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executive action such as rationality, economy, e¬ciency and fairness. (What
a particular authority is to be accountable for depends on its range of functions,
degree of autonomy, etc.)
When acts of the administration may a¬ect individual rights or interests,
accountability requires also that appropriate reparation should be made to the
victim of illegal action or maladministration. (This may be called ˜amendatory™
or ˜remedial™ accountability.) Here accountability overlaps with the redress of
grievances. Legal accountability for decisions of public authorities depends on
the availability of a right of appeal to a court or tribunal or on access to judicial
review. Most administrative decisions, however, are not subject to appeal (prin-
cipal exceptions being social security, immigration and tax matters, where
appeals lie to special tribunals); and judicial review, although of great impor-
tance in the maintenance of legality in public administration, is limited in
a number of ways as a remedy for the aggrieved citizen. (See chapter 10.)
The principal mechanism of political accountability in the United Kingdom
is found in the doctrine of ministerial responsibility to Parliament. At the end
of the nineteenth century the legal and political responsibility of ministers was,
as MJC Vile says (Constitutionalism and the Separation of Powers (1967), p 231),
˜the crux of the English system of government™. The legal responsibility of
ministers to the courts was complemented by their political responsibility to
Parliament. Ministerial responsibility in the political sense was the result of the
development of conventions by which the Sovereign had become bound to act
on the advice of ministers, and ministers had become answerable to Parliament
for the advice given. The principle of ministerial responsibility, as an element in
the theory of the British constitution, was derived from the reality of constitu-
tional practice. ˜The accountability of ministers to Parliament, and through
Parliament to the nation, is the theoretical basis of our modern English
Constitution™; so wrote Sidney Low in 1904 (The Governance of England, p 133).
According to this theory the power of government was ˜placed under the check
of a strict responsibility and control™ (Earl Grey, Parliamentary Government (new
edn 1864), p 5). But it was only for a few decades in the middle of the nineteenth
134 British Government and the Constitution


century, when a Parliament not yet in¬ltrated by disciplined parties showed its
ability to bring down governments, that so strong a statement of the theory might
have been justi¬ed by the facts. Since then the government has established an
ascendancy over Parliament, and the traditional parliamentary techniques of
control and accountability, focused on ministers, have struggled to check the use
of power in the corridors of the departmental bureaucracies and in the outworks
of government occupied by quasi-autonomous organisations.
This modern development has led some to dismiss the theory of ministerial
responsibility as mere ¬ction: it is now ˜little more than a formal principle used
by ministers to deter parliamentary interference in their a¬airs™ says Vile
(p 341). But it can still be maintained that ˜The British constitution is built,
however precariously, on the political accountability of ministers to Parliament™
(M Flinders, The Politics of Accountability in the Modern State (2001), p xvi). No
other theory of government has taken its place; it still explains much of what
happens in government and Parliament, and it is through the mechanisms of
ministerial responsibility that Parliament persists in its e¬ort to ˜watch and
control™ the government. The extent to which it is able to do so in practice is
considered in chapter 9.
The theory of ministerial responsibility has in one respect had a baleful e¬ect
upon the control of public power. The courts have in a number of cases been
in¬‚uenced, in declining to question the exercise of powers by ministers, by the
principle that ministers are answerable to Parliament for the use of their powers.
In the words of JDB Mitchell: ˜The respect for, and belief in, the e¬cacy of
parliamentary controls moved courts to assume an attitude of restraint in the
exercise of their admitted powers of control, which otherwise they might not
have assumed™ ([1965] PL 95, 100). For example, in Liversidge v Anderson [1942]
AC 206 the House of Lords interpreted a wartime regulation which authorised
the Home Secretary to order the detention of any person whom he had
˜reasonable cause to believe™ to be of hostile origin or associations as giving the
minister a subjective discretion (it was enough that the minister himself thought
that he had reasonable grounds for his belief) which could not be controlled by
the courts. In justi¬cation of this ruling the Lords observed that the Home
Secretary was answerable to Parliament for his decisions. (The ruling in
Liversidge v Anderson has since been repudiated by the House of Lords in IRC
v Rossminster Ltd [1980] AC 952.) More recently in R v Secretary of State for
Home A¬airs, ex p Hosenball [1977] 1 WLR 766 the Court of Appeal declined to
review the Home Secretary™s decision to deport a journalist in the interest of
national security: ˜He is answerable to Parliament as to the way in which he did
it and not to the courts here™ (Lord Denning MR at 783. See also R v Secretary
of State for the Home Department, ex p Cheblak [1991] 1 WLR 890, 902.)
A di¬erent view of ministerial responsibility was taken by the High Court of
Australia in Re Toohey, ex p Northern Land Council (1981) 38 ALR 439, in assert-
ing its jurisdiction to control the exercise of power by the Crown. Gibbs CJ said
(457) that ˜under modern conditions of responsible government, Parliament
135 The ideas of the constitution


could not always be relied on to check excesses of power by the Crown or its
Ministers™, and Mason J said (481) that ˜the doctrine of ministerial responsibil-
ity is not in itself an adequate safeguard for the citizen whose rights are a¬ected™.
There are many actions of public authorities for which ministers have no or
only limited responsibility to Parliament, and there is therefore a need for sup-
plementary mechanisms of accountability. Several such mechanisms are in
place. For instance, the expenditure of local and health authorities in England
and Wales is subject to a system of audit (covering value for money as well
as regularity of expenditure) under the general supervision of the Audit
Commission for Local Authorities and the National Health Service. (See the
Audit Commission Act 1998.) Likewise, central government expenditure is
overseen by the National Audit O¬ce, headed by the Comptroller and Auditor-
General, and by the House of Commons Public Accounts Committee. As we saw
in the previous section of this chapter, public inquiries have become a frequent
occurrence in Britain, examining in detail a variety of problems and scandals in
governmental and public life. As the House of Commons Select Committee on
Public Administration put it (Government by Inquiry, HC 51 of 2004“05,
para 2), ˜the public inquiry has become a pivotal part of public life in Britain,
and a major instrument of accountability™. As regards accountability for actions
a¬ecting individual citizens there is a great variety of arrangements, in some
cases providing an avenue for redress of grievances. Such is the Ombudsman
system, for resolving complaints of maladministration against government
departments or local authorities. The investigation of complaints against the
police is supervised by the Independent Police Complaints Commission estab-
lished by the Police Reform Act 2002, replacing a previous complaints-handling
system which had not enjoyed public con¬dence. The redress of grievances is
considered further in chapters 9“10.
Traditional mechanisms of accountability have been put under strain by the
fragmentation that has taken place in central government, through a prolif-
eration of autonomous decision-making bodies (executive agencies and non-
departmental public bodies) and the development of collaborative arrangements
and networks in the policy-making process. These have included the involvement
of private sector bodies (eg through advisory groups, contracting out and public-
private partnerships) in the development and implementation of policy. (See
further Elcock, ˜The changing problem of accountability in modern government™
(1998) 13 Public Policy and Administration 23; M Bovens, The Quest for
Responsibility: Accountability and Citizenship in Complex Organisations (1998);
M Flinders, The Politics of Accountability in the Modern State (2001).)


(a) Access to information and reasons
˜Information™, says PM Jackson, ˜is the essential lubricant of any system of
accountability and control™ (The Political Economy of Bureaucracy (1982),
p 246). Sir Richard Scott is of the same mind (Scott Report (1996), vol I, para
136 British Government and the Constitution


D4.58): ˜Without the provision of full information it is not possible for
Parliament, or for that matter the public, to hold the executive fully to account™.
It is when information is withheld, or Parliament and public are misled, that
accountability most signally fails. The question of accountability is, therefore,
closely interwoven with that of ˜open government™, considered below, pp 556“64.
Opacity, and blurred accountability, may result from the complexity of deci-
sion-making processes in the modern state. RAW Rhodes (˜The hollowing out
of the state™ (1994) 65 Political Quarterly 138, 147) remarks that:

sheer institutional complexity obscures who is accountable to whom for what. Policy
networks, or professional-bureaucratic functional alliances, are a characteristic feature of
policy-making in Britain. Such networks restrict who contributes to policy-making and policy
implementation. . . . They are also a form of private government; much of their work is
invisible to the parliamentary and public eye. With the growth of trans-national networks
linking UK networks to the EC, the policy process becomes more complex and the lines of
accountability ever more difficult to identify.

A public authority is more e¬ectively held accountable for decisions a¬ecting
the individual citizen if it has a duty to give reasons for those decisions. In iden-
tifying ˜openness™ as one of ˜Seven Principles of Public Life™ the Nolan
Committee declared (Nolan Report (1995), p 14):

Holders of public office should be as open as possible about all the decisions and actions
that they take. They should give reasons for their decisions and restrict information only
when the wider public interest clearly demands.

The JUSTICE“All Souls Review of Administrative Law recommended in 1988
that a general duty to give reasons for administrative decisions should be
imposed by legislation. (See Administrative Justice: Some Necessary Reforms
(1988), ch 3.) No such legislation was then forthcoming, but in the Code of
Practice on Access to Government Information (2nd edn 1997), para 3, the
Government undertook a general obligation ˜to give reasons for administrative
decisions to those a¬ected™, unless excused from doing so by statutory author-
ity or well-established convention. There was an expectation that the Freedom
of Information Act 2000 would provide for a general duty to give reasons for
administrative decisions, but in the event it did not do so. Section 19 of the Act
requires public authorities covered by the Act to adopt publication schemes
specifying the classes of information which they will publish voluntarily.
An authority must, in adopting such a scheme, ˜have regard to the public
interest . . . in the publication of reasons for decisions made by the authority™.
While many statutes require reasons to be given (whether invariably or only
on request) for particular classes of decisions, the common law has not recog-
nised a general duty to give reasons for administrative decisions. The courts
have, however, shown an increasing willingness to require the giving of reasons
137 The ideas of the constitution


on the ground of fairness: see, for example, R v Secretary of State for the Home
Department, ex p Doody [1994] 1 AC 531 and R v Secretary of State for the Home
Department, ex p Fayed [1998] 1 WLR 763. The developing common law as to
reasons is re¬‚ected in the following passage from the judgment of the court,
given by Sedley J, in R v Higher Education Funding Council, ex p Institute of
Dental Surgery [1994] 1 All ER 651, 665“6:

The giving of reasons may among other things concentrate the decision-maker™s mind on the
right questions; demonstrate to the recipient that this is so; show that the issues have been
conscientiously addressed and how the result has been reached; or alternatively alert the
recipient to a justiciable flaw in the process. On the other side of the argument, it may place
an undue burden on decision-makers; demand an appearance of unanimity where there is
diversity; call for the articulation of sometimes inexpressible value judgments; and offer an
invitation to the captious to comb the reasons for previously unsuspected grounds of
challenge. It is the relationship of these and other material considerations to the nature of
the particular decision which will determine whether or not fairness demands reasons.
In the light of such factors each case will come to rest between two poles, or possibly at
one of them: the decision which cries out for reasons, and the decision for which reasons
are entirely inapposite. Somewhere between the two poles comes the dividing line sepa-
rating those cases in which the balance of factors calls for reasons from those where it does
not. At present there is no sure indication of where the division comes. . . . No doubt the
common law will develop, as the common law does, case by case. It is not entirely satis-
factory that this should be so, not least because experience suggests that in the absence of
a prior principle irreconcilable or inconsistent decisions will emerge. But from the tenor of
the decisions principles will come, and if the common law™s pragmatism has a virtue it is
that these principles are likely to be robust. At present, however, this court cannot go beyond
the proposition that, there being no general obligation to give reasons, there will be
decisions for which fairness does not demand reasons. It follows that in appraising each case,
the present included, too catholic an approach will amount to generalising what is still a
particular obligation; though we are not prepared to accept [counsel for the respondent™s]
contention that it is any longer an exceptional one.

Sedley J went on to say that there were ˜good arguments of public law and of
public administration™ in favour of a universal duty to give reasons, but that this
was not yet part of our law and it remained to be seen what the ˜continuing
momentum™ towards openness of decision-making would bring. Classes of
case in which fairness required the giving of reasons included, said the judge,
those a¬ecting personal liberty and those in which the decision appeared
aberrant (671).
(See further Campbell, ˜The duty to give reasons in administrative law™ [1994]
PL 184; Craig, ˜The common law, reasons and administrative justice™ [1994] CLJ
282; Sir Patrick Neill, ˜The duty to give reasons: the openness of decision-making™
in C Forsyth and I Hare (eds), The Golden Metwand and the Crooked Cord (1998),
pp 161“84; Le Sueur, ˜Legal duties to give reasons™ (1999) 52 CLP 150.)
3

Constitutional sources




Contents
1 Legal rules
(a) Statute
(b) Subordinate legislation
(c) Common law
2 Conventions
(a) How do conventions arise?
(b) Doubtful conventions
(c) Conventions and laws
(d) Patriation of the Canadian constitution: a case study


In previous chapters we have seen that for a true view of the constitution we
must take account of its rules, its institutions, and its ˜ideas™ or theories. In this
chapter we outline the various sources of the British constitution and, in par-
ticular, the sources of the rules of the constitution. Some of these are legal rules,
making up the ˜law of the constitution™; others are rules of practice, known as
˜constitutional conventions™. During the course of the chapter, we shall ask what
are the distinctive features of constitutional laws and conventions, and we shall
consider the relationship between these two kinds of rules.


1 Legal rules
Dicey (Law of the Constitution (1885), p 203) held it to be one aspect of the rule
of law in England that:

the principles of private law have with us been by the action of the courts and Parliament
so extended as to determine the position of the Crown and of its servants; thus the consti-
tution is the result of the ordinary law of the land.

Dicey™s statement needs quali¬cation. It fails to take account of the extraordi-
nary powers deriving from the royal prerogative, or of the ˜law and custom of
139 Constitutional sources


Parliament™, which has developed separately from the ˜ordinary™ law. But the
statement is more seriously misleading in that a large part of modern consti-
tutional law consists of enactments conferring powers on public authorities,
principles developed by the courts in interpreting and giving e¬ect to those
enactments, and remedies of exclusive application to public bodies: a corpus of
public law, in short, which cannot be explained as a mere extension of private
law rules to the administration.
It remains true that the legal rules of the constitution have, in general, evolved
by the same processes, and from the same sources, as the law governing the rela-

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