This chapter examines the extent to which, and the ways in which, British constitutional law protects various aspects of personal liberty – of what may be called ‘civil liberties’. This is a very large topic, as well as being a critically important one, and we have had to be selective. In our selections we have tried to focus on issues that are both topical in early twenty-first century Britain and representative of the overall field. We start with a survey of the relevant sources of law. In the next section we move on to examine the regime of Convention rights that was introduced into UK law by the Human Rights Act 1998. In doing so we pay particular attention to the impact of Convention rights in areas touching upon matters of national security and counter-terrorism. This section may be read as a case study of the way in which the Human Rights Act has worked thus far. The chapter closes with two further case studies of the way in which liberty is protected in Britain. These case studies, concerning freedom of expression and freedom of assembly, consider both common law and statute and seek to place the Human Rights Act in the context of an analysis of the overall strengths and limitations of the constitutional protections of liberty in Britain.

This chapter and the following two are concerned principally with questions relating to accountability and, in particular, to the accountability of government. We have divided our discussion of accountability into three broad areas, although it is important to stress that these areas should be seen as operating with and alongside one another and not in opposition to one another. (This is not to say that there are no tensions between the various forms or institutional mechanisms of accountability, however.) In this chapter we consider what might rather loosely be called popular accountability and ask ‘what role or roles does the British constitution accord to its people’? In chapter 9 we focus on questions of parliamentary accountability which, traditionally, has been the most important form of governmental accountability in the British constitutional order. In chapter 10 we consider the role of the courts in providing, for example, for mechanisms whereby government actions and decisions may be judicially reviewed.

The people in the constitution

An ideal conception of a democratic society is one in which the people continuously and actively participate in political affairs. In the real world, societies that fall short of this ideal are nevertheless termed democratic if by their constitutions the people freely elect a government and can at frequent intervals dismiss it and elect another. To this extent, at least, the constitution of the United Kingdom is democratic (see pp 34–40 above).

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:

(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.

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 particular, 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.

Legal rules

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

Dicey's statement needs qualification. It fails to take account of the extraordinary powers deriving from the royal prerogative, or of the ‘law and custom of Parliament’, which has developed separately from the ‘ordinary’ law.

This book is concerned with the organisation, powers and accountability of government in the British constitution. It has been written from a lawyer's perspective, modified by an awareness that the British constitution is far from being exclusively the handiwork of lawyers. Judges and other practitioners of the discipline of law have made a notable contribution to it, but so have political philosophers, controversialists of many hues, party organisations, peers, rebels in and out of Parliament and the legions of special interests. Yet lawyers sometimes pretend that the constitution is theirs, teaching and writing about it in myopic isolation.

We have written this book in the conviction that the law student will arrive at an incomplete and fragmentary view of the constitution unless encouraged to take account of ideas, practices and relationships that occur outside the strict limits of the law of the constitution. The law student has much to learn from writers and practitioners in politics, government and public administration, just as students of these subjects can enrich their studies by learning something of the values, constraints and possibilities of the law. If asked a question, say, about the power of Parliament, a lawyer and a political scientist may give very different answers. But they are describing the same institution, and for a full understanding of its place in the constitution each of them needs to take the other's perspective into account.

Introduction: responsible government

Our constitutional system is one of ‘responsible government’. The idea of political (or constitutional) responsibility is wide enough to include a number of values (no fewer than twelve are identified by Gilbert, ‘The framework of administrative responsibility’ (1959) 21 The Journal of Politics 373), but in the present context two are of particular importance. The first is indicated by AH Birch, Representative and Responsible Government (1964), pp 17–18, in saying that ‘the term “responsible” is commonly used to describe a system of government in which the administration is responsive to public demands and movements of public opinion’. The responsibility of government in this sense implies that it is responsive to (takes heed of, defers to) demands, pressure or influence exerted by the public, or on its behalf by institutions or organisations that have an acknowledged place in the constitutional system. We may take the correlative of ‘responsiveness’ to be ‘control’, so that a responsive government is one that submits to control by the public or by representative bodies. ‘Control’ is a central concept of constitutional thought and practice, and it needs some elucidation.

A dictionary definition of control gives as synonyms ‘command’, ‘restraint’ and ‘a check’, and it is evident that the word may be used in strong or weak senses. Even mere influence can be thought of as a relative power, or control in a weak sense, so that control extends in a series from a power of direction at one extreme to inducement or influence at the other.

Nature of the British constitution

Almost every country in the world has a written constitution which is a declaration of the country's supreme law. All other laws and all the institutions of such a state are subordinate to the written constitution, which is intended to be an enduring statement of fundamental principles. The absence of this kind of supreme instrument in the governmental system of the United Kingdom often perplexes the foreign inquirer, who may wonder where our constitution is to be found, and indeed whether we have one at all.

What, then, do we mean when we speak of the British constitution? Plainly there exists a body of rules that govern the political system, the exercise of public authority, the relations between the citizen and the state. The fact that the main rules of these kinds are not set out in a single, formal document does make for some difficulty in describing our constitution, although even in a country with a written constitution we soon discover that not all the arrangements for its government are to be found there: many elements of the constitution will have to be looked for elsewhere than in the primary document labelled ‘the Constitution’. (The formal constitution may even be misleading, for we are warned by a Frenchman, Léon Duguit, that ‘the facts are stronger than constitutions’, and by an American, Roscoe Pound, that the ‘law in books’ is not necessarily the same as the ‘law in action’.)

The United Kingdom as a union state

The United Kingdom is a union of England, Scotland, Wales and Northern Ireland in a single state. The Channel Islands and the Isle of Man, which are internally self-governing dependencies of the Crown, are not part of the United Kingdom.

It used to be generally thought that the United Kingdom has a unitary constitution, like those of France, Italy, Japan, the Netherlands, Sweden, New Zealand and South Africa, and unlike the federal constitutions of Germany (‘The Federal Republic of Germany’), Switzerland, the United States, Australia, Brazil, Canada, India, Nigeria and the Russian Federation. However, it may be that the better view is that the United Kingdom has a union constitution, that is neither straightforwardly unitary nor systematically federal in character (see Walker, ‘Beyond the unitary conception of the United Kingdom constitution’ [2000] PL 384). This, perhaps, is particularly true since the advent of the current devolution arrangements in 1998. That said, however, it should not be thought that all such differences as exist in the government and public law of England, Scotland, Wales and Northern Ireland were created by devolution. A number of differences between English and Welsh law, on the one hand, and Scots law, on the other, are several centuries old. Others, while more recent in origin, nonetheless have nothing to do with devolution.

No successful account of the British constitution can now be confined to institutions, events or laws which are exclusively British. Over the past half century, as the constitutional importance of the Commonwealth has declined, so has the significance of ‘Europe’ grown and grown again. ‘Europe’, in this context, denotes two international organisations in particular: first, the Council of Europe and its European Convention on Human Rights and secondly the European Union. As was made clear in chapter 2 (see p 62), it is imperative not to confuse these two legal ‘Europes’ with one another. This is not least because the impact which each has had on the British constitution is different. In this chapter attention will first be given to the European Convention on Human Rights. We shall then go on to consider the nature and structure of the European Union and the impact of European Union membership and Community law on the United Kingdom.

European Convention on Human Rights

The European Convention on Human Rights (ECHR) is an international treaty made under the auspices of the Council of Europe, which is based in Strasbourg in eastern France. The United Kingdom was the first country to ratify the ECHR, in March 1951. The Convention came into force in 1953 and the European Court of Human Rights handed down its first judgment in 1961.

In this chapter and the next we focus on government. For the most part we consider British government, although reference is made from time to time to government in the devolved administrations. This chapter mainly concerns the institutions, personnel and structure of British government. In it, we consider the constitutional positions of the Crown, the monarchy, the Prime Minister, Cabinet and other ministers, and civil servants. In the next chapter we move on to examine the various powers of British government, paying particular attention to the government's various rule- and law-making powers.

The Crown

We saw in chapter 1 that constitutional thought and doctrine in the United Kingdom have largely dispensed with the concept of the state. Instead of the state we have the Crown, which serves as a central, organising principle of government. The Crown ‘personifies the executive government of the country’ (Diplock LJ in BBC v Johns [1965] Ch 32, 79): it is associated with the idea of executive authority rather than with that of the common interest. The major public powers are vested in the Crown or, more commonly, in ministers who, in strict theory, are servants of the Crown.

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

The Secretary of State for the Environment, a minister of the Crown, had acquired a leasehold interest in certain premises for use as office accommodation by civil servants employed not in his own but in other government departments.

The functions of the law seem to have developed dramatically since the days of Miss Emma Hamlyn.

What I seek to show in this book is that many fundamental choices for society are now made, and probably have to be made, not by the legislature, not by the executive, but by the courts. This requires the courts not merely to apply existing legal rules, but to develop the law. In doing so, the courts will necessarily be making value choices, and often balancing competing values, especially where they are confronted with conflicts between them.

For example, in the moral sphere, acute problems arise on the ostensibly sacrosanct right to life: what is its scope? The duty to protect and respect human life may conflict with our conceptions of human dignity. What then should be the response of the courts to the issue of euthanasia?

Many examples of competing values have their origin in the idea of fundamental rights. Especially over the past fifty years, it has become widely accepted in Europe that the protection of fundamental human rights is a principal function of the courts. But often fundamental rights are not, despite the language sometimes used, absolute and unqualified. Freedom of speech may conflict with the right to privacy; currently, there is vital debate about the limits on the fundamental right to practise a religion. So the courts, necessarily, have to strike the balance.