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I. 1. 2.
Institutions and Functions
The Prime Minister
Ministers and the Cabinet
The Civil Service
Other Public Agencies
A Multi-layered Executive
II. Powers and Accountability
1. The Powers of the Executive a. Statutory powers b. Prerogative powers c. Contractual power
2. The Accountability of the Executive a. Political accountability mechanisms b. Legal accountability mechanisms
3. Conclusion a. The UK executive as 'unknown to the law'?
b. The UK executive as 'elective dictatorship'?
INSTITUTIONS AND FUNCTIONS
1. THE MONARCH
Distinguish Monarch acting in her personal capacity versus her public capacity, i.e. performing acts of government
Functions: Head of State, Head of the Armed Forces, the
Supreme Governor of the Church of England and the fount of honor (has the exclusive right of conferring legitimate titles of nobility and orders of chivalry); is also the reigning constitutional monarch in all 16 sovereign states members of the Commonwealth and has a role in relation to Crown
Dependencies (Channel Islands and Isle of Man) and to Overseas
The Royal prerogative power refers to the residual power inherent in the
Sovereign. Its scope has changed over time and the bulk of prerogative powers are now exercised by ministers (see Cabinet Manual, 1.5).
Certain fundamental principles apply to the use of prerogative powers:
Where there is a conflict between the prerogative and statute, statute prevails. Statute law cannot be altered by use of the prerogative (Case of Proclamations).
The use of the prerogative is subject to judicial review in most cases
(GCHQ; Miller v PM).
While the prerogative can be abolished or abrogated by statute, it can never be broadened. However, Parliament could create powers by statute that are similar to prerogative powers in their nature.
The nature and scope of prerogative powers were challenged in the R (on the application of Miller) v Secretary of State for Exiting the European Union and
Miller v Prime Minister cases.
In terms of the exercise of prerogative powers = two categories. Prerogative powers exercised by her ministers
Ratification of treaties- has to be put before parliament for 21 days though.
Defence of the realm
Making ex gratia payments
Prerogative of mercy
Prerogative powers exercised by the Monarch herself
Appointing the Prime Minister
Granting royal assent to legislation
Dismissal of the Government
Dissolution of Parliament (until 2011)
Spheres of influence
Appointing the Prime Minister
By convention, the person appointed as Prime Minister is the person best positioned to command an overall majority in the House of Commons.
Typically, the leader of the party with such a majority, though not necessarily.
What happens when there is no clear leader of the majority party?
What happens when there is no clear majority in Parliament (a 'hung
The First-Past-the-Post electoral system is designed to make this outcome highly unlikely. The monarch could (1) send for the leader of the party with the most number of seats (even if not a majority), resulting in a minority government, or (2) initiate discussions to see whether another person exists who could command a majority or a coalition could be formed,
resulting in a coalition government.
Advantages of First Past The PostIt is easy to understand
It can be quick to count the votes and declare a winner
Voters can express a clear view on which party they want in government
In a two-party system, it has normally produced a single-party government with a clear mandate to govern
Disadvantages of the system
MPs can be elected with relatively small percentage of the vote.
It encourages tactical voting where people vote against the candidate they most dislike.
Many votes are wasted: either those cast for a losing candidate or those for a winning candidate past the level needed to win the seat.
Penalises small parties whose votes are spread widely across the country,
not concentrated in particular seats.
The Monarch also formally appoints the First Ministers of Scotland and Wales,
but there has less leeway - she must appoint whoever the Presiding Officer of the Scottish Parliament (Scotland Act s.46) or of the Welsh Assembly
(Government of Wales Act 2006, s.47) nominates, whoever that may be.
Granting royal assent to legislation
Last used in 1708
Conventionally Queen always signs as would be a constitutional crisis for monarch to refuse to assent the decrees of an elected body.
A potential exception to the convention falling into disuse if the monarch were to act on the Prime Minister's advice.
Is the fact that a convention has not been used in a long time a clear indication it no longer is valid?
Dismissal of the Government
Last used in the UK in 1834
Dissolution of Parliament (until 2011)
Before the Fixed-term Parliaments Act 2011, the timing of the dissolution of
Parliament was for the Prime Minister to decide. Maximum term was 5 years,
but the actual duration was not fixed.
After passing of Fixed-term Parliaments Act 2011:
o Next polling day: 7 May 2015; thereafter: first Thursday May in the 5 th calendar year since last election - no later than 2 months after this (if approved by resolution in each House + a statement of PM's reasons)
o Parliament dissolves on the 25th working day prior to this day
If HC passes a motion, with 2/3 absolute majority: "That there shall be an early parliamentary general election." OR
If there is a vote of no confidence:
(1) HC passes a motion: "That this House has no confidence in Her Majesty's Government." AND
(2) Within 14 days, no motion of confidence has been passed to say: "That this House has confidence in Her Majesty's
o Elections for the devolved legislatures must not fall on the same date. As a result, the elections for devolved parliaments were held on 5 May 2016.
The Queen still formally prorogues Parliament (closes session) and officiates the State Opening (of new session).
Spheres of influence o
Weekly audience with the PM
Head of the Commonwealth
Constitutional scholarship is split on how to characterise the role of the Monarch in the
see her as still hugely powerful, whereas others emphasise the mostly formal/symbolic functions she performs.
The office of the PM is mostly governed by constitutional convention.
It is occasionally referred to in statutes, e.g. Ministerial and Other
Salaries Act 1975, but the role is not precisely defined and has evolved, without statutory grounding, over hundreds of years.
There has been an expansion of the PM's functions over time:
Greater policy capacity
Management of multilayered government (devolution)
Greater role in international decision-making (including EU)
There has also been a change in the manner in which the role has been exercised, moving from a collegiate cabinet government to the
'presidentialisation' of the premiership.
In an effort to consolidate these conventions (as they refer to the operation of the entire central government, not just the PM), the Cabinet Manual was adopted in October 2011. It specifies rules for:
The appointment of the PM
The functions of the PM:
o Exercises certain prerogatives, e.g. recommending the appointment of ministers and determining the membership of Cabinet and
o Advises the Sovereign on the exercise of the Royal Prerogative powers in relation to government (e.g. appointment, dismissal and acceptance of resignation of ministers) and to certain statutory powers (e.g. the calling of an early election or a deferred election under the Fixed-term Parliaments Act 2011).
o Informs the Sovereign on general business of government during regular meetings.
o Recommends a number of appointments to the Sovereign: highranking members of the Church of England, senior judges and certain civil service appointments; to certain public boards and institutions; and to various commissions.
o Holds the office of Minister of the Civil Service (created in 1968), in which capacity s/he has overall responsibility for the management of most of the Civil Service.
o Is the minister responsible for national security and matters affecting the intelligence services (together with the Home and
Foreign Secretaries of State and the Secretary of State for Northern
Ireland for specific operations).
o Is a member of the Privy Council.
Under what conditions does the PM fall?
Losing vote of no confidence in HC
Internal party reasons
Resignation for personal reasons
Sometimes, the cabinet includes a Deputy Prime Minister - e.g. Nick Clegg during the 2010-15 coalition government. (See Cabinet Manual 3.11 for more on the role of the Deputy PM.)
3. MINISTERS AND THE CABINET
The Ministerial and Other Salaries Act 1975: maximum number of paid ministerial posts is 109.
The House of Commons Disqualification Act 1975: not more than 95 holders of Ministerial offices may sit and vote in the
House of Commons at any one time. There is no equivalent legal restraint on the number of Ministers in the Lords. Categories of ministers:
Senior ministers include those who are part of the Cabinet. The latter are determined by the PM but will always include the Chancellor of the
Exchequer, the Lord Chancellor and the secretaries of state. The secretaries of state are typically assigned one government department
(home, health, education, defence, transport etc.)
Junior ministers are generally ministers of state, Parliamentary under secretaries of state and Parliamentary secretaries. Typically they are ministers within a government department and their function is to support and assist the senior minister in charge of the department.
The Law Officers - these are:
o the Attorney General: the chief legal adviser to the government;
responsible for the criminal justice system; guardian of the public interest.
o the Solicitor General
the Advocate General for Scotland
the Advocate General for Northern Ireland
The Government must consult the law officers in good time before committing to decisions with legal implications.
Whips - 'the usual channels', who arrange the scheduling of government business in Parliament and manage Parliamentary parties.
The Cabinet is a collective decision-making body of the government,
made up of PM and the most senior ministers (around 21). It is governed by convention, but it is up to the PM to determine specific arrangements.
The purpose of the cabinet, according to the Cabinet Manual, is "to provide a framework for ministers to consider and make collective decisions on policy issues." (4.1)
The PM decides on the procedures for Cabinet, including when and where it meets. Meetings are recorded by Cabinet Secretariat.
The PM also decides on the structure of the Cabinet, i.e. cabinet committees and their chairs, deputies, members, and terms of reference. Details are usually announced in a biannual ministerial statement in Parliament. Cabinet committee decisions have the same authority as Cabinet decisions.
Types of committees:
Committees are usually established to consider a particular area of government business, such as home or domestic affairs, or national security.
Where appropriate, sub-committees may be established to consider detailed issues and report as necessary to the full committee.
E.g. Economy and Industrial Strategy (Airports) subcommittee
Ad hoc or miscellaneous committees may also be established by the
Prime Minister to carry out a particular task, usually over a limited timescale.
E.g. European Union Exit and Trade Committee, set up "to oversee the negotiations on the withdrawal from the European Union and formation of a new relationship between the United Kingdom and the European Union; and policy on international trade."
A significant concern is whether the Cabinet merely rubber-stamps decisions,
e.g. during Tony Blair's 'sofa government'. The role of the Cabinet therefore depends on the personal style of the PM.
The Cabinet ManualSee Andrew Blick article ('The Cabinet Manual and the Codification of
Conventions' (2014) 67 Parliamentary Affairs 191), in which he argues in favour of viewing it as a form of 'soft law'. He also speculates that it might increase the likelihood of the conventions depicted being used in JR proceedings. He suggests we may want to consider sub-dividing constitutional conventions into those that are described in codes and those that are not.
4. GOVERNMENT DEPARTMENTS
Six broad categories:
1. Central departments: Treasury and Cabinet Office
2. Overseas and defence matters: Foreign and Commonwealth Office,
Dept for Intl Development, Ministry of Defence
3. Social policy departments: Work and Pensions, Health, Communities and Local Government, Education etc.
4. Economic policy departments: Business, Innovation and Skills;
5. Territorial departments: Scotland, Wales, Northern Ireland
6. Home Office, Ministry of Justice, AG Office
Permanent Secretaries (most senior civil servants in the department)
ensure the management of the department
Machinery of government changes are typically within the powers of the PM.
The only legal constraint is found in The Ministers of the Crown Act 1975, which requires that Transfer of Functions Orders be laid before Parliament, together with a ministerial written statement, when:
o Transferring functions from one minister to another
Dissolving a government department
Directing that functions are to be exercised concurrently between departments
However, these orders receive no vote and no debate on the merits in
Parliament; they are also normally laid after the change has already taken place.
The advantages of the current system of implementing changes to the machinery of government are said to be flexibility and speed, allowing the abolishment of structures no longer fit for purpose, the reprioritization of policy areas, and appointments on political considerations. Detractors, however, argue that the system allows too little scrutiny and is too costly.
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