56 General Principles of Constitutional and Administrative Law

long as we remember that the court’s view about the meaning of

a convention is not in itself binding it seems acceptable. In any event a

larger majority held that, whatever the convention meant, it could not

affect the legal rule that empowered the Federal Government to

resolve to seek an alteration to the constitution. Thus the convention

could not be enforced by legal remedies. The judges also denied that

a convention can ever crystallize into law, for example by becoming

established over a period of years. This seems to be equally true of

English law (see Monroe, 1999, p. 72 et seq.).

Our second case is A-G v. Jonathan Cape (1975). The government

sought to prevent publication of the diaries of Richard Corpsman, a

former Labor cabinet minister. It relied upon the legal doctrine of

breach of confidence. This involves balancing the confidential nature of

any material against any public interest in favour of its disclosure. The

government based its case upon the convention of collective cabinet

responsibility, arguing that this necessarily required that cabinet busi-

ness remain confidential to cabinet ministers. The Lord Chief Justice,

Lord Widgery, refused to apply the convention as such. However, the

convention was relevant to the problem of deciding where the balance

between confidentiality and the public interest lay. His Lordship held

that the diaries could be published because they dealt only with mat-

ters of historical interest. Thus the convention was a crucial strand in

the argument, but not the law itself.

It is possible that the courts will develop the common law so as to

enforce at least some conventional obligations by allowing the law

to endorse the values currently expressed in important conventions, or

by developing judicial review. In relation to the first possibility, the

constitutional ideas underpinning some conventions might be better

protected if conventions can develop into laws. Moreover, the law/

politics dichotomy disintegrates where courts develop law by evolving a

legal rule which underpins a convention. For example in Carltona Ltd

v. Commissioner for Works (1943) the courts accepted the legitimacy of

civil servants taking decisions which are in law the responsibility of

the minister without reference to the minister personally. A counter-

argument to this kind of incorporation is that, if courts enforce

conventions, their existence becomes ‘fixed’ as a matter of law, thus

taking judges into the political arena and losing the flexibility which is

supposed to be a reason for conventions.

There are arguments that the demands of political morality ought to

be a matter of collective decision reached through the medium of politics

and so fall outside the proper scope of the judicial function. The aban-

donment of the law/convention dichotomy might not therefore lead to

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The Sources of the Constitution

judicial enforcement of many of these rules because most would either

be regarded as inherently non-justiciable or non-justiciable in the cir-

cumstances. To take the example of ministerial responsibility, we may

conclude that apportioning blame is a political matter not a legal one.

This means that the question of whether a minister’s conduct in office is

such that he or she should resign would seem to be a non-justiciable

question, depending as it does on party support, the timing of the

discovery, the support of the prime minister and cabinet and the public

repercussions. But the issue is not so clear if a minister denied an

obligation to answer any questions in the House of Commons. What

would prevent the court granting a declaration that such behaviour was

unconstitutional? Would the arguments be equally as strong if a min-

ister deliberately misled Parliament where resignation should be auto-

matic? (See Ministerial Code, Section 1, para. iii; and the 2nd Report

of the Public Service Select Committee, 19956, HC 313, para. 26.)

3.5 Codification of Conventions

The argument surrounding codification of conventions is similar to the

arguments for a written constitution. However, the case for codifica-

tion involves two distinct positions. The first asserts that conventions

should both be codified and given legal force; the second asserts that

conventions could be codified in an authoritative text but without

legal force. Even under this version, however, which has been adopted

in Australia in relation to 34 constitutional practices, it is likely that

the courts may cite those conventions which the process codified

(Sampford, 1987). Such an approach would address the lack of preci-

sion in the scope of some conventions, and would enable us to say with

certainty which usages are, and which are not, conventional. For

example, the present lack of agreement about the conventional powers

of the monarch to dissolve Parliament could damage the monarchy by

accusations of political partiality. Establishing the certainty of con-

ventions could safeguard the neutrality of those who apply them.

The more adventurous position involving codification and enactment

arouses a number of concerns. The first is that such a model of

codification would damage the flexibility of the constitution and inhibit

its evolutionary role in maintaining the relationship between the

constitution and contemporary political values. One of the purposes of

conventions has been to annul anachronistic law. It would be un-

desirable if conventions were to become fossilised and so impede further

constitutional change. This might even prevent the development of

58 General Principles of Constitutional and Administrative Law

qualifications limiting the scope of some conventions (as in the case of

the ‘suspension’ of collective cabinet unanimity in 1975).

Moreover, as conventions are enforced as a matter of political

dynamic, some argue that political flexibility might also be curbed if

the courts were invited to pronounce on the breach of a conventional

obligation. As we have seen, there are concerns about embroiling the

courts in the political process, and it is by no means certain that the

courts would exercise a jurisdiction over issues which traditionally

have not been seen as justiciable. Ultimately there might be practi-

cal difficulties in systematic codification. It would be impossible to

identify all usages which are currently conventional, and immediately

after the code was established, there would be nothing to prevent the

evolution of new conventions.

The case for a systematic codification of conventions is not self-

evidently of merit. One possible approach (which would not overcome

all the difficulties mentioned above) might be to enact some of the most

important conventions. This would place those selected outside the

scope of the executive and locate more extensive power in Parliament.

Constitutional development would then be a matter of statutory reform

which would follow from more open debate and discussion.

In fact some of the main conventions have been enacted as law

in the Scotland Act 1998, and the Government of Wales Act 1998

(below, Chapter 7). A limited and ‘soft’ version of codification cur-

rently operates where the conventions are expressed in instruments

such as the Ministerial Code. This has the advantage of greater clarity,

but it allows for future change since the Code can be amended at the

discretion of the prime minister.

3.6 The Dignified and Efficient Constitution

Related to the nature of conventions, it is often said that the glue

which holds our unwritten constitution together is trust in and defer-

ence to the discretion of officials (Hennessy, 1995). Bagehot, writing in

the mid-nineteenth century, regarded social class deference and super-

stition as the magic ingredients. He distinguished between what he

called the ‘dignified’ and the ‘efficient’ parts of the constitution. Bagehot

took a jaundiced view of the political sophistication of ordinary people

and thought that government could only work effectively if its authority

was buttressed by dramatic and personalised institutions, preferably of

a traditional kind, which command people’s emotional allegiance and

make them deferential to the rulers. These comprise the dignified part of

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The Sources of the Constitution

the constitution. Since the First World War, however, this deferential

glue may have ceased to work. Cynicism about the competence and

honesty of government, and realisation of the impotence of govern-

ments against economic forces created a climate of opinion which

demanded greater accountability of public officials. However, the

distinction between the dignified and efficient still performs a useful

function by separating authority from power. For example the monarch

has authority but no power while the government has power without

authority thus making it easier for us to remove governments that are

not to our liking.

According to Bagehot, the monarchy and Parliament constitute

the main dignified elements of the constitution. The ‘efficient’ part of

the constitution, which Bagehot located in the cabinet and which

depends on the political balance of forces at any given time, harnesses

the dignified element in order to carry out the business of government.

The eighteenth-century Hanoverian kings lost public respect by be-

coming virtually party politicians, but in the mid-nineteenth century

Queen Victoria re-dignified the monarchy by distancing herself from

political partisanship and introducing the kind of pomp and ceremony

which characterises the UK monarchy today. Bagehot thought that it

would be dangerous to shed the light of reality upon the constitution.

The ‘noble-lie’ postulated by Plato (Republic, pp. 414–15, 459–60),

re-enforces the dignified constitution. The noble lie was designed to

keep people happy with their designated roles. It was that when

humans were formed in the earth, the rulers had gold mixed with them,

the military silver and the workers lead. Even Plato’s pupils found this

hard to swallow but, they thought that it is sometimes right to lie in the

interests of the state. There is an element of the same thinking in

the contemporary constitution. For example in McIlkenny v. Chief

Constable of the West Midlands [1980] 2 All ER 227 at 239–240 Lord

Denning MR took the view that it was better for the ‘Birmingham Six’

to remain wrongly convicted than to face the ‘appalling vista’ of the

police being found to be guilty of perjury, violence and threats. The

Scott Report (1996) revealed that ministers and civil servants regarded

it as being in the public interest to mislead Parliament, if not actually

to lie, over government involvement in arms sales to overseas regimes.

Summary

3.1 We discussed how constitutional law is identified in terms of the distinction

between written and unwritten constitutions, pointing out that the constitution

60 General Principles of Constitutional and Administrative Law

is found not only in legal sources but also in the practices, attitudes and

culture of the dominant sections of the community. From this perspective the

difference between a written and an unwritten constitution may be of limited

importance. However, a written constitution has the advantage that it can be

made relatively difficult to alter and so provide enhanced protection against

the abuse of power. A written constitution may also provide a focus for

important values and for regional and local identities.

3.2 The UK constitution is unwritten and based upon a mixture of ordinary laws,

customs and practices, the most important of which are called conventions,

which are intertwined with law but are not directly enforceable in the courts.

There is therefore no authoritative mechanism for interpreting or identifying

conventions. The reasons for this are largely historical since the UK constitu-

tion has never been the subject of a grand plan or a fundamental political

change. The difference between written and unwritten constitutions as such is

not fundamental, and a written constitution is unlikely to be comprehensive

and is subject to interpretation against unwritten principles and practices.

3.3 Conventions are of fundamental importance in the UK constitution. Those

relating to the monarch, for example, limit anachronistic prerogative powers,

ensuring that these legal powers are only exercised in accordance with

advice given by ministers. The modern UK constitution would be unrecog-

nisable without conventions.

3.4 There is disagreement about the definition of conventions. Accordingly, it is

not always clear which forms of constitutional behaviour are conventions and

which are mere practices. Conventions are binding rules of constitutional

behaviour, whilst mere practices are not.

3.5 Conventions have played an important and continuing role in the evolution of

the constitution. New conventions continue to emerge, whilst others are aban-

doned. There is, however, a concern that the creation and development of con-

ventions lack democratic legitimacy. Conventions can be introduced, altered

or abolished by the government of the day without reference to Parliament. The

enforcement of conventions is also a political matter. Can we be content that

core constitutional principles of accountability and responsible government

depend on political choice and the ebb and flow of party political power?

3.6 Conventions are distinct from law firstly in that there are no authoritative

formal tests for the validity of conventions and secondly because conventions

are not directly enforced by the courts. However, there is no inherent differ-

ence in the content of laws and conventions and the courts use conventions,

as they do moral principles to help interpret, develop and apply the law.

3.7 Some commentators have argued that conventions could be incorporated

into the law, but even if this is achieved, how many such laws would be

justiciable? Codification might offer certainty in respect of those conventions

included in the code, but new conventions would be evolved after the code

was introduced, and some flexibility in adapting existing conventions might

be lost. There may be scope for extending ‘soft’ forms of codification, such as

the Ministerial Code.

3.8 There is a distinction between the dignified and the efficient elements of

the constitution. The dignified element relies on the deference of the people

reinforced by pomp and ceremonial to give the law its continuity and authority.

The efficient element is the working machinery of government and changes

with events.

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The Sources of the Constitution

Further Reading

Allott, P., ‘The theory of the British constitution’, in Gross and Harrison (eds), Juris-

prudence: Cambridge Essays.

Bagehot, The English Constitution, chapter 1.

Barendt, An Introduction to Constitutional Law, chapter 2.

Economides, etc (eds), Fundamental Values, chapter 12

Laws, J. (1989) ‘The ghost in the machine: principles of public law’, Public Law 27.

Munro, C. (1999) Studies in Constitutional Law, 2nd ed, chapters 1, 3.

Nolan and Sedley (eds), The Making and Remaking of the British Constitution,

chapters. 2, 4, 6, 7.

Postema (1986) Bentham and the Common Law Tradition, chapters 1, 2.

Ward, I. A State of Mind?: The English Constitution and the Public Imagination.

Exercises

3.1 An American enters into an argument with you about constitutional law. He

says that the British do not have a constitution worthy of the name. How would

you respond?

3.2 ‘It is both a strength and a potential weakness of the British constitution, that

almost uniquely for an advanced democracy it is not all set down in writing’,

Wakeham Report, 2000. Discuss

3.3 ‘The British constitution presumes, more boldly than any other, the good faith

of those who work it’ (Gladstone). ‘The constitution is ‘‘. . . what happens’’ ’

(Griffith). Explain and compare these two statements.

3.4 Explain, illustrate and criticise Bagehot’s distinction between the ‘dignified’

and the ‘efficient’ parts of the constitution. Is this a useful way to analyse the

constitution?

3.5 ‘Parties have substituted for a constitution in Britain. They have filled all the

vast empty spaces in the political system where a constitution should be and

made the system in their own image’ (Wright). Explain and criticise this

statement.

3.6 ‘A constitution is not the act of a government but of a people constituting a

government and a government without a constitution is power without right’

(Paine). Discuss in relation to the UK constitution.

3.7 To what extent is the UK constitution a common law constitution and how

important is this in contemporary conditions?

3.8 What is the relationship between law and convention? Does it serve a useful

purpose to distinguish between law and conventions?

3.9 Consider the advantages and disadvantages of the UK’s reliance on

conventions. Should conventions be enacted into law?

4 The Structure of the UK

Government: An Overview

In this chapter I shall attempt to highlight the main features of UK

government that have constitutional implications. I shall emphasise in

particular the checks and balances within the constitution hoping that

this can serve both as a self-contained overview and also a guide to the

more detailed topics that follow.

4.1 The Informal Constitution

The constitution is society’s provisional accommodation between

competing claims to power. The most striking feature of the UK consti-

tution is perhaps its informal nature in the sense that its most basic

principles depend upon voluntary restraint and consensus among those

holding positions of power without strong lines of political account-

ability and outside the supervision of the courts. Thus the constitution

is held together essentially by an assumption that established practices

will be followed.

Traditionalists claim that the UK constitution is the happy and

pragmatic outcome of an evolution towards democracy and the rule

of law. According to this view, symbolised by Magna Carta (1215), the

Crown gradually gave way to Parliament as an assembly representing

those who were deemed worthy to have a stake in the community.

Parliament steadily broadened its membership until eventually the

people as a whole controlled the government. Abuse of governmen-

tal power is checked by a combination of Parliament and the courts.

Parliament chooses and dismisses the government, provides it with the

power to raise and spend money and scrutinises its activities. The

courts protect the rights of individuals and groups treating all equally

and ensure that the government keeps to the laws that it enacts.

According to traditionalists pragmatic reforms such as strengthening

the powers of the courts, reforming parliamentary procedures to give

backbenchers greater independence, creating regulatory bodies, and

publishing wish-lists of desirable behaviour such as those promulgated

by the Committee on Standards in Public Life can preserve constitu-

tional equilibrium.

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The Structure of the UK Government: An Overview

Another view is that the constitution is driven by chance circum-

stances and personalities. For example a pivotal event of the English

revolution was arguably ‘Pride’s Purge’ in 1648 which was precipitated

by the fortuitous (and temporary) escape from custody of Charles I. In

Pride’s Purge most of Parliament was ejected leaving the ‘Rump Par-

liament’ of army supporters to arrange the execution of Charles I. Had

this event not occurred, an accommodation with the King would have

been likely and the subsequent course of the constitution might have

been different, leading perhaps to a later and more radical revolution.

More radical commentators suggest that the UK constitution is

fundamentally flawed, democracy having ineffectively been grafted

onto an authoritarian form of government concentrated in the Crown

(see Morison and Livingstone, 1995). A fatalistic perspective is that

such is inevitable, a sad truth of the human condition being that those

who seek power over others tend to be unfit to exercise it, hence the