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Composition And Role Of The Executive Notes

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This is an extract of our Composition And Role Of The Executive document, which we sell as part of our Constitutional Law Notes collection written by the top tier of Oxford students.

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Constitutional Law- reading session 2 Composition and Role of the Executive Bradley and Ewing, chapter 12

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Executive has functions aside from initiating legislation: Execution of laws, maintenance of public order, foreign policy, military operations, managing public services etc.

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The Act of Settlement 1700 bars non-Protestants from the throne

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The monarch must take an oath to support the churches of England (which he/she must join in communion) and Scotland

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The Civil List Act 1972 provides annual incomes for the royal family, while public expenditure on the monarchy goes well beyond that stipulated in the civil list, e.g. separate expenditure on maintaining the palaces. The Queen and Prince Philip both voluntarily pay income tax, but, unless parliament so states it, they are not obliged to.

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Apart from the monarch's official duties, Bagehot, and Bradley and Ewing, both assert her importance as an advisor to governments, and both Blair and Major publicly praised her advice.

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When there is no majority party in parliament the, it may be that a coalition is formed (in which case the queen appoints the leader of the larger political party as PM). If a PM resigns before an election, it used to be (before the age of elected leaders in the Conservative and Liberal parties) that the queen would exercise her discretion to invite one party member to become PM, whereas now she simply invites the winner of the party's election to form a government.

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There are still situations in which the monarch may have to use discretion: If the governing party split e.g. when Ramsay MacDonald's Labour government broke up over the financial crisi, George V invited him to form a national government with liberals and Tories. Similarly if a party leader is deselected but refuses to resign as PM, should the monarch invite a new government to be formed? If a PM dies in office, who should be appointed acting PM?

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Does a monarch have to automatically grant dissolution at the request of the PM, or can they refuse if they believe dissolution would be damaging?
Unsure, though when Wilson's cabinet publicly discussed the issue the Lord President of the Council argued in the times that the monarch did not have to grant dissolution if he thought the parliament could work. Similarly in 1950, after the election of a small Labour majority, Geroge VI's private secretary said that where a parliament was still viable, the election would harm the economy and another PM who could manage the parliament could be found, then the monarch

has he right to refuse dissolution. But what if, on refusal for dissolution, one party resigned the government? The monarch would have to invite the leader of the opposition to form a gov, despite not having a majority, and therefore this leader too would ask for dissolution. Refusal would lead to a legislative deadlock, while acceptance would create a charge of political bias. Therefore the automatic view seems more sensible

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Can the monarch ever refuse to assent to the bill? George V said only to avert national disaster, and he had insisted on a general election before he would start cresting peers to allow the passage of the Parliament Act- shows the monarch as a constitutional safeguard (e.g. monarch dismissing the government of Ian Smith in Rhodesia when they unilaterally declared it independent) and a negotiator in times of parliamentary difficulty (e.g. invitation to MacDonald to form national gov).

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Tudor monarchs governed through the privy council but now it is a title for public service. Also it confers a duty of secrecy so that one cannot divulge information stated in the privy council. Thus if the gov wants to consult someone over a national emergency/security question, but wants to ensure that they wont divulge info given to them, they make them a privy councillor, as was done to Len Murray (gen. sec. of TUC in 70s to consult him over gov policy)

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Orders of Council (the privy council) are needed to give an executive action the force of law)

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The Judicial Committee of the Privy Council is the final appeal court for some commonwealth countries

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Royal prerogative powers (now used by the gov.) are residual powers which parliament never took from the crown e.g. ability to direct foreign policy. Though new prerogative powers cant be added, similar powers can, e.g power to deport illegal aliens

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Prerogative rights are the rights which the crown has, but which private citizens do not

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5. Crown Prerogative powers: Powers over the legislature: dissolve and prorogue parliament, create peerages Judicial prerogatives: The attorney general can stop any criminal indictment against an individual Foreign Policy- although practice is to secure parliamentary acts for matters relating to territory, there are still areas of prerogative e.g. whether to issue passports or to restrain someone from leaving the realm Armed forces: prerogative to declare war Patronage: appointment of ministers, judges, titles, peers

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