HER MAJESTY’S GOVERNMENT

The laws of England have taught us that kings cannot command ill or unlawful things.
And whatever ill events succeed, the executioners of such designs must answer for them.

                         Sir Dudley Digges, impeachment speech before the House of Lords, 1626.



Every civil servant should remember that, while it is the duty of the servants of the government
to carry out all lawful orders, it is equally their duty to disobey unlawful orders.

           Brigadier (Sir) Victor Windeyer KC, later Justice of the High Court of Australia, 1949.

Ancient Responsibility.

On the eleventh of November 1975 in the Australian House of Representatives, Mr Frank Crean, a former Treasurer of the Whitlam Government, rose to his feet and delivered a speech attempting to expound upon the role of the Crown. 

Probably the best way of dating the origins of ministerial responsibility is by the revival of ministerial impeachment by the 17th Century English Parliament. Confronted by the reign of the House of Stuart, a Scottish dynasty with little patience for the workings of the English constitution, Parliament had to devise a way of criticising and opposing the King’s more controversial policies without appearing to enter into conflict with the King himself. A solution to this problem was of mutual importance to both monarch and Parliament: parliamentarians needed a way of criticising the government without being accused of disloyalty or treason, while the King couldn’t afford dissatisfaction against his policies to explode into outright rebellion against his person.
 
 
A rather elegant solution was found by resorting to a legal fiction, "the King can do no wrong". Any policy pursued by the King was taken to have been advised to him by one of his servants, his ministers. They were to be deemed the authors of all royal policies, and so could be criticised and punished by Parliament without directly implicating the King, who was taken to have acted in good faith. Better yet, they could be executed. The mediaeval procedure of impeachment, of trial by Parliament, had been revived during the reign of James I/VI to punish corruption in a number of powerful public figures, including the Lord Chancellor Sir Francis Bacon, and the Lord Treasurer, the Earl of Middlesex. In this method of trial the House of Commons drew up charges against the accused, and sent managers of the impeachment to the House of Lords, before which they acted as counsel for the prosecution. The House of Lords itself was traditionally competent to act as a court of law, sitting in judgement not only upon its own members when charged with offences, but upon any English subject whose case was brought before them, including upon criminal charges. As well as deciding innocence or guilt it was empowered to pass sentence upon the guilty, including the death sentence. This weapon of ministerial impeachment was now to be used against the King’s servants to curb the King’s policies.
 
 
An early illustration was the trial of the Duke of Buckingham, Charles I’s favourite minister, in 1626. Brought up to believe in the Divine Right of Kings, Charles found it difficult to comprehend the blunt pragmatism underlying the impeachment of his favourite. In reply to the Common’s complaint against Buckingham, the King protested

"Certain it is, that I did command him to do what he hath done. I would not have the House to question my servants, much less one that is so near to me".

The modern doctrine of ministerial responsibility can hardly be more fully stated in the same number of words, though of course all that was implied in it was not yet seen. Here is, however, the principle that was the minister’s duty to resist the orders of the king if he knew that they were wrong, and to protest against the attempt of the king to carry out his will contrary to the law; and because he did not do that the minister is responsible and must be held accountable.

His son, Charles II, made no such mistake. A satirical poem composed by a member of his Court, Lord Rochester, suggested an epitaph for the King’s tomb when the time eventually came: by one account the lines went

Here lies our sovereign lord the King
Whose promise none relies on;
He never said a foolish thing,
Nor ever did a wise one.

[T]he minister could be put on trial on charges known to be unfounded against him but well founded against the king; that a pardon from the king could not avail to stop the trial — embodied in law in the Act of Settlement of 1701; and that prorogation or even a dissolution of parliament was not to interrupt the proceedings and require them to begin anew. This last was an application of the principle already adopted in the ordinary judicial business of the House of Lords.

[The Ghost suddenly reappears standing behind the Author, reading over his shoulder.]
 
 

Niccolò’s ghost: This is doubtless all very interesting to an antiquarian, but what has it to do with modern democratic government or the modern reserve powers?
 
 

Author [startled, drops his pen.]: As we saw in the account of the American and previous revolutions, parliamentary democracy emerged from a number of factors braided together. The King was forced to surrender control over policy-making to his ministers, who became bound together into a cohesive unit, the Cabinet, the solidarity of which was enforced by the Prime Minister. For a Cabinet to remain capable of governing it became necessary that it retain the confidence of the Commons, without which the business of government would otherwise become impossible to transact within the law. [Returns to writing.] Parliamentary and electoral reform forced members of the Commons to be answerable to their electors, and in a more general sense to the British public. Policy was now therefore formulated by ministers with an eye to public opinion rather than to the royal pleasure, a consequence more of the 19th Century Reform Acts than of events in 1688. Throughout the reign of Queen Victoria the monarch fought a final rearguard action over issues of policy, but by the beginning of this century complete control over these matters was held by the government ministers under the Prime Minister, with the proviso that the monarch retained private rights of consultation outlined earlier.

These ministers remained responsible to Parliament, but in the modern world this responsibility found expression in a different form. Impeachment had long since fallen into disuse, the disapproval of Parliament being usually expressed by a vote of no confidence passed by the Commons. The Lords retained until early this century their own way of expressing extreme parliamentary disapproval of a ministry, which shall be discussed later, but this died when the Lord’s power withered in 1911.
 
 

An illustration of the emerging difference between modern ministerial responsibility and its ancestral form– one which shows the way the ancient version remained for the reserve powers after it had fallen obsolete for government policy– was provided by the effective dismissal of the Melbourne ministry by William IV in December 1834, triggering a general election. At the next sitting of Parliament, in February 1835, the new Prime Minister Sir Robert Peel assumed full responsibility for having tendered the "advice" to the King for these events, despite the fact he’d been travelling in Italy at the time and hence out of all contact with London. As he put it, 

[A]lthough I have not taken any part in procuring the dismissal of the late Government, although I could not, from circumstances which are notorious to the world, hold communication with any of those with whom I have now the honour to act, much less with the [King]... still I do conceive that by the assumption of office, the responsibility of the change which has taken place is transferred from the Crown to its advisers; and I am ready– be the majority against me what it may– to take all the responsibility which constitutionally belongs to me, and to submit to any consequences to which the assumption of that responsibility may expose me.

Niccolò’s ghost [impatient]: Well and good for the 19th, but what of the 20th Century?
 
 

Author: Although the Westminster system is now profoundly democratic in conception, with the government’s policies devised by the elected representatives of the people, and although the modern form of ministerial responsibility obscures its ancestry, relics of its ancestral form remain and retain their validity for the particular narrow purpose they possess in the modern world. 
 

Most obvious of examples– the one provoked by Mr Crean’s speech– rests in the modern exercise of the Crown’s reserve powers. The purpose of these powers, their usefulness in defending constitutional government and Parliament’s democratic privileges against arrogant trespassers, shall be argued in later chapters. It suffices at this point merely to remark that although the prorogation (i.e. closing) and dissolution of Parliament are actions usually (and wisely) performed by the Crown on the advice of its incumbent ministers, they are Crown powers which, unlike power over policy, were historically never surrendered to complete control by the incumbent government. In extreme and reprehensible circumstances the ancient form of responsibility remains available to the Crown, if needed– as existence of a discretion requires, for Esher was accurate at least when he said "In no case can the Sovereign [the Queen, represented here by her Governor-General or Governors] take political action unless [she or he] is screened by a minister responsible to Parliament". The necessity for these powers to remain discretionary and with the Crown has been argued by a number of distinguished figures, whose voices shall be heard soon.

Defer for the moment further discussion on this matter, and instead come face to face with another modern discretionary power of the Crown which couldn’t be exercised any other way than under the ancient form of responsibility; that couldn’t be exercised under some kind of obedience to the incumbent Prime Minister– namely the task of actually appointing the Prime Minister.
 
 

If the previous one’s resigned there is no incumbent. If the previous one’s headed a minority government in the House, and has now suffered a no-confidence vote, then for the Queen or her representative to be compelled to obey such a person’s advice on who should now be commissioned from the former Opposition would clearly be outrageous. As Dr David Butler has recently remarked in Britain:

[W]hile there may be problems about the Queen trying to act as a neutral umpire, there could be even greater problems if she were obliged, in default of anyone else, to act on the advice of a lame-duck Prime Minister. It would be widely seen as outrageous if, in an essentially adversarial situation, the umpire had to act on the advice of one of the protagonists.

Furthermore, choosing a Prime Minister in a House dominated by two parties is relatively easy, being determined by who holds the leadership of the majority, but what of a House shattered into, say, five jealous parties? Here a discretion is essential, an ability for a Head of State to act on her own initiative in deciding who’s most likely to cobble together a viable coalition (ask President Scalfaro how easy this job is). This process, irreconcilable with the usual form of modern ministerial responsibility, is readily explicable under the ancient form. Whoever is commissioned by the Head of State to form a government ipso facto takes responsibility for the act of commissioning, for providing the "advice" to be made Prime Minister.
 
 

Niccolò’s ghost: So even if we wanted to pretend all other reserve powers didn’t exist, we’d have to concede the ancient form of responsibility must still be available to the Crown for a Prime Minister or Premier ever to be commissioned to form a government. Consequently Crean’s basic tenet was wrong– under certain circumstances the Governor-General must be able to "act on his own initiative".
 
 

Author: And consider the converse side of the coin. With the power of appointing ministers must come the reserve power of dismissing them, also to be exercised under the ancient form of responsibility. Otherwise an absurdity takes place: a Prime Minister loses a vote of no confidence, so the Governor-General attempts to commission the Leader of the Opposition, who does hold the House’s confidence, to be the new one. But before person B can be PM, person A has to cease to be PM. What if person A doesn’t want to go? If ministers could only be dismissed on the advice of the incumbent Prime Minister, person A wouldn’t have to go, because the required advice would simply never be tendered. Elementary logic concurs with history, in saying that the Crown’s power to appoint ministers under its own discretion must be accompanied by a discretionary reserve power to dismiss them for appointments to be properly enforceable.
 
 

Yet this raises other questions. We’ve established these two powers (really the converse sides of the same power) are exercised as a response to particular circumstances on the floor of the House, a vote expressing no confidence. And the fact the House has expressed this resolution justifies what would otherwise be an unnatural act by the Crown in sacking its ministers, for here it’s simply throwing what power it does possess behind the House, to force the old ministry to submit to Parliament. Had the Crown failed to do so it would have been the target of justified public outrage.
 
 

In accepting this you’ve accepted that the Crown has a valid role to play in upholding the privileges of Parliament when these privileges are being flouted by a recalcitrant ministry. But votes of no confidence don’t happen in a vacuum; for them to occur the House must be given the opportunity to sit and debate, deliberating over the heavy question before it. If it were true Prime Ministers wielded entirely the power of proroguing Parliament (in other words closing it for months, causing the dispersal of its members throughout the country) rather than this power being entrusted to the Crown, then they could compel the House’s silence, rescuing their own administrations from accountability. It’s surely a ridiculous proposition to say the Crown should fight to uphold the House’s decision, but stick its hand in its pockets and whistle while ministers gag the House’s mouth and bind its hands, preventing that vote from taking place.

Niccolò’s ghost [irritated]: But this brings us right back to worrying about entrusting discretionary powers to the Crown over the closing or dissolving of Parliament. I thought you said we’d defer that until later.
 
 

Author: I did.
 
 

Niccolò’s ghost: Then do. You said the reserve powers were the "most obvious" of the surviving relics of the ancient form of responsibility. What, pray, is a less obvious example?
 
 

Author: During his 1930s Sydney University law lectures a subsequent Justice of the High Court, (Sir) Victor Windeyer KC, drew attention to one when, commenting upon the speeches of Digges and Eliot, he remarked that a modern consequence was that all servants of the Crown are personally liable for unlawful actions:

They cannot justify any wrongdoing by alleging that they were acting in the execution of the orders of a superior. The constable, who makes an unlawful arrest, is personally liable at the suit of the injured party, although he may have been acting upon instructions. The King’s minister of state, who acts in contravention to the law, can be brought before the King’s courts. It will not avail him that he was acting in the King’s service, even though it were at the King’s actual command, for the law will not impute wrongdoing to the King... Every civil servant should remember that, while it is the duty of the servants of the government to carry out all lawful orders, it is equally their duty to disobey unlawful orders.

In both Australia and Britain this principle remains true as an inheritance of common history, an aspect of what is known in both countries as "Responsible Government". For the latter society the case has been argued by Sir Ivor Jennings LL.D., who after pointing out that in Britain all civil servants are equally servants of the Crown, the Postmaster-General in common status with a maintenance worker, remarked:

[S]ince the King can do no wrong, he can authorise no wrong. Therefore any servant of the Crown who commits a wrong must commit it without authority. He thus renders himself personally liable, even though he was acting as a servant of the King and on behalf of the King.

This attribute of ministerial responsibility under the Crown has been reiterated in a number of other writings, like those of the late Lord Hewart, Lord Chief Justice of England earlier this century. It transforms, among other things, the significance of the Oath of Allegiance to the Queen (rather than to some vaguer object, like a flag, or the nation, or "democracy"), and the symbolic importance of the Crown upon badges of office.
 
 

We’re so used to seeing the emblem of the Crown upon insignia and buttons that many of us never give it a second thought. Yet when Paul Keating altered the Oath of Allegiance, did none of his ministers pause to think that the old Oath to the Queen of Australia was worded that way for a reason? That the fact all government ministers, all the judges, barristers and other servants of our courts of law, all State and federal police, all members of our armed services have been required to swear an oath to Her Majesty maybe was done for a particular purpose rather than through a fit of historical absent-mindedness? That the symbol of the Crown is placed upon the badges and buttons of all the police, the armed services and indeed (in at least some States) upon the insignia of all emergency services (fire brigade, State Emergency Service etc.) that might need to wield extraordinary authority in a crisis or natural disaster is perhaps for a reason other than it looks pretty? Might it not be that, upon acquiring particular positions of power, officials are required to swear allegiance to the Queen because they’re given that authority formally as servants of the Queen, thus constrained in the manner set out by Windeyer? That the conspicuous display of the Crown upon uniforms, as well as displaying the source of authority wielded by officials, also offers promise and warning– a promise to all other citizens and a warning to that official– that if he or she abuses that power by acting unlawfully, he or she is personally liable for the consequences? No special executive order, no excuse of "national security" or secret agenda of high state can alter that.
 
 

Niccolò’s ghost: But aren’t all citizens in your society expected to obey the law? If that’s the case, where’s the difference between a servant of the Crown and anyone else?
 
 

Author: A difference may be found in the way authority flows through the hierarchy. Imagine a hypothetical private company controlling telecommunications, the senior partner of which decides to tap particular telephones for private advantage. Consider then the plight of the technicians actually ordered to install the illegal intercepts. They don’t approve of it, but the boss is still the boss regardless of what he orders, even if he’s a bad ’un. They’ve got families to provide for and mortgages to pay off, and good jobs are hard to find. We can’t help but understand their motives if they choose not to rock the boat.
 
 

But now consider a similar scenario when it’s the government controlling the telephone lines, and a senior public servant ordering technicians who are junior public servants to install the phone taps. All sympathy for technicians who obey now flies out the window, for they are servants of the Crown being directed to engage in an illegal act by another servant of the Crown. If they know it’s illegal they know the order has no authority; that despite their subordinate position they are under no obligation to obey, for the hierarchy which compels their obedience has for the moment been set aside; that indeed this hierarchy requires their disobedience of such an order, the Crown they serve being also guarantor of the laws of the land now being flouted.
 
 

Of course there are regions of uncertainty over what is or is not a lawful order, an issue which is particularly painful for members of the armed services, who are conspicuously servants of the Crown bound by strict discipline. When they should obey and when disobey is an uncomfortable question summed up neatly last century by Sir Charles Napier, who protested that it  

[R]educes the Soldier to a choice between the hanging– awarded to him by the Local Law– for obeying his Officer, and the shooting– awarded him by the Military Law– for disobeying his Officer. In such law there is neither sense nor justice, and (being one of those unlucky red-coated gents thus agreeably placed between shooting and hanging) I beg to enter my protest against this choice of deaths. If such is Law, the Army must become a deliberative body, and ought to be composed of attorneys, and the Lord Chancellor should be made Commander-in-chief.
 

This question is a complex one, existing for armed forces throughout Her Majesty’s realms of the Commonwealth. Windeyer himself was no stranger to it, having served in World War II as a Brigadier commanding in the 2nd AIF, fighting in North Africa. In the Hope Report on Terrorism, commissioned by the Fraser Government following the 1978 Hilton bombing in Sydney, both he and Mr Justice Hope of the NSW Supreme Court gave detailed consideration to the issue in Australian, British, New Zealand and Canadian contexts.

As both Dicey and Hewart took pains to point out, this aspect of ministerial responsibility is particularly relevant to the liberty of citizens in the matter of imprisonment. Traditionally prisons are titled "Her Majesty’s prisons", with conspicuous display of the Crown upon buildings and the uniforms of warders. There’s an implicit allusion in this to the ancient writ of habeus corpus, whereby citizens in custody are entitled to prompt trial, enforced by the courts of law. Such a writ can be made by the Court, through application by either the prisoner or any other person who satisfies the Court or judge that the prisoner appears to be detained unlawfully. Upon receiving this writ from the Court, failure by warders to produce their prisoners promptly before it, showing the day and cause of detention, carries heavy penalties– penalties to be inflicted upon the individual warders, who as servants of the Crown have no excuse for engaging in unlawful detention.
 
 

Niccolò’s ghost: From your tone of voice I gather you think all this a remarkable thing, that in hierarchies under the Crown servants of the Executive are expected to disobey illegal orders, and if they fail to do so they are punishable in a court of law. But isn’t this true in all Western democracies?
 
 

Author: In his 1929 treatise The New Despotism Lord Hewart defined the behaviour of servants of the Executive in three categories: the Rule of Law, the droit administratif, and executive lawlessness. The Rule of Law, exemplified by the English common law traditions central to the modern legal systems of Her Majesty’s realms throughout the Commonwealth, he defined as obeying certain criteria, the most obvious being that all citizens either within or outside the government are held accountable to the same body of law. In contrast with this, the droit administratif, a system of law employed during the 1920s in most continental European countries, exempts servants of the Executive from the ordinary laws which bind ordinary citizens.
 
 

Under this system, the ordinary Courts of Justice are regarded as having no jurisdiction to deal with any dispute affecting the Government or its servants, all such disputes being within the exclusive cognizance of the administrative Courts, the chief of which, in France, is the Conseil d’Etat. This Council was originally a purely administrative body...and it has gradually become more judicial in character, the members have always held office at the pleasure of the Government of the day.
 

Although the droit administratif is a system "fundamentally opposed to the English conception of the 'Rule of Law'", and hence contradicting the most basic principles of the Westminster system, it nonetheless is still a form of law. The third category, however, is not: executive lawlessness.
 
 

The distinction between illegality and lawlessness is important. Leafing through the dictionary at my elbow, an "illegal" act is defined as being one "contrary to law". A "lawless" act, however, is one "regardless of, disobedient to, uncontrolled by" law; "unbridled, licentious". A "lawless" country or government is one "where law is non-existent or inoperative". So a thief who picks a pocket is guilty of an illegal act, that of theft, but isn’t necessarily committing this act within a lawless society. Provided crime is repaid with just punishment and police constables are adequately efficient, thieves must live in fear of retribution for their offences. The law still rules, despite the existence of offenders. Acts of lawlessness, however, are something more profound, setting aside or destroying the instruments by which the rule of law is enforced so that illegality can flourish unconstrained. A petty thief can’t achieve this; he has insufficient power to disable these instruments.
 
 

From time to time throughout the world, including upon the Australian continent, governments have instructed their servants to engage in illegal activities, to provide a solution to political problems. From time to time the servants have obeyed. Like our hypothetical thief the authors of these actions have lived in fear of arrest and punishment, but unlike our pickpocket they’ve held resources through office by which justice might be averted. In many countries these resources have been exploited to sabotage the operation of law.
 
 

Although never experienced in Australia, lawlessness at the highest echelons of government is something which can afflict all countries; Hewart for example was afraid of its emergence in Britain through regressive constitutional practices appearing in that country earlier this century, fears later reiterated by a number of other eminent British commentators throughout the 20th Century. We’ve seen that France experienced executive lawlessness in the 1950s and ’60s. Yet the victor’s laurels for most spectacular example in any modern industrialised democracy must surely be awarded to the United States of America; lawlessness entrenched through its constitutional arrangements.
 
 

In discussing this behaviour in the United States we’re not motivated by some holier-than-thou anti-American cant, but merely studying a particularly chronic case of a general disease–
 
 

Niccolò’s ghost: Of course. If politics is the art of the possible, then surely an option’s illegality is an inconvenience rather than a disqualification.
 
 

Author: Accepting this, look closer at modern American history.

Author's Notes: This essay should perhaps be more accurately titled "Servants of the Crown and Ancient Responsibility"; its immediate relevance is to modern Crown servants, both those wielding coercive force— police, members of the armed forces, prison warders and firemen— and more broadly, civil servants. Ever wonder why, in the UK, Canada, Australia and New Zealand, the emblems of the Crown and the Royal Cipher (EIIR) appear so conspicuously on uniforms of people wielding coercive force, or why all communications from the government to the general public used to be marked clearly OHMS (On Her Majesty's Service)? These aren't idle symbols, but a clear statement of legal principle.

Unfortunately, many people have forgotten the relevance of these emblems, and seem content when they are erased from public view by ignorant civil servants or politicians.

Consequently, this essay traces out the history underlying these principles, while also exploring some of the modern implications for the Queen and her representatives; for elected politicians; for servants of the Crown, and for the general public.

Further background reading:

Greenwood, N.J.C, For the Sovereignty of the People (Australian Academic Press, 1999);

The following publications may also be of interest (see Sovereignty's bibliography for a full listing):

Adams, G.B., Constitutional History of England (revised edition.), Jonathon Cape, London 1935;

Butler, D., Governing Without a Majority , Collins, London 1983;

Dicey, A.V., An Introduction to the Study of the Law of the Constitution (10th ed.), Macmillan, London 1959;

Emden, C.S. (ed.), Selected Speeches on the Constitution, Oxford University Press, London 1939, vol.I;

Fraser, A., Charles II, His Life and Times, Weidenfeld & Nicolson, London 1993;

Hewart, 1st Viscount (Hewart, G.), The New Despotism, Ernest Benn, London 1929;

Jennings, W.I., Cabinet Government, Cambridge University Press, London 1936;

Windeyer, W.J.V, Lectures on Legal History (2nd ed.) Law Book Company of Australasia, Australia 1949.

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