. 11
( 155 .)


interest of immediate political ends or administrative convenience.
Profound changes in society and politics in the past century created stresses
in Britain™s historical constitution, but a lack of consensus, together with o¬cial
inertia or satisfaction with the status quo, for long inhibited thoroughgoing
constitutional reform. The response to revealed defects was to adjust or tinker
with the constitutional mechanism, sometimes without due deliberation or
debate, rather than to redesign the system. Towards the close of the twentieth
century questions were increasingly raised about the suitability of the constitu-
tion to the political realities of the post-industrial, multi-racial, multi-party,
relatively non-deferential and egalitarian (if still unequal) society which Britain
had become. We ¬nd Samuel Beer observing that ˜the new stress on participant
attitudes and behaviour collides with values anciently embedded in the politi-
cal system™ (Britain Against Itself (1982), p 112). Constitutional rules which had
seemed deeply rooted were coming under critical scrutiny “ for example, the
electoral system, rules for maintaining governmental secrecy, and the law and
conventions which regulate the working of Parliament. Government was seen
to be over-centralised and insu¬ciently controlled. In response to such criti-
cisms and dissatisfactions the Blair Government, taking o¬ce in 1997, launched
an ambitious “ but not comprehensive “ project of constitutional reform, which
we consider in the ¬nal section of this chapter. The still uncompleted reform
project has given a renewed impetus to constitutional debate and it is timely for
us to ask, what in the British constitution has outlived its usefulness, what needs
reform, and what expresses fundamental values that it is important to maintain
and strengthen?

(a) Fundamentals and fluidity
It may be expected that Parliament, the government and the courts should have
a particular concern for rules that re¬‚ect fundamental values, upholding them
against prejudice or transient passions and departing from them only on the
strength of open and principled argument.
Unfortunately this expectation is sometimes disappointed. The abrogation
by Parliament of long-established rules that may be deemed fundamental is not
7 The British constitutional order

always supported by full investigation or convincing justi¬cation. This criticism
has been made, for instance, of the abolition by the Criminal Justice Act 1988
of the defendant™s right of peremptory challenge of jurors (see Gobert [1989]
Crim LR 528) and also of the abolition by the Criminal Justice and Public Order
Act 1994 of an accused person™s ˜right of silence™, which had ˜stood out as one
of the proudest boasts of Britain™s commitment to civil liberties™ (Geo¬rey
Robertson, Freedom, the Individual and the Law (7th edn 1993), p 32; see further
Birch [1999] Crim LR 769). Proposed legislation to restrict the right to trial by
jury “ regarded by Lord Denning as ˜the bulwark of our liberties™ (Ward v James
[1966] 1 QB 273, 295) “ attracted similar criticism, and the Government was
compelled to make signi¬cant concessions to overcome opposition in the
House of Lords and secure the enactment of the Criminal Justice Act 2003.
By the Anti-terrorism, Crime and Security Act 2001 Parliament authorised
the inde¬nite detention without trial of non-British nationals who were sus-
pected of being international terrorists. To forestall challenges to the adoption
of this power, the Government derogated from Article 5(1) of the European
Convention on Human Rights (the right to liberty and security of person).
Derogation is allowed by the Convention (Article 15) if strictly necessary in the
event of a ˜public emergency threatening the life of the nation™. In A v Secretary
of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68, it was held
by the House of Lords that the Government™s derogation on this ground went
beyond what was strictly necessary and was unlawful. It was further held that
section 23 of the Act, the provision for detention, was incompatible with Article
5(1) of the Convention. The case resulted in Parliament relegislating, replacing
the scheme of inde¬nite detention without trial with a system of ˜control
orders™, themselves deeply controversial from a human rights point of view
(see the Prevention of Terrorism Act 2005). (These matters are more fully con-
sidered in chapters 5 and 11.)
Judicial decisions, too, may undo what had been thought fundamental. Here
follows an example of judicial subversion of a fundamental rule “ although
happily it was only a temporary aberration, and after a time the rule was restored.
The writ of habeas corpus (meaning, ˜thou shall have the body brought into
court™), for securing a judicial inquiry into the legality of a person™s detention,
has its origin in early common law and a series of Habeas Corpus Acts. Section
3 of the Act of 1816 provides that when a writ of habeas corpus has been issued,
and the custodian of the person detained has made a return to the writ, showing
cause for the detention, the court may ˜examine into the truth of the facts set
forth in such return™. The e¬cacy of the writ of habeas corpus will often depend
in practice on the onus of proof, and the courts established the rule (surely
implicit in section 3 of the Habeas Corpus Act 1816) that the custodian must
prove, to the satisfaction of the court, the circumstances alleged to justify the
detention. This rule, in assuring e¬ective protection of the right of the
individual to personal freedom, certainly has the appearance of ˜something
fundamental™: it is not con¬ned to habeas corpus proceedings and was
8 British Government and the Constitution

expressed as follows by Lord Atkin in Eshugbayi Eleko v Government of Nigeria
[1931] AC 662, 670:

In accordance with British jurisprudence no member of the executive can interfere with
the liberty or property of a British subject except on the condition that he can support the
legality of his action before a court of justice.

However in a number of cases arising under the Immigration Act 1971 the courts
reversed the rule as to onus of proof in habeas corpus proceedings, holding
that the onus was on the applicant to establish that his or her detention was
unlawful. It was further held that this onus could be discharged only by showing
that the immigration authority “ immigration o¬cer or Secretary of State “ had
no reasonable grounds for reaching the conclusions on which the detention was
based. (See in particular R v Secretary of State for the Home Department,
ex p Choudhary [1978] 1 WLR 1177; Zamir v Secretary of State for the Home
Department [1980] AC 930.) The e¬ect of these rulings upon the administration
of immigration law was, as Templeman LJ observed in R v Secretary of State for
the Home Department, ex p Akhtar [1981] QB 46, 52, to deny ˜the e¬ective
recourse of an individual to the courts which administer justice in this country™.
Must we not say of this judicial deviation, in which the courts overturned the rule
of the Habeas Corpus Act and robbed the individual of an e¬ective remedy for
unlawful detention, that it violated fundamental constitutional principle? In
Khawaja v Secretary of State for the Home Department [1984] AC 74, the House
of Lords restored the true principle, holding that the burden of proof rested on
the custodian, and that the issue was not whether there were reasonable grounds
for the decision to detain, but whether the detention could be justi¬ed in law. (See
further Newdick [1982] PL 89, [1983] PL 213.)

(b) Constitutional safeguards
To whom are we to look for the defence of what is fundamental in the
constitution “ for the preservation of ˜constitutionalism™? In the ¬rst place, the
courts have a cardinal role to play in upholding fundamental principle, although,
as we have seen, they have themselves a power to reinterpret or displace consti-
tutional rules, which itself calls for vigilance: quis custodiet ipsos custodes? (who
will guard the guardians?). We rely upon the courts to maintain fundamental
legal rules against excessive zeal or malpractice of administrators and others who
exercise public power, but their role as constitutional guardians is necessarily
limited. They are restricted, as regards legislation, by the doctrine of parliamen-
tary sovereignty (see chapter 2); and they work within a tradition (itself resting
on a fundamental idea of the constitution) of judicial restraint, for they are, after
all, unelected, largely unaccountable, and not especially quali¬ed to resolve issues
of political judgement and policy. In recent years the courts have, however, found
a new boldness in developing the principles of judicial review, and an eminent
9 The British constitutional order

constitutional lawyer declares that they have brought about a ˜renaissance of
administrative law™ in asserting their power to control public authorities (Sir
William Wade, Constitutional Fundamentals (rev edn 1989), ch 5). The balance
between a proper judicial restraint and a legitimate judicial activism remains
a critical feature of the constitution. (See further chapters 10 and 11.)
Secondly, we depend on the political actors themselves to observe the ˜rules
of the game™: ministers, civil servants and parliamentarians operate in a frame-
work of generally well-understood procedures which are designed to make the
governmental machine work, not merely e¬ciently but with respect for funda-
mentals. A veteran parliamentarian showed an awareness of this in remarking,
˜We have no constitution in this country: we have only procedure “ hence its
importance™ (Mr St John-Stevas, HC Deb vol 991, col 721, 30 October 1980).
Procedures, it is true, may not hold up in a time of crisis. Admitting this,
JW Gough nevertheless asked whether, in ˜a time of crisis or of embittered
emotions™, we should be ˜any safer with laws, even with fundamental laws and
a written constitution™ (Fundamental Law in English Constitutional History
(1955), p 212). The observance of procedures is checked in certain respects by
parliamentary select committees “ such as the Public Accounts Committee and
the Select Committee on Standards and Privileges “ and by the Comptroller and
Auditor General, the Committee on Standards in Public Life, the Parliamentary
Ombudsman and the Commissioner for Public Appointments. (See further
chapter 9.)
Thirdly, and in the last resort, we depend on the force of public opinion,
pronounced in the general verdicts of elections and expressed in more speci¬c
ways through the media, political parties and private interest groups and organ-
isations of many kinds. A valuable role is performed by those organisations,
such as Liberty (the National Council for Civil Liberties), that exist for the
purpose of defending individual rights. (See further chapter 8.)

2 The constitution and the state
Constitutionalism is not necessarily assured by a democratic governmental
system with a supportive political culture: there must also be an appropriate and
e¬ective institutional structure. This is underlined by Daniel Franklin and
Michael Baun (Political Culture and Constitutionalism: A Comparative Approach
(1995), p 222):

Even where a strong cultural consensus in favour of constitutionalism exists . . . the problem
of institutional design “ in the sense of creating governmental institutions that are both work-
able and legitimate “ remains. Political culture, it appears, is a necessary, but not a sufficient,
condition for democratic constitutionalism.

The institutional structure may seem to rest upon the idea of the state, for
de¬nitions of the constitution often focus on the concept of the state and
10 British Government and the Constitution

its organs. For example, Hood Phillips and Jackson™s Constitutional and
Administrative Law (8th edn 2001), p 5, de¬nes a constitution as:

the system of laws, customs and conventions which define the composition and powers of
organs of the state, and regulate the relations of the various state organs to one another and
to the private citizen.

Regarded from the perspective of international law the United Kingdom is
undoubtedly a state, but our constitutional system has been constructed largely
without the use of the concept of the state. In Britain there is no legal entity
called ˜the state™ in which powers are vested or to which allegiance or other
duties are owed. The non-admission of the idea of the state helps to explain the
tardy and partial development, in Britain, of a system of public law. As Kenneth
Dyson remarks (The State Tradition in Western Europe (1980), p 117), there was
˜no conception of the state to which principles and rules could be attributed™,
and ordinary private law occupied much of the ¬eld in which relations between
public o¬cers and private citizens were conducted (among many examples, see
Entick v Carrington (1765) 19 St Tr 1029 and Malone v Metropolitan Police
Commissioner [1979] Ch 344, both considered in chapter 2). For issues savour-
ing more of policy than of property, the courts were inclined to resign to
Parliament the function of controlling governmental action. It has been said,
too, that the absence of a concept of the state has frustrated ˜the development
of a rational-legal theory of the constitution™ and has excluded from our con-
stitutional culture ˜the notion of an authority higher than the government
of the day™ (P Madgwick and D Woodhouse, The Law and Politics of the
Constitution of the United Kingdom (1995), p 75; see further Mitchell, ˜The
causes and e¬ects of the absence of a system of public law in the United
Kingdom™ [1965] PL 95 and Laborde, ˜The concept of the state in British and
French political thought™ (2000) 48 Political Studies 540).
The written constitutions of many countries are founded on the idea of the
state as expressing the whole political organisation of the people. We ¬nd, for
instance, the following provisions in the Constitution of Ireland of 1937.

The Constitution of Ireland

Article 4. The name of the State is Éire, or, in the English language, Ireland.

Article 5. Ireland is a sovereign, independent, democratic state.

Article 6. (1) All powers of government, legislative, executive and judicial, derive, under God,
from the people, whose right it is to designate the rulers of the State . . .
(2) These powers of government are exercisable only by or on the authority of
the organs of State established by this Constitution.

Article 9. (2) Fidelity to the nation and loyalty to the State are fundamental political duties
of all citizens.
11 The British constitutional order

A number of the fundamental rights de¬ned by the Irish Constitution are
expressed in terms of guarantees or obligations assumed by the state. For
instance, the state ˜guarantees liberty for the exercise™ inter alia of ˜The right of
the citizens to express freely their convictions and opinions™ (Art 40(6)(1)).
The idea of the state is familiar enough in English political thought, and even
lawyers have to deal with such expressions as ˜o¬ences against the state™, ˜act of
state™, and the ˜interests of the state™. On the other hand, as Sedley LJ remarked
in A v Head Teacher and Governors of Lord Grey School [2004] EWCA Civ 382,
[2004] 4 All ER 628, [3], ˜the law of England and Wales does not know the state
as a legal entity™. Accordingly, there is no single legal de¬nition of the state for
all purposes and the courts have had to decide, in various contexts, whether a
particular public body is an organ of the state. In D v National Society for the
Prevention of Cruelty to Children [1978] AC 171, it was argued that the NSPCC,
a voluntary charity incorporated by royal charter and authorised by statute to
bring care proceedings for the protection of children, was not part of ˜the state™
and accordingly could not rely on ˜public interest immunity™ (a prerogative
immunity of the Crown™s) as justifying its refusal to disclose the identity of its
informants. Lord Simon of Glaisdale disposed of this argument in the follow-
ing words (pp 235“6):

˜[T]he state™ cannot on any sensible political theory be restricted to the Crown and the
departments of central government (which are, indeed, part of the Crown in constitutional
law). The state is the whole organisation of the body politic for supreme civil rule and
government “ the whole political organisation which is the basis of civil government. As such
it certainly extends to local “ and, as I think, also statutory “ bodies in so far as they are exer-
cising autonomous rule.

(See further on Crown prerogatives chapters 6 and 7.)
In Foster v British Gas [1991] 2 AC 306 the House of Lords, applying criteria
laid down by the European Court of Justice, ruled that the British Gas
Corporation (a nationalised industry, the predecessor of British Gas plc) was
su¬ciently identi¬ed with the state (it had been set up by the state with special
powers to provide a public service under the control of the Secretary of State)
to be bound by the terms of an EC Directive addressed to the United Kingdom
and other Member States of the European Community (see further chapter 5).
The phrase ˜the interests of the state™ occurs in the O¬cial Secrets Act 1911,
and was considered in the following case.

Chandler v Director of Public Prosecutions [1964] AC 763 (HL)
The appellants had attempted to enter and immobilise an air¬eld, which was
a ˜prohibited place™ within the meaning of the O¬cial Secrets Act 1911, as a
demonstration of opposition to nuclear weapons. They were charged with con-
spiracy to commit a breach of section 1 of the Act, which makes it an o¬ence to


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