Reviews
| Published date | 01 January 2001 |
| DOI | http://doi.org/10.1111/1468-2230.t01-1-00314 |
| Date | 01 January 2001 |
REVIEWS
Terrence Daintith and Alan Page,The Executive in the Constitution: Structure,
Autonomy, and Internal Control, Oxford: Oxford University Press, 1999, xxiv 441
pp, hb £35.00.
This is a study of the central executive in the United Kingdom. The book is the
outcome of research funded by the Economic and Social Research Council under the
‘Whitehall’ programme. The aims of the book are to explain the way in which
ministers and civil servants co-ordinate and control the actions of the major
departments of state. The authors intend that the analysis provided by their study will
contribute to the understanding of constitutional law in the United Kingdom. The
analysis is not driven by any single economic or social theory but draws generally on
the writings of political scientists and constitutional lawyers. It integrates legal
analysis with a detailed and technical description of the internal working of
government departments. There is an emphasis on internal rules, relationships within
government departments and the structure of systems of internal control. Judicial
scrutiny and parliamentary control are assessed alongside internal systems of control.
External audit, the work of select committees and the role of the National Audit
Office are explained and evaluated.
The executive as a specialist subject has in general been neglected. This is
explained by Daintith and Page (p 10) as largely the consequence of a ‘preoccupation
with parliamentary and judicial controls of constitutional law, rather than with the
activity and organization of government that is the subject of control’. Until recently,
and with notable exceptions, legal scholarship often ignored how executive powers
developed. Little attention was given to the legal and constitutional basis for many of
the powers currently enjoyed by the cabinet and the Prime Minister. A working
presumption of legality applies to executive powers whereby it is assumed that
prerogative powers authorise executive decisions provided the actions taken are not
expressly forbidden by statute.
Outside the narrow confines of legal scholarship there has been some attention
given to the role of the executive in the constitution. The Haldane Committee in
1918 (Report from the Haldane Committee on the Machinery of Government
Cd.9230, 1918) identified many features of executive power, including a tendency
to increase power through the growth of large departments at the cost of potential
loss of effective control. In the 1930s, Sir Ivor Jennings in Cabinet Government
offered an important case study of how executive government worked. In 1938,
Keith’s The British Cabinet System explained the importance of Executive power
through the functioning of the system of cabinet committees. Richard Crossman’s
Diaries of a Cabinet Minister provided a remarkable insight into the shifting power
battles in the Wilson administration. The latter dominated formal cabinet decision
making through the setting up of ‘kitchen cabinets’ and secured prime-ministerial
dominance over cabinet decisions. Such studies have their value but they fail to
address the legal basis for the systems of control that the executive operates or the
full constitutional dimensions of how decision making powers are made accountable
to parliament.
ßThe Modern Law Review Limited 2001 (MLR 64:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 135
Daintith and Page begin their study by identifying the main sources of executive
power. In chapters 1 and 2 the authors set out the constitutional and legal framework.
Their conclusion (p 58) is that a government department acts on the principle that the
minister is responsible for the staff out of moneys provided by Parliament and may
take decisions in the name of the Crown or on the Crown’s behalf. Departments enjoy
virtual autonomy owing to the protection afforded through ‘a combination of law
which vests functions in ministers; convention, which makes them responsible for
those functions to Parliament; and organisation, through their membership of the
central executive authority.’ The courts have had a limited role in developing systems
of financial control over the exercise of departmental power, mainly because of the
scope of legislative authority and the protection accorded by highly permissive
spending legislation (The Appropriation Act) which permits departments wide
margins of error. Few cases challenge the legality of the system of financial control.
The future may be markedly different, with greatly enhanced potential for litigation
and judicial review under the Human Rights Act 1998.
In chapter 3 the civil service is examined as part of the internal structure involved
in most of the decision making of the executive. Over the past two decades there have
been cuts in the numbers of civil servants. Today, the overall number of civil servants
is below 500,000. The civil service has undergone considerable internal changes. The
creation of agencies and the re-structuring of government departments has taken
place in an effort to increase efficiency. Formally, central control continues to
operate through departments. Regulation of the civil service falls under the authority
of the Minister for the Civil Service and is to be found in re-drafted codes and an
increasing trend in favour of codification of internal rules and procedures.
Prerogative powers are the legal foundation for most of the regulatory structure.
Such codes cover terms and conditions of service, recruitment, conduct and
discipline of civil servants. The impact of codification is significant: internal rules
have emerged in a form that gives rise to greater transparency. Unity of purpose
through common terms and conditions are thought to give some semblance of
uniformity to a service that has diverse and even contradictory operations.
Codfication helps maintain the command and control systems that are at the centre
of ministerial power as a way of directing and holding together ‘a conglomerate
organisation’ (p 102). However significant the recent reforms may be, they fall short
of the development of civil servants holding ministers directly accountable to
Parliament. A permanent civil service loyal to the government of the day is seen as
more beneficial than a civil service directly accountable to Parliament with the
potential for the civil service to become a ‘political force’. The reality is more
complex, as the government of the day may effectively neutralise civil service
influence through the appointment of personal advisers and the advice of the ‘spin
doctor’.
In locating the sources of executive power, Daintith and Page analyse the financial
workings of government ( chapters 4–6). There are three chapters devoted to a survey
of the system of Parliamentary control of government expenditure. The technical
system of control through public expenditure survey to audit is examined in some
detail. A number of fundamental questions are posed and answered. How are the
financial resources allocated and appropriated? What are the systems for internal
control? What are the roles of the National Audit Office and the influence of the
Treasury? These three chapters form a substantial part of the book. Various trends are
noteworthy from reading these chapters. Codification of the various internal rules and
practices has been accomplished rapidly over the past two decades. The result is
recognition of the importance of technical rules and the need for increased
The Modern Law Review [Vol. 64
136 ßThe Modern Law Review Limited 2001
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