Week 3- Executive, parliamentary privilege, separation of powers

Question 1

What are the 2 advantages of collective cabinet responsibility?

Answer 1

• Reinforces party (governmental) unity and helps maintain governmental control of the commons, as they can guarantee pay-roll votes
• Enables the rest of parliament to identify governments stance on particular issues, allowing them to better hold them to account.

Question 2

What are the 2 disadvantages of collective cabinet responsibility?

Answer 2

• The public get the perception that governmental decisions are cohesive and unanimous but in reality there are many formal disagreements which undermine the convention. The practice of unanimity ultimately ensures that the PM has the final say on executive decisions even if many of their MPs disagree
• Confidentiality impedes on the government being open, as it reinforces the issues between government openness and the government being reluctant to provide it (Tomkins).
• Facade of unity; coupled with cabinet secrecy, the unity that the government is promoting is not representative of internal disputes and incoherency

Question 3

What is collective cabinet responsibility?

Answer 3

Collective cabinet responsibility encompasses cabinet ministers publicly agreeing with all governmental decisions and bills.
-it also includes cabinet confidentiality; cabinet members do not openly disagree with parliament or share any internal executive discussions.

Question 4

What is individual ministerial responsibility?

What are the sanctions if ministers fail to uphold the convention?

Answer 4

• A minister answers to parliament for the work of his civil servants in his department, any praise or blame is directed towards the MP.
• They may refuse to answer questions unrelated to their department but failure to answer a number of proper questions could result in internal party discipline or loss of PM support.

Question 5

What is the relationship between civil servants and ministers?

Answer 5

Ministers appoint their civil servants and civil servants operate under the guidance of ministers. Ministers should take responsibility for the actions of civil servants, especially if mistakes occur under the guidance of the minister, however the minister retains the power to dismiss civil servants

Question 6

What is cabinet secrecy?

Answer 6

Cabinet affairs, transcripts and meetings are not to be disclosed until 30 years later for historical purposes, with those in breach of this rule as a serving cabinet member being liable to lose office if improperly disclosing cabinet discussion

Question 7

How does Bovens describe ministerial accountability and the duty of ministers under the convention?

Answer 7

-“The most concise description of accountability would be: ‘the obligation to explain and justify conduct” Accountability is a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgement, and the actor may face consequences.

Question 8

What other concepts does Bovens suggest is covered by ‘accountability’?

Answer 8

Transparency, equity, democracy, efficiency, responsiveness, responsibility and integrity.”

Question 9

What is Boven’s “problem of many eyes”?

Answer 9

• Political actors are often held to account by many different groups ie pressure groups, electorates and constituencies, parliament, minister or official
• Questions are to be asked about who these political actors should and are accountable to

Question 10

What is Boven’s “problem of many hands”?

Question 11

How does hierarchy within departments direct accountability?

Answer 11

Higher-ranked officials are usually subject to the accountability of actions taken by those below, because those below are accountable to those towards the top and can be sanctions for their actions internally.

Question 12

What are the facts and significance of Entick v Carrington?

Answer 12

Facts- 4 people attempted to recover pamphlets and charts from a private property under royal prerogative, claiming to be acting lawfully

Significance- Executive are subject to the law and do not have ultimate authority to impede on citizens rights. The executive must act within the legislative boundaries of parliament rather than exercising arbitrariness.

Question 13

What are the facts of M v Home office?

Answer 13

Facts- M was political asylum seeker deported by the Home sec contrary to the judges order. Home sec guilty of contempt (disruption) of a court.

Significance- Injunctions could be placed against ministers of the crown acting within their official capacity

Question 14

What is crown immunity?

Answer 14

A legal doctrine which says the state cannot commit a legal wrong and is immune for civicl or criminal lawsuit

Question 15

What are the facts and significance of Gillan v police commissioner of metropolitan?

Answer 15

Facts- two people stopped and searched under terrorism act 2000, which they argued to be a breach of their Human rights, despite giving voluntary consent to be searched

Significance- Appeals dismissed against appellants as the exercise of this power was deemed to be expedient (convenient) rather than necessary, even if it was possible immoral, it was required in the face of terrorism.

Question 16

What are the facts of R (Cornerhouse) V director of serious fraud office?

Answer 16

Facts-Director of SFO gave into threats from Saudi Arabia against his investigation into a defence contractor working with SA. He was judged to be acting unlawfully but won his appeal

Significance-1)D made the decision lawfully and has not misunderstood the OECD art 5
2) He has rightfully weighed up his investigation with the protection of British citizens and so an alternative course of action need not be considered; weighed up against the threat to British citizens, he had acted lawfully and correctly.

Question 17

What do the cases say about the way in which the executive are subject to the law?

Answer 17

The executive is subject to the law, in accordance with the Rule of Law as appreciated by Bingham that the law binds everyone in the same way and is therefore applied in the same way. No one is above the law, as shown in Entick where the laws lack of denial against the infiltration of one’s private property does not constitute it legal to enter private property. Furthermore, ministers even when acting within their official capacity can still be liable for contempt of court, despite crown sovereignty.

• Diceys understanding of the operation of the executive relative to the law is as follows
  1) no one can be punished save for where they are in breach of the law
  2) No one is above the law
  3) he constitution is pervaded by the rule of law, since general principles of the constitution are the results of judicial decisions which determine the rights of private citizens

Question 18

What does the lack of precedence for political actors being found guilty of contempt of court?

Answer 18

The lack of precedent to this does show the ministers general acceptance of according to the law out of necessity rather than choice.

Question 19

What is the royal prerogative?

Answer 19

The crowns right or privilege to act without consultation of parliament, allowing them to perform constitutional functions

Question 20

What are the main prerogative powers available to the crown?

Answer 20

• Summoning and proroguing parliament
• Signing and making treaties (although commons has some veto powers in some circumstances)
• War declaration (defence of the realm)

Question 21

What 3 constraints exist on the nature and use of prerogative powers?

Answer 21

• Acts of parliaments are required to dictate the legal usage of prerogative powers and the extent of their reach.
• The Royal prerogative cannot overrule laws of the land, it is for parliament to make changes to the law and the prerogative cannot impede its sovereignty
• Where prerogative and statute cover the same area of law, the prerogative cannot simply ignore the statute unless expressly stated within the state

Question 22

What did Lord Camden in Entick v Carrington say about recognising prerogative powers?

Answer 22

“If it is law, it will be found in our books. If it is not to be found there, it is not law” referencing Entick V Carrington and epitomising the need for prerogative powers to be verified by statute rather than being unfettered

Question 23

Facts and significance of A-G v De Keysers hotel?

Answer 23

Facts- the army had taken over the hotel under the royal prerogative after they failed to negotiate payment for rent. They argued to have taken the hotel under prerogative rather than statute

Significance- Defence of the realm act has enacted all that was required with regards to defence during war time. The prerogative could not simply ignore legislation nor act in a manner which was not verified by legislation.

Question 24

Facts and significance of council of civil service v minister for the civil service?

Answer 24

Facts- All employees of GCHQ were prohibited from joining a trade union, justified on the potential threat to national security, and enforced under an order of council (part of prerogative) rather than statute.

Significance- Executives acts under the prerogative, which impeded on the right of citizens, should be subject to the same judicial review as if rights were impeded on under statute.

• NOT ALL PREROGATIVE POWERS ARE SUBJECT TO JUDICIAL REVIEW because of their nature and subject matter, but those which impede on citizens rights normally are; in this case the use of prerogative power was subject to judicial review because of the nature of the use of prerogative power and its subject matter.
• Defence of the realm and treaty making are unlikely to be subject to judicial review, but Cherry/ Miller 2 shows that prorogation is a prerogative power which is subject to review.

Question 25

What prerogative powers does the GCHQ case suggest are not subject to judicial review and why?

Answer 25

Defence of the realm act and treaty making

-their nature and subject are not amenable to the courts and are a matter for the crown.

Question 26

Facts and significance of R v Home Secretary ex party fire brigade union

Answer 26

Facts- executive had attempted to use prerogative powers to stop the enactment of legislation which parliament had began to implement. The compensation scheme initiated was replaced by a scheme providing much lower compensation.

Significance- the progression of the bill provided the public with legitimate expectations, and therefore the executive should not be allowed to abuse their prerogative powers by not meeting these expectations
-The executive should not go unchecked by the court and conform to standards of fairness in fact and in law.

Question 27

Miller facts and significance regarding prerogative powers?

Answer 27

Facts- The UK could not initiate EU withdrawal under the royal prerogative, an act of parliament was required instead because prerogative powers could not nullify citizens rights, as withdrawal would inevitably do.

Significance- parliament as opposed to the executive were given the duty to instigate and deliver EUs withdrawal, shows the Court limiting the use of the prerogative; the accepted prerogative power to make and unmake treaty could not be done without the use of parliament as a legislature to make provisions alongside the unmaking of the treaty. The 1972 act did NOT provide an express power to withdraw via prerogative and the absence of any mention did not make it lawful.

Question 28

Cherry/ Miller 2 and others case facts and significance?

Answer 28

Facts- Cherry brought the case against the government for Johnsons prorogation of parliament, and the advice he gave to the Queen to allow prorogation. The government gave no substantial reason for prorogation, which they were expected to do.

Significance- Accordingly, a decision to prorogue would be unlawful if prorogation had the effect of frustrating or preventing, without reasonable justification,( no reason whatsoever was given) Parliament’s ability to carry out its constitutional functions as a legislature and as the body responsible for supervising the executive, as well as holding it to account. The longer parliament remained prorogued, the longer the government was left unaccountable, and prorogation impeded on its sovereignty without reasonable justification.

Question 29

R (Bancoult) v secretary of state for foreign and commonwealth affairs

Answer 29

Facts- was the use of the Royal prerogative to prevent Chagos residents from returning to Chagos lawful

Significance- the use of orders in council to prevent their return was lawful if their constitution under the British Indian overseas territory (BIOT) allowed it. - “peace, order and good government” did not define the use of the prerogative powers when legislating for overseas territory and therefore to deny these people access to these islands, whilst potentially immoral, has no legal backing for their right to abode under the BIOT constitution order 2004. It was an expedient but lawful exercise of prerogative power.

Question 30

What is parliamentary privilege?

Answer 30

• A legal doctrine which consists of the rights that the two chambers hold to allow them to carry out their functions effectively, especially allowing them to confront the executive (hold them to account) and voice the concerns of the citizens.
• The privilege only extends to when a minister is carrying out PARLIAMENTARY PROCEEDINGS
• It also applies to select committee members.

Question 31

Examples of parliamentary privilege in the commons?

Answer 31

• Freedom from arrest- immunity against imprisonment for contempt of court when attempting to carry out a civil obligation. However, there is no protection under the criminal law as in R v Chaytor.
• Freedom of speech- no penal or coercive action can be taken against members for what is said or done in parliament: Bill of rights 1689 art 9 said ‘the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or case outside parliament’.
• Members are immune from the law of defamation, and this freedom of speech extends to both civil and criminal law.

Question 32

R v Chaytor facts and significance (parliamentary privilege)

Answer 32

Facts- -The parliamentary privilege claim of the defendants for MPs actions of false claims of allowances and expenses was rejected by the Supreme court, as it fell outside the bracket of “freedom from arrest and freedom of speech” on the basis that it was punishable under the criminal law; parliamentary privilege did not extend protection to criminals, whether or not their actions were related to parliament.

Significance- It was stressed that nothing in their charges had any relations to the proceedings of parliament and that any “ordinary crime committed in the commons would not be withdrawn from the ordinary course of justice”.

• Lord Phillips concluded that claiming expenses “did not form part… of the core of parliament which consists of collective deliberation and decision making”.
• Courts are able to decide the legal constraints of parliamentary privilege.

Question 33

What are 3 issues surrounding parliamentary privilege/

Answer 33

• Lack of codification means a lack of clarity for what is and isn’t acceptable by MPs
• parliamentary privilege is inherently a limitation on the rule of law, and as with Hanningfield who was saved just before his trial due to parliamentary intervention, it creates political distress among the public.
• “proceedings In parliament” is not a clear criteria and therefore in Chayter there was contention surrounding whether claiming expenses counted as such proceedings, and therefore if in-line with art 9 of the Bill of rights 1689 it shouldn’t be challenged by a court of law.

Question 34

What is my argument regarding the separation of powers as part of our UK constitution?

Answer 34

• No pure form of the separation of powers exists in our constitution, and instead our constitution is pervaded by a partial separation of powers, in which the three functions of law making, law administering and law enforcing are mainly allocated between the three main state branches of legislature, executive and judiciary for reasons of efficiency.
• There cannot be a pure separation of powers, where each branch of the state is exclusively responsible for one of the three functions mentioned above.
• The legal functions mentioned above, in addition to political aspects of our constitution (eg conventions and political accountability) cannot be effectively carried out without some overlap of involvement between the functions, for example ministerial accountability cannot exist if executive ministers are not part of the legislature in parliament. They sit in the same chamber as non-governmental MPs and partake in the same function of law making, epitomising the inability of our constitution to simultaneously have a pure separation of powers and political accountability.

Question 35

What does Barendt say is the ‘pure’ version of the separation of powers?

Answer 35

-The Pure separation of powers says that the 3 main branches of the state (parliament, executive, and judiciary) have the 3 mutually exclusive functions of writing law, administering the law and enforcing the law respectively . In this simple theory, none of the 3 functions overlap between the 3 branches, for the purpose of dividing power between the branches to stop tyranny.

Question 36

What is Barendts view against the pure version of the separation of powers?

Answer 36

• Rejects a pure separation of powers existing in our constitution
• Inevitable friction between the 3 main branches of the state in that the 3 functions are not mutually exclusive to the 3 main branches.
• The point of a separation of powers is to ensure “no one institution has absolute authority” but for Barendt is does not follow that the branches are not linked to each other in some way, whether that is through an overlap of functions or some ‘checks’ on the performing of these functions by each branch

Question 37

Where does the desirability of a separation of powers lie?

Answer 37

-To ensure that tyranny is prevented through a division of power between different branches of the state. Concentrating all powers within one branch or group of people can lead to an unchecked abuse of power.

Question 38

How does Barber ‘disagree’ with Barendt over the separation of powers in the UK constitution?

Answer 38

• Barber goes further than Barendt to suggest that the separation of powers and the relevant legal functions of the state of law making, law enforcing and law administering are not confined to any combination of the 3 main branches of the state
• Powers of law making, which are usually associated with parliament, have been devolved to the relevant institutions in the devolved territories, down to regional levels and upwards to the EU institutions via the ECA 1972. Therefore, whilst parliament retains overriding legislative supremacy and could withdraw the devolution of legislative powers from this range of institutions, currently parliament has dictated that a separation of legislative powers is not contained within parliament alone.

Question 39

What does Barber say about the separation of powers and the benefit of efficiency?

Answer 39

. His argument for this goes further to explain that this is overlap is necessary to ensure efficient governance of the country, referencing the make-up of each 3 main institutions (the members they contain and their relevant skills) to show why functions cannot be bound to just one institution without impeding efficiency.

Question 40

What does Barber say about identifying institutions and functions of our state?

Answer 40

• Each institution of the state is not bound to simply one function, whether legal or political, and institutions can be capable of a range of functions.
• Identifying institutions by their functions therefore doesn’t accurately represent our actual constitutional arrangements, indicative of a more complex distribution and undertaking of functions than is expressed in a more ‘simplistic’ ‘pure’ separation of powers.

Question 41

What do articles 1, 2 and 3 dictate in the USA’s constitution, and how does it compare to our uncodified constitution?

Answer 41

• Article 1,2 and 3 legally entrench the separation of powers by determining the institutions of legislative, executive and judiciary respectively.
• There is no codification of the functions of each of our branches, which explains why the executive and PM can sit within our commons in parliament, but the President of the US cannot sit within the legislative as a matter of law.

Question 42

What are the benefits of a flexible and partial separation of powers?

Answer 42

It allows for flexibility when mistakes or misunderstanding arise, as they inevitably do; the judiciary has the function to make law through their judgement if parliament have not accounted for an area of the law, or the law is not clear.

Question 43

Pepper v Hart facts and significance (separation of powers)

Answer 43

Facts-The Lords had to decide the amount of tax a schoolteacher was meant to pay on reduced school fees

Significance- This established the principle that parliamentary discussions may be admissible to courts in order to allow more accurate interpretation on statutes, showing a very moderate downfall of parliamentary privilege and an overlap of affairs.

Question 44

Case of proclamations facts and significance (separation of powers)

Answer 44

Facts- The king proclaimed that he wanted to build new buildings in London as well as prohibit the making of starch of wheat.

Significance- “The King cannot change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament” reinforcing the separation of functions between the executive and the legislature. Provides the argument of not vesting all powers in a single group (executive) to prevent tyranny, but doesn’t follow that the allocated powers are then undertaken by one group either.

“the king has no prerogative but that which the law of the land allows him” parliament as the supreme legislative body of our constitution is upheld through this judgement.

Question 45

What is the fixed term parliaments act 2011?

Answer 45

• Date of general election fixed every 5 years.
• this relates to the separation of powers because it transfers the power of general elections from PM to parliament, and therefore even in a constitution which may not formally be regarded as ones of checks and balances to the same extent in the US, there is still some level of delegations of powers in order to prevent tyranny as argued by Jennings

Question 46

What are the names of the two ‘problems’ identified by Bovens??

Answer 46

Problem of many eyes (who are MPs accountable to)

Problem of many hands (policies and bills are passed through many hands before being implemented)

Question 47

What authors do I have to remember for this topic?

Answer 47

Barendt- friction between institutions
Barber- rejects pure SOP further, legal and political powers exist across a range of institutions
Bovens- problem of many hands and eyes
Lord Camden- “if it is law, it will be in our book”

Question 48

What 3 things does Bancoult case say does NOT define the use of royal prerogative?

Answer 48

-“Peace, order and good governance”

Question 49

How are ministers accountable for the actions of their departments and what pressures do they face during maladministration?

Answer 49

• Ministers are accountable to parliament for the work of their department, even if they are not directly responsible for internal affairs which prove to be unpopular or dis-satisfactory.
• If there is maladministration within their department which had not happened under the guidance of the minister, the minister remains ‘constitutionally responsible’ but there exists no legal obligation for resignation if there is serious issues within the department. The minister instead is more likely to dictate internal affairs and sanction the appropriate civil servants.

Question 50

What reasons are there which might cause departmental ministers to resign?

Answer 50

• Internal problems with the running of the department mean that they are unable to effectively head the department due to ongoing criticism in the media
• Serious mistakes which arouse publicity may force a minister into resignation.
• A minister takes it upon themselves to resign because they do not consider themselves up to the job

Question 51

Whats the difference between a ministers responsibility and their accountability?

Answer 51

• They are said to be responsible only for what they directly are involved in, with praise and blame for their actions directed at them
• They are accountable in a wider sense, because they remain accountable for actions taken by civil servants under their guidance, even if It results in maladministration and civil servants do not follow the guidance of their minister.

Question 52

What does art 9 of the bill of rights 1689 say?

Answer 52

`That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.’

Question 53

What did LJ Nolan say in M v Home office about the relationship and respect between executive and judiciary?

Answer 53

“The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is.”

Question 54

Important dicta comments made in M v Home office regarding proper constitutional relationship between executive and the courts?

Answer 54

“The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is.”

Question 55

What did the decision in Pepper v Hart actually allow courts to do?

Answer 55

-Where laws were ambiguous, obscure or led to absurdity, the courts relaxed the rule precluding Hansard being used as a reference to clear up the meaning of the legislation., usually a clear statement of a minister.

Question 56

What is adverse about the decision in Pepper V Hart with regards to the processes (and functions) of parliament and ministers of the executive? (Kavanagh)

Answer 56

• The legislative procedure is purposefully burdened and exhaustive to avoid ill-considered legislation from passing through parliament without due consideration.
• Where such legislation has passed through parliament and is capable of a number of interpretations, and ministers statement’s are used to determine this meaning, this undermines the ability of parliament to control what is enacted as law and take accountability for law, because ministers attribute an individual meaning to statutes rather than that which was expressly enacted by parliament after going through the extensive enactment process.
• Therefore, the executive is given law-making powers in this instance, rather than parliament, because the primacy of enacted intention is subordinate to the meaning attributed by the relevant minister.

Question 57

What is parliaments role with relation to the power of the executive?
What about the court in relation to parliament following Pepper v Hart?

Answer 57

• With law-making powers vested in parliament as opposed to the legislative, parliament provides a check on otherwise unchecked legislative power to enact laws without deliberation. Following the decision in Pepper v Hart, the function of parliament is bypassed by the executive.
• This may see the executive manipulate the law-making process by ensuring that the only safety net for the courts to fall back on in the event of legislation appearing ambiguous or unclear is an intention of the executive with regards to what the legislation should achieve.
• To allow parliament to construe its own legislation undermines the purpose of the SOP; in that tyranny and arbitrary is avoided by allowing an independent judiciary to act as moderator, interpreting and giving effect to the words enacted by parliament by applying independent reasoning and common-sense.

Question 58

What did the case of Wilson do with regards to Pepper and Hart?

Answer 58

-Provided a legal limit of the authority of Hansard and minister statements; they can only be used as the background and context for legislation and cannot be used as authoritative statements indicative of parliaments intention.