consider the legislative process in more detail. In looking

at this question the focus will be on considering how effective Parlia-
ment is as a legislative body and to what extent it is able to deliver high
quality legislation.
In the simplest terms, according to the doctrine of the mandate, Par-
liament has legitimacy because the most important part of it, namely,
the House of Commons, is elected. The party with the strongest sup-
port in the Commons (usually a majority over other parties) is in a posi-
tion to form a government. In turn, the government will introduce the
policies that have been approved by the electorate. However, this only
roughly describes the relationship between Parliament and law making.
To some extent it is possible to see a correspondence between declared
political aims at election times, and the legislation that is introduced by
government.35 However, apart from legislation to put into effect mani-
festo pledges in the main policy areas, governments will also needs to
introduce laws in response to pressing matters of topical concern which
range from management of the economy and regulation of industry to
measures in response to the threat of terrorism. Legislation also origi-
nates from a variety of other sources, some of which are outside Parlia-
ment. Some government Bills arise from the routine work of the Law
Commission, which reports on the state of various aspects of civil and
criminal law. Another increasingly important reason for the introducing
legislation is to meet the requirements of EU law. Directives may need
to be implemented by means of primary legislation.36 The introduction
of devolution with a separate law-making apparatus has meant that now
just over half of all legislation from Westminster applies only to certain
parts of the United Kingdom.37
35 J Bara, ‘A Question of Trust: Implementing Party Manifestos’ (2005) 58 Par-
liamentary Affairs 585.

36 The European Scrutiny Committee of the House of Commons assesses the
implications of laws coming from Brussels and decides which ones are debated at
Westminster.
37 R Hazell, ‘Westminster as a “Three-in-One” Legislature’ in R Hazell and
R Rawlings (eds), Devolution, Law Making and the Constitution (Exeter, Imprint,
2005) 228.
134 Parliament
PUBLIC BILLS
A process of consultation may precede the introduction of government

legislation. In order to facilitate this, a Green Paper or White Paper
(government publication setting out intentions) will be issued to elicit
responses from individuals and organisations likely to be affected by
the proposed legislation. An important innovation in recent years has
been the publication of some legislation as draft bills well in advance
of their passage through Parliament in order to give more opportuni-
ties for consultation. In line with the practice in the Scottish Parliament,
this process of pre-legislative scrutiny has allowed departmental select
committees to take evidence, report, and make recommendations on
proposals before the legislation goes through its formal parliamentary
stages, and there is evidence to suggest that a significant proportion of
recommendations have an impact on the final form of the legislation.38
Parliament is the focus for the activity of pressure groups. The central
lobby of the House of Commons is where members of the public can
meet their MPs to make representations. The modern trend has been
to cultivate contacts with MPs and for MPs to take consultancies with
commercial organisations. Labour MPs are frequently sponsored by
trade unions, and some MPs, mainly Conservative, are associated with
business interests, either as directors or as consultants. An intervention
from the MP will be expected when the subject of discussion concerns
areas where the pressure or interest group has a direct interest. As men-
tioned earlier, members are required to declare any such connections on
a Register of Members’ Interests.
As we review the parliamentary stages of government legislation, it is
worth noting that Bills can be introduced in either the House of Com-
mons or the House of Lords. The initial stage for legislation is called
the first reading. This simply marks the announcement of the publica-
tion of the Bill. The principles contained in the Bill will be debated
by the assembled House at the next stage, which is referred to as the
second reading. The second reading is the main opportunity for MPs
to debate the issues of principle contained in the proposal. If there is
disagreement on the principles of the Bill, amendments may be put
38 J Smookler, ‘Making a Difference? The Effectiveness of Pre-Legislative
Scrutiny’ (2006) 59 Parliamentary Affairs 522; The Briefing Paper Issues in Law Making,
Number 5: Pre-Legislative Scrutiny (Hansard Society, 2004).
forward and a vote will take place at the end of the debate. While MPs
have an opportunity during the debate to criticise the Bill, it should be
recognised that it is extremely unusual for a government with a majority
in the House of Commons to lose a vote on a division following the
second reading. Defeat on a major platform of a government’s legisla-
tive programme might result in a vote of confidence. If the government
were to lose such a vote, the Prime Minister would be under a consti-
tutional obligation to ask the sovereign for a dissolution of Parliament,
prompting an immediate election. The government side will be made
aware by the party whips at the time of the vote of the consequences.
As we saw earlier over the passing of the Bill incorporating the Maas-
tricht Treaty, the prospect of defeat almost invariably leads to a win for
the government side.
After a Bill has surmounted the hurdle of being approved by a vote
of the whole House, it moves on to the committee stage. This is when
the Bill is normally considered by a public bill committee (formerly
known as standing committees), although Bills of major constitutional
importance (eg European Committees Bill 1972) are considered by a
committee of the whole House. There is a different emphasis at this
point, as the public bill committee concentrates on examining the pro-
visions in much greater detail, clause by clause. A public bill committee
comprises between 16 and 50 members, and the parties are represented
on the committee according to their strength in the House of Com-
mons. As a result, the government (assuming it has a majority in the
Commons) is guaranteed a majority on the committee. It is also relevant
to mention that the whips (who are the party managers) decide on the
MPs that will serve on these committees. Members who tow the party
line will be favoured, and those who tend to be independently minded
will be kept off these committees. This has a significant impact on the
approach of standing committees, as the whips are prepared to use
their influence to keep the proposals of the government intact in situ-
ations where there is opposition to a Bill, and where amendments are
likely to be suggested by the committee but resisted by the government.
There are occasions when committees may be able to persuade a min-
ister to change or reconsider parts of a Bill, but it is clear that standing
committees have limited success in securing modifications from the
government. Of course, the opposition may simply use the commit-
tee as a platform to present its alternative view and to inconvenience
ministers.
136 Parliament
The effectiveness of public bill committees has been criticised for

reasons other than the tendency towards partisanship just alluded
to. Unlike the ‘subject’ committees that perform this function in the
Scottish Parliament, public bill committees are non-specialist, in the
sense that MPs assigned to public bill committees are not required to
have any special interest or expert knowledge of the subject matter of
the legislation. Moreover, public bill committees are not equipped with
support staff able to undertake research or to provide the committee
with advice. These are serious deficiencies, if it is accepted that the
prime role of such committees is to improve the quality of the measure
in question. This can be done only by drawing attention to potential
weaknesses and by making carefully considered alternative suggestions.
Under present procedures many clauses of proposed legislation may
not be scrutinised at all by public bill committees.39 With reference
to the successful operation of Australian and New Zealand models,
it has been suggested that the quality of legislative scrutiny could be
improved by the systematic application of checklists and standards,
which would flag up issues such as: sub-delegation, Henry VIII clauses,
retrospective effect, human rights implications, and so on.40
The report stage follows the committee stage and this is when the
amended Bill is brought before the whole House. It is still possible for
additional amendments to be made by ministers and for the opposition
to suggest amendments. After the completion of the report stage, the
Bill receives its third reading. At this point it is still possible to make ver-
bal amendments. There can be short debates at the third reading stage,
and the opposition can oppose the Bill by forcing a vote. Under the
English Votes for English Laws procedure bills designated as English
bills are assigned to a Grand Committee of English MPs in the House
of Commons before proceeding to the third reading.
After a Bill has successfully negotiated its passage through one
House, it is sent to the other where it passes through the same stages.
The procedures for the consideration of Bills in the House of Lords
are broadly similar to those in the Commons. The committee stage of
39 P Norton ‘Parliament: A New Assertiveness?’ in J Jowell, D Oliver,
Press, 2015), 185ff.
40 D Oliver, ‘Improving the Scrutiny of Bills: The Case for Standards and
Checklists’ [2006] PL 219 at 241.

legislation is different, as in the Lords it will be considered by the whole

House. One of the main arguments for retaining a second chamber has
been because of the performance of the House of Lords as a revising
body for legislation. There are several reasons for this. The life peers,
who are, in the main, the working members of the House of Lords,
include leading members of the community and politicians. Although
many may be past the peak of their careers, these peers will have spe-
cialist expertise and, in the case of politicians, useful experience of Par-
liament and government gained prior to their ‘elevation’ to the House
of Lords. In addition, the House of Lords has more time to devote to
detailed consideration of legislation. This element is especially impor-
tant, as the procedural devices to curtail discussion and debate do not
apply in the same way in the Upper House. Perhaps the biggest advan-
tage over the Commons is that the party machine, operating through
the whips, is much less effective in the Lords. Peers are more indepen-
dently minded because failure to support the party line will not effect
career prospects. The members are appointed for life, and thus have no
election looming over the horizon, and the composition of the Lords
is no longer skewed towards one party, as it used to be.41 The upshot
is that since the abolition of most hereditary peers in 1999 the govern-
ment suffers defeats in the House of Lords with increasing regularity
(a striking 1649 times between 1999 and 2012), and legislation will fre-
quently be amended during its passage through the House of Lords.42
If this occurs, the amended Bill returns to the Commons, where the Bill
may be accepted by the Commons in its amended form. At this point
negotiation is possible between the two Houses over the final form of
the Bill. The Commons may simply reject the amendments and return
the Bill to the House of Lords for approval.43 If the House of Lords
is unwilling to accept the Bill, it has the option of invoking its powers
under the Parliament Acts 1911 and 1949 which will delay the legisla-
tion for one year. The power is hardly ever used.44 The rarity of the
41 See M Russell, The Contemporary House of Lords: Westminster Bicameralism Revived
(Oxford, Oxford University Press, 2013) 131ff.

42 Russell, ibid, 135.
43 R Whitaker, ‘Ping-Pong and Policy Influence: Relations Between the Lords
and Commons, 2005–6’ (2006) 59 Parliamentary Affairs 536.

44 The last occasion was in regard to the Hunting Act 2004. See the discussion
in Chapter 3 of Jackson v Attorney-General [2005] UKHL 56.

138 Parliament
a pplication of the Parliament Act is mainly because of a convention

(‘the Salisbury Convention’) that the House of Lords will not block leg-
islation that is introduced as part of an election manifesto commitment.
However, there are occasions when government Bills are substantially
amended through the intervention of the House of Lords.45
It will be apparent that sufficient time needs to be allocated to leg-
islation for Parliament to adequately perform its function as a revising
body. For instance, public bill committees should be given an opportu-
nity to turn their attention to all the important clauses of a Bill. There
is an obvious tension which arises. This is because the government will
be keen to expedite its legislative programme in order to ensure that as
many of its Bills as possible are fitted into the parliamentary session,
while the opposition, which will often be resistant to the character
of the changes proposed in a government Bill, could use the revising
process as a means of blocking its progress. A number of procedural
rules are available to facilitate the passage of legislation and these
tend to operate in favour of the government. The closure shortens
debate by allowing a vote to be taken but this requires the support of
100 members to apply. The guillotine involves the allocation of a strict
timetable for the debate of each part of the Bill. This agreement may
mean that some clauses are not discussed at all. The kangaroo at report
stage enables only specified clauses to be selected for discussion. The
application of these procedures depends on co-operation between gov-
ernment and opposition.
The requirement of maintaining a majority in Parliament is a feature
of the parliamentary system which the United Kingdom shares with
Italy but, of course, the United States has an altogether different sys-
tem. A President can and often does have a hostile majority in Congress
(eg the Democrats were in control of both Houses following the mid-
term elections in November 2006). The struggle by a President to get
legislation through Congress may result in gridlock but, although this
might have a bearing on the effectiveness of the Federal government, it
does not threaten the continuance of the government in office.
45 For example, the Identity Cards Act 2006. See Whitaker, above n 43, 540.
PRIVATE MEMBERS’ BILLS AND PRIVATE BILLS
Backbench MPs have limited opportunities to introduce legislation on

their own initiative. There is an annual ballot for gaining a place high
up in the queue. These Bills (private Members’ Bills) undergo a similar
procedure to government legislation but any such proposals depend
upon first having 100 sympathetic members to get through the second
reading stage and the government allocating sufficient time for the Bill
to pass through Parliament. This is the case even when the measure has
considerable support, for example banning foxhunting; without time
from the government, the measure will be likely to fail.
Unlike public Bills and private Members’ Bills, private Bills are
introduced to grant benefits or impose obligations on a specifically
defined class of persons or to a particular private company or public
body. Equally, private Bills may be used to authorise specific works or
activities in a particular area. For example, the Channel Tunnel rail link
between the Kent coast and central London was made possible by vir-
tue of a private Bill. These measures are subject to a somewhat different
procedure in Parliament to enable objections to be heard, but they must
pass through both Houses and receive the royal assent.
PARLIAMENTARY SCRUTINY OF DELEGATED LEGISLATION
The pressure on parliamentary time has given rise to an increasing trend

towards the delegation of power to the executive. The use of skeleton
legislation which allows ministers and their officials to draw up sub-rules
has become widespread as a means of dealing with technical detail. The
cumulative effect has been to give more broad-based powers to min-
isters and to officials. One example that illustrated the trend towards
giving very widely drawn powers, so-called ‘Henry VIII clauses’, can be
found in the Deregulation and Contracting Out Act 1994, which allows
the minister responsible to: ‘repeal or amend any Act which authorises
or requires the imposition of a burden on any trade, business or profes-
sion.’ Even more extreme, the Legislative and Regulatory Reform Bill
which went before Parliament 2005/06 proposed in its original form to
give ministers powers to alter any law passed by Parliament (This clause
was modified following strong objections). The volume of delegated
legislation, and the powers conferred as a consequence, has contributed
140 Parliament
to a discernible shift in the balance of power from the legislature to the

executive. The procedures in Parliament for scrutiny are inadequate.46
Delegated legislation is published and laid before Parliament before it
is introduced, but most of these measures will automatically come into
effect after 40 days, unless a challenge is made. The parliamentary Joint
Committee on Statutory Instruments can bring to the attention of
Parliament measures over which it has concern but it does not have any
power to challenge such measures. The ease with which delegated rules
can be introduced further illustrates the degree of executive dominance
over Parliament.
PART V: PARLIAMENT AS WATCHDOG
In this section of the chapter we will evaluate the oversight function

of Parliament. At this point we will discuss the mechanisms and pro-
cedures that have been formulated to undertake this crucial task and
assess their effectiveness. It is worth considering as the discussion pro-
ceeds whether Parliament’s main function is really as a legislative body
or as a body which effectively scrutinises the government. Since 2010
a number of important reforms have been introduced in an attempt to
strengthen the authority of Parliament in the face of the government.
The ability of Parliament’s to scrutinise the executive has been often
undermined by party interests. For example, on behalf of the leader-
ship the party whips were keen to steer away from departmental select
committees MPs with an independence of mind who would ask chal-
lenging questions relating to policy matters.
PARLIAMENTARY QUESTIONS
It has already been mentioned that parliamentary questions provide

an important opportunity for individual members to raise matters on
behalf of constituents. Backbenchers have a chance to interrogate
46 G Ganz, ‘Delegated Legislation: A Necessary Evil or A Constitutional Out-
rage’ in P Leyland and T Woods (eds), Administrative Law Facing the Future: Old Con-
straints and New Horizons (London, Blackstone, 1997) 80ff.
Parliament as Watchdog 141
the executive by framing oral questions that are directed at ministers.

Ministers take turns in providing answers on most weekdays, as does
the Prime Minister on Wednesdays for half an hour. Such probing can
potentially be a source of deep embarrassment to the government. For
example, the questioning of Margaret Thatcher by a Labour MP over
the sinking of the Argentinian warship, the General Belgrano, during the
Falklands conflict, revealed that the vessel was in fact heading away
from the British forces, not towards them, as Parliament had previously
been led to believe. There are important limitations, however, that
reduce the ability of MPs adequately to fulfil their ostensible function
of holding the executive to account at question time. First, the balloting
procedure which determines whether a question is chosen for oral reply
is determined by luck and not according to the gravity or relevance of
the matter raised. Second, only limited time is available, with ministers
answering questions for around 60 minutes each day except Fridays.
Third, questions are limited to a narrow departmental remit. Fourth,
compared to MPs who may rely on government sources for informa-
tion related to questions, ministers are at an advantage as they are sup-
ported by civil servants and may be able to choose whether to release
sensitive information into the public domain.
DEPARTMENTAL SELECT COMMITTEES
Departmental select committees were established in 1979 to oversee

the work of the major government departments. There were originally
14 of these committees but there are now 21. The committees consist
of between 11 and 14 MPs, with the parties represented according to
their relative strength in the House of Commons, which means that
the governing party will have a majority on the committee. In fact,
select committees should be regarded as an important extension of
ministerial responsibility, helping to keep track of what ministers do
with their responsibility for their departments and other agencies.
Unlike the courts, which deal with ultra vires executive action or the
abuse of power, the committees are at an advantage in that they can
have an informal influence on the formative stage of policy-making,
examining at their discretion political, social, and economic issues as
they arise.
142 Parliament
The departmental select committees have been compared to those

within the US system. However, there are substantial differences in
their structure and effectiveness. With regard to structure, a central
characteristic of the separation of powers under the US constitution
is the way the legislature keeps check on the executive by means of
Congressional committees. Although their wider reputation has been
based on a number of scandals that have been revealed by special
investigations (the most notable of all being Watergate in 1973/4), the
committees undertake, on a day-to-day basis, the more routine tasks of
initiating policy and scrutinising the executive, with their specific terms
of reference being administration, policy, and expenditure. In fact, the
Congressional committees are powerful bodies which are generously
funded and equipped with full-time staff. They have formidable pow-
ers to summon before them papers or persons, including Secretaries
of State (ministers) and top civil service officials and advisers. The
Scottish Parliament and Welsh Assembly have introduced subject
committees which combine the role of standing and select commit-
tees. The declared objective is for specialisation to achieve a degree
of expertise in a particular area. This also addresses a criticism of the
departmental committees working outside the parliamentary legislative
process.
In the UK system, Parliament (within the existing framework of the
Westminster model) has always assumed the crucial role of acting as
a formal check on the executive It became apparent to many MPs in
the 1970s that to perform this task more effectively the place of select
committees had to be revised and their inquisitorial powers needed to
be strengthened. The new departmental committees were to have a
clear function, that being to shadow all the main departments of state,
with the aim of examining ‘expenditure, administration, and policy. To
assist in their investigative role these committees have limited capacity
to employ a staff of expert advisers, mainly on a part-time basis. Serv-
ing on these committees provides backbench MPs with an opportunity
to be involved in the policy process. These committees also promote a
degree of co-operation between MPs of all parties who may identify
with the broad objectives of executive accountability. On the other
hand, it might be argued that a more adversarial approach would pro-
vide greater accountability.
Departmental Select Committees, July 2015
Name of Government department Maximum Quorum

committee no of MPs
Business Business Innovation and 11 3
Innovation and Skills
Skills
Communities and Communities and Local 11 3
Local Government Government
Culture, Media & Culture, Media and Sport 11 3
Sport
Defence Ministry of Defence 11 3
Education and Education and Skills 11 3
Skills
Energy and Climate Energy and Climate 11 3
Change Change
Environment, Food Environment, Food and 11 3
and Rural Affairs Rural Affairs
Foreign Affairs Foreign and 11 3
Commonwealth Office
Health Health 11 3
Home Affairs Home Office 11 3
International International 11 3
Development Development
Justice Ministry of Justice 11 3
Northern Ireland Northern Ireland Office 14 4
Affairs
Public Cabinet Office 11 3
Administration
and Constitutional
Affairs
Science and Office of Science and 11 3
Technology Technology
Scottish Affairs Scottish Office 11 3
Trade and Industry Trade and Industry 11 3
144 Parliament
Departmental Select Committees, July 2015 (Continued)
Name of Government department Maximum Quorum

committee no of MPs
Transport Transport 11 3
Treasury Treasury, Board of Inland 11 3
Revenue, Customs &
Excise
Welsh Affairs Welsh Office 11 3
Women and Government Equalities 11 3
Equalities Office
Work and Pensions Work and Pensions 11 3
Since 1979, with each new Parliament following a general election,

the departmental select committees have been reconstituted. Each is
chaired by a member from one of the two largest parties, usually the
government party. The committee then decides on appropriate sub-
jects for scrutiny, although it should be noted that this very selectivity
can be a source of weakness as well as strength. These subjects will
include major matters of policy as well as more detailed administrative
questions. It will be immediately apparent that the departmental select
committees have a crucial advantage in comparison to public bill com-
mittees, in that they have the means to conduct more in-depth inquisi-
torial investigations which can give them considerable information not
available to the mass of individual MPs, rather than being dependent, as
these are, on asking particular questions and relying on the co-operation
and goodwill of ministers and officials. This information will include
not simply evidence before the committee, but also written submis-
sions, departmental (official) briefs, visits (at home and abroad), infor-
mal meetings with non-parliamentarians, etc. The published reports of
the departmental select committees, and their accompanying volumes
of memoranda, provide MPs with a countervailing source of informa-
tion to that of ministers and the executive departments, and in that
sense the committees are of growing importance in holding ministers
to account and in questioning civil servants. One important shortcom-
ing is that the reports of the departmental committees are not debated
by the House of Commons as a matter of course.
Ministers and senior civil servants appear regularly before the depart-
ment select committees. However, ministers (and MPs and peers) can
refuse to attend (unless charged with contempt of Parliament and

required by a vote of the House of Commons to do so). For example,
the junior minister for agriculture, refused at first to appear before an
inquiry into salmonella in eggs by the Agriculture Select Committee in
1988. Under previous practice ministers were able to refuse to allow
officials to appear before the committees. This issue arose in 1992,
when the Select Committee on Trade and Industry wished to question
two retired named officials in the Ministry of Defence regarding mat-
ters arising from the Scott Inquiry concerning information they had
about aspects of the controversy surrounding Matrix Churchill and the
supergun affair. The Cabinet Office guidance to civil servants who are
summoned to appear before these committees was revised following
the Scott Report (for further discussion, see Chapter 6). These guide-
lines encourage officials to be helpful but specifically rule out: disclos-
ing advice given to ministers or inter-departmental exchanges on policy
issues; disclosing the level at which decisions were taken; and discussing
the work of Cabinet committees or their decisions. Furthermore, civil
servants are not permitted to express their own views on matters of
policy. This supports the view that policy emanates from the politicians
and not from civil servants. To some extent limitations as to time and
resources result in a restricted focus of attention and, in consequence,
an invariably selective impact on the issues of the day. However, recent
research based on the detailed analysis of the reports of select com-
mittees not only indicates that committees are increasingly active but
that about 40 per cent of their recommendations are accepted by gov-
ernment. Of course, they are less likely to be successful in influencing
flagship policies based on manifesto commitments.47
Wright Reforms: Standing Up to the Executive
It is important to recognise that the government was in a powerful

position in regard to departmental select committees. This was partly
because of their powers to appoint to these committees but also
because it exercised control over the information made available to
47 M Russell and M Benton, Selective Influence: The Policy Impact of House of Commons
Select Committees (London, Constitutional Unit, 2011) 7.

146 Parliament
them. The debate surrounding a freedom of information Act was partly

concerned with the test which would be used to determine whether
information is released into the public domain. The original ‘substantial
harm’ test that appeared in the ‘Right to Know’ White Paper48 was
diluted to a simple harm test included in the Freedom of Information
Act 2000. The Information Commissioner now has an important role
in deciding how the guidelines are applied.
Departmental select committees were intended to be more inde-
pendent than standing committees. This position was to be achieved
by establishing a committee of selection to nominate members thus
minimising the influence of the party whips. However, this situation
did not long survive the partisanship that dominated the way Parliament
operated, and the whips were regularly consulted on the membership
of these committees. Indeed, government whips sought to remove the
chairs of the Transport Committee and the Foreign Affairs Committee
after the 2001 general election. Both of these chairs had earned a repu-
tation for independence and presided over committees that had made
reports that were critical of aspects of government policy. However,
the failure to re-nominate these widely respected MPs caused a minor
rebellion on the backbenches and their re-appointment was eventu-
ally confirmed. Nevertheless, the House of Commons rejected the
proposal to remove the appointments to committees from the control
of the whips in line with the recommendations of the Modernisation
Committee in its second report 2001/02. The situation has changed fol-
lowing the report of a Select Committee on the Reform of the House
of Commons chaired by Tony Wright MP which had been set up in
July 2009 as a response to the MPs’ expenses scandal.49 The Wright
committee was concerned to investigate ways in which the House of
Commons might be able to resist the dominance of the executive.
The election by alternative vote of the chairs of select committees by
secret ballot of the whole house was one of the key recommendations
of this report which was finally implemented in July 2010. Also, each
party now elects its quota of the members of every select committee
by secret ballot. The party composition of these committees reflects
48 Your Right to Know: The Government’s Proposals for a Freedom of Information Act,
Cm 3818 (1997).
49 House of Commons Reform Committee, ‘Rebuilding the House’, HC 1117
(2008–09).
pro rata party support in the House of Commons. The introduction of

a Backbench Business Committee was another significant change that
should also strengthen the hand of backbench MPs as this committee
has responsibility for scheduling 35 days of debate. The conferral of
these powers on ordinary MPs should mean that in the future the gov-
ernment will have significantly less clout in agenda setting. In 2003 the
House of Commons decided that the chairs of the departmental select
committees should receive an additional salary of £12,500 per annum
in recognition of the additional workload the job entails. Serving on
and chairing these important committees now provides an alternative
career structure for MPs not reaching the front ranks of government
or opposition.
The Modernisation Committee of the House of Commons rec-
ommended that departmental select committees should have a much
extended role and perform all of the following tasks: consider major
policy initiatives; consider government responses to major emerging
issues; propose changes where evidence persuades the committee that
recent policy requires amendment; conduct pre-legislative scrutiny of
Bills; examine and report on main estimates, annual expenditure plans,
and annual resource accounts; monitor performance against targets in
the public service agreements; take evidence from each responsible
departmental minister at least annually; take evidence from indepen-
dent regulators and inspectorates; consider the reports of Executive
Agencies; examine treaties within their subject areas; consider major
appointments made by a Secretary of State.50 In order to enhance
the transparency of the process a number of committees have since
adopted this practice with the co-operation of the relevant government
department of holding pre-appointment hearings before certain impor-
tant public appointments are confirmed.51
These committees tend to work more effectively at times when there
is a narrow government majority, as this encourages a greater degree
of inter-party co-operation. For example, in 1993 at a time when the
Conservative government of John Major had a majority of only 21 seats
the Trade and Industry Select Committee issued a critical report on
50 Modernisation Committee, First Report, Select Committees, HC 224-1, 2001/02.

51 See, eg, ‘Appointments of Michael Cohrs and Alastair Clark to the Interim
Financial Policy Committee’, Fourteenth Report of Session 2010–12, HC 1125,
7 June 2011.
148 Parliament
the government’s policy in relation to the closure of coal mines, and

in 1995 the Defence Select Committee reported unfavourably on the
government’s handling of the effects of ‘Gulf War syndrome’ in 1995.
On other occasions the committees have been criticised for tending to
divide along party lines over controversial matters which involve direct
criticism of the government and which might attract adverse publicity.
For example, the Select Committee for Culture, Media and Sport repeat-
edly investigated plans for the M illennium Dome and the M illennium
celebrations which involved the abuse of large amounts of public funds
and inefficient management of the project, but, after intervention from
the party whips, the censure of the government was toned down, so
that the published reports referred to ‘constructive’ criticism of the
government’s scheme.52 In the 2010–11 parliamentary session the
departmental select committees for Culture, Media and Sport and for
Home Affairs played a prominent part in further uncovering aspects of
the News of the World hacking scandal (see Chapter 1). The investigatory
role of these committees was well demonstrated in July 2011. Rupert
and James Murdoch, Rebekah Brooks, the Metropolitan Police Com-
missioner and other senior officers were questioned by MPs before a
live television audience in the style of the 1976 Watergate hearings in the
USA. In tandem with the public inquiry chaired by Lord Justice Leveson
the reports from these committees helped shape the official response to
the alleged misconduct of the media and the Metropolitan Police.
E-petitions and Popular Democracy
E-petitions have been introduced as a way for the public to raise popu-
lar concerns before government and Parliament. At least six signatures
are required to initiate the process. The government responds to all
petitions receiving more than 10,000 signatures and any petition which
attracts more than 100,000 signatures will be considered for debate
in the House of Commons. For example, a petition to stop allowing
immigrants into the UK which had 200,000 signatures was debated by
the House of Commons in October 2015.53 An 11-member Petitions
52 See, eg, Select Committee for Culture, Media and Sport, Back to the Dome, Third
Report, HC 21-1, 1998/99.

53 petition.parliament.uk.
Select Committee was established by the House of Commons in 2015

to oversee the running of E-petitions and press for action if there is an
inadequate response by government or the public body concerned to a
topic that has been raised.54
PUBLIC ACCOUNTS COMMITTEE AND THE

NATIONAL AUDIT OFFICE
The Public Accounts Committee (PAC) is one of the oldest and most
prestigious parliamentary committees. Despite the fact that the scope
of government was then much more limited than is now the case, W.E.
Gladstone, as Chancellor of the Exchequer, recognised the need to pro-
vide a mechanism of accountability for public expenditure. The PAC
was first created in 1861, while the office of Comptroller and Auditor
General (described below) followed in 1866. In essence, this framework
has survived to the present day.55
The House of Commons exercises some degree of control over
government finance through the PAC. The amount of government
spending is over £458 billion per annum.56 The PAC, more than most
other parliamentary committees, operates in a less-partisan, non party-
political way and consists of 15 MPs. The chair is always a senior mem-
ber of the opposition, usually with experience as a Treasury minister
but from May 2015 Meg Hillier MP has been chair and she was a former
Labour Home Office Minister. The PAC’s remit is limited to the audited
accounts of government departments. Ministers and departmental
accounting officers (usually the senior civil servant, called a permanent
secretary) appear before the PAC to be questioned, even interrogated,
on issues arising from the annual audit of departmental accounts. Fur-
ther, the introduction of television cameras in the House of Commons
has brought these proceedings, and the important issues examined, to
the wider public. Reports prepared by the PAC each year (30–40 in
number) are always debated annually by the House of Commons. The
54 www.parliament.uk/business/committees/committees-a-z/commons-select/
petitions-committee/.
55 See J McEldowney, ‘Public Expenditure and the Control of Public Finance’
in J Jowell, D Oliver and C O’Cinneide (eds), The Changing Constitution, 8th edn
(Oxford, Oxford University Press, 2015), 368ff.
56 Public Expenditure 2010–11, Provisional Outturn, Cm 8133 (July 2011).
150 Parliament
government will be expected to respond to any criticisms made by tak-

ing any necessary remedial action.
The PAC is the only parliamentary committee which has
comprehensive administrative support in the form of the National
Audit Office (NAO), which is headed by the Comptroller and Auditor
General (C & AG) (Sir Amyas Morse at the time of writing).57 The
Comptroller used to be appointed by the government of the day, but
the National Audit Act 1983 modified his or her status and that of the
staff (around 750), establishing the post as an officer of the House of
Commons. The method of appointment now is by means of a com-
mission, of which the Prime Minister and the chair of the PAC are both
members. This reinforces the element of independence in the system
of accountability. The point to note is that the Comptroller and Auditor
General and the National Audit Office are independent of government,
and certify the accounts of all government departments and a wide
range of other public sector bodies. Most of the PAC’s work consists in
examining the value for money (VFM) reports undertaken by the NAO,
which are intended to measure economy, efficiency and effectiveness of
departments and other bodies in the way they have used their resources.
The NAO works closely with the PAC, examining the effectiveness
with which governmental bodies implement their assigned policy goals.
Reports are based on the annual audit of all government departments.
They are passed to the PAC where the evidence contained therein can
be used effectively as a tool with which to probe into the details of
expenditure, and this gives the reports of the PAC added authority.
A widely publicised example concerned serious delays that occurred
in issuing passports in 1999. This problem was caused by the intro-
duction of a new computer system. The backlog led to much anxiety
and inconvenience for members of the public who had booked their
summer holidays abroad. By June, the Passport Agency had around
565,000 applications awaiting processing and applications were taking
on average 50 days. The NAO immediately reported to Parliament,
and the Committee of Public Accounts took evidence on its report
in November 1999. The report points out that the Agency’s financial
objectives were to recover, via the passport fee, the full cost of passport
services and it recorded that the unit cost to the taxpayer of p roducing
57 The National Audit Office has a website which publishes its reports: https://
www.nao.org.uk.
a passport would rise, in the absence of other changes. The NAO went
on to estimate the cost of the additional measures taken by the Pass-
port Agency to deal with the failures to be around £12.6 million. The
figure included £6 million for additional staffing. In addition, at the
time of the report £161,000 in compensation had already been paid to
members of the public for missed travel and other expenses (including
the purchase of umbrellas for members of the public waiting in the
queue for emergency passports). The report has a strongly practical
application and identifies key lessons that should be learned from such
an episode. In particular, it identifies a need: (i) for proper testing of
new systems before committing to live operation, in particular for staff
to learn and work the system; (ii) to have realistic contingency plans in
place; and (iii) when service delivery is threatened, to have the capa-
bility to keep the public well informed.58 There have been numerous
instances of strongly critical investigations both by the NAO and the
PAC. To take a more recent example, in 2005 the PAC investigated the
Department for Work and Pensions, concentrating on fraud and error
in the benefits system amounting to £3 billion. The PAC recommended
simplification of the benefits system, introduction of benchmarking,
and measuring performance against other comparable organisations.59
Although the PAC and the NAO have a crucial part to play in the
process of scrutiny, they are concerned only with past expenditure, that
is, on funds that have already been allocated. Essentially, this auditing
work, although very important, is Parliament looking over its shoulder
at items of expenditure with a paramount concern for the efficient
and economical use of public money. However, the auditing process is
relatively rigorous when compared with the well-known deficiencies in
Parliament’s general control of proposed expenditure.
Against a background of rapid and far-reaching government spend-
ing cuts which began in May 2010 with the Conservative–Liberal
Democratic coalition assuming office, Professor McEldowney argues
that the current financial crisis is having a major impact on the effi-
cacy of the parliamentary scrutiny of finance. Although under the
Interim Office for Budget Responsibility there is more transparency
58 National Audit Office, United Kingdom Passport Agency: The Passport Delays
of Summer 1999, HC 812, 1998/99.

59 Public Accounts Committee, Fourth Report: Fraud and Error in Benefit Expendi-
ture, HC 411, 2005/06.

152 Parliament
than before, the balance of influence between parliamentary control

and government spending has shifted to the government’s advantage.
Financial control of expenditure increasingly relies on the personal
initiative of individual MPs.60
THE PARLIAMENTARY OMBUDSMAN
The Parliamentary Ombudsman (PO) was introduced by the Parlia-

mentary Commissioner Act of 1967 to plug a manifest gap in dealing
with grievances against officialdom. The main function of the PO is
to investigate cases of maladministration (not actually defined in the
Act) referred to him or her by MPs, but no actual power to grant a
remedy is given to the PO. Nevertheless, in most cases the recom-
mendations of the PO are followed by the department or public body
concerned. The PO has formidable investigatory powers and a staff
to assist with inquiries. The remit of the PO, first set out in Sched-
ules 1 and 2 to the 1967 Act (later extended by the Parliamentary and
Health Services Commissioners Act 1987), applies to most govern-
ment and quasi-governmentalbodies. The filtering of complaints
through MPs was insisted upon during the passage of the original
bill in order that the role of backbench MPs would not be usurped,
and it is certainly true that MPs continue to pursue matters against
government departments on behalf of their constituents and often
proceed more quickly than the formal approach of the PO. Moreover,
this lack of direct access has been seen by many critics as a weakness.
There have been high profile investigations by the PO which have
resulted in awards of compensation in line with the PO’s recom-
mendations, for example in regard to losses suffered by householders
through the building of the Channel Tunnel rail link. The reports of
the PO are submitted to the Public Administration Select Commit-
tee of the House of Commons and are also laid before the House.61
60 See, eg, J McEldowney, ‘Public Expenditure and the Control of Public
Finance’ in J Jowell, D Oliver and C O’Cinneide (eds), The Changing Constitution,

8th edn (Oxford, Oxford University Press, 2015), 372ff.
61 ‘The Ombudsman in Question: The Ombudsman’s Report on Pensions and
its Constitutional Implications’, HC 1081, 2006.

In the Bradley case 62 the decision to reject the PO’s findings of maladmin-
istration and reject her recommendations was successfully challenged by
way of judicial review. Many thousands of policyholders had lost out
because of misleading advice from the department but offering com-
pensation to the many individuals affected in line with the PO’s recom-
mendations would have cost several billion. The case is of constitutional
importance because the Court of Appeal considered the status of the
ombudsman’s role in relation to central government. It stated that: ‘[T]he
Secretary of State must proceed on the basis that the ombudsman’s find-
ings of injustice caused by maladministration are correct unless they are
quashed in judicial review proceedings.’ And it was further held that the
minister could not simply reject the ombudsman’s findings because he
preferred another view, he must have cogent reasons for doing so.
CONCLUSION
The central question for us has been to consider how far Parliament
contributes to a system of ‘representative and responsible’ government.
The executive dominance of Parliament remains the most conspicuous
feature of the legislative process. According to Bagehot this was the
‘efficient secret’ of the constitution.63 Even when there is determined
opposition, as was the case with Health and Social Care Act 2012, it is
very unusual for a government not to get a measure passed by Parliament.
Although introduced ostensibly to correct the anomalies of representa-
tion caused by devolution, the position of the Conservative government
elected in 2015 has been further strengthened following the introduction
of the EVEL procedure for bills concerning England. This tendency will
be further accentuated with the prospect of the removal of the House of
Lords veto over secondary legislation. The dominance of the executive is
a particular cause of concern when the opposition within Parliament is
weak. In fact an important reason for having a reformed second chamber
with enhanced legitimacy is to provide an effective counter to any gov-
ernment with an overall majority in the House of Commons.
62 R (on the application of Bradley) v Secretary of State for Work & Pensions [2009] QB
114. See also R (on the application of Equitable Members Action Group) v HM Treasury
[2009] EWHC 2495 (Admin).
154 Parliament
On the positive side, the PAC and NAO have improved their perfor-
mance as examiners of government expenditure. We have seen in this
chapter that departmental select committees perform an important role,
but they do so unsystematically and not entirely adequately. Professor
Tomkins has sought to argue that ‘we should abandon the notion that
Parliament is principally a legislator. We should instead see Parliament
as a scrutineer, or as a regulator, of government.’64 It is difficult to
sustain such a view for as long as Parliament continues to function in
its law-making capacity by approving a high volume of legislation each
year. Indeed, Parliament has been criticised for neglecting to update its
procedures sufficiently in order to secure improvements in the meth-
ods it employs for scrutinising legislation.65 Following in the footsteps
of the Scottish Parliament, there has been a recent trend towards the
publication of draft bills to allow for pre-legislative scrutiny and greater
opportunity for consultation. While this is a response to the common
complaint from individuals and organisations that it is difficult to
inform and influence the policy-making process at the formative stage,
concern remains over the effectiveness of the House of Commons
public bill committees in providing systematic clause-by-clause scrutiny
of legislation. Furthermore, departmental select committees still do
not routinely engage in post-legislative scrutiny by monitoring legisla-
tion after it comes into force.66 By comparison the House of Lords
has earned an enviable reputation as a revising chamber. Any reform
programme for the upper house needs to find a way of modifying its
composition to incorporate enhanced democracy combined with a
regional dimension whilst also preserving its contribution to the legisla-
tive process. At the same time this must be achieved without challeng-
ing the primacy of the House of Commons. Finally, it will be apparent
from Chapter 8 that devolution has introduced some improved meth-
ods for delivering accountability within Scotland, Wales, and Northern
Ireland (eg subject committees), which might be transferable to the
Westminster Parliament.
64 See A Tomkins, ‘What Is Parliament For?’ in N Bamforth and P Leyland (eds),
Public Law in a Multi-Layered Constitution (Oxford, Hart Publishing, 2003) 55.

65 M Ryle, ‘House of Commons Procedures’ in R Blackburn and R Plant (eds),
Constitutional Reform (London, Longman, 1999) 110.

66 First Report of the Select Committee on the Modernisation of the House of Commons.
FURTHER READING
Abraham A, ‘Ombudsman as Part of the UK Constitution: A Contested

Role?’ (2008) 61 Parliamentary Affairs 206.
Brazier A and Fox R, ‘Reviewing Select Committee Tasks and Modes of
Operation’ (2011) 64 Parliamentary Affairs 354.
Brazier R, Constitutional Reform: Reshaping the British Political System, 3rd edn
(Oxford, Oxford University Press, 2008) chs 4 and 5.
Kennon A and Blackburn R, Griffith and Ryle on Parliament: Functions, Prac-
tice, and Procedures, 2nd edn (London, Sweet & Maxwell, 2003).
Leopold P, ‘Standards of Conduct in Public Life’ in J Jowell and D Oliver
(eds), The Changing Constitution, 7th edn (Oxford, Oxford University
Press, 2011).
McEldowney J, ‘Public Expenditure and the Control of Public Finance’
in J Jowell, D Oliver and C O’Cinneide (eds), The Changing Constitution,
8th edn (Oxford, Oxford University Press, 2015).
1999).
Norton P, ‘Parliament: A New Assertiveness?’ in J Jowell, D Oliver
Oliver D, ‘Improving the Scrutiny of Bills: The Case for Standards and
Checklists’ [2006] PL 219.
Rogers R and Walters R, How Parliament Works, 6th edn (Harlow,
Pearson, 2006).
Russell M and Benton M, Selective Influence: The Policy Impact of House
of Commons Select Committees (London, Constitutional Unit, 2011).
Russell M, The Contemporary House of Lords: Westminster Bicameralism Revived
Tomkins A, The Constitution after Scott: Government Unwrapped (Oxford,
Tomkins A, ‘What Is Parliament For?’ in N Bamforth and P Leyland,
Public Law in a Multi-Layered Constitution (Oxford, Hart Publishing,
2003).
Walters R, ‘The House of Lords’ in V Bogdanor (ed), The British Consti-
tution in the Twentieth Century (Oxford, Oxford University Press, 2003).
156
6
Government and Executive


Prime Minister – Collective Cabinet Responsibility – Policy
Formation – Government ‘Spin’ – Government Departments –
Individual Ministerial Responsibility – Codes of Practice –
The Scott Report – Freedom of Information – E-government
INTRODUCTION
T HIS CHAPTER FOCUSES on the constitution in respect to

the conduct of central government in the United Kingdom. It
starts at the pinnacle of government by looking at the role of
the Prime Minister and the Cabinet, before going on to consider the
governmental mechanisms for the implementation of policy in the form
of the civil service, and the constitutional significance of the Freedom
of Information Act 2000. As we proceed with this discussion, and
observe the way in which power is exercised, it is worth remembering
the term ‘elective dictatorship’: this is because the principle concern is
to assess what constitutional limits, safeguards, and democratic controls
are placed on the Prime Minister, Cabinet, and civil service in the way
they perform their functions. In terms of the exercise of constitutional
power, it is helpful to view the UK political system as hierarchical, with
the Prime Minister, and the Office at 10 Downing Street, at the apex of
a triangle. At the next level we find the Cabinet Office, the departments
of state, and then junior ministers responsible for particular policy
domains. In turn, the entire machinery of government relies on a per-
manent civil service, which is, itself, hierarchical in structure.
158 Government and Executive
THE PRIME MINISTER
Not only does the holder of prime ministerial office head the govern-
ment, represent the nation, and lead the largest political party, but the
Prime Minister is responsible for taking many decisions that determine
domestic policy and the conduct of foreign affairs and for making an
enormous range of appointments (in many cases these are rubber-
stamped by the monarch).
While it is widely recognised that a UK Prime Minister1 has wide-
ranging powers at his or her disposal, it is also clear that there is
considerable scope to pursue a personal style of leadership. Some
Prime Ministers, for example, John Major, favoured a more collegiate
approach (a style referred to as primus inter pares) while others such as
Margaret Thatcher and Tony Blair mould the office around their own
personality, and they have become known for a more presidential style
of leadership (virtually an elected monarch). If we look back to trace the
constitutional derivation of the post it will be apparent that the office
of Prime Minister is not defined under the constitution or any Act of
Parliament, and, in fact, it originates from the early eighteenth cen-
tury, when the sovereign found it convenient to rely on a small coterie
of ministers. Authority from among them was assumed by a leading
political figure. Sir Robert Walpole, generally acknowledged as the first
Prime Minister, held the office of First Lord of the Treasury. Here was
a politician who could be entrusted with the monopolisation of power
and patronage, but to hold the position of head of government, the
incumbent needed to have the confidence of the sovereign, and also to
have the full support of Parliament.2 In the contemporary constitution
it is the support of Parliament, or more precisely the elected House of
Commons that is crucial to the formation and continuation of the gov-
ernment. After a general election the leader of the political party with a
majority in the House of Commons will be called upon by the sovereign
to form a government, and he or she will automatically become Prime
Minister. If, as in 2010, no single party has an overall majority the pro-
cedure for the selection of the next Prime Minister is more complicated
and may involve the intervention of the Monarch. (See Chapter 4.)
1 P Hennessey, The Prime Minister: The Office and its Holders since 1945 (London,
Penguin, 2001).
2 R Crossman, ‘Introduction’ in W Bagehot, The English Constitution (London,
Fontana, 1963) 20–22.

The Prime Minister 159
Once confirmed in office by the monarch, a Prime Minister is

responsible for forming the government. The only limits on the selec-
tions dictated by convention are that all ministers must be members
of Parliament and that the Prime Minister and the Chancellor of the
Exchequer must be members of the House of Commons. In practice,
however, there may be strong political constraints that limit the scope
of a Prime Minister’s choices. For example, Prime Minister Tony Blair
could not easily have denied Gordon Brown a major government post,
given his prominent position in the parliamentary Labour party. A Prime
Minister can also dismiss ministers and reconstitute the government at
any time by reshuffling the pack. On one famous occasion, referred
to as the ‘night of the long knives’, Harold Macmillan dispensed with
seven cabinet ministers at one stroke.3 The Home Secretary was sacked
in an extensive re-allocation of senior ministerial positions by Tony
Blair following the poor performance of the Labour Party in local gov-
ernment elections in May 2006.
Many of the powers that the Prime Minister now enjoys are preroga-
tive powers that were formerly the personal prerogatives of the Sov-
ereign. For example, this includes extensive powers of patronage and
the right to negotiate treaties with other nations. Some appointments,
such as appointments to the government, archbishops and bishops,
and other honours, are entirely in the gift of the Prime Minister, while
others are merely confirmed by the Prime Minister. These include life
peerages,4 appointments of the most senior civil servants, and the high-
est judicial appointments.
The Prime Minister was be able to determine the date of a general
election within the five-year time frame set out by the Parliament Act
1911. Indeed, the Royal Prerogative to dissolve Parliament on the
advice of the Prime Minister was regarded as a core feature of the
constitution. This had meant that the Prime Minister and the party in
power enjoyed the advantage by being able to determine the date of an
election. It had been argued that this enabled a government to manipu-
late events to coincide with the timing of the election. Prime Minister
Cameron was intent on surrendering this power. The Fixed Term
3 A Sampson, Macmillan: A Study in Ambiguity (London, Penguin, 1967) ch 13,
‘The Purge’.
4 Recommendations for life peerages are now first made by the House of Lords
Appointments Commission and approved by the Prime Minister.

Parliaments Act 2011 provides that general elections should take place
regularly every five years, thus removing the Prime Minister’s discretion
to advise the Monarch to dissolve the House at a time of the Prime
Minister’s choosing. However, there is provision for an election before
the scheduled date if the House of Commons decide to pass a motion
supported by two-thirds of MPs or if the House of Commons back a
motion (by a simple majority of members) of no confidence in the gov-
ernment. The Fixed Term Parliament Act helped cement the 2010 coali-
tion agreement by setting the next election for May 2015 but until the
legislation is repealed the PM’s right under the previously established
convention to call an election no longer applies.5 Unless a government
is defeated the interval between elections is set at five years. The main
issue of controversy between the parties was whether there should have
been a four-year or five-year period between elections.
As head of the government, the Prime Minister represents the nation
on the international stage and at EU summits. In this capacity the UK
Prime Minister often takes a leading role, together with the Foreign
Office, when entering into treaty negotiations with other nations.
THE PRIME MINISTER AND THE CABINET
The Cabinet might appear to be the focal point of government

decision-making. It comprises the group of senior ministers appointed
by the Prime Minister6 to head the main government department
and has between 22 and 24 members. According to Bagehot, it was
a combining committee: ‘a hyphen which joins, a buckle which fos-
ters, the legislative part of the State to the executive part of the State.
In its origins it belongs to the one, in its functions it belongs to the
other.’7 Major policy issues are often discussed at Cabinet, and conflicts
between departments may be finally resolved over the Cabinet table,
but key decisions may be taken in one of the many Cabinet commit-
tees which specialise in the various policy areas. It is generally recog-
nised that there is a growing degree of dominance over the Cabinet
5 www.publications.parliament.uk/pa/ld201011/ldselect/ldconst/69/6902.htm.
6 The 2010 coalition agreement required the (Conservative) Prime Minister to
surrender his exclusive prerogative to select the Cabinet to the (Liberal Democrat)
Deputy Prime Minister.
The Prime Minister and the Cabinet 161
by the Prime Minister. He or she is able to determine the composition

and who chairs these committees.8 The Prime Minister will preside
over the most important committees and is able to set the agenda for
Cabinet meetings. This means that decisions of great importance may
be reached by Cabinet committee and effectively kept within the Prime
Minister’s inner circle of associates and advisers without providing
an opportunity for discussion by the Cabinet. Examples of this have
included the decision by the Attlee government (1945–51) to test Brit-
ain’s atomic bomb, and, much more recently, in 1997, the decision to
change the management of financial policy by granting the Bank of
England the power to set interest rates independently of government.
The Prime Minister has a predominant role over the conduct of gov-
ernment, and this tended to increase during the course of the twentieth
century. The fact that a Prime Minister usually has sole charge over
appointing and dismissing ministers obviously means that he or she
wields enormous power over the Cabinet and other ministers. A min-
ister who fails to perform as expected, or who falls out of line, can be
summarily dispensed with. For instance, Harriet Harman experienced
difficulties with welfare reform and was replaced as Secretary of State
for Social Security in the first reshuffle of the Labour government in
June 1998. However, under the 2010 coalition agreement Prime M inister
Cameron was not able to dismiss any of the five Liberal Democrat cabi-
net members without the approval of Deputy Prime Minister Clegg.
No such constraints apply to the selection of ministers following the
2015 election. The Prime Minister has the capacity not only to change
the complexion of the government by means of appointments that are
made but also to remould the institutional structures of government
departments to suit the direction of policy.9 Only the Prime Minister
can call a Cabinet meeting.10
Collective Cabinet responsibility further contributes to this author-
ity. This constitutional convention originates from the need for a
Prime Minister to present the sovereign with unified advice from the
government on matters of policy. The convention allows for the fact
that the decision-making process will be controversial, with ministers
8 For a full list of Cabinet committtees, see https://www.gov.uk/government/
publications/the-cabinet-committees-system-and-list-of-cabinet-committees.
9 As Deputy Prime Minister and Lord President of the Council Nick Clegg had
special responsibility for political and constitutional reform.

10 P Hennessey, Whitehall, 2nd edn (London, Pimlico, 2001) 306ff.
frequently expressing divergent views on any issue brought to Cabinet

for final decision. The convention demands confidentiality as any dis-
senting opinions are expressed privately. At the end of the discussion,
after a free and frank exchange has taken place, the Prime Minister,
who chairs the meeting, is responsible for identifying the feeling of the
meeting and noting an agreed position. The convention of collective
responsibility dictates that a member of the Cabinet who during the
discussion voiced opposition to the view that is finally adopted must
accept the decision. This requires him or her to vote and speak actively
for the policy, or alternatively that minister should resign. As Secretary
of State for Defence in 1986, Michael Heseltine was so annoyed, both
by the decision not to support Westland, a British helicopter manufac-
turer, and by the way the decision was forced through Cabinet, that
he resigned from Margaret Thatcher’s government by walking out of
Cabinet to brief waiting journalists.
The source of the Prime Minister’s political authority derives from his
or her place as party leader. All major political parties elect a leader with
the assumption that, should the party be victorious at a general election
by emerging with a majority of seats in the House of Commons, the
leader will become the next Prime Minister. Once in office, the Prime
Minister is in a position of enormous authority but the fall of Margaret
Thatcher demonstrated that it is possible for even the most powerful
of Prime Ministers to lose the support of the parliamentary party and
be forced from office. A number of issues contributed to Margaret
Thatcher’s downfall after more than 11 years in Downing Street. For
example, she had insisted upon the introduction of a new and highly
unpopular local government tax, called the community charge or ‘poll
tax’, against the advice of senior ministers. She was unable to reconcile
the differences within her own party over Europe, and because of her
own Euro-scepticism inflamed her critics. Most tellingly, her abrasive
style of leadership led to numerous sackings and resignations, culmi-
nating in the unexpected departure of her deputy, Sir Geoffrey Howe.
The political enemies on her own side, now on the backbenches, were
eventually prepared to mount a challenge. Once it was clear from the
result of an election among Conservative MPs for the party leadership,
which had been forced by Michael Heseltine, that support from the
parliamentary Conservative party was haemorrhaging, the huge author-
ity and power that she had exercised for so long appeared to evaporate.
This failure to win decisively on the first ballot made her resignation
The Prime Minister: Policy Formation and Implementation 163
inevitable. In effect, the ‘emperor’ had been deposed without ever

suffering defeat at a general election.11
The Prime Minister has a special position in relation to the opera-
tion of the intelligence services.12 The Prime Minister is head of the
intelligence and security services, with overall responsibility for security
matters. In this sphere it is the Intelligence and Security Committee,
established by the Intelligence Services Act 1994, which provides some
parliamentary oversight over the three main organisations responsible
for national security, namely: MI6, officially the Secret Intelligence
Service (SIS); Government Communications Headquarters (GCHQ);
and MI5, officially the Security Service.13 The committee examines
expenditure, administration, and policy within what has been termed
the ‘ring of secrecy’. The committee is appointed by the Prime Minister,
after consultation with the Leader of the Opposition, is composed of a
cross-party membership of nine, taken from both the House of Com-
mons and the House of Lords, and is required to report annually to the
Prime Minister on its work. The introduction of some oversight mecha-
nisms is a useful development, but it is difficult to assess accurately how
effectively the committee, tribunal, and Security Services Commissioner
perform their respective roles as their most valuable work relates to
classified material, which is deliberately placed beyond the public gaze
and, as we shall see later, such information is designated as an excluded
category under the Freedom of Information Act 2000.14
THE PRIME MINISTER: POLICY FORMATION

AND IMPLEMENTATION
The growth of the Prime Minister’s Office at 10 Downing Street, with

its own staff and with an increasingly high profile in co-ordinating the
activities of government, has meant that a structure now exists for pol-
icy co-ordination. The capacity of a Prime Minister to drive the com-
plex machinery of modern government from the top has increasingly
depended on having in place an apparatus of administrative back up.
11 Hennessey, above n 1, 432ff.

12 www.intelligence.gov.uk/.
13 www.mi5.gov.uk/output/Page7.html; www.mi6.gov.uk/output/Page79.html.
14 See P Birkinshaw, Freedom of Information: The Law, the Practice and the Ideal,
4th edn (Cambridge, Cambridge University Press, 2010).

In the first place, the Cabinet Office emerged as the department with
overall responsibility for supporting the work of the Cabinet. Its pri-
mary function was (and is) to provide secretarial support to the Cabinet,
and to the network of Cabinet committees where much of the detailed
work of the Cabinet is carried out across departments on key issues.
In charge of the Cabinet Office, which is at the same time the civil
service department, is the Cabinet Secretary. As head of the home civil
service, he or she also has the task of working as a conduit between
the government and the civil service more generally. For example, he
or she must guarantee the impartiality of a permanent civil service. In
another capacity, the Cabinet Office deals with public sector appoint-
ments and promotions within the civil service. The Cabinet Office has
overseen many of the public sector reforms that have been introduced
in recent years. The Cabinet Secretary, as head of the civil service, pre-
sides over the Cabinet Office and from this position is responsible for
upholding the integrity of the civil service. This includes overseeing the
conduct of the civil service, civil service promotion, and public sector
appointments.
During the course of the twentieth century the importance of the
Cabinet Office and the Prime Minister’s personal office in Down-
ing Street greatly increased. In particular, the co-ordination of the
activities of government was essential in both world wars (1914–18 and
1939–45). It should be remembered that in wartime the government
comprised a national coalition made up of the most talented individu-
als from all parties, but the Prime Minister, assisted by a very small War
Cabinet, was able to run the government.15 Since the 1960s the staff-
ing levels have expanded, and there have been repeated attempts to
improve the structure and organisation to meet challenges as they have
arisen. For example, inside Downing Street itself, the Central Policy
Review Staff (CPRS) was introduced by Prime Minister Heath in 1971
under the direction of Lord Rothschild to provide advice from outside
the civil service. Subsequently, Prime Ministers have stamped their mark
on the way the Cabinet Office and 10 Downing Street are organised.
For example, the CPRS was dispensed with by Margaret Thatcher, who
decided to build up her own Policy Unit into what Hennessey describes
as ‘what has in effect [become] a proper Downing Street version of a
15 See, eg, A Calder, The People’s War (London, Panther, 1969) ch 3.

The Prime Minister: Policy Formation and Implementation 165
French Prime Ministerial cabinet.’16 This presented the opportunity for

Margaret Thatcher to introduce her own gurus into Whitehall, includ-
ing for example, the chief executive of Marks and Spencer, a merchant
banker, and two professors of economics. The Policy Unit was formed
into a group of experts that took a keen interest in many of the key pol-
icy areas of government, and it assumed a position to promote the main
principles of Thatcherism throughout the government. This included
the introduction of market principles and privatisation. (In a later
section of this chapter we will discuss the impact of the ‘Next Steps’
initiative on the structure of the civil service.) Despite recognising the
extensive powers apparently placed in the hands of the office holder,
Mount rejects what he calls ‘the alternative theory of prime-ministerial
government’ expounded by commentators such as Mackintosh and
Crossman. For example, one barrier to be surmounted by the Prime
Minister in exercising this power is a fiercely independent civil service
that often provides incomplete briefing and advice, and then there are
problems of communication and implementation which still have to be
overcome before any policy is put into effect.17
The Prime Minister’s Office, based at 10 Downing Street, is relatively
small in terms of numbers, certainly when measured against the size
of the Cabinet Office and the wider civil service, but it has assumed
growing importance in the conduct of government.18 In the main this
has been in respect to giving advice on policy formation, in respect
to overseeing the coordination and effective delivery of policy, and in
respect to the communication of the government message through the
Prime Minister’s press office. The Prime Minister is assisted by a Chief
of Staff, and Prime Ministers have tended to surround themselves
with a select group of policy advisers reflecting their own ideological
viewpoint. In turn, this trend has confirmed the growing importance
of the organisation based at 10 Downing Street. There were 36 special
advisers under the Conservative government of John Major, and this
figure escalated to 78 under the Labour government of Gordon Brown.
The number was reduced to 68 under the coalition government led by
David Cameron.
16 Hennessey, above n 1, 424.

17 F Mount, The British Constitution Now (London, Mandarin, 1992) 136ff.
18 See A Seldon, ‘The Cabinet System’ in V Bogdanor (ed), The British Constitution
in the Twentieth Century (Oxford, Oxford University Press, 2003).

Moreover, the emphasis on improving service by means of a

itizen’s Charter, initiated by John Major, was tailored around the
C
needs of the citizen, who was regarded as a customer. Charter Marks
were awarded in recognition of excellent service delivery, measured
according to criteria set out by this unit. Tony Blair as Prime Minister
also placed strong emphasis on the effective delivery of policies in
the public sector. To this end, the Strategy Unit was set up in 2002,
bringing together the Performance and Innovation Unit (PIU), the
Prime Minister’s Forward Strategy Unit (FSU), and parts of the Centre
for Management and Policy Studies (CMPS). The Strategy Unit was
responsible for doing long-term strategic reviews of major areas of
policy, and it helped to co-ordinate the activities of government by
undertaking studies of cross-cutting policy issues, and by working with
departments to promote strategic thinking and improve policy-making
across Whitehall. The Unit conducted investigations and issued regular
reports that made practical recommendations. These were designed: to
encourage stronger leadership from ministers and senior civil servants;
to improve policy formulation and implementation; and to enhance the
capacity for co-ordination across government. The Strategy Unit was
disbanded in 2010. In consequence, under David Cameron the No 10
Policy Unit consists of only 22 special advisers to the Prime Minister.19
The role of the PIU has since been taken over by the Cabinet Office
and the unit rebranded as the Efficiency and Reform Group (ERG),
which disseminates a reform agenda based on best practice for all gov-
ernment departments.
The use of the Internet to promote the government’s message repre-
sents an important innovation. The citizen is drawn into a new style of
participatory democracy based on a transformed relationship between
the individual and the information superhighway, which also embraces
government and local government. The Strategy Unit seeks to make
government more open and accessible through its e-government
strategy and UK online campaign, aiming to improve the online
information provided by government.20 The Strategy Unit, based in
19 R Hazell, ‘A Profession comes of age’ in B Yong and R Hazell (eds), Special
Advisers: Who they are, what they do and why they matter (Oxford, Hart Publishing, 2014) 203.
20 J Morison, ‘Modernising Government and the E-Government Revolution:
Technologies of Government and Technologies of Democracy’ in N Bamforth

and P Leyland (eds), Public Law in a Multi-Layered Constitution (Oxford, Hart Publish-
ing, 2003); S Ward and T Vedel, ‘The Potential of the Internet Revisited’ (2006) 59
Parliamentary Affairs 210.
Prime Minister’s Press Office and Government ‘Spin’ 167
10 Downing Street, has a leading role on issues that cut across

government d epartments, including promoting information technology.
This coordinating function may fall outside the remit of other indi-
vidual government departments.
PRIME MINISTER’S PRESS OFFICE AND GOVERNMENT ‘SPIN’
In order to present the government’s position effectively the need for

a press office has been recognised for many generations, but in recent
years the role of the opinion-formers has changed and become much
more important.21 In part, this can be seen as a response to the fact
that information is now constantly circulated 24 hours a day, and is
available from foreign sources, through the Internet, and by satellite.
It has become increasingly clear that policy initiatives can be seriously
compromised by facing sustained adverse comment on television and
radio, and in the press. Ultimately, the public perception of the govern-
ment through the coverage it receives in the mass media has a major
impact on the electoral fortunes of a political party. The role of the
media in opinion-forming has transformed the way the business of
government is conducted. The Prime Minister, as leader of the party,
needs to keep in touch with the public mood and has a press office to
assist with this task. Press secretaries are appointed to champion the
cause of the government, and they have always been political appoint-
ments, introduced from outside government and civil service, to work
in harmony with the serving Prime Minister. However, the pejorative
term ‘spin doctor’ has been applied by critics to suggest that in recent
years the function of the press secretary and the press office has gone
beyond assisting the Prime Minister (and other ministers) with media
management and opinion-forming. The task has in fact changed from
putting the best possible interpretation on issues that come up, to
actually taking the initiative in setting a political agenda for a particular
area of government policy. Alistair Campbell, as press secretary and
later director of communications at 10 Downing Street (until 2003)
was widely criticised in the media for wielding a great deal of power
behind the scenes, but without being subject to any direct control.
21 See generally A Blick, At Power’s Elbow: Aides to the Prime Minister from Robert
Walpole to David Cameron (London, Biteback Books, 2013).

Furthermore, Tony Blair decided when he became Prime Minister

that any policy announcement across the entire government had to
be cleared through the Downing Street press office. This practice was
introduced to avoid an impression of disunity conveyed by the previ-
ous government led by John Major that resulted from inconsistent and
contradictory messages being released by individual departments. How-
ever, the requirement that policy announcements have to be approved
at the centre has meant that Downing Street and the press office have
been able to control the political agenda across the entire spectrum of
government activity.22 As a result, enormous power has been placed in
the hands of appointed officials who are not directly accountable under
the constitution for their activities. In response to some of these criti-
cisms, the independent Phillis report in 2004 attempted to delineate the
political and civil service roles more clearly.23
In line with the recommendations contained in the report, a new
Permanent Secretary, Government Communications was appointed

in 2004 whose remit was to focus on a strategic approach to
communications across government to better inform and respond to
the requirements of citizens and people who use and work in public
services. In a complementary role, on the political side of the communi-
cations machine, the Prime Minister’s Director of Communication has
responsibility for the day-to-day media activity at 10 Downing Street.
He or she also assists Cabinet ministers and their special advisers with
the political context for departmental communications, but does not
directly exercise any executive power over the civil service.24
SHAPING GOVERNMENT DEPARTMENTS
The Prime Minister is not only able to reshuffle the team of ministers
serving in the government, but he or she also has an apparently unlimited
22 See T Daintith, ‘Spin: A Constitutional and Legal Analysis’ (2001) 7 European
Public Law 593, at 606.

23 Final Report of the Independent Review of Government Communications
(19 January 2004) http://webarchive.nationalarchives.gov.uk/20100807034701/

http://archive.cabinetoffice.gov.uk/gcreview/News/FinalReport.pdf.
24 See B Yong and R Hazell, Special Advisers: Who they are, what they do and why they
matter, (Oxford, Hart Publishing, 2014), 121ff.

Shaping Government Departments 169
capacity to create and to reshape government d epartments.25 In another

context the accountability issue within departments, between govern-
ment departments, and between departments, agencies and other public
bodies is determined by the distribution of functions for distinct policy
areas. The exercise of this kind of control has the advantage of allow-
ing a Prime Minister who has received a mandate from the electorate
to fashion the administrative organs of the state to facilitate the policy
objectives that are regarded as a priority. A good example, dating from
the 1960s, was when Prime Minister Wilson created the Department
of Economic Affairs to manage economic planning and, then as its
contribution to policy diminished, dispensed with the department in
1969.26 The Ministers of the Crown Act 1975 allows departmental re-
organisation to be made by Order in Council, which is a form of del-
egated legislation. This provides scope for both transfers of functions
and dissolutions of departments.
More recently, Tony Blair, after he became Prime Minister in 1997
re-crafted major departments on a number of occasions. After his first
election victory he was able to combine the parts of the former Depart-
ment of the Environment responsible for local and regional govern-
ment with the Department of Transport to form a mega-department,
the Department of Transport, Local Government, and the Regions
(DTLR). This was a portfolio created for his deputy, John Prescott. The
problems in adequately delivering policy initiatives in the often distinct
fields of transport and local government could to some extent be attrib-
uted to the unwieldy departmental structure in Whitehall. The lack of
focus on issues relating to local government became more pronounced
following the May 2001 general election. For example, attention was
diverted by the rail crisis and the collapse of Railtrack, in particular.
The resignation of the Secretary of State for Transport resulted in
the Prime Minister deciding to introduce a significant departmental
reorganisation which involved scrapping the DTLR. Responsibility
for local government and the planning inspectorate was moved to a
newly formed Office of the Deputy Prime Minister, while Transport
became a separate department in its right. The Deputy Prime Minister’s
25 Ministerial Code, Cabinet Office, May 2010, 4.1.

26 S Sked and C Cook, Post-War Britain: A Political History (London, Penguin,
1979) 230.
department (in effect, a re-launched Department of the Environment)

brought together regional and local government (including the regional
government offices), housing, planning, and regeneration, and it also
included the social exclusion unit and neighbourhood renewal. As part
of this structure, the Regional Co-ordination Unit was responsible
for the co-ordination of regional and local government. In the May
2006 reshuffle, the Office of the Deputy Prime Minister was again
reconstituted, this time as the Department for Communities and Local
Government.
The break-up of the DTLR might have removed an unmanage-
able conglomeration but, in itself, such action does not resolve the
problem of policy co-ordination. In what has been termed an age of
multi-layered governance, the present government has sought to deliver
what it has called ‘joined up’ government. Co-ordination and control
was proving particularly difficult to achieve in this policy domain. For
instance, the policy networks that cut across local government are com-
plex and involve a multiplicity of overlapping strands. These include
housing, planning, environmental protection, and waste management,
over which local authorities tend to have direct control, and education,
transport, and regulation, where responsibility is split not only between
central and local government but also with other bodies such as statu-
tory regulators.27 Further powers have been conferred on London’s
Mayor and Assembly (see Chapter 8). Despite repeated attempts to
redraw departmental boundaries on an ad hoc basis, many inconsisten-
cies remain in the allocation of responsibilities between policy areas.
In most other nations, departmental re-organisation can be undertaken
only by a more formal legal process. For example, in Italy a statute was
passed in 1997 to allow a re-allocation of functions at the highest level
of government between ministries, which has resulted in the compres-
sion of 20 ministries into 12.28
27 P Leyland, ‘UK Utility Regulation in the Age of Governance’ in N Bamforth
and P Leyland (eds), Public Law in a Multi-Layered Constitution (Oxford, Hart Publishing,
2003).
28 See Italy: Law 59/97.
Political Accountability and Individual Ministerial Responsibility 171
POLITICAL ACCOUNTABILITY AND INDIVIDUAL

MINISTERIAL RESPONSIBILITY
Individual ministerial responsibility is the constitutional convention

which is concerned with the accountability between Parliament, the
political decision-makers, and professional civil servants and the admin-
istrators responsible for implementing policy in the United Kingdom.
In essence, a model of the constitution was conceived which sought to
accommodate the existence of discretionary public power by the device
of ministerial responsibility. The rule of law, as explained by Dicey,29
works on the basis that the courts police the boundaries of excessive
ministerial power under the ultra vires principle, while Parliament over-
sees the actions of ministers within the boundaries of these powers.
What does this add up to in practice? In a formal and procedural sense,
ministers are responsible: this responsibility is in the sense that they are
answerable to Parliament for their departments. In this way individual
ministerial responsibility describes a ‘chain of accountability’. Officials
answer to ministers, who answer to Parliament, which, in turn, answers
to the electorate. This demonstrates how individual ministerial respon-
sibility emerged as the convention which described constitutional
accountability for policy matters, but, as we shall see from the examples
cited below, the problem is that accountability is often no more than a
requirement to give reasons and explanations for actions or decisions as
part of the process of government.
For the convention to operate, the basic requirement is that ministers
are members of Parliament. As was recognised in the previous chapter,
the answerability of ministers to Parliament is acted out in a number
of ways. In particular, the relevant minister in the House of Com-
mons or House of Lords introduces a public bill concerning his or her
department in Parliament; backbench MPs are able to table questions
to ministers on a regular basis; ministers are called to account for their
policies before departmental select committees (of which there are 18);
and the Public Accounts Committee in harness with the National Audit
Office investigates past government expenditure by undertaking value
for money (VFM) audits (see Chapter 5).
(Basingstoke, Macmillan, 1959) 188ff.

MINISTERIAL RESPONSIBILITY: ANSWERABILITY

OR RESIGNATION?
Ministers, then, are made accountable or answerable to Parliament by

these routine procedures. In terms of general principle, individual min-
isterial responsibility recognises that the continuation in office of min-
isters depends upon them enjoying the confidence and support of MPs
or peers. In practice, however, attempts to challenge the credibility of
a minister are seldom successful when the government in power enjoys
a substantial majority in the House of Commons. In 1954 Sir Thomas
Dugdale resigned over the famous Crichel Down affair, where blame
for departmental incompetence was clearly attributable to officials.
Furthermore, the blameworthy action mostly occurred well before this
minister took up office. In fact, this sacrifice was prompted for politi-
cal reasons, and the resignation should be regarded as an exception to
general practice. Unless the matter is taken up as a crusade by the press,
what Richard Crossman explained, writing half a century earlier, still
applies:
[Since] the Government party controls Parliament, both resignations and
dismissals for incompetence have become rare. Indeed, the incompetent
minister with a departmental muddle to cover up may be kept in office for
years … more votes will be lost by admitting the incompetence than by
concealing it.30
The government can nearly always rely upon the support of its back-
bench MPs to sustain its majority and therefore there will be no need
for a minister to fall on his or her sword and resign. Apart from Crichel
Down, there have been examples of ministers accepting responsibility
for policy and resigning, but this is rare. One such was the resignation
of Lord Carrington as Foreign Secretary following the invasion of
South Georgia by the Argentinians prior to the Falklands War in 1982.
Lord Carrington accepted the blame for not responding to intelligence
reports warning about the impending invasion. On the other hand,
blame can be deflected for political mistakes by a sacrificial resignation,
which identifies an individual minister rather than the Prime Minister
or the government as a whole as being responsible for a policy over-
sight. For example, Leon Brittan, the Secretary of State for Trade and
30 R Crossman (ed), ‘Introduction’ in W Bagehot, The English Constitution
(London, Fontana, 1963) 43 and 45.

Codes of Practice and the Scott Report 173
Industry took full responsibility for a departmental leak relating to the

Westland affair, and his resignation in 1986 shielded the Prime Minister
and the government from intensifying criticism at a time of crisis.31
Assuming the minister is the architect of the policy, it would appear
to follow that, should the policy design prove to be fundamentally
flawed, the minister should be held responsible. For example, in the pre-
vious chapter attention was drawn to critical reports from the depart-
mental select committee in respect to the running of the M illennium
Dome project.32 Project directors came and went, but there were no
ministerial resignations. Ministerial responsibility has always been an
imprecise convention, which delivers partial accountability. At best, it
will normally require ministers to provide Parliament with information
and also an explanation. The evidence demonstrates that resignations
over policy are unusual, and supports the view that political consid-
erations nearly always predominate. By way of contrast there have
been many ministerial resignations prompted by questionable personal
behaviour relating to financial probity, personal integrity, abuse of
ministerial office and scandalous sexual behaviour. Perhaps the most
famous example was the resignation in 1963 of the Secretary of State
for War, John Profumo, for deliberately misleading Parliament. At the
height of the ‘cold war’ he had denied his association with a high class
prostitute who was also having an affair with a Russian military attaché
(probable spy) stationed in London.
CODES OF PRACTICE AND THE SCOTT REPORT
The reluctance of ministers to resign was further illustrated follow-

ing publication of the Scott Report.33 A public inquiry chaired by a
senior judge was set up to look into the processes of government
after it emerged that arms had been supplied to Iraq with the covert
support of government during the Gulf War between Iran and Iraq
during the 1980s. This action was clearly in contravention of published
government policy at the time. The issue came to public attention
31 See Hennessey, above n 10, 307.

32 See, eg, Select Committee on Culture, Media and Sport, Back to the Dome, Third
Report, 1998–99 HC 21-1.
33 Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to
Iraq and Related Prosecutions, 1995–96 HC 115.

following the collapse of a prosecution against two directors of the

Matrix Churchill company, which had been contracted to supply a
supergun to Iraq. Although government ministers had used public
interest immunity to prevent the disclosure of information in court on
grounds of national security, the fact that these directors were work-
ing in collusion with the secret intelligence services came to light. It
appeared that the government had been prepared to suppress this
information in order to prevent embarrassment for having misled Par-
liament over its involvement, even if this meant imprisonment for these
directors of Matrix Churchill. Many of Lord Justice Scott’s criticisms
in the report related to the conduct of ministers, including the sugges-
tion that the House of Commons had been misled by one minister, and
that guidelines for the signing of public interest immunity certificates
had been wrongly interpreted by the Attorney-General, but, despite
criticism appearing in the report, neither minister resigned.34 The Scott
Report also exposed a lack of candour, which amounted to a failure by
ministers to meet the obligations of ministerial accountability by pro-
viding adequate information about the activities of their departments,
and it was recognised that this failure tended to undermine the demo-
cratic process. In response, a revised code of practice was introduced
for civil servants and ministers which has made it more difficult to
mislead Parliament.35 In particular, civil servants are committed to core
values of integrity, honesty, objectivity and impartiality, which means
that they must not deceive or knowingly mislead Ministers, Parliament
or the wider public when answering parliamentary questions or appear-
ing before departmental select committees, and it requires all govern-
ment departments and agencies to adopt a whistle-blowing procedure
to allow concerns over any abuse to be raised. From a legal standpoint
the latest code also confirms the contractual relationship between min-
isters and civil servants now set out in the Constitutional Reform and
Governance Act 2010 and incorporated in the terms and conditions of
employment for civil servants.36
34 A Tomkins, The Constitution After Scott: Government Unwrapped (Oxford,
Oxford University Press, 1998) provides a detailed discussion of the report and its
implications.
35 Civil Service Code Cabinet Office, updated 16 March 2015.
36 See N Bamforth, ‘Accountability of and to the Legislature’ in N Bamforth
and P Leyland (eds), Accountability in the Contemporary Constitution (Oxford, Oxford

University Press, 2013) 270.
Ministerial Responsibility and the Press 175
MINISTERIAL RESPONSIBILITY AND THE PRESS
In recent times, with the greater proliferation of information, the power

of the media in attaching blame to ministers has been very much in
evidence. For example, Stephen Byers resigned in May 2002 as Secre-
tary of State for Transport. The trigger for his departure was not that
his department had to manage the crisis on the railways following the
collapse of Railtrack, or dealing with the unpopular policy of part-
privatisation of the London Underground, but, rather, his credibility
had been fatally undermined by the intense controversy surrounding
his press secretary, who attempted to use the distraction of the events
in the United States on 11 September 2001 to release bad news. Fail-
ure to dismiss this appointed official led to a campaign in the press,
which uncovered further dissent within the department and ultimately
exposed the weakness of the minister.
Once again, in October 2002, the Secretary of State for Educa-
tion and Employment resigned at least partly because of the level of
media criticism over education policy in general, and in particular over
criticism concerning her handling of the crisis regarding the grading of
A-level examinations. This prompted a personal loss of confidence by
the minister over the general strategic management of the department.
However, these departures are unusual, for it appears that ministers
very rarely sacrifice themselves as a result of policy failure or depart-
mental shortcomings.37
Other examples of ministerial incompetence can be cited, however,
where the minister survived. In 1992 the value of the pound col-
lapsed, forcing the United Kingdom to withdraw from the exchange
rate mechanism (ERM), but not before the Chancellor of the Exche-
quer on ‘Black Wednesday’ had used up £11 billion, virtually half the
nation’s currency reserves, in a futile attempt to support the value of
the currency. On this occasion it would appear that Chancellor of the
Exchequer’s failure to resign immediately had the effect of substantially
weakening the government of Prime Minister John Major.
Professor Woodhouse has summed up the position as follows:
Moving into the twenty-first century, the convention of ministerial respon-
sibility can be defined loosely, as requiring, first, information rather
37 D Woodhouse, ‘UK Ministerial Responsibility in 2002: The Tale of Two
Resignations’ (2004) 82 Public Administration 1.

than resignation; secondly, ministerial ‘accountability’ for everything but

‘responsibility’ for only some things; thirdly, civil service ‘responsibility’ for
some things but ‘accountability’ only when this suits ministerial interests.38
A reformulation of ministerial responsibility has been called for which
recognises the integral responsibilities of ministers for supervision
of their department or agency. In particular, this would require that
ministers make sure that adequate resources are available for the effec-
tive implementation of policies and that they assume direct control at
times when things go wrong as part of explanatory and amendatory
responsibility.39
THE CIVIL SERVICE
In March 2015 approximately 440,000 people were working for the

United Kingdom Civil Service, with the figure expected to contract
in line with the government plans to progressively reduce public
spending.40 In order to consider the issues of accountability in respect
to the operation of government itself, we need to explore in more
detail the relationship between ministers and civil servants, and the
re-organisation of the institutions of central government.41 In the
first place, it is worth noting that until the Constitutional Reform and
Governance Act 2010 was enacted there had never been a single statute
or a set of delegated rules that regulated the conduct of civil servants
or which establishes their constitutional position. For example, civil
servants have a special position in law as servants of the Crown, but
on matters of employment law, the Equal Pay Act 1970, the Employ-
ment Protection (Consolidation) Act 1978, the Sex Discrimination Act
1975, and the Race Relations Act 1976 all apply to the civil service. Civil
servants are bound by the Official Secrets Acts 1911 and 1989 and by
38 D Woodhouse, ‘Ministerial Responsibility: Something Old, Something New’
[1997] PL 262, 280.

39 D Woodhouse, ‘The Reconstruction of Constitutional Accountability’ [2002]
PL 73, 86.
40 http://www.ons.gov.uk/ons/dcp171778_418784.pdf,.
41 See generally G Drewry, ‘The Executive: Towards Accountable Government
and Effective Governance’ in J Jowell and D Oliver (eds), The Changing Constitution,
The Civil Service 177
the Freedom of Information Act 2000 (subject to statutory exceptions

discussed below). Civil servants are also regulated by an assortment of
codes of conduct and disciplinary codes. As we have already observed
in our discussion of ministerial responsibility, some of these codes have
an important bearing on the relationship of civil servants with ministers
and with Parliament.
For many generations, ministers have been in a position to rely upon
a permanent and professional civil service, which, in most cases, has
been led by an elite class of Oxford and Cambridge-educated officials,
with a reputation for neutrality. The foundations of the modern service
were laid following the Northcote-Trevelyan Report of 1854.42 This
ground-breaking report, among other things, established the idea of
appointment on merit and led to the division of the civil service into
two classes comprising, on the one hand, policy-makers, and, on the
other, more routine workers. The civil service remains a system of cen-
tralised hierarchical administration comprised of trained professionals,
who operate according to prescribed and objective rules. The structure
is designed to enable those at the base of the pyramid of administration
to carry out the commands of those at the pinnacle. The role of the civil
service is to implement policy, often by putting into effect detailed leg-
islative provisions, and it establishes a system which limits the arbitrary
exercise of power by officials. Nevertheless, in the United Kingdom, as
in other comparable nations (eg France, Italy, and Germany), the legal
framework of legislation will inevitably leave scope for the exercise of
discretionary power, with the traditional model regarding ministers and
civil servants as partners. This means that officials have been allowed
some discretion to act, but this discretion is set within strict limits. It will
be apparent from our discussion of political accountability below that
the courts can be called upon to intervene to ensure that the exercise of
any such discretion remains lawful.
The UK civil service implements policy for whichever government
is in power and, unlike in the United States, there is no ‘spoils system’
allowing politicians to routinely replace the most senior officials with a
change of government. The service has a high reputation for intellec-
tual excellence and integrity. It is considered to be neutral, with a capac-
ity to give impartial advice to ministers. However, it has also attracted
42 Northcote–Trevelyan Report on the Organisation of a Permanent Civil
Service (1854).
criticism for lack of managerial competence and efficiency, and for a

failure to attract the specialist expertise needed in many areas of gov-
ernment (see, for example, the Fulton Report 1968,43 which made more
than 100 recommendations).
The situation in regard to the structure and organisation of the civil
service has changed significantly in recent years. The Conservative
governments between 1979 and 1997 were critical of the traditional
approach of many civil servants to questions of policy implementation
which, it was argued, resulted in ineffective government. In order to
pursue the radical Thatcherite agenda, which departed from the con-
sensual policies of post-war generations, the association between the
civil service and established interests in both business and the public
and voluntary sector was revised. Since the 1980s there have been
radical managerial innovations to help overcome resistance to reform
by senior officials. Another manifestation of this change of approach,
already alluded to, is that there has been an increase in the appointment
by ministers of political advisers and special advisers, who exercise a
growing influence on policy-making, and these advisers can also be
involved lower down the administrative hierarchy to monitor progress
with policy initiatives.
NEW PUBLIC MANAGEMENT AND EXECUTIVE

ACCOUNTABILITY
The New Public Management (NPM) initiative and the Next Steps
reorganisation have been inspired by an ideological commitment to
introduce the disciplines of the free market to the processes of gov-
ernment. A series of changes were introduced under the Conservative
governments between 1987 and 1997 (and continued under Labour),
which were designed to transform the performance of central govern-
ment. In the interests of economy, the size of the civil service was
reduced. Also, large proportions of what remained were called ‘Next
Steps Agencies’. Indeed, the idea of running a public enterprise on a
similar basis to a private business became a prevalent theme in publicly
funded bodies throughout Europe and beyond. It depended upon the
introduction of a new kind of contracting between the various levels of
43 The Report of the Committee on the Civil Service (Fulton), Cmnd 3638 (1966–68).
New Public Management and Executive Accountability 179
government and between government and the private sector. However,

these administrative changes, which began in late 1980s, had serious
implications for the political accountability of the civil service.
The Conservative government, when it took office in 1979, inherited
a central government bureaucracy of nearly 750,000 civil servants. The
bare statistics demonstrate the impact of these reforms. By the time the
Conservative left office in 1997 there were less than 500,000 remain-
ing. The structure and organisation had also changed: 362,000 were
assigned to 138 Next Steps Agencies (explained below), accounting for
approximately 75 per cent of the service. This re-organisation resulted
in the disappearance of a relatively uniform and monolithic structure,
and its replacement by a much looser federation of many smaller
units.44 In many cases, the initiative relieved departmental overload
by handing over responsibility for budget and staffing to the agencies.
These agencies, dealing with anything from the allocation of passports
(part of the Home Office) to child support (Works and Pensions), con-
tinue to be run by civil servants who remain under the same conditions
of employment, and staff continued to be bound by the Civil Service
Management Code. Another aspect of this reform was the exposure of
the service to business models. For example, it provided the opportu-
nity to recruit private sector managers as agency chiefs, who could be
‘incentivised’ by high salaries. Such re-organisation also provided scope
for internal restructuring.
This reform enabled the role of ministers and senior civil servants
engaged in the task of policy formulation to carry on more or less as
before, as part of a main department under which the newly formed
agency functioned. The new structures required the operational tasks to
be placed in the hands of the agency by a form of non-legally binding
contract, and this division conveyed an impression of agency autonomy
based on an apparent separation between policy decisions and opera-
tional decisions. The entire scheme was deceptive. In practice, the agency
was not a separate legal entity, and a dependency existed between the
sponsoring department and the agency. For example, an agency would
be granted fixed budgetary allocations, which arguably imposed even
more rigid control over the policy process. A contradiction was thereby
44 R Rhodes, P Carmichael, J McMillan, and A Massey, Decentralising the Civil Ser-
vice: From Unitary State to Differentiated Policy in the United Kingdom (Buckingham, Open
University Press, 2003) ch 2.
created between apparent independence of an agency and the control

imposed from above. An equally worrying development which emerged
following the introduction of Next Steps programme has been the
deployment of a policy/operations dichotomy between the minister
and the agency chief to shield the minister from blame before Parlia-
ment under the doctrine of ministerial responsibility for serious short-
comings within the departmental sphere. For example, in 1995, faced
with criticism from an official inquiry following the escape of IRA pris-
oners from the Isle of Wight, the Home Secretary dismissed the head
of the prison service for what he claimed was an ‘operational matter’
rather than personally accepting responsibility for any shortcomings.45
From the outset, NPM has been centrally concerned with the three
‘Es’, namely, ‘economy, efficiency and effectiveness’. Public services are
forced to confront market-related disciplines.46 There is a presumption
that the state (that is, central and local government) can function more
effectively and efficiently while at the same time costing the taxpayer
less. Central government agencies are expected to undertake market
testing to ascertain whether service delivery can be achieved more effi-
ciently. As part of the NPM process, internal performance is systemati-
cally monitored and assessed. Staff members have their performance
annually reviewed, with pay levels often related to results achieved.
This style of managerialism to improve outputs and introduce public
sector ‘benchmarking’ has continued in phases, ‘Capability Review’,
focused on leadership, strategy, and delivery while deep NPM requires
the use of management consultants to supply commissioning support
in the health service.47 However, it is much more difficult to assess effi-
ciency and effectiveness that reaches beyond simple measures of cost-
effectiveness. In the sphere of government, measuring performance
simply in terms of increased throughput on a ‘cost per unit’ basis is
often misleading, particularly when dealing with services that involve
the provision of care.
45 A Barker, ‘Political Responsibility for UK Prison Security—Ministers Escape
Again’ Vol 76, Spring 1998 Public Administration 1–23 at 11ff.

46 See C Harlow and R Rawlings, Law and Administration (London, Butterworths,
1997) ch 5, ‘Blue Rinse’.

47 A Davies, ‘Beyond New Public Management: Problems of Accountability in
the Administrative State’ in N Bamforth and P Leyland (eds), Accountability in the

Contemporary Constitution (Oxford, Oxford University Press, 2013) 341ff.
New Public Management and Executive Accountability 181
Another important way in which market solutions have been

introduced is through privatisation. Many functions, ranging from pris-
oner escort services to the cleaning of government offices, that were
formerly carried out by staff employed by the department are now
performed by independent, privately owned, companies. The services
are provided under a formal private law contractual obligation which
has been negotiated between the department and the company, and the
enforcement of the contract will generally be a matter of private law.
But this calls into question any meaningful accountability in a public law
sense for policy issues that might arise in relation to operational mat-
ters. The terms of the contract define all the parameters of the service
provision, and there is no going back on such terms until such time as
there is an opportunity to renegotiate the contract. In this sense, the
same applies to public–private partnerships (PPPs) and Private Finance
Initiatives (PFIs), which have been used to attract private finance into
the public sector.
The revised ministerial code recognises that ‘The Minister in charge
of a department is solely accountable to Parliament for the exercise of
the powers on which the administration of the department depends.’48
It is apparent that in some respects this re-organisation has led to a sig-
nificant redefinition of the doctrine of ministerial responsibility. Less
emphasis is placed upon detailed day-to-day supervision of the entire
department. Accountability between the department and the agency
tends to be mainly in respect of overall finance and budgeting matters.
Great emphasis is placed on measurable criteria of financial efficiency.
In consequence, greater autonomy brought about by agency status has
promoted a divergence of interests between the agency and the depart-
ment. It has resulted in a division into two distinct accountabilities, but
no revised mechanism to address the problem.49 For example, ministe-
rial responses to parliamentary questions on matters of detailed finan-
cial policy might fall under the remit of the agency chief executive, and
in some cases the answers to questions provided by the chief executive
may be considered inadequate.
Although the precise criteria and terminology are modified to reflect
local conditions, aspects of the NPM model have been manifest in
48 Ministerial Code, Cabinet Office, May 2010, 4.6.

49 P Barberis, ‘The New Public Management and a New Accountability’ (1998)
76 Public Administration 451.
much of Europe. This idea is not fundamentally concerned with

democratic control and accountability, but rather with control through
forms of contractual relationship.
THE CONSTITUTIONAL REFORM AND

GOVERNANCE ACT 2010
Concerns have been voiced over the creeping politicisation of the civil
service.50 One example discussed above has been the increased role of
special advisers introduced by the Prime Minister and other ministers
(eg Alistair Campbell, Downing Street Press Secretary and Director of
Communications 1997–2003 under Tony Blair) who may have exer-
cised authority over permanent civil servants but without their respec-
tive positions being clearly defined. The Parliamentary Committee on
Standards in Public Life had recommended that the role of the civil
service and civil servants should be placed on a statutory footing.51 but
the legislation was only passed right at the end of the Labour Govern-
ment’s period in office. The Constitutional Reform and Governance
Act not only dispenses with Orders in Council and places the manage-
ment of the civil service on a statutory footing, and thus now under
parliamentary scrutiny, but it also establishes a Civil Service Commis-
sion which is responsible for appointing civil servants.52 At the same
time, the Act requires that a code of conduct be published for the civil
service, the diplomatic service and for special advisers.53 These codes
form part of the terms and conditions of service of civil servants,
diplomats and special advisers and recognise that the core values of
integrity, honesty, objectivity and impartiality set out in the Act must
be upheld at all times.54 Some critics have argued that: ‘The quest for
defined boundaries and roles at the top of government, where politics
50 A King, The British Constitution (Oxford, Oxford University Press, 2007) 233.
51 See Parliamentary Committee on Standards in Public Life, Ninth Report: Defin-
ing the Boundaries within the Executive: Ministers, special advisors and the permanent civil ser-
vice, 2003; Public Administration select committee, 8th Report, 2001–02, published
19 July 2002. D Oliver, Constitutional Reform in the UK (Oxford, Oxford University
Press, 2003) ch 3.
52 Constitutional Reform and Governance Act 2010, s 3.
53 See ss 5, 6 and 8.
54 Constitutional Reform and Governance Act, s 7(4).
Government Openness and the Freedom of Information Act 2000 183
and administration intertwine, is misguided. Ambiguity, fuzziness, and

grey areas are assets since they enable flexibility, and practical responses
to unexpected happenings.’55 Revised codes have been published but
these more explicit rules failed to prevent the intense controversy sur-
rounding the appointment of former News of the World editor Andy
Coulson as David Cameron’s Director of Communications. He was
installed without the routine vetting and security clearance experienced
by others holding this crucial office (see further Chapter 1). The resig-
nation of Liam Fox as Secretary of State for Defence in October 2011
was prompted by the exposure that he had used a friend, Adam Wer-
rity, ostensibly as an adviser in this sensitive policy area without having
him vetted for security and officially appointed. In consequence, the
appointee was not subject to this code designed to prevent any conflict
of interest arising.
GOVERNMENT OPENNESS AND THE FREEDOM

OF INFORMATION ACT 2000
The Freedom of Information (FOI) Act 2000 requires the disclosure

of information by the government and other public bodies and, as a
result, it is having an important impact in delivering accountability in
many areas.56 It will already be apparent that the convention of indi-
vidual ministerial responsibility, which is central to executive account-
ability, hinges on an obligation to provide information. Until quite
recently, the corridors of Whitehall and public authorities in general
were shrouded in a cloak of secrecy. The blanket protection that public
bodies had enjoyed under the ‘catch-all’ section 2 of the Official Secrets
Acts 1911 was relaxed to some extent by the Official Secrets Act 1989.
The failure of the government in the 1980s to prevent the circula-
tion of the Spycatcher book,57 which had been written by an ex-spy in
breach of the Official Secrets Act 1911 was a foretaste of difficulties
55 G Jones, ‘Against a Civil Service Act’ (2002) 22 (4) Public Money and Manage-
ment 5, 6.
56 P Birkinshaw, ‘Regulating Information’ in J Jowell, D Oliver and C O’Cinneide
(eds), The Changing Constitution, 8th edn (Oxford, Oxford University Press, 2015).
57 P Wright, Spycatcher (New York, Viking, 1987).
to come in controlling the currency of information.58 The book had

been p ublished abroad, but it was imported and became available in the
United Kingdom despite injunctions issued by the courts.
In a different context, the trenchant criticism contained in the Scott
Report (see above), which looked into the collapse of the Matrix
Churchill case, signalled a change of approach in regard to Parliament.
The previous assumption that information in the possession of public
bodies could be routinely held back was fundamentally questioned
in this report, and the codes of practice which applied to ministers
and civil servants were modified subsequently.59 Latterly, information
placed in the public domain has proliferated exponentially through the
internet, and this has, of course, transformed public expectations over
the level of disclosure which is expected from public bodies.
On its return to power in 1997 after 18 years in opposition, the
Labour Party was committed to introducing a Freedom of Information
Act. Despite its shortcomings touched on below, the FOI Act 2000 is
a ground-breaking constitutional measure. The Act, which came fully
into force on 1 January 2005, provides under section 1 a general right of
access to information held by public authorities, including government
departments. It imposes an obligation to provide information within a
limited time frame. As well as meeting the requirement under the Act
to provide publication schemes, government, local government, and
public authorities have responded to the new situation by making vast
amounts of information available to the public, often on their websites.
Information which is exempt from disclosure is set out in Part II
of the FOI Act 2000. The exempt categories fall into two classes, as
the effect of the provisions differs depending on whether the sections
confer absolute exemption, or qualified exemption subject to a preju-
dice test.60 In essence, the areas which have an ‘absolute exemption’
are those where the need to balance the public interest in disclosure
against the public interest in maintaining the exemption does not arise.
This covers information relating to secret intelligence services, criminal
intelligence matters, and national security.61
58 See Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109.

59 See Sked and Cook, above n 26.
60 Freedom of Information Act 2000, s 26 deals with the effect of the exemp-
tions in Part II.

61 Sections 23 and 24.
Government Openness and the Freedom of Information Act 2000 185
For these categories, a certificate signed by a Cabinet minister, the

Attorney General, the Attorney-General for Northern Ireland, or the
Advocate General for Scotland certifying that the exemption is neces-
sary is regarded as conclusive evidence. There is limited scope for chal-
lenge before the Information Tribunal, but the grounds are very narrow.
For the second category of (qualified) exemptions, the application
for information has to be balanced against the public interest in refusing
disclosure. A test of prejudice has to be satisfied to justify non-disclosure.
The areas that may be exempted are very wide ranging, as the following
list illustrates: defence; communications with the royal family; all politi-
cal advice; international relations; relations between the parliaments
and assemblies of the United Kingdom, Scotland, Wales, and Northern
Ireland; the economy; investigations by the police and customs and
excise; court records; commercial information; health and safety; and
all personal information and information provided to government in
confidence. It will be apparent that this list includes any information
relating to the formulation of government policy and investigations and
proceedings carried out by a public authority. This exemption has been
made subject to a test in order to deter public authorities from routinely
suppressing such information. It was argued that a higher threshold of
substantial prejudice (as applies in Scotland) would have been more effec-
tive in encouraging disclosure.
Under the FOI Act 2000, the Information Commissioner performs
an important function in overseeing the application of the Act. Should
a matter be contested, the Commissioner is empowered to rule that
material should be made available in the public interest, and an enforce-
ment notice can be issued, but the minister retains an ultimate veto over
any such decision.62
An important test case concerned the freedom of information
requests which were made to force the disclosure of the advice given
to the Prime Minister by the Attorney-General in March 2003 on the
controversial matter of the legality of the second war against Iraq.
Despite its initial argument that the advice from the Attorney-General
was protected by client privilege, the opinion was released by the gov-
ernment in May 2005. The Commissioner later served a single enforce-
ment notice in May 2006 requiring the disclosure of some, but not
all, of the information relating to the advice that had been requested
62 Section 53.
under the Act. He also ruled, after balancing the issues by applying the
prejudice test, that sufficient information had been disclosed by the
government.63
E-GOVERNMENT REVOLUTION
From cradle to grave, the encounter with information communication

technology (ICT) and, in particular, the internet has become a signifi-
cant and an increasing part of everyday experience. The new regime of
openness under the FOI Act 2000, the introduction of publication
schemes, and the sheer quantity of official information available on
the internet have transformed public access to information, but equally
these developments have implications for the accountability and acces-
sibility of public bodies.64
Computers are used universally to store, process, and communicate
large amounts of data, and this technology is well suited to delivering
many government services. The Cabinet Office launched a large-scale
consultation on a policy for electronic democracy based on the prem-
ise that ICT can ‘facilitate, broaden and deepen’ participation.65 As a
result, computer technology is changing the ways in which services
are delivered. For example, websites have been constructed allowing
direct access to many services. The government gateway already allows
many public services to be available online. It has been envisaged that
the staged introduction of such technology as part of an evolutionary
process might ultimately result in fully integrated online government,
which, in turn, would require the radical modification of the structure
and culture of administration to facilitate the introduction of this tech-
nology in the home. ‘From the point of view of the citizen he or she
would not be interacting with individual government departments any
longer but with “Government” as a single entity.’66
63 See ICO press release at: www.oco.org.uk.
64 S Ward and T Vedel, ‘Introduction: The Potential of the Internet Revisited’
(2006) 59 Parliamentary Affairs 212.
65 In the Service of Democracy: A Consultation Paper on a Policy for Electronic Democracy
(Cabinet Office, July 2002).

66 J Morison, ‘Modernising Government and the E-government Revolution:
Technologies of Government and Technologies of Democracy’ in N Bamforth and

P Leyland (eds), Public Law in a Multi-Layered Constitution (Oxford, Hart Publishing,
2003) 177.
E-Government Revolution 187
A practical issue which is crucial to the general application of ICT

concerns the extent of Internet access. Before government bodies at
central and local level can depend upon the Internet, an even play-
ing field is needed in the form of universal access to computers and
a general capacity for citizens to connect online. It is estimated that
86 per cent of UK households currently have access to the internet,67
but the challenge is to overcome the difficulty of extending internet
usage without introducing a form of social exclusion affecting disad-
vantaged groups (the poor, the elderly, individuals with limited literacy),
who may well be particularly reliant on government and local govern-
ment services. As Morison states:
Ideas of separation of powers, rule of law and basic principles of legality
do not seem to have troubled the information systems engineers. From the
standpoint of formal constitutional theory, not only are there issues over the
penetration of the voluntary and private sector into government but also
there should be concerns over the deployment of information gathered in
one (public) context within another (private) one and vice versa … [giving]
rise to a whole host of other issues about privacy, data protection and con-
fidentiality and human rights.68
The Internet has impacted on public engagement with political pro-
test and debate through weblogs. It presents the possibility of flash
mobilisation of opinion, but equally this technology is capable of
being subverted by organised crime, extremist parties, and terrorist
organisations. Although the handling of personal data is controlled
under the Data Protection Act 1998, the Internet itself is largely self-
regulated. Ofcom has a role in regulating competition but the Internet
is placed beyond the reach of the Communications Act 2003. Internet
regulation consists mainly of a series of regimes of self-regulation,
which have been developed to apply to the different technical layers
of delivery.69
67 www.ons.gov.uk/ons/dcp171778_412758.pdf.
68 Morison, above n 66, 179.
69 R Collins, ‘Networks, Markets, Hierarchies: Governance and Regulation of
the Internet’ (2006) 59 Parliamentary Affairs 325.

CONCLUSION
Enormous power is focused on the office of Prime Minister. The most

important political decisions are generally taken not by the full Cabinet,
but through Cabinet committees, many of which are chaired by the
Prime Minister, and the policy which goes before these committees
is frequently drawn up by advisers in the Prime Minister’s office at 10
Downing Street, together with inputs from close political allies inside
and outside of government. Indeed, ‘elective dictatorship’ is useful
shorthand for the executive dominance which is a central characteristic
of the UK constitution. It refers to the ease with which the government
is able to secure a majority in Parliament for nearly all legislative pro-
posals. The Prime Minister can control the parliamentary party through
the power exercised by the party whips. The ascendancy of the Prime
Minister over domestic politics is further boosted by extensive powers
of patronage, including the uncontested right to appoint and dismiss
ministers.
Constitutional safeguards exist, but they are of limited effect. For
example, the convention of individual ministerial responsibility requires
the Prime Minister, ministers, and civil servants to appear before Par-
liament and before parliamentary committees to be interrogated on
matters of policy. Members of Parliament may be constrained from
asking searching questions by narrow guidelines, which inhibit officials
in their responses. Official secrets legislation can be invoked when
treading on the most sensitive and controversial aspects of the policy
process. Also, the inquisitors on a parliamentary committee may be fol-
lowing an agenda dictated not by the qualitative aspects of the matter
before them, but by political considerations identified by government
or opposition whips. The FOI Act 2000 extends access to information
and provides a mechanism, under the supervision of the Information
Commissioner, to obtain the release of documents, but many legitimate
areas of scrutiny are placed beyond its scope. Finally, a high-quality
permanent civil service may be counted as one of the nation’s supreme
constitutional assets. The attempts by successive governments to mod-
ernise the service by the imposition of free market disciplines associ-
ated with NPM and e-government has also had the effect of redefining,
and, at the same time, attenuating, traditional channels of constitutional
accountability.
Conclusion 189
FURTHER READING
Birkinshaw P, ‘Regulating Information’ in J Jowell, D Oliver and

Blick A and Jones G, Premiership: The Development, Nature and Power of the
Office of the British Prime Minister (Exeter, Imprint Academic, 2010).
Daintith T, ‘Spin: A Constitutional and Legal Analysis’ (2001) 7 European
Public Law 593.
Davies A, ‘Beyond New Public Management: Problems of Accountabi-
lity in the Modern Administrative State’ in N Bamforth and P Leyland
(eds), Accountability in the Contemporary Constitution (Oxford, Oxford
Lord Hailsham, The Dilemma of Democracy (London, Fontana, 1978).
Harlow C and Rawlings R, Law and Administration, 3rd edn (Cambridge,
Hennessey P, The Prime Minister: The Office and its Holders since 1945
(London, Penguin, 2001).
Hennessey P, Whitehall, 2nd edn (London, Pimlico, 2001).
Leyland P and Donati D, ‘Executive Accountability and the Changing
Face of Government: UK and Italy Compared’ (2001) 7 European
Public Law 217.
Marshall G, Constitutional Conventions: The Rules and Forms of Political Ac-
countability (Oxford, Oxford University Press, 1984) ch 4.
Morison J, ‘Models of Democracy: From Representation to Participa-
tion’ in J Jowell and D Oliver (eds), The Changing Constitution, 6th edn
Rawlings R, ‘A Coalition Government in Westminster’ in J Jowell,
D Oliver and C O’Cinneide (eds), The Changing Constitution, 8th edn
Tomkins A, The Constitution after Scott: Government Unwrapped (Oxford,
Woodhouse D, ‘Ministerial Responsibility’ in V Bogdanor (ed), The British
Constitution in the Twentieth Century (Oxford, Oxford University Press,
2003).
House of Commons Political and Constitutional Reform Committee,
Role and powers of the Prime Minister, First Report of Session 2014–15,
HC 351(London, Stationary Office, 2014).
Websites
www.pm.gov.uk/output/Page1.asp
www.cabinet-office.gov.uk/
www.civilservice.gov.uk
civilservicecommission.independent.gov
7
The Constitutional Role of the Courts


Common Law – Statutory Interpretation – Supreme Court – Lord
Chancellor – Red and Green Light Theory – Judicial Review –
Public Private Law Divide – Merits Issue – Human Rights –
Wednesbury Unreasonableness – Proportionality
PART I: SURVEYING THE CONSTITUTIONAL

ROLE OF THE COURTS
INTRODUCTION
T HIS CHAPTER BEGINS by discussing the contribution of

the common law and statutory interpretation in a constitutional
context. The following section examines the historic office of
the Lord Chancellor who has occupied a multi-faceted constitutional
position that was in defiance of any formal conception of separation
of powers. The UK constitution has lacked any clear separation of
powers, but the extent to which Parliament, executive, and judiciary are
in an ordered relationship with one another is of central importance
to any constitutional concept of checks and balances. We will see that
the re-designation of the ministerial position from Lord Chancellor’s
Department, first to a Department of Constitutional Affairs (2003)
and then to a Ministry of Justice (2007) has been much more than a
nominal change. In fact, the constitutional role of the Lord Chancellor
has been transformed, both in regard to parliamentary and judicial
functions. Moreover, the provisions of the Constitutional Reform Act
2005 have exerted a significant impact in two key areas. Close attention
is devoted to assessing the implications for judicial independence of
the revised procedures for judicial appointments and the introduction
192 The Constitutional Role of the Courts
of a Supreme Court for the United Kingdom to replace the Appellate

Committee of the House of Lords. The second half of the chapter
will consider the role of administrative law and, in particular, judicial
review which has played an increasingly important part as a counter to
the abuse of executive power by central and local government, as well
as a range of other public bodies. Indeed, it will be apparent that the
judicial profile has been heightened even further with the enactment
of the Human Rights Act 1998 which provides a remedy in domestic
courts for the infringement of ECHR rights by public authorities. The
chapter concludes by reviewing the constitutional protection of rights
and by evaluating the possible constitutional and legal consequences of
attempting to replace the Human Rights Act with a British/UK Bill of
Rights.
COMMON LAW AND STATUTORY INTERPRETATION
It was pointed out in Chapters 1 and 2 that the common law is an

important source of the constitution. Judges have the capacity to
develop the law by setting precedents in the cases they decide. Some
important areas of law, for example the law of contract and tort, have
been largely created by judicial decisions. According to Chief Justice
Coke writing in the seventeenth century: ‘[Cases] are not to be decided
by natural reason, but by the artificial reason and judgment of law
which requires long study and experience before that a man can attain
cognizance of it.’1 This principle recognises the collective wisdom of
the judges refined over long periods and organised through precedents.
An alternative, more critical, view would be to question any mystical
notion of judicial omnipotence and would prefer to regard the com-
mon law as the creation of a professional elite of lawyers. The laws
emanating from the courts have tended to reflect many assumptions
and prejudices of judges drawn from a narrow class.2
According to the doctrine of binding precedent, a decision made
by a court in one case is binding on other courts of the same or lower
status in subsequent cases involving similar facts. This rule is meant to
1 Coke, Reports, xii, 65, quoted from F Maitland, The Constitutional History of
England, 10th edn (Cambridge, Cambridge University Press, 1946) 268–69.

2 See J Griffith, The Politics of the Judiciary, 5th edn (London, Fontana, 1997) xv.
Surveying the Constitutional Role of the Courts 193
ensure that similar cases will be decided in a similar manner. It relies

on a system with a hierarchical appellate structure, and the principle
depends on courts following the decisions of the courts above them.
The UK Supreme Court (formerly the Appellate Committee of the
House of Lords) is the highest domestic appellate court and is generally
bound by its previous decisions, although this highest court can make
changes to the law when it considers them necessary.3 This relaxation
of the rules of precedent provides scope at the highest domestic level
to modify the law to bring it in line with changing circumstances and
to avoid injustice. However, the need to weigh any considerations in
favour of judicial innovation against the need for certainty and the
danger of retrospectivity has meant that departures from precedent are
rarely in evidence.
It has been generally acknowledged that the courts will not ignore
or dis-apply statutes, and the courts can review the legality of Acts of
Parliament only where matters of European Union law arise. However,
the courts are responsible for the interpretation of statute law in cases
that are brought before them. It is necessary for judges to perform this
interpretative function when hearing cases at first instance or when
deciding contested points of law on appeal. In other words, Parliament
is supreme in passing laws, while judges have to decide what Parliament
intended when it approved a particular piece of legislation. In situations
where there is ambiguity the Interpretation Act 1978 and the com-
mon law rules of statutory interpretation (the literal rule, golden rule,
and mischief rule, among others) are employed to assist the courts in
performing this4 task. A comparatively recent innovation following the
judgment of the House of Lords in Pepper v Hart4 has been to allow the
use by the courts of the reports in Hansard of debates in Parliament
to clarify the intentions of Parliament in situations where legislation
appears ambiguous or obscure.
Parliamentary sovereignty is, according to Dicey and other influential
commentators, the fundamental rule of the constitution, which recog-
nises that Parliament has the power to pass or repeal any law, including
‘constitutional laws’.5 This doctrine, as was noted in Chapter 3, not only
3 Lord Chancellor’s Practice direction [1966] 1 WLR 1234.

4 [1993] 1 All ER 42.
5 See J Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Oxford,
Oxford University Press, 1999) ch 1.

makes the entrenchment of principles or law difficult but also means

that the will of Parliament predominates over that of the courts. The
position in the United Kingdom has often been contrasted with codi-
fied constitutions. In the United States, the Federal Supreme Court has
a constitutional review function. The decision in Marbury v Madison6
in 1803 established the convention that the US Supreme Court could
declare null and void as unconstitutional any statute or action of the
federal or state governments which it considered conflicted with the
supreme law of the constitution. This convention had the effect of
establishing a principle of judicial sovereignty, giving the Court power
to declare actions of other branches of government unconstitutional.
Any such decision by the US Supreme Court will be binding on federal
and state institutions. In exercising this function, there have been many
occasions when the Court has been called upon to adjudicate at the cen-
tre of the political process. The US Supreme Court has to decide finally
the legality of contentious political issues ranging from racial segrega-
tion in schools7 to the legitimacy of the presidential election process.8
Some academic commentators and judges have suggested that there
might be limits to Parliament’s legal sovereignty:
[I]t is not unthinkable that circumstances could arise where the courts may
have to qualify a principle established on a different hypothesis of constitu-
tionalism. In exceptional circumstances involving an attempt to abolish judi-
cial review or the ordinary role of the courts, the Appellate Committee of
the House of Lords or a new Supreme Court may have to consider whether
this is a constitutional fundamental which even a sovereign Parliament acting
at the behest of a complaisant House of Commons cannot abolish.9
Judicial review has been deployed as a way of checking a trend by which
Parliament grants ministers sweeping delegated powers by the use of
what are called ‘Henry VIII clauses’.10 The Legislative and Regulatory
Reform Act 2006 was the focus of particular concern, because in its
6 5 US 137 (1803).
7 Brown v Board of Education of Topeka 347 US 483 (1954).
8 Bush v Gore 531 US 98 (2000).
9 Lord Steyn, in Jackson v Attorney-General [2005] UKHL 56 at 102; see also Lord
Woolf, ‘Droit Public English Style’ [1995] PL 57 at 68; T Allan, Law, Liberty and
Justice: The Legal Foundations of British Constitutionalism (Oxford, Clarendon, 1993) 286.
10 W Wade and C Forsyth, Administrative Law, 11th edn (Oxford, Oxford
University Press, 2014) 729.

original form this measure proposed that ministers would have the
power to alter any law passed by Parliament (thus going far beyond
the Deregulation and Contracting Out Act 1994, which also give quite
wide discretionary powers to ministers in a particular area). But should
the judges depart from the sovereignty of Parliament established under
the 1689 Bill of Rights? Any refusal by the courts to apply valid legisla-
tion would be a radical departure from constitutional principle and it
would amount to a highly controversial development. This would mark
a shift in the current balance of the constitution away from the execu-
tive, which is notionally accountable to an elected Parliament. Further,
the danger is that a government with a majority in Parliament might
respond by seeking to curb judicial authority.
The United Kingdom still lacks a codified constitution but, with the
introduction of so much legislation with constitutional implications, the
position has changed in recent years. The European Communities Act
1972, under sections 2 and 3, qualified the doctrine of sovereignty by
recognising that a competing source of law was judicially enforceable
in the courts. The English courts must put into effect laws passed by
European Union institutions11 even to the extent of suspending the
provisions contained in domestic legislation. Moreover, the interpreta-
tive powers of the courts have been extended by the adoption of a rule
of construction approach, which holds that words in a statute should be
read to have a meaning that is consistent with Community law, even if
this involves a departure from the language used in the statute.12
The Human Rights Act (HRA) 1998 has modified the position of the
courts by incorporating the European Convention on Human Rights
(ECHR) into domestic law. Parliamentary sovereignty is not directly
compromised by the HRA 1998, but the ECHR may be regarded as
equivalent to a domestic bill of rights because, in effect, Convention
rights become part of domestic law by requiring public bodies to have
regard to Convention rights in their dealings with members of the
public. In yet another context, devolution has introduced a new kind of
constitutional jurisdiction by requiring the courts to oversee the limits
of the powers conferred as part of the devolution arrangements. There
11 See R v Secretary of State for Transport, ex parte Factortame (No 2) [1991] 1 AC 603,
discussed in Chapter 3 above.

12 See Lord Diplock in Garland v British Rail Engineering Ltd [1983] 2 AC 751.
is further discussion of the impact of the HRA 1998 and the courts and
devolution in the sections below.
REFORMING THE OFFICE OF LORD CHANCELLOR
The ancient office of Lord Chancellor, which can be traced back to the
time of the Norman Conquest, exercised a combination of judicial,
executive, and parliamentary functions.13 Until quite recently, the office
conflicted with the idea of separation of powers. At one and the same
time, the incumbent wore three hats. He or she was head of the judi-
ciary, with a right to sit on the highest domestic appellate courts. He
or she was not only a member of the House of Lords, but performed
the function of Speaker. Finally, he or she was a prominent member
of the Cabinet, as head of the executive department formerly known
as the Lord Chancellor’s Department, which was responsible for mak-
ing judicial appointments and for the running of the courts.
In 2003, it was announced by the then Labour government that the
Lord Chancellor’s position and the Appellate Committee of the House
of Lords would be modified to address the anomalies relating to the
overlapping of powers just alluded to. The impact of other constitu-
tional reforms, particularly conflicts between this anachronistic office
and the need to conform to ECHR principles introduced into domes-
tic law by the HRA 1998, was another underlying reason for making
these changes. While recognising that the Lord Chancellor’s position
conflicted with any notion of separation of powers, it is important to
remember that conventions operated which determined the previous
boundaries of conduct in constitutional matters, and these rules pre-
vented the Lord Chancellor from having an entirely political role. For
example, although the Lord Chancellor was a senior Cabinet member,
it was established that in his former capacity as a judge, he would not
sit as a member of the judicial panel of the House of Lords in cases
involving political controversy.
Further, as the minister responsible for courts and judges, a legal
background was considered essential for a Lord Chancellor. This special
nexus with the legal profession was encouraged so that the views of
judges and lawyers could be voiced with some authority at the Cabinet
13 D Woodhouse, The Office of Lord Chancellor (Oxford, Hart Publishing, 2001).

table. In theory, the Lord Chancellor was capable of protecting the

judicial branch from executive interference, particularly when it came
to resource allocation (the extent to which this was true depended to
a considerable degree on the personal authority of the office-holder).
After the 2005 reforms it was unclear how far a specifically legal back-
ground would be needed in future. The Constitutional Reform Act
2005 provides that any candidate for the office of Lord Chancellor
must be ‘qualified by experience’. As well as a professional legal back-
ground, the Prime Minister in making an appointment may now take
into account parliamentary, ministerial and academic legal experience.
Under the revised arrangements, the Lord Chief Justice is given the title
President of the Courts of England and Wales. He or she is head of the
judiciary, with the authority that comes from being appointed as chief
judge. In this new capacity, he or she is responsible for ensuring that the
views of the judiciary are effectively represented.
Certain traditional aspects of the position have been retained, includ-
ing the title Lord Chancellor, but at the same time obvious anomalies
that conflicted with the separation of powers have been removed. The
position can now be summarised as follows:
1. The Lord Chancellor/Secretary of State for Justice is the Cabinet
minister at the head of the Ministry of Justice (the former Lord
Chancellor’s Department/Department of Constitutional Affairs),
which has responsibility for the appointment of judges, the admin-
istration of the courts, the provision of legal aid and (since 2007) for
the prison service. The Lord Chancellor is directly accountable to
Parliament for the efficiency and effectiveness of the courts system
and of the prison service. In common with all other ministers, the
Lord Chancellor must be a Member of Parliament, but there is no
longer a requirement to be a member of the House of Lords. The
most recent appointments to the office, Michael Gove, Christopher
Grayling, Kenneth Clarke and Jack Straw, have remained MPs able
to represent the Ministry of Justice in the House of Commons.
2. The Constitutional Reform Act 2005 formally recognises a princi-
ple of judicial independence. The legislation requires the Secretary
of State for Justice and all those involved in the administration of
justice, including in the appointment of judges, to be under a duty
to respect and maintain judicial independence.14
14 Constitutional Reform Act 2005, s 3.
3. The conflict of roles in Parliament between acting as a minister and

presiding over the Upper House has been eliminated.15 The House
of Lords is now presided over by ‘the Lord Speaker’. B aroness
Hayman, the first office-holder, was elected by members in July
2006 by an alternative vote system for an initial term of five years.
The office holder receives a salary of £101,000. In 2011 Baroness
D’Souza was elected Lord Speaker after her predecessor announced
she would not serve for another term.
4. The Lord Chancellor/Secretary of State for Justice is no longer
eligible to sit as a judge on the judicial panels of the UK Supreme
Court and Privy Council. The UK Supreme Court is presided over
by a President and Deputy President.
APPOINTING AND DISMISSING JUDGES
A crucial area that has been transformed by these changes concerns the
role of the Lord Chancellor/Secretary of State for Justice in relation to
judicial appointments. The traditional system for judicial appointments
that has now been replaced lacked transparency. This was because it was
based on consulting existing judges to obtain informal recommenda-
tions. Nevertheless, it was accepted that the recommendations made
by the Lord Chancellor for senior judicial appointments (or recom-
mendations by the Prime Minister for the Court of Appeal and House
of Lords) went to the best-qualified individuals on the basis of their
performance as barristers or solicitors rather than on the basis of any
declared political affiliation.16
When it became clear that the judicial appointments system was
going to be radically changed there was concern that the process could
become politicised.17 For example, it is quite common under codified
constitutions for the executive to propose and the legislature to approve
15
Constitutional Reform Act 2005, s 18.
16
Nevertheless, it has been argued that political bias is discernible in significant
judicial decisions. See, eg, J Griffith, Judicial Politics since 1920 (Oxford, Blackwell,
1993).
17 For further discussion see M Tushnet, ‘Judicial Accountability in Comparative
Perspective’ in N Bamforth and P Leyland (eds), Accountability in the Contemporary

Constitution (Oxford, Oxford University Press, 2013).
appointments to the higher judiciary.18 There were very good reasons

for not imitating the procedure in the United States and involving
Parliament actively in the appointment process. The Constitution of
the United States was drafted to incorporate separation of powers as a
core doctrine. In regard to the appointment of the most senior judges
who sit on the US Supreme Court, the power to nominate candidates
is given to the executive in the form of the President. On the other
hand, the Senate, as part of the legislature, has the duty of confirm-
ing presidential nominations.19 However, even though justices of the
US Supreme Court once confirmed remain in place for their lifetime,
this procedure has not been a guarantee of independence and political
neutrality. The position has been exactly the reverse in regard to the
US Supreme Court. The US Supreme Court exercises a constitutional
review function and, unlike the UK courts, it has the power to police
the constitution and to declare legislation invalid. This has projected the
court into the forefront of political controversy on many occasions.20
Most obviously in recent times it was the US Supreme Court that finally
had to decide the validity of the contested presidential election result in
the year 2000 in the case of Bush v Gore.21 The political dimension of the
Supreme Court’s role has resulted in deliberate attempts by US Presi-
dents to select judicial candidates with views that appear to correspond
to their own.22 An obvious danger in making any such reform in the
United Kingdom to the system of judicial appointments was introduc-
ing any form of political interference into the process.
The central objection made by Professor Griffith to the types of
appointments to the judicial bench during the 1970s and 1980s con-
cerned the elevation to the judiciary of a public school Oxbridge-
educated elite section of society, nearly all of whom experienced a
similar legal training.23 More recently critics, for example Lady Hale,
18 Art 104 of the Italian Constitution is one such example.

19 Art II, s 2. The Senate will hold hearings to examine the suitability of can-
didates but presidential nominations are ratified unless there are blemishes to per-
sonal reputation: S Finer, Five Constitutions (London, Penguin, 1979).
20 M Vile, Politics in the USA (London, Hutchinson, 1976) 242; R Denenberg,
Understanding American Politics, 3rd edn (London, Fontana, 1992). See Chapter 6.
21 531 US 98 (2000).
22 M Tushnet, The Constitution of the United States: A Contextual Analysis, 2nd edn
(Oxford, Hart Publishing, 2015) 128ff.

23 J Griffith, The Politics of the Judiciary, 5th edn (London, Fontana, 1997) 18ff.
no longer view the problem mainly in terms of social class, but rather
identify the need to appoint judges who are more representative of
society as a whole.24 Recent Lord Chancellors have recognised the
importance of placing increasing emphasis on equality and diversity
as well as the accepted qualities of integrity and judicial quality under-
stood in terms of intellectual ability.25 Despite the changes to the
appointments system discussed below, and close monitoring of who is
appointed, there is still an under-representation of women and ethnic
minorities at the highest judicial levels.26
The task of selecting judges is now in the hands of a Judicial
Appointments Commission (JAC) for England and Wales, which has
been established under the Constitutional Reform Act 2005 as an inde-
pendent non-departmental body. This body is itself largely appointed
by open competition and it is responsible for selecting judges up to and
including High Court judges. It comprises 15 commissioners in total.
There are five lay members, five judges (three from the Court of Appeal
or High Court, one circuit judge and one district judge), two profes-
sional members (one barrister and one solicitor), one lay magistrate, and
one tribunal member. The chair must be one of the lay members. Com-
missioners serve for between three and five years. The initial appoint-
ments to the Commission included seven women and two from ethnic
minorities, one of whom chaired the Commission.
The weight attached to recommendations by the JAC for England
and Wales is of central importance, especially for appointments to the
higher judiciary. This issue comes down to whether the power to select
that is given to the JAC can be undermined by the ratification process.
For appointments up to and including those to the High Court, the
Secretary of State will inform the JAC when a vacancy arises. After the
selection and interviewing process has been carried out by the JAC, a
single name for each vacancy, together with reasons for the selection,
will be forwarded to the Lord Chancellor. The Lord Chancellor can
accept the recommendation and, indeed, in the vast majority of cases
selections will be approved. However, the Lord Chancellor can ask the
24 Lady Hale, ‘Equality in the Judiciary’, Kuttan Menon Memorial Lecture,
21 February 2013; www.supremecourt.uk/docs/speech-130221.pdf.

25 See, eg, Lord Falconer, Lord Chancellor, Constitutional Reform Speech,
University College London, 8 December 2003.

26 K Malleson, ‘Diversity in the Judiciary: The Case for Positive Action’ (2009)
36 Journal of Law and Society 376.

JAC to reconsider, if it appears that the evidence submitted does not

demonstrate suitability. The Lord Chancellor can reject a candidate or
require reconsideration if there is some evidence that the nominated
candidate cannot be considered for judicial appointment, or if he or she
considers that the competition has not been conducted properly. In sit-
uations where the initial choice is not accepted the matter goes back to
the JAC. The original candidate can be confirmed, or an alternative can-
didate can be selected with reasons. The recommended candidate goes
back to the Secretary of State who can only reject a candidate if there is
some evidence making the candidate unsuitable for consideration. Any
such reasons must be set out in writing. If a candidate is rejected the
Lord Chancellor is obliged to accept the next recommended candidate.
It will be remembered that the Act of Settlement 1701 is regarded
as a significant step in securing judicial independence, as it introduced
security of tenure for judges who have been appointed ‘during good
behaviour’ ever since. In modern times judges have a retirement age
(currently 70 for High Court, Appeal Court, and House of Lords
judges) but parliamentary action is necessary to remove senior judges,
and none have been dismissed in recent times. In addition, the Consti-
tutional Reform Act 2005 sets out procedures for exercising disciplin-
ary powers over judges and for removing judges. At the same time as
establishing a system of appointments and discipline, the 2005 Act
introduces complaints procedures overseen by a judicial appointments
ombudsman who must be a non-lawyer.
A SUPREME COURT FOR THE UNITED KINGDOM
The Appellate Committee of the House of Lords was replaced by

a UK Supreme Court with a broadly similar appellate jurisdiction in
October 2009.27 The Supreme Court was not established as a consti-
tutional court,28 although, of course, it presides over cases that raise
27 Constitutional Reform Act 2005, Part 3.

28 For comparison with constitutional courts and supreme courts in other juris-
dictions, see: A Harding and P Leyland (eds), Constitutional Courts: A Comparative
Study (London, Wildy, Simmonds and Hill, 2009); J Goldsworthy (ed), Interpret-
ing Constitutions: A Comparative Study (Oxford, Oxford University Press, 2006);
B Dickson (ed), Judicial Activism in Common Law Supreme Courts (Oxford, Oxford
c onstitutional issues. Furthermore, an important area of constitutional

jurisdiction relates to the fact that the Supreme Court has taken over
from the Judicial Committee of the Privy Council jurisdiction over
‘devolution issues’ arising from the Scotland Act 1998, Government of
Wales Act 1998, and Northern Ireland Act 1998. While the courts fre-
quently make judgments which develop the principles of the common
law, the courts, and in particular the UK Supreme Court, do not have
a general power of constitutional review. The panel of judges assigned
initially to the court included the serving Lords of Appeal in Ordinary
(Law Lords). As noted in Chapter 3, although the newly appointed Jus-
tices of the Supreme Court are given the title ‘Lord’ they are not able
to sit or vote in the House of Lords. At its head the new court has a
President and a Deputy President.
For the appointment of judges to the Supreme Court a selection
commission is specially convened for the purpose which must include
the President and Deputy President of the Supreme Court and mem-
bers of the JACs for England, Scotland, and Northern Ireland.29 To
ensure that all parts of the United Kingdom have appropriate rep-
resentation on the Supreme Court in terms of expertise concerning
their jurisdictions, the Commission must consult the First Minister in
Scotland, the Welsh Assembly, and the Secretary of State for Northern
Ireland before making a recommendation of a suitably qualified person
to the Lord Chancellor. The Lord Chancellor has then to consult fur-
ther with senior judges and representatives from the devolved parts of
the United Kingdom before reaching a decision on the Commission’s
recommendation. If the Lord Chancellor approves of the Commis-
sion’s choice he can approve (‘notify’) the selection, which then goes
on to be finally approved by the Prime Minister. At this point the Lord
Chancellor also has the option, if certain specified grounds are satisfied,
of rejecting the selection or requiring a reconsideration, but he or she
has no power to choose an alternative candidate. For the appointment
of Heads of Division of courts and Appeal Court judges, the JAC must
set up a selection panel which reports its selection to the Lord Chancel-
lor who has broadly similar options regarding acceptance, rejection, or
asking for reconsideration.
To briefly summarise the position following the implementation of
the Constitutional Reform Act 2005: the Lord Chancellor has shed
29 Constitutional Reform Act 2005, ss 26 and 27.

Administrative Law and Judicial Review 203
many of the traditional powers associated with the office, and the
relationship between the Lord Chancellor, the judiciary, and the legal
profession has been radically transformed. The most senior judge of
the Supreme Court presides as President of the Supreme Court, while
the Lord Chief Justice occupies a special role as head of the judiciary
and legal profession. A new Judicial Appointments Commission has
been established to play a predominant role in the selection of judges.
Taken together, these are far-reaching reforms of great constitutional
importance. In consequence, it will be crucial that, in practice, the safe-
guards set out in the Constitutional Reform Act 2005 are effective in
underlining a necessary separation of powers and functions between
the executive branch and the judicial branch.
We have seen in this section that the role of the courts has been
transformed in recent years. The government responded with impor-
tant reforms. It decided to introduce a much stricter separation of
powers, but to keep sovereignty in the hands of Parliament. The ancient
office of Lord Chancellor has been reformed. The Constitutional
Reform Act 2005 introduces a new system of judicial appointments,
placing the main responsibility for appointments with an independent
appointments commission. Serving judges have lost the right to be sit-
ting members of the House of Lords in its legislative capacity. The Judi-
cial Committee of the House of Lords has been replaced by a Supreme
Court, with similar composition and powers to its predecessor.
PART II: ADMINISTRATIVE LAW AND JUDICIAL REVIEW
INTRODUCTION TO ADMINISTRATIVE LAW
At a time when the executive has become extremely powerful through

what in this book we have called ‘elective dictatorship’, many commen-
tators believe that judicial review has come to assume particular impor-
tance as a counterbalance to executive power. In particular, it performs
a crucial constitutional role in the absence of any other mechanism
for legislative review (eg a constitutional court). While some kind of
oversight function is desirable, the extent to which the courts are able
to intervene in the routine processes of government is highly contro-
versial. We will see that the courts have come to exercise what is termed
a supervisory jurisdiction, but we shall also see that a dministrative law
needs to be understood more broadly in terms of the processes of

policy implementation.
In recent years one highly nuanced academic debate has focused
upon the constitutional basis of judicial review. In brief, the so-called
‘ultra vires’ view argued that the ultra vires doctrine forms the basis
for judicial review; in other words, if a decision-maker acts beyond the
powers conferred by legislation the courts simply exercise a supervi-
sory jurisdiction by interpreting the law so as to set limits on statutory
authority.30 On the other hand, the common law view has regarded this
account as inadequate, and rather it maintains that judicial review needs
to be explained beyond looking at legislative intent. It recognises that
wide-ranging principles of judicial review have been developed by the
courts under the common law. This constitutes a sophisticated body
of law that has come into existence independent of the legislature,
and these principles are used to control the actions of administrative
bodies.31
Leaving aside which of these views more accurately describes the
position, administrative law in the United Kingdom is normally con-
ceived around the control function of the courts described by Dicey
under the rule of law. However, in terms of actual practice the imple-
mentation of administrative law is carried out by central and local
government officials, and by private organisations under contract,
with reference to relevant statutory powers contained in primary and
secondary legislation. A network of administrative tribunals deals with
disputes and appeals against decisions taken by officials. In contrast,
continental systems of administrative law, such as those in France,
Italy, Germany, or Spain tend to place much less emphasis on the role
of courts (apart from administrative courts); rather, attention is con-
centrated on the nature of the administrative law (eg droit administratif
in France) which provides the structure and functions of the public
administration.32 This part of the chapter will be in three sections.
30 See, eg, C Forsyth, ‘Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the
Sovereignty of Parliament and Judicial Review’ (1996) 55 Cambridge Law Journal 122.
31 P Craig, ‘Ultra Vires and the Foundations of Judicial Review’ (1998) 57
Cambridge Law Journal 63.

32 See HWR Wade and C Forsyth, Administrative Law, 11th edn (Oxford, Oxford
University Press, 2014) as an exemplar of the UK court-centred approach, eg p 4:

‘The primary purpose of administrative law … is to keep the powers of the govern-
ment within their legal bounds’.
The first section sets out the well-known ‘red light and green light
theory’ of administrative law, which helps to explain the historical
context. The second section provides an account of the current law of
judicial review. The third section discusses the impact of the Human
Rights Act 1998 on the regime of public law with particular reference
to some important cases.
RED LIGHT AND GREEN LIGHT THEORY
In their influential study that begins by tracing the main trends in

administrative law Harlow and Rawlings identify two contrasting mod-
els that are termed ‘red light’ and ‘green light’.33 The former is more
conservative and directed at control; the latter is more liberal/socialist
in orientation and facilitative in nature. The two models developed in
tandem with the emergence of the modern state and serve broadly to
characterise competing approaches to administrative law from the late
nineteenth century until the latter part of the twentieth century. In the
current situation these polarities have been largely replaced by a con-
tinuum of overlapping assumptions, combining elements from red light
at one end of the spectrum to green light at the other. It might be more
accurate to claim that the lights now converge at amber.
The ‘Red Light’ View
The ‘red light’ view is traced back to Professor Dicey and a political
tradition of nineteenth-century laissez-faire (minimal state interference)
theory that embodied a strong suspicion of governmental power exer-
cised by emerging state bureaucracy at central or local government level.
Standing behind such a view was a desire to minimise the encroachment
of the state on the rights (especially property rights) of individuals.
Dicey maintained that the concept of legal sovereignty (we have already
observed that this concept was regarded by him as the fundamental
principle of the constitution) favours the supremacy of law. Parliament
establishes a framework of general rules in society. Dicey’s second
33 C Harlow and R Rawlings, Law and Administration, 3rd edn (Cambridge,

rinciple, the rule of law, was of equal importance to his account of the
p
constitution. For it was this concept that ensured that all public and pri-
vate bodies, as well as individuals, would only act according to the law.
The executive should govern strictly according to the rules set out by
Parliament. The rule of law proposes that the law will operate to con-
tain illegality and abuse, but without necessarily having, or needing, an
explicit moral and political foundation. Dicey did not elaborate any spe-
cial guiding principles for law in general (or administrative law in par-
ticular, of which he was highly sceptical). The philosophy underpinning
the common law was entirely one of pragmatism, that is, of adjustment
to changing circumstances. At its most basic level in the context of
judicial review, intervention by the courts is justified when public bodies
(or any other body or individual) exceed their legal powers (that is, act
ultra vires or abuse their powers) when exercising a public function. If
unchecked, the bureaucratic and executive power of state institutions
or mechanisms will threaten the liberty of us all. Such a view is closely
allied to the idea of a ‘self-correcting democracy’, explained by Craig, in
which law performs an important control function.34 The courts come
to be regarded as part of the constitutional system of ‘checks and bal-
ances’. The grounds of judicial review that have been developed by the
courts might be viewed as the response of the common law.
The modern state, and its attendant baggage of administrative pro-
cedures, guidance, and discretion, was established at the same time as
the emergence of party government. From the outset there have been
pronounced differences in ideological perspective between the main
political parties as the state has evolved. For advocates of the ‘red light’
view, the judiciary was regarded as being autonomous and impartial
and the common law was imbued with its own standards of indepen-
dence and fairness. This meant that the courts could be relied upon as
a kind of referee to adjudicate, not on the political or even the practical
validity of any decision, but simply on the legality of executive action.
Over time, judges have developed principles that have served to keep
law at a step removed from politics; in other words, the courts should
not be usurping the functions of public authorities on matters of fact,
judgement, or policy.35 For example, we will soon see that Wednesbury
34 P Craig, ‘Dicey: Unitary, Self-correcting Democracy and Public Law’ (1991)
106 Law Quarterly Review 105.

35 J Jowell and A Lester, ‘Beyond Wednesbury: Substantive Principles of Admin-
istrative Law’ [1987] PL 369 at 382.

unreasonableness (also known as irrationality) establishes a high hurdle

to overcome in judicial review cases, which are often challenging deci-
sions of public bodies.36
The main function of the judiciary according to the ‘red light’ view
is perceived as interpreting and applying the strict letter of the law. This
conceptualisation of the role of the courts serves the needs of the legal
profession well by perpetuating a separation of law from policy issues,
with the emphasis being placed on the strict construction of statutes
or rules in isolation from their broader contextual framework. The
problem is that the proposal that law can stand aside from politics and
morality is strongly contested. Indeed, opponents of this view maintain
that the ideological position of the judiciary is widely demonstrated by
analysing crucial cases.37
The danger is now more accurately perceived as being that ministers
and officials might tend to shelter behind a body of rules and delegated
powers that have been created to facilitate the tasks of administration.
Thus it is that, in a negative sense, judicial intervention becomes pos-
sible as a kind of safety-net, by taking up the democratic slack in those
areas where parliamentary control is manifestly found wanting. Or by
being activated during those periods when parliamentary opposition is
regarded as being weak and ineffective.
Tribunals and the ‘Green Light’ View
The ‘green light’ perspective is based on an acceptance of a social

democratic view of the state and regards law as an essential tool for
the delivery of communitarian policy objectives. It originates from the
utilitarian tradition of egalitarian and ameliorative social reform.38 The
introduction of policies extending public service provision was sup-
ported by green light theorists. For example, this approach is typified in
the writings of Laski, Jennings, Robson, and Griffiths from the London
36 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
See below under ‘Grounds of Judicial Review’.

37 J Griffith, The Politics of the Judiciary, 5th edn (London, Fontana, 1997).
38 See, eg, S Webb and B Webb, A Constitution for the Socialist Commonwealth of Great
Britain (London, Longmans, Green & Co, 1920).

School of Economics and Political Science.39 Statute law emanating

from Parliament and resulting from the democratic process is regarded
as the method for enabling the implementation of such policies.
A statute is something concrete and can provide, in principle at least,
the proper authority and framework with which to govern consensually.
This position recognises that it is very much more difficult to achieve
an adequate and sustainable provision of services without having the
law on the side of the administration. Law comes to embody, in equal
measure, both political legitimacy and moral persuasiveness. The contri-
bution of the state is encouraged as the state bureaucracy is regarded as
an effective means of facilitating the delivery of communitarian goals.
It does this by assuming responsibility for at least basic minimum stan-
dards of provision, including housing, education, health, social security,
and local services.
The emergence of a modern conception of administrative law
not only coincides with the political and economic changes that have
witnessed the development of the modern state, but it is inseparably
linked to these changes. The expansion of the state has given rise to
the centralisation of powers in some areas, for example, central gov-
ernment, the civil service, agencies (such as the Prisons Agency or the
Benefits Agency), and quasi-government bodies; and the broad territo-
rial diffusion of power in others, for example, the emergence of local
government as an important focus of decision-taking and spending in
the nineteenth and twentieth centuries (most recently marked by the
emergence of a Parliament in Scotland and Assemblies in Northern
Ireland and in Wales). In sum, power that is exercised by public bodies
has greatly expanded; accordingly, the mechanisms for accountability
have assumed a new importance, particularly since the 1960s.
It has been an equally important objective for advocates of what is
termed the ‘green light’ view to establish organised institutions that are
properly accountable, and at the same time capable of delivering these
services effectively. The growth of bureaucracy in the public domain
has meant a proliferation of delegated legislation, administrative rules,
codes, and circulars. Some critics have argued that the emergence of
39 R Rawlings, ‘Distinction and Diversity: Law and the LSE’ in R Rawlings (ed),
Law, Society and Economy Centenary Essays for the London School of Economics and Political
Science 1895–1995 (Oxford, Oxford University Press, 1997) 5ff; W Robson, Justice
and Administrative Law, 3rd edn (London, Stevens, 1951).
strong party government (or ‘elective dictatorship’) has meant that

Parliament no longer operates as anything like an adequate forum of
accountability.40 As will have been apparent from the discussion in
Chapter 5, these shortcomings are largely because both Houses may
fail to provide effective mechanisms for scrutiny of the executive.
The question is whether citizens have sufficient rights in the face of
omnipresent central and local government powers or, indeed, those
powers exercised by bodies now in the private sector, for example, the
privatised utilities.
The response from ‘green lighters’ to accountability issues has not
been to rely primarily on the courts for redress but to build into the
decision-making process certain rights, and a degree of participation
by the citizen. We can see a reflection of this view in the growth of
administrative tribunals, introduction of ombudsmen and, perhaps
to a lesser extent, in proposals centring on freedom of information,
Citizen’s Charter/‘Service First’, and the public sector benchmarking
mechanism. The central concern has been to confer, for example, social
welfare rights and a general empowerment of individuals in regard to
the exercise of powers by public bodies. Equally, ‘green light’ advo-
cates might wish to see the grounds of review in the courts developed
to be more precisely focused on the detailed workings of particular
administrative structures, for example, in the areas of social security or
immigration control. Additional rights and powers to work through tri-
bunals might be advocated, as these bodies can act as decision-makers/
facilitators, as well as encouraging internal dispute resolution.
Tribunals might be regarded as the archetypical ‘green light’ rem-
edy because of their ability to deal with a large throughput of cases
speedily and informally. Until recently, tribunals tended to be relatively
specialised bodies custom-designed by individual statutes to perform a
particular adjudicative function in respect to an area of administration.
Specific tribunals, by hearing a multiplicity of cases in crucial areas
such as social security, employment, immigration or mental health, kept
the courts unburdened. However, following the implementation of
the recommendations contained in the Leggatt Report there has been
40 See, eg, Report on Ministers’ Powers, Cmnd 4060 (London, HMSO, 1932); Report
of the Hansard Society Commission on Parliamentary Scrutiny, The Challenge for Parliament.
Making Government Accountable (London, Hansard Society, 2001).
a complete overhaul of tribunals in the UK to create a single tribunal

service.41 It consists of a generic first tier able to hear cases from any
of the fields now incorporated as part of the service, and the Upper
Tribunal which mainly has an appellate jurisdiction.42 This change was
partly in response to the ECHR’s Article 6 requirements of fair trial,
now incorporated under the Human Rights Act. In order to provide
a much clearer separation of powers tribunals are now independent
of the departments which make the decisions under review, and tri-
bunal judges have been made fully independent of the executive as
they are appointed by the Judicial Appointments Commission. In
R (on the application of Cart) v Upper Tribunal 43 the Supreme Court held
that certain categories of decisions by the Upper Tribunal would not
be subject to routine judicial oversight and be amenable to review only
when raising an important point of principle. The upshot is that in the
United Kingdom today there is an essentially self-contained tribunal
service which bears more than a passing resemblance to the system of
administrative courts found in continental systems.44
We can see that this ‘green light’ view implicitly challenges and cor-
rects some of the misconceptions that may arise from the ‘red light’
view. It does this not by relying on the pragmatism which characterises
the common law, but by adopting an instrumental approach (that is, it
concentrates on the effectiveness of the measures in question). Admin-
istrative law becomes accepted as part of the total apparatus of govern-
ment, not something largely distinct from it. It can be made to act as a
regulator and facilitator to enable social policy to be implemented effec-
tively and fairly. The ‘green light’ approach continues to be manifested
in the contribution of administrative tribunals and statutory regimes of
regulation (eg applying to public utilities and railways).
In recent decades there has been a fundamental change affecting the
nature of government, with a widespread tendency towards marketisa-
tion through the privatisation of many services that were once in the
public sector and the development of public–private partnerships, and
so on. Harlow and Rawlings recognised that by the 1980s in an era of
41 Sir Andrew Leggatt, Tribunals for Users: One System, One Service (HMSO, 2001).
42 See the Tribunals Courts and Enforcement Act 2007.
43 [2011] UKSC 28.
44 L Brown and J Bell, French Administrative Law, 5th edn (Oxford, Oxford Uni-
versity Press, 1998).

reinvented government it was no longer accurate to see things in terms

of a polarisation of ‘red light’ and ‘green light’ views. In the contem-
porary arena the clear ideological divide of right and left between the
main political parties has virtually disappeared. The major parties have
adopted the principles of market capitalism to various degrees. Despite
the fact that the higher judiciary still tend to be drawn from an Oxbridge
elite, it is no longer clear that the affiliations of judges can still be mea-
sured in terms of support for one political standpoint to the detriment
of others, or one view of the constitution. Indeed, during the 1980s
and 1990s under the Conservative governments of Margaret Thatcher
and John Major, the courts entered the political fray as a counterweight
to government. They did so with a number of decisions that had the
effect of challenging controversial policies (illustrated in the section on
judicial review cases below). In following a more interventionist course
of action the courts have projected themselves as a separate branch of
government.
THE IMPACT OF JUDICIAL REVIEW
By requiring public bodies to act lawfully, judicial review imposes legal

limits to decision-making in the public domain. The grant of judicial
review is discretionary in the sense that claims (formerly called appli-
cations) for judicial review are assessed by a judge who will consider
whether they are sufficiently well founded to proceed. This remedy
is available only to a claimant who has exhausted all other avenues of
redress such as informal complaints procedures, ombudsmen, statutory
rights of appeal, and so on. And it must normally be sought within a
strict time limit that requires that an application be made promptly and
in any event within three months from the time the decision was taken.
The growing importance of judicial review would appear to be
reflected in a spectacular increase in the number of cases coming
before the courts. For example, between 1982 and 2005 the number
of applications for permission for judicial review increased from 685
to over 5,000. In the next five years the figure had more than trebled
to 16,300 for 2010.45 There are approximately the same numbers of
45 Judicial and Court Statistics 2010, Ministry of Justice, 144. Only a fraction of
these applications proceed to a full hearing.

claims concerning local government as central government. In the

1980s to reduce susceptibility to review civil servants were sent a circu-
lar entitled ‘The Judge over your Shoulder’, which contained advice on
how to avoid obvious pitfalls when making decisions in the context of
statutory powers. However, although the numbers of applications have
steadily risen these statistics are, in themselves, somewhat misleading.
First, this is because in order to filter out unmeritorious cases judicial
review is a two-stage process, and only a small proportion of claims
reach the final substantive stage in the form of a full court hearing.
(For example, a public authority may prefer to settle and reconsider
its decision or a claimant may withdraw if faced with the prospect of
losing at the hearing.) Second, rather than showing an even distribution
across the entire spectrum of government activity, the statistics reveal
that a large percentage of applications are concerned with immigration
cases. Third, although the number of cases has increased greatly in
recent years the caseload represents a tiny fraction of decisions taken by
public bodies (well under one per cent). It might be concluded from the
bare statistics that there is uneven access to judicial review, and that, if
government administration is taken as a whole, its impact is apparently
not of central importance. On the other hand, the possibility of judicial
review lurking in the background almost certainly has a deterrent effect
and encourages decision-making bodies to act lawfully.
The common law recognised the prerogative remedies (recently
renamed: original names in italics) of a quashing order (certiorari), a
prohibiting order (prohibition) and a mandating order (mandamus) which,
together with the equitable remedies of the declaration and injunction,
could be used to control an excess of legal authority. The effect of a
quashing order is to invalidate a decision and make the decision-maker
take the decision again lawfully. A prohibiting order prevents the deci-
sion from being taken. A mandating order requires the public body to
act in a particular way. A declaration sets out the legal position between
the parties without imposing a remedy. Injunctions are usually granted
to prevent a public body from acting in a particular way. However, the
private law remedy of damages, while sometimes available, is rarely
granted in judicial review proceedings. General exposure to financial
compensation would have far-reaching implications for the funding of
public bodies (see the discussion of liability of the Crown in contract
and tort in Chapter 4).
DISTINGUISHING PUBLIC LAW FROM PRIVATE LAW
A series of procedural innovations introduced in the late 1970s greatly

simplified the process for applying (now claiming) for judicial review,
and contributed to the increase in cases coming before the courts. The
House of Lords decided unanimously in O’Reilly v Mackman46 that the
application for judicial review procedure47 had been set up specifically
to deal with public law issues and to impose, in the public interest, safe-
guards against, in Lord Diplock’s words: ‘groundless, unmeritorious or
tardy attacks upon the validity of decisions made by public authorities
in the field of public law.’ The public interest was therefore given prior-
ity over the private. The normal route would be by way of the judicial
review procedure, with a number of limited exceptions being made to
this general rule. A public law issue might be defined by reference to the
authority making the decision: if it is a ‘public’ authority, then it should
be subject to ‘public’ law regardless of the actual power being exercised.
However, the exclusivity principle is subject to certain exceptions, for
example, if the conduct of a public body impacts on private law rights
as well as public law rights, an action can be brought in the ordinary
civil courts.48
Apart from recognising that the judicial review procedure was
directed at the control of public as opposed to private power, it has
been necessary to find a method of distinguishing the public from the
private—a task made more difficult by the increasing overlap between
the two. For example, in what has been termed the ‘contract state’ not
only has there been widespread privatisation and regulation, but also
many governmental services, ranging from prisons to street cleaning
and refuse disposal, are performed by private companies. The Court
of Appeal in R v Panel on Takeovers and Mergers, ex parte Datafin49 was
faced with the dilemma of deciding whether it was the source of
the powers of the organisation which was the crucial factor, or the
nature of the body itself and the public consequences of its decisions.
46 [1983] 2 AC 237.
47 Introduced by Rules of the Supreme Court, Ord 53, later enacted under s 31
of the Supreme Court Act 1981 and revised under the Civil Procedure Rules, Part
54 (in 2000).
48 See, eg, Roy v Kensington and Chelsea and Westminster Family Practitioner Committee
[1992] 1 AC 624.
49 [1987] 1 All ER 564.
In this instance, the Panel on Takeovers and Mergers took the form of
an entirely non-statutory, self-regulating association, set up by persons
having a common interest, which had devised and operated a code of
conduct to be observed in the takeovers and mergers of public compa-
nies. The court held that, bearing in mind that the panel did have gov-
ernment backing and was exercising public duties in the public interest,
it should be subject to the control of public law. However, there has
been a succession of cases where qualifications in the application of
this functions test have seen charitable organisations, regulatory bodies,
and religious organisations falling beyond the ambit of judicial review.50
As will be apparent in the section below, distinguishing between public
and private bodies is relevant to cases with a human rights dimension,
as the HRA 1998 applies directly only to public authorities.51
THE REQUIREMENTS OF STANDING
In order to proceed with a claim for judicial review the claimant must
have standing, which is defined as having ‘sufficient interest’ in the con-
tested matter.52 This hurdle has a useful function in that it deters frivo-
lous or vexatious claims, but if the rules are too narrowly drawn worthy
cases might also be excluded. The extent to which standing has to be
a direct personal interest has been a matter of discussion in a num-
ber of important cases. For example, in Inland Revenue Commissioners v
National Federation of Self-Employed and Small Businesses Ltd 53 the Federa-
tion objected to a decision taken by the tax authorities, who had reached
a deal with a completely unconnected group of casual workers from the
newspaper industry. Although it was held that this group representing
small businesses did not have standing as ordinary taxpayers to mount a
challenge, in an influential judgment Lord Diplock set out a more ‘open’
approach to standing:
It would … be a grave lacuna in our system of public law if a pressure group,
like this federation, or even a public-spirited taxpayer, were prevented by
50 See, eg, R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 2
All ER 853.
51 See Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank
[2003] UKHL 37.

52 Senior (formerly Supreme) Courts Act 1981, s 31(3).
53 [1982] AC 617.
outdated technical rules of locus standi [that is, standing] from bringing the
matter to the attention of the court to vindicate the rule of law and get the
unlawful conduct stopped.
Such an approach, which also recognises ‘group’ standing, has been
in evidence in many subsequent cases. For example, the Child Poverty
Action Group was recognised as a representative charitable organisation
for poor families and thus was able to challenge changes to the benefits
system using judicial review,54 and the World Development Movement,
an international pressure group, was allowed to challenge the govern-
ment’s decision to devote a substantial proportion of the overseas aid
budget to the Pergau Dam project in Malaysia.55 On the other hand, in
another well-known case, R v Secretary of State for the Environment, ex parte
Rose Theatre Trust Co,56 in which standing was denied to a charitable trust
which comprised members of the public and well-known figures in the
theatre and the arts, it was held that the mere gathering together of
people with a common interest did not achieve standing. It appears then
that while there is a case for facilitating access to justice, it has also been
recognised that, if no individual rights are at stake, granting unrestricted
access to groups claiming to be representational runs the risk of allow-
ing judicial review to become a means of political lobbying. As Profes-
sor Harlow puts it: ‘[T]he legal process is transmut[ed] into a freeway
[and is in danger of becoming] a free-for-all.’57 Lastly, it is worth noting
that the rules of standing under the HRA 1998 depend on a narrower
‘victim’ test58 which entails that an action is open only to a person who
is personally subject to a violation of rights. However, in practice, this
requirement has not proved a significant impediment to claimants.
GROUNDS OF JUDICIAL REVIEW
The basic principle is that a public authority cannot act outside the
power (ultra vires) conferred on it or abuse that power. The power often
54 R v Secretary of State for Social Services, ex parte Child Poverty Action Group [1990] 2
QB 540.
55 R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd
[1995] 1 WLR 386.

56 [1990] 1 QB 504.
57 C Harlow, ‘Public Law and Popular Justice’ (2002) 65 MLR 1 at 17.
58 See HRA 1998, s 7.
derives from a statutory source; sometimes it is a prerogative power

which is challenged, and abuse of power through failure to adhere to
procedural rules is another familiar ground in judicial review cases. If
power is exceeded the courts have the capacity to intervene by award-
ing a remedy. For example, a quashing order will have the effect of
invalidating a decision taken by a public body. The body concerned is
required to act lawfully when taking the decision in the future. On the
other hand, the courts should not intervene when public bodies are act-
ing within their powers unless Parliament has specifically given them the
authority so to do, usually by way of granting a statutory right of appeal.
In Associated Provincial Picture Houses Ltd v Wednesbury Corporation59 Lord
Greene MR was concerned to emphasise that the courts only interfere
with an act of an administrative authority if it has contravened the law.
Even when the action is found to be ultra vires the court must not
substitute itself for the decision-making authority. The court is acting
in a supervisory capacity, not as an appellate body able to change the
outcome.
The terminology used to describe the main grounds of review was
explained by Lord Diplock in Council of Civil Service Unions v Minister for
the Civil Service:60
The first ground I would call ‘illegality’, the second ‘irrationality’ and the
third ‘procedural impropriety’ … By ‘illegality’, as a ground for judicial
review, I mean that the decision maker must understand correctly the law
that regulates his decision making power and give effect to it. Whether he
had or not is par excellence a justiciable question to be decided, in the event
of a dispute, by … the judges, by whom the judicial power of the State is
exercisable. By ‘irrationality’ I mean what can now be succinctly referred to
as ‘Wednesbury unreasonableness’ … It applies to a decision which is so outra-
geous in its defiance of logic or of accepted moral standards that no sensible
person who had applied his mind to the question to be decided could have
arrived at it … I have described the third head as ‘procedural impropriety’
[which includes] failure to observe basic rules of natural justice or failure
to act with procedural fairness towards the person who will be affected by
the decision … this head covers also failure by an administrative tribunal to
observe procedural rules that are expressly laid down in the legislative instru-
ment by which its jurisdiction is conferred, even where such failure does not
involve any denial of natural justice.
59 [1948] 1 KB 223.
60 [1985] AC 374 (known as the GCHQ case) at 410–11B.
Additional sub-grounds of review exist under each of these main

categories referred to by Lord Diplock.61 Looking at the development
and application of the grounds and sub-grounds under the common
law, it becomes clear that for the decision-making process of public
bodies to be lawful, it has to take place within a framework of rules. To
take a few commonly occurring sub-categories associated with illegality
(see Lord Diplock above), improper purpose/motive is clearly related
to exceeding lawful authority, since it refers to the fact that the decision-
taker may have acted outside a statutory purpose, while the idea of
relevance suggests that a body in exercising discretionary power must
have regard only to legally relevant considerations. By the same token,
it may have acted unlawfully by taking irrelevant considerations into
account. Under the fettering principle, it can be unlawful for a decision-
making body to form an over rigid policy in advance which prevents it
from exercising the discretion granted to it. Improper delegation occurs
when a decision-making body acting under statutory authority gives
away the power to act to another body.
An equally important aspect of judicial review has been the recog-
nition of procedural protection under the rules of fairness/natural
justice, for example, the right to a fair hearing. Furthermore, legitimate
expectation, which is closely related to the doctrine of legal certainty,
has become an important part of domestic administrative law, both
in a procedural sense, and as a matter of substantive law. The first
signs of renewed judicial activism emerged in the 1960s. The scope of
fairness/natural justice in procedure was extended in Ridge v Baldwin.62
Limits were set on the exercise of ministerial discretion in relation to
subjectively worded clauses in statutes in Padfield v Minister for Agricul-
ture, Fisheries and Food.63 The concept of jurisdictional error and the
status of statutory ouster clauses appearing to exclude judicial review
were considered in Anisminic v Foreign Compensation Commission.64 In a
famous assertion of its constitutional role the House of Lords held
that statutory provisions appearing to limit the jurisdiction of the court
61 M Fordham, ‘Surveying the Grounds: Key Themes in Judicial Intervention’
in P Leyland and T Woods (eds), Administrative Law Facing the Future: Old Constraints
and New Horizons (London, Blackstone, 1997).
62 [1964] AC 40.
63 [1968] AC 997.
64 [1969] 2 AC 147.
were invalid.65 In the GCHQ case Lord Diplock acknowledged the

potential for further developments by predicting that the principle of
proportionality would be adopted by the common law. (Proportionality
is now accepted as part of human rights jurisprudence. See the section
below on the HRA 1998.)
THE QUESTION OF MERITS
We have already noted that, according to the ‘red light’ view, the courts
operating under the rule of law have, what we have called, a supervi-
sory jurisdiction. They perform a control function but the scope of
this jurisdiction is crucially important. Many writers have observed
that even before the introduction of devolution and the HRA 1998 the
reformulation of the grounds of judicial review coincided with a period
of greater judicial activism.66 The constitutional effect of widening the
scope of judicial review represents a rebalancing of power between
Parliament and the courts. Roberts v Hopwood 67 can be cited as an early
twentieth-century case which demonstrates the implications of judicial
intervention. Poplar Council had been empowered under the Metropo-
lis Management Act 1855 to pay its employees such salaries and wages
‘as … the council may think fit.’ Although the statute appeared to con-
fer a broad discretion when a socialist local authority chose to use these
wide discretionary powers to pay female and male workers equally and
also a wage above the market rate, its policy was deemed to be unlawful
by the House of Lords.
Looking back to the post-World War II period, it is clear that a
restricted role for the courts is envisaged in Lord Greene’s landmark
judgment in Associated Provincial Picture Houses v Wednesbury Corporation.68
He stated:
The court is entitled to investigate the action of the [public] authority with
a view to seeing whether they have taken into account matters which they
ought not to have taken into account, or, conversely, have refused to take
65 For further discussion, see W Wade and C Forsyth, Administrative Law, 11th
edn (Oxford, Oxford University Press, 2014) 613ff.

66 See, eg, S Sedley, ‘Sounds of Silence: Constitutional Law without a Constitu-
tion’ (1994) 110 Law Quarterly Review 270.

67 [1925] AC 578.
68 [1948] 1 KB 223.
into account or neglected to take into account matters which they ought
to take into account. Once that question is answered in favour of the local
authority, it may still be possible to say that, although the local authority have
kept within the four corners of the matters which they ought to consider,
they have nevertheless come to a conclusion so unreasonable that no reason-
able authority could ever have come to it. In such a case, again, I think the
court can interfere.
The example of a red-haired teacher dismissed for no other reason
than the colour of her hair was used to illustrate how absurd a deci-
sion needed to be before the courts would be prepared to overturn
it. To keep the courts a step removed from political decision-making,
the concept of Wednesbury unreasonableness/irrationality deliberately
erects a high hurdle to overcome before a court will be prepared to
intervene on Wednesbury grounds alone. For example, a challenge to
what was alleged to be an unfair rate-capping policy directed by central
government (which was under Conservative control) at high-spending
Labour local authorities was rejected by the House of Lords in Not-
tingham City Council v Secretary of State for the Environment.69 Lord Scarman
made it clear that in cases of this type an extremely high threshold had
to be overcome. Wednesbury unreasonableness/irrationality meant that
the decision of the minister would have to have been so absurd that he
must have taken leave of his senses for a remedy to be granted.
JUDICIAL REVIEW CASES
There are important decisions which demonstrate a greater judicial

willingness than was previously discernible to intervene in policing
the activities of central and local government, often with controversial
results. In Bromley v Greater London Council 70 the courts were called upon
to decide on the legality of a policy decision by the Greater London
Council (GLC) (later abolished). In line with a local election commit-
ment the Council wanted to reduce fares on London transport. The
Transport (London) Act 1969 placed the authority under a duty to
develop policies, and to encourage, organise and, where appropriate,
to carry out efficient and economic transport facilities and services for
69 [1986] AC 240.
70 [1983] 1 AC 768.
Greater London. This section of the Act appeared to give the GLC
considerable discretion in the way it chose to run the transport system
and allocate resources, but on final appeal to the House of Lords, it
was held that the new policy was unlawful. The fiduciary duty owed to
ratepayers (local taxpayers) had not sufficiently been taken into account
when making the decision. The word ‘economy’ used in the Act was
given a narrow interpretation in the House of Lords. The council was
not acting irrationally, and an alternative approach to interpreting the
statute would have recognised that the GLC had the scope to reallocate
funding in the form of grants to underpin its reduced fares policy.
A ministerial decision to grant aid to Malaysia for the Pergau Dam
project under section 1 of the Overseas Development and Co-operation
Act 1980 was successfully challenged as unlawful in R v Secretary of State
for Foreign Affairs, ex parte World Development Movement Ltd 71 (referred to
above in relation to standing). It was held by Rose LJ that
Whatever the Secretary of State’s intention or purpose may have been, it is …
a matter for the courts and not for the Secretary of State to determine
whether, on the evidence before the court, the particular conduct was, or was
not, within the statutory purpose.
The judge’s reading of the statute identified an abuse of power, but it
is arguable that the court has come close to interfering with ministerial
discretion in the sensitive area of the formulation of foreign policy.
In an entirely different context it was held in R v Lord Chancellor, ex
parte Witham72 that the introduction by the government of a flat rate
court fee which applied to the unemployed and individuals on income
support through a form of delegated legislation was ultra vires the
Supreme Court Act 1981. The fee had the effect of preventing certain
categories of individuals who were poor from having access to the
courts and thereby interfered with a presumptive constitutional right.
The court ruled that such a change to the Supreme Court Act could be
made only by way of primary legislation. It has been suggested that a
new jurisdiction of constitutional rights has been emerging from such
decisions.
In M v Home Office,73 as was pointed out in earlier chapters, clear
limits were placed on governmental powers in the field of immigration
71 [1995] 1 WLR 386.
72 [1997] 2 All ER 77.
73 [1994] 1 AC 377.
and asylum. A political asylum seeker on the point of being deported

obtained an order from the court requiring his immediate return to the
United Kingdom. The Home Secretary ignored the court order and the
asylum seeker was duly deported. The minister’s actions were success-
fully challenged. The House of Lords held that the minister had acted
in contempt of court and that injunctions were available against officers
of the Crown.
The courts have redefined the scope of prerogative powers exer-
cised by ministers when these powers appear to conflict with statutory
powers. As we noted in Chapter 4, the House of Lords had to decide in
R v Secretary of State for the Home Department, ex parte Fire Brigades Union74
the legality of a revised compensation scheme for victims of crimes of
violence which was to be introduced using the minister’s prerogative
powers. The case raised significant constitutional issues. The preroga-
tive had been used in a manner which was inconsistent with the statu-
tory scheme, albeit not yet activated, and this decision had frustrated
the will of Parliament. The judges for the majority viewed the matter as
a narrow question of legality. For them, on a reading of the legislation
the minister was acting inconsistently with a statutory duty. The dissent-
ing judgments argued that the courts were overstepping the boundary
and trespassing on political territory by setting aside the decision of the
Secretary of State.
Grounds of judicial review have been developed by the courts and
potentially their effect is to constrain certain forms of conduct by
public authorities. For example, the doctrine of legitimate expectation,
which is based on the principle of legal certainty, not only requires
public authorities to adhere to standards of fair procedure but in certain
circumstances has allowed a claimant to assert a substantive right. In
the celebrated case of R v North and East Devon Heath Authority, ex parte
Coughlan75 a long-term quadriplegic patient who had been expressly
promised a home for life by the health authority successfully challenged
a subsequent decision to close the home. This breach of promise with-
out prior consultation was held by the Court of Appeal to fall into a
category of decisions which were so unfair as to amount to an abuse
of power. The danger in such cases is that the courts might have the
74 [1995] 2 All ER 244.

75 [2000] 2 WLR 622.
potential to interfere with the rights of democratically elected public

authorities to change their policies.
PART III: THE CONSTITUTIONAL PROTECTION

OF RIGHTS AND THE HUMAN RIGHTS ACT 1998
As we noted in Chapter 2 the idea of positive rights was not part of the
Diceyan constitution outlined in 1885. The rule of law operated on the
basis that all conduct would be regarded as lawful unless it happened
to conflict with a particular law. For example, UK citizens have enjoyed
freedom of speech to the extent that what they uttered did not defame
the reputation of another citizen contrary to the laws of libel and slan-
der, divulge an official secret contrary to the Official Secrets Act 1989,
or incite a person to racial hatred contrary to the Public Order Act 1986,
and so on. In a liberal democracy as defined in Chapter 1 it is axiomatic
that in a practical sense civil liberties and human rights are a prerequisite
and are of central importance to the security and well-being of all ordi-
nary citizens. Certain rights that were contested over many generations
such as the universal right to vote may now appear relatively secure but
the continuance of crucial rights may be under threat at any time. As the
nation celebrated the 800th anniversary of Magna Carta in 2015 many
judges, lawyers and academic commentators76 pointed to an impending
crisis in the criminal and civil justice system that presents a direct threat
to the spirit of the famous Article 39:
No free man shall be seized or imprisoned or stripped of his rights or pos-
sessions, or outlawed or exiled or deprived of his standing in any other way,
nor will we proceed with force against him or send others to do so except by
the lawful judgment of his peers or by the law of the land’.
The imposition of courts fees in criminal cases and government cuts to
the Legal Aid budget, which were justified as a money saving exercise,
are not only having an impact on the sustainability of sections of the
legal profession but they represent an assault on the right to a fair trial
of ordinary citizens lacking the means to obtain legal representation.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012
76 See eg F Wilmot-Smith, ‘Necessity or Ideology’ (2014) 36(21) London Review
of Books 15.
The Constitutional Protection of Rights and the Human Rights Act 1998 223
came into force in April 2014. This piece of legislation deprives many
citizens of basic access to justice. To be granted a legal aid certificate,
applicants must cross three hurdles. They must first prove that their
claim belongs in a category of law that is eligible for funding. Secondly,
they must pass a ‘merits’ test by demonstrating that their case is serious.
Thirdly, a ‘means’ test assesses income and capital. In most cases, this
must be less than £2,657 gross monthly income. The upshot is that legal
representation has been radically curtailed. And is now only available
in family law cases where there is evidence of domestic violence. This
demonstrates that the erosion of rights is on-going as part of political
disagreement over such rights, and attacks on such rights need to be
constantly resisted.
Of course, the HRA approach requires a marked change in legal
culture. This is because public authorities have been forced to comply
with the Act from the time it came into force in October 2000. Any
action by government or other public bodies that does not comply
with the ECHR can be challenged as being unlawful. At the same time
the HRA 1998 was a new departure for the UK constitution because it
has the effect of incorporating the ECHR into domestic law. Prior to
the enactment of the HRA 1998, the ECHR enjoyed the status of an
international treaty. In the absence of any statute or domestic authority
to the contrary, the courts endeavoured to interpret domestic law in a
way that was consistent with the ECHR, but, in general, a citizen who
considered that his or her Convention rights had been breached had to
take the case to the European Court of Human Rights in Strasbourg
for resolution, and this process often took in excess of five years. In
contrast, the rights set out in the Convention might now be regarded
as being equivalent to a domestic bill of rights. Since the Act came into
force it is unlawful for a public authority to disregard an individual’s
Convention rights. (The ECHR includes rights to: life; freedom from
torture; freedom from slavery; freedom of thought, conscience, and
religion; privacy; freedom of expression; and freedom of peaceful
assembly and association.)
It is stressed once again that the HRA 1998 seeks to prevent judicial
supremacy from replacing Parliamentary supremacy. If the courts are
called upon to determine whether primary or subordinate legislation is
in incompatible with Convention rights, section 3 provides that ‘So far
as it is possible to do so, primary legislation and subordinate legislation
must be read and given effect in a way which is compatible with the
Convention rights.’ This section confers an interpretative power which

allows the courts to consider legislation and transform it by stretching
its meaning, where it is possible to do so, in order to achieve Conven-
tion compatibility. This interpretative power under section 3 marks a
significant shift of power from Parliament to judges, since the courts
are able to rewrite sections of Acts by reading into them words that are
not there, and by doing so, remove potential conflicts with the Conven-
tion. For example, in R v A (No 2)77 Lord Steyn held in respect of the
Youth Justice and Criminal Evidence Act 1999 which, among other
things, changed the rules for the conduct of rape trials:
It is therefore possible under section 3 [HRA 1998] to read section 41, and in
particular section 41(3)(c), as subject to the implied provision that evidence
or questioning which is required to ensure a fair trial under Article 6 of the
Convention should not be treated as inadmissible.
The judicial insertion of words has a substantial impact on the applica-
tion of the section and, in consequence, on the balance between pros-
ecution and defence in rape trials. Section 3(1) of the HRA 1998 was
arguably given an even wider interpretation in Ghaidan v Godin-Mendoza.78
In this case the House of Lords interpreted the term ‘spouse’ under
schedule 1 to the Rent Act 1977 to allow surviving same-sex partners
to enjoy equal tenancy rights to heterosexual couples. The majority of
their Lordships were mindful of achieving a correct separation between
the courts and Parliament in fulfilling their interpretative obligation, and
it is possible to view this case as acceptable judicial legislation:
[T]he courts were interpreting existing statutory words as opposed to filling
in gaps, no procedural modifications were required, there were no wide-
ranging practical ramifications of the Convention compatible interpretation
and the modification was an incremental addition to previous legislative
amendments.79
The courts are not given power to invalidate primary legislation. If they
find it impossible to interpret legislation in a Convention-friendly way,
they can issue a declaration of incompatibility under section 4. This
does ‘not affect the validity, continuing operation or enforcement’ of
77 [2002] 1 AC 45.
78 [2004] UKHL 30, [2004] 3 All ER 411.
79 A Young, ‘Ghaidan v Godin-Mendoza: Avoiding the Deference Trap’ [2005] PL
23, at 27.
the Act in question. The effect of a declaration of incompatibility is

to refer the matter back to Parliament. The Act introduces a fast-track
procedure for the purpose of amending any offending legislation (there
have been examples of this procedure being used). After a declaration
of incompatibility has been issued, section 6(2) stipulates that until such
time as any offending legislation is amended it will not be unlawful for a
public authority to act in a way which is incompatible with the Conven-
tion. To achieve the compatibility of prospective legislation there is a
procedure at the drafting stage under section 19 requiring the relevant
minister to ‘make a statement of compatibility’.
VERTICAL OR HORIZONTAL EFFECT
The HRA 1998 has a ‘vertical’ effect by requiring public bodies such
as government, local government, the courts, and the police in their
dealings with the public to adhere to the Convention. The courts are
required to determine what constitutes public functions for these pur-
poses, and, since the Act has been in force, it has been necessary to
determine how far its provisions extend. This task is complicated by the
fact that the private sector frequently carry out high-profile governmental
services that are publicly funded (eg, in the realms of health, education,
housing, prisons, and so on). It would appear that ECHR rights are
not only directly enforceable against public bodies in respect of all of
their activities, but may also be directly enforceable against some private
companies and organisations in respect of their public functions.80
In determining the extent to which the Act can be applied there
were early indications that the courts would give a narrow definition
to what constitutes a public body and such an approach could limit
the scope of the Act. In Heather v Leonard Cheshire Foundation and HM
Attorney-General 81 a claimant sought to argue that a decision to close one
of its homes by the Leonard Cheshire Foundation, a charitable organ-
isation, infringed Article 8 of the Convention, but it was decided that
this decision was not amenable to review since the foundation was not
exercising a public function. In YL v Birmingham City Council,82 a case
80 See HRA 1998, s 6(3)(b).

81 [2001] EWHC Admin 429.
82 [2007] UKHL 27.
with quite similar facts to Leonard Cheshire, the majority in the House of
Lords missed an opportunity of redefining ‘function of a public nature’
in such a way as to address the obvious anomaly whereby certain cat-
egories of citizens sent by local authorities to private care homes would
be denied a remedy under the HRA 1998. At this point the government
stepped in to deal with the particular loophole that had arisen in YL and
Leonard Cheshire: section 145 of the Health and Social Care Act 2008
provides that private bodies providing nursing and/or personal care will
be performing a public function for the purposes of the HRA 1998.
Section 6 of the HRA 1998 is directed primarily at public authori-
ties, but it is clear that there are ways in which Convention rights apply
‘horizontally’ under the Act. The HRA 1998 gives no direct right to
sue in the civil courts for an alleged breach of a Convention right by
another individual or private company, but the courts are a public body
to which the Act applies. Therefore, if an action is taken to sue in the
courts on a private law matter which involves interpreting a statute
affecting Convention rights, the courts are now required to interpret
that statute according to section 3 in a way that is compatible with Con-
vention rights. The same obligation attaches to the common law, which
must be interpreted in a compatible manner.83 In sum, the HRA 1998
places no direct obligations in regard to the conduct of private citizens
and private organisations.
PROPORTIONALITY REVIEW
It is clear that the HRA 1998 establishes a new statutory type of illegal-
ity by requiring ministers and public officials at all levels to exercise their
powers in ways that are compatible with Convention rights. Judicial
review proceedings may be taken by victims to contest any violation of
Convention rights by a public authority. The standard of review which
is applied in cases involving ECHR rights is proportionality (rather than
Wednesbury unreasonableness/ irrationality). In essence, the administra-
tive court has to determine whether the interference with Convention
83 See Douglas v Hello! Ltd [2001] 2 WLR 992 and Campbell v Mirror Group News-
papers Ltd [2004] 2 WLR 1232. For example, Baroness Hale said in Campbell that the
courts could not invent a new cause of action to cover types of activity not previ-
ously covered. But where there is a cause of action, the court, as a public authority,
must act compatibly with both parties’ Convention rights.
rights has been proportionate. In the first place, the proportionality test
is a balancing exercise, which usually ends up deciding whether the means
employed, involving interference with fundamental rights, are justified
by the end, which is nearly always associated with considerations such
as pressing social need, public policy, national security, or public good.
Second, the court decides between competing interests (often those
of an individual against those of a public authority). Therefore, it
would appear that there is a danger of the court being sucked into the
decision-making process itself, which should be regarded as the prov-
ince of the executive (see discussion of the Prolife Alliance case below,
and the divergence of views between the Court of Appeal and House
of Lords). However, it might be argued that this question of propor-
tionality is decided as a question of law, just as matters are determined
under the ultra vires principle. The court decides the boundaries of
discretion according to familiar grounds of judicial review; similarly,
under proportionality the central issue is not the correctness of the
decision or action taken by the executive branch, but simply whether
the decision-maker is operating within the bounds set by the ECHR
and the HRA 1998. A further point is that the approach of the courts
will vary according to the ECHR Articles which are at issue, since the
intensity of review will depend upon the subject matter in hand. Certain
Convention rights are set out in absolute terms with no exceptions and
cannot be balanced against a public interest. These are Article 2 (right
to life), Article 3 (prohibition of torture), Article 4(1) (prohibition of
slavery), and Article 7 (no punishment without law). On the other hand,
the rights in Article 4(2), Article 4(3) (forced labour), and Article 5 (lib-
erty and security) are subject to a long list of exceptions, while Articles
8–11 and the First Protocol of the ECHR permit a public authority to
claim that the interference was necessary in the interests of a demo-
cratic society.
The House of Lords confirmed that the proportionality test would
apply to HRA 1998 in R v Secretary of State for the Home Department,
ex parte Daly.84 The case concerned a challenge to regulations under sec-
tion 47(2) of the Prison Act 1952 which affected the rights of prisoners.
In this situation there was a conflict between the need to protect the
rights of individuals in prison who might be exposed to regulations that
could be regarded as oppressive and unnecessary, and the state having
84 [2001] 3 All ER 433.

a legitimate interest in interfering with certain rights to ensure that

prisons can be a secure and safe environment. It was pointed out by
Lord Bingham that the prison population includes a core of dangerous,
disruptive, and manipulative prisoners, hostile to authority and ready to
exploit for their own advantage any concession granted to them. The
question was whether new prison rules permitting staff to read the
correspondence of prisoners when searching cells without the prisoner
being present constituted a breach of Article 8 of the Convention. In
a unanimous judgment the House of Lords accepted the view that the
policy contained in this rule constituted a disproportionate breach of
the Convention and that a prisoner should be entitled to be present
when privileged correspondence is examined.
Lord Steyn stated that proportionality should now be used in cases
of this type. He was in no doubt that the differences in approach
between the traditional grounds of review and proportionality may
sometimes lead to different results:
The starting point is that there is an overlap between the traditional grounds
of review and the approach of proportionality. Most cases would be decided
in the same way whichever approach is adopted. But the intensity of review
is somewhat greater under the proportionality approach. Making due allow-
ance for important structural differences between various Convention rights.
Proportionality operates as ‘a balancing exercise’:
1. it usually ends up deciding whether the means employed, involv-
ing interference with fundamental rights, are justified by the end,
which is nearly always associated with considerations such as press-
ing social need, public policy, national security, or public good;
2. the court decides between competing interests (often those of an
individual against those of a public authority).
Significant Cases Under the Human Rights Act 1998
In the section that follows we will look more closely at a selection

of cases decided under the HRA 1998 in order to consider its wider
impact. Although concerning different rights and diverse policy areas
such decisions demonstrate a greatly increased judicial profile in ensur-
ing that the decision-making of government and other public bodies
achieves an appropriate balance between legitimate public interests and
the rights set out under the ECHR.
Turning first to freedom of speech: R v Shayler 85 concerned a former

member of the UK security services who made unauthorised disclo-
sures of classified information that were widely reported in the press.
He was subsequently charged with offences under sections 1 and 4 of
the Official Secrets Act (OSA) 1989 and, in defence, claimed that his
freedom of expression should be protected under Article 10(2) of the
ECHR. The court was called upon to consider the weight to be given
to pressing social need where national security considerations are at stake.
The House of Lords approached the matter by applying the principle
of proportionality. Lord Bingham stated that: ‘The acid test is whether,
in all the circumstances, the interference with the individual’s conven-
tion right prescribed by national law [under the OSA 1989] is greater
than is required to meet the legitimate object which the state seeks to
achieve.’ Lord Bingham confirmed that ‘in any application for judicial
review alleging a violation of a convention right the court will now
conduct a much more rigorous and intrusive review than was once
thought to be permissible’. Lord Hope stated that ‘the starting point is
that an authority which seeks to justify a restriction on a fundamental
right on the ground of a pressing social need has a burden to discharge …
[it must] show that the legislative means adopted were no greater than
necessary’, and he later commented that, ‘The restrictions must be
rational, fair and not arbitrary, and they must impair the fundamental
right no more than is necessary.’ It was also confirmed that there might
be some cases where the national security implications were so sensi-
tive and important as to make the matter virtually non-justiciable. In
the instant case, after examining the provisions of the OSA 1989, their
Lordships unanimously concluded that there were sufficient safeguards
for any prospective whistle-blower built into the legislative framework.
However, some of the case law has revealed a marked divergence of
opinion among senior judges over the scope provided by the HRA 1998
for judicial intervention. The difference between the approach of the
Court of Appeal and that of the House of Lords in the Prolife Alliance
case86 provides a good example of two distinct conceptions of the judi-
cial role. The claim involved a challenge to a decision by the BBC and
other broadcasters not to transmit in Wales a party election broadcast
85 [2002] UKHL 11.

86 R (on the application of the Prolife Alliance) v British Broadcasting Corporation [2002]
2 All ER 756, CA; R v British Broadcasting Corporation, ex parte Prolife Alliance [2003]
UKHL 23, [2003] 2 WLR 1403.
which had been made by the ProLife Alliance. The Alliance contended
that this was in breach of its Convention rights to free speech under
Article 10 of the ECHR. The broadcast used material that the broad-
casters considered to be sensational and disturbing. Prior to this refusal
it had been pointed out to the ProLife Alliance (as would be the case
with others proposing to make election broadcasts) that a significant
proportion of their programme would not comply with the relevant
provisions of the Producers’ Guidelines of the BBC and the Pro-
gramme Code of the Independent Television Commission in respect
of matters of taste and decency. It was held by the Court of Appeal
that freedom of political speech enjoyed by an accredited party at a
public election, especially a general election, must not be interfered with
save on the most pressing grounds. It was argued by Laws LJ that the
courts owed a special responsibility to the public as the constitutional
guardian of the freedom of political debate. While it was acknowledged
that broadcasters enjoyed wide editorial discretion in entertainment and
news reporting, it was argued that they did not have such a discretion
where political free speech was concerned.
The majority in the House of Lords rejected this approach, and their
Lordships believed that the court had taken on the role Parliament had
given to broadcasters. For example, Lord Nicholls stated:
As it was, the Court of Appeal in effect carried out its own balancing
exercise between the requirements of freedom of political speech and the
protection of the public from being unduly distressed in their own homes.
That was not a legitimate exercise for the courts in this case. Parliament has
decided where the balance shall be held.
The majority concluded that there was nothing to indicate that the BBC
had applied an inappropriate standard in assessing whether the broad-
cast was offensive. Their Lordships held that:
1. There was no challenge to the statutory or quasi-statutory require-
ment for exclusion of offensive material. The judgement of such
matters required a value judgement by broadcasters and, by implica-
tion, not by the courts.
2. In making the decision whether to reject the programme the pri-
mary relevant consideration for the decision-maker was the power
and persuasiveness of television, which still prevailed over the
human rights considerations.
3. The decision had been taken in a responsible manner with account

taken of the implications for freedom of speech.
4. Although free speech is particularly important for elections, party
political broadcasts were subject to the requirement not to broad-
cast offensive material.
Lord Scott contributed a powerful dissenting judgment, which explained
and developed many of the points made by Laws LJ in the Court of
Appeal. However, the decision of the majority places clear limits on the
capacity of the courts to intervene where Parliament has set out a clear
statutory framework for the determination of such issues. The Court of
Appeal decision comes close to a merits review, with the court, rather
than the statutory body/regulatory authority, deciding what was fit for
transmission. The court had no hesitation in expressing its opinion on
whether the broadcast met the relevant criteria of taste. The question
comes down to whether this is the court’s prerogative, or that of the
decision-maker.
Another important case, on this occasion concerning religious free-
dom, raised the issue of the respective roles of courts and decision-
makers in R (on the application of SB) v Head teacher and Governors of Denbigh
High School.87 The United Kingdom has a general policy of multicultur-
alism which gives religious communities scope to wear dress associated
with their beliefs. Denbigh High School in Luton is situated in a locality
with a high proportion of Muslim students (about 80 per cent) and
the school had a uniform policy for Muslim students which included a
headscarf and coverage of the arms. The case arose because an Islamic
student changed to a type of Islamic belief which required the wearing
of a jilbab (full-length dress covering the arms). This was not acceptable
to the school, and she was not allowed to attend school wearing this
form of dress. In her claim for judicial review it was argued that there
had been a violation of her right to manifest her religious beliefs under
Article 9 of the ECHR. In other words, the school as a public body
under section 6 of the HRA 1998 was, it was argued, acting unlawfully
by not respecting her right to express her religious beliefs in this way.
87 [2005] EWCA Civ 199, [2005] 2 All ER 396, [2006] UKHL 15; see T Poole,
‘Of Headscarves and Heresies: The Denbigh High School Case and Public Author-
ity Decision-making under the Human Rights Act’ [2005] PL 685.
Could the HRA 1998 be used to gain legal recognition of this right by
challenging the process of decision-making by the school? Although
the administrative court rejected her claim, the Court of Appeal found
against the school. In the leading judgment, Brooke LJ suggested that
the school should have taken the decision by employing a legal test of
proportionality in forming its policy.
Lord Bingham, giving the leading judgment in the House of Lords,
entirely rejected the approach adopted by the Court of Appeal. He
explained that proportionality is a test to be applied by the court when
reviewing decisions by public authorities after the decision has been
taken. The obligation under the HRA 1998 lies in relation to formulat-
ing the substance of a policy, which needs to be Convention compatible,
but public authorities (eg schools) need not themselves adopt a propor-
tionality approach to their decision-making process.88 Further, not only
was his Lordship unable to find Strasbourg authority for following the
sort of reasoning process laid down by the Court of Appeal, but he also
believed that such an approach would introduce ‘a new formalism’ and
be ‘a recipe for judicialisation on an unprecedented scale’. In situations
of this kind, it is the practical outcome that matters, not the type of
the decision-making process that led to it. The school in laying down
its rules, which were acceptable to and developed in consultation with
mainstream Muslim opinion, had acted in an ‘inclusive, unthreatening
and uncompetitive’ way.89 From a constitutional standpoint a contrast
can be drawn between a policy approach in the UK accepting multicul-
turalism manifested in school dress codes which is confirmed in such
judicial decisions as the Begum case and the position in France, which
has a secular state under Article 2 of the Constitution. This provision
allowed a controversial law to be introduced in 2004 banning the wear-
ing of headscarves and other conspicuous religious symbols in French
state schools.90
88 Poole, above n 87, 690.
89 Some doubts over aspects of the policy were expressed in a thoughtful partly
dissenting judgment by Baroness Hale.
90 Loi no 2004-228 of 15 March 2004. Supporters of the French ban argued that
this new law was necessary to uphold the constitutional commitment to secularism,
while opponents have viewed the 2004 law as a veiled attack on the Islamic commu-
nity and more generally on the right to manifest religious beliefs. See, eg, S Mancini
and M Rosenfeld, ‘Unveiling the Limits of Tolerance: Comparing the Treatment of
Majority and Minority Religious Symbols in the Public Sphere’, Cardozo Legal Studies
Research Paper No 309, 28 September 2010.
In a quite different context, the right to life under Article 2 of the

ECHR has been deployed on the vexed question of resource alloca-
tion. In R (on the application of Rogers) v Swindon NHS Primary Care Trust
and Secretary of State for Health,91 the backdrop was the rationing of very
expensive healthcare set against the claims of individuals, now given
added impetus by the HRA 1998. A decision by the health authority
to limit the availability of Herceptin as a treatment for breast cancer
was challenged. This new drug was regarded as an effective but very
expensive option, and the case also involved alleged discrimination as
there was evidence that availability under the NHS varied according to
locality, which amounted to a so-called ‘postcode lottery’. The Court
of Appeal held that the prioritisation of funding for treatment which
provided for exceptions in unidentified circumstances was not in itself
unlawful. However, they declared that the policy was unlawful in this
case because the decision-maker, that is the Primary Care Trust, had not
specified what the exceptional circumstances would be and they were
therefore unable to justify such a policy in clinical terms. They were
instructed to devise a lawful policy and at the same time the decision
not to treat the patient was quashed. The decision calls into question
the use of the HRA 1998 by private individuals in such circumstances.
The courts are called upon to look at the question from the perspective
of the individual’s private right to be treated while the health service
managers have to balance the rights of the many different patients that
require treatment. With limited budgets, if an excessively expensive
treatment is given to one patient by order of the court it might mean
that there are inadequate resources for other categories of patients with
equally serious conditions.92
The so-called Belmarsh case was a landmark decision which has viv-
idly illustrated the potential and, at the same time, the limits of the HRA
1998. The government had been accused of eroding individual rights
by introducing the Anti-Terrorism, Crime and Security Act in 2001,93
which permitted the indefinite detention of foreign nationals suspected
of terrorism. The challenge was mounted by a group of suspects who
91 [2006] EWCA Civ 392.

92 K Syrett, ‘Opening Eyes to the Reality of Scarce Health Care Resources?’
[2006] PL 664.
93 See A Tomkins, ‘Legislating Against Terror: The Anti-Terrorism, Crime and
Security Act 2001’ [2002] PL 205.

had been kept in Belmarsh prison for three years. In recognition of the
importance of the case, a nine-judge panel of the Judicial Committee
of the House of Lords (rather than the normal five judges) in A and
Others v Secretary of State for the Home Department 94 overturned delegated
legislation and issued a declaration of incompatibility in respect of the
Anti-Terrorism, Crime and Security Act 2001.
First, it was argued by the Belmarsh detainees that the derogation
from the Convention under Article 15 was unlawful. This was on the
grounds that the threshold test of reliance, which requires proof of
public emergency threatening the life of the nation, had not been satis-
fied. On this point alone the judges in the House of Lords, with the
exception of Lord Hoffmann, sided with the government and accepted
that great weight should be given to the judgment of the Home Secre-
tary, his colleagues and Parliament. This approach was justified because
the government was called on to exercise a pre-eminently political
judgement requiring the advice of the security services. Moreover, it
was acknowledged that the European Court of Human Rights had
taken a fairly expansive view of what could constitute a threat to the
life of the nation.95 (On the other hand, it was ruled that the derogation
from Article 5 did not satisfy the condition of being ‘strictly required’:
see below.)
Second, the House of Lords rejected the government’s contention
that the discrimination in the treatment of non-nationals was allowed
on the grounds that the case was a matter of immigration law, which
was placed beyond the reach of the courts. The detention was not an
issue decided at the point of entry, rather the detainees’ treatment was a
matter of security. The court held that this group of detainees was now
being regarded differently from British citizens or those with a right of
abode in the United Kingdom who were suspected terrorists.
Third, a related question for the court to resolve concerned the law-
fulness of the scheme under the Act, which selectively allowed for the
detention of foreign nationals. Lord Bingham held:
Assuming, as one must, that there is a public emergency threatening the life
of the nation, measures which derogate from Article 5 are permissible only
to the extent strictly required by the exigencies of the situation, and it is for
the derogating state to prove that that is so.
94 [2004] UKHL 56.

95 Lawless v Ireland (No 3) (1961) 1 EHRR 15.
It is a matter of established principle that aliens should enjoy Article 5

protection ‘in accordance with domestic law and subject to the relevant
international obligations of the state in which they are present.’ Such
protection of course includes ‘the right not to be deprived of liberty
except on such grounds and in accordance with such procedures as are
established by law and the right to be equal before the courts.’ Lord
Hope explained that:
Put another way, the margin of the discretionary judgment that the courts
will accord to the executive and to Parliament where this right is in issue is
narrower than will be appropriate in other contexts.
It came down to whether persons in a similar situation to the detainees
were subject to preferential treatment without objective justification,
and the difference of treatment was on grounds of nationality or immi-
gration status (which are proscribed grounds under Article 14). It was
reasoned by the Law Lords that if measures short of detention were
sufficient to deal with suspected terrorists with a right of abode in the
United Kingdom, it was not possible to maintain that such measures
were ‘strictly required’ under the derogation from Article 5 for foreign
nationals similarly designated in terms of threat posed. At the same
time it was held that indefinite detention without trial constituted a
wholly disproportionate response to the problem.
In reaching this conclusion the House of Lords was, in effect,
required to consider the limits of judicial deference. Lord Bingham
(the senior Law Lord) assessed the respective roles of Parliament, the
executive, and the judiciary and decisively rejected a distinction that the
Attorney-General had attempted to draw between democratic institu-
tions such as the Immigration Service and the courts. It was
wrong to stigmatise judicial decision-making as in some way undemocratic. It
is particularly inappropriate in a case such as the present in which Parliament
has expressly legislated in section 6 of the 1998 Act to render unlawful any
act of a public authority … incompatible with a Convention right.
Moreover, he stated:
[T]he greater the legal content of any issue, the greater the potential role of
the court, because under our constitution and subject to the sovereign power
of parliament it is the function of the courts and not of political bodies to
resolve legal questions.
It was observed above that the House of Lords issued a declaration of
incompatibility under section 4 of the HRA 1998 but this, of course,
could not nullify the legislation directly. The suspects remained in prison.
However, the judicial condemnation of the legislation in such compre-
hensive terms prompted the government to respond. It was persuaded
to replace the incompatible provisions of the Anti-Terrorism, Crime
and Security Act 2001 with a revised approach to controlling terrorist
suspects under the Prevention of Terrorism Act 2005 involving arguably
less Draconian ‘non-derogating control orders’ and ‘derogating control
orders’ issued by the Secretary of State under judicial supervision.
What has been the impact of the HRA 1998? The practice of public
authorities has been affected by the imposition of a duty under section 6
of the HRA 1998, which requires them to conform with the ECHR.
Public bodies, including the police, prison service, Immigration Service,
and the courts, have been forced to modify many of their procedures to
make sure that they perform their duties in a manner which is compliant
with Convention rights. Turning to the courts, the proportionality prin-
ciple gives judges a more sensitive tool to consider whether the restric-
tion of a right can be justified (are the means used to impair the right
or freedom no more than is necessary to accomplish the objective?). In
cases such as Prolife Alliance and Denbigh High School the courts have been
cautious about straying into the territory of administrative decision-
making by public authorities. However, in the Belmarsh case the House
of Lords was willing to issue a declaration of incompatibility in a situa-
tion where it considered that fundamental rights had been contravened
in a disproportionate manner. Parliament responded by amending the
offending legislation. In a period where there is a perceived increase in
the threat of terrorism, the HRA 1998 has not prevented repressive
legislation from reaching the statute book. Most recently, for example,
the Prevention of Terrorism Act 2005 allows the detention of terrorist
suspects without trial for periods of up to 28 days.96
REPLACING THE HRA WITH A BRITISH BILL OF RIGHTS?
Many constitutional commentators and public law practitioners would

now acknowledge that in the absence of a codified constitution the
incorporation of the ECHR into domestic law under the Human
96 The Patriot Act 2001 in the United States gives enormous powers to the
authorities to combat terrorism, effectively suspending important rights under the

Constitution.
Rights Act 1998 has served as an effective method of enforcing citizen

rights and minority rights without handing over too much power to
the judiciary.97 Nevertheless, the 1998 Act has also attracted criticism;
particular reference has been made to individual cases featured in the
media where suspected terrorists, asylum seekers or sex offenders have
appeared to use the law, sometimes at considerable public expense, as
a shield from justice.98 Moreover, on the vexed question of the blanket
denial of prisoner voting rights vigorous opposition has been voiced
within Parliament and expressed more generally in the press in response
to Strasbourg judgments99 which require changes to UK domestic law
to achieve conformity with the Convention under Article 46.
The Conservative Party entered the 2010 and 2015 elections promis-
ing to repeal the Human Rights Act 1998 and adopt a British/UK Bill
of Rights as a substitute. However, it will be difficult to reach any sort
of consensus over a replacement and no proposal was contained in
the June 2015 Queen’s speech outlining the policy of the new govern-
ment. Indeed, the wide divergence of views expressed by the inde-
pendent Commission on a Bill of Rights set up by the Conservative/
Liberal government which reported in December 2012100 mirror the
disagreements over rights protection across the wider community, and
also within the main political parties. A majority of this Commission
were prepared to support the principle of a British Bill of Rights, the
assumption being that this charter of rights would incorporate and
build on all of the UK’s obligations under the ECHR. No consensus
emerged. Although the majority report concludes that the Convention
would still be at the core of rights protection, it provides remarkably
little detail on the nature of the rights that might be covered beyond
existing ones. Presumably the charter would embody some general prin-
ciples, including a commitment to the rule of law, an impartial judiciary
and the recognition of some general values: liberty, democracy, fairness
and perhaps civic duty. Without making significant substantive changes
97 See eg T Bingham, The Rule of Law (London, Allen Lane, 2010) 66ff.
98 For example, the litigation concerning Mustafa Kamal Mustafa (Abu Hamza)
which continued for eight years following an extradition request in 2004 by the USA.
99 See Hirst v United Kingdom (No 2), Application no 74025/01, 6 October 2005
and R (Chester) v Secretary of State for Justice and McGeoch v The Lord President of the
Council [2013] UKSC 63.
100 The Commission on a Bill of Rights—A UK Bill of Rights?—The Choice
Before Us, vols 1 & 2, 18 December 2012.

there is some support for cosmetic redrafting of existing Convention

rights in contemporary language and a novel element would be to intro-
duce a link between citizen responsibilities and rights. However, there
is no agreement concerning socio-economic rights. It is also significant
that the Conservative Party, despite repeating its intention to repeal the
HRA, is split on how to replace it and to date has not published any
detailed proposals for a British Bill of Rights.101
On the other hand, minority views from the Commission favoured
the adoption of a free standing British Bill of Rights and this could
include taking the radical step of withdrawing from the ECHR. This
approach reminds us that the key question from a technical legal stand-
point is whether a British Bill of Rights would remain compatible with
the European Convention and therefore allow the UK to continue with
its international treaty obligations. For example, would it be possible to
amend section 2 of the 1998 Act that requires a court or tribunal to take
into account ECHR jurisprudence whenever it is relevant. The result
of such a change would be that from then onwards Strasbourg case law
would only be ‘advisory’. A replacement might also seek to qualify the
interpretative role of the courts under section 3 and review the capacity
of the courts to issue declarations of incompatibility under section 4.
The application of section 2 has proved to be controversial. In a
number of judgments the courts have tended to follow the approach
taken by Strasbourg almost as if the case law was binding. In an influ-
ential judgment Lord Bingham had stated that while such case law is
not strictly binding, the courts are bound: ‘in the absence of some
special circumstances [to] follow any clear and constant jurisprudence
of the Strasbourg Court’.102 Obviously, a complete failure to reflect the
approach of Strasbourg would lead to cases being referred back to
the European Court of Human Rights for final resolution. But one of
the architects of the Human Rights Act, former Lord Chancellor, Lord
Irvine, has argued extra-judicially that any appearance that domestic
courts are directly bound by Strasbourg case law was a misinterpretation
of the HRA. This is because according to section 2 the court must only
take account of the jurisprudence.103 In other words, the act was drafted
101 See S Dimelow and A Young, ‘“Common Sense” or Confusion? The Human
Rights Act and the Conservative Party’ (London, The Constitution Society, 2015).
102 R (Ullah) v Special Adjudicator [2004] UKHL 26, para 20.
103 See Lord Irvine of Lairg, ‘A British Interpretation of Convention Rights’
UCL, Bingham Centre, 14 December 2011 and ‘Lord Irvine: human rights law
developed on a false premise’, The Guardian, 14 December 2011.
to provide scope for autochthonous development of human rights

principles within certain bounds. The Supreme Court has qualified the
earlier position set out by Lord Bingham and apparently gone some way
to endorsing this view. Lord Neuberger stated:
This court is not bound to follow every decision of the European court. Not
only would it be impractical to do so: it would sometimes be inappropriate,
as it would destroy the ability of the court to engage in the constructive
dialogue with the European court which is of value to the development of
Convention law: … Where, however, there is a clear and constant line of
decisions whose effect is not inconsistent with some fundamental substan-
tive or procedural aspect of our law, and whose reasoning does not appear
to overlook or misunderstand some argument or point of principle, we con-
sider that it would be wrong for this court not to follow that line.104
In light of this approach and assuming that the UK remains a member
of the Convention there seems to be very little point in amending
section 2.
Further obstacles encountered by attempting to replace the Human
Rights Act concern the impact on devolution. From a legal standpoint
the ECHR is directly incorporated by the 1998 devolution legislation
as part of the devolution arrangements. The HRA applies in the sense
that conformity with the Convention limits the legislative competence
of the devolved legislatures.105 In consequence, securing changes to
the HRA would require amendment of the original devolution legisla-
tion and therefore the agreement of the devolved Scottish Parliament
and the Assemblies in Wales and Northern Ireland. There have been
indications that a British/United Kingdom Bill of rights would be
widely opposed in Scotland, Wales and Northern Ireland. Any change
embarked upon without agreement carries with it far-reaching political
implications. The Scottish Nationalists in particular have consolidated
their position following the 2015 general election (the party has a
majority in the Scottish Parliament and holds 56 out of 59 Scottish
seats at Westminster). The party not only objects to any watering down
of rights protection, but also shows no sign of consenting to the
imposition of a charter of rights drafted by a Conservative Govern-
ment at Westminster. At the same time, the Belfast peace agreement in
Northern Ireland, already showing signs of fragility, is founded upon
104 Manchester City Council v Pinnock [2010] UKSC 45 at para 48.

105 See Scotland Act 1998, s 29(2)(d).
the incorporation of the ECHR and the availability of remedies for any
breach of the Convention.
Lastly, it should be clear from the discussion earlier in this chap-
ter that the domestic courts employing the proportionality principle
under the Human Rights Act have developed an impressive body of
jurisprudence concerned with rights protection alongside the common
law. The upshot is that no credible replacement British or UK Bill of
Rights could simply revert to the pre Human Rights Act era without
profound consequences. Rather, the challenge is to extend protection
in the face of contemporary threats to citizen rights. Certainly, any
attempt to withdraw from the Convention would undermine the UK’s
international reputation and single the country out in Western Europe
as a pariah nation.
CONCLUSION
Against a backdrop of the manifest limitations in parliamentary scrutiny

of primary legislation and delegated legislation and the ever-increasing
powers handed over to the executive, we have seen in this chapter that
judicial review has emerged as one important counterweight to execu-
tive dominance, with a growing recognition of the role of the courts.
The jurisdiction under the HRA 1998 and the devolution legislation
represent a further shift of power to the judiciary, who must now adju-
dicate on alleged breaches of Convention rights, inter-governmental
disputes, and the validity of legislation emanating from the Scottish
Parliament and the Northern Ireland Assembly. In turn, this much
higher judicial profile raises a number of further and, as yet, unresolved
issues about the role of the courts at the highest level. It may be widely
accepted that these developments have resulted in a significant ‘con-
stitutionalisation’ of public law, but there is much less agreement on
whether the Supreme Court should also act as a constitutional court,
in the sense of being able to determine the limits of powers under the
constitution. Certainly, it would be a drastic step to dispense with the
core principle of parliamentary sovereignty and allow the courts to
invalidate legislation. The courts are not directly accountable, except
through the appellate process. This would mean that unelected judges
would have the capacity to undermine the legitimacy of decisions made
by democratically elected politicians. Finally, it is doubtful whether
members of a judiciary schooled in specialist areas of law have the

training and background to equip them to act as guardians and regula-
tors of an uncodified constitution.
FURTHER READING
Introduction to the Courts System

Partington M, Introduction to the English Legal System 2015–2016 (Oxford,
Twining W and Miers D, How to Do Things with Rules, 5th edn (Cambridge,
Supreme Court Reforms

Hale B, ‘A Supreme Court for the United Kingdom?’ (2004) 24 Legal
Studies 36.
Le Sueur A, ‘The Foundations of Justice’ in J Jowell, D Oliver and
Le Sueur A (ed), Building the UK’s New Supreme Court: National and Compa-
rative Perspectives (Oxford, Oxford University Press, 2004).
Malleson K, ‘The Evolving Role of the UK Supreme Court’ [2011] PL
754.
Woodhouse D, ‘The Constitutional and Political Implications of a United
Kingdom Supreme Court’ (2004) 24 Legal Studies 134.
Judicial Review and Administrative Law

Bamforth N, ‘Courts in a Multi-Layered Constitution’ in N Bamforth
and P Leyland (eds), Public Law in a Multi-Layered Constitution (Oxford,
Craig P, Administrative Law, 7th edn (London, Sweet & Maxwell, 2012).
Elliott M, ‘Ombudsmen, Tribunals, Inquiries: Refashioning Accoun-
tability Beyond the Courts’ in N Bamforth and P Leyland (eds),
Accountability in the Contemporary Constitution (Oxford, Oxford Univer-
sity Press, 2014).
Fredmann S, ‘Adjudication as Accountability: A Deliberative Approach’
in N Bamforth and P Leyland (eds), Accountability in the Contemporary
Constitution (Oxford, Oxford University Press, 2014).
Griffith J, ‘The Political Constitution’ (1979) 42 MLR 1.

Griffith J, The Politics of the Judiciary, 5th edn (London, Fontana, 1997).
Harlow C and Rawlings R, Law and Administration, 3rd edn (Cambridge,
Leyland P and Anthony G, Textbook on Administrative Law, 7th edn
Loughlin M, Sword and Scales: An Examination of the Relationship between Law
and Politics (Oxford, Hart Publishing, 2000).
Stevens R, ‘Government and the Judiciary’ in V Bogdanor (ed), The Bri-
tish Constitution in the Twentieth Century (Oxford, Oxford University
Press, 2003).
Wade W and Forsyth C, Administrative Law, 11th edn (Oxford, Oxford
Civil Liberties and the Human Rights Act 1998

Amos M, Human Rights Law, 2nd edn (Oxford, Hart Publishing, 2014).
Ewing K, ‘The Futility of the Human Rights Act’ [2004] PL 829.
Gordon J and Klug F (eds), European Human Rights Law Review, Special
Issue: 10 Years of the Human Rights Act [2010] (6) EHRLR 551.
Irvine of Lairg, Lord, ‘The Impact of the Human Rights Act: Parliament,
the Courts, the Executive’ [2003] PL 308.
Kavanagh A, Constitutional Review under the UK Human Rights Act
(Cambridge, Cambridge University Press, 2009).
O’Cinneide C, ‘Human Rights and the UK Constitution’ in J Jowell,
D Oliver and C O’Cinneide (eds), The Changing Constitution, 8th edn
O’Cinneide C, ‘Legal Accountability and Social Justice’ in N Bamforth
and P Leyland (eds), Accountability in the Contemporary Constitution
Tomkins A, ‘Readings of A v Secretary of State for the Home Department’
[2005] PL 259.
Wadham J, Mountfield H, Prochaska E and Brown C, Blackstone’s Guide to
the Human Rights Act 1998, 6th edn (Oxford, Oxford University Press,
2011).
Young Alison L, ‘Accountability, Human Rights Adjudication and
the Human Rights Act 1998’ in N Bamforth and P Leyland (eds),
Accountability in the Contemporary Constitution (Oxford, Oxford University
Press, 2014).
8
Devolution and Local Governance


Power Sharing – Barnett Formula – West Lothian Question –
Intergovernmental Relations – Referendums – Participation –
Rate Capping – Stakeholders – Competitive Tendering – Elected
Mayors – Accountability Mechanisms – The Big Society –
General Power of Competence
INTRODUCTION
T HIS CHAPTER EXAMINES the relationships between cen-

tral government and the layers of devolved, regional, and local
government charged with governing at a local level. Until the
introduction of devolution the United Kingdom could be categorised
as a centralised unitary state. However, the devolution legislation, which
was introduced in 1998, conferred varying degrees of decision-making
authority on Scotland, Wales, and Northern Ireland, and a Mayor and
Assembly for London have also been introduced. The effect of these
changes has been to set up a new set of democratically elected bodies
and to confer substantial powers on devolved legislatures and execu-
tives. It will soon be apparent as the extent and implications of these
reforms are discussed that the constitutional balance between central
government and the regions has been significantly modified. In fact,
the unequal treatment of England prompted the Westminster govern-
ment to first attempt in 2004 to introduce a form of English regional
government and recently to impose restrictions on the voting rights
of non-English MPs (discussed below). Devolution has changed the
face of UK politics with the emergence of the Scottish Nationalists as
the dominant party in Scotland as well as creating a new constitutional
244 Devolution and Local Governance
dynamic. Not only have changes been made to the original scheme cre-
ated in 1998, particularly in relation to Wales, but also the Independence
Referendum in 2014 demonstrated that the Scottish electorate believed
that devolution in Scotland had not gone far enough. The result will
be the devolution of more competences to the Scottish Parliament
together with considerable tax-raising powers.1
An underlying tension between devolution of power and the cen-
tralisation of power can be identified. If the UK trends in devolution
and regional government are viewed from a wider European angle,
the principle of subsidiarity set out in the consolidated version of the
Treaty of the European Union (TEU) can be regarded as having far-
reaching significance in encouraging decentralisation and regionalism.
Article 5.3 states that:
Under the principle of subsidiarity in areas which do not fall within its exclu-
sive competence, the Union shall act only if and in so far as the objectives of
the proposed action cannot be sufficiently achieved by the Member States,
either at central level or at regional level and local level, but can rather, by
reason of the scale or effects of the proposed action, be better achieved at
Union level.
Article 5.4 provides that ‘Under the principle of proportionality the
content and form of Union action shall not exceed what is necessary to
achieve the objectives of the Treaties’.
Subsidiarity addresses the difficult question of what is best achieved in
the application of European law and policy at European level, and what
is best achieved at national level, but the principle is not prescriptive of
the internal organisation of member states. Indeed, subsidiarity is not
clearly defined and has been interpreted in different ways by different
nations.2 For example, the UK Government interpreted Article 3B of
the original TEU as representing decentralisation in the sense of power
being exercised at the level of the nation state in seeking to achieve
Community objectives. The Germans saw the principle applying to a
federal system with Community objectives being implemented at the
level of the individual states (which are called Lander). Notwithstanding
these differences, the crucial point is that subsidiarity has legitimised
claims for decentralisation in Europe. As one commentator puts
1 See Scotland Act 2016.

2 See P Craig and G de Búrca, EU Law: Text, Cases and Materials, 2nd edn
Introduction 245
it: ‘No longer must arguments be made for the devolution of power
from the nation-state. Instead the nation-state itself must defend its
legitimacy against claims from communities demanding greater controls
over decision making.’3 Also, the EU has been influential in encourag-
ing devolved and regional government in a different context, namely,
the capacity for the regions to be eligible for EU regional funding. To
put it simply, it might appear that there has been a momentum building
up giving rise to the weakening of the nation state, and a consolidation
of the position of the EU, which has had the effect of promoting the
cause of devolved forms of government. At the same time, a wider
trend towards recognition of smaller nation states in Eastern Europe
has been encouraged by the collapse of the Soviet Union in 1991 and
the resurgence of nationalism.
Despite the fact that varying degrees of power were conferred on the
devolved institutions in Scotland, Wales and Northern Ireland as part
of devolution, it would be a mistake to underestimate the continuing
role of central government. In a formal sense the Westminster Parlia-
ment retained sovereignty, and, until recently, control over the financing
of devolution (see below). Another feature of devolution has been the
limited amount of litigation relating to the powers allocated. This is
partly because the arrangements have been co-ordinated by a network
of soft law agreements between Whitehall and the devolved administra-
tions, called concordats.
If we turn to local government, we find a different picture. Local
government operates under powers granted by Parliament under
statute. Far from extending the autonomy of local authorities, we will
see that legislation has been introduced by governments of both Con-
servative and Labour persuasions to constrain the activities of local
authorities and to rein back their spending powers. The effect of these
policies has been to concentrate power at the centre. Local government
has been in decline. Public involvement in the political process at a
local level has atrophied, with turnouts at local elections dropping to
extremely low levels. Recent governments have partially responded with
attempts to encourage wider participation by introducing new models
for decision-making by local councils, and by setting up more transpar-
ent accountability mechanisms.
3 J Hopkins, Devolution in Context: Regional Federal and Devolved Government in the
European Union (London, Cavendish, 2002) 29–30.

PART I: DEVOLUTION
BACKGROUND TO DEVOLUTION
Devolution has been the preferred form of government in Northern

Ireland since the partition of Ireland in 1922, but it became an impor-
tant political issue for the UK as a whole in the 1970s. Support for the
Scottish Nationalist Party (SNP) had risen between 1964 and 1974, and
the Welsh Nationalist Party also emerged as a force in domestic politics.
However, the original devolution legislation for Scotland and Wales
introduced by the Labour government of 1974–79 failed to attract the
popular support in referendums required for its implementation. Sub-
sequently, the Conservative Party was in government for 18 years. Dur-
ing this period political power was concentrated at Westminster, and
South-East England boomed economically. This success was perceived
to be at the expense of Scotland, Wales, and the English regions, which
resulted in a build-up of pressure for change. There was a spectacular
decline in political support for the Conservatives in Scotland and Wales,
and the party failed to win a single Scottish or Welsh parliamentary seat
at Westminster in the 1997 General Election. In 1997 the Labour Party
was elected with a manifesto commitment to introduce devolution for
Scotland and Wales. Labour also promised a directly elected Mayor and
Assembly for London. Legislation was introduced immediately in the
form of the Scotland Act (SA) 1998, and the Government of Wales
Act (GWA) 1998. The electors of Scotland and Wales were required
to approve the legislative measures passed by the Westminster Parlia-
ment in order for devolution to be put into effect, and referenda were
successfully held in 1998. In contrast, the new form of devolution
for Northern Ireland was intended to settle the conflict between the
main communities. It was based on the ‘Good Friday’ peace agreement
reached in April 1998. Devolution was introduced following a referen-
dum on this agreement, which then formed the basis of the Northern
Ireland Act (NIA) 1998.
Devolution was not part of a grand constitutional design; rather the
approach in each case needs to be understood in relation to the distinct
history of each nation. Scotland has been united with England since the
Act of Union of 1707, but aspects of the system were not fully inte-
grated. For example, Scotland retained its own legal system and differ-
ent system of education. In contrast, Wales is closely linked to England,
Devolution 247
for example, through the Act of Union of 1536, sharing institutions

(except certain quangos) but with a strong separate cultural identity and
language. Northern Ireland has two distinct and conflicting traditions
that the power-sharing system seeks to reconcile. The extent to which
power has been devolved varied markedly with each statute. The devo-
lution legislation has produced an asymmetrical distribution of powers
because the extent of the powers given to the Scottish Parliament and
the Assemblies in Wales and Northern Ireland are different.
The handover of power from Westminster to the devolved execu-
tives was relatively straightforward. The smooth transition was possible
because, for the most part, the functions previously administered by the
Scottish Office, Welsh Office, and Northern Ireland Office were con-
ferred on the devolved executives, and the civil servants from central
government formed the core administration as part of the new scheme.
Moreover, the mechanisms of accountability that have been set in place
as part of devolution are in several ways different from those at West-
minster. The Labour government sought to bring democracy closer to
the people by introducing these reforms. The devolution arrangements
not only provide the electorate in each nation with the right to vote on
the basis of proportional representation, but each piece of legislation
introduces its own brand of democratic institutions and processes.
SCOTTISH DEVOLUTION
The strongest support for devolution has been in Scotland, which has
its distinct system of law, education, and church allied to a tradition of
nationalism, with a minority seeking independence. In the wake of the
discovery of reserves of oil and gas offshore in the 1960s, national-
ists in the 1970s maintained that Scotland could claim economic self-
sufficiency. The cause of nationalism has been further reinforced by
UK membership of the European Union. A case has been made for an
independent Scotland within Europe, which would not only expect to
reap the benefits of EU funding provision, but would also be protected
from the imposition of tariffs from England. Furthermore, an indepen-
dent Scotland would possess a veto in Europe, which could be used if
its interests were threatened. The Republic of Ireland served as a model
of a successful small independent state, which had managed to establish
itself within the EU. The Kilbrandon Commission, which reported in
1973, recognised that the system of government was over-centralised

and recommended an elected assembly for Scotland and a lesser form
of legislative devolution for Wales.
The SA 1998 conferred more powers than the other original devolu-
tion statutes. Scotland acquired a Parliament rather than an Assembly
that was empowered to pass primary laws but this power was limited
to matters within the scope of its legislative competence. Functions
conferred on the Scottish Parliament and Executive included from the
outset: education, law, courts, prisons, judicial appointments, economic
development, agriculture, fisheries, local government, the environment,
housing, passenger and road transport, forestry, and the arts. In the
wake of the 2014 referendum on independence the list of competences
has been significantly expanded.4 The Scottish Parliament assumes all
powers in relation to the holding of elections at devolved level and for
local government in Scotland. The additional list of powers devolved
to the Scottish Parliament is headed in importance by the devolution of
Welfare benefits which means the Scottish Parliament will have auton-
omy in determining the structure and value of existing benefits or of
any new benefits which might replace them. Further, the Scottish Parlia-
ment will take over responsibility for the support for the unemployed.
In addition, certain powers in relation to energy efficiency and fuel
poverty will be transferred to Scotland. In the domain of broadcasting
there will be a formal consultative role for the Scottish Government
and Scottish Parliament in reviewing the Charter under which the BBC
operates and in appointments to and the setting of strategic priorities
for the broadcasting regulator OFCOM. Other areas where additional
powers will be devolved include consumer advice and advocacy, rail
franchising, roads and onshore oil and gas extraction.5
Matters reserved for Westminster are listed in some detail in the
1998 Act.6 This provision means that the interpretation of the SA 1998
under section 29(2)(b) is important constitutionally, since it provides
that a matter is outside the competence of the Scottish Parliament if it
relates to any of these reserved matters. If this section were to be given
a narrow definition, it would restrict the Scottish Parliament’s legisla-
tive capacity. Originally the Judicial Committee of the Privy Council
4 See Scotland Act 2016.

5 See Scotland in the United Kingdom: An enduring settlement, January 2015, Cm 8990.
6 SA 1998, sch 5.
Devolution 249
was required to determine whether the Scottish Parliament enacted

legislation outside its powers, and it was empowered to set aside such
legislation.7 However, when the Supreme Court replaced the House of
Lords in 2009 it took over jurisdiction for devolution cases from the
Judicial Committee of the Privy Council.8 The Scottish Parliament can
determine its own procedures for passing legislation and for executive
accountability. A system of subject committees has been introduced
which combines the oversight function of select committees with the
role of standing committees in scrutinising legislation.
The additional member system selected for Scotland is based on
the election of a constituency member for each of the 73 pre-existing
Scottish constituencies, with a total of 56 additional regional members.9
Each elector is entitled to cast two votes, one for a constituency candi-
date and the other for a regional candidate. A member is returned for
each constituency on the basis of first past the post, and the additional
member system operates on a top-up basis which allows a party that
has won disproportionately fewer seats in relation to their overall level
of support to be allocated additional seats from the party list of can-
didates. The system is designed to make sure that the outcome will be
approximately proportional to the popular votes cast for each party.
The Scottish system of devolved government has a single-chamber
Parliament of 129 members (MSPs), which normally meets for a four-
year term.
Following an election to the Scottish Parliament, a government is
formed after Parliament has nominated a Scottish First Minister.10 If
MSPs cannot agree on a suitable candidate as First Minister, the Parlia-
ment’s Presiding Officer is required to enter into negotiations with the
parties to facilitate the selection of a candidate. After a nomination
has been accepted the First Minister is empowered to appoint min-
isters from the MSPs to form a Scottish Executive. The executive is
roughly equivalent to the Cabinet, and the ministerial appointments are
made subject to formal approval by the Queen. The First Minister and
Scottish Executive are directly accountable to the Scottish Parliament
for the policies pursued by the devolved administration.
7 SA 1998, s 98, sch 6.

8 Constitutional Reform Act 2005, s 40, sch 9.
9 SA 1998, ss 5–8.
10 SA 1998, ss 45 and 46.
Scottish Legislation
The Scottish Parliament can pass primary legislation in areas within its
legislative remit.11 Bills can originate from ministers (executive bills),
MSPs (members’ bills), or parliamentary committees (committee bills).
The process is designed to be open and participatory with a formalised
process of pre-legislative consultation. The first parliamentary stage
allows discussion by the full Parliament of the general principles of a
Bill. The second stage is designed to provide detailed scrutiny. The Bill
is normally referred to the relevant subject committee, which takes evi-
dence as the ‘lead’ committee (eg from Scottish ministers and officials)
and then compiles a report. Unlike the standing committees at West-
minster (see Chapter 5), these specialist subject committees, which are
formed for each main policy area, perform an important role in regard
to the passage of legislation, as well as being responsible for scrutinising
the executive. At the third stage, the full Parliament decides whether to
accept or reject the final amended version of the Bill.
Although not part of the SA 1998 or parliamentary rules, it was
agreed as part of the new arrangements that the UK Parliament would
not normally legislate in areas devolved to Scotland without the con-
sent of the Scottish Parliament. This agreement, which is commonly
referred to as ‘the Sewel Convention’, was considered necessary to
prevent the role of the Scottish Parliament from being undermined by
the Westminster Parliament. However, in practice, the situation has not
worked out quite as originally envisaged, because Scotland’s Parliament
and executive have regularly consented to the Westminster Parliament
legislating on devolved matters, so that Westminster legislation contin-
ues to be of importance in relation to certain devolved areas of com-
petence. Despite the number of Sewel motions in terms of its overall
output, the Scottish Parliament has still produced a substantial amount
of ‘home grown or self-generated legislation.’12
11 SA 1998, ss 28–39.
12 A Page, ‘A Parliament that Is Different?’ in R Hazell and R Rawlings (eds),
Devolution, Law-making and the Constitution (Exeter, Imprint Academic, 2005) 12.
Devolution 251
Finance and Tax Raising
In its original form devolution failed to link spending with revenue

raising at devolved level. The conferment of tax-raising powers on a
Scottish Parliament had featured prominently in the discussion that pre-
ceded the introduction of the legislation. The referendum in Scotland
to approve devolution had a second question, asking for the endorse-
ment of a Parliament with tax-raising powers. Despite the attention
devoted to this issue when devolution was under discussion, the finan-
cial powers actually conferred by the SA 1998 were limited, never used
and have since been abolished.13 The £14 billion budget allocated by
Westminster in 1998 was calculated under the block grant Barnett for-
mula (explained below) dating from the late 1970s, which takes account
of equivalent spending levels in England for the devolved functions,
but Scotland has been granted under the formula a higher percentage
(10.34 per cent) per member of the population to allow generously for
the economic circumstances then prevailing. The Scottish Budget has
risen significantly with the total amount for the tax year 2015–16 calcu-
lated at £37.5 billion, including some locally raised taxes available under
the Scotland Act 2012.14
The Calman Commission, which was established by the Scottish
Parliament and UK government in 2007 to review devolution nearly
10 years after its introduction, recommended the abolition of variable
income tax and its replacement with a new Scottish rate of income
tax.15 The main changes included in the SA 2012 have been overtaken
by events and the financial powers about to be introduced under the
Scotland Act 2015 will go considerably further on the path to grant-
ing Scotland a high degree of fiscal autonomy. The 2012 Act would
have provided that the rates of income tax set annually by the United
Kingdom government would be reduced for Scotland by 10p in the
pound. At the same time the Scottish Parliament would levy a single
rate of income tax to apply in Scotland in addition to the UK rate.
13 See Part IV, Scotland Act 1998 and the Scotland Act 2012 which sets out a
new legislative framework repealing the Scottish Variable Rate.

14 Scottish Budget: Draft Budget 2015–16, The Scottish Government,
Edinburgh 2014. www.gov.scot/Publications/2014/10/2706/downloads.

15 Calman Commission, Serving Scotland Better: Scotland and the United Kingdom in the
21st Century, Final Report, June 2009.

The Scottish Parliament could choose a 10 per cent Scottish rate (which
would restore the overall rate of income tax back to the levels for the
rest of the UK) or it could choose a higher or a lower rate. If spending
by the Scottish government increased beyond present levels the block
grant allocation from Westminster would be reduced and the differ-
ence made up by raising the rate of the Scottish income tax. Although
Scotland would continue to receive a block grant from Westminster, the
Calman Commission looked beyond the Barnett formula to its replace-
ment by a new needs-based block grant that would be determined by a
UK Funding Commission operating at arm’s length from the treasury.16
Not only is the Scottish Parliament now also able to borrow money
and raise revenue via other local taxes but also, following the introduc-
tion of the post referendum legislation in 2016, a significant proportion
of Scottish revenue will be raised post 2016 via a Scottish income tax
and from receipts from value added tax collected in Scotland. These
changes introduce for the first time the substantial link between spend-
ing and revenue raising which was previously missing. Certainly, it will
take some time for the full impact to feed through the system. In one
study Fiscal Affairs Scotland has estimated that Scotland could have a
large deficit after full fiscal autonomy is devolved.17 More spending in
Scotland will now translate into higher taxes. According to one leading
economist:
There is only one way in which the Scottish government’s new freedom to
vary income tax can be exercised, and that is to raise it. That was not what
the supporters of devolution had in mind when they asked for additional
powers.18
The 2014 Referendum: Independence for Scotland?
In the elections for the Scottish Parliament held in May 2011 the Scottish
Nationalists won an overall majority.19 This result and the subsequent
16 Ibid, Recommendations 3.1–3.7.

17 See ‘Scotland’s Fiscal Balance position: Better or worse off under Indepen-
dence as part of the UK?’, Fiscal Affairs Scotland, August 2014.
18 J Kay, ‘Income tax in Scotland can only go up if new powers are exercised’
Financial Times, 3 December 2014.

19 J Curtice, ‘Put Out by the Count’, The Scotsman, 8 May 2011.
Devolution 253
consolidation of support for the SNP in the May 2015 general e lection
has changed the political landscape in Scotland and at Westminster not
only because it shows the unpopularity of the other parties at the ballot
box, but because in Scotland’s unicameral system, the SNP is left in a
dominant position in the Scottish Parliament and it is able to pass leg-
islation notwithstanding opposition objections. The dominance of the
SNP in Scotland also created an interesting dilemma over independence
for the party. The SNP has been committed to independence and it
therefore promised to hold a referendum on independence at the first
opportunity but under the Scotland Act 1998 the right to call a binding
referendum on independence lay with the Westminster government.
Nevertheless, it was this unexpected electoral success, indicating a clear
mandate in Scotland for an independence referendum, that prompted
the UK government to enter into direct negotiations with the Scottish
Government on the holding of such a referendum. The principle of
a binding Scottish referendum was then conceded by Prime Minister
Cameron on behalf of the Westminster coalition government. The vote
for or against independence exposed the nation to the genuine risk of
constitutional disintegration but, equally despite the electoral success
of the SNP, surveys repeatedly suggested that there was no majority
in Scotland in support of independence and a decisive rejection after a
full debate might stem the incoming tide of nationalism.20 At the same
time, the economic case for independence remained unclear. Would an
independent Scotland be able to retain the pound? What remaining oil
revenue would be available to a Scottish Exchequer after independence?
The SNP were keen on leaving the UK but were intent on joining the
EU as an independent nation state without any assurance that this
would be possible. Further there was no consensus amongst those in
favour of independence about what independence should amount to in
practice. For example, would an independent Scotland keep the Queen
as head of state and the same defence arrangements? A national discus-
sion in Scotland ranged over this series of crucial, and, at the same time,
controversial issues with the prospect of independence adding to the
intensity of the debate. Both unionists and nationalists shared a belief
in Scotland’s nationhood but unionists clung for the time being at least
20 See also P Leyland, ‘Referendums, Popular Sovereignty, and the Territorial
Constitution’ in R Rawlings, P Leyland and A Young (eds), Sovereignty and the Law
to the idea that national aspirations could be reached within the United
Kingdom.
Turning next to the result, in response to the question: ‘should
Scotland be an independent country?’, in statistical terms 2,001,926
voted to remain part of the Union by registering a ‘No’ vote, while
1,617,989 voted in support of independence with a ‘Yes’ vote. Although
at one stage opinion polls suggested the campaigns were close, this
outcome amounted to a decisive margin of 55.3 per cent against
with 44.7 per cent in favour. The turnout of 3.6 million comprising
84.6 per cent of the electorate was very high by UK standards and it
included many 16 and 17 year olds who were able to vote for the first
time. Against the backdrop of falling participation in elections the
referendum was viewed by many commentators as a victory for the
democratic process because of the high turnout and the sophistication
of the debate.21 Moreover, the bare statistics do not reflect the addi-
tional demands for autonomy which were integral to the popular mood
of the campaign. Mainstream politicians from all three major national
parties signed up to ‘The Vow’—a promise of additional powers for
Scotland. In the immediate aftermath of the vote the all-party Smith
Commission was set up to assist in its implementation by way of legisla-
tion and the nature of these powers is discussed above.22 Furthermore,
the political consequences have been profound. Scottish First Minister
Alex S almond resigned despite the strength of the nationalist campaign
he fronted, to be replaced by his deputy Nicola Sturgeon, but the main
development has been the continued sharp decline of the other major
parties in Scotland, particularly the Labour Party, as evidenced by the
result of the May 2015 election leaving them each with a single MP. On
the other hand, the SNP advanced from 18.9 per cent of the vote and
6 seats in 2010 to 50 per cent of the popular vote, winning 56 out of
the 59 Westminster seats in Scotland.
21 J Stanton, ‘Democracy and Scotland: Turning out for something special’ UK
Const L Blog, 19 November 2014.

22 For a wider overview see: House of Lords, Select Committee on the Constitu-
tion, ‘Proposals for the devolution of further powers to Scotland’, 10th Report of
Session 2014–15, 24 March 2015.
Devolution 255
WELSH DEVOLUTION
After the Act of Union of 1707 which combined the English and
Scottish Parliaments, Scotland retained a distinctive legal system, edu-
cational system, and church. By way of contrast, Wales has been closely
integrated with England for the purposes of law and administration
since the late Middle Ages. Welsh nationalism has been inspired by a
desire to see formal recognition of the Welsh national identity, lan-
guage and cultural heritage, rather than being built upon distinctive
institutions of law and administration. Although there has been strong
nationalist support in some areas, it was not easy to muster a majority in
favour of devolution. The referendum in 1998 with a 50.1 per cent vote
in favour only just achieved the majority required for the provisions
of the GWA 1998 to be activated (the 1978 referendum demonstrated
minimal support for devolution).
The electoral system for Wales is similar to that introduced in
Scotland.23 The GWA 1998 set up a single-chamber Assembly for
Wales, consisting of 60 members. It must be elected every four years.
There is one member for each of the 40 Welsh constituencies (identi-
cal to the constituencies for the Westminster Parliament), and four
for each of the five Assembly electoral regions. The method used is
a mixture of simple majority and proportional representation. Each
elector is given two votes. Assembly members for each constituency are
returned by simple majority, while the four Assembly members for each
region are returned under an additional member system of proportional
representation.
The Welsh Assembly is required to form policy and take decisions in
its particular areas of responsibility, and through its subject committees
it is responsible for executive scrutiny. However, the Welsh Assembly
does not have the power to pass primary legislation. Since the introduc-
tion of devolution there have been calls to give the Welsh Assembly
the power to pass laws (see GWA 2006 below), but to date it has been
the responsibility of the Secretary of State for Wales to guide Welsh
legislation through the Westminster Parliament. However, the Welsh
Assembly does have the power to pass secondary legislation.24
23 GWA 1998, ss 3–7.

24 GWA 1998, ss 64–68.
The Welsh Executive has taken over by transfer orders most of the
administrative functions of the Secretary of State for Wales under the
GWA 1998.25 Cabinet members have the equivalent of departmental
responsibility for their given policy areas. But whereas the Scottish
Parliament is granted general competence, subject to the reserved mat-
ters under the SA 1998, in the case of Wales, powers are conferred in
respect of particular areas of policy. The principal matters devolved
are: agriculture, forestry, fisheries and food, environmental and cultural
matters, economic and industrial development, education and training,
health, housing, local government, social services, sport and tourism,
town and country planning, transport, water and flood defences, and
the Welsh language. The Assembly and executive are also responsible
for many Welsh quangos (non-departmental governmental organisa-
tions, funded and appointed by government, eg Welsh Health authori-
ties, the Welsh Tourist Board).
The Cabinet style of government is formed following an election.
The newly elected members of the Welsh Assembly vote for a First
Secretary. Once elected, the First Secretary has the power to appoint
an Executive Committee of Assembly Secretaries, which forms the
equivalent of a Cabinet. The ministerial portfolios of this Executive
Committee (the combinations of policy areas allocated to the individual
Assembly Secretaries) determine the areas of competence of the scru-
tiny committees (subject committees) that are subsequently formed.
The appointments to the Executive Committee may be from a single
party or a combination of parties.
Additional Powers for the Welsh Assembly
The dynamics of devolution have been evident from the outset. It was
obvious that there were shortcomings with the original system of devo-
lution in Wales.26 Not only was there a lack of legislative power, but
also the institutional arrangements did not quite work out in practice
as originally envisaged. In particular, although the National Assembly
of Wales was formed as a single corporate body, a de facto division
25GWA 1998, s 22(2), sch 2.

26R Rawlings, ‘Hastening Slowly: The Next Phase of Welsh Devolution’ [2005]
PL 824, at 825.
Devolution 257
emerged post-devolution between the Welsh Assembly government

and the Welsh Assembly as representative body. The Welsh Assembly
government has been recognised under the GWA 2006 as an entity
separate from, but accountable to, the National Assembly. The Richards
Commission was set up in 2002 to look into enhancing the powers of
the Welsh Assembly and to consider changes to the electoral arrange-
ments in Wales. The Commission27 recommended that the membership
of the Welsh Assembly should expand from 60 to 80 members and that
it should be elected by single transferable vote (STV) rather than the
present additional member system. The Labour Party manifesto in May
2005 promised to ‘develop democratic devolution by creating a stronger
[Welsh] assembly with enhanced legislative powers.’ Section 93 of the
GWA 2006 was a major step towards enhancing the legislative power of,
the Assembly. It granted powers to pass a form of law which was known
as a ‘Measure of the National Assembly of Wales’. These ‘measures’
were enacted by first receiving scrutiny and approval by the Assembly,
and then the measure being referred to the Westminster Parliament for
approval by resolution of each House before being recommended as
a new form of Order in Council.28 In effect, this new procedure cre-
ated a special form of delegated legislation which potentially could be
vetoed at Westminster. The revised procedure solved the problem of
securing the passage through the Westminster Parliament of legislation
required for Wales. Previously, Welsh Bills had to take their place in the
queue, and then they were shepherded through Parliament by the Sec-
retary of State for Wales.29 The revised legislative arrangements might
have proved problematic if a strong conflict of wills had developed
between the Welsh Assembly and the Westminster Parliament. After
the 2011 National Assembly election Labour obtained a majority in
the Assembly, while a Conservative/Liberal Democratic coalition gov-
ernment was in place at Westminster. In such circumstances the veto
powers might have been exercised to rein back the Welsh Assembly,
27 Report of the Richard Commission on the Powers and Electoral Arrangements of the
National Assembly for Wales (March 2004).

28 GWA 2006, s 94. Orders in Council are usually secondary legislation issued
under powers in a parent Act, and they are often used for transferring powers and
responsibilities.
29 R Rawlings, ‘Law Making in a Virtual Parliament: the Welsh Experience’ in
R Hazell and R Rawlings (eds), Devolution, Law Making and the Constitution (Exeter,
Imprint Academic, 2005).
or the Secretary of State could have used powers granted under the
2006 Act to refuse, with reasons, to lay an Assembly Measure before
Parliament. However, this problem never arose in practice because the
Welsh Assembly acquired its own law-making powers. The GWA 2006
made provision for the holding of a referendum if there was support
of a two-thirds majority of Assembly members to decide on granting
the Assembly law-making powers. After receiving the requisite Assem-
bly support a decisive ‘Yes’ vote of 63.5 per cent was registered in the
Welsh referendum held in March 2011.30 In consequence, the Assembly
elected in May 2011 was able to pass legislation relating to matters listed
in Schedule 7 of the GWA 2006. In common with the SA 1998 and the
NIA 1998, sections 110–115 of the 2006 Act introduces pre-legislative
and post-legislative scrutiny to ensure that Assembly legislation remains
within competence; in addition, however, under section 114(2) the
Secretary of State for Wales may make an order prohibiting the Clerk
from submitting a Bill for the Royal Assent. Wales is set to follow in
the wake of Scotland in other significant respects. In line with the Silk
recommendations the Wales Act 2014 paves the way for a locally raised
income tax in Wales and further legislation is expected to introduce a
reserved powers model of devolution (as in Scotland) which would
result in all functions being devolved except those specifically listed as
remaining with Westminster.31 It is highly significant that Welsh devo-
lution is evolving to acquire greatly enhanced powers and thus more
closely resemble the systems in Scotland and Northern Ireland.
POWER-SHARING IN NORTHERN IRELAND
It was pointed out in the opening chapter that the culmination of the
campaign for Irish home rule came after World War I and led to the for-
mation of an independent Irish Free State in the mainly Catholic south;
after first being given dominion status, the new state became the fully
independent Irish Republic. For the six counties in Northern Ireland
30 Although this was a decisive endorsement the turnout in the referendum was
only 35%.
31 See ‘Powers for a Purpose: Towards a Lasting Devolution Settlement for Wales’
February 2015, Cm 9020 and ‘Empowerment and Responsibility: Financial Powers

to Strengthen Wales’ (Silk) Commission on Devolution in Wales, November 2012.
Devolution 259
the Stormont Parliamentary system of devolved government was set

up by the Government of Ireland Act 1920 in order to avoid direct rule
from Westminster. The arrangements conferred considerable powers to
the Parliament and executive, but the method of government formation
resulted in a permanent Unionist majority. The devolved government
at Stormont pursued policies which were regarded as discriminatory
by the Catholic minority, and the flaws in the system, particularly
the under-representation of Catholics, contributed to the upsurge in
violence during ‘the Troubles’ of the 1970s and 1980s. Stormont was
suspended in 1972, and Northern Ireland was governed directly from
Westminster, with executive functions being performed by the Secretary
of State, Ministers of State, and officials at the Northern Ireland Office
(see Chapter 1).
The NIA 1998 was designed to restore devolved government.32
It resulted from protracted negotiations between the UK and Irish
governments and main political parties which led to the Good Friday
Agreement in 1998. The elements of power sharing were agreed by the
parties, but the controversial question of disarmament of paramilitary
elements was set to one side as a separate process to be realised in
stages. The new arrangements were plagued with difficulties up until
2007. In particular, lack of progress with the disarmament process led
to delays and later repeated breakdowns in the operation of devolved
government itself. As well as establishing a system of devolved govern-
ment, the main objective in Northern Ireland was to accommodate
the deep-seated political differences between Unionist and Republican
communities. Specialist watchdogs were designed to oversee the wider
process of reconciliation. For instance, a Northern Ireland Human
Rights Commission was set up under section 68 of the NIA 1998 to
promote awareness of the importance of human rights in Northern
Ireland. At the same time, the Equality Commission for Northern
Ireland was established under section 73 of the NIA 1998 as an inde-
pendent public body responsible for the elimination of discrimination,
and also for promoting good relations between different racial groups.
32 C McCrudden, ‘Northern Ireland, The Belfast Agreement and the British
Constitution’ in J Jowell and D Oliver (eds), The Changing Constitution, 6th edn
A directly elected Assembly consisting of 108 members elected every

four years was established in Northern Ireland.33 These members are
elected by single transferable vote (STV) from 18 six-member con-
stituencies. The Assembly is given competence to exercise legislative
authority34 over those matters falling under the responsibility of the
shared office of First and Deputy First Minister and the 12 N orthern
Ireland government departments35 (with the possibility of taking on
responsibility for other matters as detailed elsewhere in the Good
Friday Agreement). The Presiding Officer of the Assembly examines
proposed legislation to ensure it falls within the legislative scope of
the Assembly. Legislation passed by the Assembly requires the Royal
assent,36 and the NIA 1998 further provides that this law-making power
should not affect the sovereignty of the UK Parliament.37
The NIA 1998 has created a unique system of compulsory power-
sharing at every level of decision-making to ensure joint participation
by both communities in the processes of government. In order to
accommodate Nationalist aspirations for a united Ireland, the system of
government is linked to that of the Irish Republic. To satisfy Unionists’
fears that the union could be severed without consent there are links
with the United Kingdom. The North–South Ministerial Council brings
together members of the executive of the Northern Ireland Assembly
and representatives of the Irish government for the purposes of co-
operation on issues of common interest. The British–Irish Council is
a body to consider broader mutual interests with the United Kingdom.
It consists of representatives from the Scottish Parliament, Welsh
Assembly, the Channel Isles, and the Isle of Man. To satisfy nationalist
aspirations the need for on-going consent to remain part of the United
Kingdom is built into the legislation. The Northern Ireland Assembly is
33 See Northern Ireland (Elections) Act 1998, s 1, and NIA 1998, Part II.
34 See G Anthony and J Morison, ‘Here, There and (Maybe) Here Again: The
Story of Law Making for Post-1998 Northern Ireland’ in R Hazell and R Rawlings
(eds), Devolution, Law Making and the Constitution (Exeter, Imprint Academic, 2005).
35 The NI government departments are: Agriculture and Rural Development;
Culture, Arts and Leisure; Education, Employment and Learning; Enterprise,

Trade, and Investment; Environment; Finance and Personnel; Health; Social Ser-
vices and Public Safety; Regional Development; and Social Development.
36 NIA 1998, s 5(2).
37 NIA 1998, s 5(6).
Devolution 261
empowered to pass legislation but unlike its Scottish counterpart it has

no independent tax-raising powers.
Between 1999 and 2007 devolution was repeatedly suspended in
Northern Ireland because of political difficulties. On each occasion the
Northern Ireland office resumed executive responsibility for adminis-
tration of policy. The viability of the entire process was threatened by
issues that had not been fully resolved at the time of the Good Friday
agreement in 1998. In particular, notwithstanding the acceptance of the
institutional framework outlined above, the clash was over the decom-
missioning of weapons held by paramilitary organisations, a key demand
for Unionists, and the devolution of criminal justice and policing which
was crucial for nationalists. The situation became more favourable for
reaching a settlement in 2005 as the IRA had demonstrated its com-
mitment to peace by putting its arms beyond use. The electoral gains
and consolidation of support for the more extreme Sinn Fein (SF) and
Democratic Unionist Parties (DUP) in the elections of 2003, 2007 and
2011 at the expense of Social Democratic and Labour Party and Ulster
Unionists changed the political dynamics by prompting direct negotia-
tions between the more extreme parties. This made it more likely that
any agreement would be fully implemented. A final attempt to resolve
the conflict was jointly initiated by the Prime M inisters of the United
Kingdom and the Irish Republic in 2006 which culminated in the
St Andrews Agreement. The Northern Ireland (St Andrews Agree-
ment) Act 2006 which put the agreement on a statutory footing com-
bined a timetable for the transfer of criminal justice and policing with a
timetable for the resumption of devolved government. Following elec-
tions to the Assembly, devolution resumed in May 2007 with Ian Paisley
(DUP) elected by the Assembly as First Minister and Martin McGuiness
(SF) as Deputy First Minister and, after prolonged negotiations, police
and justice powers were devolved to a Northern Ireland Department of
Justice on 12 April 2010. This department is overseen by a Justice Com-
mittee of the Northern Ireland Assembly. The fact that devolution has
been uninterrupted for well over five years suggests that power sharing
can work38 but some dissident Republican groups in Northern Ireland
refuse to accept devolution and are still prepared to resort to violence.
38 R Wilford, ‘Northern Ireland: The Politics of Constraint’ (2010) 63 Parliamen-
tary Affairs 134.

FUNDING DEVOLUTION
Devolution has been underpinned by a secure financial base. In

essence, until the major changes in Scotland discussed above are fully
implemented the methods for financial allocation of funds from cen-
tral government that preceded devolution have been retained without
significant modification (apart from the extra tax-raising power given
to the Scottish Parliament). The funding parameters for Scotland,
Wales, and Northern Ireland are determined by a ‘block and formula’
system named after Lord Barnett, who was the Chief Secretary to the
Treasury responsible for its introduction. The Barnett formula has
operated by setting out a ratio by which the total spending is fixed in
relation to England. An overall budget is made available annually by
the Westminster Parliament in each departmental field and the Barnett
formula has determined the allocations for the increase or decrease in
expenditure according to a ratio calculated on relative population size.
In its original form for every £85 spent on English services, Scotland
received £10, Wales £5, and Northern Ireland £2.75. In effect, it guar-
antees an amount reflecting a proportion of the spending allocated to
England. For example, at the time when devolution was introduced in
1998 for every £100 of spending per head in England, £132 was spent
in Scotland.39 In 1997 the government introduced an annual revision
of the Barnett population weighting based on the latest population
estimates for England, Scotland, Wales, and Northern Ireland. The
formula relates the levels of spending by the Westminster Parliament to
the amounts made available to Scotland, Wales, and Northern Ireland.
Each nation has been able to count upon a consistent overall level of
funding. The devolved executives are under an obligation to ensure
that sufficient funds are allocated to meet statutory requirements in the
main policy areas. However, that apart, there is a wide discretion in the
allocation of resources, which can be diverted from one policy area to
another. Scotland introduced care for the elderly and government sup-
port for students; neither of these benefits has been made available to
the equivalent groups in England.
Two further points should be noted. First, a general decline in popu-
lation and variations in patterns of public expenditure determined by
39 N Kay, ‘The Scottish Parliament and the Barnett Formula’ (1998) 24(1) Fraser
of Allander Institute Quarterly Economic Commentary 22–48.

Devolution 263
central government could prove detrimental to Scotland, Wales, and

Northern Ireland. In view of such trends and other criticisms there
have been repeated calls to review the Barnett formula, and it will
almost certainly require some modification. Any comprehensive change
is bound to be controversial because a review of funding introduces
complex economic arguments concerning the extent to which Scotland
and Wales are net contributors to the UK economy. How can the
revenue from oil be offset against the expenditures for health, educa-
tion, and employment? Devolution was able to function for several
years without having to confront such issues directly. Second, an obvi-
ous shortcoming of devolution has been the failure to activate a link
between revenue-raising, in the form of local taxation, and the political
process, in the form of the provision of public services on offer. In its
original form voters in the devolved parts of the UK have not seen a
clear relationship between spending and the taxes they pay at a devolved
level.
INTERGOVERNMENTAL RELATIONS
The co-ordination of administration between central and devolved

government has been managed to a large extent without resort to litiga-
tion between Westminster and devolved government but rather it has
been achieved by means of a series of informal agreements, termed
concordats.40 At an administrative level intergovernmental relations
have required a distinct approach and devolution has been incorpo-
rated into the existing uncodified constitutional arrangements in an
unsystematic and informal fashion. The process has been managed by
mechanisms that exist and operate outside the legislative framework. As
well as the more familiar device in the United Kingdom of conventions,
concordats were drawn up at an advanced stage and amount to a form
of bureaucratic law. First, there is a general Memorandum of Under-
standing (MOU) containing a set of principles. These include: good
communication and information sharing, early warning of policy pro-
posals, co-operation on matters of mutual interest, and rules of confi-
40 See House of Lords, Select Committee on the Constitution, ‘Inter-
governmentalrelations in the United Kingdom’, 11th Report of Session 2014–15,

HL Paper 146.
dentiality to be applied within the workings of the post-devolutionary

system of government. The MOU is supported by a (still) increasing
number of bilateral and multilateral agreements (eg 20 with the Scottish
executive) between the devolved executives and Whitehall departments,
which have been drawn up behind the scenes by senior departmental
officials. The concordats have been introduced in a way that has con-
tributed to a lack of openness and transparency, and this in turn raises
issues of political accountability. There is evidence to suggest that these
agreements have been formulated in a spirit that reinforces an unequal
partnership that tends to allow domination from the centre. Another
dimension to intergovernmental co-operation relates to the Sewel Con-
vention explained above. This convention was deliberately formed to
recognise the respective legislative competencies of the Scottish Parlia-
ment and the Westminster Parliament. It introduced an expectation that
legislation in devolved areas would be routinely enacted by the Scottish
Parliament. Since devolution a great deal of Westminster legislation
continues to apply in Scotland, but before Westminster legislates in
these devolved areas, consent is given by the devolved administration
in Scotland after a Sewel motion has been placed before the Scottish
Parliament.41
THE POLITICS OF DEVOLVED GOVERNMENT
Elections are held at four-year intervals and are not triggered by a defeat
on a Bill introduced by the Scottish executive. There is more freedom
for individual members dissatisfied with proposals to vote against
them. Such opposition might threaten the majority of a ruling coalition
through the withdrawal of support over the issue under consideration,
but a defeat on a policy matter does not trigger an election for the
Scottish Parliament as would be the case with the loss of a vote of con-
fidence in the House of Commons. The introduction of a proportional
element to the electoral system made it difficult for any single party to
obtain an overall majority in the Scottish Parliament or Welsh Assembly.
After the first round of elections a coalition was required to secure the
majority needed to form an administration in Scotland. The Scottish
41 A Page and A Batey, ‘Scotland’s Other Parliament: Westminster Legislation
about Devolved Matters in Scotland since Devolution’ [2002] PL 501.

Devolution 265
Labour Party and the Liberal Democrats formed an alliance in 1999.

The turnout in 2003 was disappointing compared to 1999 with only
38 per cent voting in Wales and 50 per cent in Scotland. Nationalist par-
ties, which have lacked a clear post-devolution strategy, did badly and
lost seats in both Scotland and Wales. In Scotland support for Labour
and for the SNP declined in May 2003. The election was followed by
protracted negotiations between Labour and the Liberal Democrats
over the formation of a new Scottish government. In order to reach
a deal, the Liberal Democrats secured a commitment to introduce
proportional representation for local government elections in Scotland
and the finance portfolio in Scotland. The coalition had a majority of
only two in the Scottish Parliament, and this meant that other parties
had a greater impact than previously. The Scottish Socialist Party with
seven seats and the Green Party with seven seats had more potential to
cause disruption to the legislative process. On the other hand, in Wales,
Labour ruled as the largest minority party after the 1999 election and
improved their performance in 2003 at the expense of Plaid Cymru.
In 2007 it was the SNP who emerged as the largest party, forming
a minority government with 46 seats and 31 per cent of the popu-
lar vote against the 44 seats from 29 per cent of the popular vote
obtained by Labour. Since then the surge in support from SNP has
continued. As mentioned, earlier in 2011 they obtained an overall
majority in the Scottish Parliament with 69 seats and 45 per cent of
the popular vote.
At the devolved level there have been further trends towards greater
democratisation in Scotland. For example, the Scottish Parliament
passed the Local Governance (Scotland) Act 2004, which changed the
method of election for local government elections in Scotland from
2007 to the single transferable vote system. After a re-drawing of local
boundaries, Scottish electors return three or four local councillors per
ward (local constituency). The change also means that there is a distinct
method of voting in Scotland for each form of election (European:
party list PR; Westminster Parliament: first past the post; Scottish Par-
liament: additional member system; Scottish local government: single
transferable vote). Another welcome feature of devolution has been
the very high ratio of women elected to the Welsh Assembly and to the
Scottish Parliament. After the 2003 elections 30 women members were
elected to the 60-strong Welsh Assembly, and there were 48 women out
of a total of 129 MSPs.
The Scottish Parliament and the Assemblies in Wales and Northern

Ireland began work with a strong commitment to more open govern-
ment, in line with a wider trend towards greater openness. The public
has access to the deliberations of committees and more information is
placed in the public domain, including minutes of Cabinet meetings,
which are published within six weeks of a meeting. The Scottish Parlia-
ment has passed a Freedom of Information Act which goes further
than its English counterpart.42
Since the introduction of devolution, Labour’s national party
machine based at Westminster attempted to maintain its control in
Wales, in Scotland, and in London, but without much success. For
example, after the Secretary of State for Wales, Ron Davies, who was
also due to become leader of the Labour Party in the Welsh Assembly,
unexpectedly resigned in 1998 to avoid a scandal, Alun Michael was
appointed Welsh Secretary. His subsequent selection as Labour leader
in the Welsh Assembly relied heavily on strong pressure exerted from
the Westminster Labour Party leadership. After losing support in the
Assembly as a result of a perceived failure to stand up for Welsh inter-
ests, Michael was forced to resign as leader of the Labour group within
a year, in 2000. In the 2003 elections Labour obtained a bare majority in
the Welsh Assembly, which allowed the party to govern in Wales with-
out entering into coalition deals with other parties. Under the leadership
of First Minister Rhodri Morgan, the Welsh Assembly government has
managed to pursue ‘Old Labour’ policies in the sphere of education and
health with a marked emphasis on social justice and it has carried out a
manifesto commitment to abolish Welsh quangos, including the Welsh
Development Agency and Education and Learning Wales.
To take another example, the student fees issue in Scotland is inter-
esting because it has illustrated that changes in policy in Scotland have
a wider impact in the United Kingdom. In defiance of Labour Party
policy in England, the Scottish Parliament decided in 2001 that tuition
fees for Scottish university students would be paid for by the Scottish
Executive. The disparity of treatment between English and Scottish
students has prompted a continuing debate about this issue south of
the border. As we have observed, with the acceptance of devolution it
42 For example, s 30 of the Freedom of Information (Scotland) Act 2002
introduces a ‘substantial prejudice’ test to determine whether information will be

exempted from disclosure.
Devolution 267
is increasingly difficult for the party machine to impose discipline on all

parts of the United Kingdom from the centre. During the Thatcher/
Major era (1979–97) local government had been rigidly controlled to
reduce the cost of government. Although Prime Minister Tony Blair
retained the centralising instincts of his predecessors, the devolution
initiative was designed to move power away from Westminster. If the
impression had been conveyed that devolving power made no differ-
ence because of the intervention of central government this would
have had the effect of undermining the entire initiative. Finally, the
introduction of devolved government did not lead to wider calls for
independence initially or to any significant advance at the ballot box
for the nationalist parties in Scotland and Wales but recent opinion poll
evidence suggests that support for Nationalist Parties is now increasing.
RELATIONS WITH EUROPE
In an era of multi-layered governance, UK devolution has to address

the issue of the implementation of EU law and relations with Europe.
Europe is an important issue post-devolution. First, this is because
Brussels legislates in the same fields over in which power has been
devolved, for example, economic development, agriculture and fisheries,
the environment, training and enterprise. Second, it is because Europe is
a significant source of regional funding. Turning to the implementation
of EU law, there are concurrent powers in existence post-devolution.
In Scotland, Wales, and Northern Ireland, the application of EU law
within the jurisdiction is made a matter for the devolved executives.
The legislation further provides that where Scottish/Northern Irish
ministers are empowered to use section 2(2) of the European Com-
munities Act 1972 to implement obligations under Community law, a
minister of the Crown also retains power to use section 2(2) for the
same purpose. This concurrence introduces an element of ambiguity
concerning compliance with EU law. It is meant to be resolved by ref-
erence to the Concordat on Co-ordination of E uropean Union Policy
Issues, and European policy provides an excellent illustration of the
practical application of concordats. The legislation and the concordat
both emphasise that financial penalties will apply to a devolved admin-
istration for failing to meet deadlines. The UK government is ultimately
responsible, in EU law, for ensuring that EU measures (eg Directives)
are implemented on time.
The EU is of great importance because it offers a potential source

of funding within defined limits on a regional basis, and approximately
a third of the EU’s budget is devoted to its regional policies. A basic
criterion for ‘objective 1 funding’ is to promote the development and
structural adjustment of the less well-off regions. It is increasingly
apparent that in making such allocations the Commission favours
decentralisation and subsidiarity. Decision-making is encouraged at a
level as close as possible to the population that will be affected. Propos-
als for Scotland were approved in December 1999, and over £1 billion
have been allocated for the 2000–06 period. A comparable bid for
structural funding in Wales was approved by the Commission in 2000.
Such funding is not only conditional on shared responsibility between
the different layers of government but brings together the public and
private sectors. A drawback with this EU funding is that any alloca-
tion requires matching contributions to be provided by the Treasury.
The funds have to be found from existing allocations designated for
Scotland and Wales (£885 million of matched funding). Further, it is
the national UK government which is still ultimately responsible for
negotiations with Brussels. Any such negotiations are conducted by
UK rather than Scottish ministers. However, the importance of the EU
to regional governance has been recognised in a number of ways. The
Scottish Parliament and Welsh Assembly have moulded their institu-
tions to respond to Europe with a European Committee in Scotland
and a European and External Affairs Directorate in Wales. A Welsh
European Funding Office is dedicated to the task of bidding for and
overseeing the spending of European structural funding. Moreover,
the case has been accepted for the Scottish Parliament and the Welsh
Assembly having a representative office in Brussels. Scotland and Wales
are represented as roughly equivalent European regions to the German
Länder. Scotland has a representative on the EU’s Committee of the
Regions. In addition, Scottish and Welsh ministers regularly attend
meetings of the Council of Ministers.
DEVOLUTION AND THE COURTS
The courts are required to oversee the limits of the powers conferred
as part of the devolution arrangements. Although from a UK stand-
point Acts of the Scottish Parliament might be regarded as a type of
Devolution 269
s ubordinate legislation, the SA 1998 gives the Scottish Parliament the

right to pass a form of primary legislation over the areas falling under
its competence. (Similar powers have been given to the Northern
Ireland Assembly and the Welsh Assembly following a referendum held
in 2011. See above under law-making powers of the Welsh Assembly.)
Ultimately the job of policing the boundaries of the devolution legisla-
tion is given to the courts. The introduction of new procedures involves
handing over a new kind of constitutional jurisdiction to judges which,
in turn, has important political, as well as legal implications. Any person
or body with locus standi can apply to the court for judicial review to
determine ‘a devolution issue’ and this may involve the court declaring
an Act of the Scottish Parliament to be invalid. The court performs
this statutory role with the assistance of new interpretative rules which
place judges under an obligation to read Scottish legislation and subor-
dinate legislation so as to render any measure under consideration within
the legislative competence of the Scottish Parliament.
In Scotland ‘devolution issues’ concern the legislative competence
of the Scottish Parliament and the extent of the competence of the
devolved Scottish executive. There is a similar provision for the judicial
resolution of devolution issues under the GWA 1998 and the NIA
1998. In Wales the Attorney-General can institute proceedings, for
example, to determine whether a function is exercisable by the Assem-
bly and comes within its powers, or whether the Assembly has failed to
comply with a duty imposed on it.
Certain safeguards are in place to prevent unlawful legislation and
delegated legislation from reaching the statute book under devolution.
In the first place, the SA 1998 sets express limits on the extent of the
Scottish Parliament’s power to legislate. Prior to bringing legislation
before the Scottish Parliament, the Presiding Officer is under a duty
to ensure that legislative proposals fall within the powers conferred on
the Parliament, and following Parliamentary approval, but before the
royal assent is given, there is a four-week delay to allow the Scottish law
officers, if they consider it necessary, to send a Bill to the Privy Council
to determine whether the proposal is intra vires. It should be noted that
the law officers (that is, the Advocate General, the Lord Advocate and
the Attorney-General) have an important role in making sure that this
function is properly discharged.
Challenges to Acts of the Scottish executive or legislation passed by
the Scottish Parliament can be mounted on the basis of incompatibility
with the European Convention on Human Rights (ECHR) (as well as

that of being beyond the executive’s competence). We observed earlier
that in respect of English legislation the Human Rights Act 1998 recog-
nises the sovereignty of the Westminster Parliament and only gives the
courts the right to issue a declaration of incompatibility if a provision
is not Convention-compliant, but any action of the Scottish Executive
or legislation from the Scottish Parliament in breach of the ECHR may
be invalidated. For example, not long after the SA 1998 came into force
the independence of Scottish sheriffs43 was successfully challenged in
Scotland as a ‘devolution issue’ in Starrs and Chalmers v Procurator Fiscal,
Linlithgow 44 because it was successfully argued that as a Law Officer
appointed to the Scottish Executive under section 44 of the SA the
Lord Advocate’s role as prosecutor and in the appointment process
of temporary sheriffs (junior judges) was in breach of Article 6 of the
ECHR.
Most legal proceedings in Scotland concerning devolution issues
are by way of judicial review in the Court of Session. But in certain
circumstances the SA 1998 allowed devolution cases to be resolved by
direct reference to the Judicial Committee of the Privy Council. This
jurisdiction was taken over by the UK Supreme Court in 2009.45 The
Privy Council was called upon to consider the validity of Scottish legis-
lation in a few cases. For example, in Anderson, Reid and Doherty v Scottish
Ministers 46 patients at a mental hospital challenged section 1 of the
Mental Health (Public Safety and Appeals) (Scotland) Act 1999 on
the grounds that the legislation passed by the Scottish Parliament was
incompatible with Article 5 of the ECHR. Any such Convention-
incompatible legislation would have fallen outside the Parliament’s
legislative competence and could therefore be declared invalid. After
considering the relevant Convention jurisprudence the Judicial Com-
mittee of the Privy Council concluded that section 1 of the Scottish
legislation did not infringe the claimant’s rights under Article 5 of the
ECHR, and the Act remained in force.47
43 Sheriffs perform a judicial function in the lower courts in Scotland, roughly
equivalent to that of magistrates in England.

44 [2000] HRLR 191.
45 See Constitutional Reform Act 2005, s 40.
46 [2001] UKPC D5, [2002] HRLR 6.
47 The distinction between reserved and devolved powers was considered by the
UK Supreme Court in Martin v HM Advocate [2010] UKSC 10.

Devolution 271
Despite the high threshold recognised by the Supreme Court in

Scottish cases (eg Axa discussed above) the legislative competence of
the Welsh Assembly has been contested successfully in the courts.48 In
Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: Reference by the
Counsel General For Wales 49 the UK Supreme Court held that provisions
in a Welsh Assembly Bill which would have made insurers liable for
charges payable to the Welsh Government was not ‘concerned with the
organisation and funding’ of the national health service. The argument
that it enjoyed a wide area of appreciation and discretionary judgment
as a matter of economic and social policy was rejected. It was held
that in the absence of the necessary special justification the provisions
fell outside the devolved competence of the Welsh Assembly under
section 108(4), (5) of the Government of Wales Act 2006. A further
example of the courts determining the limits of a devolved compe-
tence under the GWA 1998 was in R (on the application of South Wales Sea
Fisheries) v National Assembly for Wales.50 On this occasion the devolution
issue was in regard to subordinate legislation. It was held that the South
Wales Sea Fisheries (Variation) Order 200151 was unlawful, because it
not only set the precise amounts of contributions by South Wales Sea
Fisheries, but also imposed restrictions on this body’s discretionary
powers. In essence, by adopting this Order the Assembly had been
misdirected in law concerning both the membership and the funding
of sea fisheries committees, and, accordingly, the Order was quashed so
that the Assembly could reconsider its position. Under the GWA 2006,
proposed Orders in Council can be referred by the Attorney-General
for scrutiny by the UK Supreme Court.52
One of the most significant cases to date in terms of its constitutional
and political implications for devolution (although not concerning a
devolution issue) was Robinson v Secretary of State for Northern Ireland.53
The case arose from the failure of the Northern Ireland Assembly to
48 See in particular Lord Hope’s judgments in Axa General Insurance Limited v Lord
Advocate [2011] UKSC 46 discussed above and in Imperial Tobacco v Lord Advocate
[2012] UKSC 61.
49 [2015] UKSC 3.
50 [2001] EWHC Admin 1162, [2002] RVR 134.
51 SI 2001/1338.
52 See GWA 2006, s 95.
53 [2002] UKHL 32. See also B Hadfield, ‘Does Northern Ireland Need an Inde-
pendent Judicial System Arbiter?’ in N Bamford and P Leyland (eds), Public Law in
a Multi-layered Constitution (Oxford, Hart Publishing, 2003) 184ff.
elect a First Minister and a Deputy First Minister within a six-week

period, as required by section 16(8) of the NIA 1998. If the challenge
to the election of leader and deputy leader had succeeded, it would have
resulted in an immediate dissolution of the Northern Ireland Assembly
followed by elections, with adverse consequences for the peace process.
Lord Bingham, speaking for the majority who rejected the challenge to
the validity of the election, considered that:
[T]he provisions should, consistently with the language used, be interpreted
generously and purposively, bearing in mind the values which the constitu-
tional provisions are intended to embody … It is difficult to see why Parlia-
ment, given the purposes it was seeking to promote, should have wished
to constrain local politicians and the Secretary of State within such a tight
straitjacket.
On the other hand, the dissenting view is based upon a literal interpre-
tation of the NIA 1998 as a statute with a high constitutional status
and without regard to the wider political implications. Lord Hobhouse
argued: ‘The Act does say what is to happen if the six-week period is
allowed to expire. The Assembly is to be dissolved and an extraordinary
Assembly election is to be held.’
The Robinson decision has drawn attention to the exposed political
role of the courts under transformed constitutional arrangements. In
having to finally determine the application of the NIA 1998 the House
of Lords was making a decision which inevitably would have a direct
bearing on the political process. The decision reached offered the possi-
bility of keeping the Assembly and executive operating, while a finding
for the other side would have prompted immediate elections at a time
that appeared unfavourable for the peace process.
The scope for challenge by way of judicial review of Acts of
the Scottish Parliament was considered by the Inner House of the
Scottish Court of Session in AXA General Insurance, Petitioners.54 After
the House of Lords had ruled in English appeals that damages would
not be recoverable for asbestos-related conditions the Scottish Parlia-
ment passed The Damages (Asbestos-related Conditions) (Scotland)
Act 2009 to allow damages to be claimed in Scotland. In this case the
validity of this legislation was called into question. The Inner House
accepted that section 29 of the SA should not be interpreted as setting
54 [2011] CSIH 31.

Devolution and England 273
out an exhaustive list of the grounds of review. In delivering the leading

judgment in the Supreme Court Lord Hope concurred with the view of
the Inner House holding that: ‘… Acts of the Scottish Parliament are
not subject to review at common law on the grounds of irrationality,
unreasonableness or arbitrariness…’. He further held that
… it would also be quite wrong for the judges to substitute their views on
these issues for the considered judgment of a democratically elected legisla-
ture unless authorised to do so, as in the case of Convention rights, by the
constitutional framework laid down by the United Kingdom Parliament.55
In consequence it can be concluded that nothing less than a ‘deliber-
ate misuse of power’ would be sufficient to satisfy the threshold of
intervention given the democratic legitimacy of the Scottish Parliament.
PART II: DEVOLUTION AND ENGLAND
Devolution has changed the nature of domestic politics, but it has also
reshaped the constitution by a substantial re-distribution of powers
away from Westminster and by the introduction of new political and
administrative institutions. In considering how much power has been
given away, it will be evident that Scotland comes closest to having
the powers which are often conferred under federal constitutions. The
Scottish Parliament apart from presiding over an increasing number of
policy areas can pass a form of primary legislation and it will soon have
a significant proportion of its funding supplied by taxes raised locally.
The Welsh Assembly and Northern Ireland Assembly now enjoy similar
law-making powers but over slightly different policy areas. At this point
we will consider how devolution brings in its wake a number of implica-
tions for England, which is not as well served by current arrangements
as Scotland, Wales, and Northern Ireland. Its citizens lack a comparable
level of political representation, England receives less generous funding
for as long as the Barnett formula continues to apply, and devolution
has an impact on pre-existing governmental and administrative organ-
isation. In 2015 the all-party House of Lords Constitution committee
put on record their astonishment:
that the UK Government do not appear to have considered the wider
implications for the United Kingdom of the proposals set out in Scotland in
55 AXA General Insurance Ltd v The Lord Advocate [2011] UKSC 46 at para 52.
the United Kingdom. We do not consider that it is appropriate or sustainable,

to address the issue of additional powers for Scotland alone without also
considering the knock-on consequences for the wider UK constitution.56
ADDRESSING THE WEST LOTHIAN QUESTION
From a constitutional standpoint, devolution has produced an inequal-

ity of political representation at Westminster, an issue sometimes
referred to as the ‘West Lothian question’.57 This is because it raises
serious questions about the role of MPs as members of the UK parlia-
ment. The point being that the union was traditionally built on equal-
ity whereby all members were able to vote on all matters, regardless
of the territorial extent of their application, as members of a single
parliamentary body.58 The introduction of a Scottish Parliament and
Executive with considerable power together with equivalent bodies in
Wales and Northern Ireland undermines the previously accepted notion
of representative government in the United Kingdom. MPs represent-
ing English, Welsh, and Northern Irish constituencies are no longer
able to vote on devolved matters in Scotland, but Scottish, Welsh and
Northern Irish MPs at Westminster retain the right to vote on domestic
policy for the rest of the United Kingdom. Furthermore, by the trans-
fer of many domestic functions to the Scottish Parliament, Scottish
Westminster MPs have a greatly reduced role to play in relation to their
constituents. The obvious line of accountability for the devolved areas
of domestic policy in Scotland is through their Scottish representatives
(MSPs). Devolution has a similar effect in respect of Westminster MPs
representing Welsh and Northern Irish constituencies.
56 House of Lords, Select Committee on the Constitution, ‘Proposals for the
devolution of further powers to Scotland’, 10th Report of Session 2014–15,

24 March 2015, para 22.
57 Tam Dalyell, the Westminster MP representing the Scottish constituency of
West Lothian, raised this issue as a question in a debate in the House of Com-
mons on 14 November 1977, and it has since been referred to as the ‘West Lothian
question’. See O Gay, H Holden and P Bowers, ‘The West Lothian Question’ SN/
PC/02586, 23 March 2011.
58 See M Russell and G Lodge, ‘The Government of England by Westminster’
in R Hazell (ed), The English Question (Manchester, Manchester University Press,

2006) 87.
An obvious response which might appear to correct this anomaly

would be to opt for a fully federal system. The case has been presented
for the introduction of an English Parliament.59 Proposals for an
equivalent body to the Scottish Parliament might appear to have some
justification, since setting up a Parliament for England could provide
the basis for addressing the glaring asymmetries relating to represen-
tation, accountability, and administration which have been raised by
devolution. The proposal to create a federation would not be a good
fit in constitutional terms and has manifest shortcomings. The Parlia-
ment for England would represent more than 80 per cent of the UK
population. Assuming that it had equivalent powers to the Scottish
Parliament, it would be dominant in relation to its Scottish, Welsh, and
Northern Irish counterparts, and it would be a strong competitor to the
Westminster Parliament, which would no longer have a pivotal role in
relation to domestic issues. Also, an English Parliament as an additional
elected political body would be expensive to introduce. A fresh cohort
of politicians would be required at a time when there is already evidence
of voter fatigue with existing elected political institutions. Further, the
additional funding needed for an English Parliament would prompt a
debate about the financial provisions on which devolution is based.
In so doing, this would be likely to open up fresh controversy over
the allocation of resources within the United Kingdom. In turn, such
controversy might provide further impetus to the devolution process
by prompting increased pressure for Scottish independence. In the
foreseeable future an English Parliament is unlikely to be introduced,60
as there is a lack of the necessary support within any of the mainstream
political parties, or more widely among the English electorate.
A form of elected English regional government between central
and local government was proposed as another distinct alternative for
England by the Labour government 2001–05 as a belated response
to devolution. There was some discontent with the lack of regional
representation in the Northern counties of the United Kingdom, in
the very parts of the nation where the benefits of devolution across
the border in Scotland were being felt most strongly. In the absence of
59 www.thecep.org.uk/.
60 The issue of an English Parliament is discussed in B Dickson, ‘Devolution’ in
J Jowell, D Oliver, C O’Cinneide The Changing Constitution 8th edn (Oxford, Oxford
University Press, 2015) 270ff.
any tradition of regional government the scheme envisaged by Labour

would have been built upon the existing Regional Development Agen-
cies. These bodies would have been transformed into a layer of directly
elected regional government but the blueprint that emerged was for
an extremely weak system not directly comparable to devolution, with
no law-making powers and few functions.61 It was clear to the then
government that there was hardly any nationwide political support for
the initiative and, as a result, the idea was to go ahead on a region-by-
region basis. To obtain approval referendums were initially planned in
the North-East, Yorkshire, and the North-West, where support for
regional government was believed to be at its strongest, but only one
referendum was held, in the North-East region in November 2004.
The regional government proposals were emphatically rejected. On a
46 per cent turnout, only 22 per cent of the local electorate voted for
the government plans. The entire scheme was subsequently dropped
from the political agenda and there has been no attempt to propose a
nationwide system of regional government since.62
DEVOLUTION AND PARLIAMENTARY REFORM
The response to the West Lothian problem which was supported politi-
cally by the Conservative Party related to modifying the procedure for
the passing of legislation concerning England. Under the EVEL proce-
dure (explained in Chapter 5) which introduces a new committee stage
for English only MPs, the right to amend and vote on Bills is restricted
according to the part of the United Kingdom an MP represents. In
essence, to address the apparent anomaly these new rules within Parlia-
ment limit the capacity of Scottish, Welsh and Northern Irish Westmin-
ster MPs to have an input on legislation not applying in Scotland, Wales
and Northern Ireland.63
As has already been pointed out, there are obvious political dif-
ficulties with introducing such a resolution at Westminster. It under-
mines the role of Westminster as a national parliament for the United
61 Your Region, Your Choice: Revitalising the English Regions, Cm 5511 (2002).
62 See P Leyland, ‘Post Devolution: Crystallising the Future for Regional Gov-
ernment in England’ (2005) 56 Northern Ireland Legal Quarterly 435.
63 See M Keating, ‘The UK as a Post-sovereign Polity’ in M O’Neill (ed), Devolu-
tion and British Politics (Harlow, Longman, 2004) 323.

Kingdom and it impacts on the dynamics of oppositional national

politics. For example, the Labour government (1997–2010) was heavily
dependent on the support of Scottish and Welsh Labour MPs to get its
legislation through Parliament. A change in the rules so as to altogether
prevent MPs outside England from voting on English Bills would have
meant that Labour, which then had a clear majority of MPs in Scotland
and Wales, would have lacked a majority in the House of Commons for
votes on legislation which concerned England, and it would have had
the effect of disabling the party’s political power.64 With the collapse
of support for Labour in Scotland and the emergence of the SNP
(victorious in 56 out of 59 seats) in the 2015 election the effect of such
a modification of voting rights in the House of Commons would be
somewhat different. Obviously, English Votes for English laws suits
the Conservative Party with its usual majority in England,65 but any
such limitation marginalises the SNP MPs, by preventing them from
contributing to aspects of national law-making. The potential effect is
that excepting policy areas such as the national economy, foreign affairs
and defence by default Westminster increasingly becomes a Parliament
for England. The case for independence is indirectly strengthened.
Why should the Scottish electorate bother to send MPs to Westminster
when it has been turned into a de facto English parliament? At the same
time such a change consolidates the power base of the Conservative
Party in England where its support is normally concentrated. The party
dominance in MPs allows them to dominate the political process in the
House of Commons.
From a technical standpoint introducing such a change is challenging
to parliamentary draftsmen in precisely delineating how policy areas
overlap, for example, where there are mixed clauses, some of which
apply only to particular parts of the United Kingdom. Moreover, the
Barnett formula (discussed above) to allocate funding to Scotland,
Wales and Northern Ireland is calculated according to the total expen-
diture for England, which means that any legislation passed by the
Westminster Parliament concerning England requiring public expen-
diture indirectly affects the devolved parts of the United Kingdom.
64 Russell and Lodge, above n 58.

65 William Hague, Michael Howard and David Cameron as Conservative Party
leaders supported this idea.
A less controversial method of at least partially overcoming this

problem would have been to modify the procedure for English

legislation at the committee stage, partially along the lines of the

Scottish and Welsh Grand Committees, the public bill committee con-
sidering the Bill would be composed exclusively of English MPs. Such
a change would make sure that this committee could take the initiative
for amending such Bills, but the committee would not have a veto (as
is now the case) and all MPs would be entitled to vote on the amended
Bill after the third reading in the House of Commons. The advantage
of such a procedural adjustment is that Westminster would continue to
be regarded as a national Parliament.
The anachronistic composition of the House of Lords has already
been mentioned in preceding chapters. In its current form it has been
strongly criticised, in particular for both being unrepresentative and for
having far too many members.66 In recent years there have been calls
for its reform or replacement with a regional second chamber. As we
noted in Chapter 5 Labour entered the 2015 elections planning to scrap
the House of Lords and replace it with an elected Senate of the Nations
and the Regions. The idea was to have a national convention before
embarking on reform and no exact model emerged, but the essence of
any such proposal is that the election to the replacement, as with the
US Senate or the German Bundesrat, would be skewed in favour of
territorial representation (weighted towards the regions and extremities
of the nation) rather than where population is concentrated (the South
East, Midlands and North West of England).67 The transformation of
the House of Lords as a chamber elected on a regional basis would add
to its democratic legitimacy and give politicians from the nations and
regions a relatively greater say in policy-making and thus move some
way towards rebalancing the national parliament to take account of the
asymmetry of devolution. Labour failed to win the election and there is
little prospect of such proposals being implemented in the foreseeable
future.
66 M Russell, The Contemporary House of Lords: Westminster Bicameralism Revived

67 See Britain can be better, Labour Party Manifesto 2015, 63ff.
Local Government 279
PART III: LOCAL GOVERNMENT
INTRODUCTION TO LOCAL GOVERNMENT

IN THE UNITED KINGDOM
The Westminster Parliament has introduced a succession of statutes

which set the parameters for the structure and operation of local
government since the Municipal Corporation Act 1835 established the
modern principle of introducing democratic government at a local level
(see, for example, the Local Government Acts 1888, 1894, 1933, and
1972). The effect has been to introduce locally elected bodies respon-
sible for a range of different functions. In constitutional theory, Parlia-
ment has the power to abolish local government. Such a drastic step, of
course, would be most unlikely to occur, although Parliament has, on
a number of occasions, re-organised local government. For example,
a layer of local government comprising the Metropolitan Councils,
and including the Greater London Council, was dispensed with by the
Local Government Act 1985. It is also important to remember that
central government through the passage of legislation has frequently
imposed important statutory duties and limitations on local authorities.
For example, the Education Act 1944 required the appropriate author-
ity to ensure that there are sufficient schools in its locality; the Hous-
ing Act 1985 imposed a duty on local authorities to maintain council
housing in their areas, while the Housing Act 1985, Part III imposed a
duty to accommodate certain limited categories of homeless persons.
Local authorities are the elected bodies which perform the majority of
essential everyday governmental functions, and in a number of policy
areas local government has become the means for the implementation
of policy by central government at local level. After it was formed in
May 2010 the Conservative–Liberal Democrat coalition government
introduced deep cuts to public expenditure which were in many cases
directed at local authorities. These cuts have impacted on the front-line
services provided by government at a local level. At the same time the
Localism Act 2011 was aimed at reinvigorating local democracy by
extending some of the powers of local authorities while encouraging
wider citizen involvement in the formation and implementation of
policy by local authorities.
FROM LONDON TO MANCHESTER: THE CONSOLIDATION

OF CITYWIDE GOVERNMENT?
The form of London-wide government first introduced in 2000 seeks

to provide a more accountable method for governing the largest urban
conurbation in Western Europe. After the abolition of the Greater
London Council in the mid-1980s, it was recognised that London
lacked a crucial layer of government which was necessary both to pro-
vide democratic accountability and to co-ordinate strategic aspects of
administration that cut across the remit of the inner and outer L ondon
boroughs. The Greater London Authority Act 1999 introduced a Mayor
and Assembly for London. The first elections by an additional member
system were held in 2000 after a referendum in 1999 approving the
principle. The Mayor and Assembly were responsible for spending
approximately £4.7 billion in 2002–03, but with the assumption of full
responsibility for Transport for London, the figure for 2015/16 had
risen to an estimated £11.5 billion.68 Following the cuts announced by
the Conservative–Liberal Democrat coalition government in 2010 the
Mayor has been required to find substantial savings to make up for the
loss of central government funding.
The Greater London Authority Act 1999 restored democracy and
accountability for many services and bodies by putting the police, fire
service, and a number of non-departmental bodies under democratic
control. The main areas coming under the Mayor and Greater Lon-
don Authority (GLA) are: transport—that is, integrated strategy for
London, traffic management, and regulation; economic development—
responsibility for London Development Agency; police—creating a
new Metropolitan Police Authority, and Fire and Emergency Services;
planning—required to develop a land use strategy for London;
environment—for example, air quality and waste; culture, for example,
museums, library services, and the arts.
The Mayor is placed at the head of the executive and is directly
responsible for the strategies the GLA adopts to achieve its objectives
and for the quality and effectiveness of the services which it delivers.
The Mayor’s functions can be summarised as: devising strategies and
action plans on London-wide issues; proposing a budget and s ubmitting
68 The Greater London Authority Consolidated Budget and Component
Budgets for 2015–16, Greater London Authority, March 2015.

it to the Assembly for agreement; co-ordinating action to implement

the agreed strategic plans for transport, economic development bodies,
police and crime; environmental problems, fire and emergency planning
authority; acting as a voice for London; and making appointments to
the bodies under the Mayor’s control.69
A separation of powers is built into the system. The Assembly com-
prised of full-time salaried politicians is responsible for holding the
Mayor to account for these strategies and proposals by public scrutiny
and criticism. The Assembly is able to question the Mayor and the
Mayor’s staff, to hold public hearings on issues of importance, and to
have access to relevant people, papers, and technical expertise. It also
has powers to secure amendments to the Mayor’s budget proposals.
A new type of personality politics has developed around the charac-
ter and style of the candidates seeking mayoral office. The office is pro-
fessionalised along North American lines with a properly remunerated
Mayor and a trimmed-down executive. The Mayor is given a mandate
by the London electorate and is placed under an obligation to deliver
manifesto commitments. Since the introduction of the Mayor and
Assembly, it was suggested that insufficient powers and functions were
vested in the office. The Labour government responded to these calls.
For example, in 2004 the Mayor was granted a £5 billion package of
capital funding for investment in London Transport. After further con-
sultation, additional powers were granted in 2006 in respect to aspects
of policy in the following fields: housing, learning and skills, planning,
waste, health, climate change and energy, water, and European struc-
tural funds.70 In addition, a new Metropolitan Police Authority was
established in 2007 and through this authority the Metropolitan Police
Force is placed indirectly under the Mayor and Assembly. Although
these arrangements do not allow political interference in day-to-day
police operations they introduce local accountability for policing the
capital.71
69 White Paper, A Major and Assembly for London, Cm 3897 (1998) para 3.16.
70 See Greater London Authority Act 2007 and ‘The Greater London Authority:
the Government’s Final Proposals for Additional Powers and Responsibilities for
the Mayor and Assembly’, a Policy Statement published by the Department of
Communities and Local Government on 13 July 2006.
71 Greater London Authority Act 2007, Part VI.
Transport not only takes up by far the highest proportion of the

Mayor’s budget but it is obviously of enormous strategic importance
for London and for the nation. Transport for London (TfL) is a body
corporate established under the Greater London Authority Act which
implements the Mayor’s transport strategy, including the setting of fares
on London Transport. TfL is headed by a Transport Commissioner
appointed by the Mayor.72 In this area conflicts have arisen between the
Mayor and central government. For example, the government decided
to hand over the day-to-day running of the underground network to
the Mayor, but, at the same time, decided to introduce a partial priva-
tisation by separating upgrade and maintenance of the infrastructure,
and hiving this off to private-sector companies under a Private Finance
Initiative scheme. However, in July 2007, Metronet—the company
under the scheme responsible for upgrading the underground—went
into administration, exposing a catalogue of management failings which
resulted in a considerable loss to the taxpayer.73 Another developing
area of transport policy relates to controlling the amount of traffic
in central London. The congestion charging scheme first introduced
in 2003 to reduce the amount of traffic entering central London not
only offered environmental benefits by achieving reductions in conges-
tion and pollution but it was introduced as a mechanism to raise extra
revenue for the Mayor.74 The controversial westward extension of the
scheme brought in by Mayor Livingstone in 2007 was abolished in 2010
by his successor Mayor Johnson (elected 2008) with the loss of an esti-
mated £50 million per year in revenue. Transport, policing and security
have been of particular concern for the Mayor and Assembly with the
approach of the 2012 London Olympic games.
Although there was little evidence of much support outside London
for the presidential-style personality politics centred upon directly
elected mayors, the Localism Act 2011 persisted with the idea of
directly elected mayors accountable to an elected assembly for the
12 major English cities. It required a referendum in each city to
72 Greater London Authority Act 1999, ss 154 and 155.

73 See C Harlow and R Rawlings, Law and Administration, 3rd edn (Cambridge,
Cambridge University Press, 2009) 425ff.
74 Transport Act 2000, ss 163–177. Schedule 23 of the Greater London Author-
ity Act 1999.

a scertain whether there is support for the change to an elected mayor.75

By way of contrast, the latest initiatives in local democracy from central
government announced in 2014 might also be regarded as an indirect
response at local government level to devolution. In an attempt to
devolve power and build on the success of the London Mayor the gov-
ernment has embarked on the process of reviving a strategic level of
local governance with the launch of a directly elected mayor of Greater
Manchester.76 An elected Manchester Mayor representing Manchester
and all the associated towns will be responsible for a devolved con-
solidated transport budget, with a multi-year settlement. The office
holder will also have powers over strategic planning and control of
a new £300 million investment fund. Additional powers will include
responsibility for devolved support budgets and control of apprentice-
ship grants.77 The Manchester Mayor and authority will have a multi-
billion budget. It is envisaged that the Manchester conurbation-wide
scheme might be followed by other cities of comparable size, such as
Birmingham, Liverpool, Leeds, Nottingham, Newcastle and Bristol.
THE FRAMEWORK OF LOCAL GOVERNMENT
Local authorities share with Parliament the characteristic of being

elected, and in this sense they are representative bodies of the com-
munities on behalf of which they administer services. Councillors rep-
resent territorial units called wards, and they normally face re-election
every four years, which means that the composition of the authority
changes with elections, but the Local Government Act 1972 lays down
that each authority is a body corporate that exists in perpetuity. This
provision means that authorities are distinct legal entities able to acquire
property, enter contracts, and be party to private legal proceedings.
Local councillors do not generally receive a salary, but they are entitled
to claim expenses incurred while performing council business.
75 I Leigh, ‘The Changing Nature of Local and Regional Democracy’ in J Jowell
and D Oliver (eds), The Changing Constitution, 7th edn (Oxford, Oxford University
Press, 2011) 246ff.
76 The towns and cities of Greater Manchester consist of: Bolton, Bury,
Manchester, Oldham, Rochdale, Salford, Tameside, Trafford and Wigan.

77 Cities and Local Government Devolution Bill.
The main form of the current arrangements was established in

utline by the Local Government Act 1972, which came into force
o
in April 1974. This framework has been subject to ongoing review
since 1997.
In rural areas the 1972 Act provides a two-tier division of the main
powers between county councils as the upper layer and district councils
as the lower layer. In addition, parish councils have responsibility for
a very limited number of minor matters. The Act originally created
39 county councils, responsible for education, strategic planning,
personal social services, major highways, public transport, consumer
protection, and fire and police services (although fire and police ser-
vices may spread over more than one authority). The county areas were
subdivided into 296 non-metropolitan district councils, with responsi-
bility for housing, environmental health, public health and sanitation,
and refuse collection. Responsibility for town and country planning is
shared with district councils.
The Local Government Act 1992, section 13(1) empowered the
Local Government Commission to recommend boundary, structural,
or electoral changes ‘having regard to the need: (a) to reflect the iden-
tities and interests of local communities, and (b) to secure effective
and convenient local government.’ This re-organisation was essentially
completed by 1997 and it resulted in many two-tier authorities becom-
ing single tier ‘unitary’ authorities. In much the same way, the Local
Government (Wales) Act 1994 provided a new unitary structure for
local government in Wales. The previously existing counties and dis-
tricts were abolished and replaced by 22 unitary authorities, known
as ‘principal councils’. In Scotland the Local Government (Scotland)
Act 1994 provided for the creation of 32 single-tier authorities. In
Northern Ireland local government comprises 26 district councils and
9 area boards. Responsibility for local government comes under the
devolved governments established in 1999.
The situation in the main cities has always been different. The posi-
tion was modified significantly by the Local Government Act 1985
which (as mentioned above) abolished the Greater London Council
and the six metropolitan area councils. This reform left the 32 London
boroughs and 36 metropolitan district councils as a single tier of local
government in urban areas. These councils are now typically respon-
sible for providing education (with the exception of those schools opt-
ing out), personal social services, highways and transportation, refuse
disposal, town and country planning, consumer protection, parks and

recreations, and libraries.
It has already been stated that the main powers of local authorities
are defined by legislation, and section 101 of the Local Government
Act 1972 provides that many decision-making powers can be delegated
by an authority to council committees, sub-committees, or officers
of the authority. However, delegation to individual council members,
including committee chairpersons, is unlawful. The title of these com-
mittees will correspond to the nature of the functions for which each
is responsible. These committees used to draw up and discuss the more
detailed questions of policy formation, and their recommendations
were usually presented to the main body of the council for ratification,
but since the Local Government Act 2000 decision making is in the
hands of the leader/mayor and a cabinet. Once policy is formed, the
power to implement it at a local level is by officers of the council.
The power under which the officers act is not usually by direct means,
but rather through specific forms of statutory provision, by-laws, and
compulsory purchase orders.
THE FINANCING OF LOCAL GOVERNMENT
Another reason why local government has limited autonomy is because

of its financial dependency on Westminster. (In Scotland and Wales it
is the devolved executive which allocates funding to local government.
This funding has been made available to the executives under calcula-
tions made according to the Barnett formula discussed earlier.) The
main slice of local government revenue comes from central govern-
ment grants (about 60 per cent of total revenue) with a proportion
of this revenue targeted for particular services, for example, the fire
brigade and police. In addition, central government makes a general
contribution to local government funding, which can be allocated by an
authority between budget heads. Local authorities make up the remain-
der of their budget requirements by raising revenue locally. The major
component of their income comes from council tax, which is a tax paid
on all properties in an area.78 It is a banded tax calculated according to
the market value of the property concerned. As well as taxation, local
78 See the Local Government Finance Act 1992.

authorities are allowed to charge for the provision of certain services

ranging from rents and repairs, the sale of council houses, recreational
facilities, pest control, etc. Finally, local authorities can borrow money
by issuing bonds, but this is subject to strict conditions imposed by the
Treasury.
Since the early 1980s there have been repeated attempts by central
government to impose strict cash limits by ‘capping’ local government
spending. The Treasury used to supplement the budgets of councils by
making up a fixed proportion of the requirements of the authority. In
order to control public expenditure during the 1980s the government
introduced financial penalties for councils that failed to operate within
the limits set by central government; in its latest form this amount is
referred to as Standard Spending Assessment (under Part II of the
Local Government Act 1999). If the authority exceeded the amount
spent, the contribution from central government would diminish.
These capping measures were the product of bitter political controversy
between central government and the local authorities (often in differ-
ent political hands) during the 1980s, and the legality of the schemes
was challenged in the courts (mainly unsuccessfully). The imposition
of such rigid financial constraints has reduced direct accountability to
the local electorate, since many councils have found it necessary to cut
their services to meet government financial targets without regard to
electoral commitments to continue with them or expand them.
A revision of fiscal arrangements for local government in England is
very much on the political agenda after the 2015 general election.79 The
Communities and Local Government Select Committee in the previ-
ous Parliament backed the principle of fiscal devolution for England
on the grounds that it would promote economic growth, and called
upon the government to devise a framework for fiscal devolution to
local authorities. This approach is viewed by many MPs of all parties
as the best method of devolving power downwards, given that regional
government for England or an English Parliament are unlikely to be
introduced in the foreseeable future.80
79 For further discussion of recent changes to local government in the United
Kingdom including referendums for city mayors see: P Leyland, ‘The Localism Act
2011: Local Government Encounters the “Big” Society’ Istituzioni del Federalismo,
2012, 4 Anno XXXIII, ottobre/dicembre, 767–89.
80 Communities and Local Government Committee, ‘Devolution in England:
the case for local government’, First Report of Session 2014–15, HC 503, 3.
FROM COMPULSORY COMPETITIVE TENDERING

TO BEST VALUE
Central government has been equally concerned, particularly since the

1980s, to achieve value for money and greater efficiency at all levels of
government including local government. Market-orientated policies
were adopted in pursuit of this objective. Under the local govern-
ment legislation introduced by the Conservative governments between
1979 and 1997 (see, for example, section 2 of the Local Government
Act 1988, which introduced compulsory competitive tendering (CCT)),
authorities were required to privatise many services ranging from refuse
collection and street cleaning, to maintenance of housing stock if pri-
vate sector companies could undercut provision by the local authority’s
in-house services. The authority was required by statute to offer con-
tracts for local government services, either to the lowest tender, or to
the one that was the most economically advantageous. This meant that
local authorities were heavily constrained in the way in which they were
allowed to exercise their contracting powers.
The Labour government (1997–2010) strongly supported market-
driven policies in the public sector and in local government, but it has
abolished CCT in favour of a new system. The Local Government
Act 1999 requires local authorities to make arrangements for ‘best
value’ in the performance of their functions. Best Value is defined in
section 3 of the 1999 Act as ‘securing continuous improvement in the
exercise of all functions undertaken by the authority, whether statutory
or not, having regard to a combination of economy, efficiency and
effectiveness.’ A number of performance indicators are applied to mea-
sure progress, and the relevant standards can be set by the Secretary of
State having regard to any recommendations made to him or her by the
Audit Commission. Local authorities are further required to provide
‘best value’ performance plans for each financial year under section 6.
This legislation seeks to allow improved efficiency and effectiveness in
the use of resources, but also to achieve significant improvements in
service quality. The new emphasis on quality means that for contracted
services a local authority is able to consider the appropriateness of
contracting for that service, and it also provides greater flexibility in the
negotiation of different forms of contract and contractual relationship.
Certain statutes provide wide powers for local authorities to use
contracts in furtherance of policy. For example, this applies in the
area of planning under the Town and Country Planning Act 1971.
Local authorities may reach agreements under their planning powers to
restrict development. It is not uncommon for local authorities to attach
conditions in regard to the development and use of land. These may be
inserted as a quid pro quo for the grant of planning permission. More-
over, it should be stressed that if any local authority steps beyond the
scope of these powers, judicial review may be available as a method of
control. An example is Hazell v Hammersmith and Fulham London Borough
Council,81 where a series of interest rate swapping transactions by local
authorities was held to be unlawful.82
In October 2006 the government published a White Paper which
promised to reduce the level of control from central government,
provide greater citizen involvement and give local authorities increased
flexibility in policy delivery.83
LOCAL GOVERNMENT, CITIZEN PARTICIPATION

AND THE BIG SOCIETY
There have been many initiatives in recent years to revive the fortunes
of local government. Part I of the Local Government Act 2000 (LGA
2000) introduced additional scope for authorities to develop partici-
pation with the community taking up the themes of partnership and
‘joined-up’ government84 so that it moves from merely being service
provider to community leader. This initiative involves:
A multi-organisational, community-based process, initiated by the council,
for creating a shared vision of community identified priorities leading to a
programme of actions which demonstrate the commitment and support of
the groups involved.85
Sections 2 and 3 of the LGA 2000 granted local authorities powers to
take any steps that they consider are likely to promote the well-being of
81 [1992] 2 AC 1.
82 See Credit Suisse v Allerdale Borough Council [1997] QB 306.
83 See ‘Strong & prosperous communities—The Local Government White
Paper’, October 2006, Cm 6939-1.

84 See Modernising Government, Cm 4310 (1999), and Modern Local Government: In
Touch with the People, Cm 4014 (1998).

85 V Jenkins, ‘Learning from the Past: Achieving Sustainable Development in the
Reform of Local Government’ [2002] PL 130, at 138.

their area or their inhabitants. Under section 4 they are placed under a
duty to develop community strategies, together with other local bodies,
for this purpose. These provisions are intended to give local authori-
ties increased opportunities to improve the quality of life of their local
communities. Although they were previously able to incur expenditure
in the interests of their area under section 137 of the Local Govern-
ment Act 1972, this was subject to many restrictions which are now
relaxed by section 8 of the LGA 2000.
Against a background of voter apathy with turnouts in many parts
of the country falling well below 30 per cent in recent years, the Labour
government proposed that local government should be radically
overhauled.86 Part II of the LGA 2000 sought to transform the opera-
tion of local democracy, to provide greater efficiency, transparency, and
accountability for local authorities. It did this by setting out new politi-
cal management structures. These included local authority executives
and executive arrangements that replace the present committee systems.
The effect was to create a new decision-making framework in which
there is a separation of decision-making and scrutiny of decisions by
new committees.87 The Act set out three initial forms of executive88
which might be adopted and on which all local authorities must consult
by means of a referendum.89 These models are based on two variants
of a cabinet system with a leader elected by the council, or an elected
executive mayor and separately elected authority (similar to the current
arrangements for London).
The current stage in deepening democracy arguably requires the
redistribution of power from the politicians to the people. The main
political parties have suffered declining membership and have ceased
to be the site for real debates about the issues that confront local com-
munities. Parties emerged when there was a clear ideological divide
between right and left. The problem is that younger voters and margin-
alised groups are not well represented through the established parties.
The degree of participation and engagement needs to extend beyond
elections every four or five years. There has been a wider commitment
86 See, eg, White Paper, Modern Local Government: In Touch with the People, Cm 4014
(1998).
87 LGA 2000, s 21.
88 LGA 2000, ss 11 and 12.
89 LGA 2000, ss 34–36.
to referendums as an acknowledgement of the need to consult the

electorate more frequently on policy matters but further initiatives are
required.
In place of high-profile government the ‘big society’ has been widely
disseminated as offering a revised agenda for the Conservative Party.90
Many aspects of this idea bear a striking resemblance to Blair’s ‘third
way’ which was heavily reliant for its delivery on ‘stakeholders’ from the
voluntary and private sector. Nevertheless, the ‘big society’ has been
presented as a reaction to the claimed statist centralising policies of the
previous Labour government.91 It appears that the guiding philosophy
is to create a society where the leading force for progress is a concept of
social responsibility which is expected to replace state control. The ini-
tiative will be returned to grass-roots level by promoting people power.
The objective is to break state monopolies and, in their place, allow
charities, social enterprises and companies to provide public services—
for example, by allowing free schools to be set up outside of local
government by parents, communities, faith groups, charities, businesses
and universities. The intention is to further reduce the size of the state
at the central and local government levels. This agenda is ambitious
since it depends on legions of volunteers coming forward just when the
voluntary and charity sectors are faced with massive cuts in the income
they receive from central and local government. At the same time, the
financial demise of Southern Cross as a care home operator for many
thousands of elderly persons is a reminder that government may find it
difficult to extricate itself from responsibility for the provision of core
services should private- and independent-sector organisations prove
incapable of performing the role designated to them.
As mentioned above local government reforms under Labour
between 1997 and 2010 were presented as an attempt to bring power
closer to the citizen. Once again, the Localism Act 2011 claims to shift
power decisively from central government to local communities, but
follows a different path by exploring novel forms of populism as part
of the government’s ‘big society’ agenda. Apart from the increased
use of referendums discussed below, one innovatory approach is the
community right to challenge, which is designed to facilitate a transfer
90 D Cameron, ‘Our Big Society Plan’ (2010).

91 C Pattie and R Johnston, ‘How Big Is the Big Society?’ (2011) 64 Parliamentary
Affairs 403.
in the running of services from local authorities to voluntary groups

and other social enterprises. A bidding exercise would be prompted to
allow these groups to compete with the local council. The Act confers
on local councils a general power of competence which would grant
them the right to do anything apart from that which is specifically
prohibited.92 For example, the Act is meant to facilitate the sale of
buildings belonging to local councils to community groups.
ACCOUNTABILITY MECHANISMS
In order to improve the public perception of local government and local

councillors Part III of the Local Government Act 2000 established a
new ethical framework, which included the introduction of statutory
codes of conduct, with a requirement for every council to adopt a code
covering the behaviour of elected members and of officers, and the
creation of a standards committee for each authority. This approach has
many characteristics in common with the Westminster regime for par-
liamentary standards. However, the standards board introduced in 2004
to root out corruption in local government has been abolished by the
Localism Act 2011 while the same legislation seeks to increase transpar-
ency by introducing a requirement to publish the salaries of senior staff.
The Local Government Act 1972, section 151 provides that councils
must ensure the proper administration of their financial affairs, and
the Local Government Finance Act 1982 set in place the mechanism
for external audits by an Audit Commission for local authorities in
England and Wales. This introduced commercial accounting methods
to the local government sector. (For the auditors’ current powers, see
the Audit Commission Act 1998.) The district auditor has the duty to
see that public money is spent according to the law. If it is found that
there has been unlawful expenditure by the authority in the discharge of
its public duties, the auditor has the power to enforce financial penalties
against named councillors or officials.93 Further, the Local Government
Act 1974, Part III allows a local government ombudsman to investigate
complaints concerning questions of local maladministration. These
matters are referred to the local government ombudsman directly or
through a local councillor.
92 Localism Act 2011, s 1.

93 See Porter v Magill [2001] UKHL 67, [2002] 1 All ER 465.
The Localism Act 2011 might be regarded as an experiment in direct

democracy because it seeks to use referendums to introduce a new
form of accountability to the ordinary voters. For example, it allows
referendums to be triggered by a petition from five per cent or more of
a local electorate to consult on local issues. On the other hand, it is also
envisaged that in place of the direct capping of budgets by ministers
referendums will be employed as a way of blocking proposed increases
in council tax by local authorities which are above the figure proposed
by the Secretary of State and approved by Parliament each year. Such a
vote would be used to help control spending because council tax pay-
ers would be asked to consent to any increase. However, by fixing the
budget allocation for local authorities, it is the government and not the
local electorate who will trigger such a referendum. The Act is exploring
unchartered and possibly hazardous territory. Not only are referendums
expensive to organise but leaving such decisions up to voters in each
locality could lead to much greater discrepancies in levels of council
tax and in service provision between different localities. The Localism
Act fails to tackle the question at the heart of the problem: all forms
of local government continue to be largely financially dependent on
central government.94
THE PROSPECTS FOR LOCAL GOVERNMENT
The primary legal objective of setting up modern forms of local gov-

ernment was to vest elected authorities with broad enabling powers,
permitting them to respond flexibly to new challenges without being
unduly constrained by the fear of legal intervention. As a result, local
government in its original form was afforded considerable discretion in
its ability to respond to local needs. However, the predominant concern
of central government in recent years has been to strictly control public
expenditure. The Conservatives while in power (1979–97) were set on a
course of reducing the role of local government by privatising services,
establishing housing trusts and introducing private sector funding. But
while it was clear that the Labour government (1997–2010) was also
94 P Leyland, ‘The Scottish Referendum, the funding of territorial governance in
the United Kingdom and the legislative role of the Westminster Parliament’ Istituzi-
oni del Federalismo, 2014, Anno XXXV, ottobre/dicembre, 857 at 877ff.
intent on controlling public expenditure by imposing tight restrictions

on the spending of local authorities, it was less ideologically driven than
its Conservative predecessor, and while it retained a commitment to
public–private partnerships and privatisation in general, it also relaxed
controls and extended certain additional powers of local government.
Under the Conservative/Liberal government the Localism Act 2011
outlined a number of initiatives to give local people more involvement
in local affairs by making provision for referendums to be held and for
groups other than local authorities to be responsible for the delivery of
local services. The project has had little impact and has not generated a
concern to serve the community comparable to that which prevailed in
the latter part of the nineteenth century. By way of contrast the Cities
and Local Government Devolution Act 2015 signifies a change towards
city-wide directly elected mayors for major cities and the surrounding
area that would bring local government in England more in line with
the system in London and in European nations such as France, Italy and
Germany. In order for there to be a genuine extension of local democ-
racy based on a renewal of interest in local government, new models of
decision-making will not suffice on their own. Financial control needs
to be devolved downward with the introduction of appropriate meth-
ods of tax-and-spend provision at a local level. Whether the impact of
these initiatives will be effective in terms of delivery is uncertain, as
gazing forward, the services provided by local government will be dras-
tically curtailed in the face of the deep cuts that have been proposed by
central government.
CONCLUSION
More than 15 years after the introduction of devolution ultimate con-

trol still formally resides with the Westminster Parliament, but with the
conferral of law-making powers on the Scottish Parliament and Assem-
blies in Wales and Northern Ireland, in practice, the sovereignty of the
Westminster Parliament has been heavily diluted. On narrow issues
of strict legality, devolved bodies must operate within their devolved
powers, but it is now difficult for the government acting through the
Westminster Parliament to challenge actions of the devolved bodies,
particularly where there is a democratic mandate for any policy that has
been adopted at devolved level.
In addition, we have observed in this chapter that devolution is a

dynamic process which is generating further constitutional change in
response to the prevailing political conditions. The referendum for
Scottish independence in 2014, despite recording a pro-union ‘No’
vote, provided a vivid demonstration of the political forces which have
been unleashed. More powers have been granted to Scotland to satisfy
the demands of the electorate north of the border and independence
still remains very much on the agenda of the Scottish Nationalist Party,
which is now the overwhelming political force in Scotland. Perhaps the
difficulty with devolution stems from the fact that the framework of
devolved government was never conceived as part of a grand constitu-
tional design. Rather, the arrangements set in place have each evolved
as a pragmatic response to the conditions in Scotland, Wales and
Northern Ireland. In order to address the gross asymmetry in territorial
representation and rebalance the constitution there needs to be a cred-
ible initiative for English devolution which goes beyond introducing
marginally greater autonomy at local government level. Finally, devolu-
tion is consistent with a European trend encouraged by the concept
of subsidiarity which aims to combat a perceived democratic deficit.
The assumption is that this objective can be achieved by re-allocating
centralised authority and power to more local levels of territorial gov-
ernance. The UK experience can therefore be usefully compared with
recent provisions for regional government in Italy, Spain, and other
European nations.
FURTHER READING
Bailey S and Elliott M, ‘Taking Local Government Seriously: Democracy,

Autonomy and the Constitution’ (2009) 68 Cambridge Law Journal 436.
Bogdanor V, Devolution in the United Kingdom (Oxford, Oxford University
Press, 1999).
Bogdanor V, ‘The West Lothian Question’ (2010) 63 Parliamentary Affairs
156.
Bradbury J and Mitchell J, ‘Devolution: Between Governance and Terri-
torial Politics’ (2005) 58 Parliamentary Affairs 287.
Burrows M, Devolution (London, Sweet & Maxwell, 2000).
Dickson B, ‘Devolution’ in J Jowell, D Oliver and C O’Cinneide (eds), The
Changing Constitution, 8th edn (Oxford, Oxford University Press, 2015).
Hadfield B, ‘Devolution Westminster and the English Question’ [2005]

PL 286.
Hazell R (ed), The English Question (Manchester, Manchester University
Press, 2006).
Hazell R (ed), Constitutional Futures Revisited: Britain’s Constitution to 2020
(Basingstoke, Macmillan, 2008).
Himsworth C and O’Neill M, Scotland’s Constitution: Law and Practice
(Edinburgh, Lexis Nexis, 2003).
Hopkins J, Devolution in Context: Regional Federal and Devolved Government in
the European Union (London, Cavendish, 2002).
Leigh I, Law, Politics and Local Democracy (Oxford, Oxford University
Press, 2000).
Leigh I, ‘The Changing Nature of Local and Regional Democracy’ in
J Jowell, D Oliver, C O’Cinneide, The Changing Constitution, 8th edn
Leyland P, ‘Referendums, Popular Sovereignty and the Territorial Consti-
tution’ in R Rawlings, P Leyland and AL Young (eds), Sovereignty and the
Law (Oxford, Oxford University Press, 2013).
Leyland P, ‘The Multifaceted Constitutional Dynamics of UK Devolu-
tion’ (2011) 9 I-CON 251–73.
Loughlin M, ‘The Demise of Local Government’ in V Bogdanor, The
British Constitution in the Twentieth Century (Oxford, Oxford University
Press, 2003).
McCrudden C, ‘Northern Ireland, The Belfast Agreement, and the
British Constitution’ in J Jowell and D Oliver, The Changing Constitution,
McMillan J and Massey A, ‘Central Government and Devolution’ in
M O’Neill (ed), Devolution and British Politics (Harlow, Longman, 2004).
Rawlings R, Delineating Wales: Constitutional, Legal and Administrative Aspects
of National Devolution (Cardiff, University of Wales Press, 2003).
Tierney S, ‘Direct Democracy in the United Kingdom: Reflections from
the Scottish Independence Referendum’ (2015) Public Law 633
Websites
www.regional-assembly.org.uk
www.emmecidue.net/devolutionclub
www.devolution.ac.uk/home.htm
www.scottish.parliament.uk
www.scotland.gov.uk/Home
www.scotland.gov.uk/concordats
www.wales.gov.uk/index.htm
www.wda.co.uk/index.cfm/wda_home/index/en2
www.cclondon.com/index.shtml
www.london.gov.uk
www.ni-assembly.gov.uk
www.nics.gov.uk
9
Conclusion: The UK Constitution
Facing the Future

T HIS BOOK HAS been written as a concise contextual intro-
duction to the constitution of the United Kingdom. Since
the first edition was published in 2007 there have been many
changes to the wider context, with the country arguably facing its
greatest challenges since the end of World War II. In the decade up
to 2008 a programme of radical constitutional reform which included
devolution, the Human Rights Act 1998, freedom of information and
a new Supreme Court for the United Kingdom were introduced against
a background of steady economic growth, falling unemployment,
increases in real incomes and relatively low levels of inflation. However,
the agenda for government has since been dominated by global and
domestic economic problems. These were triggered by the world bank-
ing crisis. The massive government intervention in the UK to under-
write a large part of the domestic banking sector imposed a huge strain
on the exchequer. In order to rectify the nation’s financial position the
radical programme of cuts in public expenditure are having the effect
of redefining the role of the state at both central and local level.
Moreover, the contemporary debate over the future of the constitu-
tion takes place against what appears to be a profound transformation
in domestic politics. Political allegiances and opinions appear to be
shifting away from established parties and previous policies.1 In particu-
lar, in 2015 (as noted in Chapter 5) 3.9 million voters in England turned
1 V Bogdanor, The Crisis of the Constitution: The General Election and the Future of the
United Kingdom (The Constitution Society, 2015) 29.

298 Conclusion: The UK Constitution
to the UK Independence Party (UKIP) while in Scotland in the wake

of 2014 referendum on independence there has been a surge in support
for the Scottish Nationalists. Equally, there has been spectacular decline
in support for the Liberal Democrats and a surprise result in the
2015 Labour Party leadership contest where the radical agenda of the
outsider, Jeremy Corbyn, triumphed over more seasoned contenders
associated with previous Labour governments. Political commentators
have identified accumulating evidence of a failure by existing parties
to reflect the extent of changes in popular views about the daunting
issues facing the nation.2 This concluding chapter, before examining
the case for a codified constitution, draws attention to three issues likely
to feature over the next few years, each in different ways. The primary
questions from the standpoint of the current multi-layered constitu-
tion concern first the UK’s place in Europe and the world, secondly
the integrity of the UK as a single nation state, and thirdly, the future
protection of human rights in the UK.
UK MEMBERSHIP OF THE EU
The first question, namely, whether the United Kingdom should remain
a member of the European Union, will be answered in a referendum
due to be held in 2016/173 after negotiations by the British govern-
ment on revised terms of membership.4 Of course, the subsequent
implementation of a decision to withdraw would have far-reaching
consequences for the law and for the constitution. For example, if there
turns out to be a majority in Scotland in favour of remaining in Europe
but a majority in England in favour of EU withdrawal, such an outcome
could reignite the campaign for Scottish independence.
An obvious problem has been that the negotiation of the treaties
(eg Amsterdam, Maastricht, Nice and Lisbon) and the drafting of the
2 P Whitely, Political Participation in Britain: The Decline and Revival of Civic Culture
(Basingstoke, Palgrave Macmillan, 2012).

3 The question will be: ‘Should the United Kingdom remain a member of the
European Union or leave the European Union?’ See the European Referendum
Act 2015.
4 See House of Lords, European Union Committee, ‘The referendum on UK
membership of the EU: assessing the reform process’, 3rd Report of Session
2015–16, HL Paper 30.
UK Membership of the EU 299
European constitution were mainly undertaken as a top-down exercise

carried out by officials and by politicians representing member states.
Moreover, formidable obstacles had to be cleared in order to reach
agreement. In formulating a constitution and thereby setting an agenda
for Europe the most influential nations were committed to very differ-
ent objectives. For example, political leaders in France, Germany, Italy,
Belgium, and Holland were keen to strengthen the EU as a political
entity (European Super State) committed to public services and social
support, while the United Kingdom, with its growing Euro-scepticism,
was content with a mainly economic union comprising a large mar-
ketplace. It wished to see a more limited state sector challenged by
liberalisation and the introduction of market forces. The European
constitution held out the prospect of protecting UK economic inter-
ests without the United Kingdom forming one of the core groups of
integrating states towards greater union.
There has been an emerging legitimacy problem relating to the
EU and its institutions. The European Parliament (EP) consists of
members elected in member states. Its authority has been enhanced
by the Treaty of Lisbon, but still only marginally. The EP has limited
powers and often only operates on the fringes of the law-making
process.5 Crucially, government at EU level is unelected. There is no
transnational party system capable of rising above national politics, and
none of the EU treaties fully address the issue of the role of national
Parliaments and other accountability mechanisms. The relative absence
of democratic political accountability at EU level helps to explain the
general apathy and indifference that pervades European political space.
In fact, it is argued that this immunity from accountability has resulted
in a gap opening up between national governments and the prevailing
public opinion within many of the member states.6 This problem was
graphically illustrated in referendums on the draft European Constitu-
tion held in France and Holland in 2005 where the local electorates
voted decisively against, despite strong endorsement from the ruling
political elite.7
5 ‘The Role of National Parliaments in the EU’, House of Lords, European Union
Committee, 9th Report of Session 2013–14, HL Paper 151.

6 Ibid, paras 161–63.
7 R Bellamy and S Kröger, ‘Domesticating the Democratic Deficit? The Role
of National Parliaments and Parties in the EU’s System of Governance’ (2014) 67

Parliamentary Affairs 437–57.
A phase of deep uncertainty is apparent on the European front. In

terms of the general picture, the European debt crisis reaching beyond
Greece to include Portugal, Spain, Ireland, Italy and even France has
shaken the EU and the euro to its very foundations. At home, the
European Union Act 2011 set in place a barrier to any further ceding of
power to the EU by providing that the electorate will be consulted in a
national referendum before European measures that qualify sovereignty
are incorporated into UK domestic law. Now this technical provision
has been totally overshadowed by the imminent referendum on the
UK’s continued EU membership.
THE DYNAMICS OF DEVOLUTION
The second question—whether the United Kingdom can continue

in its present form, comprising the four home nations of England,
Scotland, Wales and Northern Ireland—has, in a formal sense, already
been answered. There was a decisive ‘no’ vote to Scottish independence
in the 2014 referendum, but the reaction since then suggests that the
referendum and the subsequent increase in devolved powers will not
necessarily stem the tide towards independence. The SNP has consoli-
dated its support at Westminster, as well as enjoying a majority in the
Scottish Parliament. In consequence, the cause of independence is still
being promoted and therefore uncertainty remains over the future of
the United Kingdom.
As the discussion in the previous chapter revealed, the asymmetrical
form of devolution in the United Kingdom was devised not as part of a
broader constitutional settlement but has been a pragmatic response to
the prevailing situation in Scotland, Wales and Northern Ireland. Each
devolved system since 1999 has been evolving in response to changing
conditions. Moreover, the evolution has continued with the legislation
to enact the post-referendum Smith Commission recommendations in
Scotland granting the Scottish Parliament more competences and sub-
stantial revenue-raising powers. Likewise, following the 2011 regional
referendum, the Welsh Assembly, in line with its counter parts in
Edinburgh and Belfast, gained law-making powers set out in the Gov-
ernment of Wales Act 2006. Further, in 2015 the St David’s Day devo-
lution package promises to give the Welsh Assembly protected funding
and additional powers over energy, transport, the environment and
Constitutional Protection of Citizen Rights 301
e lections. The Northern Ireland Assembly was successfully relaunched

in 2007 and responsibility for justice and policing has been given to
a Northern Ireland Justice Department. This means that in respect
of domestic policy areas by default the Westminster Parliament has
evolved into a Parliament predominantly for England,8 a transforma-
tion underlined by the introduction of English Votes for English laws
(EVEL) procedure in 2015 giving an English Grand committee of MPs
representing English constituencies at Westminster a veto over English
legislation. In sum, there has been a very significant on-going trend
towards greater devolution.9 It is too early to judge whether the cumula-
tive effect of these changes will introduce a sustained period of greater
stability or merely act as a trigger for disaggregation of the Union.
CONSTITUTIONAL PROTECTION OF CITIZEN RIGHTS
The answer to the third question also remains uncertain at the time of
writing. The Conservative government elected in 2015 (which happened
to be the 800th anniversary of Magna Carta) promised to repeal the
Human Rights Act and replace it with a British Bill of Rights.10 Engi-
neering such a change is not straightforward. The prospect of reaching
a consensus on an alternative is unlikely. No detailed proposals have
yet been published by the government. As part of the post-devolution
constitution consultation is required before the government legislates.
The problem is reconciling the position of the Conservative govern-
ment at Westminster, wider opinion from other parties represented in
Parliament, outside opinion, including the legal profession and interest
groups with a human rights focus, and, above all, the devolved govern-
ments in Edinburgh, Cardiff and Belfast. As Professor Harvey explains:
In Northern Ireland, the Belfast/Good Friday Agreement 1998 is rightly
applauded for its transparent commitment to human rights; with its strong
8 In practice, the proliferation of Sewel (legislative consent) motions means that
Westminster continues to legislate for the devolved parts of the United Kingdom.
For example, in the 2007–11 session the Scottish Parliament approved 30 such
motions.
9 P Leyland, ‘The multifaceted constitutional dynamics of UK devolution’
(2011) 9 ICON 251–73.

10 S Dimelow and A Young, ‘“Common Sense” or Confusion? The Human
Rights Act and the Conservative Party’ (The Constitution Society, 2015).
endorsement of the European Convention and the expectation that a Bill of

Rights might follow. The Human Rights Act (in combination with other con-
stitutional and international legal measures) is one mechanism for carrying
these pledges into a dualist legal system. The Act matters so much precisely
because it is one of the main formal instruments (the Northern Ireland Act
1998 being one of the others) that realises the normative rights-based guar-
antees contained within a political/peace agreement.11
Notwithstanding the difficulty of drafting an acceptable British Bill
of Rights any proposal by the Conservative government for a British
Bill of Rights requiring the drastic step of withdrawal from the ECHR
faces vigorous opposition from inside as well as outside the Conserva-
tive Party.
THE CASE FOR A CODIFIED CONSTITUTION?
The shortcomings in constitutional accountability mechanisms have

featured as a recurring theme in this discussion.12 For instance, it can
be questioned whether Parliament in its present guise as the core rep-
resentative institution is equipped to provide effective representation,
legislative scrutiny and executive oversight. Clearly, there appears to be
a serious disjuncture between voters and the politicians that represent
them under present constitutional conditions. The blame could be
attributed, in part, to the failure to replace the simple majority electoral
system with a method of election with a proportional element; in part,
it could be because the adversarial procedures in the House of Com-
mons favour a simple division between government and opposition
rather than encouraging a more nuanced reflection of opinion; in part,
it might be attributed to the failure to tackle reform of the House of
Lords as a second chamber to provide an elected body with wider ter-
ritorial representation and with greater legitimacy. The radical constitu-
tional reforms embarked upon by the Blair government elected in 1997
changed the complexion of the UK constitution.13 In many respects
11 C Harvey, ‘HRA Watch: Reform, Repeal, Replace? Rights in a Fractured
Union’ UK Const L Blog (1 June 2015).

12 See N Bamforth and P Leyland (eds), Accountability in the Contemporary Consti
tution (Oxford, Oxford University Press, 2013), ch 1.

13 Eg, devolution, Human Rights Act, freedom of information, Supreme Court
and judicial appointments.

The Case for a Codified Constitution? 303
the UK constitution has come to look much more like a codified

constitution. To address the above issues, and correct other manifest
shortcomings in current UK constitutional arrangements, the answer
for some is to introduce a written constitution. As one commentator
explains, this would:
animate society with a sense of what is right and instil into government an
understanding of the proper limits to the exercise of power; above all it can
inform the conversation of politics with a sense of dispersed responsibility.14
In common with most other nations, the United Kingdom would
adopt a codified constitutional text setting in place all aspects of the
institutional framework (Parliament; civil service; courts; devolved,
regional, and local government) and this would also be allied to a lib-
eral democratic creed of citizen rights and a statement of government
obligations. Codification might bring with it the advantage of ‘attaining
greater clarity, wider and deeper dispersal of power, and a firmer more
enforceable set of principles and rules’.15
Richard Gordon has gone to the trouble of setting out in impressive
detail a written constitution founded on principles of representative
democracy and based on popular sovereignty.16 If such a constitution
were to be accepted by referendum it would have a claim to legitimacy
by deriving its authority from the people. Equally, it would offer the
advantages of entrenching the rights contained therein. However, this
constitution goes well beyond repeating the rights incorporated by the
Human Rights Act 1998. It contains a redrafted domestic bill of rights,
which is extended to social and economic rights. These include: an ade-
quate standard of living; access to sufficient food, water, clothing and
housing; social security; appropriate health and social care services free
at the point of delivery and the right to education. International experi-
ence of constitution-making has demonstrated that the elaboration of
such rights is not, in itself, a guarantee that all citizens will be entitled
to at least the minimum standards of life, particularly, in tight economic
times. The problem is that either such rights come to be regarded as
no more than non-justiciable directives of state policy, or alternatively,
14 F Mount, The British Constitution Now (London, Mandarin, 1993) 266.

15 A Blick, Beyond Magna Carta: A Constitution for the United Kingdom (Oxford, Hart
Publishing, 2015).
16 R Gordon, Repairing British Politics: A Blueprint for Constitutional Change (Oxford,
Hart Publishing, 2010) 27.

the Supreme Court, or any other court having responsibility for the
interpretation of the constitution, is called upon as the mechanism for
achieving delivery. As well as recognising that this raises questions of
institutional competence, former South African Supreme Court Justice
Albie Sachs explains the dilemma with admirable clarity: ‘[S]hould the
Constitution be read as handing over to each judge in each court the
right and duty to decide who should have priority access to social goods
in short supply?’ It is inherently unfair if the granting of a constitutional
right to a home/water, etc, is related to the capacity of any individual
citizen to litigate. The South African court held that the guiding prin-
ciple with any provision on access to adequate resources was not for
the court to come to the assistance of an individual but the recognition
of the obligation on the state (given the provisions in the constitution)
to take reasonable legislative steps and other measures’ progressively to
realise the right. This acknowledges the special expertise of government
rather than judges in developing ways to ration the allocation of scarce
resources.17
By way of the contrast Professor Adam Tomkins, on the basis of a
wide historical analysis, sets out what he calls ‘Our Republican Constitu-
tion’. In order to achieve popular sovereignty, it is crucial to start at the
bottom with the people and not with the monarchy. The objective is
to encourage self-government through processes of informed, public-
spirited deliberation. There is an underlying assumption that material
inequality has to be addressed so that the poor are not dominated by the
wealthy. The conception of freedom based on non-domination requires
that political decisions are taken in the public interest. Moreover, this
approach eschews the idea that the common law courtroom should be
preferred over Parliament to resolve highly sensitive questions where
personal opinion is deeply divided. The challenge in terms of institu-
tional design is to develop a structure that delivers appropriate forms of
accountability to the wider citizenry.18
In practice, any attempt at constitutional codification is unlikely
to bear fruit, because it presupposes a consensus can be reached
between disparate political groups on institutional design and other
17 A Sachs, The Strange Alchemy of Life and Law (Oxford, Oxford University Press,
2009) 177.
18 A Tomkins, Our Republican Constitution (Oxford, Hart Publishing, 2005) 5, 31, 61.
rights and values to incorporate in a new constitution. The controversy

surrounding the reform of the Human Rights Act 1998 bears witness
to the scope for disagreement over rights issues. Indeed, Professor King
cautions against the idea of adopting a written constitution as a panacea
in the absence of any popular demand for one. In approaching the task,
even if a convention were to be established to make recommendations,
there would be a practical hurdle of reaching anything like a consensus
on a new constitution.19 Of course, a major disadvantage of a new
entrenched constitution would be the difficulty in amending it to meet
any political challenges that might arise.
Nevertheless, the trend towards progressively codifying key aspects
of the constitution has redefined the relationship between Parliament,
the executive, and the courts in a wide range of different contexts.
Perhaps most significantly, the greater visibility of judicial review
has meant that the modern judiciary has already assumed a new role
amounting to a silent shift in the balance of the constitution. Over the
last 40 years or so the courts have reacted to the increase in the powers
of government, referred to in our discussion as ‘elective dictatorship’,
and the failings in accountability before Parliament, with a new era of
judicial assertiveness.20 Certain advocates of codification (or partial
codification) would seek to recalibrate the distribution of constitutional
power in favour of the judges as part of a written constitution.21 This
approach rests on the assumption that political questions can be, and
should be, separated from legal questions. State powers and individual
rights would be limited by principles of legality laid down by judges as
higher order law.22 As part of the revised arrangements in a legal con-
stitution (as opposed to a political constitution), the Human Rights Act
1998 would be amended to give the courts power to override legislation
which contravened Convention rights (rather than issuing declarations
of incompatibility), and a constitutional court would have the task of
ultimately deciding political questions which would be considered as
matters of constitutional legality.
19 A King, The British Constitution (Oxford, Oxford University Press, 2007) 362ff.
20 R Stevens, ‘Government and the Judiciary’ in V Bogdanor (ed), The British
Constitution in the Twentieth Century (Oxford, Oxford University Press, 2003) 350ff.
21 J Jowell, ‘The Rule of Law and its Underlying Values’ in J Jowell, D Oliver,
Press, 2015) 34ff.
22 See, eg, J Laws, ‘Law and Democracy’ [1995] PL 72, at 84ff.
Opponents of this view maintain that, ‘[t]he judicial constraint of

democracy weakens its constitutional attributes, putting inferior mecha-
nisms in their place’.23 At the same time, they reject the idea that the
courts can be relied upon as impartial guardians of the law and do not
accept that unelected and unaccountable judges are qualified to take
political decisions.24 For example, in resolving the disputed Presiden-
tial election in 2000, the US Supreme Court lined up according to the
declared political affiliation of its judges. Lord Denning, whose inter-
ventions when Master of the Rolls were often controversial, neverthe-
less recognised that:
if judges were given power to overthrow sections of Acts of Parliament,
they would become political, their appointments would be based on politi-
cal grounds and the reputation of our Judiciary would suffer accordingly.25
One of our most distinguished judges, Lord Bingham, put it rather dif-
ferently observing that:
The British people have not repelled the extraneous power of the papacy in
spiritual matters and the pretensions of royal power in temporal [matters] in
order to subject themselves to the unchallenged rulings of unelected judges.
A constitution should reflect the will of a clear majority of the people, and
constitutional change of the kind here contemplated should be made in
accordance with that will or not at all.26
Professor Loughlin questions the enclosure of politics within the strait-
jacket of the law. He concludes that:
The project of establishing law as an objective framework of rational prin-
ciples… has not been successful. With the ascendancy of law as right we do
not therefore reach the end of history, or an escape from politics. Instead,
this legalization of politics has led primarily to a politicization of law.27
In sum, shortcomings in accountability and effectiveness will not be
cured simply by adopting a written constitution, or by vesting the
courts with the ultimate power over constitutional matters. In the
23 R Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality
of Democracy (Cambridge, Cambridge University Press, 2007) 260.

24 J Griffith, ‘The Political Constitution’ (1979) 42 MLR 1.
25 369 HL Deb, 25 March 1976, cols 797–98.
26 T Bingham, The Rule of Law (London, Allen Lane, 2010) 168.
27 M Loughlin, Sword and Scales: An Examination of the Relationship between Law and
Politics (Oxford, Hart Publishing, 2000) 232.

future constitutional codification might be imposed by a cataclysmic

constitutional event such as the break up of the United Kingdom. In
the meantime the priority in reforming the system is to reinvigorate
the political process and restore confidence in politicians and political
institutions. In regard to Parliament, this calls for the introduction of
a reconstituted second chamber. Further improvements to the parlia-
mentary committee system are needed to enable enhanced legislative
scrutiny and to achieve improved scrutiny of delegated legislation.
The parliamentary expenses of scandal of 2009 (see Chapters 1 and 5)
reminds us of the importance of transparency in exposing wrongdoing
and that the credibility of the political class depends on the rigorous
enforcement of existing rules.
FURTHER READING
Bamforth N and Leyland P (eds), Accountability in the Contemporary Consti-

tution (Oxford, Oxford University Press, 2013).
Bingham T, The Rule of Law (London, Allen Lane, 2010).
Blick A, Beyond Magna Carta: A Constitution for the United Kingdom (Oxford,
Bogdanor V, The New British Constitution (Oxford, Hart Publishing, 2009).
Bogdanor V, The Coalition and the Constitution (Oxford, Hart Publishing,
2011).
Hazell R (ed), Constitutional Futures Revisited: Britain’s Constitution to 2020
(Basingstoke, Palgrave Macmillan, 2008).
King A, The British Constitution (Oxford, Oxford University Press, 2007).
McClean I, What’s Wrong with the British Constitution (Oxford, Oxford
Tomkins A, Our Republican Constitution (Oxford, Hart Publishing, 2005).
308
Index
abdication crisis 1936, 86–7 ultra vires doctrine, 204
abuse of power: adversarial system and political parties,
grant aid to Malaysia (case law), 220 116–17
home for life, breach of promise agencies:
(case law), 221–2 ‘green light theory’ and, 208
accountability, 12–13 Next Step Agencies, 178–9
absolute power and, 12–13 public bodies and see public bodies
‘Chain of Accountability ’, 171 and agencies
Civil Service, of, 176–7, 179 Regional Development Agencies
constitutions, of, 302–3 (England), 276
contractual agreement, through, 131 alternative vote system, 112
conventions and, 43 methodology, 112
EU political, 299 appointments and honours, Monarch’s
executive accountability see executive role in, 93
accountability arms to Iraq scandal, 173–4
government responsibility in Assembly of London, 280
departments, 169 London Mayor’s budget proposals, 281
Greater London Authority Act 1999, asylum claims and judicial review case law,
under, 280 79–80
‘green light’ theory and, 208–9 Audit Commission, 287, 291
independence of, 150
mechanisms, 291–2, 302 Backbench Business Committee, 147
Members of Parliament and, 121, 242 Balfour Declaration (1926), 21
ministers’, 43, 173, 174, 176 Barnett formula, 108, 262–3
New Public Management and executive criticism of, 262–3
accountability, 178–82 England, funding for under, 273–4
Parliament, accountability of, 181–2 local taxation and public services, 263
political and individual ministerial Belmarsh case (2004), 233–6
responsibility and, 171 best value, 287–7
Prime Minister and, 114 definition, 287
public bodies, for, 186 local authorities and, 287
public expenditure and, 149–50 performance plans, 287
Scottish devolution and, 274 ‘Big Society’, 290–1
transparency and, 12–13 objectives of, 290
Act of Settlement 1701, 26–7, 46, 74, 77 Bill of Rights 1689:
judges’ tenure, security of, 17, 41, 146 parliamentary privilege, 119
judicial independence, 201 Parliament’s supremacy, 45, 73, 106
additional member system (Scotland), 249 sovereignty, 17, 26
administrative law: Blair, Tony, Prime Minister:
France, in, 66, 204 appointment and dismissal of
implementation of, 204–5 ministers, 159
introduction, 203–5 Cabinet, under, 39
judicial review and, 204 constitution reform, 302
Lord Speaker elected by House of devolution, on, 267
Lords, 198 government departments, re-shaping,
‘red light’ theory, 205–7 169–70
referendum on, 112 Hutton Inquiry, establishment of, 71
310 Index
Murdoch Press and, 8–9 Liberal Democrat ministers, dismissal

policy arrangements, 168 of, 161
presidential style of leadership, 158 Murdoch Press and, 8
public sector and, 166 Scottish Independence Referendum
special advisers, 182 and, 253
‘third way’, 290 special advisers, 166
vote of confidence and, 116 Campbell, Alistair (Press Secretary and
‘block and formula’ system see Barnett Director of Communications), 167, 182
formula cash for questions, 121
British Bill of Rights (UK): Catholicism and parliamentary power
BBC producers, guidelines for, 230 (17th century), 16–17
Conservative Party proposal for, 237–8 centralisation of power:
consultations for, 301–2 devolution of power, 244
domestic, 303 ‘green light’ theory, and, 208
European Commission local government and, 245–6
opinion on, 238 Localism Act 2011 and, 61–2
governors, appointment of, 7 Centre for Management and Policy Studies
impartiality of, 7 (CMPS), 166
Scottish Nationalists, opposition to, 239 certiorari see quashing orders
British Broadcasting Corporation, charter marks, 166
independence of, 7 citizens:
British Commonwealth, 21–2 ‘citizen involvement’, 288
British Empire, 21, 22 participation and local government,
British-Irish Council (Northern 288–90
Ireland), 260 rights, constitutional protection
Brown, Gordon, Prime Minister, 92, 159 of, 301–2
Murdoch Press and, 8 well-being of, 288–9
resignation of, 114 Citizen’s Charter, 166
special advisers, 165 John Major initiated, 166
broadcasting and print media, 4–7 civil liberties, 3, 222
Italy, independence of, 5–6 civil servants:
UK, independence of, 5–6 conduct of (regulation), 176–7
BskyB takeover, 8–9 Development Select Committee,
budget proposals, London Mayor’s appearance before, 144–5
and Assembly of London, 281 impartiality of, 174, 182
ministers’ contractual relationship
Cabinet Committees and Prime Minister, with, 174
160–1 policy formulation and, 179–80
Cabinet Office, 164–5 vetting sidestepped, 183
role of, 164 Civil Service, 176–8
twentieth century, importance of during, accountability and, 176–7, 179
164–5 code of conduct for, 182–3
Cabinet Secretary, 164 France, in, 177
Cabinet, The: government policy, role of, 177–8
collective responsibility, 161–2 history and development of, 177
prime ministers and, 39, 160–3 impartiality, 177
role of, 160 management of, 182–3
Callaghan, James, Prime Minister: market solutions and privatisation, 181
resignation of, 49 Prime Ministers and, 39–40
vote of confidence, loses, 115 reduction of, 178, 179
Calman Commission (2007), 251 re-organisation of, 178–9
Cameron, David, Prime Minister, 92, 114 structure and organisation of, 178
Andy Coulson, appointment of, 8, 183 Civil War (1642–9), 16
fixed term parliaments, 159–60 closure rule (passage of legislation), 138
Index 311
coalitions: Constitutional Reform Act 2005, 46, 76, 81,

in Scotland, 264–5 129, 191–2, 197, 200, 202–3
2010 general election, after, 112 constitutional role of courts, 191–242
codes of practice, 173–4 introduction, 191–2
principles for, 121 constitutional statutes (UK), 26–7
codification, constitutional, 304–5 constitutions:
codified constitution (UK), 2, 302–7 accountability of, 302–3
courts and, 195 codified see codified constitution
collective responsibility, Cabinet’s, 93–4 Crown and, 85–103
collective rights in rule of law, 69–70 definition and purpose of, 1–2
Commander in Chief of the Armed development of, 11–13
Services, Monarch is, 94 principles of, 45–84
Committee on Standards in Public Life, 121 safeguards, 13
committee stage (House of Commons), South Africa, in, 303–4
135–6 UK Constitution, development of, 11–13
House of Lords’ amendments to bills consultation period (legislation):
considered, 137 Departmental Select Committees, by, 134
committee stage (House of Lords), 136–7 pressure groups by, 134
advantages of, 137 contract, Crown’s liability in, 98–9
common law, 27–8 agreement and accountability, 13
case law for, 27–8 contract state, 213–14
judges’ role in, 192 contracted services, local authorities’, 287–8
Parliamentary sovereignty and, 48–9 conventions, 32–43
private law, and, 27–8 accountability and, 43
remedies, 212 aim of, 33
statutory interpretation and, 192–6 Cabinet’s collective responsibility, 161–2
Commonwealth: characteristics of, 34
history of, 16, 21–2 constitutional, 25–6
monarch as figurehead, 22, 94–5 Crown and, 37–8
community strategies, 289 definitions, 33–6
compensation: Dicey’s definition, 33–4
right to under prerogative discretion and, 37, 95
(case law), 88–9 disregarding, 36
schemes for victims of crime executive power and, 43
(case law), 221 individual ministerial responsibility, 171
competence, local council’s power of, 291 Jenning’s definition, 34–5
Comptroller and Auditor General judges’ roles and, 41–2
(CAG), 150 Parliament and, 40–1
Compulsory Competitive Tendering Prime Minister, and, 38–40
(CCT), 287–8 practices as, 35–6
Concordat on Co-ordination of European reason for, 35
Union Policy Issues, 267 ‘Salisbury Convention’, 41
concordats, 245 Sovereign advised by Prime Minisiter, 38
management of, 263–4 validity of, 34–5
congestion charging scheme, 282 co-ordination and control and local
Congressional Committees (US), government policy, 170
Department Select Committees, Coulson, Andy (Director of
comparison with, 142 Communications for
Conservative Party (UK): Prime Minister), 8, 183
EVEL and, 276–7 Council of the European Union, 52
2010 general election results, 110 council committees’ powers, 285
2015 general election results, 111 council tax, 285–6
UK Bill of Rights proposal, 237–8 increases, council tax payers’ consent
constituencies, size of, 109 for, 292
312 Index
county councils’ responsibilities, 284 liberal see liberal democracy

courts (UK): local, 289
accountability to Parliament (case law), representative, constitution based
77–80 on, 303–4
balance of power (Parliament’s), 218–19 democracy model (Sustein’s), 2–3
challenge of statutes, 49 Democratic Unionist Parties (DUP)
codified constitution (UK), 195 (Northern Ireland), 261
constitutional change and, 305 democratisation in Scotland, 265
constitutional role of see constitutional Department for Work and Pensions, Public
role of courts Accounts Committee’s scrutiny of, 151
devolution and, 268–73 Department of Economic Affairs
flat rate court fee (case law), 220 (1960s), 169
immigration service and (case law), 235–6 Department of Transport, Local
impartiality of, 306 Government and the Regions
Parliament and, 50, 218–19 (DTLR), 169
powers and proportionality test, 227 Departmental Select Committees (est. 1979),
powers of under Human Rights Act, 141–5
223–5 Cabinet Office guidance for appearing
public bodies, are, 226 before, 145
Scottish and legislation for devolution, chairs of, 146–7
268–9 composition of, 141
Strasbourg case law, application of, 238–9 Congressional Committees (US),
Crown: comparison with elections, 142–6
appointment of Prime Minister, 37–8 executive, check on by, 142
approval of, Parliamentary legislation function of, 142
and, 37 independence of, 146
concept of, 96 inter-party co-operation, effect on, 147–8
constitution and, 85–103 introduction, 32
contract, liability in, 98–9 July 2015, as at, 143–4 (table)
conventions and, 37–8 members, election of, 146–7
damages awards against, 99 membership of and Whips, 146
definition, 96 ministers’ and civil servants’ appearances
immunity of, 96 before, 144–5
privilege, 97 public bill committees, comparison
tort, liability in, 98–9 with, 144
Culture, Media and Sport Committee public reports of, 144
(UK), 10 purpose of, 141
reconstitution of, 144
damages, awards against the Crown, 99 revision of (1970s), 142
decentralisation: roles of, 147
EU funding and, 268 transparency and, 147
subsidiary in Europe and, 244–5 Deputy First Minister (Northern Ireland),
decision-making and citizen’s participation election of, 271–2
in, 209 Deputy Prime Minister, office of, 169–70
declaration (remedy), 212 devolution, 246–73
declaration of incompatibility, 224–5 background, 246–7
decolonisation, British, 21–3 courts and, 268–73
decommissioning of weapons (Northern England and, 273–6
Ireland), 261 funding, 262–3
delegated legislation, 80, 139–40 Human Rights Act, replacement of
Parliamentary scrutiny and, 139–40 and, 239–40
Welsh Assembly measures, 257 intergovernmental relations and, 263–4
democracy: legislation for, 243–4, 246–7
electronic, 186 local governance and, 243–96
Index 313
Parliament after, 106–7 English legislation:

Parliamentary reform and, 276–8 definition, 107–8
proportional representation, 247 House of Commons Speaker’s
public expenditure changes, 262–3 determination of, 108
referendums for, 60 English parliament, proposal for, 275
royal assent, 258, 269 English Regional Government, proposal
Scottish see Scottish devolution for, 275–6
UK and, 300–1 English Votes for English Laws (EVEL),
Wales, in, 255–8, 269, 271 107–8, 276–7, 301
West Lothian question, 106–7, 274 committee stage introduced, 276
Director of Communication, 168 English Bill, treatment of, 136
disarmament process (Northern equality and rule of law, 66–7
Ireland), 259 Equality Commission for Northern
discretionary powers and rule of law, 66 Ireland, 259
district councils’ responsibilities, 283 Europe:
divine right of kings, 16 subsidiarity in and decentralisation, 244–5
doctrine of implied repeal, 47–8, 57–8 UK involvement with, 22–3
doctrine of primacy, 52–3, 54 European Commission, 52
due process and rule of law, 70 Treaty of Lisbon 2007 and, 29
UK Bill of Rights, opinion on, 238
e-government, 166, 186–7 European Committee in Scotland, 268
e-petitions and popular democracy, 148–9 European Constitution, 29, 298–9
‘economy, efficiency and effectiveness’, draft, referendums for, 299
measurement of, 180 European Convention rights, court’s
‘elected monarch’ style of leadership, 158 interpretation of, 58
elected second chamber, 129–30 European Convention on Human Rights:
drawbacks of, 130 convention rights, 227
House of Commons, comparison with, freedom of expression and, 30, 231, 229
131–2 Scottish legislation, incompatibility with,
elections: 269–70
calling, Monarch’s role, 92 summary, 30–1
government formation after, 91–2 European External Affairs Directorate, 268
House of Commons and, 108–15 European Parliament, 29, 52, 299
Scotland, in, 264–5 European Union:
Wales, in, 264–5 French approach to, 299–300
‘elective dictatorship’, 59, 75, 157, 188, 305 funding from, 268
electoral reform, House of Lords law making process, 30
response, 126 member states, implications for, 28
electronic democracy, 186 political accountability, 299
electronic voting, 113 treaties, 298–9
Elizabeth I, Queen, 15, 19, 106 UK membership of, 22–3, 54–5, 298–300
Elizabeth II, Queen, national European Union Act 2011, 29–30, 55–7
identity of, 87 European Union law and, 57
England: objective of, 56
Barnett formula, funding under, 273–4 UK constitution, implications for, 29–30
devolution and, 273–6 European Union law, 28–30
union with Scotland, 19–20 European Union Act 2011 and, 57
English Bills: implementation of in UK, 267
House of Commons Speaker member state in, 52–3
designates, 107 Parliamentary sovereignty and, 52–5
passage of, 136 protection of rights (case law), 53
voting on, 276–7 referendums (UK) on, 57
English Grand Committee of Members rights and obligations enforceable
of Parliament, 107, 301 in UK, 28–9
314 Index
EVEL see English Votes for English Laws freedom of expression, 4–7
Exchange Rate Mechanism (ERM), 119, 175 ECHR and, 30, 213, 229
UK withdrawal from, 119 media and see media
exclusivity principle defined, 213 Freedom of Information Act 2000,
executive: 183–6, 188
Departmental Select Committee, ‘absolute exemption’, 184–5
check on, 142 aim of, 184
government and, 157–90 exempt categories, 184–5
parliament, accountability to, 181–2 qualified exemptions, 185
executive accountability: freedom of information requests test case,
law and, 77, 249 185–6
New Public Management, and, 178–82 freedom of speech, 120
executive dominance, 188 national security considerations
model, 58–9 (case law), 229
executive power (Parliamentary): political (case law), 229–31
concluding remarks, 153–4 proportionality and, 229
conventions and, 43 feudal system, 14–15
executives: funding from European Union, 268
local authorities’, 289 fusion of powers (UK constitution), 74–5
local government, 289
expenses scandal, 122–4 general elections:
express repeal, 50–1 date set by Prime Minister, 159–60
external audits for local authorities, 291 dissolution of parliament after, 38
postponement of, 93
fairness rule and judicial review, 217 2001 see 2001 general election
false accounting, 124 2010 see 2010 general election
finance, parliamentary scrutiny of, 151–2 2015 see 2015 general election
First Minister (Northern Ireland), election vote of confidence, loss of after, 39,
of, 271–2 40–1, 49
first past the post electoral system, 108–11 Germany, 22, 69, 71
consequences of, 109 administrative law, 205
history of, 108–9 France, relationship with, 22
objections to, 112 civil service, 177
operation and method of, 109 mayors, 293
strengths of, 111–12 subsidiarity, 244
first reading (passage of legislation), 134 ‘Glorious Revolution’ 1688, 86, 119
First Secretary (Wales), powers of, 256 ‘Good Friday’ Peace Agreement 1998, 246,
foreign nationals, detention of (case law), 259, 260, 261, 301–2
233 governance in UK, 11–13, 82
Forward Strategy Unit (FSU), 166 government:
France: executive and, 157–90
administrative law, 66, 204 formation of and House of Commons,
Civil Service, 177 113–15
debt crisis in Europe, 300 formation of by Prime Minister, 159
European union, approach to, 299–300 formation of, Monarch’s role, 91–2
First and Fifth Republics, 14 Internet and, 166–7
Germany, relationship with, 22 openness, 183–6
head of state, 101 opposition’s co-operation with, 119
mayors, 293 selection of by Prime Minister, 114
referendums, 29 Tony Blair and, 169–70
revolution, 18 government departments:
school dress codes, multiculturalism accountability, 169
in, 232 local government, responsibility for,
freedom, defence of, 67–8 169–70
Index 315
Prime Minister’s control of, 168–70 House of Commons, 115–25

transport, responsibility for, 169–70 composition of, 115
government ministers’ judicial decisions elected second chamber, comparison
criticised, 79–80 with, 131–2
Government of Wales Act 1998 (GWA), elections and, 108–15
246, 255–6, 257, 269, 271 formation of government and, 113–15
Government of Wales Act 2006 (GWA), Members of Parliament and, 115–17
258, 271 powers of, increased, 63–4
government policy, co-ordination and reform of, 146
control, 170 House of Commons Speaker, 115, 117–18
Grand Committee for English Votes for devolution and, 108
English Laws, 107 election of, 41
Greater London Authority areas, 280 emergency debates and, 117
Greater London Council: English Bill, designates, 107
abolition of, 284–5 English legislation and, 108
legality of policy decision (case law), expenses scandal and, 122
219–20 historically, 16, 119
Green Book financial allowances, 123 impartiality of, 41, 108
‘green light theory’, 207–11 judicial scrutiny, 108
accountability and, 208–9 reform of (2009), 146
centralisation of power and, 208 warrant, 120
citizens’ participation in decision-making, Wright Committee Report (2009), 146
209 House of Lords, 125–32
development of, 207–8 composition of, 127–9
public bodies and agencies, 208 delaying legislation, right to, 137–8
red light theory, compared with, 210–11 electoral reform, response to, 126
statute law and, 208 functions of, 125
tribunals and, 209–10 history of, 125–7
Green Papers, 134 introduction, 125–7
Green Party, 265 Jackson case and, 65
‘guillotine rule’ (passage of legislation), 138 Parliament Act 1911 and, 126–7
passage of legislation through, 126–8
‘Hackgate scandal’, 8–10 political representation in, 129
Head of State, Monarch is, 94 powers of, 18–19
Head of the Commonwealth, Monarch is, reduction of size, reform for, 131
94–5 reform of, 121–2, 125–7, 129–32,
healthcare: 278, 302
Herceptin, supply of (case law), 233 regulation of powers, 63
individual claims and, 233 secondary legislation, powers of veto
‘Henry VIII clause’, 80, 139 (2015), 127, 132
Parliamentary sovereignty and, 194–5 Senate for the Regions, replaced by, 132
Henry VIII, King, 15, 19, 29, 106 territorial governance and reform of, 132
Herceptin, supply of (case law), 233 House of Lords Reform Bill 2012, 131–2
hereditary peers, 128 House of Lords Speaker:
hierarchy: Lord Chancellor is, 75, 146
civil service, 177 Lord Speaker, 198
government, in, 157 Human Rights Act 1998:
history, importance of, 14 aim of, 57
Home Affairs Committee (UK), 10 case law, 228–36
Home Office, 80 criticism of, 236–7
Executive and courts, friction between, 78 effect of, 58
High Court order ignored, 27, 220–1 horizontal effect, 226
Home, Sir Alec Douglas, Parliamentary sovereignty and, 195–6
Prime Minister, 114 proportionality test, application to, 227–8
316 Index
Section 2, amendment of, 238–40 Information Commissioner, 185

sovereignty and, 57–8 information, public access to, 186–7
UK, effect on, 223 injunctions, 212
UK legislation, compatibility with, 223–5 Intelligence and Security Committee, 163
vertical effect of (case law), 225–6 intelligence services and
hung parliament, change of government Prime Minister, 163
under, 114 intergovernmental co-operation and
Hunting Act 2004 and parliamentary Sewel Convention, 264
sovereignty, 63 intergovernmental relations and devolution,
Hutton Inquiry (2004), Tony Blair 263–4
establishes, 71 Internet:
access and e-government, 187
ICT and government, 186–7 government and, 166–7
immigration: public engagement and, 187
foreign nationals, treatment of (case law), inter-party co-operation, Departmental
234 Select Committees, effect on, 147–8
government powers, limits on (case law), Iraq:
220–1 legality of second war against, 185–6
immigration cases and judicial review, 212 UK involvement in, 71
Immigration Service and courts (case law), Ireland, union with England, 20–1
235–6 Irish Republic and Northern Ireland
impartiality: Assembly, 260
BBC, of, 7 Italy, independence of broadcasting
Cabinet Secretary, of, 164 and print media, 5–6
civil servants, of, 174, 182
courts,of, 306 Jackson case:
House of Commons Speaker, of, 41, 108 House of Lords and, 65
Monarch, of, 95 sovereignty and, 62–5
implied repeal, 51 ‘joined-up’ government, 170, 288
case law, 51 ‘judge over your shoulder’ (circular), 212
income tax in Scotland, 251–2 judges:
incompatibility, court’s declaration and common law role, 192
Parliamentary sovereignty, 58 constitutional power of, 305
independence: politics and, 78–9
accountability and, 174, 182 powers under Human Rights Act, 223–5
BBC, of, 7 retirement of, 201
EVEL, and, 276–7 role of and conventions, 41–2
judicial see judicial independence security of tenure, 17
parliament, of, 119, 120 Supreme Court, appointment to, 202
Scottish see Scottish independence tribunals and, 81
SNP and, 253 judicial appointments, 41–2, 198–201
Zimbabwe, of, 22 equality and diversity considerations, 200
Independence Referendum (Scotland) politicisation of, 198–9
(2014), 60, 244, 252–4, 257, 294, 300 social class, on basis of, 199–200
results, 254 US, in, 199
SNP and, 252–4 Judicial Appointments Commission (JAC),
Independent Monitor of the Press 200–1
(IMPRESS), 67 composition of, 200
Independent Parliamentary Standards ratification of appointments, 200–1
Authority (IPSO), 6, 10–11, 123 judicial decisions, government ministers’
individual ministerial responsibility and criticism of, 79–80
political accountability, 171 judicial independence, 41–2, 197
individual rights and rule of law, 69 Act of Settlement 1701 and, 201
inequality and rule of law, 67 judicial appointments, of, 191
Index 317
Lord Chancellor maintains, 197 Legislative and Regulatory Reform Bill, 139
separation of powers and, 46, 79 Leveson Inquiry (2011), 9–11
judicial review: liberal democracy:
administration law and, 204 definition of, 2–3
applications, increase of, 211–12 minority interests, 3
asylum claims (case law), 79–80 Parliament and, 3
asylum seeker from Zaire, 77–8 Liberal Democrats:
basic principle, 215–16 minorities and, 3
case law, 219–22 2001 general election results, 110
courts and parliament, balance of power, 2010 general election results, 110
218–19 2015 general election results, 111
fairness rule and, 217 Life Peerage Act 1958, 128
fettering principle, 217 life peers, 128–9
granting of, 211 local authorities:
grounds of, 215–18 “best value” performance plans, 287
immigration cases, for, 212 contracted services, 287
impact of, 211–15 definition, 283
jurisdictional error, 217–18 external audits for, 291
natural justice and, 217 planning services, 287–8
parliamentary sovereignty limits, 194–5 powers of, 285
public bodies’ decisions, 212 spending powers, 245
public law and, 213 spending restricted, 293
royal prerogative (case law) and, 88–90 local communities, power shift to, 290–1
Scottish acts of parliament, for, 272–3 local councils, power of competence, 291
Scottish devolution issues for, 270 local councillors’ wards, 283
separation of powers and, 46 local governance and devolution, 243–96
statutory ouster clauses, 217–18 local government, 279–96
sub-grounds and categories, 217 boundaries, reorganisation of, 284
terminology of, 216 citizen participation and, 288–90
judiciary: England, fiscal arrangements and 2015
Parliament and, 62–5 election, 286
‘red light theory’ and, 206–7 executives, 289
justice powers (Northern Ireland), financing of see local government
devolution of, 261 funding
framework of, 283–5
‘kangaroo’ rule (passage of legislation), 138 government departments responsible
for, 169–70
Labour Party: introduction, 279
old Labour policies, influence of, 266 legislation for, 279
2010 general election results, 110 London boroughs, (1985), reform of,
Law Lords (Lords of Appeal in Ordinary), 284–5
75–6, 129 market-driven policies, 287
UK Supreme Court and, 202 metropolitan district councils (1985),
law, politicisation of, 306–7 reform of, 284–5
legal aid budgets, government cuts for, privatisation of services, 292
222–3 public involvement with, 245
legal equality, 46 referendums and, 61
legal sovereignty, 205 responsibility for, 169–70
definition, 64 review of local authority executives, 289
legal treaties for UK constitution, 31–2 rural councils, 284
legislation: trends in, 292–3
assent for, Monarch’s role, 93 local government funding, 285–6
English see English legislation central government grants, through, 285
passage of see passage of legislation council tax, through, 285–6
318 Index
financial dependency on Westminster, media:

285–6 freedom of expression and, 4–7
fiscal arrangements, revision of influence and phone hacking, 8–11
(2015), 286 political function, 4
raising local revenue, 285 public watchdog, as, 4–5
local government ombudsman, 291 statutory regulation, 6–7
local government spending, member states and European Union law,
capping, 286 52–3
local services, referendums for, 293 Members of Parliament:
local taxation and public services, 263 accountability and, 121, 142
Localism Act 2011 and referendums, 61–2 business interests, 121
London, local government restructuring, conduct of, 120–1
284–5 expenses scandal, 4–5
London Mayor, 280 geographical and local aspects
capital funding package, 281 of role, 116
functions of, 280–1 outside interests, 134
London Transport and, 281, 282 role of in House of Commons, 115–17
separation of powers, 281 voting with the opposition, 116
London Transport and London Mayor, Memorandum of Understanding (MOU),
281, 282 263–4
London-wide government, 280–3 metropolitan area councils abolished, 284–5
Lord Chancellor: ministerial accountability:
appointment of Supreme Court judges, arms to Iraq scandal, 174
202 failure, 174
Constitution Reform Act 2005, role ministerial advice and Monarch’s role, 93–4
changes after, 202–3 ministerial appointments and Monarch’s
current responsibilities, 197–8 role, 92–3
Department, 75 ministerial incompetence, 175–6
judicial independence, maintenance minister’s survival after, 175
of, 197 ministerial resignation and policy failures
legal background and experience of, (examples), 175
196–7 ministerial responsibility, 188
Ministry of Justice, head of, 197 accountability to Parliament, 181–2
ratification of judicial appointments, answerability to Parliament, 172–3
200–1 definition, 175–6
reforming office, 196–8 Press and, 175–6
role of, 75–6 resignations, 172–3
separation of powers, 196 ministers:
2003 reforms, 196–7 accountability, 43, 173, 176
Lords Spiritual, 128 appointment and dismissal of by Prime
Minister, 161
Magna Carta (1215), 14–15 civil servants’ contractual relationship
Major, John, Prime Minister, 71, 119 with, 174
Citizen’s Charter, initiated by, 166 Development Select Committee,
collegiate leadership style, 158 appearance before, 144–5
courts and, 211 Members of Parliament, as, 171
disunity in government, 168 policy formulation and, 179–80
special advisers, 165 resignation of, 172–3
Manchester Mayor, 283 Ministers of the Crown Act 1975, 169
mandating orders, 212 Ministry of Justice, Lord Chancellor
Matrix Churchill affair 1992, 98, 184 heads, 197
directors, prosecution of, 174 minorities and Liberal Democrat interests, 3
Mayor of London see London Mayor Modernisation Committee of the House of
mayors, direct elections for, 293 Commons, 147
Index 319
monarch and monarchy: Northern Ireland Assembly, 260, 301

absolute, 14–17 Irish Republic, links with, 260
appointments and honours, role in, 93 open government, 266
assent to legislation, 93 Northern Ireland Human Rights
calling elections, role in, 92 Commission, 259
Commander in Chief of the Armed Northern Ireland Justice Department, 301
Forces is, 94
constitutional in Spain, 101–2 Office of Communications (OFCOM), 7
constitutional role of, 90–5 open government:
evolution of, 85–7 Northern Ireland Assembly in, 266
formation of government and, 91–2 Scottish Parliament, in, 266
future of discussed, 99–101 Welsh Assembly, in, 266
Head of State is, 94 opposition party, 118–19
Head of the Commonwealth is, 94–5 choice of debates, 118–19
history of royal prerogative, 85–6 co-operation with government, 119
impartiality of, 95 role of, 118
ministerial advice and collective
responsibility, 93–4 Panel on Takeovers and Mergers, 214
ministerial appointments, role in, 92–3 Parliament, 105–55
powers of discussed, 95–6 accountability to courts (case law),
Prime Minister, appointment of and, 39 77–80
Murdoch, James, 10 balance of power (courts), 218–19
Murdoch, Rupert, 8–9, 10 conventions and, 40–1
courts and, 50
National Assembly of Wales, 256–7 definition, 105
National Audit Office: Departmental Select Committees
Public Accounts Committee, see Departmental Select Committees
and, 150–1 devolution, after, 106–7
role of, 150 dissolution of, 159
natural justice and judicial review, 217 emergency debates and House
negative liberty, 67 of Commons Speaker, 117
New Public Management (NPM): executives, accountability to, 35
executive accountability and, 178–82 general elections see general elections
initiative, 178–82 history of, 105–6
role of, 180 hung, change of government under,
News International, 9–10 91, 114
News of the World hacking scandal, 8, 148 independence, 119, 120
Next Step Agencies, 178–9 introduction, 105–7
Nolan, Lord, 119–20 judiciary and, 62–5
non-nationals’ preferential treatment in law maker, as, 47
detention (case law), 234–5 legislative and executive functions, 46–7
North-South Ministerial Council (Northern legislator, as, 133–40
Ireland), 260 liberal democracy and, 3
Northcote-Trevelyan Report (1854), 177 ministerial answerability to, 172–3
Northern Ireland: powers of, 40–1
‘Good Friday’ Peace Agreement 1998, Prime Minister and parliamentary
246, 259, 260, 261, 301–2 support, 158
devolution case law, 271–2 privileges, 17
power-sharing, 258–61 representative, 18
Unionists and Republicans (Northern supremacy of, 74–5
Ireland), reconciliation of, 259 Tudor period, in, 15–16
Northern Ireland Act 1998: UK constitution, in, 74–5
devolved government, restoration of watchdog, as, 140–55
order, 259 Westminster Model and, 22, 142
320 Index
Parliament Act 1911, House of Lords and, House of Lords, through, 136–8
126–7 ‘kangaroo’ rule, 138
Parliament Act 1949, effect of, 63–4 royal assent, 36, 37, 93, 95, 139
Parliamentary Commissioner for Standards, second reading, 134–5
121, 122 US, in, 138
Parliamentary Committee on Standards in Passport Agency (1999) delays, 150–1
Public Life, 182 Performance and Innovation Unit
parliamentary democracy, 17–19 (PIU), 166
development of, 17–18 Permanent Secretary, Government
parliamentary legislation, approval of and Communications, 168
the Crown, 37 Petition of Right 1628, 15, 16, 26
Parliamentary Ombudsman, 152–3 phone hacking:
access to, 152 Leveson Inquiry, 9–11
function of, 152 media influence and, 8–11
investigations, examples of, 152–3 planning permission, 287–8
investigatory powers, 152–3 planning services, local authorities’, 287–8
Parliamentary practice, rules and procedure police powers (Northern Ireland),
for, 32 devolution of, 261
Parliamentary privilege, 119–20 policy co-ordination and Prime Minister,
case law, 120 163–7
granting of, 119 policy formulation, 179–80
Parliamentary Questions, 117, 140–1 Policy Unit and Margaret Thatcher, 164–5
balloting procedures, 141 political accountability, individual ministerial
limitations of, 141 responsibility and, 171
time available for, 141 political free speech, protection of the
Parliamentary reform (England) and public and (case law), 229–31
devolution, 276–8 political liberty, rule of law and, 71
Parliamentary sovereignty, 47–65, 193–5 political power:
common law and, 48–9 development of, 12
Court’s challenge of Statutes, 49 exercise of, 13
definition, 47 political sovereignty, 58–62
Dicey’s views on, 64 definition, 58
erosion of, 55–7 politics and judges, 78–9
European Union law, 52–5 popular democracy, and e-petitions, 148–9
Henry VIII clauses and, 194–5 power:
Human Rights Act 1998 and, 195–6 absolute, 12–13
Hunting Act 2004, and, 63 political see political power
incompatibility, Court’s declaration of, 58 power-sharing (Northern Ireland), 258–61
judicial review and, 194–5 background, 258–9
limits to, 194–5 precedent, binding, 192–3
qualifications of, implications of, 55 prejudice and Freedom of Information
rule of law and, 65–6 Act 2000, 185
Treaty of Rome 1957, and, 52 Press:
UK membership of EU and, 54–5 ministerial responsibility and, 175–6
US, in, 194 self-regulation, 6
partnership, local government and the Press Complaints Commission, 6, 10
community, 288 Press Office, Prime Minister’s, 167
party election broadcasts by Prolife Alliance policy announcements approved by, 168
(case law), 229–31 public perception of government, 167
passage of legislation: press ownership, 8–9
closure rule, 138 primacy doctrine, 52, 54
first reading, 134 Prime Minister:
‘guillotine’ rule, 138 appointment of, 37–8, 39
House of Lords Committee Stage, 136–7 Cabinet and, 39, 160–3
Index 321
Cabinet Committees and, 160–1 origin of, 149

civil service and, 39–40 remit of, 149–50
formation of government by, 159 Public Bill Committees, 135–6
general election date set by, 159–60 composition of, 135
intelligence services and, 163 consideration of bills by, 138
invitation to become, 113–14 deficiencies of, 136
ministers appointed by, 161 Departmental Select Committees,
office of during 20th century, 164–5 comparison with, 144
office origins, 158 effectiveness of, 136
parliamentary support of, 158 influence over parliamentary bills, 135
peers, appointment of, 127 reform of, 278
policy co-ordination and, 163–7 public bills, consultation period, 134
political authority of, 162–3 public bodies and agencies:
powers, 39, 158, 159, 161 accountability, 186
Press Office see Press Office, Prime Courts are, 226
Minister’s Court’s determination of, 225–6
represents nation, 160 green light theory and, 208
styles of leadership, 158 judicial review and, 212
Prime Minister’s Office, 165 quashing order and, 216
advisers in, 165 public engagement, Internet and, 187
primus inter pares (collegiate leadership public expenditure:
style), 158 accountability and, 149–50
print media see broadcasting Barrett formula and, 262–3
and print media public functions, Court’s determination
prisoner’s rights and privileged of, 225
correspondence, (case law), 27–8 public interest, immunity (PII), 97–8
privacy, invasion of, 9–11 case law, 97–8
private Bills, 139 public law:
private law: judicial review and, 213
common law and, 27–8 private law, distinguished from, 213–14
public law, distinguished from, 213–14 public law issue, definition, 213
private Members’ Bills, 139 public-private partnerships, 293
private right to be treated, and supply of public sector:
Herceptin (case law), 233 market-driven policies, 287
privatisation, market solutions and Tony Blair and, 166
civil service, 181 public services:
privatisation of services and local local taxation and, 263
government, 292 provision and green light theory, 207–8
prohibiting orders, 212
proportional representation, 112–13 quashing order, 212, 216
devolution and, 247
proportional voting system, 264–5 rape trials, conduct of (case law), 224
proportionality, 218 Rechstaat, 11–12
balancing exercise, is, 228 ‘red light’ theory, 205–7
freedom of speech and (case law), 229 ‘green light’ theory compared
religious beliefs, school dress codes with, 210–11
(case law), 231–2 judiciary and, 206–7
proportionality review, 226–36 referendums, 292
proportionality test, 227–8 alternative vote system and, 112
Court’s powers and, 227 devolution and, 60
Human Rights Act, application to, 227–8 EU law on, 57
Public Accounts Committee (PAC), 149–51 EU treaties and law on, 56
National Audit Office and, 150–1 examples of, 59–60
operation of, 149–50 France, in, 29
322 Index
generally, 59 same-sex partners, tenancy rights

local government and, 61 (case law), 224
local services, delivery of, 293 school dress codes, Muslim dress in schools
Localism Act 2011 and, 61–2 (case law), 231–2
need for, 289–90 Scotland:
‘no’ vote, effect of, 57 coalitions in, 264–5
regional, 60–1 democratisation, 265
regional and local government, for, 61 devolution, 60, 247–54
regional and local government, referendums elections in, 264–5
and, 61 finance provision, 251–2
Regional Development Agencies income tax in, 251–2
(England), 276 judicial review for devolution issues, 270
Register of Members’ Interests, local government boundaries, restrictions
121, 134 of, 284
religious freedom, Muslim dress in schools nationalism, elements of, 247–8
(case law), 231–2 student fees in, 266
report stage (legislation), 136 tax-raising powers, 251–2
representation in Parliament, 117 union with England, 19–20
republican constitutions, 100 Scotland Act 1998:
Richards Commission (2002), 257 powers of, 248
right of discovery, 97 Scottish Parliament’s power under, 248–9
right to a fair trial, 222–3 Scott Inquiry (1996), 71, 76, 145
right to free expression, 4 Scott Report (1995–6), 145, 173–4, 184
royal assent, 37, 93 95, 139 Scottish Budget (2015–16), 251
devolution, 258, 269 Scottish devolution, 247–54
Royal Commission on the Reform accountability, 274
of the House of Lords (2000) legislation for, 268–9
recommendations, 130–1 Scottish First Minister, nomination of, 249
Royal prerogative, 87–90 Scottish independence, 275, 277
definition, 88 UK membership of the EU and, 298
function of, 87–8 Scottish legislation
government process and, 32 passage of, 250
judicial review (case law), 88–90 UK Parliament’s involvement in, 250
personal element, 88 Scottish National Party, 265, 298
political element, 88 independence referendum and, 252–4
qualifying powers of, 90 2015 general election results, 50, 111
statutory powers and (case law), 88–90 UK Bill of Rights, opposition to, 239
rule of law, 11–12, 46, 65–71, 171, 206, Scottish parliament:
collective rights overlooked, 69–70 challenges to legislation, 269–70
definition, 66–7 judicial review of Acts, 272–3
Dicey’s ideas adapted, 70–1 legislation for devolution, 268–9
Dicey’s views criticised, 68–71 open government, 266
discretionary powers and, 66 powers under Scotland Act 1998, 248–9
due process and, 70 safeguards for legislation, 269
equality and, 66–7 second reading, 134–5
examples of, 222 secondary legislation:
individual rights and, 69 House of Lords’ powers of veto for,
inequality and, 67 127, 132
Parliamentary sovereignty and, 65–6 Welsh Assembly and, 255
political liberty and, 71 secondary picketing, 78–9
Select Committee chairs, election of, 146
St Andrews Agreement (Northern Select Committee on Standards and
Ireland), 261 Privileges, 121–2
Salisbury convention, 41, 125, 138 role of, 122
Index 323
Select Committee on the Reform of the statutory codes of conduct, 291

House of Commons (Wright 2009) statutory interpretation and common law,
see Wright Committee (2009) 192–6
‘self-correcting democracy’, 206 statutory powers and Royal prerogative,
Senate of the Nations and the Regions 88–90
replaces House of Lords, 132, 278 Strasbourg case law, application in UK
separation of powers, 46–7, 71–81 Courts, 238–9
concept of, 46–7 Strategy Unit (2002), 166–7
concluding remarks, 81–3 Strathclyde Review (2015), 127
historical development, 71–3 student fees in Scotland, 266
judicial independence, 46, 79 subsidiarity, 244–5
judicial review and, 46 decentralisation in Europe and, 244–5
Lord Chancellor and, 196 EU funding and, 268
Mayor of London and, 281 ‘substantial harm test’, 146
overlapping powers, 80–1 Supreme Court (UK), 76, 201–3
UK, and, 72–3 appointment of judges to, 202
US, and, 199, 71–2 jurisdiction of, 201–2
Sewel Convention, 250
inter-government co-operation and, 264 Thatcher, Margaret:
simple majority election system see first past Policy Unit, 164–5
the post resignation, 162–3
single transferable vote (STV), 131, 257, ‘third way’, Blair’s, 290
260, 265 threshold test of reliance, case law, 234
Sinn Fein political party (SF) (Northern tort in Crown’s liability, 98–9
Ireland), 110, 261 transparency, 307
Smith Commission (2014), 254, 300 accountability and, 12–13
South Africa, 21 Departmental Select Committees
apartheid, 2 and, 147
constitution, 2, 304 finance and, 152
South Wales Sea Fisheries, 271 inter-governmental relations, 264
Sovereign in UK constitution, 74 judicial appointments, 198
sovereignty: local government and, 289
doctrine of, 42, 195 Transport for London (TfL), 282
Human Rights Act 1998 and, 57–8 transport, government departments
Jackson case and, 62–5 responsible for, 169–70
popular, 59 Treaty of Lisbon 2007, 29–30, 52, 298
special advisers, 39, 166, 168, 178, 182 supremacy clause, 57
spending, control of: UK constitution, implications for, 29–30
council tax payers’ influence, 292 Treaty of Rome 1957:
‘spin doctor’ in Press Office, 167 anti-discrimination provisions, 53
Standard Spending Assessment, 286 Churchill and, 22
Standards Commissioner, 121 Denning on, 28–9
standing, 214–15 European Community Act and, 27, 28
definition, 214–15 parliamentary sovereignty and, 52
group, 215 Treaty of the European Union (TEU):
‘victim test’, 215 Article 3B, 244
state institutions (UK) and business, 81 Article 5.3, 244
statute law (UK), 26–7 Article 5.4, 244
green light theory and, 208 tribunals, 81–2
interpretation of, 193 administrative, 204, 209, 216
statutes: “green light” theory and, 209–10
constitutional, 55 “green light” view, 207–11
Courts’ challenge of, 49 information tribunal, 5, 185
ordinary, 55 judges and, 81
324 Index
2001 general election: United States (US):

change of government in a hung Federal Supreme Court function, 194
parliament, 114 judicial appointments in, 199
results, 110 (table) parliamentary sovereignty in, 194
2010 general election: passage of legislation, 138
coalition agreement, after, 112 separation of powers, 199
results, 110 (table) Upper Tribunal, 210
2015 general election:
English local government fiscal Value for Money (VFM):
arrangements, 286 audits, 171
results, 111 (table) reports, 150
Scottish National Party, success of, veto:
50, 111 European Union members’
two-party system, 116 powers of, 30
Grand Committee’s powers of, 107, 301
United Kingdom (UK): House of Lords money bills and, 36,
devolution and, 300–1 126–7, 132, 153
Europe, involvement with, 22–3 national veto removed, 29
European Union law, implementation Public Bill Committees’ powers, 278
of in, 267 Scotland’s power of, 247
European Union, membership of, Wales’ power of, 257–8
298–300 ‘victim test’, 215
European Union rights and obligations vote of confidence, 114–15, 116
enforceable in, 28–9 ‘failure of bill at second reading’, 135
evolution of, 19–21 general election, following, 39, 40–1, 49
Exchange Rate Mechanism, withdrawal Tony Blair and, 116
from, 119 voting:
governance in, 11–13, 82 electronic, 113
Human Rights Act’s effect on, 223 rights, 18
independence of broadcasting and print ‘Vow, The’ (Scotland), 254
media, 6
Iraq War, involvement in, 71 Wales:
Ireland and, 20–1 Assembly see Welsh Assembly
judicial impartiality, 76–7 coalition in, 264–5
Parliament involvement in Scottish competence of measures contested, 271
involvement, 250 conquest by England, 19
Scotland and, 19–20 devolution for see devolution, Wales, in
subsidiarity and, 244 elections in, 264–5
Wales and, 19 electoral system, 255
United Kingdom (UK) constitution: local government boundaries
development of, 11–13 restructuring, 284
fusion of power, 74–5 watchdog see Parliament
judicial role, 76–80 Wednesbury:
Parliament’s role, 74–5 grounds, 218–19
sources, 26–32 unreasonableness or irrationality, 218–19
Sovereign’s role, 74 Welsh Assembly:
United Kingdom Independence Party composition of, 255
(UKIP), 297–8 legislative powers, 258
2015 general election results, 111 open government, 266
ultra vires doctrine, administration law, powers of, 255, 256–8
in, 204 women members, 265
Index 325
Welsh Executive, devolved matters, 256 opposition to, 178

Welsh legislation, veto powers at pairing arrangements, 41
Westminster, 257–8 Public Bill Committee members,
‘West Lothian question’, 106–7 decisions about, 135
definition, 274 White Papers, 134
Westminster Model, 22, 142 Whitehall model (executive dominance),
Whips, 116, 118 58–9
Departmental Select Committees, Wright Committee (2009), 146–7
membership and, 140, 146 Wright reforms, 145–8
government and, 74, 127, 135
House of Lords, in, 137 Zimbabwe, 22
326

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THE CONSTITUTION OF THE UNITED KINGDOM

Link to series website

OXFORD AND PORTLAND, OREGON

ISBN: PB: 978-1-84946-907-4

Library of Congress Cataloging-in-Publication Data

1. UK CONSTITUTION: CONTEXT AND HISTORY�����������1

PART II: CONSTITUTIONAL CONVENTIONS���������������������32

Parliamentary Privilege����������������������������������������������������������������� 119

Government Openness and the Freedom of

Power-Sharing in Northern Ireland������������������������������������������� 258

Amministrazione della Finanze dello Stato v Simmenthal

European Court of Human Rights

Hirst v United Kingdom (No 2), App no 74025/01,

A v Secretary of State for the Home Department

Bromley v Greater London Council [1983] 1 AC 768���������������������������������������������� 219

Porter v Magill [2001] UKHL 67, [2002] 1 All ER 465�������������������������������������������� 291

R (on the application of Evans) v Attorney-General

Brown v Board of Education of Topeka 347 US 483 (1954)��������������������������������� 194

Acquisition of Land Act 1919���������������������������������������������������������������������������������������� 51

Communications Act 2003��������������������������������������������������������������������������������������� 6, 187

European Parliamentary Elections Act 1999��������������������������������������������������������������� 63

Greater London Authority Act 2007��������������������������������������������������������������������������� 281

Local Government Act 1992

Nationality, Immigration and Asylum Act 2002���������������������������������������������������������� 79

Civil Procedure Rules (SI 1998/3132)

Constitution���������������������������������������������������������������������������������������14, 74, 142, 199, 236

Context and History

PART I: CONSTITUTIONAL CONTEXTS

O UR DISCUSSION BEGINS by explaining why the u­ nwritten

1 T Paine, Rights of Man [1791] (London, Penguin, 1969) 213.

superior law of the nation. The constitution of the United Kingdom is

WHAT IS LIBERAL DEMOCRACY?

Next, we need to be clear about what is meant by liberal democracy.2 In

that ‘the central goal of a constitution is to create the preconditions

3 C Sunstein, Designing Democracy: What Constitutions Do (Oxford, Oxford Univer-

sity Press, 2001) 6.

FREEDOM OF EXPRESSION AND THE BROADCASTING

A key hallmark of liberal democratic systems is the recognition of

4 E Hobsbawn, The Age of Extremes (London, Abacus, 1994) 581.

erupted over the excessive and in some cases fraudulent expenses

7 P Leyland, ‘Freedom of Information and the 2009 Parliamentary Expenses

scandal’ [2009] PL 675.

[2008] EWHC 1084 (Admin); [2008] WLR (D) 155.

as Prime Minister, capable of using his influence to make ­appointments

10 Communications Act 2003, c 5.

i­mpartiality ­requirements relating to elections and referendums.11

PHONE HACKING, MEDIA INFLUENCE

Important issues pertaining to the degree of constitutional a­ ccountability

papers might be measured in terms of both regular access to political

16 See Broadcasting Acts 1990 and 1996, s 3(3).

into payments made by newspapers to Metropolitan Police officers for

1–IV, 29 November 2012’: webarchive.nationalarchives.gov.uk/20140122145147/

eg the House of Lords Select Committee on Communication. See Select Commit-

hacking’ Eleventh Report of Session 2010–12, HC 903-1, 1 May 2012.

munications’ Thirteenth Report of Session 2010–12, July 2011, HC 907.

(IPSO), the main revamped self-regulatory body s­ upported by most of

THE UK CONSTITUTION, CONSTITUTIONALISM

21 A Harding and P Leyland, ‘Comparative Law in Constitutional Contexts’ in

22 R Van Caenegem, An Historical Introduction to Western Constitutional Law

(­Cambridge, Cambridge University Press, 1995) 17.

1. UK CONSTITUTION: CONTEXT AND HISTORY��1

PART II: CONSTITUTIONAL CONVENTIONS��32

Parliamentary Privilege�� 119

Power-Sharing in Northern Ireland�� 258

Bromley v Greater London Council [1983] 1 AC 768�� 219

Porter v Magill [2001] UKHL 67, [2002] 1 All ER 465�� 291

Brown v Board of Education of Topeka 347 US 483 (1954)�� 194

Acquisition of Land Act 1919�� 51

Communications Act 2003�� 6, 187

European Parliamentary Elections Act 1999�� 63

Greater London Authority Act 2007�� 281

Nationality, Immigration and Asylum Act 2002�� 79

Constitution��14, 74, 142, 199, 236

O UR DISCUSSION BEGINS by explaining why the u nwritten

as Prime Minister, capable of using his influence to make appointments

impartiality requirements relating to elections and referendums.11

Important issues pertaining to the degree of constitutional a ccountability

(IPSO), the main revamped self-regulatory body s upported by most of

(Cambridge, Cambridge University Press, 1995) 17.

ingdom, see D Oliver, Constitutional Reform in the UK (Oxford, Oxford University

had been granted to Parliament as the body with unrestricted l aw-making

and vote in P arliament. During the nineteenth and early twentieth