Text 3the growth of the executive

Impelled by the demands of a larger electorate, the executive branch of government began to increase in size and range of powers and the modern professional civil service came into being. From the 1870s until the 1970s the constitution was dominated by a communitarian ideology which saw the function of government as not only to keep order but to provide for the well-being of its people. The powers of the House of Lords representing the old balanced constitution were diminished and executive discretionary power increased. Governmental functions which had previously been exercised by local bodies were increasingly concentrated in central departments under the control of ministers answerable to Parliament.

The eighteenth-century statute book was dominated by laws protecting property policed by the courts. During the nineteenth-century the wider franchise led to social welfare legislation which required a large and powerful executive. Nineteenth century public health and safety legislation was followed, in the early twentieth century, by substantial housing and urban development legislation. Immediately after the Second World War a wide-ranging welfare system was introduced. This included the Education Act 1944, the National Health Service Act 1946, the National Insurance Act 1946 and legislation nationalising the Bank of England and the coal, gas, electricity, public transport, and steel industries. The dominant economic belief was that the economy should be driven by the state. Subordinate legislation and non-statutory rules were made by the executive on a large scale with limited parliamentary scrutiny. Thousands of administrative tribunals staffed by government appointees were created to deal with the disputes generated by this expansion of state activity.

The constitution made only marginal responses to these fundamental changes. The traditional ideas of the rule of law as embodied in the common law and of accountability to Parliament were not seriously challenged even though the executive seemed to have outgrown both these constraints. The Donoughmore Committee on Ministers' Powers (1932) and the Franks Committee (1958) recommended marginal reforms which buttressed the powers of the courts and supplemented parliamentary scrutiny of the executive. These included a parliamentary committee to scrutinise such subordinate legislation as statute required to be laid before Parliament (Statutory Instruments Act 1946) and the creation of a Council on Tribunals with powers to approve procedural rules for most administrative tribunals and statutory inquiries (Tribunals and Inquiries Acts 1958, 1971). From the 1960s various “Ombudsmen” were set up to investigate complaints by citizen against government but without enforceable powers.

Recognising the inevitability of executive discretion and reluctant to appear to be challenging the majority, the courts began to defer to political decisions, an attitude which was particularly strong after the Second World War compared with the conflicting attitudes expressed before the First World War. In the inter-war period, opposite fears were expressed, some believing that the executive had taken over, others worried that an individualistically minded judiciary would frustrate popular programmes. However since the 1960s the courts have strengthened their powers of control over the executive so much that worries have been expressed that they are interfering too much in politics.

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