Executive Flashcards
Legislation
CPA
Crown Proceedings Act 1947
You can sue the crown in its own courts
The Monarch as a part of the executive
Powers = appoint PM, dissolve Parliament [gone in 2011 Fixed Term Parliament Act but restored in 2022], grant royal assent, dismiss the government, appoint ministers
Cabinet as a part of the executive
Collective Cabinet Responsibility = s.4.2 of the cabinet manual, it may be set aside [AV 2011 vote in the coalition], publically must back govt., upholds cabinet secrecy
Individual Ministerial Resonsibility = takes responsibility of the actions of civil servants [para.1.5 pf the cabinet manual sets out their core duties and responsibilities]
Cases
Restraints on the Executives’ power
- Both Miller cases
- R v Somerset County Council, ex parte Fewings = ministers have to show/indicate where they have obtained their powers
The Crown as a part of the executive
Orders in Council
Prergorative powers: conduct of foreign affairs, declaration of war, disposition of the armed forces, royal pardons, issuing passports
CHECK: judicially reviewable by the court - more frequently done, now they tend to only hold back in national security matters
Prerogorative Powers acedemics:
Dicey = ‘residue of discretionary or arbitrary authority’
Lord Neuberger in Miller 1 agreed but put a modern spin on it [parliamentary scrutiny] - ‘residue … the exercise is consistent with Parliamentary legislation’ - so legislation has priority [Fixed Term Parliament Act]
Lord Reid: ‘relic’
Lord Roskil: not allowing the court to review them would be like the ‘mediaeval chains of ghosts of the past’ [in GCHQ case = CCSU v Minister for the Civil Service]
Limits on Prerogorative powers:
- Cannot create new ones
vs. royal pardon extended to Alan Turing = he was not innocent, the crime that he was convicted of, later was not a crime
+ can they be reintroduced? = Dissolution and Calling of Parliament Act 2022 undid the Fixed Term Parliament Act made the dissolution of Parliament ‘exercisable again’
+ they can be quashed by the court: if they are exercised in an unreasonable manner = GCHQ case
Statutory Powers
The Padfield Principle
Powers must be used as intended
Statutory powers use ‘may’ or ‘power’ when it is discretionary
Statutory Duties
Mandatory = ‘shall’ is used to convey this
Conventions concerning the executive
- The Cabinet Manual = ‘guide to laws, conventions and rules on the operation of government’
- The Ministerial Code = standards for ministers enforced by the PM - ministers should resign if broken, however, some do not: Amber Rudd did after misleading Parliament, vs. Gavin Williamson balmed his civil servants [went against indvidual ministerial repsonsibility] over algorithm to produce exam results and did not resign + other ministers broke lockdown rules and did not resign [Dominic Cummings]
+ discretion of PM - case involving Priti Patel bullying civil servants = FDA v PM - PM did not have to make her resign - did not misinterpret the manual as he enforces it
Conventions concerning the HoC
- Confidence = the government remains so long that they command the confidence of the Commons
- War Powers: Syria 2013 vote in HC = Government defeated, despite the coalition having a majority, although sometimes there is not a vote
- Scrutiny of treaties
Legal accountability - can the court review highly politicial claims on coventions and prerogorative powers?
- they must ask wheteher the case is judiciable?
- less restraint currently, only in cases of national security
Cases
Miller 1 + 2
1 = Brexit - who could trigger article 50? = Parliament - despite the PM holding the prerogative power to conduct foreign policy and form treaties, the court held that membership of the EU was ‘brought into existence by Parliament through primary legislation’, so it must be repealed in the same way
2 = prorouging parliament by Johnson was unlawful as it was preventing parliament from doing its purpose and function - parliamentary scrutiny
