Building regulations for halfway houses

It is a commonplace that the British Constitution depends more on convention than on statute law. That indeed is what makes it so difficult to study. At the beginning of the century, Sidney Low declared that "we live under a system of tacit understandings. But the understandings are not always understood." Many reformers, dissatisfied with the nebulous nature of such a system, have sought the remedy in a codified constitution and the regulation by statute of matters hitherto left to convention.

Yet this does not seem to be the destination towards which British government is proceeding. When it was set up, many saw the Nolan Committee on Standards in Public Life as the nucleus of a commission on the constitution. That, however, it could never be, given that it had to secure the assent of MPs from all three main parties if its recommendations were to have any chance of being put into effect. Instead, Nolan has suggested that areas hitherto governed by convention be replaced, not by statute, but by non- statutory codes for MPs and ministers.

"The British," a member of the Nolan Committee told Peter Hennessy, "like to live in a series of half-way houses." Rules and Government offers a taxonomy of this halfway house, of codes and other "soft laws". This house contains within its domain procedural rules, interpretative guides and instructions to officials such as, for example, the framework documents that regulate the operation of agencies.

Robert Baldwin labels such rules "tertiary legislation". For, although emanating from government, these rules do not create rights enforceable in the courts. They can, however, have indirect legal effects. A breach of the Highway Code, for example, although not a criminal offence, may be used by a party in civil or criminal proceedings to establish or negate liability. It is this feature that helps to distinguish these rules from mere social conventions or informal understandings.

The expansion of secondary legislation - statutory instruments and the like - has been frequently commented on and analysed. Primary legislation indeed, in the words of J. D. Hayhurst and Peter Wallington, "has become a skeletal enabling framework conferring not just the functions of detailed implementation but the power to determine major policy questions on ministers". What has been little noticed is that this has come about as much through the expansion of nonstatutory rules as through statutory instruments.

Tertiary legislation is also an important feature of the government of the European Community. Such instruments as communiques of the European Council, decisions of the representatives of the member states and other deliberations, memoranda and guidance, which result from community processes, are nontreaty acts, but may nevertheless produce legally binding effects. In November 1986, for example, the council adopted the Hague Resolution dealing with the common fisheries policy. This required, inter alia, member states to seek commission approval for proposed fish preservation measures and it has been treated by the European Court of Justice as having legal effect. Moreover, article three, paragraph three of the Act of Accession that Britain signed on entering the community, required new member states to observe the principles and guidelines deriving from declarations and resolutions and to take such measures "as may be necessary to ensure their implementation". It is, admittedly, not easy for the European Court of Justice to distinguish between declarations and resolutions that have legal effect and those that do not.

Clearly the growth of tertiary legislation poses difficult problems of accountability. Baldwin suggests that it is difficult if not impossible to render it subject to Commons control, partly because of lack of parliamentary time, but also because of "the lack of information about the substance of a rule in advance of parliamentary scrutiny". Baldwin puts his faith instead in disclosure and openness to secure accountability. Sunlight, he believes, is the best disinfectant.

He goes too far, perhaps, in his scepticism. There seems no reason in principle why some tertiary legislation at least might not be scrutinised by select committees of the Commons. It would be perfectly possible, for example, for the framework documents of agencies to be scrutinised in this way. Perhaps further distinctions need to be made between different types of rules with regard to their susceptibility to parliamentary accountability.

Nevertheless, Rules and Government is a pioneering attempt at analysing an area of the constitution strangely ignored both by public lawyers and by political scientists. It is a scholarly work of high quality on a subject that is likely to stimulate a good deal of further analysis in the future.

Vernon Bogdanor is reader in government, University of Oxford.