The doctrine of collective responsibility, whereby decisions and policies of the cabinet are binding on all members of the government who must support them in public, helps to reinforce the powers of the Prime Minister. This refers to the principle that decisions of the cabinet or Prime Minister are binding on all other members of the government, who must support them in public in order to maintain a united front or resign their government post5. Therefore, members are expected to express their views and “argue freely in private while maintaining a united front when decisions have been reached”6. With the fear of losing their post, ministers more often than not abide by the doctrine of collective responsibility, placing the Prime Minister in a secure position. Although this is not always the case, the Prime Minister, compared to other ministers, has more opportunity to express his views and defend the government’s polices.
In spite of these powers the Prime Minister does not have a free hand in making up a cabinet and a government. Forming a government is a careful balancing act, which demands a mix of people and talents, young and old, experience and promise, men and women etc. Furthermore, there is often little choice and some ministers virtually choose themselves by virtue of their political stature and support of factions within the party. At the moment, Tony Blair’s current cabinet contains a mixture of powerful figures that he cannot ignore, such as Gordon Brown and John Prescott. In practice the choice of elevating members of the Lords or Commons to cabinet rank is limited as senior colleagues can hardly be omitted without causing dissension. The Prime Minister’s power of dismissal is not so simple as dismissal may often be viewed as a weakness of the Prime Minister and could work against him or her. In sum, the Prime Minister’s powers to hire and fire government members, like many other features of the office, are a mixture of freedom and tight constraints.
In reality the power exercised by the Prime Minister depends upon their own personality, the standing and attitude of the Cabinet members and intangible factors almost impossible to analyse7. Different styles of leadership have been demonstrated by the Prime Minister’s of the last decade. For example, Thatcher was a strong and dynamic leader, Major adopted a more collegial and consensual style, and the current Tony Blair, seems to combine some of the characteristics of both Thatcher and Blair, whilst taking a more authoritarian approach where possible. Although there are no constitutional limits to the power of the Prime Minister, there are constraints forced upon him. In a legal constitutional sense the Cabinet has more authority than the Prime Minister does alone. The concept of ‘cabinet government’ may be succumbing to the concept of the kitchen cabinet. A ‘Kitchen Cabinet’ refers to the collection of influential friends and advisors that the Prime Minister may collect around him or her. For example, the Prime Ministers private secretary who keeps the Prime Minister informed of important matters8.
Another crucial aspect of constitutional government in Britain is the relationship between the government and parliament and the supposed sovereignty of the latter. The idea of a separate, independent and powerful legislative chamber is central to the concept of separation of powers. To a certain extent the commons ultimately controls the executive and enforces constraints on the Prime Minister’s power, since the commons can issue a vote of no confidence (although rare), and the Prime Minister is therefore dismissed from Government. For example, James Callaghan’s labour party was forced to stand down in 1979. However, the Prime Minister does acquire the power to appoint whips (more common in the House of Commons than the House of Lords), that are imposed to try and force members to agree with proposals. If a bill makes it to the House of Lords, it is here considered in detail and amendments are made9. This then means the bill is sent back to the House of Commons, delaying the enactment of the bill. The House of Lords can limit both what the Prime Minister puts through the House of Commons and the speed at which it can pass through the House of Lords. However, it must be stressed that the House of Lords is essentially a revisory chamber, where its major influence is “through persuasion and the correction of detail rather than direct defiance of the Prime Minister”10.
Decisions made by the judiciary also place some constraint on the Prime Minister. Although the executive appoints judges, their independence is secured by law.
“The English Courts’ powers extend beyond reviewing the technical legality of the administrative act or decision”11.
One of the judiciary’s functions is to protect citizens against unlawful acts of government agencies and officials12 and therefore has the power to review unreasonable exercise of the powers given to the executive. The Prime Minister and other members of government are restrained from criticising the judiciary by convention. An example of conflict between the judiciary and the executive is in the case of M v Home Office [1994] 1 AC 377; QB 270. In this case it was held that
“ministers and civil servants were subject to contempt jurisdiction of the courts and that the Home Secretary was in contempt when he disobeyed a judge’s order”13.
This case gives an example of a violation of the rule of law and more specifically equality before the law, which means all citizens, including officials are subject to the jurisdiction of the ordinary courts14. On the other hand, it was not regarded as a breach of this convention when Mrs Thatcher criticised the light sentence imposed on a child molester15.
The Prime Minister is required to operate firmly within the fundamental principles underlying our constitution. These include the legislative supremacy of parliament, the separation of powers and the rule of law. The separation of power principle was formulated by Montesquieu on the basis of his “perception of the eighteenth-century British constitution”16. The separation of powers divides state power into three forms - legislative, executive and judicial. The idea is
“that governmental power should not be concentrated into the hands of one person or body, for fear that tyranny would be the result”17.
Thus central power is taken away from the hands of the Prime Minister. It is considered that by keeping these three branches separate, the liberty of citizens will be protected. An example of how these three branches are exercised is in the law of taxation. The legislative function is to authorise the levying of a new tax, the executive function is to assess and collect the tax payable by individuals and finally, the judicial function is to settle disputes between a tax official and a taxpayer18. However, there will be overlap between the branches to a certain extent. The doctrine also envisages a system of checks and balances. For example, “the judiciary having the power to declare both legislative and executive actions unlawful”19. The separation of powers has no relevance to the British constitution and with ministers such as Lord Chancellor, it is possible to reject the whole idea as the Lord Chancellor performs all three functions. However, despite this the separation of powers is considered to be vital in order to maintain a balance of powers. Montesquieu argued that the balancing power is needed among the ruling elements of the Country20. It provides an important restriction on the Prime Minister as his powers are limited in the executive and disables him to be in central power. The House of Commons Disualifications Act and (partly) the Ministerial and other Salaries Act 197521, both act as further restrictions on the power of the executive and therefore the Prime Minister.
The doctrine of the Rule of Law is concerned with the allocation of power and the control of its exercise. Dicey defined the Rule of Law as:
“…the establishment of order and the maintenance of peace through the settlement of disputes in accordance with the law”22.
In relation to the Government according to law, the principle requires that the organs of government operate through law. Government must be able to show legal authority for their actions. An example where this was challenged is in he case of Entick v Carrington (1765) 95 E.R. 80723. In this case, two of the King’s messengers were sued for having unlawfully entered the plaintiff’s house and seized papers. The defendants relied on a warrant from the Secretary of State ordering them to search for Entick. The court held that in absence of a statute or judicial precedent upholding the legality of such a warrant, the practice was illegal. The Rule of Law is therefore important for protecting personal liberty and private property against official interference24. It is also particularly important, in a country like the United Kingdom, which does not have a written constitution, due to the principle constraining the uninhibited exercise of governmental power. The doctrine disables government from abusing its power25. However, the government is responsible for enacting legislation and can quickly make legal what was currently illegal26.
Britain’s membership of the European Union since 1973 has had profound consequences for the British constitution, the main issue concerning parliamentary sovereignty. British law must now be consistent with European law and on a range of questions, British courts take their precedents from the European Court in Luxembourg27, just as British civil servants and local councils follow directives from Brussels. Paradoxically, a crucial consequence of EU membership is an increase in the political power of the Prime Minister. This is because the main centres of power in the EU are not accountable to the British Parliament. The Council of Ministers, the main executive body in Brussles, is composed of representatives of national governments. Crucially, parliamentary approval is not required for EU legislation. As Douglass Scott comments, “the European Union has grown to be an alternative focus of legitimacy to national parliaments”28.
The Prime Minister has a vast amount of responsibilities that provide him with power and influence. Some of these powers have been mentioned earlier, others include weekly meetings with the Sovereign, intervening in the responsibilities of individual ministers, leading the party and keeping control, supervising security and intelligence matters29 and the list continues. His importance is hugely magnified by media attention, which over the years has increased dramatically. The Prime Minister is in a position to “control the government’s communications to the press and disclose information”30, in order to suit himself or herself. This access to the media gives the Prime Minister power over government colleagues.
The nature of the British political system is far from straightforward, in that candid statements pointing to the Prime Minister’s unlimited powers, or the spent tenets of the British constitution offer only inaccurate analysis. The concepts of a separation of powers and a rule of law are not in the realm of constitutional legality, largely due to the fact that the British constitution is unwritten and lives off custom and convention. Therefore the Prime Minister is perhaps not scrutinised, as he or she would be if the constitution were more legally grounded. However, these principles do serve as a sound basis for the making and evaluation of government policy. They promote the virtues of regularity, rationality and integrity on the part of those central to the parliamentary process. There are other, more subtle factors at work as well. The premiership is not just one individual, however his or her personal style is crucially important, as demonstrated by the contrasting leadership strategies of MrsThatcher, Mr Major and Mr Blair. Although there can be differences in style and circumstances, the Prime Ministers are fundamentally leaders. It is the Prime Minister’s job to rise above cabinet issues and in this sense the Prime Minister is not a colleague, but the boss. With a close hold on the executive branch, as well as a considerable majority in parliament, Prime Ministers have the power to press their governmental programmes and policy-making agendas with undeniable authority.
Bibliography
Allen, M. and Thompson, B., (2002) Cases & Materials on Constitutional & Administrative Law, 7th Edition, New York: Oxford University Press
A W Bradley and K D Ewing, (2003) Constitutional and Administrative Law, 13th Edition, Essex:Pearson Education Limited
Barnett, H., (1998) Constitutional and Administrative Law, 2nd Edition, London: Cavendish Publishing Ltd
Budge, I., Crewe, I., McKay, D. and Newton, K., (1998) ‘The core executive: Prime Minister and Cabinet’, The new British Politics, Essex:Addison Wesley Longman, pps 200-223
Cocker, P., (1994) Essential Topics in Modern British Politics and Government, London:Tudor Business Publishing Limited
Harris, P., (2002) An Introduction to Law, 6th Edition, London: Butterworths
Jowell, J. and Oliver, D., (2000) The Changing Constitution, 4th Edition, New York: Oxford University Press
M T Molan, (2003) Training in Law, Bedford: ILEX Tutorial College Ltd
Pollard, D., Parpworth, N. and Hughes, D., 2001, Constitutional and Administrative law text with material, London: Butterworths
Wilson, D. and Game, C., (1998) Local Government in the United Kingdom, 2nd Edition, London: Macmillan Press Ltd
Wright, T., (2000) The British Political Process, London: Routledge
1 A W Bradley and K D Ewing, 2003, p.261.
4 A W Bradley and K D Ewing, 2003, p.262
5 Budge, I. et al, 1998, p.207
6 Ministerial Code (2001) para. 17
7 Cocker P., 1994, p.102
8 Budge, I. et al, 1998, p.206
9 A W Bradley and K D Ewing, 2003, p.191.
10 Budge, I. et al, 1998, p. 420
11 Barendt, E.., 1998, p.114
12 A W Bradley and K D Ewing, 2003, p.86
13 A W Bradley and K D Ewing, 2003, p 86
14 A W Bradley and K D Ewing, 2003, p94
15 Barnett, H., 1998, p.146
16 Barendt, E.., 1998, p.14
18 A W Bradley and K D Ewing, 2003, p.78
20 Pollard, D., Parpworth, N., and Hughes, D., 2001, p. 37
21 A W Bradley and K D Ewing, 2003, p. 171
22 Molan, T., 2003, p.11
23 Allen, M., and Thompson, B., 2002, pps 172-174
24 A W Bradley and K D Ewing, 2003, p.92
25 Jowell, J. and Oliver, D., 2000, p.17
26 Wilson, D and Game, C., 1998, p.102
27 Budge, I. et al, 1998, p.117
28 Douglass, S., 2002, p. 6
29 Molan, T., 2003, p.102
30 A W Bradley and K D Ewing, 2003, p.262