British Constitutional Arrangements

‘Although in theory Parliament is sovereign, the problematic reality is that British constitutional arrangements ensure that true power lies with the Executive’.

In understanding the problematic nature of the British constitutional arrangements, it is essential to understand the theory of Parliamentary Sovereignty. The theory states that Parliament is the dominant force within our constitution, and is the highest source of authority. It can enact any law it sees fit, and there are no legal limitations on the ability and power of Parliament to legislate. AV Dicey, a key constitutional theorist, states ‘no person or body is recognised…as having a right to override or set aside legislation of Parliament’1.It would appear that absolute power resides with Parliament. However, the reality of the matter is that the vast majority of power would appear to be wielded by the Government, that is, the Executive.

To understand the distribution of power within the British constitution, one must comprehend the doctrine of the separation of powers. The doctrine itself can be traced back to the times of Aristotle, although it was more fully explored throughout the 17th and 18th centuries by theorists such as John Locke and Montesquieu.

The doctrine states that the power of the state/ government is to be equally dispersed/ divided between three separately constituted institutions; the executive (government), the legislature (law making body) and the judiciary (the courts). The prescriptive theory suggests that the aforementioned bodies must be separate, or be subject to various checks and balances to ensure no one institution is attaining the vast majority of the power, and that that power is not being abused. Locke addressed the need for an even separation, stating ‘It may be too great a temptation to human frailty…for the same persons who have the power of making laws, to also have…the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law…to their own private advantage’2. If one institution is given too much power, it can essentially do as it wishes, resulting in a dictatorship that would inevitably lead to oppression and inequality.

However, it can be heavily argued that the separation of powers is a mere ideology that cannot be realistically achieved. First and foremost, a complete separation would result in legislative deadlock, whereby there is a severe lack of communication and cooperation between the executive and legislature. Despite the fact that the legislature can pass, amend or repeal any law, there is a great contribution from the executive that can have an adverse effect on what legislation is actually passed. They must work together in some form or another if the British constitution is to be one of fairness and equality. An example of a constitution that employs a complete separation is the American constitution. Within the American system, there is a complete divide between the executive (the President) and the legislature (congress), both being elected separately, with the possibility of opposition parties running against each other, meaning there is always the possibility that there could be a democratic leader in the White House whilst the Republican Party is dominant in congress. This would inevitably lead to clashes, resulting in a disruptive constitution, and one that does not work together. Alternatively, there is the equally problematic issue that one party will win both Presidency and the majority in congress, resulting in excessive power being given to one party, resulting in what more closely resembles a dictatorship rather than a democracy.

When observing the British constitutional arrangements, however, one can see an altogether different story. Our own constitution is marginally different in the sense that, rather than have either complete separation or utter dominance of one body, it would be more appropriate to refer to it as a fusion of power, as outlined by Bagehot, who states ‘the efficient secret of the English Constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers’3. Although connected, the judiciary does enjoy a vast amount of freedom in comparison to the other aforementioned bodies. In addressing this apparent fusion, it is essential to observe a number of factors. Firstly it is important to look at the influence of the current electoral/ party system. As it stands, we opt for the First Past the Post rule, whereby a simple majority will win an election. This becomes problematic, however, when you consider the results of the 1997 election which was won, by an utter landslide, by the Labour Party. By winning with a vast majority of votes, Labour went on to command the majority of the seats in the Commons, meaning they instantly held a huge amount of power in their hands, and this was a prime example of the executives dominance over the legislature. With the majority in the commons, the executive is able to pass any legislation that they feel necessary, and with the help of the Parliament Acts, they can skip past the House of Lords when doing so. When the executive wields such power, it becomes difficult to deny the shift in power from our own sovereign Parliament to the government.

We must also look at the effect of constitutional conventions, which state that in order to hold a position in government, that individual must hold a position in either the House of Lords or the House of Commons. From this, one can gain the appropriate reasoning that the executive is ‘drawn from within its (the legislature’s) ranks’4. This insinuates that the executive can be seen to be as an almost ‘elite’ form of the legislature, with a vast majority of the power. Coupled with the electoral and party systems, this can lead to ‘true power’ lying with the executive.

It can also be argued that delegated legislation is partly to blame for this disillusioned reality of the separation of powers. Delegated legislation, put simply, is law made by the executive by powers given to them under an Act of Parliament. The outcome of such legislation is referred to as Statutory Instruments. The concept of delegated legislation provides both positives and negatives; primarily, allowing ministers to legislate frees up a vast amount of Parliamentary time, allowing parliament to focus on matters of a grander scale. Some could argue that the executive make only the law that Parliament itself does not have the time to pass. However, it also shows another example of executive dominance. Parliament legislates on the grounds that it is a sovereign right, a power provided unto them to impose strict rules upon those inferior. Delegated legislation seems to somewhat dilute and undermine this sovereign power. Long term effects of delegated legislation mean Parliament must now pay ever closer attention to scrutinising the executive, meaning time saved from passing on the ability to legislate is now spent ensuring no abuse of the new found power occurs.

Bradley & Ewing state; ‘however undesirable this might appear in principle, Parliament frequently delegates to ministers power to amend Acts of Parliament’5. When such provisions occur, they are coined with the term ‘Henry VIII clause’6. There are many examples of when such clauses have been used; under the Regulatory Reform Act 2001, a replacement of the earlier Deregulation and Contracting Out Act 1994, ‘ministers may amend or repeal Acts passed at least two years previously’7. Another example of amendment to primary legislation is the Human Rights Act 1998 s10 which allows ministers to rectify ‘orders when a superior court has declared primary legislation incompatible with a Convention right’8.

One can be forgiven for pointing out that delegated legislation is acceptable when it requires the executive to make minor laws, as it may not often be a matter that is high on the agenda of Parliament. However, power is swung in the direction of the executive when new powers enable them to amend or repeal primary legislation. Parliament have gone from passing down just a slither of their sovereign powers to suddenly placing a immense amount of power into the hands of the executive, which bodes well with the statement put forward in the essay title.

As can be observed from the aforementioned arguments, it would appear that true power, if not the vast majority, does indeed reside in the hands of the executive and not, as suggested, with our own sovereign Parliament.

In a democracy, it is vital that we can feel confident that there are mechanisms in place that appropriately monitor and scrutinise decisions made by the government, if there appear to be wrong doings. In theory, this means that the government must be subject to rigorous, as well as public, examination. In a democratically elected government, we, the citizens, have the right to know what is being done in terms of holding the executive to account, and it is here that the various mechanisms for sufficient scrutiny of the executive come into effect.

According to Barnett, ‘the powers of government are scrutinised adequately by a democratically elected parliament to whom every member of government is individually and collectively responsible’9. It would appear that Parliament is in control in terms of keeping the executive in line, however, it can be heavily argued that there is much concern regarding the current constitutional equilibrium, and much doubt is raised as to Parliaments ability to effectively scrutinise the executive.

There are a number of ways in which the British Constitution is problematic in its attempts to scrutinise. Three such problem areas include the often ineffective use of question time, as well the also potentially inadequate select committees. Also an issue for debate regarding scrutiny is whether there is sufficient accountability One mechanism of scrutiny is Question Time, which is an allotted period of time during which Parliament are able to supposedly scrutinise the executive. Primarily, Question Time is supposed to be an example of Parliament exercising its power and making the executive accountable, by putting them on the spot and demanding answers.

According to Erskin May, ‘the purpose of a question is to obtain information or press for action’10; it also sets out that Questions to ministers ‘should relate to the public affairs with which they are officially connected, to proceedings pending in Parliament or to matters of administration for which they are responsible’11.

If it is decided that a minister wishes not to answer an oral Question, a written answer will be required, to be published in the Official Report of the House. This already presents a major flaw in scrutiny of the executive. Of the vast number of Questions asked, only a select few receive an oral answer. When the time comes for a written answer to be presented, the minister of whom the Question was asked has had the time to analyse the question and plan an appropriate answer. It is claimed that Parliament is in control, and that Question time is an example of Parliament demanding answers, yet it would seem that this is just another example of the executive displaying its ability to act in such a way that it can give away only the information it sees fit. This dominance of the executive is outlined by Mr Alan Beith, who stated in a motion in the House of Commons ‘successive governments have increasingly diluted the role of Parliament by making announcements to the media before making them in the house’12. Despite the futile attempts to scrutinise the executive, Question Time seems to be ‘mere theatre’13, and the executive seem to be taking control, treating Question Time as a mere formality and in essence outwitting Parliament by dodging probing Questions. The reality of the situation is regardless of what Question is asked, a government minister is clearly a highly intelligent and charismatic individual who will be able to sufficiently avoid providing in depth answers, whilst on the surface looking to give an appropriate answer.

A second mechanism of scrutiny is that of departmental select committees. A committee is attached to a department and it becomes their responsibility to investigate the one they are assigned to, and they have the ability to ‘send for persons or papers’14. However, this is dependent on cooperation of ministers within that department, and as of yet there is no requirement for those ministers’ to cooperate or aid in the investigations, sometimes resulting in a lack of success.

An example of when limited cooperation can be perceived occurred in the Westland Affair. During this investigation, the government refused to allow the select committee access to key witnesses, on the basis that ‘the giving of evidence by a senior civil servant to a parliamentary committee would have major implications for the conduct of government’15. This meant that the committee could not use or check statements made by the Prime Minister about the case, and there was nothing they could do to push the matter further, they were defeated.

Whether government cooperate with committees’ plays a huge part in their success/ failure. Based on the fact that there is no requirement for government to cooperate, one can conclude that it is the executive and not the committees’ that hold the power in this instance, as they hold the right to not aid in investigations of the committee.
Thirdly, I shall look at the constitutional convention of ministerial responsibility, which can be divided up into two parts; collective and individual responsibility. Marshall & Moodie adequately describe ministerial responsibility as follows; ‘ministers are responsible for the general conduct of government…and ultimately, through Parliament and parties, to the electorate’16. I shall first observe collective responsibility. The convention emphasises the solidarity and collectiveness of government as well as its responsibility to parliament. It would appear to be an ideology, one that states that all cabinet members are responsible for all cabinet decisions, as well as the outcome of those decisions. Collective responsibility provides Parliament, as well as the electorate, with evidence that the inner most workings of the cabinet are running smoothly, and this is shown by cabinet ministers showing a united front. Lack of unanimity indicates problems within, which could lead to a number of issues including possible rebellion. There is only one way for a minister to show their dismay, and that is for the aggrieved party to resign his/ her position. In 1931-32, the National government ‘contained bitterly opposing views over economic policy’17, and this resulted in four members of the Cabinet handing in their resignation. However, this was withdrawn after then Prime Minister, Ramsey MacDonald, waived the convention and allowed open discussion of the issue, which is an example of cleverness and apparent solidarity of the executive, meaning Parliament were unable to criticise, as no rules were broken.

With individual responsibility, the minister in charge of a Department is wholly accountable to Parliament for any wrong doing or apparent misuse of power, as set out in the Ministerial Code, s1.2(a)18. As expressed by AV Dicey, ‘the responsibility of ministers means…responsibility of every minister for every act of the Crown’19.
If a minister fails to perform, there are often calls for his resignation. However, ministers often refuse to give up their position, citing many reasons to exempt responsibility. An example of this occurred in the case of Mr James Prior. In this case, there was a mass breakout from the Maze prison, during which many dangerous convicts escaped. The situation was of course exacerbated by the media, particularly in an article printed by the Times Newspaper, stating that there was a ‘fearful blow to the authority of the state in Northern Ireland’20. Mr Prior did not resign and claimed there was a failure of policy, but not of the officials of his department and their aptitude to follow orders correctly. An opposition party member even stated that ‘we must consider whether Northern Ireland would benefit if a particular Minister resigned. I should not think it right…’21. One argument can be that departments are now of such great size, that one minister cannot be expected to oversee every operation. When errors occur they are often exaggerated by the media, which may not be proportionate to the issue at hand. The mistake made in Mr Prior’s case was serious, yet this shows how the executive make a mockery of Parliament and the convention, by talking their way out of a bad situation. By gaining the support of not only their party, but of oppositions, they can ensure that party support plays a huge part in their ability to stay in Office. For a resignation to be standing, there must be a majority who want the individual to resign. This reiterates the fact that there is not adequate accountability for the wrong doing of ministers, and that the convention of ministerial responsibility is not quite as effective as first thought.

In summary of the above, the executive more often than not takes control of a situation, regardless of who is at fault. Strong alliances and an ability to find a way out imply that the reality of the situation is our government holds more power than our own Parliament. Despite attempts at scrutiny, the fact of the matter is one must begin to question the hold that Parliament has on the executive, as they seem to be relinquishing their grasp by constantly providing the executive with even more power.