Government Constitution Parliament
August 15, 2015
"In most modern democracies, the government's only powers are those granted to it by a written constitution or by the legislature. A distinguishing feature of the British constitution is the extent to which government continues to exercise a number of powers which were not granted to it by a written constitution, nor by Parliament, but are, rather, ancient prerogatives of the Crown. These powers derive from arrangements which preceded the 1689 Declaration of Rights and have been accumulated by the government without Parliament or the people having a say." (The Governance of Britain, 2007)
Explain this statement and assess how the proposals in the Green Paper, The Governance of Britain (2007), will affect the future exercise of the royal prerogative by ministers.
The constitution of a country is a set of rules that regulate the powers of its government and the rights and duties of its citizens. When a government, a group or an individual act within a country's rules and guidelines, such behaviour is described as ‘constitutional'. Likewise, when anyone's actions are clearly against such a set of rules, such action is described as ‘unconstitutional'.
Britain is one of a handful of nations that does not have a written or codified constitution. Britain's constitutional guidelines are instead said to be unwritten or uncodified. A useful summary of Britain's constitutional position can be outlined as follows:
‘Virtually every country in the world operates its political system within the constraints of a constitution. In most cases…..the constitution of the state is a written document which has been agreed on some particular occasion…..There are, however, a few countries, including the UK, that operate without such a specifically written constitution'.
Britain's ‘uncodified' or ‘unwritten' constitution makes it unusual in global democratic terms. Only a handful of democratic nations, including Israel and New Zealand, have similar constitutional arrangements. Such a constitution is very different from many recently created documents such as the American Constitution, which was established towards the end of the 18th century.
Many nations from the former Soviet Union have established new constitutions since becoming independent following the Soviet break-up in 1991. By contrast, Britain's constitutional development has been far more evolutionary and almost organic:
‘The British constitution grew like a forest, requiring long centuries and fertile earth to flourish and come to maturity. It was not built like a temple, deliberately designed and constructed in a short span of years, as its American equivalent was'.
The British Constitution has evolved over many decades, but the year 1689 is seen as key date in its development. That was when the ‘Glorious Revolution' occurred, featuring a civilised settlement of power between Parliament and the Crown following the overthrow of James II, with key powers being given to the parliamentary chamber.
However, at the time it was not necessarily seen as a democratic development as few people could actually vote, it was more viewed as a control on the monarch in the wake of the English Civil War (1649-60):
‘Seventeenth century England…..(saw) the victory of parliamentary government…..over absolute monarchy- the unfettered rule of a royal despot…..(However) full democracy was only achieved much later, and most of those who won these early victories for parliamentary government were in fact strongly opposed to it'.
Subsequently, due to this slow but steady evolution, far from relying on one single document as is the case with the American version, the British Constitution is based on a series of sources for its sustenance., many of which pre-date 1689. They key source is the central institution of Parliament, which many argue is the cockpit of the British Constitution. All statute law (legislation) which is passed by the British Parliament shapes Britain's constitutional development.
Likewise, case law such as significant judicial rulings is also very influential. The much-debated Hunting Act of 2004 prohibited fox-hunting in England and Wales and has been subsequently endorsed by judicial review. Such a development criminalised a previously legal pastime, and the Government used the Parliament Act to force the legislation through against House of Lords opposition. Such a tactic appeared to symbolise excessive government and ministerial power.
In recent years, EU law has become an increasingly important influence on the UK's constitution, with a high proportion of British laws now originating from Europe and often automatically endorsed by the British Parliament. Other key sources of the British Constitution are authoritative historical documents, such as the definitive guide to Parliament's proceedings by Erskine May or Walter Bagehot's ‘The English Constitution'.
On taking office in June 2007, Gordon Brown promised a new style of governing in an attempt to distance himself from some of the most unpopular features of the Blair Years (1997-2007). Such negative features included a perception of authoritarian and quasi-presidential government, where the Prime Minister appeared to make decisions without taking into account wider public opinion, and at times even the views of Parliament appeared to be ignored. This apparent excess of executive power was linked to the concept of constitutional conventions, a further feature of the British Constitution which gives the government significant powers linked to mere custom and tradition.
The most prominent example cited for Blair's authoritarian style of government was when Parliament voted for Britain to go to war with Iraq in March 2003, despite the fact that there was widespread public hostility to the proposal, dubious legal legitimacy and that 139 MPs from the governing Labour Party voted against such a measure. Only with Conservative support did the motion win parliamentary approval.
Brown promised an end to such centralised tendencies where the government appeared to be promoting policies that were out of step with public opinion:
"We will only meet the new challenges of security, of economic change, of communities under pressure - and forge a stronger shared national purpose - by building a new relationship between citizens and government that ensures the government is a better servant of the people."
Further detail was outlined in the Green Paper, ‘The Governance of Britain', launched in June 2007 to coincide with the start of Gordon Brown's premiership. This consultation document was an apparent acknowledgement by the new Prime Minister of a wider public feeling that some government powers were excessive and required curbing.
Brown even suggested that MPs would always get a genuine say in whether the country went to war or not. This suggestion reflected a common view that the 2003 parliamentary vote on Iraq merely rubber-stamped a decision that had already been taken by Blair and President Bush. Evidence of this includes the following extract from June 2002, almost a year before the war actually began:
‘Tony Blair was pretty clear we had to be with the Americans. He said at one point…. “I actually believe in doing this”'.
Blair's ability to effectively commit the country to war was a legacy of the royal prerogative, a key prime ministerial power inherited from the monarch and one of the most powerful weapons of British government ministers throughout the twentieth century.
This concept refers to the traditional powers of the formerly autocratic monarch, which over the years have been passed to government ministers in line with a more ostensibly democratic culture. Such ‘autocratic' powers are traditionally applied without parliamentary approval and are often used on an ad hoc basis when the need arises.
To many constitutional reformers, such a situation is far from satisfactory and has arguably contributed to the excess of prime ministerial power in recent years. Such a degree of power for government ministers, but particularly the prime minister, has been used extensively and is often described as patronage. Brown's Green Paper promised a reduction in such patronage, a proposal welcomed by the Constitution Unit, an independent think-tank that specialises in constitutional affairs:
‘In several important areas the Green Paper proposes a reduced patronage role for the Prime Minister and other ministers: in judicial, Church of England, and public appointments, and the award of honours'.
Brown has appeared to acknowledge public cynicism in relation to the way governments make appointments. Going forward, he has pledged to play a much reduced role in appointing judges, bishops and peers, all major weapons in the prime minister's armoury of patronage. Brown's promise to make his government “a better servant of the people” appears to be an implicit criticism of his predecessor's style of governing. Conservative Leader David Cameron has made similar commitments should he win power at the next general election.
The Constitution Unit has broadly welcomed Brown's emphasis on diluting prime ministerial power and royal prerogative, but it has been keen to stress that many of the powers proposed for parliament were in fact brand new, and not powers that had necessarily been seized by an over-mighty executive in the past:
‘We welcome many of the proposals in the Green Paper with respect to parliament. These do not ‘restore' power to parliament, as was widely reported in the press, but in many cases give power to parliament which it never previously had. We welcome, in particular, the new war powers, the arrangements for greater parliamentary involvement in treaty making and public appointments, the power of recall, and the annual debates on departmental objectives'.
Gordon Brown appears to have accepted that there has been a constitutional dislocation in the way Britain has been governed in recent years. The key test of his constitutional pledges as outlined in ‘The Governance of Britain' will be seen in whether he delivers actions that correlate with his bold, reforming words. Ultimately, the principal challenge will be how future British governments apply the somewhat vague workings of the constitution in a more accountable way. Brown has indicated that the powerful tool of royal prerogative in particular will be significantly curtailed, but asking government ministers to actively sacrifice a mighty power could be difficult to achieve in constitutional practice.
G.E Aylmer, ‘The Struggle for the Constitution' (1965)
Alastair Campbell, ‘The Blair Years' (2007)
Robert Hazell, ‘Constitution Unit response to The Governance of Britain'
Peter Hitchens, ‘The Abolition of Britain', (1999)
Neil McNaughton, ‘Government & Politics for A Level', (2nd ed., 2007)
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