Constitutional Law- reading session 2
Composition and Role of the Executive
Bradley and Ewing, chapter 12
● Executive has functions aside from initiating legislation: Execution of laws,
maintenance of public order, foreign policy, military operations, managing public
services etc.
● The Act of Settlement 1700 bars non-Protestants from the throne
● The monarch must take an oath to support the churches of England (which he/she
must join in communion) and Scotland
● The Civil List Act 1972 provides annual incomes for the royal family, while
public expenditure on the monarchy goes well beyond that stipulated in the civil
list, e.g. separate expenditure on maintaining the palaces. The Queen and Prince
Philip both voluntarily pay income tax, but, unless parliament so states it, they are
not obliged to.
● Apart from the monarch’s official duties, Bagehot, and Bradley and Ewing, both
assert her importance as an advisor to governments, and both Blair and Major
publicly praised her advice.
● When there is no majority party in parliament the, it may be that a coalition is
formed (in which case the queen appoints the leader of the larger political party as
PM). If a PM resigns before an election, it used to be (before the age of elected
leaders in the Conservative and Liberal parties) that the queen would exercise her
discretion to invite one party member to become PM, whereas now she simply
invites the winner of the party’s election to form a government.
● There are still situations in which the monarch may have to use discretion: If the
governing party split e.g. when Ramsay MacDonald’s Labour government broke
up over the financial crisi, George V invited him to form a national government
with liberals and Tories. Similarly if a party leader is deselected but refuses to
resign as PM, should the monarch invite a new government to be formed? If a PM
dies in office, who should be appointed acting PM?
● Does a monarch have to automatically grant dissolution at the request of the PM,
or can they refuse if they believe dissolution would be damaging? Unsure, though
when Wilson’s cabinet publicly discussed the issue the Lord President of the
Council argued in the times that the monarch did not have to grant dissolution if
he thought the parliament could work. Similarly in 1950, after the election of a
small Labour majority, Geroge VI’s private secretary said that where a parliament
was still viable, the election would harm the economy and another PM who could
manage the parliament could be found, then the monarch has he right to refuse
dissolution. But what if, on refusal for dissolution, one party resigned the
, government? The monarch would have to invite the leader of the opposition to
form a gov, despite not having a majority, and therefore this leader too would ask
for dissolution. Refusal would lead to a legislative deadlock, while acceptance
would create a charge of political bias. Therefore the automatic view seems more
sensible
● Can the monarch ever refuse to assent to the bill? George V said only to avert
national disaster, and he had insisted on a general election before he would start
cresting peers to allow the passage of the Parliament Act- shows the monarch as a
constitutional safeguard (e.g. monarch dismissing the government of Ian Smith in
Rhodesia when they unilaterally declared it independent) and a negotiator in times
of parliamentary difficulty (e.g. invitation to MacDonald to form national gov).
● Tudor monarchs governed through the privy council but now it is a title for public
service. Also it confers a duty of secrecy so that one cannot divulge information
stated in the privy council. Thus if the gov wants to consult someone over a
national emergency/security question, but wants to ensure that they wont divulge
info given to them, they make them a privy councillor, as was done to Len Murray
(gen. sec. of TUC in 70s to consult him over gov policy)
● Orders of Council (the privy council) are needed to give an executive action the
force of law)
● The Judicial Committee of the Privy Council is the final appeal court for some
commonwealth countries
● Royal prerogative powers (now used by the gov.) are residual powers which
parliament never took from the crown e.g. ability to direct foreign policy. Though
new prerogative powers cant be added, similar powers can, e.g power to deport
illegal aliens
● Prerogative rights are the rights which the crown has, but which private citizens
do not
● Crown Prerogative powers:
1. Powers over the legislature: dissolve and prorogue parliament, create
peerages
2. Judicial prerogatives: The attorney general can stop any criminal
indictment against an individual
3. Foreign Policy- although practice is to secure parliamentary acts for
matters relating to territory, there are still areas of prerogative e.g. whether
to issue passports or to restrain someone from leaving the realm
4. Armed forces: prerogative to declare war
5. Patronage: appointment of ministers, judges, titles, peers
6. Immunity from certain laws though not criminal offences and not for
crimes which expressly state that the crown be bound.
, 7. In time of emergency gov has prerogative powers for carrying out wars
but most emergency powers are now regulated by statutes
8. Miscellaneous: prerogatives over coinage, treasure troves, market/fishery
etc franchises, printing the bible
● Entick v Carrington established that the courts will not recognise new prerogative
powers
● Where prerogative conflicts with statute dealing with the same topic, the crown is
bound to abide by the statute, unless the statue specifically frees the crown from
doing so
● The courts have the power to determine the extent and scope of a prerogative
power
● Whereas gov can only apply acts of parliament in accordance with “natural
justice” and the Wednesbury principles, so the courts have ruled, there are no
limits to how the crown must execute its prerogative
● Action taken within the limits of prerogatives, unbound by statute, are not
justiciable: Hence challenges to legality of Iraq war in this country.
● In theory prerogatives must be exercised in compliance with the HRA 1998, as s.6
states.
Chapter 13
There is a trend away from the importance of cabinets and towards the PM
making decisions with political advisers (though Thatcher being forced out by her
cabinet shows it is still important)
PM appoints commissioners of intelligence services and his authority is required
to appoint the top civil servants
PM can appoint, dismiss (technically “recommend to queen”), change
departments of ministers etc
, The PM can reorganise and form departments e.g. Blair scrapped education and
employment department, but created work and pensions dept and education and
skills dept
PM controls the cabinet by deciding which issues to discuss, presiding over the
meeting, while having the main loyalty of the cabinet secretary who writes the
minutes and records the conclusions of cabinet discussions.
Collective responsibility means that ministers must be prepared to support
decisions with which they disagree
The PM has a more regular opportunity to discuss and defend policy than
ministers, and he can ask the queen for dissolution without having to consult
ministers first.
It is impossible to remove the offices of the Home Office, Lord chancellor,
Foreign Office, and Chancellor of the Exchequer. (Though their power can be
reduced: Blunkett said that the transfer of certain home office functions to the
ministry of justice meant that the home office minister was no longer strong
enough to oppose the PM in cabinet, increasing PM’s domination of it. Similarly
role of Lord Chancellor has been changed).
No more than 20 ministers’ salaries are payable at any one time
Cabinet Committees de facto usurps the function of the standing committees.
They are useful because a bill rarely just affects one department and therefore to
bring in ministers from different departments to sort out the issues and
implications of a bill relieves pressure from the cabinet.
They are not always used when the PM thinks they might harm his position: Lord
Butler found that no cabinet committee considered the Iraq war, decisions being
taken and discussed by a small group of ministers
Composition and Role of the Executive
Bradley and Ewing, chapter 12
● Executive has functions aside from initiating legislation: Execution of laws,
maintenance of public order, foreign policy, military operations, managing public
services etc.
● The Act of Settlement 1700 bars non-Protestants from the throne
● The monarch must take an oath to support the churches of England (which he/she
must join in communion) and Scotland
● The Civil List Act 1972 provides annual incomes for the royal family, while
public expenditure on the monarchy goes well beyond that stipulated in the civil
list, e.g. separate expenditure on maintaining the palaces. The Queen and Prince
Philip both voluntarily pay income tax, but, unless parliament so states it, they are
not obliged to.
● Apart from the monarch’s official duties, Bagehot, and Bradley and Ewing, both
assert her importance as an advisor to governments, and both Blair and Major
publicly praised her advice.
● When there is no majority party in parliament the, it may be that a coalition is
formed (in which case the queen appoints the leader of the larger political party as
PM). If a PM resigns before an election, it used to be (before the age of elected
leaders in the Conservative and Liberal parties) that the queen would exercise her
discretion to invite one party member to become PM, whereas now she simply
invites the winner of the party’s election to form a government.
● There are still situations in which the monarch may have to use discretion: If the
governing party split e.g. when Ramsay MacDonald’s Labour government broke
up over the financial crisi, George V invited him to form a national government
with liberals and Tories. Similarly if a party leader is deselected but refuses to
resign as PM, should the monarch invite a new government to be formed? If a PM
dies in office, who should be appointed acting PM?
● Does a monarch have to automatically grant dissolution at the request of the PM,
or can they refuse if they believe dissolution would be damaging? Unsure, though
when Wilson’s cabinet publicly discussed the issue the Lord President of the
Council argued in the times that the monarch did not have to grant dissolution if
he thought the parliament could work. Similarly in 1950, after the election of a
small Labour majority, Geroge VI’s private secretary said that where a parliament
was still viable, the election would harm the economy and another PM who could
manage the parliament could be found, then the monarch has he right to refuse
dissolution. But what if, on refusal for dissolution, one party resigned the
, government? The monarch would have to invite the leader of the opposition to
form a gov, despite not having a majority, and therefore this leader too would ask
for dissolution. Refusal would lead to a legislative deadlock, while acceptance
would create a charge of political bias. Therefore the automatic view seems more
sensible
● Can the monarch ever refuse to assent to the bill? George V said only to avert
national disaster, and he had insisted on a general election before he would start
cresting peers to allow the passage of the Parliament Act- shows the monarch as a
constitutional safeguard (e.g. monarch dismissing the government of Ian Smith in
Rhodesia when they unilaterally declared it independent) and a negotiator in times
of parliamentary difficulty (e.g. invitation to MacDonald to form national gov).
● Tudor monarchs governed through the privy council but now it is a title for public
service. Also it confers a duty of secrecy so that one cannot divulge information
stated in the privy council. Thus if the gov wants to consult someone over a
national emergency/security question, but wants to ensure that they wont divulge
info given to them, they make them a privy councillor, as was done to Len Murray
(gen. sec. of TUC in 70s to consult him over gov policy)
● Orders of Council (the privy council) are needed to give an executive action the
force of law)
● The Judicial Committee of the Privy Council is the final appeal court for some
commonwealth countries
● Royal prerogative powers (now used by the gov.) are residual powers which
parliament never took from the crown e.g. ability to direct foreign policy. Though
new prerogative powers cant be added, similar powers can, e.g power to deport
illegal aliens
● Prerogative rights are the rights which the crown has, but which private citizens
do not
● Crown Prerogative powers:
1. Powers over the legislature: dissolve and prorogue parliament, create
peerages
2. Judicial prerogatives: The attorney general can stop any criminal
indictment against an individual
3. Foreign Policy- although practice is to secure parliamentary acts for
matters relating to territory, there are still areas of prerogative e.g. whether
to issue passports or to restrain someone from leaving the realm
4. Armed forces: prerogative to declare war
5. Patronage: appointment of ministers, judges, titles, peers
6. Immunity from certain laws though not criminal offences and not for
crimes which expressly state that the crown be bound.
, 7. In time of emergency gov has prerogative powers for carrying out wars
but most emergency powers are now regulated by statutes
8. Miscellaneous: prerogatives over coinage, treasure troves, market/fishery
etc franchises, printing the bible
● Entick v Carrington established that the courts will not recognise new prerogative
powers
● Where prerogative conflicts with statute dealing with the same topic, the crown is
bound to abide by the statute, unless the statue specifically frees the crown from
doing so
● The courts have the power to determine the extent and scope of a prerogative
power
● Whereas gov can only apply acts of parliament in accordance with “natural
justice” and the Wednesbury principles, so the courts have ruled, there are no
limits to how the crown must execute its prerogative
● Action taken within the limits of prerogatives, unbound by statute, are not
justiciable: Hence challenges to legality of Iraq war in this country.
● In theory prerogatives must be exercised in compliance with the HRA 1998, as s.6
states.
Chapter 13
There is a trend away from the importance of cabinets and towards the PM
making decisions with political advisers (though Thatcher being forced out by her
cabinet shows it is still important)
PM appoints commissioners of intelligence services and his authority is required
to appoint the top civil servants
PM can appoint, dismiss (technically “recommend to queen”), change
departments of ministers etc
, The PM can reorganise and form departments e.g. Blair scrapped education and
employment department, but created work and pensions dept and education and
skills dept
PM controls the cabinet by deciding which issues to discuss, presiding over the
meeting, while having the main loyalty of the cabinet secretary who writes the
minutes and records the conclusions of cabinet discussions.
Collective responsibility means that ministers must be prepared to support
decisions with which they disagree
The PM has a more regular opportunity to discuss and defend policy than
ministers, and he can ask the queen for dissolution without having to consult
ministers first.
It is impossible to remove the offices of the Home Office, Lord chancellor,
Foreign Office, and Chancellor of the Exchequer. (Though their power can be
reduced: Blunkett said that the transfer of certain home office functions to the
ministry of justice meant that the home office minister was no longer strong
enough to oppose the PM in cabinet, increasing PM’s domination of it. Similarly
role of Lord Chancellor has been changed).
No more than 20 ministers’ salaries are payable at any one time
Cabinet Committees de facto usurps the function of the standing committees.
They are useful because a bill rarely just affects one department and therefore to
bring in ministers from different departments to sort out the issues and
implications of a bill relieves pressure from the cabinet.
They are not always used when the PM thinks they might harm his position: Lord
Butler found that no cabinet committee considered the Iraq war, decisions being
taken and discussed by a small group of ministers
