UK Constitution (lecture-4): The Prime Minister & Cabinet

 The Prime Minister & Cabinet  

Introduction:

Prime Minister’s power depends upon particular incumbent’s personality, style, on political circumstances (i.e., majority in Parliament), and on good fortune (i.e., absence of scandals). Prime Minister Harold Wilson (1964-1970 and 1974-1976) described the Prime Minister as being like a conductor of an orchestra, the orchestra being the various ministers, departments of state, etc. 

Choosing a Prime Minister

The role of the Crown

The Monarch must appoint as Prime Minister- the person who commands a majority in the House of Commons or who is in the best position to form and sustain a government in office. Hence, in theory Monarch’s role is to appoint but not to choose.

It has been suggested that however, in certain circumstances the Monarch might still have to become involved in the decision-making process. This would be most likely to occur- where an election produced a ‘hung Parliament’ i.e., a Parliament in which no single party had an overall majority in the House of Commons. There had been only five hung parliaments in the 20th Century i.e., January 1910, December 1910, December 1923, May 1929, February 1974). These latter instances provide the following approach that would be appropriate for the Monarch in the given circumstances:

1. For the Monarch to allow the incumbent PM, now no longer with a majority, to be given an opportunity to form a further administration. This might be a minority government if the PM still leads the largest single party or a government with cross-party support- perhaps a coalition (illustration-1931 National Coalition). 

2. If this proves impossible, for the Monarch to invite the leader of the largest single party, if not the PM, to see if he or she is able to form a viable minority or cross-party majority administration.

3. If this fails, for the Monarch, on advice, to invite any other party leader, or person capable of forming a government to see if an alternative administrative administration may be formed. 

4. All of these possibilities having been considered or exhausted, to dissolve Parliament so that a further election may be held.

Party Procedures for choosing a leader

Prior to 1981, the Labour leader was elected by simple majority vote amongst all members of the Parliamentary party. In 1981, a new system was adopted involving choosing the leader through an 'Electoral College'. According to the system, 40 per cent of the vote was cast by the trade unions, 30 per cent by the Parliamentary party, and 30 per cent by the constituency parties. In 1994, the electoral college approach was abandoned and replaced by a system of 'one man (person), one vote' (OMOV) amongst all party members. Tony Blair was the first to be elected in this way.

in comparison, Until 1965 Conservative party did not adopt a procedure for electing its leaders. When a leader dies or resigned it was assumed that a potential successor would automatically emerge and be appointed on the basis of consensus following internal deliberations. after 1965 it was decided that future leaders would be chosen by ballot amongst all members of the Parliamentary party. to be elected in the first ballot a candidate must secure a majority and 15 per cent more of the votes than any other candidate. If this does not occur, a second ballot is held. This is conclusive, if any candidate secures an absolute majority of the votes cast. If this does not occurs, the party moves to a third and final ballot. This is contested by the three candidates with the highest second ballot votes. Each conservative member is allowed a first and a second preference vote (i.e., two votes). If no candidate secures an absolute majority of of first preference votes, the third placed candidate's second preference vote is redistributed among the other two candidates. The candidate with an absolute or overall majority of first and second preference votes is then elected.

The Liberal Democrat leader is chosen by simple majority through a system of one person, one vote amongst all party members.

Factors Contributing to the Power of the PM

The convention power of patronage

In strictly legal sense the Monarch is who appoints all members of the government and makes any other appointments in the Church and state. Conventionally it is required that all these are made on the advice of the Prime Minister. Hence, the real power to 'hire and fire' belongs to the PM alone but the power is not unlimited. In forming a government the PM must be aware of the need to preserve party unity and public confidence. Hence, he or she may be constrained to include persons of ability, experience, and stature from the various 'wings' of the party. Further, the excessive use of the power of dismissal may also have prejudicial effects on public confidence and the government's standing in Parliament.

The Conventional Power of Dissolution

Prime Ministerial or Cabinet decision

In British constitution the decision to ask for a dissolution of Parliament and the chronological incidence of general elections are not subject to precise legal prescription, save for Five-year rule contained in the Parliament Act 1911. Contemporarily, deciding the date of an election is largely a question for Prime Ministerial rather than Cabinet judgement and whether or not PM should consult their Cabinet colleagues is a matter of discretion and not obligation.

Background

the entrusting of this power to the PM is claimed to date from the end of World War 1: 

'Until the First World War the decision to advise the Crown to dissolve Parliament was a collective decision of the Cabinet, or at any rate of those members of it, who sit in the House of Commons, albeit the practice since 1918 has been for the decision to rest with the Prime Minister alone, taking such advice or none, as he sees fit' (Blake, The Office of Prime Minister). 

The particular Prime Ministerial power is a double edged sword. to get it wrong it may result in loss of office (for illustration- Ted Heath dissolved Parliament 15 months earlier than necessary. His optimism was misjudged- his premiership was ended and by the end of 1975 so too his leadership of the Conservative Party. 

It has been observed that the PM may use the threat of a dissolution to secure obedience in Cabinet and on the backbenches. Asquith said this was an essential weapon. For illustration- the threat was used by John Major in November 1994 prior to the second reading of a bill to increase UK budgetary contribution to the European Community. 

The Conventional Powers in relation to the Cabinet

The PM determines the size and composition of the Cabinet; the number, subject matter, and composition of Cabinet committees. He or she may also determine when the Cabinet meets, the agenda for discussion, chairs Cabinet meetings, and sums up whatever conclusions have been reached. 

Traditionally, the Cabinet meets twice a week. Mrs. Thatcher, however, seldom called more than one Cabinet meeting per week. She also reduced the number of Cabinet committees and the number of occasions on which such committees met. 

However, any persistent attempt to stifle debate of significant issues can lead to dissent and ultimately resignation. Thus, Michael Heseltine resigned as Secretary of State for Defence in 1986, when Mrs. Thatcher refused to permit further discussion of the decision to allow Westland Helicopter to be sold to Sikorski, An American entrepreneur, rather than a European consortium favoured by Heseltine.  

Most of the contemporary PMs used the devices of partial and inner cabinets to make decisions, thus avoiding full Cabinet discussion. Such decisions are then usually referred to Cabinet for approval or presented as fait accompli. A partial cabinet is a group of ministers selected to direct and coordinate government actions usually in relation to an urgent situation or national crisis (e.g. Falklands War). An inner cabinet refers to an informal and fluctuating group of senior ministers whom the Prime Ministers trusts and favors; and with whom major issues will often be discussed- and a common view formed- prior to Cabinet proceedings.   

Support of the Cabinet Office or Secretariat

This is a body of senior Civil servants, whose formal task is to provide the Cabinet with administrative and secretarial support. One of the main functions is to prepare agenda and supply all other documentation and material necessary for the efficient disposal of business in Cabinet. 

Prior to 1917, no machinery existed for preparing Cabinet agenda and recording decisions. Therefore, ministers were sometimes inadequately briefed prior to Cabinet meetings, or even worse, were sometimes unclear about what had been decided. 

Other Cabinet Office functions include: Summoning Ministers to Cabinet & Cabinet Committee Meetings; taking and circulating Cabinet and Cabinet Committee minutes; drafting reports of Cabinet Committee recommendations for Cabinet discussion; filing & maintaining Cabinet papers and records. 

Although dedicated to support the whole Cabinet, the Secretariat provides the PM with access to great deal of information and analysis without which his/her position would be weakened. it is headed by the Cabinet Secretary who is the Senior Civil Servant with whom the PM will be in regular personal conduct for information and advice. 

The PM's private office

it is divided in to 4-sections and is staffed by a mixture of civil servants and political appointees and recently has over 100 personnel (including- messengers & clerical staff). 

The Private Office

The responsibility of Civil Servants is to help the PM manage and prioritize the mass of paper work and communications, and it also co-ordinates PM's diary, helps with the preparation of speeches, and generally ensures that the PM is adequately briefed, and prepared for both official & parliamentary business. 

The No 10 Policy-Unit

Its members are political appointees and they are concerned with analysis and evaluation of policy proposals and with projecting the practical and political consequences of such proposals. 

The political office

Its principal function is to keep the PM in touch with opinion in the governing party and its organizations at both national and local level. 

The No 10 Press Office

It handles the PM's relationship and arrangements with the media. Normally, its members are Civil Servants. 

The voting and two party system

The current voting system tends to give the party with the largest minority of the vote a secure majority of Parliamentary seats, thus for 41.9 per cent of the vote in 1992 General Elections the Conservatives gained 51.6 percent of the seats in the House of Commons. The voting system also mitigates against the growth of smaller political parties and the formation of coalitions. Sustained by a single party with a safe majority in Parliament, the PM's position is inevitably enhanced. 

LIMITS ON PRIME MINISTERIAL POWERS

The Cabinet

Despite the PM's preeminent position in relation to other minister, insistence on policies not fully supported in Cabinet tends to result in dissent, and dissatisfaction (cause leaks) and possibly ministerial resignations- all of which damage the image of both the government and the PM. PM has the power to deal with ministerial opposition by sacking members of the Cabinet, too many sackings may give the impression of a divided government. There is also the danger that sacked ministers may become the focus of discontent on the backbenches. In 1969, the Cabinet combined to force Harold Wilson to abandon plans to place additional legal restraints on the activities of trade unions. 

Parliament

Government defeats, or the withdrawal of proposals because of Parliamentary Opposition, tend to damage the credibility of the PM and may create suspicions that he or she is no longer in effective control of the nation's affairs, i.e., that the government has lost its way. In final analysis of course, governments and PMs may be put out of office by adverse confidence votes in the House of Commons. 

The Parliamentary Party

Lord Palmerson (PM from 1855-58 and 1859-65) once said that the real opposition sat behind the Treasury bench. Criticism from opposition MPs is to be expected. Dissent on the government's own benches can be far more detrimental. A prudent PM will seek therefore to choose a government around which all the party can unite. 

Party Conferences

The extent to which MPs are affected by the votes and opinion of party, conferences are a matter of some uncertainty. The Conservative party conference has no policy-making powers therefore, it is usually not an issue. However, in Labour Party, the leadership is bound by resolutions supported by at least two-third of conference delegates.

The Monarch

The Monarch still reserves the residual prerogative right to dismiss the PM. The power has not been used since 1783. As a result of the unwritten nature of the British Constitution, no other formal legal procedure exists for removing a Prime Minister from office (vote of no confidence- purely conventional). The Monarch remains the only legal remedy for dealing with a premier who ignores conventional restraints, or who, in some other way, behaves unconstitutionally or in a manner seriously damaging to the national interest. 

It is conceivable, for example, that the Monarch might be forced to act should a PM refused to resign after losing the confidence of a majority in the House of Commons. Clearly, however, it is a royal power which would have to be reserved for the most extreme circumstances. 

The Civil Service

Senior Civil Servants regard themselves as the custodian of certain traditional views and values concerning the British system of government and it coupled with Civil Service responsibility for the implementation of policy may thwart Prime Ministerial and Cabinet intentions. The example of covert opposition to government policy includes- delay, the organization of resistance amongst and within the departments of state involved, and the leaking of information to the media. 

Interest groups 

It can be said that PM's position is not enhanced by determined and widespread opposition from those representing major interests within society. For illustration- Industrial unrest and trade union agitation in 1978-79 is generally agreed to have been a significant factor in Labour's defeat in the 1979 General Election. 

Leaks

It is the common tactical device to embarrass the PM and government; and used by Ministers to generate opposition to policy proposals to which they are opposed but cannot criticize due to the convention if collective ministerial responsibility. 

By-election defeats

The government's mid-term unpopularity and continuous defeat afterwards tend to have a detrimental effect on the PM' s domestic standing and may cause back-bench concern about the PM's suitability to lead the governing party in to the next general election.

Public Opinion Polls

It is regular assessment of the extent of PM's popularity and if it continued may help to destabilize his/her position. The public opinion polls create an electoral momentum of its own.  It may also be factors in creating backbench unease- possibly resulting in a leadership challenge, particularly once a government has passed its mid-term point and MPs begin to concentrate on the spectre of next election.         

External political and economic pressures

National governments are no longer able to exercise such exclusive control over their domestic economic affairs as once was the case, changes in US or German interest rates, for example may have immediate and not necessarily beneficial consequences for the UK's economy.  These sort of external forces which although not directly of its own making can diminish public confidence in an administration and its leader. 

THE CABINET

Composition

Appointment to and allocation of ministers within Cabinet is up to the grant of the PM. Cabinet usually consist of 20-25 ministers. The heads of the major departments will be included, the leader of the House of Commons (responsible for expedition of government business in the House), the Lord Chancellor, the leader of the House of Lords (responsible for government business in the Upper House), the Chancellor of the Duchy of Lancaster (responsibilities determined by PM or party chairman in Conservative governments), and the Chief Secretary to the Treasury (Chancellor of the Exchequer 'No. 2'). 

It worth noted that not all ministers will be members of the Cabinet. Within each department there will be a team of ministers junior to the departmental head or Secretary of State. Next in order of seniority are Ministers of State and beneath them Under-Secretaries of State and Parliamentary Private Secretaries. 

Mrs. Thatcher last administration had 129 members, only 95 ministers may have seats in the House of Commons- House of Commons (Disqualification) Act 1975. This is to minimize exploitation of the payroll vote i.e., the number of MPs bound by the convention of collective ministerial responsibility and therefore, obliged to support the government. 

Functions

According to the 1918 Haldane Committee on the Machinery of Government- the Cabinet has three major responsibilities- 

1. The final determination of policy to be submitted to Parliament; 
2. the supreme control of the national executive in accordance with the policy prescribed by parliament; 
3. the continuous co-ordination and delimitation of the interests of the several departments of state. 

The final determination of Policy

The majority of major decisions concerning the management of parliamentary and national affairs are considered within Cabinet. However, due to time, size, and complexity of modern government, it is not possible for the Cabinet in twice-weekly meetings to give its full attention to all issues relating to the formation and implementation of policy; and to multifarious other matters with which the government must deal. Inevitably, therefore, other mechanisms and procedures have been developed to expedite the process of policy and decision-making. 

(a) Cabinet committees

Until 1992, the exact number, designation, and composition of these Cabinet Committees was not made public. Mrs Thatcher reportedly had some 25 such standing committees and another 110 ad-hoc working parties. They are usually chaired by a Cabinet minister and will consist of other ministers, mostly not of Cabinet rank, from those departments with an interest in a particular committee's area of responsibility. Most are permanent but ad-hoc committees may be setup to deal with or oversee a particular problem.

Their Principal Functions are to co-ordinate the activities of the various departments of state, to formulate policy suggestions or proposed courses of executive action for Cabinet consideration, and to deal with and make recommendations related to any other matter referred to them. 

In 1992, the principal committees included: economic and domestic policy (Chaired by PM); industrial, commercial, and consumer affairs (chaired by Leader of House of Lords); Local Government (Leader of the House of Commons); Queen's Speech and future Legislation (Leader of House of Commons); Legislation (Leader of the House of Commons); Civil Service (Leader of House of Commons, to name the few. 

(b) Inner and Partial Cabinets

Partial Cabinet refers to a group of Cabinet Ministers selected by the PM to direct and co-ordinate some aspect of government action, often in relation to a matter of urgency or where expedition is needed to deal with an immediate and serious threat to the national interest, i.e., such use by Mrs Thatcher during the Falklands War (1982).  Such informal ministerial groups can be used to thwart or obstruct the plans of particular ministers. For example- after the inner city riots of 1981 Michael Heseltine (Minister for the Environment) proposed a major spending programme to deal with inner city dereliction.  

The inner cabinet consists of that small group of particularly trusted senior ministers, usually holding key Cabinet posts, to whom the PM may refer for advice and support on an informal and confidential level. The decisions and courses of action proposed by such powerful groupings are unlikely to be defeated when and if put before a Cabinet meeting. 

(c) Matters Outside Cabinet Control

Given their special nature, certain specific government responsibilities are not subject to direct Cabinet control including: 

• The power of Prime Ministerial Patronage;
• The Power to advise dissolution; 
• The Prerogative of Mercy (the matter for Home Secretary);
• The formation of the Budget (the matter for the Chancellor and the Chief Secretary to the Treasury in consultation with the Prime Minister and those ministers directly affected by a particular proposal).

Control of the National Executive

In constitution theory- the control of the national executive remains a primary function of the Cabinet, although for practical reasons- the degree of control which it actually able to exercise over the extensive machinery of central government is for a variety of reasons, somewhat limited. 

It is not possible for a body of some 20-25  persons, which meets only once or twice per week to be fully appraised of, or make decisions in relation to all the concerns of the various government departments. More detail consideration and supervision of departmental activity and policy tends to be undertaken by Cabinet Committees and Sub-Committees and in negotiations between PM, Chancellor, Cabinet Secretary, and individual ministers. 

As the machinery of government began to grow doubts grew concerning the validity of theory that ministers control their departments and that collectively, they exercise effective authority over the entire central government bureaucracy. Recently, the arguments relating to the size and complexity of government appear to have affected executive interpretation of the convention of ministerial responsibility. Hence, it is common for ministers to plead that they should not be expected to take the blame for the actions and decisions of civil servants which they had not directly sanctioned or were not aware of (i.e., Scott Inquiry). Such concern about the effectiveness of Cabinet and Ministerial control of government departments led to introduction of mechanisms for the rigorous security of executive activity, including the appointments of the Parliamentary Commissioner (1967) and the Health Service Commissioner (1974), the creation of the system of departmental parliamentary select committees, and the setting up of the National Audit Office (1983) to give assistance to the work of the Comptroller and Auditor General. 

Continuous co-ordination of the several departments of state

It is one of the Primary Functions of Cabinet committees and sub-committees. The process of co-ordination is also assisted by the work of the Cabinet Secretariat. Gradually, PMs have tried to improve the extent of co-ordination by restructuring the departmental composition of central government. Hence, the Department of the Environment (established in 1971) now encompasses local government, housing and planning, all of which at various times, have been the responsibilities of separate ministries.

Reasons for Cabinet Confidentiality

It is supported by various political, conventional, and legal rules. In party-political sense it is something which helps preserve an image of a united and focused administration. It also underpins various public interests including the need for candour (the quality of being open and honest) and plain-speaking in ministerial deliberations, and the benefits related to defence, counter-subversion, and sensitive aspects of foreign policy. 

The major conventional rules operating in this context are collective and individual ministerial responsibility, which force the ministers to either close ranks and give unreserved support to all government actions and decisions or to relinquish office through resignation or dismissal. When faced with this choice of job or conscience, the recent trend is that ministers chose the job. This is a compromise which enables particular policy preferences to be pursued from within and of course, does less immediate damage to hopes of political advancement. 

The legal rules of most obvious relevance in this context are those relating to the equitable doctrine of confidentiality and  to the common law concept of public interest immunity. 

At the moment, ministers (or ex-ministers) may be restrained from publishing information entrusted to them in the course of their ministerial responsibilities, if this would damage the public interest in government confidentiality or adversely affect national security (Attorney-General v Jonathan Cape). The rules of public interest immunity prevent the use of Cabinet papers in legal proceedings except in very limited circumstances (Burmah Oil Co Ltd v Bank of England [1980] AC 1090). 

Bibliography

Alex Carroll, CONSTITUTIONAL & ADMINISTRATIVE LAW: CHAPTER 11 THE PRIME MINISTER AND CABINET, (Financial Times Management 1998) p 183-198.

   

       

    

          

UK Constitution- (Lecture 3): PRIMARY LEGISLATION

 

Primary Legislation

This chapter is primarily concerned with primary legislation, which refers to the UK Acts that are passed by the Parliament, and how they are made through passing various parliamentary stages. Studying about this area gives us more knowledge of the three key constitutional principles- Parliamentary supremacy, Rule of Law, and Separation of powers.

Parliamentary Supremacy: The UK’s constitutional setup gives the final say on whether a statute is valid and be recognized as valid law to the politicians than the judiciary. This dominance has two justifications. Firstly, the legislature is elected and would be better able to reflect the views of the people who elect them. Secondly, the legislative process is superior to the adjudicative processes of the courts for deliberating on and determining questions of public interest. An important to bear in mind is that the government plays the main role in making legislation. It initiates policy, drafts bills, steers bills through the Parliament and often decides when legislation is brought into force. The government is then deciding the content and timing of the legislation. Also the FPTP electoral system ensures the government’s majority in the Commons which gives it further strength to pass a bill successfully.

Rule of Law: Rule of law comes into play when legislation confers power on government. Statutes give wide discretionary powers to ministers to carry out executive action and to make rules in the form of delegated legislation. Also, since UK joined the EEC in 1973, the courts have been given the power to disapply the legislative provisions not in line with the EEC law. Moreover, the Human Rights Act 1998 has given the court the power to issue a declaration of incompatibility if the legislation is seen to be inconsistent with the Convention rights.

Separation of Powers: UK does not have a separation of powers arrangement except for the principle of independence of the judiciary. Studying legislation is a good way of seeing the government being a dominant influence in the legislative process that leads to the enactment of an Act of Parliament and that it also has extensive power to make delegated legislation.

Who or What is the Legislature?

·        Government:

Ø  Ministers and civil servants develop policy initiatives.

Ø  Government lawyers draft bills.

Ø  Ministers introduce bills to the Parliament and steer them through both Houses, suggesting amendments along the way.

Ø  Secretary of State often decides when a statute should come into force.

·        The Queen:

Ø  Some bills require Queen’s consent to even progress through the Parliament. Here the Crown’s prerogative is usually involved and the Queen acts on the advice of ministers.

Ø  All the bills require Royal assent in order to become an Act of Parliament. This makes the legislature the Queen in Parliament, but the political reality is that Parliament is the effective law making body.

Policy Making:

According to S. James, a policy can be defined as a course of action deliberately taken by the government. Government policy is an authoritative determination by ministers and civil servants of what will be done about something. The government comes up with its own set of ideas and values and policies are the practical plans through which these ideas and values are brought into practice. James suggests that there are six stages through which a policy passes and develops:

Ø  A subject becomes an issue.

Ø  The issue gets onto the political agenda.

Ø  The government investigates an issue.

Ø  The government takes a decision.

Ø  There follow the stages of legislation and legitimization.

Ø  The final stage is that of policy implementation and review.

Consultation is a major aspect of the policy making process. Over the passage of time the government has adopted various consultation practices. Typically, at first a Green Paper, invented by the Labour government in 1967, is published which outlines the government’s initial views over a proposed policy or sets out various policy options. Then a White Paper follows, in which the government lays down its policy plans on a given topic more firmly and clearly. Then sometime later a bill would be introduced into the Parliament.

These consultation papers can be published either informally on the relevant government department’s website or formally in the form of Command Papers. Command Papers are Parliamentary papers which are introduced by the minister and there is a presumption that any Paper which will cause a statement to be made by the minister or lead to a debate in Parliament should be published as a Command Paper.

In 2000, the government published a code on consultation for the first time. Although the code says it has no legal force but attempts have been made in various judicial review cases, to challenge the lawfulness of consultation exercises on the basis that the code has not been followed properly. In R (on the application of Bhatt Murphy) v. The Independent Assessor, a firm of solicitors argued that the code had created a legitimate expectation that there would be consultation by the government according to the code when it wanted to change the way in which victims of miscarriages of justice were compensated. The Court of appeal agreed with the ruling of the trial judge and quoted his ruling with approval.

Drafting Bills:

In UK there is a centralized system of drafting bills. They are made by the government lawyers or parliamentary counsel on the instructions of the relevant government departments. A drafting style has been introduced in UK which is reflected by a more detailed and precise legislation as compared to the simple and short legislation of civil law jurisdictions. The problem with such Acts of Parliament is that they are usually not understandable to non lawyers and this is because of a variety of reasons. Firstly, the statute may seek to give effect to a policy which is itself complex; secondly the rule of law states that the law has to be certain and when it is so, it goes hand in hand with complexity; thirdly the problem may arise from the desire to control and restrict discretion in the implementation of policy.

If such bills are not understandable by the Parliament, they would not be later able to scrutinize the government’s policy proposals effectively. To overcome this problem, since 1999 all bills have been accompanied by explanatory notes drafted by lawyers in the departments sponsoring the bill. Dicey argues that little discretion should be given to the ministers and thus the powers in the bills should be particularly spelled out. Some commentators argue that the present detailed legislation ensures certainty while some call for less detailed legislation by adopting the practices used in continental law making to improve efficiency.

The Parliament usually sets out the broad framework leaving the rest of the details to be filled via delegated legislation. One example of this was S96 of the Policing and Criminal Act 2010 which aimed at varying PACE 1984 giving the Home Secretary wide powers to make delegated legislation in the area of retaining DNA material after an acquittal or discontinuance of prosecution. The House of Lords Constitution Committee was critical of this stating that after the ECtHR’s decision in Marper v. UK raised controversial issues which should be dealt via primary legislation to enable Parliament to scrutinize them. This criticism however did not prevent the government from using framework bills. Similarly, the Public Bodies Act 2011 aimed at reducing public expenditure through reducing the number of public bodies dramatically. The House of Lords was critical of the Bill as they thought that such an area should not be left for delegated legislation as it strikes at the heart of the UK constitutional system. The disadvantage of such skeleton style bills is that they confer too much unsupervised discretion on government.

Pre-Legislative Scrutiny of Draft Bills:

A recent development is that the government now publishes a draft of the bill, in the form of Command Papers, some months or even years earlier before it is formally introduced in the Parliament. The 1997 Report of the House of Commons Modernization Committee outlines the advantages of pre legislative scrutiny i.e. it provides the chance to the House as a whole including backbenchers and opposition to have a real input into the form of actual legislation which subsequently emerges; such scrutiny at an earlier stage speeds up the legislative process; and leads to better legislation which does not have to be amended repeatedly.

Parliamentary year:

Under the Fixed Term Parliament Act 2011, it is expected that the Parliament will have 5 sessions each year, beginning and ending in spring. The government in recent years has adopted the practice of publishing a draft legislative programme in which it outlines the main bills that it expects to introduce to the Parliament.

Parliamentary Stages of a Bill:

The UK legislature is a legitimate or a reactive legislature, where debates and discussions are carried out regarding the government’s decisions. The government plays the governing role in the state, as it initiates policy, formulates it on legislation and exercises its authority derived from statute or royal prerogative. The government however is not the sole input of business for the Parliament, as much of it is also originated by the opposition and the backbenchers. The Parliament is thus a recipient of wide range of proposals from the government on one side and the outside world or public at the other.

The basic rule is that all the bills have to pass through the parliamentary stages in order to become law. They can be introduced in either of the Houses with the exception of money bills always starting in the Commons.

1.     First Reading:

It is a formality stage which announces that the bill would be published and starts its passage through the House. Bills are accompanied by explanatory notes which explain what a bill is designed to achieve in non technical language. These notes are not endorsed by the Parliament.

2.     Second reading:

This stage takes place typically in two to four weeks after the First reading, and gives an opportunity to MPs and peers to debate the aims in the bill. Such debates are recorded in the official document called Hansard.

3.     Committee Stage:

This starts two weeks later, and is the most important stage as detailed consideration and drafting of the bill occurs. Committee stage takes place in both Houses of Parliament. In the Commons, a public bill committee is usually set up to examine the bill, with the power to make amendments provided they are relevant to the bill's subject matter. Amendments and new clauses may be moved by the minister from the government department introducing the bill, the opposition spokespersons, or by any member of the committee.

Since January 2007, when public bill committees replaced standing committees, parliamentarians have also been able to receive written evidence and call witnesses to testify on the detail of legislation they are examining. Committee stage can also take place on the floor of the Commons - in a committee of the whole House. This means that any member can contribute to the debate, and not just members of the public bill committee.

In the Lords, committee stage usually takes place in a committee of the whole House or in Grand Committee in the Moses Room, a large room away from the main Chamber, and rarely to other types of committee. In both Houses, a bill goes to report stage after committee stage.

4.     Report Stage:

Further amendments, and changes to amendments made at Committee Stage, may be made at this time. All members may speak and vote at Report Stage - unlike the usual procedure at Committee Stage, when only members on the Public Bill Committee can take part.

5.     Third Reading:

Substantive amendments cannot be made at this stage. Except for bills of major political or constitutional importance, third reading is usually very short. After third reading in the Commons a bill is sent to the House of Lords for its Lords stages, usually on the same day or the next day the Lords is sitting.

6.     Ping Pong:

Once the bill has been through both Houses, agreements need to be reached on the final text that will be presented for royal assent. Where there is a disagreement, a ping pong process will arise with proposed amendments and counter amendments shuttling back and forth, until both Houses are willing to consent to it.

7.     Royal Assent:

It is the final stage of the legislative process where the queen assents to the bill. This grant is a prerogative power of the queen though by constitutional convention, it is always granted.

8.     Printing and Publication:

The new Act of Parliament must be officially printed and published in three forms- a Queen’s Printer Version on paper; on www.legislation.gov.uk website; and printed on vellum parchment to which the courts have access when doubts about the authenticity or text of a statute arise.

Bills of Constitutional Importance:

As the Parliament usually has a majority of the governing party, it is the government which controls the Parliament rather than the other way around. There have to be checks on this awful lot of power and according to Robert Hazell, bills of first class constitutional importance have their second reading stage in the chamber of the House of Commons rather than in a public bill committee. The advantage is that more MPs would be involved if the stage takes place at the floor of the Commons. However the problem is that there is a lack of Parliamentary time and therefore a limited number of amendments can be debated.

The scrutiny of such bills can be improved by checklists or scrutiny standards. They may be concerned with substantive, procedural or informational matters. Substantive matters include compliance with EU law or human rights; procedural matters include consultation with various public bodies and compliance with Cabinet processes; while informational matters include the government’s explanations and views of the objectives of the bill and its compliance with ECHR and other international standards.

The House of Lords Constitutional Committee in 2011 proposed that a minister introducing such a bill should make a detailed statement explaining the impact of the proposal upon the existing constitutional arrangements; what public engagement had taken place; and how the bill was scrutinized within the government.

Bringing legislation into force:

Once the act has been passed y the Parliament and received royal assent, it has to be brought into force. Usually it contains a commencement provision but some acts are complex. For instance, the Home Secretary had refused to bring into force some sections of the Criminal Justice Act 1988 related to the Criminal Injuries Compensation Scheme and stated that the government would instruct the Board to make future payments according to a tariff system set by the Home Office. The House of Lords ruled in R v. Secretary of State for the Home Department Exparte Fire Brigades Union 1995 that the Home Secretary had acted unlawfully as he could not ever makes rules contrary to the will of the Parliament expressed in the Act.

Post Legislative Scrutiny:

The Law Commission of England and Wales recommended post legislative scrutiny which was introduced by the government in 2008. Its purpose is to review the legislation to see whether the intended policy’s objectives have been met by the legislation or not, and if yes, then how effectively.

Legislative Functions after Devolution:

The Scottish Parliament, the Northern Ireland Assembly and the National Assembly of Wales have power to enact primary legislation within the terms of the Scotland Act, Northern Ireland Act and Government of Wales Act respectively. Devolution has impacts for the UK Parliament. The UK Parliament continued to pass legislation for devolved matters in Scotland. Another problem is the role of the UK Parliament as the legislature for bills that only apply to England. A solution would be to create a separate English Parliament or that only the MPs from the constituencies of England can vote on bills applied only to England. This however would undermine the UK, in the Parliament of which all MPs should be free to vote equally on any issue.

In conclusion, given that approximately 70% of legislation initiated by governments is not voted on when it comes to the second readings of Bills, it can be said with confidence that the Government is the dominant player when it comes to getting legislation passed. Bills are discussed, on average, for 7½ hours, but this allocation is not equally distributed between or within Acts. During the Commons processes, much legislation is therefore passed with little or no scrutiny. Also, due to strong party affiliation within the UK system of government, many controversial Bills can be forced through all of their parliamentary stages. One such Bill was the Criminal Justice and Public Order Bill, which was opposed almost unanimously by the Opposition. Because of the government majority, however, the Bill survived, its original content practically unscathed, to become an Act.

This has led to concerns that the Commons is being used as a rubber stamp by governments with large majorities and that backbenchers are becoming increasingly irrelevant when faced with a strong and dominant executive.

Many commentators have been calling for greater scrutiny of legislation. There have been suggestions that the role of the Committee could be expanded. For instance, perhaps a Hybrid Committee could be created from the current Standing and Select Committees. Ministers could be summoned to appear before such a Committee to account for certain provisions that are either absent from or included in the proposed legislation, and to explain the reasoning behind them.

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UK CONSTITUTION (LECTURE 6): RULE OF LAW

 

RULE OF LAW

Rule of law is a challenging and fundamental aspect of law in all states. It lays down the basic principle of the Constitution, which simply means that those with power or even with no power come under the law. Governmental powers can be controlled through law.

It can be interpreted in two ways, Political or philosophical. But its meaning is not precise. According to D M Walker, The Oxford Companion to Law- It is a concept of utmost importance but has no defined, nor readily definable content. Rule of law is subjective and has more than one definition. It may mean different things to different people at different times. This means that this concept is subjective and has more than one definition. Rule of law can be traced back to time of Socrates, Cicero, Plato & Aristotle (philosophical view). For liberalists it means freedom for all under the law while for Marxists theorists like EP Thomson it means law represents interests of the powerful (political view)

Section 1 of the Constitutional Reform Act 2005 states:

 

This Act does not adversely affect – (a) the existing constitutional principle of the rule of law, or (b) the Lord Chancellor’s existing constitutional role in relation to that principle. Even this section does not define what rule of law exactly is. For many theorists the definition is that any executive, public official or any person with authority may exercise its powers only if authorized by law. That law should not only legitimize use of power but also protect rights of the people.

Rule of law may be defined in two ways:

Narrow Interpretation or the liberal interpretation.

The narrow interpretation is that any executive, public official or any person with authority may exercise its powers only if authorized by law. That law is only regulator of an individual’s behavior. This way this definition is perfect for totalitarian (where the State has total authority over private & public life) or impoverished states where the state has to only maintain law and order and citizens have to follow that law order to comply with rule of law. (Note: this means that may the law be good or bad they will have to comply with it). The western liberal societies have sought to the ‘greater content’ in order to interpret rule of law. That rule of law does not regulate law, but also where citizens enjoy protection from tyranny and abuse of the ne in power. So, in western philosophy or political view of rule of law, government under law does not necessarily mean government according to law.

Now regarding greater content there is divergence in views as some theorists view that there should be minimum standards on how law is to be expressed and administered. (that there should be some rules you comply with when you make laws. Some things that should always be present in that law that you make). The focus here is that ‘such procedures’ should be made which ensure that rights of people should be also protected as well as legitimizing of use of power. One approach to this view is of Joseph Raz, who has proposed 8 points on how laws should be expressed and administered for ensuring rule of law:

1.     Laws should be general, open, clear;

2.     Law should be relatively stable;

3.     Law should be identify the executive law making (delegated legislation);

4.     The independence of judiciary should be guaranteed;

5.     Application of law should accord with rules of natural justice;

6.     Courts should have power of judicial review;

7.     Courts should be easily accessiblel;

8.     Crime agencies should have the discretion to lead away from the usual course of justice if needed.

These are important qualities which are necessary for there to be rule of law and are even found in UK’s Constitutional legal setup. These principles can be found in many cases such as (Merkur Island Shipping Corporation v Laughton) (R v Sussex Justices) (Ridge v Baldwin)

However Raz emphasis is only on the procedural( A body of rules telling manner and form and order in which matters are dealt with and enforced) aspect of law and not on the substantive( the written law which tells rights and obligations of a person) nature of law.

Other western philosophers, like Professor Fuller has gone beyond the requirements of form and procedure and has extended the interpretation to certain liberal rules.

Lord Bingham defined rule of law in 8 sub rules. His discussion has been one of the most influential modern discussions of the rule of law. The sub-rules are as follows.

1. The law must be accessible and, so far as possible, intelligible, clear and predictable.

2. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.

3. The laws of the land should apply equally to all, save to the extent that objective differences require differentiation.

4. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.

5. The law must afford adequate protection of fundamental rights.

6. Means must be provided for resolving, without prohibitive cost or undue delay, bona fide civil disputes which the parties themselves are unable to resolve.

7. Adjudicative procedures provided by the state should be fair.

8. The rule of law requires compliance by the state with its obligations in international law as in national law.

 

For Bingham these are important points as they tell for what we might face a criminal penalty for; for what we can claim our rights and understand our obligations and because successful conduct of trade and commerce depends on accessible rules.

 

In his view a law should have clarity (Merkur Island Shipping Corpn v Laughton), predictability and accessibility

 

According to Professor Fuller, the needs of the people must be fulfilled for a legal system to be worthy. If a government offends this basic requirement it cannot be government according to law.

In UK, the basic meaning of Rule of Law has been given by A V Dicey who proposed 3 fundamental principles of rule of law.

a)               There should be no arbitrary power. The government, executive, public authority shall not exercise their powers unless authorized by some law.

That no man shall be punishable or made to suffer in body or goods except for a distinct breach of law that was established in ordinary legal manner, before the ordinary courts.

This limb can adjust in any governmental system where exercise of powers are arbitrary, discretionary and where a person is punished without breaching and established legal rule in ordinary court. To Dicey this idea was not present in UK’s constitutional tradition and was condemned in (Entrick v Carrington)-> rights of an individual were upheld against the power of the state. A warrant was passed from the secretary of the state to search and seize illegal materials from Entrick’s property. The court said that the warrant has no lawful authority and the officials all had trespassed the plaintiff’s property.

(Malone v UK) The European Court of Human Rights (ECtHR) said that UK violated Article 8 of the Human Rights Act (Right to privacy)

b)               Dicey’s second limb emphasizes that government is also subject to law and every man irrespective of rank, status, a governmental official or ordinary citizen, is subject to the same law and same courts. In eyes of law are equal.

Here Dicey viewed the French system of special laws and special courts as abhorrent as they will always favor state over citizen if there is a conflict between the two.

c)                That the general principles of constitution in UK ( for eg rights of personal liberty, right of public meeting) are result of judicial decisions.

According to Dicey, a citizen’s rights were more protected in UK than in any other State.

Dicey’s view was criticized by Sir Ivor Jennings in The Law and the Constitution, as the principle he presents is only applicable in those societies where such conditions are present for this sort of Rule of Law to apply i.e In western societies only.

Dicey was also criticized for excluding discretionary powers for there to be rule of law whereas discretionary powers are very important for a government to run in order to meet unforeseen emergencies and events, welfare programmes.

Critics also criticized Dicey for comparing other legal systems like French with UK as the conditions present in both Systems are different.

Jennings also stated that public authorities in UK, have wide discretionary powers which allows them to interfere with property, liberty and rights of any citizen without trial before the ordinary courts

Jennings also pointed that administrative law and administrative courts are present in UK although insignificant as compared to France. Robson also criticized Dicey on this point in his book, Justice and Administrative law.

He pointed that in England public authorities had special immunities and exemptions which could easily deprive a citizen off his rights and leave him with no remedy.

In the modern world of today, it is easy to contradict Dicey’s view of equality e.g., the police have powers over and above the citizen. Ministers have powers to enact delegated legislation, crown and diplomats enjoys immunities under the law, MPs have immunity from law of defamation.

Dicey was also caught by critics for underestimating the contribution of statutes to the constitution for the development of certain rights such as sickness benefit, education, right to vote etc. moreover, after the Human Rights Act 1998, rights protected under European Conventions on Human Rights have been incorporated in domestic law. With slight modifications, Dicey’s concept of Rule of Law has influence on government. In regard to the first limb, no person is allowed to act arbitrarily. In many cases the courts have asked officials to show legal authority for interfering with an individual’s rights. (R v Inland Revenue Commissioners). Moreover no person may be deprived off his property unless compensated.

Regarding Dicey’s second preposition, government and officials are accountable for their actions before the ordinary courts. the courts use devices such as natural justice or ultra vires to ensure that executive acts within the law. In (M v Home Office) the House of Lords decided that a government minister was guilty of contempt of court while acting in his official capacity. This proves that no body, not even the executive is above the law. Many jurists like Fredrick von Hayek, The Road to Serfdom, agree with Dicey and even state that Rule of law should also limit the parliament and exclude such legislations that are directed at particular people. For rule of law there is need of representable responsible government and need of such provisions that if a citizen is wronged he has a remedy for it.

John Rawls preposition for rule of law echoed that of Dicey in Theory of Justice. He said that rol is obviously closely related to liberty. The essence of a just legal system is a regular and impartial administration of public rules. Several requirements should be met: rules of law must only command action which is possible, those who enact laws must do so in good faith, like cases must be treated alike. Like Dicey, Rawls also state that there is no offence without a law. For this law should be general and the legal system should respect natural justice.

For Max Weber a free legal system was accompanied by State which limited itself to establishing a clear framework of social order and left individuals to determine their own destinies in a free market system.

It is evident from cases like (Entrick v Carrington) (M v Home Office) courts have protected rule of law. In (A v Secretary of State for the Home Department) the powers of the state to detain non-UK nationals without trial under the Antiterrorism,

 

Crime and Security Act 2001 were considered. This concerned individuals who were considered to be a security threat in the United Kingdom, but could not be deported to their home countries because of the risk that they would face torture there.

The 2001 Act was challenged under the HRA on the grounds of discrimination under Article 14 of the ECHR, because it only applied to non-UK nationals. The House of Lords accepted the right of the government to conclude that the public emergency justified the detention, but ruled that it was applied in a discriminatory manner.

 

As far as role of parliament goes for protection of rule of law The doctrine of parliamentary supremacy gives the ultimate decision over whether or not an Act of Parliament that conflicts with the rule of law should be passed, with the courts having limited powers of constraint.

 

In (Jackson v A-G), Lord Hope stated: It is no longer right to say that [Parliament’s] freedom to legislate admits of no qualification...the rule of law enforced by the courts is the controlling principle upon which our constitution is based.

Conclusion: The R.O.L., in its many guises represents a challenge to the State authority and power, demanding power be granted legitimately and their exercise according to law. The law is not autonomous but rests on the support of those it governs. The law is servant of the sense of rightness in the community and while the rule of law places law above every individual-irrespective of rank and station-it remains subject to the ultimate judgment of the people.

Bibliography