Importance of constitutional checks and balances. From this perspec-

tive all government boils down to a king and his favourites who

surround him as courtiers and ultimately bring him down. In our case

the ‘king’ is the prime minister and his courtiers are individuals whom

he has appointed to high office or relies upon as advisers – ‘the cater-

pillars of the commonwealth, which I have sworn to weed and pluck

away’ (Bolingbroke, Shakespeare, Richard II, Act 2, Scene 3). There are

no legal constraints over senior public appointments. This allows prime

ministers to appoint ministers and they in turn to appoint influential

advisors from among their family, friends and personal networks. Lord

Irvine the current Lord Chancellor is a paradigm case (see The Indepen-

dent, 22.11.01).

A riposte commonly made by the courtiers themselves is that abuses

will not happen, because, apart from the odd maverick, we can trust

our rulers who are persons of high ability and integrity and are subject

to legal, political and social pressures to conform. But:

Why should we, in the compass of a pale,

Keep law and form and due proportion,

Showing as in a model our firm estate,

When our sea-walled garden, the whole land,

Is full of weeds, her fairest flowers choked up,

Her fruit trees all unpruned, her hedges ruined,

Her knots disordered, and her wholesome herbs

Swarming with caterpillars. (ibid. Act 3, Scene 4).

Whether or not this is convincing, (see 4.7), our informal constitution

fails to meet the republican requirement of non-domination which

64 General Principles of Constitutional and Administrative Law

emphasises that it is offensive to human dignity to rely on the good

will even of a kind master.

4.2 Crown v. Parliament: Historical Outline

During the sixteenth and seventeenth centuries medieval ideas of

limited monarchy within the common law clashed with newer ideas

of absolute monarchy and the nation state. Such a clash had been

foreshadowed by the late medieval notion of the Crown’s ‘two persons’,

the one a symbolic and semi-divine personification of the state, the

other an official whose day-to-day duties were subject to the law (see

Duchy of Lancaster Case (1567) 1 Plow 325 at 327).

The seventeenth century was dominated by religious and financial

conflicts between the Crown and Parliament. The Stuart monarchs

seemed to respect the supremacy of the common law and to subject

their powers to scrutiny by the courts (bearing in mind that judges,

‘lions under the throne’, were dismissable by the king (see e.g. Case of

Proclamations (1611); R. v. Hampden (1637)). Coke CJ’s stand against

royal interference in the Case of Prohibitions (1607) was followed by his

dismissal for taking a similar stand in 1616 in the Commendum case.

From 1629, Charles I attempted to rule without Parliament on the

basis of taxes extorted from the rising middle classes. However, when

he attempted in 1639 to impose the Anglican prayer book on the Scots

the resulting uprising forced him to summon Parliament in 1640 (the

‘Long Parliament’ which technically survived until 1660), in order

to raise funds. A short-lived compromise was reached in 1641 after

Parliament’s ‘Grand Remonstrance’ which detailed acts of royal

misrule. In particular the Star Chamber and other special prerogative

courts introduced by the Tudors to support an administrative state

were abolished. Civil war broke out in 1642 resulting in victory for

Parliament in 1646.

The civil war was followed by a wide-ranging debate at Putney

between the ruling establishment of landowners led by Oliver Cromwell

and the army rank and file represented by the ‘Levellers’, about the

fundamentals of government. The Levellers proposed a new constitu-

tional settlement – the ‘Agreement of the People’ – based on religious

freedom, equality before the law and universal suffrage. This remains

an important source of democratic ideas (see the writings of Richard

Overton (1631–64)). However, Cromwell invoked custom and tradition

in favour of more limited reforms. The Levellers were defeated by

force in 1649.

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The Structure of the UK Government: An Overview

In 1648 Parliament attempted to disband the army but most

members were ejected in ‘Pride’s Purge’ leaving only the ‘Rump

Parliament’ of army supporters. In 1649 Charles I was executed on the

authority of the Rump Parliament, the House of Lords abolished and

a republic declared. In 1653 Parliament was dismissed and a military

dictatorship led by Oliver Cromwell as ‘Lord Protector’ introduced.

After Cromwell’s death in 1658 it seemed that chaos could best be

avoided by restoring the traditional constitution. The House of Lords

had been restored in 1657 and the Long Parliament met in 1659 only

to dissolve itself in favour of a self-appointed ‘Convention Parlia-

ment’. This restored the Crown in 1660 in the form of Charles II, the

lawful heir of Charles I.

4.2.1 The 1688 revolution

Charles II and James II ruled on the basis that there had been no

republic and the republican legislation was expunged from the statute

book. A limited religious toleration was declared and a relatively liberal

regime introduced. The uneasy stalemate was broken when James II

began to assert the interests of Catholics and to attempt to override

Parliament. Catholicism was associated in the public mind with absolu-

tion, an association that still scars the constitution (below p. 292). The

foundations of the modern constitution were laid by the 1688 revolut-

ion when James dissolved Parliament and fled the country. He was

replaced by the Protestants William of Orange and his wife Mary

(James’s daughter) backed up by the Dutch navy. Neither had a lawful

claim to the Crown.

1688 therefore marks a break in the constitution although in polit-

ical terms the revolution was relatively conservative being a compro-

mise designed to satisfy all influential interests. It was justified in two

inconsistent ways. On a Hobbesian premise James II had abdicated

leaving a power vacuum that the common law doctrine of necessity

said must be filled in order to avoid chaos. On the other premise, based

on Locke, James had broken his trust. This entitled the people to rebel.

The settlement formalities were entirely unlawful according to the

previous constitution, unless we can say they were underpinned by

the common law. A group of leading politicians summoned a ‘Con-

vention Parliament’ which met early in 1688. This appointed William

and Mary jointly to the Crown and enacted the Bill of Rights 1688

which limited the powers of the Crown against Parliament enshrining

the principles that had been fought over earlier in the century. These

prohibit the Crown from exercising key powers without the consent of

66 General Principles of Constitutional and Administrative Law

Parliament, such as the power to make laws to tax, to keep a standing

army in peacetime, and to override legislation. William and Mary then

summoned a Parliament which ratified the Acts of the Convention

(Crown and Parliament Recognition Act 1689). The Act of Settlement

1701 provided for the succession to the Crown and gave superior court

judges security of tenure and therefore independence from the Crown.

Church and state were also linked by requiring the monarch to be a

Protestant and not to marry a Catholic. In the case of Scotland and

Ireland, force was needed to crush support for the Stuart monarchs.

The medieval institutions remained in place but it was made clear

that the monarchy was subordinate to Parliament. The common law

courts backed Parliament and it is plausible that in 1688 the judges

accepted parliamentary supremacy in return for security of tenure.

At any rate modern judges have assumed that the doctrine of parlia-

mentary supremacy is grounded in the 1688 revolution (see Pickin v.

British Railways Board [1974] 1 All ER 609 at 614). However, there is

no clear historical evidence for this and it was not until the nineteenth-

century disputes over the construction of railways that the courts

unequivocally accepted parliamentary supremacy. (Compare e.g. City

of London v. Wood (1710) 10 Mod 669 at 686–8; Lee v. Bude &

Torrington Railway Co. Ltd (1871) LR 6 CP 577.)

The 1688 settlement was not therefore based on full-blooded ideas

of the sovereignty of the people and the fundamental rights of the

individual such as a century later would influence the French and

American revolutions. If anything it confirmed the principle of aristo-

cratic rule. The House of Lords was a powerful body and the House of

Commons was largely made up of landowners and traders dependent

on the patronage of the Lords. Thomas Paine, who fled the country in

1792 having been charged with sedition for denying that Britain had a

constitution, said ‘What is [the Bill of Rights 1688] but a bargain

which the parts of the government made with each other to decide

powers. You shall have so much and I will have the rest; and with

respect to the nation, it said, for your share, you shall have the right of

petitioning. This being the case the Bill of Rights is more properly a

bill of wrongs and of insult’ (Paine, 1989, p. 181).

4.2.2 The development of democracy

Early legislation ensured that the monarch could not keep Parliament

in abeyance and that there should be regular elections (see Septennial

Act 1715 as amended by Parliament Act 1911). During the early

eighteenth century the monarch still claimed to run the government

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The Structure of the UK Government: An Overview

personally and to choose the ministers although a convention existed

from the outset that the Commons could dismiss a ministry of which it

disapproved. However, as late as 1812 it was argued that it would be

unconstitutional for the king not to appoint the government person-

ally (see Williams, 1960, ch. 2). During the eighteenth and nineteenth

centuries the skeleton of the present system evolved. This replaced the

personal power of the monarch with that of the cabinet, a core of

ministers chosen by the prime minister and supported by Parliament.

Bagehot regarded this as the central principle of the constitution. The

Crown’s influence in choosing a prime minister and dissolving Parlia-

ment was replaced by the conventions that the Crown must appoint

the leader of the majority party, that the executive is collectively and