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Gov and the Executive Flashcards

1
Q

Monarchial const?

A

We have an unelected Head of State/ Sovereign/Monarch.

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2
Q

Parliamentary government?

A

Ministers must be members of either the HofC or HofL.

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3
Q

Wade’s definition of the Crown?

A

The Crown refers to the King/Queen i.e. Charles.

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4
Q

Diplock’s definition of the Crown?

A

The Government and all Ministers/ Parliamentary Secretaries.

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5
Q

Two-fold meaning

Sunkin’s definition of the Crown?

A

Has institutional and symbolic meanings:

Institutional – refers to both Monarch and the Executive branch of Government

Symbolic – symbolises the formal location of authority within UK’s constitution.

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6
Q

Crown immunity?

A

The Crown immune from the law – AoP presumed not to bind the Crown unless says otherwise expressly, or by necessary implication.

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7
Q

Two-fold definition

HofC Select Comm on Crown immunity definition?

A
  1. Means the Crown/its emanations aren’t susceptible to prosecution for criminal offences.

1.1 Difficult to define precisely what ‘emanation of the Crown’ means but clear that ministers/their department are included.

BUT

  1. Crown immunity doesn’t protect executive from investigation – the law applies to the Crown just can’t be prosecuted under it so instead a system of Crown censure and Crown notices is used.

2.1 Crown immunity doesn’t grant protection to individuals against criminal/civil claim.

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8
Q

BBC v Johns?

A

CofA rejected BBC’s claim to be ‘an emanation of the Crown’ and thus immune from tax.

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9
Q

Prisons

Facts of Black?

A

Court held that prisons weren’t bound by the HA 2006 because Parliament made no explicit provision.

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10
Q

Two characteristics

What is the Cabinet?

A
  1. Most senior Ministers known as a ‘Secretary of State’.
  2. The Cabinet has no legal powers – it’s a creature of convention.

2.1 However, each senior minister in the Cabinet has legal powers i.e. prerogative powers.

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11
Q

Meaning of Parliamentary scrutiny?

A

Refers to mechanisms of scrutinising the work of Government.

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12
Q

Dicey on scrutiny of the gov?

A

Proposed that the gov exercises Parli’s power but Parli performs political checks on the efficacy of political performance

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13
Q

Idea of legality?

A

Those who govern must show the law gives them power to govern

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14
Q

Why is accountability a key aspect of legitimacy?

A

Accountability means that those who exercise exec power can be accountable for their decisions and conduct.

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15
Q

Two conventions of ministerial responsibility?

A
  1. Individual ministerial responsibility;
  2. Collective ministerial responsibility.
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16
Q

Three main methods of scrutiny?

A
  1. Select committees;
  2. Parliamentary questions;
  3. Debates on the House floor;
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17
Q

Definition of individual ministerial responsibility?

A

The idea that for every act of the government, there’s a minister responsible to Parliament.

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18
Q

Composition of Select Comms?

A

Reflects the party-political composition of the HofC

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19
Q

Role of SCs?

A

Advisory role and methods of work usually inquisitorial – they’re supposed to conduct inquiries into the work of each department.

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20
Q

In terms of their findings

Limitation of Select Comms?

A

Each dept obliged to respond to committee reports but no obligation to accept their findings.

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21
Q

Can ministers be called to appear before a Select Comm?

A

Yes - often subject to rigorous questioning, resulting in in-depth scrutiny into each dept’s work.

But no obligation for a minister to appear before an SC

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22
Q

When and why did Priti Patel refuse to appear before a Select Comm?

A
  1. July 2022 - refused to appear before Home Affairs Committee
  2. Likely because the session would Q her Rwanda policy, among other things
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23
Q

2017 report published by The Const Society about SCs?

A

Found that powers afforded to committees are limited

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24
Q

Issue with rota of Parliamentary Qs?

A

Ministers are given advance notice of most of the Qs MPs will ask.

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25
Q

Hough’s criticism of PQs?

A

Alleged that PQs ‘repeatedly’ put to ministers fail to receive answers, because they’re not given whatsoever or they’re incomplete/irrelevant.

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26
Q

Two available

Option for MPs who don’t receive satisfactory responses to PQs?

A
  1. Press the minister concerned
  2. Raise it with the chair of the Public Admin Select Comm
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27
Q

Three-fold

Oliver’s articulation of the scope of individual ministerial responsibility convention?

A
  1. Ministers responsible to Parli for all that happens in their depts, though only regarded as culpable in respect of their own decisions/failures;
  2. Must give an account to Parli, and
  3. They’re expected to correct something that’s gone wrong.
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28
Q

2011 study done by UCL Const. Unit found what % of SC’s recs were accepted and implemented?

A

40%

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29
Q

Issue with media publicity of PMQs?

A

Turns into a gladiatorial-style argument than forensic analysis of political and legal issues – ends up focusing on wit and humour of each politician’s response rather than publishing information for public benefit.

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30
Q

Two benefits of PQs/PMQs?

A
  1. Provides opportunity for HofC to call the gov into account.
  2. PMQs are public so general public can watch live broadcast or sit in the public gallery.
31
Q

Definition of collectivity ministerial responsibility?

A

The Ministerial Code – the internal process through which a decision has been made, or the level of Committee who made it, shouldn’t be disclosed

Idea is that ministers can’t publicly disagree with Parli.

32
Q

Combined definition of Dicey and Blackstone’s definition of PPs?

A

PPs are powers of the Crown that haven’t been abolished and are exclusive to the Crown.

33
Q

What did the King exercise before the Bill of Rights?

A

All executive powers.

34
Q

What’s changed to the exercise of executive power post-Bill of Rights?

A

Delegated to what’s now become gov, whilst the gov delegates to the Exec.

35
Q

Types of exec power?

A

The various decisions the Executive makes to execute, manage, and administrate laws and public policies, and decisions made acting in the name of the Crown.
E.g. running prisons

36
Q

Sources of exec power?

A

The legal authority that grants an Executive body power to act in certain ways.
I.e. PPs, AoPs, ‘third source’, or EU.

37
Q

Judgement in GCHQ case?

A

Held PP subject to JR but there are exceptions

38
Q

Diplock in GCHQ case?

A

Where a person’s private rights or legitimate expectations are affected by the execution of the PP, that power should be justiciable.

39
Q

Fraser and Brightman in GCHQ case?

A

Came to same conclusion as Diplock but based on view that where PP was delegated from the monarch, the exercise of that power could be reviewed via JR.

But although PP can be subject to JR, there are certain exceptions, one being where the power is used in the interest of protecting national security.

40
Q

Facts of AG v De Keyser’s Royal Hotel?

A

The military (acting in the name of the Crown) took control of a hotel during WW2 to house the HQ of the Royal Flying Corps.

Gov authorised decision via PP to escape paying owner of hotel compensation for seizing control, despite the Defence Act 1842 affirming the owner entitled to compensation.

41
Q

Principle of De Keyer’s Royal Hotel?

A

In the event Parli hasn’t abolished a PP but enacted legislation that conflicts with it, the AoP will prevail

42
Q

HofL’s judgement and rationale in De Keyser’s Royal Hotel?

A

The gov had to pay compensation - existing statute directly conflicted with the PP

In such a case, the statute would prevail because if limitations existed via statute, but the Crown could disregard them and only rely on PP, that would violate constitutional principles.

43
Q

Facts of ex p Northumbria Police Authority?

A

The Home Secretary issued a circular that authorised future Home Secs to maintain a store of plastic batons and CS gas that police forces could purchase from, even if the local police authorities didn’t approve.

44
Q

Three-fold

CofA judgement in ex p Northumbria Police Authority?

A
  1. The Police Act 1964 permitted the establishment of a central store and the direct supply of this equipment to police forces without police authority approval.
  2. So PP of the Home Sec to supply wasn’t inhibited by the Act.
  3. Also said the Home Sec has PP to maintain peace.
45
Q

Conflict between judgement in De Keyser’s Royal Hotel and Northumbria Police Authority?

A

Ruling in Northumbria PA misaligns with principle in De Keyser’s Royal Hotel, namely that the courts should err on the side of caution when dealing with conflicting uses of PPs and AoPs for the sake of upholding Ps.

Northumbria Police Authority a CofA decision after HofL’s judgement in De Keyser’s Royal Hotel.

46
Q

Croom-Johnson LJ in Northumbria Police Authority?

A

Acknowledged the Crown does have a PP to keep the peace, which is bound up with its right to prevent crime and administer justice, but the Crown can’t act under the prerogative if to do so would be incompatible with statute.

47
Q

Issue in the Fire Brigades Union?

A

When considering whether the exec can use PP in a manner that effectively means an AoP won’t be brought into force, the HofL held it was an abuse of the Home Sec’s power to exercise his purported PP to introduce a system that would conflict with his continuing duty to bring the statutory scheme into force.

48
Q

Does Fire Brigades Union align or distinguish with the the judgement in De Keyser’s Royal Hotel?

A

Decision aligns with the rationale – namely, that an AoP is supreme and the purported use of a PP, or any other form of exec power for that matter, cannot undermine legislation determined by an AoP.

49
Q

Lord Browne-Wilkinson in Fire Brigades Union?

A

Just because the Sec isn’t under a duty to bring the section into effect, doesn’t mean he has an absolute discretion whether to do so whatsoever – it’s for Parliament, not the executive, to repeal legislation.

50
Q

What did the court make an exception to in Sandiford?

A

To reviewing PPs in the same way as statutory powers.

51
Q

Facts of Sandiford?

A

C was a 57-year-old Brit imprisoned in Bali awaiting execution following conviction for drug offences.

The gov refused to pay for legal representation under a blanket policy and refused to make exception.

52
Q

UKSC’s judgement in Sandiford?

A

When considering the legality of the policy of providing consular assistance in such cases, but not funding for legal representation, the UKSC unanimously dismissed C’s appeal.

53
Q

Lord Carnwath in Sandiford?

A

PPs don’t stem from any legislative source/decision and no obligation to exercise them in one way or another.

They’re intrinsic to the Crown which results in PP having to be approached on a different basis from stat powers.

54
Q

Ram Doctrine?

A

Also termed as ‘third source power’ by Harris - the idea that there is an alt. source of exec power that’s neither statute or PP

55
Q

Facts of Malone v Met Police Commissioner?

A

At the time, no statute expressly authorised telephone tapping, and the police didn’t claim to have specific legal power under PP to intercept but was thought to be lawful because nothing made it unlawful.

56
Q

Claimant’s argument in Malone?

A

C argued telephone tapping constituted an interference with constitutional rights and was an infringement upon his right to privacy under common law thus breached the ECHR.

57
Q

Judgement in Malone?

A

There was no established common law right to privacy or a prohibition against telephone tapping and the ECHR didn’t provide a direct cause of action thus not relevant.

58
Q

ECtHR’s judgement in Malone?

A

C successfully appealed to the ECtHR and the law on telephone tapping was subsequently altered.

59
Q

Which case considered the scope of the Ram Doctrine?

A

Shrewsbury and Atcham BC v Secretary of State for Communities and Local Government

60
Q

Carnwath LJ in Shrewsbury and Atcham BC?

A

The Crown isn’t a creature of statute, but an organ of gov thus can only exercise powers for the public benefit and for identifiable governmental purposes outlined by the law.
BUT
The extension of the Ram Doctrine should be resisted in the interest of the RofL.

61
Q

Richards LJ in Shrewsbury and Atcham?

A

Didn’t share Carnwath LJ’s reservations about the extent of the common law powers of the Crown.

Thought it would be wrong to introduce qualifications to their exercise such as powers only ‘for the public benefit’

62
Q

Which case established principle that courts may review the existence of a PP?

A

Case of Proclamations

63
Q

Facts of GCHQ case?

A

Under PPs, Thatcher’s gov prevented Government Communications Headquarters (GCHQ) civil servants being members of unions.

64
Q

Original judge’s ruling in GCHQ?

A

Granted JR app and emphasised need for Gov to follow fair procedure required by common law.

65
Q

CofA in GCHQ?

A

Reversed the decision as found failure to consult was justified in interests of national security

66
Q

HofL in GCHQ?

A

Held executive action based on common law or the use of a PP wasn’t immune from review.

But the requirements of national security outweighed those of fairness, which was a matter for the executive to weigh and decide.

67
Q

Why is GCHQ’s judgement a landmark one?

A

Because of what the Lords said about the scope of JR with PP and departure from previous unwillingness to judicially review PPs.

68
Q

Diplock in GCHQ?

A

Where a person’s private rights or legitimate expectations are affected by the execution of the PP, that power should be justiciable.

69
Q

Fraser and Brightman in GCHQ?

A

Came to same conclusion as Diplock but based on view that where PP was delegated from the monarch, the exercise of that power could be reviewed via JR.

But although PP can be subject to JR, there are certain exceptions, one being where the power is used in the interest of protecting national security.

70
Q

Bancoult No.2 (Chagossian case) facts?

A

C challenged the Orders in Council themselves.

71
Q

Issue in Bancoult No.2?

A

Gov argued courts had no power to review validity of an Order legislating for a colony because it was primary legislation comparable to AoP.

72
Q

Judgement in Bancoult No.2?

A

Courts can review the legality of Orders in Council.

BUT

The specific Orders weren’t unlawful because they weren’t repugnant to the Chargossians’ fundamental right of abode and to return to the islands.

The right wasn’t constitutional but symbolic and there was no clear and unambiguous promise thus no legitimate expectation

73
Q

Hoffmann in Bancoult No.2?

A

A prerogative Order in Council is primary legislation but just because they resemble AoP doesn’t mean they share all characteristics.

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