The Executive

Question 1

What did Town Investments v Dept of the Environment (1978) say in regards to the executive?

Answer 1

“Where, as in the instance case, we are concerned with the legal nature of the exercise of executive powers of government, I believe that some of the more Athanasian-like features of the debate in your Lordships’ House could have been eliminated if instead of speaking of ‘the Crown’ we were to speak of ‘the government’ – a term appropriate to embrace both collectively and individually all of the ministers of the Crown and parliamentary secretaries under whose direction the administrative work of government is carried on by the civil servants employed in the various government departments. It is through them that the executive powers of Her Majesty’s government in the United Kingdom are exercised, sometimes in the more important administrative matters in Her Majesty’s name, but most often under their own official designation. Executive acts of government that are done by any of them are acts done ‘by the Crown’ in the fictional sense in which that expression is now used in English Public Law”

Question 2

Who is the Cabinet Manual wrote by? What does it attempt to do?

Answer 2

The Cabinet Manual is an attempt by Civil Service to describe neutrally how government works.

Question 3

What does the Cabinet Manual say about the executive?

Answer 3

“Constitutional convention is that executive power is exercised by the Sovereign’s Government, which has a democratic mandate to govern. Members of the Government are normally Members of the House of Commons or the House of Lords and the Government is directly accountable to Parliament. The government of the day holds office by virtue of its ability to command the confidence of the House of Commons. Elections are held at least every five years to ensure broad and continued accountability to the people. Election candidates can stand independently but they usually represent political parties, and party numbers in the House of Commons determine the composition of the Government.”

Question 4

The office of the Prime Minister is governed by what? There are limited references to the Prime Minister in what?

Answer 4

conventions, legislation.

Question 5

Is there always a deputy prime minister? Give an example

Answer 5

No, but there was one during the coalition government 2010-2015

Question 6

How does the adoption of a prime minister in the UK differ from that of Ireland?

Answer 6

The President shall, on the nomination of Dáil Éireann, appoint the Taoiseach, that is, the head of the Government or Prime Minister.

Question 7

How does the adoption of a prime minister in the UK differ from that of South Africa?

Answer 7

At its first sitting after its election, and whenever necessary to fill a vacancy, the National Assembly must elect a woman or a man from among its members to be the President.

Question 8

How does the adoption of a prime minister in the UK differ from that of Scotland?

Answer 8

If one of the following events occurs, the Parliament shall within the period allowed nominate one of its members for appointment as First Minister. The events are—(a)the holding of a poll at a general election, (b)the First Minister tendering his resignation to Her Majesty, (c)the office of First Minister becoming vacant (otherwise than in consequence of his so tendering his resignation), (d) the First Minister ceasing to be a member of the Parliament otherwise than by virtue of a dissolution.

Question 9

What is the Carltona principle?

Answer 9

The decision of a civil servant is the decision of the minister

Question 10

Civil servants should be what four things?

Answer 10

Anonymous, independent, politically neutral and permanent

Question 11

What four principles are in the civil service code?

Answer 11

Integrity, honesty, objectivity and impartiality.

Question 12

What does SpAds stand for and what do they do?

Answer 12

Special advisors (type of civil servant) - they share the political agenda with government

Question 13

Is the ministerial code a statutory document? Explain

Answer 13

No - it is designed to explain the standards that are applied to ministers

Question 14

What two conventions are there surrounding ministerial responsibility?

Answer 14

Collective and individual.

Question 15

Explain collective ministerial responsibility.

Answer 15

‘The principle of collective responsibility requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached.’ ‘Decisions reached by the Cabinet or Ministerial Committees are binding on all members of the Government. They are, however, normally announced and explained as the decision of the Minister concerned.’ However there are some exceptions, where ministers have agreements to differ such as Brexit, the EEC referendum 1975 and specific questions during the coalition.

Question 16

Explain individual ministerial responsibility.

Answer 16

‘Ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and agencies’ - Inform, explain, apologise, act, resign. ‘Ministers only remain in office for so long as they retain the confidence of the Prime Minister. She is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards’. E.g. ‘Crichel Down’ affair 1954 – ‘I, as Minister, must accept full responsibility to Parliament for any mistakes and inefficiency of officials in my Department’.

Question 17

What are the three sources of executive power?

Answer 17

1. Statute
2. Prerogative Powers
3. R (New London College) v Secretary of State for the Home Department (2013): ‘It has long been recognised that the Crown possesses some general administrative powers to carry on the ordinary business of government which are not exercises of the royal prerogative and do not require statutory authority’

Question 18

Name 5 ‘personal’ powers of the Crown.

Answer 18

1. Dissolution of Parliament (pre 2011) and its summoning
2. Appointment of PM
3. Royal Assent to legislation
4. Certain honours (e.g. Order of the Thistle)
5. ‘Legal prerogatives’

Question 19

Name 6 prerogatives exercised by the executive which have been inherited from the Crown.

Answer 19

1. Foreign affairs
2. Governance of territories
3. Military action
4. Passports
5. Mercy
6. Emergencies

Question 20

Explain the ‘GCHQ breakthrough’ in relation to prerogative powers.

Answer 20

“I believe that the law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter upon which the court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power … Today, therefore, the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter” (Lord Scarman, in CCSU v Minister for the Civil Service (1985)”

Question 21

What was the further development of the GCHQ breakthrough in R (Bancoult) v SoS for Foreign & Commonwealth Affairs (No. 2) (2008)?

Answer 21

Applies GCHQ (which had related to actions within the scope of the exercise of the prerogative) to prerogative order in council.

Question 22

What did the Governance of Britain (2007) say about the prerogative powers?

Answer 22

“The Government believes that in general the prerogative powers should be put onto a statutory basis and brought under stronger parliamentary scrutiny and control. This will ensure that government is more clearly subject to the mandate of the people’s representatives. Proposals in relation to certain specific powers are set out below and these can be addressed now. The Government also intends to undertake a wider review of the remaining prerogative powers and will consider whether in the longer term, all these powers should be codified or put on a statutory basis”

Question 23

What is stated about war powers in the Cabinet Manual? In particular to do with Iraq.

Answer 23

“the Government believes that it is apparent that since the events leading up to the deployment of troops in Iraq, a convention exists that Parliament will be given the opportunity to debate the decision to commit troops to armed conflict and, except in emergency situations, that debate would take place before they are committed”

Question 24

What four roles does the Crown play in the UK Constitution?

Answer 24

1. Appointing a Government: The day after a general election the Queen invites the leader of the party that won the most seats in the House of Commons to become Prime Minister and form a government.
2. Opening and Dissolving Parliament: The Crown opens Parliament through the State Opening (marking the beginning of the Parliamentary year). The Crown only dissolves Parliament before a general election under conditions laid out in the Fixed Term Parliament Act 2011 (dissolution).
3. Queen’s Speech: The Crown informs Parliament of the government’s policy ideas and plans for new legislation in a speech delivered from the throne in the House of Lords. The Queen makes the speech and the government draws up the content.
4. Royal Assent: When a Bill has been approved by a majority in the House of Commons and the House of Lords it is formally agreed by the Crown. This is known as the Royal Assent. This turns a Bill into an Act of Parliament.

Question 25

What is ministerial accountability? What seven principles do ministers have to abide by?

Answer 25

Ministerial accountability is a fundamental constitutional principle in the British Westminster parliamentary system according to which ministers are responsible to the parliament fort the conduct of their ministry and government as a whole. Selflessness; integrity; objectivity; accountability; openness; honesty; and leadership.

Question 26

Explain individual ministerial responsibility both in principle and in practice.

Answer 26

Ministers are personally responsible to the government. This responsibility includes the minister’s own conduct, but it also extends to the agencies and departments under his or her purview and all actions taken by their civil servants. In the case of any wrongdoing or mistake, the minister can be called on to correct the situation, to apologise, and even in some cases to resign from the government position. For each executive agency, the relevant Minister remains accountable to parliament for the policy while the chief executive of the agency is responsible for the operations. In practice, ministers get away with more than they should.

Question 27

Explain collective ministerial responsibility.

Answer 27

The cabinet has collective responsibility to parliament. The government remains in office only as long as long as it retains the confidence of the parliament and that all ministers stand or fall together with the government. Ministers must support government policies, but they may also resign or seek the dissolution of government if defeated in the parliament on a matter of confidence. It implies that ministers are bound by the decisions of the cabinet, even when they had no part in the discussion or decision. They must agree with the decision even if they don’t agree. They must resign if they don’t agree. All members of the government speak in concert in the parliament, unless the prime minister relieves them of that duty.

Question 28

Name 5 points in relation to whether Parliament controls Government effectively.

Answer 28

1. The Government usually has a majority in Parliament therefore Government tends to control Parliament rather than the other way round. This is reinforced by party loyalty and collective ministerial responsibility as ministers are required to support the government’s policies.
2. Whips ensure that MPs behave in accordance to the decisions of the executive. This restricts Parliament’s ability to scrutinise the government and hold them accountable.
3. MPs in Parliament may not have the expertise on a particular issue which means they are unable to scrutinise government’s Bills effectively.
4. The House of Lords is not democratically elected which means they don’t regulate the Government’s behaviour in a way which is in the interests of the majority of the public.
5. The lack of a codified constitution means that we don’t have constitutional checks and balances (notably over prerogative powers) weakens Parliament’s control over the Government. Furthermore it is weakened by the fact that the relationship between the Parliament and Government and the Prime Minister’s powers are not written down.

Question 29

What is the prerogative power? How many are there and what are they?

Answer 29

The royal prerogative is an unrestricted power that exceeds and is unaffected by any other power. There are two prerogative powers: the Monarch’s (also known as personal powers) and Executive.

Question 30

Give five examples of prerogative powers.

Answer 30

1. The Queen has the right to appoint and dismiss a Prime Minister.
2. The monarch has powers of appointment (ministers, peers, senior Church of England officials, head of BBC, senior civil servants etc.) In reality these are chosen by the Prime Minister – only the Order of the Garter and the Order of the Merit are at the personal disposal of the Queen.
3. The Queen opens and dissolves Parliament. She also approves all statutes of law. In reality, the date of a general election is set by the Prime Minister and the Queen, in the State Opening of Parliament, simply reads out the proposed bills for the next 5 years of a government and plays no part in deciding them. No monarch has refused to give the Royal Assent to a government bill since 1707.
4. The monarch has the right to grant pardons and input some sentences. In reality this power is exercised by the Home Secretary.
5. The monarch, via proclamations or Orders in Council, may declare war or treaties, without the input of the Commons/Lords. In reality, the declaration of war and the signing of treaties is done by the Prime Minister acting on behalf of the Crown.

Question 31

Can prerogative powers be subject to judicial review? Explain.

Answer 31

The Government’s use of, and claim to, a prerogative power, can be challenged in judicial review proceedings. However, not all prerogative powers are subject to judicial review. The exceptions are (Bancoult case): 1. Questions of pure international law or treaty-making. 2. The prerogative power of royal assent to legislation. 3. Where the power has been exercised personally by the Sovereign who is not subject to the legal process. The courts may rule that a prerogative power does exist, but that it should be subject to certain provisions so that it does not offend modern constitutional principles.