. 72
( 155 .)


to resign, with his Government, or seek a dissolution of Parliament. The Prime
Minister, Mr Wilson, publicly declared his intention to request a dissolution in
such an event. As it happened the expected challenge to the Government did
not materialise and the Queen was not asked to dissolve Parliament until some
months later. It has, however, been asserted that if a dissolution had been
requested in March 1974 or soon after, the Queen would have been justi¬ed in

Sir Peter Rawlinson, ˜Dissolution in the United Kingdom™ (1977) 58
The Parliamentarian 1, 2
When Mr Harold Wilson in March 1974 formed a minority government in succession to
Mr Edward Heath, following the failure of the latter to find allies from the minor parties, the
Crown could have rejected advice (if proffered, which it was not) to dissolve the Parliament
elected in February 1974 within days or weeks of the succession of Mr Heath by Mr Wilson.
For it was the duty of the new minority Wilson Administration to face Parliament and to
discover whether the new Administration was viable. There was always the possibility of
another attempt at coalition between the Conservatives and Liberals and other parties as an
alternative to the Wilson Government. As Lord Balfour has said . . . ˜No constitution can stand
a diet of dissolutions™, and advice to dissolve very shortly after March 1974, when supply
was being effected and major Bills presented by the new Wilson Government were being
accepted by the House of Commons, could and should have been rejected by the Sovereign
certainly until at least six months of minority government had been experienced. Advice to
dissolve prior to a period of trial would have been advice wrongly proffered and, therefore,
wrong to have been accepted. The Sovereign on her personal responsibility could have taken
into account the time since the previous election and the incidence that government was not
being impossibly thwarted.

On the other hand the Queen™s personal advisers are fully aware of the necessity
to shield the monarchy from the winds of political controversy, which would
certainly have been unleashed if the Queen had refused a dissolution in these
circumstances. Contemporary reports suggest “ though the matter cannot be
stated with certainty “ that soundings at the Palace by politicians revealed
that there would be no question of refusal if the Prime Minister were to request
a dissolution. (See The Times, 6 May 1974, p 14; Watt (1974) 45 Political
Quarterly 346, 349. See too Anthony Howard, The Times, 27 February 2001,
p 7.) Refusal would doubtless have been followed by Mr Wilson™s resignation.
The obvious person to succeed him, Mr Heath, had already failed to gain Liberal
support for a government headed by himself.
Governors-General of Commonwealth countries of which the Sovereign
remained the head of state have on rare occasions refused prime-ministerial
requests for dissolutions, notably in Canada in 1926 and in South Africa in 1939.
In each case the Governor-General™s action was controversial. The refusal by the
Governor-General of Canada, Lord Byng, of a request for dissolution from the
364 British Government and the Constitution

Liberal Prime Minister, Mr Mackenzie King, precipitated the latter™s resignation
and the appointment as Prime Minister of the Leader of the Conservative oppo-
sition, Mr Meighen. The new government proved unviable and after its defeat
within a few days in the Canadian House of Commons, Lord Byng was obliged to
grant Mr Meighen a dissolution. In the ensuing general election the Liberals were
returned to o¬ce. Lord Byng was strongly criticised for granting to Mr Meighen
the dissolution he had a week before refused to Mr Mackenzie King.
The South African episode had a di¬erent outcome. General Smuts, who
took o¬ce after the resignation of General Hertzog upon refusal of the latter™s
request for a dissolution, was able to carry on as Prime Minister for a number
of years with a small but secure majority in the elected House.
The Commonwealth cases provide no clear precedent for the exercise of
the Sovereign™s prerogative in the United Kingdom, having regard to the
appointive o¬ce and limited tenure of a Governor-General, whose actions do
not involve the Sovereign in person (see G Marshall and G Moodie, Some
Problems of the Constitution (5th edn 1971), pp 40“1). These cases do, however,
indicate that circumstances can arise in which refusal of a dissolution may be
contemplated. They also underline the hazard attending such refusal and warn
of matters to be taken into account by the Sovereign and his or her advisers.
It is at all events generally believed that the Sovereign is not obliged by con-
vention to grant a request for a dissolution in all circumstances: such a request
is not equated with advice of ministers, upon which the Sovereign is constitu-
tionally bound to act. The circumstances in which the Sovereign would be
justi¬ed in refusing such a request cannot, however, be de¬ned with precision.
It was publicly discussed in 1950 what the King™s response should be if the
newly re-elected Labour Government, having an overall majority of only six in
the House, should be immediately defeated on an amendment to the Address and
were then to ask for a dissolution. A statement of the applicable conventions was
pro¬ered by Sir Alan Lascelles, private secretary to King George VI, in a letter to
The Times (under the pseudonym ˜Senex™) on 2 May 1950. No wise Sovereign, he
said, would deny a dissolution to the Prime Minister unless satis¬ed that:

(1) the existing Parliament was still vital, viable, and capable of doing its job; (2) a General
Election would be detrimental to the national economy; (3) he could rely on finding another
Prime Minister who could carry on his Government, for a reasonable period, with a working
majority in the House of Commons.

The second condition might be better expressed in terms of detriment to the
national interest, although it may be thought that assessment of the national
interest is rather a matter for the Prime Minister, constrained by the counsels or
warnings of colleagues and accountable to the electorate. (Professor Hennessy
remarks that the second condition has in any event been ˜dropped from the
canon™ “ ie from the Cabinet O¬ce™s internal guidance notes on the question:
The Economist, 24 December 1994, p 32). Satisfaction of the ¬rst and third
365 Crown and government

conditions is not easily determined “ indeed StJ Bates ¬nds the ¬rst condition
to be ˜virtually meaningless™ (in W Finnie, C Himsworth and N Walker (eds),
Edinburgh Essays in Public Law (1991), p 26). The third condition was plainly
not satis¬ed when Lord Byng refused a dissolution to Mackenzie King in Canada
in 1926 (above).
The issue is most likely to arise in the event of a hung Parliament. Refusal of
a dissolution even in such circumstances would not normally be politic or
justi¬ed “ and would never be so if no alternative government was available “
but would seem the appropriate response if the Prime Minister of a government
which had lost an election should immediately seek a second dissolution in the
hope of reversing the result. It might also be appropriate if a Prime Minister
who was discredited in his party and repudiated by ministerial colleagues,
hoped by a dissolution to forestall his replacement and restore his personal
authority. ˜In general™, as Vernon Bogdanor observes (The Monarchy and the
Constitution (1995), p 162), ˜the sovereign has the right to refuse a dissolution
only where the grant of a dissolution would be an a¬ront to, rather than an
expression of, democratic rights™. This safeguard against abuse of the consti-
tution depends on the political judgement of the Sovereign, and again the ques-
tion arises whether it is best left there: should a request for dissolution have to
be supported by a resolution of the Commons? (See further R Blackburn, The
Meeting of Parliament (1990); Bogdanor, above, pp 79“83, 157“62; Brazier,
Constitutional Practice, pp 45“50; G Marshall, Constitutional Conventions: The
Rules and Forms of Political Accountability (1986), pp 35“44; Harvey, ˜Monarchy
and democracy: a progressive agenda™ (2004) 75 Political Quarterly 34.)
It is sometimes urged that the House of Commons should be elected for a ¬xed
term, so that the power of dissolution should not ordinarily be available during
the ¬ve-year (or a shorter) term (the Scottish Parliament and the National
Assembly for Wales are each elected to four-year ¬xed terms and the Scotland Act
1998 (s 3) and Government of Wales Act 2006 (s 5) contain provisions dealing
with ˜extraordinary general elections™, provisions which obviate any need for
reliance on prerogative powers). Such a rule, it might seem, would prevent an
appeal to the people in circumstances of political dissension or deadlock when
that sovereign remedy was most needed. An attempted cure for this di¬culty was
included in a ten-minute rule bill introduced by Mr Tony Banks MP in 1987 (but
not enacted), which provided that a dissolution might be granted within a ¬xed
¬ve-year term only if the government should lose a formal vote of con¬dence.
Mr Tony Benn™s abortive Crown Prerogatives (Parliamentary Control) Bill of
1999 provided that the prerogative should not be exercised to dissolve Parliament
within the ¬ve-year term unless the assent of the House of Commons had ¬rst
been obtained. (See further Barendt [1995] PL 599, 618; the IPPR Constitution of
the United Kingdom (1991), Article 60; the sceptical comments of Bogdanor,
above, at pp 175“7; and R Hazell and C Willan, Fixed Term Parliaments (2006).)
On the prerogative powers to give or refuse assent to bills and to create peers,
see Bogdanor, above, at pp 113“22, 129“33; Marshall, above, at pp 21“5;
366 British Government and the Constitution

Blackburn, ˜The royal assent to legislation and a monarch™s fundamental human
rights™ [2003] PL 205; Twomey, ˜The refusal or deferral of royal assent™ [2006]
PL 580.
A sceptical view of the ˜personal prerogatives™ of the Sovereign is taken by
Robert Blackburn, who argues that the Sovereign exercises her legal powers
exclusively in accordance with established conventions and procedures, leaving
no room for personal discretion (˜Monarchy and the personal prerogatives™
[2004] PL 546; see also the response by Brazier at [2005] PL 45). For a more
expansive interpretation of the continuing constitutional authority of the
monarch, see Tomkins, Public Law (2003), pp 62“72. Nevil Johnson concludes
a survey of the Queen™s residual powers in saying that ˜there is no prerogative
power that can in the normal conditions of political life be exercised indepen-
dently by the monarch™ (Reshaping the British Constitution (2004), p 60). This
is surely right, although it is always to be remembered that politics does
not invariably keep to its ˜normal conditions™. In abnormal or emergency con-
ditions, it is clear that the monarch retains an array of extraordinary legal
powers. Whether the exercise of such powers would ever again be considered
constitutional is impossible to say unless and until it happens. Such is the nature
of conventions. What we can say, perhaps, is that, as the examples of Scotland
and Wales suggest, statutory provisions could relatively easily be crafted that
would do away with any lingering doubts. Why have they not been? In whose
interests is it that the present circumstances continue to persist?

3 Central government
(a) Ministers
The executive powers of government are, in general, exercised by or on behalf of
ministers of the Crown, who in the theory of the constitution are themselves ser-
vants of the Crown. It has been argued (by Rodney Brazier, Ministers of the Crown
(1997), pp 23“31) that the term ˜ministers of the Crown™ is properly restricted to
those senior ministers who have sole charge of a government department, and in
whom the legal powers of government are vested. Usage is not consistent,
however, and ˜ministers of the Crown™ sometimes refers to all ministers of what-
ever rank (eg, in the Ministers of the Crown Act 1975). Ministers are chosen by
the Prime Minister and are then appointed by the Queen. As they hold o¬ce ˜at
the pleasure of the Crown™ they can be lawfully dismissed by the Queen, but in
this she must act in accordance with convention, as we have already seen.

Town Investments Ltd v Department of the Environment
[1978] AC 359 (HL)

Lord Simon of Glaisdale: . . . Once central government was firmly established in England,
power “ what in modern political science would be known as executive, judicial and
legislative power “ was concentrated in the King. No line was drawn at first between the
367 Crown and government

private and the public business of the King. But, as the latter grew, administrative con-
venience called for some devolution. Offices were hived off from the King™s household.
There was the Chancery presided over by the Chancellor. Then there was the Privy Seal
office under a Keeper of the Privy Seal, and the Exchequer with a Treasurer and a Chancellor
of its own. And so on. All these officials holding offices of ancient origin had their
action ˜confined within rigid limits, expressed by the commissions by which they were
appointed and the procedure which their acts must follow™. The motive force behind their
departments “

˜was the King™s command. They all existed to give effect to his will. The officials who
presided over them were appointed and dismissible by him. Each was charged with the
fulfilment of the royal pleasure within his own appropriate sphere.™

However, for centuries thereafter the King™s secretary remained within the royal house-
hold. Unlike the officials holding offices of ancient origin, the King™s secretary was therefore
˜free to enter every new branch of royal administration as it developed™. So it was that with
the increase in the powers of the Crown in the 16th century the Secretary rose to the first
rank among the King™s servants. But under the Restoration the Secretaries (for their office
was now duplicated) too became heads of departments of state, charged like the holders of
the ancient offices with executing the royal will. (For the foregoing historical development,
see DL Keir, The Constitutional History of Modern Britain 1485“1937 . . . , whence also came
the quotations.)
With the development of modern government fresh departments were formed to be
headed by ministers or by Secretaries of State. Just as all were originally appointed to carry
out departmentally the royal will, so today all ministers are appointed to exercise the powers
of the Crown, together with such other powers as have been statutorily conferred upon them

In theory there is still only one o¬ce of Secretary of State, but several may
be invested with the title and powers of the o¬ce. By the Interpretation Act
1978, section 5 and Schedule 1, ˜Secretary of State™ means ˜one of Her Majesty™s
Principal Secretaries of State™. Powers and functions entrusted to ˜the
Secretary of State™ can accordingly be exercised by any of the Principal
Secretaries of State, of whom there were ¬fteen in 2006, each heading a gov-
ernment department and with a seat in the Cabinet. Some ministers have tra-
ditional titles re¬‚ecting their historical functions as servants of the Crown:
they include the Lord Chancellor, the Chancellor of the Exchequer, the Lord
Privy Seal, the Lord President of the Council, the Chancellor of the Duchy of
Lancaster and the Paymaster General. The last four do not run major gov-
ernment departments and their responsibilities vary in di¬erent administra-
tions. For example, the Chancellor of the Duchy of Lancaster in the Heath
Government (1970“74) had responsibility for the conduct of negotiations for
British entry into the European Communities. Since 1998 the Chancellor of
the Duchy has been the Minister for the Cabinet O¬ce, with responsibilities
for the coordination and presentation of government policy and reform of the
368 British Government and the Constitution

civil service. The Lord President of the Council, besides being the head of the
Privy Council O¬ce, at present acts as Leader of the House of Lords, and the
Lord Privy Seal is the Leader of the House of Commons. In some administra-
tions there is a Minister Without Portfolio to whom various responsibilities
may be assigned. Since 2001 a Minister Without Portfolio has held o¬ce as
Party Chairman with a seat in the Cabinet.
The o¬ce of Secretary of State for Constitutional A¬airs is at present com-
bined with that of Lord Chancellor: besides his responsibilities, as Secretary
of State, for constitutional reform, freedom of information and human rights,
this minister exercises the remaining responsibilities of the Lord Chancellor
for the justice system (including judicial appointments (chapter 2 above) and
legal aid).
The Attorney General and the Solicitor General, as Law O¬cers of the
Crown for England and Wales, the Advocate General for Scotland and the
Advocate General for Northern Ireland are (non-Cabinet) ministers who act
as the government™s chief legal advisers and have important responsibilities in
relation to the law and its enforcement. The Attorney General, a minister with
˜a bewildering range of roles™ (T Daintith and A Page, The Executive in the
Constitution (1999), p 232), has certain discretionary powers to authorise,
institute or stop criminal proceedings and has ultimate responsibility for the
Crown Prosecution Service. (See R Brazier, Constitutional Practice (3rd edn
1999), pp 109“11, 134“5; Daintith and Page, above, at pp 231“6 and ch 9.) In
acting as the government™s principal legal adviser he is required to act inde-
pendently, in the sense that his legal advice is meant to be impartial. However,
in ˜providing such advice he is acting on behalf of and as a member of the
Government and is bound by the principle of collective responsibility™
(Attorney-General™s Review of the Year 2001“02, para 19). The Attorney
General also has a unique role as ˜guardian of the public interest™ and in that
capacity he or she brings (or may allow a private individual to bring in his or
her name) civil proceedings for the enforcement of public rights. When acting
in this capacity, the Attorney General is said to act ˜in a wholly independent
and quasi-judicial capacity and not as a member of the Government™
(Attorney-General™s Review of the Year 2001“02, para 19; on the Attorney


. 72
( 155 .)