4.2 The historical development of the constitution has been evolutionary in

the sense that the same basic institutions of Crown, Parliament and courts

have remained and adjusted to changing circumstances. However, there has

been continuous struggles for control of Crown and Parliament. Parliament

triumphed over the Crown in the 1688 revolution. During the following three

centuries, the monarchy lost personal power, Parliament gradually became

democratic, the House of Commons became superior to the House of Lords

and the executive increasingly dominated Parliament. During the eighteenth

century the UK constitution was widely admired as a stable balance between

the forces of monarchy, aristocracy and democracy but until the extension of

the franchise in the late nineteenth century was actually dominated by aristo-

cratic interests. From then on, political parties came to dominate Parliament,

in effect controlling the Crown as well.

4.3 The traditional constitution is often attacked. On one view, the executive has

become all-powerful. On another view, power has been dispersed upwards

into international bodies and downwards into unelected specialist bodies, in

both cases beyond the reach of Parliament and only spasmodically con-

trolled by the elected government.

4.4 The Crown is the central executive with inherent royal prerogative powers.

However, Parliament can give executive powers to anyone, and in recent

years executive powers have been distributed across a wide variety of public

and private bodies using mechanisms copied from the practices of com-

mercial companies. This raises fundamental questions of accountability.

4.5 According to the doctrine of ministerial responsibility ministers are respons-

ible to Parliament for the conduct of their departments and for executive

agencies sponsored by their departments. The civil service is responsible

to ministers but not directly to Parliament. This protection aims to provide a

90 General Principles of Constitutional and Administrative Law

continuity and stability enabling the civil service to carry out the policies

of successive governments with equal commitment. However, ministerial

responsibility may be regarded as an unrealistic burden in the context of the

size and complexity of modern government departments and it is not clear

how far a minister should be regarded as personally culpable for the wrongs

of his or her department. Nevertheless, apart from the courts there is no

alternative accountability mechanism.

4.6 Perceived weaknesses in the traditional methods of accountability have led

to attempts to formulate standards of behaviour for persons holding public

office. Except in the case of Northern Ireland these are without direct legal

force.

4.7 Superior court judges comprise the High Court, Court of Appeal and House of

Lords together with certain specialised courts and tribunals. These have

almost complete security of tenure. Their salaries and pensions are safe-

guarded by statute and they can be dismissed only by both Houses of

Parliament.

4.8 Inferior court judges comprise circuit judges, who hear criminal cases in the

Crown court and civil cases in the county court; recorders, who hear criminal

cases; and also various kinds of magistrate including lay part-time justices

of the peace. Their security of tenure varies with the legislation relating to

the particular post. Lay justices have no legal security of tenure.

4.9 Judges are protected against legal actions, and can punish for contempt of

court those who hamper the legal process.

4.10 The Privy Council while being a legacy of the medieval and Tudor

constitutions has important functions as an appeal court in commonwealth

cases, devolution cases and in connection with professional discipline and

the regulation of chartered bodies. It is sometimes argued that the Privy

Council should take on the role of a supreme or constitutional court.

4.11 Citizenship entitles a person to reside in the UK and has certain other mis-

cellaneous consequences. However, the basic legal relationship between

the state and the individual is one of Crown and subject, involving the con-

cept of allegiance. The Crown has (unenforceable) duties to protect the

individual while the individual has a duty of loyalty. Allegiance carries few

specific legal consequences.

Further Reading

Bridge, ‘Standards, principles and values in the public law of the United Kingdom’, in

Economides et al. (eds), Fundamental Values.

Committee on Standards in Public Life, 6th Report, 1999, cm. 4557.

Finer, Bogdanor, Rudden, Comparing Constitutions, Chapter 2.

Hennessey, The Hidden Wiring, Chapter 1.

Himsworth C. (1996) ‘In a state no longer: the end of constitutionalism’, Public Law 639.

Holiday, I. (2000) ‘Is the British State Hollowing out?’ 71 Political Quarterly 167.

Irvine, Lord D. ‘Government‘s Programme of Constitutional Reform’ http://www.

open.gov.uk/lcd/speeches/1998/lc-const.htm

Jenkins, K., Caines, K. and Jackson, A. (1988) Prime Minister’s Efficiency Unit: Improv-

ing Management in Government. The Next Steps, London: HMSO.

91

The Structure of the UK Government: An Overview

Jenkins, S. (1996) Accountable to None.

Marr, A. (1996) Ruling Britannia.

Morison and Livingstone, Reshaping Public Power: Northern Ireland and the British

Constitutional Crisis, Chapters 1, 2, 6.

Nolan and Sedley (1997) The Making and Remaking of the British Constitution,

Chapters 1, 3, 5.

Oliver, D. (1994) ‘Law, politics and public accountability: the search for a new

equilibrium’, Public Law 238.

Oliver, D. (1995), ‘Standards of conduct in public life: what standards?’, Public Law 497.

Rhodes, R. (1994) ‘The hollowing out of the state: the changing nature of the public

service in Britain’ 65 Political Quarterly, 138.

Rhodes, ‘The new governance: governing without government’ (1996), 44 Political

Studies 652.

University of Cambridge Centre for Public Law (1998), Constitutional Reform in the

United Kingdom, Cambridge: CUP.

Willet (ed.) Public Sector Reform and the Citizen’s Charter.

Exercises

4.1 To what extent is the historical development of the UK constitution an

example of the triumph of democracy?

4.2 You are a civil servant asked to draft a written constitution for Britain.

Unfortunately you only have the information available in this chapter and the

preceding chapters. Produce a draft.

4.3 Explain the significance of the distinction between a parliamentary constitu-

tion and a presidential constitution.

4.4 Argue the case for and against an independent civil service with particular

reference to ‘special advisers’.

4.5 To what extent is the traditional doctrine of ministerial responsibility to

Parliament an adequate basis for government accountability?

4.6 To what extent is it possible to classify executive bodies in a legally

significant way?

4.7 What constitutional problems are raised by a), ‘the new public management’

and b) non-departmental public bodies?

4.8 What problems of constitutional accountability are raised by public/private

partnerships?

4.9 Bill, a High Court judge, is alleged to have been sexually harassing the

junior staff of the High Court Registry. Parliament is not sitting and the Lord

Chancellor advises the Queen to make an example of Bill by dismissing him

forthwith. Advise Bill.

4.10 Compare the position of superior court judges with judges of the lower

courts as regards judicial independence.

5 Constitutionalism: The Rule of

Law and the Separation of Powers

5.1 Introduction: The Nature and Purpose of the

Rule of Law

The concept of the ‘rule of law’ is paradoxical. In a literal sense it

requires us to be prisoners of an impersonal authority and subject to

unpleasant consequences if we transgress. In The Pilgrim’s Progress

Bunyan asks, ‘(h)e to whom thou was sent for ease, being by name

legality, is the son of the Bond-woman . . . how canst thou expect by

them to be made free?’. On the other hand the rule of law is often

regarded as a liberal, and indeed as liberating idea. This is because, as

Hobbes perceived, ‘freedom lies in the silence of the laws’. Law is

therefore two faced. It confines us but outside its limits we are free and

equal, authority having no place. Thus the emphasis of the rule of law

is upon ensuring that those who enforce the law keep within its limits.

There is, however, disagreement as to what we mean by asserting

that law has limits. The Hobbesian view is that the lawmaker has

unlimited power so that the limits of the law are purely formal in the

sense that that they lie in the structure and processes of the law

irrespective of its content. Nevertheless, it is an important safeguard

that those in power must justify their decisions by reference to an

existing law. A broader view, rooted in Locke, is that the rule of law

requires the law to have a certain substantive content which reflects the

fundamental values of ‘constitutionalism’ in a democratic society, in

particular respect for equal individuals. These approaches were com-

bined by Lord Griffiths in R v. Horseferry Rd Magistrates Court ex

parte Bennett [1993] 3 WLR 90, 104, when he said ‘the judiciary accept

a responsibility for the maintenance of the rule of law that embraces a

willingness to oversee executive action and to refuse to countenance

behaviour that threatens either basic human rights or the rule of law.’

The term constitutionalism expresses this idea. Hunt (1997, p. 22),

supporting the broad view of the rule of law, describes the notion of

constitutionalism thus: ‘in any democratic system there are certain

transcendental values that which enjoy a ‘‘constitutional’’ status, in the

sense that they embody fundamental ideas or aspirations which demo-

cracy itself presupposes and which therefore cut across the political

92

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Constitutionalism: The Rule of Law and the Separation of Powers

programmes of particular governments . . . the bare minimum that is

required of a commitment to constitutionalism is a rejection of the

instrumentalist conception of law which sees it as a mere tool to be

used by governments in order to achieve their political goals’. Allan

(2001, p. 2) expresses a similar sentiment: ‘the equal dignity of citizens,

with its implications for fair treatment and respect for individual

autonomy is the basic premise of liberal constitutionalism, and accord-

ingly the ultimate meaning of the rule of law’.

The idea of the rule of law is deeply embedded in European political

culture. In its different aspects it plays a dominant role in literature

such as the Antigone of Sophocles and Shakespeare’s Merchant of

Venice. Aristotle (384–322 BC) pronounced that it is better for the law

to rule than for any of the citizens to rule (Politics III.16, 1087a 19).

The rule of law was described by the thirteenth-century jurist Brac-

ton in terms that ‘the King should be under no man but under God

and the Law because the Law makes him King’. Magna Carta (1215)

expresses the core concept (and its ambivalence): ‘no freeman shall be

taken or imprisoned or be disseissed of his freehold, or liberties or free

customs or be outlawed or exiled or in any wise destroyed . . . but by

. . . the law of the land’. In X Ltd v. Morgan Grampian Publishers Ltd

[1990] 2 All ER 1 at 13, Lord Bridge said ‘the maintenance of the rule

of law is in every way as important in a free society as the democratic

franchise’ (see also Pierson v. Secretary of State (below)). Both the

public order and the democratic aspects of the rule of law are central

to the European Convention on Human Rights (see Klass v. Federal

Republic of Germany (1978)).

The ideal of the rule of law goes back to the Anglo-Saxon notion of

a compact between ruler and ruled under which obedience to the king

was conditional upon the king respecting the law. Magna Carta (1215)

symbolises this, notably in the principle of due-process in independent

courts and, in the subject’s right to refuse financial support to a king

who violates the law. The eighteenth-century constitution was particu-

larly influenced by the rhetoric of the rule of law. The constitution was

regarded as a delicately balanced machine held in place by the rule

of law; as George III put it, ‘the most beautiful balance ever framed’

(Briggs, 1959, p. 88). The rule of law protected individual rights imag-

ined as being grounded in ancient common law tradition. Unlike the

case in France, there was no doctrine that state necessity could over-

ride the ordinary law (Entick v. Carrington (1765)).

During the early nineteenth century too, there was a widespread belief

that the relative stability and economic prosperity enjoyed by Britain

was connected with a commitment to the rule of law. By contrast France

94 General Principles of Constitutional and Administrative Law

with its ‘demagoguary, revolt, beheadings and . . . unruly mobs stood in

English ‘‘common sense’’ as a dreadful warning of all that can go wrong,

a sort of conceptual opposite to England’s altogether more sensible

ways’ (Pugh, 1997, p. 168). However, with the expansion of democracy

that took place from the mid-nineteenth century, common law ideas

became increasingly confronted by the demand for greater state provi-

sion of services which could only be delivered through Parliament by

radical reform which changed the balance of the constitution in favour

of the executive.

5.2 The Core Meaning of the Rule of Law

There is a basic meaning of the rule of law in the sense of government

through general rules laid down in advance by an accepted authority.

We shall call this the core meaning of the rule of law. The rule of law in

this sense is concerned with law as a means of guiding the behaviour of

its subjects. The notion of a general rule entails the basic principle

of equal treatment under it and this is perhaps the most important idea

captured by the rule of law. If they are genuinely to guide behav-

i˚our, laws require good qualities such as non-retrospectivity, stability,

accessibility, advance publicity, and open access to a means of set-

tling disputes impartially and consistently perhaps even a right to legal

advice (see Raz, 1977). There should also be safeguards against the

abuse of official power, otherwise the enterprise of government by

rules loses public credibility.

Even Hobbes acknowledged the rule of law in this sense. It will be

recalled from Chapter 2 that Hobbes regarded law as the absolute

command of a sovereign who, although not having any special powers

of goodness or reason, is authorised by the people in the interests of

resolving conflict to act on their behalf. Nevertheless Hobbes empha-

sised that the sovereign’s commands must be recognised by formal

public signs, must be general and must be clear and determinate. More-

over there must be institutions such as courts empowered to adjudicate

conclusively upon disputes thus bringing qualities of fairness and

independence into play. Moreover, where the law is unclear, the judge

must ‘mimic the sovereign’ by bringing to bear his or her ‘natural

reason’ on the matter. Where Hobbes and the common lawyers parted

company is that Hobbes denied that the judges and the common law

have any special claim to ‘right reason’. He regarded the pretensions of

professional lawyers as merely claims to power (see Postema, 1986,

p. 46 et seq.).

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Constitutionalism: The Rule of Law and the Separation of Powers

The core version of the rule of law can be described as a formal con-

cept since it seems to allow any infringement of liberty provided that it

is carried out through legal processes. To its detractors, formalism is a

term of abuse carrying the implications of sterile hair-splitting and

pedantic legalism at the expense of the achievement of the preferred

goals of the detractors. This point of view is usually associated with a

utilitarian perspective and regards law as a delivery mechanism for

state policy (see Harlow and Rawlings, 1997, ch. 2).

To its liberal supporters on the other hand, formalism is a valuable

achievement of the human mind as a defence not only against tyrants

but also against well-meaning busybodies who seek to impose them-

selves on us. Formalism also ensures that the judges have to justify their

decisions rationally and by reference to existing principles thereby

limiting their power.

On the other hand it could be maintained that the core rule of law

comprises no more than administrative regularity that enables des-

potic government to rule efficiently since people are more likely to fall