Responsibility in the Constitution
II The Origins of Individual Responsibility
Power in the Constitution
Constitutionally, the power of the state flows from the Crown and generally speaking may only be exercised by or on the authority of the Crown. Parliamentary and cabinet government is a system that has evolved to ensure that power is exercised responsibly by the Crown and its advisers.
The powers of the Crown may be divided into two classes, those deriving from the Crown in Parliament and those deriving from the prerogative. The powers of the Crown exercised under statute law are authorized by the law-making authority, which is the Crown in Parliament. Those deriving from the prerogative find their origins in the ancient customary powers of the king, which have become part of the Common Law and (like statutory powers) are subject to the interpretation of the courts.1 They are, however, exercised without reference to Parliament.
In theory, under the feudal Crown all power flowed from the prerogative. The king exercised not only the executive power, but also what later became the legislative power (principally the authority to tax and to spend) and through his courts the judicial power.
The history of parliamentary government has been a process of narrowing the exercise of the prerogative authority by subjecting it increasingly to the pre-eminence of the statutory authority, substituting the authority of the Crown in Parliament for the authority of the Crown alone. This process may aptly be characterized as having made the Crown responsible to Parliament for the exercise of its power. The Crown continues to exercise the legislative power, but it can only do so with the approval of Parliament. Coincidently, although the Crown continues to preside over the courts, it has been required to exercise the judicial function through an independent judiciary. These are the qualities that make the Crown "constitutional", and the means whereby this has occurred have gradually reduced the Crown's prerogative powers and ensured that the residue is subject to judicial interpretation. It is important to note, however, that throughout the process authority for the exercise of power has remained with the Crown, and the exercise of power by the Crown on the advice of responsible ministers forms the basis of constitutional responsibility for the exercise of power in the system as we know it today.2
The Responsible Use of Power
The medieval Crown was supposed to provide the customary costs of government from its hereditary and feudal revenues. There was no system of taxation, and thus no pecuniary need for the Crown to consult lords or commoners. Government was minimal in scope, but there was, nonetheless, a well-defined concept of responsibility according to which it was the duty of the Crown to provide the governance of the realm, and from the earliest days the chief men of the realm advised the Crown on its administration. The notion of the government being provided by the "King in Council" is as old as the Norman conquest.
War could not, however, be financed from the hereditary revenues, and the expense of war gave rise to the imposition of extraordinary taxes over and above the traditional feudal levy. Taxation created tension between the Crown and the baronage, culminating in the first milestone of responsible government, Magna Carta, which established that the prior consent of those to be taxed was necessary before taxes could be levied by the Crown. By the 13th century the development of society was such that taxation began to be imposed directly on a class of landed gentry and burghers that was as articulate as the baronage, and the principle established by Magna Carta required that they consent to the levying of taxes. The development of an assembly of commoners for this purpose completed the essential structure of Parliament as we know it: the Crown, the Upper House and the Commons.
It was not, however, until the constitutional struggle in the 17th century that the principal steps were taken that made possible the responsibility of the "Government" to the House of Commons, which became clearly distinguishable (if not always upheld) in the constitution by the close of the 18th century. The struggle between the commoners and the Crown in the 17th century was qualitatively no different from that between the Crown and the baronage in the 13th century: each was pursued to force the Crown to exercise power responsibly.
The weakening of the baronage during the long period of civil strife preceding the establishment of the Tudors, was followed by a vigorous reassertion of the power of the Crown, which climaxed during the reign of Charles I. The responsibility that had been forced upon the Crown by the medieval baronage had receded as the power of the baronage declined, and in the 17th century was cast off in favour of the Stuarts' belief in "Divine Right of Kings". By the mid-17th century the principal restraint on the Crown and the principal source of revenue were the newly established mercantile and landed gentry classes, who were the commoners. The imposition on this group of taxation without consent, and the enforcement of its collection without recourse through law, precipitated the great struggle between the Crown and the Commons.3 That struggle witnessed the ultimate penalty for personal irresponsibility in the use of power: the execution of a king; and its outcome was to establish the foundation of the convention of ministerial responsibility before the House of Commons.
The Origins of Ministerial Responsibility
By the close of the 17th century, more particularly through the Bill of Rights, the Mutiny Act, and the Act of Settlement, the Crown's dependency on the Commons for the imposition of taxes was embedded in the constitutions.4 The king's advisers continued to be appointed by the Crown, but they found it necessary to work in harmony with the Commons because it exercised control over the financial and military power of the Crown. If the king's ministers, those in charge of the principal offices of state, were to function successfully, if money was to be granted, they had to get along with a majority of members of the Commons. Gradually ministers saw the importance of - and a considerable number, particularly those with financial responsibilities, profited from - being members of the House of Commons.
Control over ways and means (taxation) and supply (expenditure) enabled the House of Commons to hold ministers responsible for their actions, which is to say that ministers, appointed by the Crown, were held responsible for the actions they took in the name of the Crown. This individual responsibility was manifested not only in the accounting that ministers might be required to give to Parliament, but also in the impeachment procedures that were used to force the Crown to dismiss a minister who ceased to enjoy the confidence of Parliament.5
There was little respect for the concept of "the Government", and ministers entered and left office individually as the king (occasionally at the behest of Parliament) saw fit.
The ability of the king to pick and choose ministers was circumscribed by political forces at work in Parliament and among ministers. The growth of political parties favouring particular groups of ministers further reduced the exercise of the Crown's prerogative. George I, the beneficiary of the Hanoverian Settlement, owed his throne to the new Whig party, and was constrained to select his ministers from this group.6 George I had the additional handicap of speaking little English. The powers of royal patronage were now increasingly exercised on the advice of the principal Treasury Lord, who became the first of the king's ministers. In short, the Hanoverian Settlement began the process of substituting prime ministerial control for the king's control over the selection of ministers.
By the time of the Seven Years War the First Lord of the Treasury had begun to be known as first or prime ministers.7 By the end of the century the prime minister had taken effective control over the appointment although not necessarily the dismissal of ministers and some other senior office holders.8 This development made possible and was accompanied by the emergence of the cabinet as a device for co-ordinating the views of ministers in order to enable them to support one another in the House of Commons. In this way the critical convention of collective responsibility was added to the individual responsibility of ministers, which in the 18th century was a legal matter rendering them liable to impeachment. Individual responsibility remains the primary legal basis of the system today. The possibility of impeachment has been replaced by the threat of loss of office, which usually takes place through voluntary resignation in order not to invoke the collective responsibility of colleagues that would result in removal from office of the ministry as a whole.9
Ways And Means, and Supply
The imposition of constitutional responsibility, first on the Crown and later (in its behalf) on its advisers, came about through the struggle first of the Lords and later the Commons to force the Crown to levy taxes only by consent.
During the century that followed the model or first true Parliament of 1295, it was the practice for grants to the Crown to be made by the Commons with the advice and assent of the Lords. This practice, like most matters relating to Parliament, was of somewhat doubtful permanence given the neglect of that institution during the civil strife of the 15th century and its co-optation to the autocratic tastes of the early Tudors. The practice was, however, actively reasserted towards the close of the 16th century and under Charles I it precipitated the great constitutional crisis of the 17th century. The Bill of Rights and later the Act of Settlement resolved the responsibility of the Crown to act in accordance with the law, and in particular the Bill of Rights established that "levying money for or to the use of the Crown.... without grant of parliament.... is illegal", and set in place annual meetings of Parliament that led to a system of annual grants of money to the Crown.10
Until the 18th century, the practice had been for Parliament to approve the levying of a specific tax so that the proceeds could be used for a particular purpose. Control of the purse (i.e. the permission to spend, or granting supply) was a consequence rather than the cause of parliamentary control of taxation. In essence, therefore, parliamentary control over public spending grew out of the struggle to prevent the arbitrary imposition of taxation. These circumstances, coupled with the constitutional principle that because power emanates from the Crown only the Crown may govern, established that only the Crown could propose a tax or an expenditure. Erskine May, the foremost authority on the subject, has put it like this:
The Sovereign, being the executive power, is charged with the management of all the revenue of the State, and with all payments for the public service. The Crown, therefore, acting with the advice of its responsible ministers, makes known to the Commons the pecuniary necessities of the government; the Commons, in return grant such aids or supplies as are required to satisfy these demands; and they provide by taxes, and by the appropriation of other sources of the public income, the ways and means to meet the supplies which they have granted. Thus the Crown demands money, the Commons grant it, and the Lords assent to the grant: but the Commons do not vote money unless it be required by the Crown; nor do they impose or augment taxes, unless such taxation be necessary for the public service, as declared by the Crown through its constitutional advisers.11
The latter principle was placed among the rules of the Commons at the beginning of the 18th century.
Following the constitutional watershed of the 17th century, the constitutional advisers of the Crown became more closely associated with Parliament until by the mid-18th century they became inseparable from it. At a time when government was growing, political parties taking more permanent form, and the Crown was if not always less politically active certainly more inured to the acceptance of "advice", the ministry as we now know it began to emerge in the constitution.
Following the passage of the Mutiny Act in 1689 all military expenditure was made subject to annual votes of supply. The civil government was in theory provided from the proceeds of the Civil List, voted to the Crown at the beginning of each reign and renewed without further reference to Parliament each year until the sovereign's demise. In fact, however, there were frequent deficits and corresponding need for the king's ministers to seek new supply from the Commons.12 Indeed, Parliament annually appropriated the bulk of public expenditure throughout the 18th century, although it must be admitted that the scrutiny of the Commons was cursory and there was a general expectation that it was up to the Treasury to assure the Commons that spending was being adequately managed and controlled.13 The principle of annual appropriations by Parliament was extended to all civil expenditure in the first part of the 19th century when by stages the Civil List was reduced to meet only the personal expenses of the sovereign, and funding for the civil administration was placed on the same annual basis as that for the military services.
The constitutional history of parliamentary and cabinet government traces the process of ensuring that individuals who exercise power are constitutionally responsible. At first the Crown, the source of power in the system, was held responsible by the great men who were the principal officers of the realm. Later it was the Commons that sought this role, and ultimately secured it through holding the Crown accountable by making its advisers responsible to the House for their exercise of the Crown's power. Thus the individual power of the king was made responsible by Magna Carta in the 13th century and by the Bill of Rights in the 17th century. In the 18th century that power was placed in commission,14 and the ministers who exercised it were made responsible individually to the House of Commons. Our system of parliamentary and cabinet government is, therefore, based on the constitutional responsibility of ministers to the elected House of Commons, monarchical government having been succeeded in the efficient constitution by ministerial government.15
- See Habsburg's Laws of England 14th edition, (London, 1974) vol. viii, page 583
- For discussion of this elusive subject see S.A. de Smith, Constitutional and Administrative Law 2nd edition, (London, 1973) pp. 114ff; and Sir William Anson, The Law and Custom of the Constitution 4th edition, (Oxford, 1935) vol. ii, pt. i, pp. 17-72.
- The best-known of these taxes was Shipmoney, a levy on each county for the provision of ships for the king's service, and the means of enforcement was the Star Chamber, which dispensed with the procedures of the courts in order to place criminal justice in the hands of the king.
- These measures created "constitutional monarchy". The Bill of Rights (1689) established that the law-making authority is the Crown in Parliament, the Mutiny Act (1689) made the existence of the army dependent on the annual approval of Parliament, and the Act of Settlement (1701) inter alla removed the control of justice from the hands of the king.
- "Parliament used to bring Ministers to account by a semijudicial process. The King could do no wrong in the eyes of the law (unless he was Charles I or James II) and it was more satisfactory and expedient to attack his advisers for their evil counsel by charging them with high crimes and misdemeanours. The Commons were the accusers; the Lords were the judges; the process was called impeachment. Not only Ministers but officials and judges accused of corruption, were impeached; the verdicts were not necessarily a foregone conclusion. During the course of the 1 8th century votes of censure against Ministers and Governments gradually replaced the cumbersome machinery of impeachment; political accountability was better achieved without a heavy-handed political trial. The last impeachment was brought in 1805; the procedure has never been abolished but it is in practice obsolete." It survives in the United States. See de Smith, Constitutional and Administrative Law page 169.
- The Crown devolved on the House of Hanover according to the terms of the Act of Settlement of 1701. When Queen Anne died in 1714, the Tories straddled the fence between George and the Stuart pretender (James II's son) whereas the Whigs firmly backed the settlement of the Crown on George, the Elector of Hanover.
- It was first used as a term of derision by Walpole's political opponents during his long tenure as First Lord of the Treasury from 1721 to 1742.
- The right of a prime minister to require the resignation of his colleagues has been exercised very sparingly. The precedent was established in 1792 when the younger Pitt secured the dismissal of the Lord Chancellor by informing the King that he must choose between the Lord Chancellor and himself. It was not until the late 19th century that the precedent became convention. Today the "nonfederal" nature of the relationship among ministers and between ministers and the prime minister is confirmed by the sparing use of the prime minister's right to dismiss ministers and the unhappy consequences that usually follow from the removal of groups of ministers. See Robert, Lord Blake, The Office of Prime Minister (Oxford, 1975) pp. 30-39.
- See Anson, Law and Custom of the Constitution volume ii, pt. i, page 118.
- See Sir Ivor Jennings, Parliament 2nd edition, (Cambridge, 1969) page 283.
- Sir Erskine May, The Law, Privileges, Proceedings and Usage of Parliament 18th edition, edited by Sir Barnett Cocks, (London, 1971) page 676. (May first published his book in 1844, and he and later his successors have kept it up to date.) It should also be noted that any M.P. may propose a reduction in expenditure.
- It is worth noting that the charge of the civil administration on the public purse in the 18th century was at best one-tenth (and often less) of the charge of the naval and military services.
- For an excellent account of the Commons' relationship with the Treasury during the 18th and 19th centuries see Henry Roseveare, The Treasury (London, 1969) pp. 88-132. At page 91, Roseveare cites the apparently typical views of one M.P. on the subject of accountability in 1775: "Could any ministers carry on the business of the public if any gentleman in this House has a right to call for such an account? It would be impossible...; the public service can never be advanced by calling for accounts which destroy your confidence in them." The author of this statement merely recorded that in partisan circumstances questions of administration are unlikely to be discussed dispassionately.
- See below page 23, footnote 1, for a discussion of this term.
- Bagehot distinguished between two classes of institutions within the constitution: "...first, those which excite and preserve the reverence of the population - the dignified parts, if I may so call them; and next, the efficient parts - those by which it, in fact, works and rules....The dignified parts of government are those which bring it force - which attract its motive power. The efficient parts only employ that power". Walter Bagehot, The English Constitution 2nd edition (London, 1896) pp. 4-5. It might be added that the dignified parts are essential to the operation of the law of the constitution, whereas the efficient parts reflect practice and custom in the application of law and convention.
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