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The Executive Uk Government Notes

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UK GOVERNMENT

[PARL

CHECK

&

BALANCE ON THE

EXEC]

1. Ministerial accountability a. What is it i. The 'Whig' view - Ministers should be responsible to
P, because HoC is a democratic and representative institution (E&T)

1. P is in the driving seat here - this is the public face of ministerial responsibility a. **Lord Morrison - a fundamental of our government that some Minister of the
Crown is responsible to P, and through P
to the public, for every act of the executive

2. However, detached from reality -
a. Barendt lamented it is now rare for HoC
to hold an individual minister to account b. Jowell & Oliver noted that the domination of party of government serves to suppress any sense of a strong HoC
function in holding government to account c. E&T - government's attitude is that it and it alone should govern ii. The 'Peelite' view - ministerial responsibility emphasizes that Ministers - rather than parliament,
are responsible for governing. Government decisions need not mirror the wishes of P, but rather ministerial responsibility means that Ministers make their own decisions, that they have to explain and defend before P (E&T)

1. Here, the executive is in the dominant position as the initiative taker - ministerial responsibility is not P's sword, but a
Minister's shield - intended to preserve executive power

2. Accords with reality - has a strong undercurrent in governing attitudes b. Types of accountability i. In addition to explanatory accountability,
amendatory or remedial accountability - the obligation to answer for whatever has been revealed of error or misgovernment, and correct or make reparation for it (Mulgan)

1. A fully responsible government is responsive,
submitting to constitutional controls, and is subject to accountability in both explanatory and amendatory forms

2. In description of UK constitutional system of responsible government, what is primarily meant is that government is responsible to
Parliament ii. Sir Robin Butler - "Accountability" is to mean that the Minister must answer questions and give an account to Parliament without the blame element, but "responsibility" is to accept personal criticism

1. Hence, Scott - obligation of ministers to give information about activities of their department and give information and explanations for the actions and omissions of their civil servants lie at the heart of ministerial accountability a. Performance by P of its functions of controlling the executive and holding it accountability depends on getting from ministers the relevant facts and explanation c. Recent developments i. Traditional view that a minister is bound to resign in atonement for departmental misconduct does not take into account the great increase in work of government departments, making it impossible for ministers to supervise directly or even know about the bulk of their departments' everyday business

1. Hence, this convention is starting to fade out of practice - shift away from remedial to explanatory responsibility due to the size of government d. Ministerial Code i. Created in 1997, and had been updated regularly since ii. Codification of a constitutional convention - most important of which being Ministerial Responsibility iii. "Ministers have a duty to P to account, and be held to account, for the policies, decisions and actions of their departments and agencies"
e. Exceptions i. Scott report has shown that the government has failed lamentably in its observance of the obligation to give information in pursuing its policies on defence sales to Iran & Iraq between 1984 to 1990

1. Arguably justifiable given the sensitive nature of the matter

2. But yet particularly dangerous that the government can make momentous decisions without being subjected to scrutiny f. Possible reforms (Scott 1996)
i. Acceptance by government of the obligation of ministers to be more forthcoming - in exceptional cases, the specific reason should be given, and
Parliament should not be content with a vague description of 'public interest'

1. Appointment of a senior officer to inquire into the adequacy of refusals ii. Select committees could be more assertive in enforcement of the provision of relevant information iii. **Obligation of ministers to provide information to
Parliament may be reduced to statutory form -
that way, Parliament and its machinery would not have the final responsibility of enforcing the obligations

1. Recognition of the cabinet's domination of parliament through whips

2. Shadow cabinet a. What is it i. A senior group of senior members who, under the leadership of LO, form an alternative cabinet to that of the government, and whose members mirror the positions of each individual member of the Cabinet ii. It is the Shadow Cabinet's responsibility to scrutinize the policies and actions of the government, as well to offer an alternative program iii. Main scrutinizing function occurs during parliamentary debates

3. House of Commons Select Committees a. What is it i. There is a Commons Select Committee for each government department, examining three aspects:
spending, policies and administration ii. Findings are reported to the Commons, printed, and published on the Parliament website. The government then usually has 60 days to reply to the committee's recommendations iii. Recommendations and criticisms given great political weight, and requirement of government to respond adds b. Problems i. By constitutional convention, Queen invites the party winning the most seats to form the government -
normally the majority in FPTP political system -
hence the executive often has a majority in HoC

1. Select Committees Chairs elected by MPs -
which in this case is going to belong to the same party

2. Members of select committee mirror composition of HoC - again dominated by the cabinet's political party

[Prerogative powers]

1. Starting point a. Dicey - every act which the executive government can lawfully do without the authority of an AoP is done in virtue of the prerogative i. Appears to include ordinary legal acts (e.g.
contract) that members of the executive do

2. Analysis a. *Courts prefer Dicey's wide construction of prerogative powers i. However, Wade - nothing 'prerogative' about the government doing these things - no need of "singular and eccentrical" power for the purpose ii. Government may do anything that is not unlawful
(Malone), opining that executive powers extend to anything which could be done by a natural person -
what Harris called the 'third source' of govt power b. Hence, the better view (E&T) hence is that the term prerogative should be confined to powers unique to the crown - **Blackstone - rights and capacities which the King enjoys alone in contradistinction to others i. [Ministers' ability to exercise common law powers is still constrained by public law limitations enforced by judicial review and HR law]

3. Discarded view of government's constitutional position a. Laws J in the Fewings case: whereas individuals may do anything which the law does not prohibit, anything that public bodies do must be justified by positive law.
However, 2 difficulties arise -
i. Impossible to anticipate everything a government might wish to do - therefore the need to confer a general power ii. Practical difficulty - UK constitutional law not predicated on clear conception of the state,
hence it is unclear to whom the special rule applies

4. Prerogative powers: A background a. Originally, sovereignty was concentrated in the
Crown, subject to limitations which were ill-defined and changed with practical exigencies - accordingly, the crown largely exercised all powers of the state i. Divided into personal prerogatives (appointment of
PM, conferring royal assent), executive prerogative powers (declaration of war, signing of treaties)
b. Royal prerogatives were progressively reduced as
Parliamentary democracy and the rule of law developed
(Bill of rights, Act of Settlement 1701, Claim of Right Act 1689, Acts of Union - these statutes also established
Parliamentary sovereignty) c. Henceforth, the crown's administrative powers are now exercised by the executive - ministers answerable to parliament - but they must be exercised in a way that is compatible with legislation and common law i. Today, what we call the royal prerogative is 'to all intents and purposes government or even prime ministerial prerogative' (Markesinis 'The Royal
Prerogative Revisited')

5. Nature of prerogative powers a. Separate source of law, existing alongside legislative &
common law; unique historical background -
i. Courts can't redefine prerogative as they will b. FBU - constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body

6. Two categories of prerogative can have domestic legal consequences (Miller)
a. Where it is inherent in the power that it will affect legal rights and duties of others, for example Crown servants'
terms of service b. The second is where prerogative changes facts to which the law applies such as declaring war - which makes some previously lawful conduct become treasonable c. However, in both of these cases, the important point is that it does not change the law

7. Judicial review of prerogative a. Court has the right to rule on whether a decision as within or outside existing prerogative power - not always exercised it despite having authority (Northumbria Police
Authority) - Court seems to conjure up a prerogative for which there is no real historical evidence for its existence b. Courts too reticent in reviewing scope of prerogative i. De Keyser - whether the prerogative really did exist -
but no need to determine, because need to use statute if it exists; where prerogative and statute covers same ground; doesn't mean prerogative is extinguished, just that it cannot be used ii. FBU - statute creates compensation for V of injury,
places duty on SoS to implement on a time of their choice; SoS introduces less generous scheme of compensation by prerogative; majority said you can't use prerogative

1. Question to think about is whether this is an example of De Keyser in a complicated circumstance or whether FBU is an example of a different principle; not contradiction; but that it cannot frustrate purpose of the statute

8. RoL concerns a. Regarded as profoundly undemocratic that government is endowed with powers that have not been conferred by parliament (E&T)
b. BUT - so is the common law. The question is then appropriateness

9. SOP
a. Exec & Parl i. Difficult for P to hold the executive to account for the exercise of prerogative powers - ministers have discretion as to whether to report to parliament the exercise of prerogative powers (John Major).
Additionally, the scope of powers is imprecise ii. However, from De Keyser, P can legislate to take away right to exercise prerogative powers if necessary, & FBU - use of prerogative cannot frustrate purpose of statute - balance of power still in
P's hands b. Exec & Courts i. Prerogative powers can be examined by the courts in the same way as the use of statutory powers ii. Check & balance function not compromised

10. Reform a. Should they be replaced by statutory powers?
Especially for decisions to engage in armed conflicts

Elliot & Thomas

1. Broad purposes of the executive a. Responsible for running the country b. Only branch of government fairly described as the initiative-taker - introduces bills to parliament

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