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policy-makers™ (R Pyper and L Robins (eds), Governing the UK in the 1990s
(1995), p 190).
The choice of new policies is invariably constrained by an inheritance of
policies and commitments from previous governments which have become
˜embedded in public laws and public institutions™: a government ˜accepts the
great bulk of its inheritance of legislation, willingly or faute de mieux™. Inherited
policies may prove to be politically irreversible or may be sustained by inertia
or lack of time to review them. (See R Rose and P Davies, Inheritance in Public
Policy: Change without Choice in Britain (1994).) Governments do nevertheless
take o¬ce with new policies to implement and will modify or rescind some of
their inherited programmes.
Once a policy has been decided upon, the means must be found to implement
it. Implementation of policy is a complex process which depends for its success
433 The powers of government


on a variety of factors, including the availability of the necessary resources
of manpower and money, an e¬ciently designed implementation programme
and the cooperation or at least submission of those a¬ected by the policy.
Fundamentally it brings into question the authority and powers of government.


2 The government™s powers
Among the power-resources available to government for implementing its
policies, Terence Daintith makes a useful distinction between the coercive power
or the resource of force, which he terms imperium, and the power to employ the
government™s material resources of wealth or property, which he terms dominium
(˜Legal analysis of economic policy™ (1982) 9 Journal of Law and Society 191). The
use of coercion by government requires express legal authority, to be found in a
body of ˜imperium-law™ which consists almost entirely of statutes and delegated
legislation, but includes some remaining prerogative powers. The use by the
government of its dominium, if expenditure is involved, must be covered by
parliamentary authorisation “ the annual Appropriation Act or speci¬c legisla-
tion. Daintith includes in ˜dominium-law™ ˜those legal devices of the common
law, such as contracts, gifts and other transfers, through which the wealth of
government may be deployed™ (ibid, p 215). The government often prefers to rely
on dominium, which is more ¬‚exible in use and may exact a lower political cost
than recourse to imperium. (See further Daintith, ˜The techniques of govern-
ment™, in J Jowell and D Oliver (eds), The Changing Constitution (3rd edn 1994).)
When the government requires an addition to its coercive powers, primary
legislation by Parliament will normally be necessary, but delegated legislation
may su¬ce if there is existing statutory authority for recourse to it, or, rarely,
power to legislate under the prerogative may be available. Again, if the govern-
ment needs to make provision for expenditure on a continuing basis, for which
annual parliamentary appropriation is considered constitutionally insu¬cient,
it is expected to obtain authorisation in a speci¬c Act of Parliament. (This
was done, for instance, in the Nursery Education and Grant-Maintained
Schools Act 1996, which gave power to the Secretary of State to make grants to
providers of nursery education.)
Imperium-law and dominium-law invest the government with a host of execu-
tive powers by which policies are carried out in detail. Such powers generally
include some (often considerable) degree of discretion as to the way in which
they are exercised. The exercise of governmental power in modern conditions
frequently necessitates an informal, administrative rule-making which is a kind
of self-regulation by the government. This ˜quasi-legislation™ does not (indeed
cannot) e¬ect alterations in statute or common law but, as we shall see, it can
a¬ect private interests and may have legal consequences. (See further below.)
In some instances the government seeks to achieve its objects by the use of
guidance “ a hybrid technique which sometimes includes an element of legal
authority and sometimes depends simply on the government™s persuasive power.
434 British Government and the Constitution


All the powers of government are subject to constraints. Some of these are
inherent in the speci¬c powers themselves: for example, the power to legislate
depends on parliamentary consent, and the exercise of discretionary powers
under statute or common law is subject to legal limits supervised by the courts.
Other constraints stem from the European context in which British governments
must function (chapter 5). Then there are the countervailing powers possessed in
various measure by opposition parties, organised groups, local authorities,
multi-national corporations and international organisations. In an analysis
which rests upon an idea of ˜governance™ rather than of ˜government™, some see
the central executive as only one actor in a world of policy communities or
˜networks™, in which policies emerge through bargaining and agreement at a
remove from Parliament and the public. But this analysis seems to underrate the
primacy of government and Parliament in the constitutional system. Admittedly,
the forces of limitation may be so powerful, especially in combination, as to
compel government to make concessions or even to relinquish a policy. Or again
the government may be driven to use one form of power instead of another, to
exhort or bargain rather than to command. Some goals are in any event beyond
the capacity of government to achieve, whatever the outpouring of laws, guidance
or admonition.
But this is not to say that government in the United Kingdom is feeble and
constricted. We have a central executive which is uncon¬ned by a written con-
stitution or a federal structure and unchecked by the balancing arrangements
of a thoroughgoing separation of powers. It has established an ascendancy over
the House of Commons and can dominate local government. In what the
Memorandum of Dissent to the Kilbrandon Report described as ˜the largest and
most centralised unitary state in Western Europe™ (Cmnd 5460-I/1973, para 34),
the government has at its disposal great and far-reaching powers for putting its
policies into e¬ect.
See further D Marsh and R Rhodes (eds), Policy Networks in British
Government (1992); R Rhodes, Understanding Governance: Policy Networks,
Governance, Re¬‚exivity and Accountability (1997); M Bevir and R Rhodes,
Interpreting British Governance (2003).


(a) Parliamentary legislation
For many of its purposes the government needs to obtain an Act of Parliament.
In particular, an Act is necessary for implementing government policies that
require changes in the law, the imposition of charges on the public or the
assumption of new legal powers. Our present concern is with parliamentary
legislation as a resource of government; attention will be given in chapter 9 to
Parliament™s scrutinising function in the passage of government bills.
Putting aside the Consolidated Fund and Appropriation Acts (which for-
mally authorise expenditure), the annual Finance Act (for the raising of taxes)
and Acts to consolidate the law, public Acts may be passed in order to change
435 The powers of government


existing policy or launch an entirely new policy or, on the other hand, to correct
de¬ciencies in existing legislation or to provide ˜running repairs to the machin-
ery that has been established for securing policy objectives but without any
intention of altering those objectives™ (I Burton and G Drewry, Legislation and
Public Policy (1981), distinguishing, at pp 36“40, between ˜policy™ and ˜admin-
istration™ bills).

(i) Making of government bills
Legislative proposals may arise from commitments made in the Queen™s speech
at the beginning of the parliamentary session or from bids by government
departments. These will sometimes have as their source:
• recommendations of the Law Commission;
• European Union obligations: in particular, EU Directives which must be
transposed into national law;
• an adverse ruling by a United Kingdom court, the European Court of Justice
or the European Court of Human Rights;
• unanticipated events requiring an urgent legislative response.
The Cabinet O¬ce advises (Guide to Legislative Procedure 2004, para 1.9):

Before seeking a slot in the Government™s legislative programme, the first thing a depart-
ment should consider is whether primary legislation is really necessary. Parliamentary time
is limited and departments should always consider whether the ends they wish to achieve
could be reached by delegated legislation or purely administrative means.

Both in formulating policy and once it has been decided to introduce a bill the
government may embark on a process of consultation with outside interests,
and sometimes issues consultation documents (such as preliminary ˜Green™ or
¬rmer ˜White™ Papers) which invite public comment. Consultation can help to
improve and legitimise a bill and win the support of those whose cooperation
is needed if the legislation is to be e¬ective.
In Making the Law (1992), the Hansard Society Commission on the
Legislative Process reported much dissatisfaction with the extent and manner
of consultation and made a number of recommendations for more timely, open
and su¬cient consultation so that bills could be got into ˜a form ¬t for enact-
ment, without major alteration, before they are presented to Parliament™.
Instead, as it found, consultation often continued during a bill™s passage
through Parliament and consequential government amendments might be
introduced at a late stage of the parliamentary process. In 1997 the Select
Committee on Modernisation of the House of Commons noted criticisms that
there had been little, if any, consultation with the House before bills were
formally introduced, and that consultation with bodies outside Parliament with
a legitimate concern in the legislation had been ˜patchy and spasmodic™ (First
Report, HC 190 of 1997“98, paras 5, 6). Subsequently the Government issued a
436 British Government and the Constitution


Code of Practice on Consultation which urges departments to consult widely
throughout the process of policy development and sets out criteria for e¬ective
consultation. The House of Lords Select Committee on the Constitution
reported in 2004 that there had been a positive development since Making the
Law (above): proposed measures were being regularly put out for consultation
and there was wide dissemination of consultation documents to interested
parties (Fourteenth Report, HL 173-I of 2003“04, paras 15, 16).
Prelegislative scrutiny by Parliament as well as consultation with outside
bodies are facilitated if bills are published in draft well before their formal intro-
duction. Five draft bills were published in 1994“95, to be introduced in the
following session of Parliament, and this salutary precedent has since been
followed in respect of many major bills (eg, the Freedom of Information Bill,
the Mental Health Bill and the Corporate Manslaughter Bill), but the practice
has not yet become the norm. The Constitution Committee in its Fourteenth
Report (above) recognised that some bills are not suitable for publication in
draft but added that ˜the occasions when bills are not published in draft should
be the exception rather than the rule™ (para 31). (See further below, p 634 with
regard to prelegislative scrutiny.)
The government™s legislative programme is managed by the Cabinet™s
Committee on the Legislative Programme which submits to the Cabinet
proposals for legislation to be included in the programme, monitors the
progress of bills in preparation and during their passage through Parliament,
examines draft bills and considers the parliamentary handling of government
bills in the current session. Once a bill has been approved, the sponsoring
department gives instructions to Parliamentary Counsel for drafting the bill for
presentation to Parliament. Their essential task ˜is to give e¬ect to the govern-
ment™s intentions in a form capable of withstanding Parliamentary and later
judicial scrutiny™ (T Daintith and A Page, The Executive in the Constitution
(1999), p 250). This work has often to be done under great pressure of time and
on the basis of incomplete instructions, with the consequence that Parliament
has sometimes received an un¬nished and ¬‚awed bill in need of extensive
amendment.
Explanatory Notes are published together with the bill, to inform Parliament
and others of the background, structure and content of the bill. A Regulatory
Impact Assessment is also published, if the bill has an impact on business,
charities or the voluntary sector, identifying the interests a¬ected and estimat-
ing the likely impact in terms of costs and bene¬ts. A memorandum must be
produced for the Legislative Programme Committee with regard to the bill™s
compatibility with Convention rights, and the Explanatory Notes must also deal
with any human rights aspects of the bill.
No distinction is made in parliamentary procedures between ˜administra-
tion™ and ˜policy™ bills although, as Gavin Drewry remarks, the former bills
should in principle be dealt with more quickly, whereas ˜all too often a great deal
of time is taken reopening long settled issues of principle: the bulk of legislative
437 The powers of government


scrutiny should be directed at policy bills, but this does not always happen™
(S Walkland and M Ryle (eds), The Commons Today (rev edn 1981), p 112).
From the government™s point of view Parliament is part of the machinery by
which its policies are implemented. The approving and legitimating function of
Parliament dominates the perspective not only of the government front bench
but also, in general, that of backbenchers on the government side. The improve-
ment of a bill as an instrument of the government™s policy is part of this
function, and is carried out chie¬‚y on the initiative of the government itself.
Opposition members will often cooperate in the work of improvement of
an uncontroversial bill, but if they oppose a bill will ¬ght for concessions
or “ wholly rejecting the policy on which a bill is based “ will set to work to
defeat, weaken or delay it if they can. In short, government and opposition act,
with respect to contested bills, upon di¬erent conceptions of the parliamentary
function. But Parliament as an institution normally acts in accordance with the
government™s conception of its role, which is to support, perfect and enact
the government™s bills. For this reason it is commonly said that parliamentary
legislation is in reality a function of government.
When a government bill is introduced in Parliament it has usually already
been ¬rmly shaped in a process of departmental and inter-departmental or
Cabinet discussion and consultation with outside interests. Accommodations
will have been reached and bargains struck. The House receives, as Mackintosh
observed, ˜what is, to all intents and purposes, a ¬nished product™ (P Richards,
Mackintosh™s The Government and Politics of Britain (7th edn 1988), p 149), even
though, as we have seen, it may be far from polished or water-tight in its detail.
The bill™s passage through Parliament is generally assured by the government™s
disciplined majority, its control of the business of the House, the cooperation
of the opposition (if cross-party agreement can be reached on a timetable) and,
in the last resort, its command of procedural techniques such as the guillotine
(allocation of time order) or the closure. (Closure motions are a means, in
practice seldom having to be invoked, of terminating debate.)
Nevertheless the parliamentary process is not wholly conformable to the
government™s will and there may be a continuing necessity to accommodate the
misgivings of backbenchers, the probing of opposition and the unresolved
concerns of outside interests: on the considerable extent to which this has been
required under the premiership of Tony Blair, see P Cowley, The Rebels: How
Blair Mislaid his Majority (2005), discussed in chapter 9).


JAG Griffith, ˜The Place of Parliament in the Legislative Process™
(1951) 14 MLR 279, 287“8

˜Those who are familiar with Parliamentary procedure™, writes Ilbert, ˜are well aware of the
difficulties with which the promoter of any important measure has necessarily to contend.
The measure may have gone through a long period of gestation before its introduction to
438 British Government and the Constitution


Parliament. Information and opinions on different points will have been confidentially
obtained from various quarters; the provisions of the measure will have assumed many
varying forms; and the alternatives will have been carefully discussed and compared. Yet, in
spite of all these precautions, as soon as the measure has been printed and circulated,
swarms of amendments will begin to settle down on the notice paper, like clouds of
mosquitoes.™ [Legislative Methods and Forms (1901), p 230.] The procedure in Parliament
which follows is so well-known that no detailed comment is called for. It is worth noting,
however, that the opposition to the Bill in Parliament both in principle and on points of detail
is to a large extent inspired by those sections of the community who, as affected interests,
will already have had some opportunity of making their opinions known. Discussion and
consideration at Westminster are not confined to the recognised stages of a Bill. Often the
informal meetings are more important. These are of two kinds: those which take place within
each Parliamentary party and those which take place between the parties. Of the first kind,
are the regular meetings of the leaders of the parties with their Parliamentary members in
the House of Commons. In these private meetings, matters of policy and detail are discussed
at length and amendments to be urged (in the case of the Opposition) or made (in the case
of the Government) are agreed. This is part of the planning stage for the Parliamentary battle
and gives an opportunity for the opinions of backbenchers to be heard once again.
The second kind comprises all the negotiations on a Bill which take place ˜through the usual
channels™ or ˜behind the Speaker™s chair™. In the House of Lords in particular, informal

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