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available to Ministers, and on the other provides Ministers with the direct advice of distin-
guished ˜experts™ in their professional field, while reinforcing the political impartiality of the
permanent Civil Service by distinguishing the source of political advice and support. With the
exception of the Prime Minister, Cabinet Ministers may each appoint up to two Special
Advisers. The Prime Minister may also authorise the appointment of one or two Special
Advisers by Ministers who regularly attend Cabinet. The Government expects the appoint-
ment of experts normally to be made to permanent or temporary Civil Service posts in
accordance with the rules of the Civil Service Commissioners. Where, however, an individual
has outstanding skills or experience of a non-political kind which a Minister wishes to have
available while in a particular post, the Prime Minister may exceptionally permit
their appointment as an expert adviser within the usual limit of two advisers per Cabinet
Minister. All appointments require the prior written approval of the Prime Minister, and no
commitments to make such appointments should be entered into in the absence of such
approval. Any departures from the rule of two Special Advisers per Cabinet Minister will need
to be explained publicly. All such appointments should be made, and all Special Advisers
should operate, in accordance with the terms and conditions of the Model Contract for Special
Advisers and the Code of Conduct for Special Advisers.

In addition, ministers may exceptionally appoint unpaid advisers, with the
written approval of the Prime Minister: these are not civil servants (Ministerial
Code (2005), para 2.14).
Under the model contract special advisers are subject in general to the same
rules of conduct as other civil servants but with important exceptions “ in
particular, in being able to advise and assist ministers ˜with a degree of party
political commitment and association which would not be possible for a per-
manent civil servant™ (Code of Conduct for Special Advisers, para 18). They are
not, however, to take part in public political controversy.
427 Crown and government


It is intended that special advisers should supplement or counter the
conventional wisdom of the departments, follow up the implementation of
ministerial decisions and maintain direct links with the party and with outside
interest groups. The best special advisers, it has been said, ˜combine expert
knowledge of a ¬eld of policy, political commitment and an understanding of
the Whitehall machine™ (Top Jobs in Whitehall, Report of an RIPA Working
Group (1987), p 56).
In July 2005 there were seventy-two special advisers in post. (There had been
thirty-eight in the Major Government.) The draft Civil Service Bill does not
propose an overall limit on the number of special advisers. An innovation was
made by the Civil Service (Amendment) Order in Council 1997, allowing up to
three special adviser posts in the Prime Minister™s O¬ce to have executive
(not merely advisory) responsibilities, allowing them to authorise expenditure
and give instructions to permanent civil servants. In general it appears that
special advisers make a useful contribution in supporting ministers and are able
to work in a constructive relationship with established civil servants. Some
observers perceive a threat to the tradition of a politically neutral civil service,
bringing a collective experience and objective judgement to bear on govern-
ment policy-making. On the other hand, the Committee on Standards in Public
Life reported: ˜Almost all witnesses made clear their view that special advisers
were valuable components of the machinery of Government™ (Sixth Report, Cm
4557-I/2000, para 6.26).
See generally House of Commons Public Administration Committee, Special
Advisers: Boon or Bane?, HC 293 of 2000“01; Committee of Standards in Public
Life, Ninth Report, Cm 5775/2003, ch 7 (see also the Government response, Cm
5964/2003).
7

The powers of government




Contents
1 Executive power
2 The government™s powers
(a) Parliamentary legislation
(b) Delegated legislation
(c) Prerogative legislation
(d) Executive powers
(e) Administrative rule-making (quasi-legislation)
(f) Guidance and codes of practice
(g) Voluntary agreement and self-regulation


No one in the modern state is untouched by the power of government.
The editors of a recent volume of essays on executive power write in their
introduction that:

at the opening of the twenty-first century, governments have become the most powerful
organs of nation states. They determine the direction, if not always the detail, of domestic
policy. They decide how public money should, and should not, be spent. Foreign policy is
made almost entirely by governments. And control of military power is likewise the preserve
of the executive. Whatever the truth of the claim that, in this era of apparent globalization,
states are no longer the only or even the most powerful units of political power, within nation
states governments still retain very considerable power. This is not to say that their power
can never be checked. Governments may rule, but they do not always rule supreme. In
democracies the personnel of the executive is subject to the verdict of the electorate; the
policies of the executive may be subject to political or parliamentary accountability; and the
legality of executive action may be reviewed by the courts of law.

(P Craig and A Tomkins (eds), The Executive and Public Law: Power and
Accountability in Comparative Perspective (2006), p 1.)
In this chapter we are concerned with the power and, more particularly, with
the powers (plural) of British government. A considerable proportion of the
429 The powers of government


chapter is devoted to exploring the law- and rule-making powers of gov-
ernment. As such it should be read alongside what is said about delegated
legislation in chapters 2 and 3, and what is said about parliamentary oversight
and legislative procedure in chapter 9.


1 Executive power
Even in the ¬rst half of the nineteenth century the condition of working
people in Britain was relieved or exacerbated by acts of government “ by Corn
Laws, Inclosure Acts, Poor Laws, Public Health Acts and Factory Acts. But the
increase since that time in the activity of government and its impact on the
daily life and work of the community has been immeasurable. Nineteenth-
century governments were not called upon to regulate a welfare state and
did not attempt to manage the economy, foster industrial development or
protect the environment. They concerned themselves little or not at all with
consumer protection, energy conservation, restrictive trade practices, full
employment or equal pay for men and women. They had no need to be
troubled with the construction and use of motor vehicles, the location of
airports or the disposal of nuclear wastes. All these and many other new activ-
ities and concerns have made enormous claims upon the resources of govern-
ment in our time.


Report of the Royal Commission on the Constitution,
vol I (Cmnd 5460/1973)

The subject matter of government
227. Throughout most of the nineteenth century government was concerned mainly with
law and order, external affairs and defence, the regulation of overseas trade and the raising
of revenue; it exercised a narrow range of regulatory functions, but its attitude in domestic
affairs was mostly passive and non-interventionist. . . . The situation today is quite different;
there are now very few areas of public and even personal life with which government can
be said to have no concern at all.
228. This expansion of government, while a constant feature of modern history, has
markedly quickened its pace at certain times. In [the twentieth] century two periods stand
out, both associated with the world wars.
229. The first period extended from 1908 to 1919. It began with the extensive social
reforms which were embodied in the Old Age Pensions Act 1908, the Labour Exchanges Act
1909 and the National Insurance Act 1911. There followed in war-time the imposition of
a widening range of administrative and economic controls. After the war those controls
were quickly wound up, but many of the new government departments, including those
established for Pensions, Labour, Air and Scientific and Industrial Research, remained in
being, and two additional departments, for Transport and Health, were set up. Each of these
new departments represented an enlarged area of government intervention.
430 British Government and the Constitution


230. The second period of rapid expansion was the decade from 1940. Apart again from
the complex apparatus of war-time controls, finally dismantled in the 1950s, there were
major developments in the social services and in the economic and environmental fields.
Legislation was passed to bring about major changes in the arrangements for education,
social security, health, agriculture, and town and country planning, and the Government™s
direct involvement in industry and the economy was increased through a series of Acts
providing for the nationalisation of basic industries. Changes in the character of economic
intervention were also implicit in the acceptance by the war-time Government of responsi-
bility for maintaining full employment.
231. In these and other ways government responsibilities have . . . widened immensely.
The range of subjects that may now be raised in Parliament provides some illustration of this.
We have examined a recent series of Parliamentary Questions to see how far it would have
been appropriate to put them at the beginning of the century. Our analysis covered Questions
receiving both oral and written reply in the House of Commons in one week in June 1971.
There were 718 Questions in all, and we estimate that between 80 and 90 per cent of them
could not have been tabled in 1900 since they related to matters which were not then of
government concern.


The system of government at the beginning of the twenty-¬rst century
remains, even though in the throes of reform, in many respects the same as that
with which Britain entered the First World War, after the nineteenth-century
Reform Acts had laid the foundations of parliamentary democracy and the
Parliament Act 1911 had curbed the powers of the House of Lords. In carrying
out their increased commitments, British governments have been able to use
the constitutional powers traditionally available to the Crown, and have
also captured powers from other institutions “ from Parliament and from local
government “ although it might be without any change in the formal location
of the power. Governments have often tried to remove restraints upon the exer-
cise of their powers and have invented new techniques for putting their policies
into e¬ect. But far from being something malign, the growth of governmental
power has followed inevitably from the increase in the tasks of government and
has been stimulated, at least in part, by the demands of social justice and public
welfare.
Conservative Governments from 1979 to 1997 espoused a political principle
or ideology of reducing the role of the state, but if this was accomplished in
certain respects (eg, through policies of privatisation and the ˜contracting out™
and ˜market testing™ of services) it was also associated with an accretion of
powers to central government. As WH Greenleaf observes (The British Political
Tradition, vol III, Part II (1987), p 994), ˜a government of explicitly libertarian
intent still accepts a very elaborate public agenda indeed™. In the early years of
the twenty-¬rst century we continue to inhabit a Britain of big government,
ample public spending and centralised power.
Governments decide upon their objectives and policies in response to
innumerable and varied “ often overlapping and sometimes contradictory “
431 The powers of government


in¬‚uences, among which are party policies, interest group pressures, media
campaigns, departmental studies, parliamentary opinion, perceptions of
public demand, foreign governments and the European Union. Michael Hill
(The Policy Process in the Modern State (3rd edn 1997), ch 5) remarks that
policy-making ˜is a process which involves elected politicians, appointed civil
servants and representatives of pressure groups who are able to get in on the
action™. He accordingly distinguishes three elements in the process: party-
political commitments or programmes; bargaining with in¬‚uential pressure
groups; the input of civil servants; and emphasises that these elements
are ˜mixed in varying combinations and often in all stages of the process™.
A participatory (or ˜deliberative™) model of democracy would go further, to
include arrangements for greater public involvement (through extensive con-
sultation, citizens™ juries and discussion in a variety of forums) in the forma-
tion of policies.

Robert Leach in Maurice Mullard (ed), Policy-making
in Britain (1995), pp 34“5
Policies emerge in a variety of ways. Sometimes they seem to result from a relatively closed
process internal to government, from the work of civil servants in major departments of
state, perhaps aided by a handful of specialist outside advisers, but with little apparent public
debate. Examples might include much of defence policy and some of the more technical
aspects of economic policy, such as the decision of Nigel Lawson to maintain the value of
sterling in line with that of the German mark from 1985. Such relatively technical policy
issues often seem to exclude much of what is usually understood by political activity. Indeed,
Lawson™s policy of shadowing the mark was so little debated in public that even his own
prime minister seemed for a time to be unaware of it. Yet even fairly abstruse technical
issues may become caught up in a wider political debate, as indeed subsequently happened
with Britain™s membership of the Exchange Rate Mechanism.
Public policy may be more commonly perceived as the outcome of an overtly political
process involving a highly public debate between political parties. Policy proposals may indeed
be derived from party principles or ideologies, or connected with formal commitments in party
manifestos. The privatisation programme of the Thatcher and Major governments and the intro-
duction of competition and commercial principles into the operation of public services clearly
reflect a particular and contested political philosophy.
The role of organised groups may, however, often be more significant than that of the party
in the emergence of specific public policies. The debate between rival interests may take place
largely in the corridors of power in Westminster and Whitehall, or it may be fought out in the
public arena. It may involve the services of specialist consultants operating behind the scenes,
influencing or purporting to influence key decision-makers, or it may involve highly visible
public demonstrations. The conflict between rival interests may broadly parallel the party
divide, or it may cut across party positions, as in the case of Sunday trading where conflicting
pressures upon and within the Conservative Party, involving major retailing, trade union and
religious interests, persuaded the Cabinet to allow a free vote.
432 British Government and the Constitution


The role of the wider public in the policy process is more debatable. The electorate is often
held to give a ˜mandate™ to the party that forms the government, and this mandate may be
cited to suggest public support for specific policies, particularly those included in the party™s
election manifesto. However, the notion of a mandate raises considerable theoretical and
practical difficulties. Public influence may be more obvious in the negative sense, as a con-
straint inhibiting certain policies. Thus it was long assumed in the post-war era up until the
1970s that a government that abandoned a commitment to full employment would be deci-
sively rejected by the electorate. More recently there has been a widespread assumption that
commitments to increased public spending and taxation would spell disaster at the polls.
Such assumptions may not always be correct, but if they are held by ministers, their advis-
ers and other influentials, they are likely to have a significant impact.
Clear evidence of public opposition to specific policies has sometimes led to their
reversal “ the most notable example being the abolition of the Community Charge (or poll
tax) only three years after its introduction as the ˜flagship™ of government policy. Rather more
rarely, public opinion may pressurise a government to act, a possible example being the
legislation to control dangerous dogs. Such instances frequently raise questions about
the media presentation of particular events and issues. ˜Public opinion™ is often interpreted,
and perhaps essentially moulded, by the press and electronic media, pushing issues such as
homelessness or child abuse onto the public policy agenda.
So far, UK public policy has been related essentially to political activities and pressures from
within the country. Clearly, however, public policy in the United Kingdom is often constrained
by pressures and developments outside. The political system is far from closed. Key policy
decisions may be abruptly forced on governments by forces beyond their control. Examples
would include the devaluation of the pound sterling in 1967, or the United Kingdom™s depar-
ture from the Exchange Rate Mechanism in 1992. More routinely, policy is clearly constrained
by UK membership of various international associations, most obviously the European Union.


Of the pervasive in¬‚uence of the laws and policies of the European Union on
policy-making in the United Kingdom, Trevor Salmon remarks: ˜this in¬‚uence
reaches deep into departmental life, limiting the freedom of action of British

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