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Published: Fri, 02 Feb 2018
‘Although in theory Parliament is sovereign, the problematic reality is that British constitutional arrangements ensure that true power lies with the Executive’
The theory of Parliamentary Sovereignty is, on the surface, a simple theory. It states that Parliament is the highest source of authority and therefore that Acts of Parliament are the highest form of law. Parliament may enact any law it wishes, indeed, Sir Ivor Jennings was quoted as saying ‘Parliament can legally turn a man into a woman’1.
However, in reality the British constitution places a majority of its power in the hands of the government (the executive). The doctrine of the separation of powers describes how the power within the British system is arranged. It states that there are three main bodies within a constitution: the legislature (the law making body), the executive (the government) and the judiciary (the courts and judges). The doctrine continues by saying that these three bodies must remain separate, so that the power granted to them cannot be abused, and also, so it may be possible for the bodies to scrutinise each other. Without ‘a system of checks and balances’2 the scope for abuse of power is great. Thomas Paine remarked in one of his most acclaimed pieces of work ‘Rights of Man’ that ‘Government without a constitution is power without a right’3. This was a reference to how a government that is in control of both the legislature and the judiciary can effectively do as it pleases; as has been the case in totalitarian states such as Nazi Germany.
The doctrine can be traced back as far as Aristotle; however it was not until the 17th and 18th centuries that the idea was truly developed. Influential writers such as John Locke4, Montesquieu5 and Thomas Paine6 all wrote about the separation of powers in many of their constitutional works.
The doctrine of the separation of powers however is a theoretical ideal only; in a modern state it is highly impractical for the three bodies to be completely separate, as this can often lead to legislative deadlock between the executive and the legislature. A good example of this is the system employed in The United States of America. The executive (the president) and the legislature (congress) are both elected separately, and for example, this can lead to a democrat President in The White House and a mainly Republican congress, this of course then leads to clashes between the two parties. However, the American system also makes it possible to have an executive and legislature controlled by one main party, leading to excessive power and a state representing more characteristics of a dictatorship than a democracy. It seems with the American system there is no middle ground, as there will either be conflict between the executive and legislature, or dominance by both.
The British position is however somewhat different. The British separation of powers can be described as a ‘fusion… of powers’7, mainly in relation to the work, running and composition of the executive and legislature. This is not to say that the judiciary enjoys a complete separation from the other branches, however it does have a considerable amount more freedom than the executive and legislature.
The reasoning behind this ‘fusion’ between the government and Parliament is mainly due to three factors; Constitutional conventions, the electoral system and the party system. Constitutional conventions state that a member of the current government must also hold a position in either the House of Lords, or in the Commons. From the onset an immediate problem arises, as quoted appropriately by Hilaire Barnett ‘it is thus immediately apparent that the executive, far from being separated from the legislature, is drawn from within its ranks’8. This convention coupled with the electoral and party systems can lead to executive dominance over the legislature. For example, if a general election were held and the vote returned as a landslide victory for one of the main political parties, then the executive would be able to command a large majority of the Commoms, and would in effect be able to pass any legislation it so wishes; also by use of the Parliament Acts9 they could by-pass the House of Lords when creating this legislation. This situation did in fact occur in the Labour party victory under Tony Blair in 1997. In this landmark election, Labour gained ‘a formidable 419 seats’10 which put them in a very powerful position in terms of both the legislature and the executive.
Another area in which the separation of powers has become convoluted is regarding delegated legislation. Delegated (or secondary) legislation is powers conferred within an Act which allows the executive to legislate on behalf of Parliament. The results are called statutory instruments. At first instance the idea of delegated legislation is entirely practical, by giving power to the executive to legislate on matters which may not be of great importance, it frees up an otherwise busy Parliamentary schedule to allow debate on matters of higher importance. However, delegated legislation has been seen by many to be another example of perhaps too much fusion, ‘a triumph of bureaucracy over the constitution’11. Delegated legislation presents another area of the British constitution where it is apparent that there is some degree of executive dominance. To allow the sovereign powers granted to Parliament to legislate, to be then diluted down and granted upon the executive would require a substantial amount of scrutiny by the Legislature to make sure that no abuse of these powers takes place. Constitutionally speaking delegated legislation is a clear abuse of the separation of powers as it is the government using a power traditionally granted to Parliament. However in modern society and considering how busy the Parliamentary timetable can be, it may prove that delegated legislation (while a clear breach of the doctrine) is in fact unavoidable, and in some instances, a relief imposed upon parliament.
There are however two further areas of delegated legislation which do raise important questions relating to Parliamentary sovereignty and the separation of powers. These are ‘Henry VIII clauses’12 and ‘Orders in Council’13. Henry VIII clauses allow minsters and civil servants to amend primary legislation when it affects areas of higher importance; such a clause exists in section 10(3) of The Human Rights Act 199814. To allow ministers the power to amend primary legislation goes a significant step further than delegated legislation, as it is encroaching on the primary role and last remaining bastion of true Parliamentary power, primary legislation. The situation is similar with Orders in Council. Orders in Council are matters of constitutional or significant public importance and once drafted are referred to the Privy Council and sovereign for ratification, for instance an Order in Council will be the process used when making a decision on whether to go to war.
As can be seen, there are many areas of the British Constitution where is it apparent that the true power does not rest in the hands of a sovereign Parliament, but rather an executive which is drawn from within it. Therefore there must be sufficient scrutiny from the legislature over the executive to monitor the use of their power. However, as the problematic reality is that the true power lies within the executive, the equally problematic reality is that Parliamentary scrutiny does not (in some cases) do enough to adequately control the executive. ‘The executive reigns supreme and has minimum trouble from the legislature’
There are three main problem areas regarding Parliamentary scrutiny of the executive. There is the question raised over the effectiveness of the convention of ministerial responsibility. Secondly, whether there is adequate constitutional accountability for actions of ministers. And thirdly there are the equally ineffective scrutiny mechanisms of Question time and Select Committees.
The first problem area to evaluate is that the constitutional convention of ministerial responsibility. It can be broken down into two component parts, Individual ministerial responsibility and collective responsibility. Collective responsibility is the ideal that all Cabinet members are responsible for Cabinet decisions and implementation of those decisions. The main objective of this is to present a unified front to the electorate and Parliament. A government which is shown to disagree with each other will be regarded as weak and will be open to criticism, attack and possibly rebellion. Any minister wishing to show dissent must do so by resigning from office.
This was the case in 2003 when Robin Cook resigned from his position as leader of the House of Commons over the Iraq war; he cited reasons that he could not accept collective responsibility for a war ‘without international agreement or domestic support’16. He was then followed (significantly later) by the resignation of Clare Short from the Labour party in 2006, also concerning issues over Iraq17. The fact still remains however that 7 years after the Cook resignation, British soldiers have of course only just left Iraq, and with our forces still in heavy active service in the middle east, it would be fair to say that both the resignations seemed to have had little (if any) impact on the decision to go to war or indeed to continue the conflict.
The second part of ministerial responsibility is that of individual responsibility. This convention states that a minister is responsible for the work carried out by his/her department and will accept responsibility for any mistake or misdemeanour coming as a result of this work. This acceptance of failure usually precedes a call for resignation; however, there are many cases where ministers have refused to give up office citing that they have special exemptions. There are two main examples of a minister refusing to resign his post after a departmental failure; these were Mr James Prior in 1984 and Mr Michael Howard in 1994. Mr Prior’s resignation was called for after mistakes in procedure lead to several terrorist break outs from the Maze Prison. Mr Prior thus made an exception of himself by saying that he would not resign for a ‘failure in procedure as the convention usually applied to failures of policy’18. A similar line was taken by Mr Howard in 1994 when there were breakouts from Whitemore Prison19. It may be said that in modern politics, the changes in departmental size now make it virtually impossible for a minister to monitor every action that his department takes, and that maybe small mistakes can be ‘hyped up’ by the media when in reality they should be accepted (if not condoned). However mistakes on a large scale (such as those of Mr Prior and Mr Howard) seem to make a mockery of the convention of responsibility. They have proven that by finding a loophole or pleading for party support, they can avoid losing their position. Professor SE Finer wrote in his work ‘the individual responsibility of ministers’ that “for a resignation to occur all three factors must be just so: the minister compliant, the Prime minister firm, the party clamourous. This conjuncture is rare”20. As Finer rightly points out, it must be a collective decision for a resignation to occur and if a politician has been loyal to his party, he is usually rewarded by not losing his job; either by weak disapproval of his actions or a ‘timely re-shuffle’21 of the Cabinet. What in effect has happened through these refusals to resign is that a precedent has been set. This precedent has made it clear that the convention set in place to keep ministers responsible to Parliament and the electorate, can in fact be avoided through careful wording or strong party alliances, thus making the convention seemingly worthless.
Two other areas which show a similar failure of Parliamentary scrutiny are Question time and Select Committees. These are two methods that again in theory should provide for excellent scrutiny of the executive, while the reality is somewhat different. Question Time is time set apart in the Parliamentary timetable for members of Parliament to table questions to ministers either for a written or oral response. The main idea of this procedure is to make the executive directly answerable to Parliament, and by asking ministers questions in person, it forces them to think on their feet and sometimes information can be gained that would not otherwise have been had it been a planned response. On the other hand, certain questions (and mainly the important ones) can be predicted, and an appropriate response can be formulated before hand, thus limiting the surprise element of Question Time. Prime Ministers Question Time is 30 minutes on a Wednesday22, and is a tangible example of politics at work. The Leader of the Opposition gets the chance to personally question the Prime Minister and for observers of constitutional law it is a chance to see the Prime Minister truly tested. Conversely, people have often commented on the real merit of Prime Ministers question time, with some branding it as ‘mere theatre’23 rather than qualitative scrutiny. The reality is that a charismatically talented minister can talk his way around a question, or otherwise defer it on the grounds that he is not permitted to answer it.
Through the use of media outlets such as television and the internet, it may be said that ‘the arena of British political debate…is now the broadcasting studio rather than the chamber of the House of Commons’.24
Departmental select committees are regarded by Parliament to be a useful tool for keeping the executive in check. The system of departmental select committees owes its existence to Mr St John-Stevas, who pushed for their introduction in 197925. The work and success of select committees has been mixed and this is mainly due to their position within the legal community. The general purpose of a select committee is to investigate the department it is attached to; in order to do this it must have the full co-operation of ministers and civil servants within that department. There is however no legal or formal requirement for the government to co-operate with the select committees, and this has lead to limited success in some circumstances.
The Westland affair in 1986 raised serious questions as to the effectiveness of select committees. During the inquiry the government refused to allow key figures to appear before the select committees to answer questions stating that it would have ‘major implications for the conduct of government and for relations between ministers and their civil servants’26.
Also, the removal of Nicholas Winterton as chairman of the Health select committee27 and the method by which this was achieved raised doubt over the power of select committees, It seemed that governments would only put up with select committees as long as they were not ‘a constant thorn in the executive’s side’28
The success of select committees can be measured by many factors. The amount of media or public attention to an inquiry will usually be a determining factor in how successful the result will be. A government which fails to provide evidence in a highly publicised inquiry is likely to attract suspicion and subsequent bad press.
The extent to which a government co-operates also plays a large part in how successful an inquiry will be. It is in this factor that the main draw-back with select committees can be seen. Due to the lack of a legal requirement for a government to co-operate with a select committee, it is the executive (rather than the committee) which decides whether or not to attend. There must surely then be doubts over a control mechanism in which the government has the choice of whether or not to partake.
The third factor to consider is the extent to which the executive will make time to allow a committee report to be debated on the floor of the House. The findings of a report may seem meaningless if there is scarce time allowed for the body which commissioned it (i.e. Parliament) to then discuss the findings.
As has been shown, the British constitutional arrangements have over time allowed the executive to take a strangle-hold on the Political stage. There are in place methods of Parliamentary scrutiny, however, many of these methods contain the requirement that the executive will submit to them, and regrettably this is not often the case. The problematic reality still remains that the executive can command a larger power than our own sovereign Parliament. Calling into question the notion of whether Parliamentary sovereignty is still valid in the modern day British constitution.
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