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Executive Powers Flashcards

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1
Q

Explain how power is separated in the UK?

A
  • Legislative Powers (law making powers)
  • Executive Powers (law enforcement powers)
  • Judicial Powers (Determine whether they are acting within there powers
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2
Q

Explain the Lockean Theory?

A
  • It says if power is concentrated in one person or body then it will be abused because humans are weak and unable to handle power.
  • He believed its better for power to be diffused and separated.
  • Human nature is easily corruptible
    Quotes:
  • Montesquieu ‘There would be an end to everything, were the same man or the same body … to exercise those three powers’
  • Lord Acton ‘great men are almost always bad man’ suggests power is corrupting.
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3
Q

Explain what the UK executive is/means?

A
  • The executive refers to the government and means those who make key decision and run the country day to day.
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4
Q

How His Majesty’s Government divided?

A
  • In cabinet, there are 23 senior ministers (called cabinet ministers)
  • 30 MPS
  • 1 is a peer
  • 7 women
  • PM is paid £79,936
  • Divided into 25 departments
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5
Q

What is the UK’s position?

A

Fusion of Powers Doctrine:
- Walter Bagehot 1826-1877 described the UK equivalent principle as ‘fusion of powers’ in which individuals possess multiple powers and some individuals hold all three kinds of powers.
- Dicey did not see the value in separation of powers
What are examples of fusion of powers between institutions in the UK?
- The crown as a formal role in each branch of the government
- The PM lead the party with the highest number of seats in the House of Commons.

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6
Q

Following the Fusion of Powers Doctrine, how do we know that the power won’t be abused?

A
  • Have to trust the responsible people in power
    Emblem of self-restraint in Dicey’s time:
  • He believed the powerful as trustworthy
  • Lord Westbury, in his office were refusal all powers
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7
Q

What is the royal prerogative?

A
  • Collection of Rights, powers, privileges and immunities that are attached to the crown
  • This was not delegated by statute
  • It gives the executive discretion in some areas without the need for approval from parliament
  • Recognised by Common Law. The courts accept inherent authority of the crown.
  • A lot of power is vested in the crown
  • The monarch has personal capacity in giving royal assent
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7
Q

Examples of Quotes which describe the royal prerogative: (Blackstone, and Dicey)

A
  • Blackstone ‘ that special pre-eminence which the King hath, over and above all other person and out of the ordinary course of the common law, insight of his royal dignity’
  • Dicey ‘the residue of discretionary or arbitrary authority, which at any time is legally left in the hands of the crown … Every Act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative.
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8
Q

What is the ordinary prerogative?

A
  • Royal Functions which had to be exercised in a particular way.
  • No discretion is given to the King
  • King had to dispense justice through his justices - could not act as judges himself
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9
Q

What is the absolute prerogative?

A
  • Functions the king could exercise in his direction
  • Examples: Grant a peerage, right to pardon, powers to exercise discretion at a time of emergency.
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10
Q

How have the prerogative powers historically developed?

A
  • Prerogative powers have been limited by Parliament over the last 4 centuries
  • Some significant prerogative powers remain in the crowns control.
    Absolute Prerogative is limited throughout the 17th Century:
  • King could not levy tax directly - Case of Ship Money 1637
  • James I - No law-making without parliament ‘the king hath no prerogative, but that which the law of the land allows him’
  • Judicial independence - Act of Settlement 1700
    The Bill of Rights:
  • Placed significant limitation on Prerogative powers by removing the monarchs powers to set aside or suspend laws.
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11
Q

Gives examples of executive powers:

A
  • Right to appoint the PM
  • Foreign Affairs
  • Declaration of War
  • Deployment of Armed forces
  • Diplomacy
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12
Q

Gives examples of legislative powers:

A
  • Royal Assent
  • Proroguing and dissolving parliament
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13
Q

Give an example of Judicial powers:

A
  • Royal Pardon
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14
Q

What does Checks and Balance on prerogative powers mean?

A
  • They are mechanisms which distribute power throughout a political system - preventing any one institution or individual from exercising total control.
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15
Q

Explain the Checks and Balances on Political/Non-legal control?

A

Parliamentary Process: (Government is accountable for Parliament)
- PM’s Questions
- Scrutiny Committees
- Motions and Debates
- It’s not always required to have parliament consent before excising prerogative powers.
- It can be scrutinised and debated after the event
Constitutional Conventions:
- Conventions can limit the scope for discretion when exercising prerogative powers.
- It maintains flexibility without need to codify the prerogative
The Process is that:
- With Prerogative Powers, the Queen gives royal assent to Parliamentary Bills.
- Following constitutional conventions, the monarch must always give Royal Assent to Parliamentary Bills.

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16
Q

Give an example of how a constitutional convention is created in relation to declaration of War?

A
  • Prerogative Powers are to declare war and deploy the armed forces
  • Government asked for Parliamentary consent before entering war in Iraq 2003 and Syria 2013.
    Does this mean a convention has been created?
  • After the government asking for consent a ‘constitutional convention exists to the effect Government must, before, commencing any military action, permit a debate and vote in the House of Commons and abide by its result, subject to a narrow exception exists where truly urgent action is required’.
  • There is now an exception that the government must ask for consent before starting military action.
  • While this might not apply in all situations only depending on the political pressure and consequences if a vote on military action is not taken.
17
Q

Explain the checks and balances in Legal Controls?

A
  • Only limited control historically
  • Courts could determine whether prerogative powers existed and what it allowed the executive to do.
  • If power did not exist then can be challenged in the courts (BBC v Johns 1965).
    What would it mean if the power existed?
  • Executive can exercise it as they wish
  • Saltpetre Case 1607 - Power in emergency to enter private land - King could decide if emergency existed and what measure to take
  • Allen 1862 - ‘Parliament and no the courts to remedy’
  • Blackburn v AG 1971 ‘the power to determine whether to prosecute or not, whether the AG is right or wrong, the court cannot interfere’
  • Prerogative power can be reviewed by judicial review - since the 19th century

Council of Civil Service Union v Minister for Civil Service 1985:
- Ministerial decision restricting GCHQ workers from joining a trade union
- They did not consult before making the decision - workers claim there was a legitimate expectation to be consulted.
- Ultimately, they lost the case because national security outweighed the need for consultation.
- CCAU recognised that prerogative powers can be reviewable just as any other executive power.
Why is this significant?
- This is important because they allowed the hearing against a prerogative power and looked at how it was exercised.
- Prerogative powers are the same as other powers so they must be exercised lawfully.
- Lord Roskill said ‘unable to see … that there is any logical reason why the fact that the source of the power is the prerogative and not statute should today deprive the citizen of that right to challenge to the manner’
- He is saying that prerogative powers should be questioned as well. However, some are too highly political it would be difficult to become involved.
- This is shown when he says it ‘depends upon the subject matter of the prerogative power which is exercised’ because not every prerogative power is justifiable.

18
Q

Legal control - some areas have been identified as non-justifiable so they have been challenged:

A
  • Ex p Bentley (1994) mercy/pardon
  • R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs (2002) - foreign affairs (limited review)
  • Courts have chosen to get involved even though they are reluctant to interfere on many issues.
    R (Sandiford) v Foreign and Commonwealth Secretary (2014):
  • Providing legal assistance abroad - a matter for the government
19
Q

Explain R (Miller) v Secretary of State for Exiting the EU:

A
  • Government claimed that they could trigger Article 50 to state the process to withdraw from the Eu through Royal Prerogative.
  • Courts needed to determine whether UK government had this power or not.
    Held:
  • Prerogative cannot remove rights (Bill of Rights 1689)
  • Government did not have power under Royal Prerogative to give notice to withdraw from EU under article 50.
  • Required an Act of Parliament to delegate authority to the UK Government to notify the EU of the intention to withdraw from the EU.
  • Upholds fundamental parliamentary sovereignty and limitation of prerogative as declared in Bill of Rights 1689.
20
Q

Explain Cherry/Miller (No 2) [2-19] UKSC 41?

A

Prorogation: brings a parliament session to an end before the start of a new session.
- The PM advised the Queen to use the royal prerogative to Prorogue Parliament for 5 weeks.
- Lawfulness was challenged in the Scottish Courts and the England and Wales High Court.
- Reached the UK Supreme Court in Sept 2019
What are the key issues?
- Is Prorogation justiciable?
- If so, did the PM act lawfully?
- If not, what should be the remedy?
Prerogative power to prorogue parliament is limited:
- ‘That a decision to prorogue parliament will be unlawful if the prorogation has the effect of frustrating or preventing reasonable justification, the ability of parliament to carry out its constitutional functions as a legislature and as a the body responsible for the supervision of the executive’
- In this situation, the courts will intervene if it is serious enough to justify.
RemedyL
- Declaration that advice was unlawful
- Quashing Order: advice was unlawful which means that the order to provoke was also unlawful and should be quashed.

21
Q

Prerogative Powers and Formalisation:

A
  • PR can be formalised and codified in statute such as Constitutional Reform and Governance Act 2010 and Fixed-Term Parliaments Act 2011.
  • This removed the prerogative of government to determine when to hold a general election and in doing so sets out when Parliament should be dissolved to hold a general election every 5 years.
  • In special conditions could change the 2/3 majority. It was meant to provide clarity but in actuality it created complexities shown in Theresa May.
    For Example - Dissolution and Calling of Parliament 2022:
  • Repeals FTPA 2011
  • It revives the prerogative power effectively wiping out the 2011 at.
  • Exercise of new statutory powers.
    For Example - Ponsonby Rule - Constitution and Governance Act 2020:
  • PR rule - ratifying treaties
  • Convention must place the treaty before Parliament for 21 days (procedure)
  • Does putting prerogatives in an act of parliament remove its legacy as a prerogative? Or is the power still in existence alongside the Act of Parliament?
22
Q

Explain the narrow view of Formalisation (Prerogative Powers):

A

R v Secretary of State for the Home Department ex p. Northumbria Police Authority (1989):
- Local authorities had powers to supply police with resources
- Secretary of State could use prerogative power to keep the peace by supplying police with weapons.
- Narrow view is statute does not extinguish the whole prerogative.
Ex p Fire Brigade Union (1995):
- Minister had to consider brining in compensation scheme under Criminal Justice Act 1988.
- But could still use the previous compensation scheme under prerogative as long as prerogative is not inconsistent or conflicts with intention of parliament.

23
Q

Explain the wide view to formalisation?

A
  • If statute comprehensively covers the prerogative power then it cannot be used.
    Attorney General v De Keyser’s Royal Hotel Ltd (1920):
  • Statute allowed compensation but Minister claimed it was through prerogative and not through statute.
  • Court refused the Minister’s argument.
    R (Munir) v Secretary of State for the Home Department (2012):
  • Power to make immigration rules now in statute not in the prerogative.
  • This seems to confirm the wide view.
24
Q

What does delegated legislation mean?

A
  • When the executive legislative powers to a devolved legislature to make legislation on a certain matter on there behalf.
25
Q

Explain the narrow power of delegated legislatures:

A
  • Strong control of legislation
  • Technical details in implement policy
  • Strong parliamentary intention
26
Q

Explain the wide powers of delegated legislatures:

A
  • Weaker control in legislation
  • Some discretion on how to implement policy and fulfil parliamentary intention
27
Q

Explain the wide and very wide powers:

A
  • Weak control in legislation
  • Significant discretion on how to implement policy
  • Seen in most recent years.
  • weak parliamentary intention
  • Henry VIII
  • Framework Bills
28
Q

What are the reasons for delegated legislation?

A
  • Parliament had limited time
  • Technicalties
  • Foreseeability
  • Emergencies
  • To allow local authorities to legislate on local matters
29
Q

Give reasons why delegated legislation upholds Parliamentary Sovereignty?

A
  • Parliament delegated the amount of power
  • Viewed as a ‘necessary evil’ as the executive needs to be given legislative powers.
  • Only able to make secondary legislation with the authority of parliament.
30
Q

Does delegated legislation challenge parliamentary sovereignty?

A
  • Some delegated powers are very wide and wide-reaching
  • Some delegated powers can have authority to amend legislation (e.g. Henry VIII Clauses)
31
Q

Explain an example of Statutory Instruments:

A

Orders in Council:
- Legislation made by the monarch on the advice of the Privy Council
- Most are made as SI’s
- Some times are passed by Royal Prerogative

31
Q

What are Statutory Instruments?

A
  • They are a form of secondary legislation which allows the provisions of an Act of Parliament to be subsequently brought into force or altered without parliament having to pass a new act.
  • For example orders, regulations, rules, warrants, schemes and directions.
32
Q

Explain narrow powers in delegated legislation through the Teaching and Higher Education Act 1998?

A
  • Powers to give student grants and loans
  • Provides discretion on the technical matters and related to the act.

Section 22 - New arrangements for giving financial support to students
(1) Regulations shall make provision authorising or requiring the Secretary of State to make grants or loans, for any prescribed purposes, to eligible students in connection with their [undertaking]
(a) higher education course, or
(b) further education courses,
which are designed for the purposes of this section by or under the regulations
Meaning:
- Allows them to decide about grants and student loans
- Devolution means there are different regulations that can flow from the parent act to apply in England, Wales, Scotland and NI.

33
Q

Explain wider powers in delegated legislation through the Public Health (Control of Disease) Act 1984?

A
  • The best example is how the government needed to react quickly in the pandemic.
  • They used delegated powers to implement restrictions and repose.
  • This act’s definition is vague and does not define the different sections.
  • Can have different effects in different parts of the UK.
  • There are 582 Statutory Instruments related to Coronavirus:
  • 118 made affirmative
  • For example, the coronavirus act 2020 delegated powers to governments to take emergency action to manage Covid-19
34
Q

Explain wide powers in delegated legislation through Henry VIII clauses and the European Union (Withdrawal) Bill?

A

Henry VIII Clauses:
- It is a provision in an act of Parliament enabling primary legislation to be amended or repealed by secondary legislation with or without further parliamentary scrutiny.
- Allows the government to amend or repeal primary legislation.
- It allows the executive to encroach on the powers of parliament
- HofL was concerned about the wide use of Henry VIII Clauses used to deal with Brexit
For example, European Union (Withdrawal) Bill: Interim Report paragraph 48:
- ‘We accept that the government will require some Henry VIII powers in order to amend primary legislation to facilitate the UK’s withdrawal from the European Union, but they should not be granted lightly and they must come with commensurate safeguards and levels of scrutiny’
- Henry VIII clauses are ‘a departure from constitutional principle’
EU (withdrawal) Act 2018:
- This delegates powers to the government to manage retained EU law - but can amend and repeal primary legislation too.
- Section 8 is limited to the use of DL and Henry VIII powers.
- Parliament retains sovereignty by imposing obligations and restrictions on the exercise of Henry VIII powers.

35
Q

Explain very wide powers in delegated legislation?

A

Skelton Bills:
- Sets out principle of how the power should exercised but allows very wide discretion for minister to make changes to policy areas
- Minimal reservations and scrutiny from parliament
- House of Lords wrote a letter to the government convening the increasing frequency of Skeleton Bills.

36
Q

Explain scrutiny by parliament?

A
  • Acts will usually set out the Parliamentary Procedure that should be followed when making SI’s (Affirmative Resolution)
  • No parliamentary scrutiny, not required to be laid before parliament (Negative Resolution)
  • SI’s will be scrutinised and subject to representation from Mrs and Committees that Ministers must consider (Super affirmative procedure)
    The Committee on Delegated Powers and Regulatory Reform:
  • Secondary legislation scrutiny Committee
  • Sifting process to determine which SI’s should be promised for debate.
37
Q

What are the challenges to effective scrutiny?

A

Parliament cannot amend secondary legislation
- They are almost never rejected by either the House of Common or Lord.
Complex Procedures of Scrutiny
- Lack of consistency in determining which scrutiny procedure should be followed.
- Confusion over how negative and affirmative procedures work
Government controls the timetable of the House of Commons
- Can control when notion is discussed if an MP wants to raise the negative procedure.

Explanatory Memorandums accompanying SIs can be poor quality, not provide the right information and have weak evidence support.

38
Q

Explain Scrutiny by the Courts (Judicial Review)?

A
  • Parliament can be ineffective in scrutinising SIs meaning that the supervisory role of the courts becomes more important
  • Judicial Review can challenge whether delegated legislation has been exercised lawfully within the powers delegated to the executive (Intra Vires).
    Decisions can be challenged on the grounds of:
  • Illegality/ Ultra Vires
  • Irrationality/ Unreasonableness
  • Procedural Impropriety
  • Human Rights Act 1998: European Convention on Human Rights

Public Law (3 decks)

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