“…that many decisions of government are not taken by the cabinet as a whole, but by the Prime minister in consultation with a few colleagues.” (Bradley and Ewing, 2003: 262).
Significantly, if ministers feel they strongly object to a final decision, by convention they should resign (Hogan, 2000). This can be illustrated by the resignation of the Defence Secretary, Michael Heseltine, during the Westland Affair 1986. According to a BBC article Heseltine felt he had no alternative but to resign from Margaret Thatcher’s Cabinet since his views on the future of the Westland helicopter company were being ignored. Moreover, once again illustrating the powers of the Prime Minister, Mrs Thatcher sustained that all Heseltine’s public opinions on the matter should be vetted by officials before being released. It could be argued that in these circumstances, the constitutional convention of collective responsibility does not provide effective protection against
excessive executive power since a minority in strong opposition who may represent a significant number of the public are by convention, required to resign.
It is a significant nature of constitutional conventions that because they are not enforced through the law that they can be changed to suit the needs of a government or suspended when they are inconvenient. In relation to collective responsibility, the convention was formally but temporarily stopped during the campaign preceding the referendum on the continuation of EU membership (Hogan, 2000). An example of disregarding conventions can be shown by the Southern Rhodesia Act brought in by Parliament in 1965. Although it was the convention that Parliament should not legislate for a dominion unless requested by the dominion concerned, Parliament proceeded to respond to Rhodesia’s declaration of independence by declaring that it remained a British dominion and proclaimed its legislation invalid, (Carroll, 2002). Significantly, in the case of Madzimbamuto v Lardner-Burke [1969] 1 AC 645 the Privy Council refused to accept arguments that the 1965 Act should not be applied because it was in breach of a convention (Carroll, 2002). Lord Reid, speaking for the Privy Council, said that although the convention was a very important one, it had no legal limitations on the power of Parliament. He continued with:
“It is often said that it would be unconstitutional for United Kingdom Parliament to do such things…But that does not mean it is beyond the power of Parliament to do such things. If Parliament
chose to do any of them the Courts could not hold the Act of Parliament invalid.” (as cited in Allen and Thompson, 2002: 247)
This strongly suggests that conventions are not effective in limiting the powers of the executive.
One way in which it could be argued that constitutional conventions do provide effective protection against the monopolisation of executive power could be the diminished role of the sovereign. The role of the sovereign in the organisation of the government has almost disappeared since the eighteenth century. For example, the last time a Royal Assent Bill was refused was by the Queen in 1708 (Bradley and Wade, 1990). The Queen is formally the head of the executive and all Acts of Parliament are technically enacted by the Queen who has the legal right to refuse to give the royal assent to Bills passed by both the House of Commons and Lords (Barnett, 2002). Nevertheless, by convention, the Queen does not have the power to refuse laws passed by the majority of Parliament: by convention she must assent to Bills unless she is otherwise advised by the government. Political power traditionally exercised by the monarch therefore has been transferred to the government. This is acknowledged by Wheare (1966) who describes that one of the ways in which conventions affect the law of the constitution is that power is transferred from one person to another. Importantly, although this may appear to have effectively taken considerable political powers from the hands of one individual, it could be argued that there has been a complete transfer of power from the monarch to the Prime Minister
as suggested by Hogan (2000):
“…in practice we now have a constitutional monarchy where the Queen acts on the advice of her Prime Minister.” (Hogan, 2000: 3).
When discussing constitutional conventions and the power vested in the executive, the doctrine of the separation of powers is of significant importance. It was noted by Montesquieu, a French jurist in the eighteenth century that the three functions of government: the legislative, executive and the judicial, must be exercised by entirely different bodies and that there should be no overlap of function (Carroll, 2002: Hogan, 2000). Montesquieu argued that if any overlap should occur, this would lead to tyranny. Although various conventions do exist to attempt to keep a separation of powers in Britain, such as lay members in the House of Lords prohibited from participating in its judicial functions (Carroll, 2002), and that judges shall not play an active role in political life, there are not sufficient rules to prevent overlap. For example, the Lord Chancellor is a member of all three branches of the government (Hogan, 2000). Perhaps if Britain had a written constitution like the United States of America, there would be a clearer separation of powers based on written rules rather than conventions, ensuring no monopolisation of power could occur.
Indeed, the monopolisation of power by the Prime Minister is a major concern of Lord Hailsham in his “Elective Dictatorship” report. He proposes that because Britain imposes no limitations on the government, the Powers of Parliament are unlimited.
Referring to constitutional conventions as limitations to the power of Parliament Lord Hailsham continues:
“The limitations on it, are only political and moral. They are found in the consciences of members, in the necessity for periodical elections, and in the so called checks and balances…” (as cited in a BBC document).
The only limitations given by conventions therefore according to Lord Hailsham are the consciences of the ministers, and the hope for re-election. He continues to describe how the government now controls Parliament rather than Parliament controlling the government, since discussions used to influence how members voted, but now he suggests it has become convention for members to be persuaded through the ‘whip’ system. This means that members are persuaded through fear of dismissal or no movement from the back bench to other positions. Therefore, Lord Hailsham concluded that Britain is ruled under an elective dictatorship. Conventions thus do not appear to provide protection against executive power.
In contrast to Lord Hailsham’s views that conventions are only followed due to the conscience of ministers and the hope for re-election is the case of Attorney General v Jonathon Cape Ltd [1976] QB 752 which involved the political diary of Richard Crossman written while he was a Cabinet minister. After his death the diary was edited for publication, although because of the detailed accounts of discussions at Cabinet
meetings, the Secretary to the Cabinet refused to have it published. After the publication went ahead, the Attorney-General sought an injunction to stop it (Carroll, 2002). The judiciary recognised the convention of collective responsibility, although it is noted by Bradley and Ewing (2003) that it was only one of many factors taken into account in establishing the limits of the doctrine of confidence. Nevertheless, this case does show that the judiciary will recognise conventions “as a matter of practical reality”, (Molan, 2004: 2). This strengthens the argument that constitutional conventions provide protection against excessive executive power.
Another contradiction to Lord Hailsham’s “Elective Dictatorship” report could be the conventional rule that the government must have the confidence of the majority in the Commons (Bradley and Ewing, 2003). If not, the government is said to have lost the vote of confidence and must either resign or seek a dissolution of Parliament from the Queen (Barnett, 2002). Moreover, this situation is cited by Lee and Stallworthy (1995) as giving back benchers a chance to express their disproval without necessarily putting their political life at risk as suggested by Lord Hailsham. By convention therefore, powers in the hand of the Prime Minister and his government are controlled since a majority vote in the House of Commons must be achieved by the government in order to remain in power.
A further convention which appears to keep a check on the conduct and discretion of the government is the meeting of Parliament. As suggested by Carroll (2002), the Parliament should constantly supervise the executive. Although there is a legal requirement for
Parliament to meet ‘frequently’ under the Bill of Rights (1689), and at least once every three years under the Meeting of Parliament Act (1694), Carroll (2002) points that such legal requirements are insufficient in controlling the activities of the executive. Therefore, it is the constitutional convention that Parliament should be summoned annually which helps provide protection against an excess of executive power.
- When evaluating the information presented it is clear that there is evidence to support both sides of the argument as to whether constitutional conventions provide any effective protection against the excess of executive power. Moreover, there are debates as to why conventions are followed and whether or not Britain requires a written constitution to limit the power of the executive. It could be suggested that an advantage of having informal rules and conventions surrounding the Monarchy is that the Queen still remains to hold some legal powers, although she does not use them. For this reason, the Monarchy continues to survive in Britain which aids the economy through tourism. Regarding powers of the executive, conventions are met with speculation from those who draw on the unenforceability of such rules through the law such as Lord Hailsham (as discussed above). However, it should be noted that conventions give the British constitution an essential degree of flexibility, allowing it to change, develop and adapt to contemporary society without having to alter many existing legal rules (Carroll, 2002).
Nevertheless, it is argued that such flexibility is for some a cause for concern since it allows governments to amend rules in its favour as illustrated by Madzimbamuto v Lardner-Burke [1969] 1 AC 645 (see above). Additionally, the arguments that we are
beginning to see the rise of an elective dictatorship in Britain also cast doubt on the effectiveness of constitutional conventions. However I think it is important to remember that, and as noted by Hogan (2000), the Prime Minister’s strength largely depends on the support of his party both inside and outside Parliament. Thatcher’s downfall in 1990 demonstrates the ultimate dependence on party support. This is supported by Sir Ivor Jennings’ statement in his “Cabinet Government”: conventions “not only are followed, but have to be followed”, (as cited in Barnett, 2002). When considering this in addition to no confidence votes, the regular meeting of Parliament and evident judicial recognition of non legal practices, it cannot be assumed that the Prime Minister has ultimate power, and can be concluded that constitutional conventions provide at least some effective protection against the excess of executive power.
Bibliography
Allen, M. and Thompson, B. (2002) Cases and Materials on Constitutional and Administrative Law (7th Ed). London: Oxford University Press.
BBC article found at http://newsimg.bbc.co.uk
Barnett, H. (2002) Constitutional and Administrative Law (4th Ed). London: Cavendish Publishing Limited.
Bradley, A.W. and Ewing, K.D. (2003) Constitutional and Administrative Law (13th Ed). Essex: Pearsons Educational Limited.
Bradley, A.W. and Wade, E.C.S. (1990) Constitutional and Administrative Law (10th Ed). London: Longman Group UK Limited.
Carroll, A. (2002) Constitutional and Administrative Law (2nd Ed). Essex: Pearsons Educational Limited.
Dicey, A.V. (1965) cited in A. Carroll, (2002) Constitutional and Administrative Law (2nd Ed). Essex: Pearsons Educational Limited.
Hogan, G. (2000) Nutshells Constitutional and Administrative Law (5th Ed). London: Sweet and Maxwell Limited.
Lee, R. G. and Stallworthy, M. (1995) Constitutional and Administrative Law (4th Ed). London: Blackstone Press Limited.
Molan, M. (2004) Constitutional and Administrative Law: 150 Leading Cases (3rd Ed). London: Old Bailey Press.
Wade, E. C. S. (1965) cited in M. Allen and B. Thompson, (2002) Cases and Materials on Constitutional and Administrative Law (7th Ed). London: Oxford University Press.
Wheare (1966) cited in G. Hogan (2000) Nutshells Constitutional and Administrative Law (5th Ed). London: Sweet and Maxwell Limited.