. 12
( 155 .)


enter any prohibited place ˜for any purpose prejudicial to the safety or interests
12 British Government and the Constitution

of the State™. It was argued for the appellants that what they had intended to do
was not in fact prejudicial to the safety or interests of the state, and further that
it was their purpose to bene¬t and not to harm the state. Counsel argued also
that the word ˜State™ in the Act meant the inhabitants of the country and not the
organs of government.

Lord Reid: . . . Next comes the question of what is meant by the safety or interests of the
State. ˜State™ is not an easy word. It does not mean the Government or the Executive. ˜L™Etat
c™est moi™ was a shrewd remark, but can hardly have been intended as a definition even in
the France of the time. And I do not think that it means, as counsel argued, the individuals
who inhabit these islands. The statute cannot be referring to the interests of all those
individuals because they may differ and the interests of the majority are not necessarily the
same as the interests of the State. Again we have seen only too clearly in some other coun-
tries what can happen if you personify and almost deify the State. Perhaps the country or
the realm are as good synonyms as one can find and I would be prepared to accept the organ-
ised community as coming as near to a definition as one can get.

Lord Hodson also took the state to mean ˜the organised community™ (p 801).

Lord Devlin: . . . What is meant by ˜the State™? Is it the same thing as what I have just called
˜the country™? Mr Foster, for the appellants, submits that it means the inhabitants of a
particular geographical area. I doubt if it ever has as wide a meaning as that. I agree that in
an appropriate context the safety and interests of the State might mean simply the public or
national safety and interests. But the more precise use of the word ˜State™, the use to be
expected in a legal context, and the one which I am quite satisfied . . . was intended in this
statute, is to denote the organs of government of a national community. In the United
Kingdom, in relation at any rate to the armed forces and to the defence of the realm, that
organ is the Crown.

In the view of all their Lordships, the interests of the state were in this matter iden-
tical with those of the Crown or at all events were determined by the Crown “ in
e¬ect, by the government of the day. Lord Pearce, for example, said (p 813):

In such a context the interests of the State must in my judgment mean the interests of the
State according to the policies laid down for it by its recognised organs of government and

Consequently it could not be argued that the military dispositions decided
upon by the government were not in the interests of the state. The arguments for
the appellants having failed in this and other respects, their convictions were
con¬rmed. (See further Thompson [1963] PL 201.)
In R v Ponting [1985] Crim LR 318 McCowan J, in directing the jury on the
meaning of ˜the interest of the State™ in section 2(1) (since repealed) of the
O¬cial Secrets Act 1911, followed Lord Pearce in saying that the expression
13 The British constitutional order

meant the policies of the state laid down for it by the recognised organs of gov-
ernment and authority. This ruling neutralised Ponting™s argument, in defend-
ing a charge of disclosure of o¬cial information in breach of section 2(1), that
he had acted in the interest of the state as an institution distinct from the
government of the day. (The jury nevertheless acquitted Ponting in a verdict
welcomed by many observers, including Lord Denning: see HL Deb vol 461,
col 563, 20 March 1985. On the Ponting case see further N MacCormick,
Questioning Sovereignty (1999), ch 3.)
If the interests of the state and of the government are in law to be considered
the same, the possibility remains that those interests may di¬er from what is in
the real interest of the community as a whole. This was perceived by Lord
Radcli¬e, when he said, in Glasgow Corpn v Central Land Board 1956 SC (HL) 1,
18“19, that ˜The interests of government . . . do not exhaust the public interest™.
That the interests of the government may have to yield to the wider public
interest is clearly shown by the ˜Spycatcher™ case, Attorney General v Guardian
Newspapers Ltd (No 2) [1990] 1 AC 109, where the desire of Mrs Thatcher™s
Government to ban the publication of the memoirs of a former Security Service
(MI5) o¬cer, Peter Wright, was weighed against the broader public interests
of freedom of expression and open government. These latter interests were
(eventually) held to prevail over the declared interest of the government of the
day (see further chapter 11). It might make for a better understanding of
constitutional relationships if we had a coherent concept of the state, clearly dis-
tinguished from those who exercise power within it.
Legal argument about the nature of the state and its relation to the govern-
ment is sometimes rather narrow, and may cause us to lose sight of wider
political realities. These receive their due in the following passage.

Ralph Miliband, The State in Capitalist Society (1969), pp 49“54

There is one preliminary problem about the state which is very seldom considered, yet which
requires attention if the discussion of its nature and role is to be properly focused. This is the
fact that ˜the state™ is not a thing, that it does not, as such, exist. What ˜the state™ stands for
is a number of particular institutions which, together, constitute its reality, and which inter-
act as parts of what may be called the state system.
The point is by no means academic. For the treatment of one part of the state “ usually
the government “ as the state itself introduces a major element of confusion in the discus-
sion of the nature and incidence of state power; and that confusion can have large political
consequences. Thus, if it is believed that the government is in fact the state, it may also be
believed that the assumption of governmental power is equivalent to the acquisition of state
power. Such a belief, resting as it does on vast assumptions about the nature of state power,
is fraught with great risks and disappointments. To understand the nature of state power, it
is necessary first of all to distinguish, and then to relate, the various elements which make
up the state system.
14 British Government and the Constitution

It is not very surprising that government and state should often appear as synonymous
for it is the government which speaks on the state™s behalf. It was the state to which Weber
was referring when he said, in a famous phrase, that, in order to be, it must ˜successfully
claim the monopoly of the legitimate use of physical force within a given territory™. But ˜the
state™ cannot claim anything: only the government of the day, or its duly empowered agents,
can. Men, it is often said, give their allegiance not to the government of the day but to the
state. But the state, from this point of view, is a nebulous entity; and while men may choose
to give their allegiance to it, it is to the government that they are required to give their obe-
dience. A defiance of its orders is a defiance of the state, in whose name the government
alone may speak and for whose actions it must assume ultimate responsibility.
This, however, does not mean that the government is necessarily strong, either in rela-
tion to other elements of the state system or to forces outside it. On the contrary, it may be
very weak, and provide a mere fa§ade for one or other of these other elements and forces.
In other words, the fact that the government does speak in the name of the state and is
formally invested with state power, does not mean that it effectively controls that power.
How far governments do control it is one of the major questions to be determined.
A second element of the state system which requires investigation is the administrative
one, which now extends far beyond the traditional bureaucracy of the state, and which
encompasses a large variety of bodies, often related to particular ministerial departments,
or enjoying a greater or lesser degree of autonomy “ public corporations, central banks,
regulatory commissions, etc “ and concerned with the management of the economic, social,
cultural and other activities in which the state is now directly or indirectly involved. The extra-
ordinary growth of this administrative and bureaucratic element in all societies, including
advanced capitalist ones, is of course one of the most obvious features of contemporary life;
and the relation of its leading members to the government and to society is also crucial to
the determination of the role of the state.
Formally, officialdom is at the service of the political executive, its obedient instrument,
the tool of its will. In actual fact it is nothing of the kind. Everywhere and inevitably, the
administrative process is also part of the political process; administration is always political
as well as executive, at least at the levels where policy-making is relevant, that is to say in
the upper layers of administrative life. . . . Officials and administrators cannot divest them-
selves of all ideological clothing in the advice which they tender to their political masters,
or in the independent decisions which they are in a position to take. The power which top
civil servants and other state administrators possess no doubt varies from country to country,
from department to department, and from individual to individual. But nowhere do these
men not contribute directly and appreciably to the exercise of state power. . . .
Some of these considerations apply to all other elements of the state system. They apply
for instance to a third such element, namely the military, to which may, for present purposes,
be added the para-military, security and police forces of the state, and which together form
that branch of it mainly concerned with the ˜management of violence™.
In most capitalist countries, this coercive apparatus constitutes a vast, sprawling and
resourceful establishment, whose professional leaders are men of high status and great influ-
ence, inside the state system and in society . . .
15 The British constitutional order

Whatever may be the case in practice, the formal constitutional position of the adminis-
trative and coercive elements is to serve the state by serving the government of the day. In
contrast, it is not at all the formal constitutional duty of judges, at least in Western-type
political systems, to serve the purposes of their governments. They are constitutionally
independent of the political executive and protected from it by security of tenure and other
guarantees. Indeed, the concept of judicial independence is deemed to entail not merely the
freedom of judges from responsibility to the political executive, but their active duty to
protect the citizen against the political executive or its agents, and to act, in the state™s
encounter with members of society, as the defenders of the latters™ rights and liberties. . . .
But in any case, the judiciary is an integral part of the state system, which affects, often
profoundly, the exercise of state power.
So too, to a greater or lesser degree, does a fifth element of the state system, namely
the various units of sub-central government. In one of its aspects, sub-central government
constitutes an extension of central government and administration, the latter™s antennae or
tentacles. In some political systems it has indeed practically no other function. In the coun-
tries of advanced capitalism, on the other hand, sub-central government is rather more than
an administrative device. In addition to being agents of the state these units of government
have also traditionally performed another function. They have not only been the channels of
communication and administration from the centre to the periphery, but also the voice of the
periphery, or of particular interests at the periphery; they have been a means of overcom-
ing local particularities, but also platforms for their expression, instruments of central control
and obstacles to it. For all the centralisation of power, which is a major feature of govern-
ment in these countries, sub-central organs of government, notably in federal systems such
as that of the United States, have remained power structures in their own right, and there-
fore able to affect very markedly the lives of the populations they have governed.
Much the same point may be made about the representative assemblies of advanced
capitalism. Now more than ever their life revolves around the government; and even where,
as in the United States, they are formally independent organs of constitutional and political
power, their relationship with the political executive cannot be a purely critical or obstruc-
tive one. That relationship is one of conflict and cooperation.
Nor is this a matter of division between a pro-government side and an anti-government
one. Both sides reflect this duality. For opposition parties cannot be wholly uncoopera-
tive. Merely by taking part in the work of the legislature, they help the government™s
business. . . .
As for government parties, they are seldom if ever single-minded in their support of the
political executive and altogether subservient to it. They include people who, by virtue of
their position and influence, must be persuaded, cajoled, threatened or bought off.
It is in the constitutionally-sanctioned performance of this cooperative and critical func-
tion that legislative assemblies have a share in the exercise of state power. That share is
rather less extensive and exalted than is often claimed for these bodies. But . . . it is not,
even in an epoch of executive dominance, an unimportant one.
These are the institutions “ the government, the administration, the military and the
police, the judicial branch, sub-central government and parliamentary assemblies “ which
16 British Government and the Constitution

make up ˜the state™, and whose interrelationship shapes the form of the state system. It
is these institutions in which ˜state power™ lies, and it is through them that this power is
wielded in its different manifestations by the people who occupy the leading positions
in each of these institutions “ presidents, prime ministers and their ministerial colleagues;
high civil servants and other state administrators; top military men; judges of the higher
courts; some at least of the leading members of parliamentary assemblies, though these are
often the same men as the senior members of the political executive; and, a long way
behind, particularly in unitary states, the political and administrative leaders of sub-central
units of the state. These are the people who constitute what may be described as the
state elite.

No matter how centralised government in the United Kingdom may be (and,
even after devolution, British government remains remarkably centralised) it
would be misleading, as Miliband shows, simply to identify central government
with the state (see further Loughlin, ˜The state, the Crown and the law™, in
M Sunkin and S Payne (eds), The Nature of the Crown (1999)).

3 Constitutional law beyond the state
A number of commentators have in recent years argued that the traditional
focus in constitutional studies (both legal and political) on the state is no
longer appropriate or that, at the least, such a focus needs now to be supple-
mented with additional perspectives. Gavin Anderson, for example, urges that
we need to do no less than to ˜recon¬gure our understandings of consti-
tutional law and constitutional rights according to . . . [a new] paradigm
that enables us to understand better, and respond to, the challenges facing
constitutionalism in an age of globalization™ (Constitutional Rights after
Globalization (2005), p 3).
The state, it is claimed, is coming under pressure both internally and exter-
nally. On the one hand the devolutionary forces of regionalism and localism are
investing sites of constitutional authority within the state with increasing
power. In the United Kingdom, for example, we can no longer understand the
fullness of our constitutional arrangements if we con¬ne our attention to
matters in London, Westminster and Whitehall. The Scottish Parliament in
Holyrood and the National Assembly for Wales in Cardi¬ Bay are essential insti-
tutions not only if you are studying British constitutional law in Scotland or
Wales but so, too, if you are studying it in England. On the other hand, the forces
of globalisation (in the economic, political, social, cultural and legal spheres)
and the rise to constitutional prominence of both international and suprana-
tional organisations such as the World Trade Organisation, the United Nations,
the Council of Europe and the European Union (among a number of others)
requires us to shift our gaze also beyond national borders. To this end recent
years have seen a voluminous literature with such suggestive titles as J Camilleri
17 The British constitutional order

and J Falk, The End of Sovereignty? (1992), S Sassen, Losing Control? Sovereignty
in an Age of Globalization (1996) and S Strange, The Retreat of the State (1996),
while a number of EU lawyers have written articles that talk of such things as
˜post-national constitutionalism™ and the need to ¬nd ˜constitutional substi-
tutes™ (see eg, Shaw (1999) 6 Jnl European Pub Policy 579 and Chalmers (2000)
27 Jnl Law and Soc 178).
Two di¬erent sets of claims are made in this literature. The ¬rst, more mod-
erate, is that even if the state continues to be the primary site of constitutional
authority, the way in which it operates is now conditioned by both sub-state and
super-state forces. The second, bolder, claim is that, in some senses at least, the
state is no longer the primary site of constitutional authority and has been
replaced in that regard by a combination of sub-state and super-state forces. The
following extract surveys the issues.

Martin Loughlin, Sword and Scales (2000), pp 141“5

The nation-state is a relatively modern phenomenon. Its emergence has been traced to the
period after the Treaty of Westphalia of 1648, an era in which the western world was divided
into more clearly delineated jurisdictions and the modern map of Europe began to take
shape. But the idea of the nation-state which emerged in modern European history is not
one in which a close congruence between ethnicity and the structure of government has
been forged. Given the circumstances in which states have been formed, such congruency
is almost never realized. Rather, nation-states are best viewed as ˜imagined communities™
[Benedict Anderson] or ˜groups which will themselves to persist™ [Ernest Gellner]. They exist
despite differences of race and language, and largely because they are united by ˜common
sympathies™ [ JS Mill] or a history of common suffering . . . This is what might be called a civic
conception of the nation-state. The French, for instance, constitute a nation-state, whether
their ancestors were Gauls, Bretons, Normans, Franks, Romans or whatever. Similarly, the
English, Irish, Scots and Welsh “ notwithstanding their ethnic differences “ have been forged
into the nation-state of the United Kingdom. In this civic conception, the nation-state can be
seen as a device through which class, ethnic and religious tensions within a defined territo-
rial unit can be managed.


. 12
( 155 .)