The Executive

The executive

The government - the elected party with its leader as PM

The PM appoints ministers and they all sit in parliament and are accountable to it

what was the executive like in the 17th century

govt was split into the king, his council and parliament

privy coucil

King's private advisors

examples of the king's ministers

lord treasurer - managed finances

secretaries of state - foreign policy officials

what is an order in council

an executive order issued by the monarch on the collected advice of his ministers, another form of primary legislation

example of an order in council

British Indian Ocean Territory (Constitution) Order 2004 — order removed islanders from their homeland to create a British Army Territory in the Indian Ocean

what was the executive like in the 19th century

Sir Robert Walpole became the first Prime Minister.

A government evolved without being legislated.

Maitland, The Constitutional History of England (1908)

'During the last two centuries, there has grown up an organisation which is not a legal organisation […] it is an extra-legal organisation; the law does not condemn it but it does not recognise it'

the cabinet

the team of around 20 senior ministers in the government who are chosen by the Prime Minister to lead specific policy areas such as health, transport, foreign affairs, or defence.

How does Bagehot describe the cabinet

"a committee of the legislative body selected to be the executive body […] a board of control chosen by the legislature, out of persons who it trusts and knows to rule the nation'

cabinet confidentiality

the members of the cabinet must not reveal the content of discussions which take place. This allows for cabinet members to privately debate and raise concerns.

What does Bagehot's 'The English Constitution' 1867 say about cabinet secrecy

'The most curious part of the cabinet is that so very little is known about it. The meetings are not only secret in theory but in reality. By the present practice, no official minute in all ordinary cases is kept of them […] The most powerful body in the state […] is a committee wholly secret."

when was a "prime minister" officially recognised?

Chequers Act 1917 SCH.1 (9)(F) (AS ENACTED) — gave a house to "the official popularly known as the prime minister"

what was the executive like in the 20th century

the government started to perform more responsibilities and deal with social issues. The cabinet stopped being secret at this point, minutes were kept and it was predecided what issues were discussed and who was going to be in the meeting.

The Precedent Book Chapter 2

outlines the features of the cabinet for example collective responsibility

collective responsibility

decisions are made by consensus rather than formal voting

what is the purpose of cabinet collective responsibility

reduces political infighting — forces the cabinet to coordinate and ensures there is one policy which operates for all ministers in the cabinet.

The crown

the state (govt) acting on behalf of the monarch

What does Edward Cook describe the crown as?

"A hieroglyphic of the laws"

the monarch

the King, occupies an office and has reserved powers under English Law (preorgative powers)

What are 4 reserved (prerogative) powers of the monarch

1. appoint the prime minister

2. dissolve parliament on the advice of the PM

3. grant royal assent

4. dismiss the govt

What does Bagehot say about the granting of royal assent

'[The Queen] must sign her own death-warrant if the two Houses unanimously send it up to her'

legal prerogatives

Prerogative orders in council are treated like primary legislation in UK law and were originally thought not to be subject to judicial review

What did R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] determine about prerogative powers

prerogative powers could be subject to judicial reviews

How does Lord Neuberger define preorgative powers in Miler I

'The Royal prerogative encompasses the residue of powers which remain vested in the Crown, and they are exercisable by ministers, provided that the exercise is consistent with Parliamentary legislation' [

what are the three limits on the prerogative power

1. Statute prevails over the prerogative (Except where it is expressly stated this is not the case)

2. The monarch cannot create new prerogative powers

3. the executive cannot exercise the prerogative in a way that would derogate from a statutory duty

example of a statute preserving the prerogative

Immigration Act 1971 s33(5) "This Act shall not be taken to supersede or impair any power exercisable [by prerogative powers]."

what does the Bill of Rights 1689 say about the primacy of statute over the prerogative

Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall.'

Lord Diplock in BBC v Johns [1965]

'[It is] 350 years and a civil war too late for the Queen's courts to broaden the prerogative. The limits within which the executive government may impose obligations or restraints on citizens of the UK without any statutory authority are now well settled and incapable of extension.'

statutory powers

typically uses the word 'may' to show the minister has discretion

Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997

Minister must use their discretion lawfully, meaning: In line with the purpose of the Act, Not to frustrate the Act's intent, and with proper reasoning

The Padfield principle

Discretionary powers given to ministers or public bodies must be used to promote the purpose of the law, not to defeat or avoid it.

Even if a law says a Minister "may" do something (i.e., it's optional), courts can review how that discretion is used.

The Minister can't refuse to act just because it might be politically awkward or embarrassing.

statutory duties

duties are mandatory and use the word 'shall' to convey obligations

ministerial code

standards the ministers need to abide by

Issued by the prime minister and revised after every election

the cabinet manual

Conventions relating to the control of the House of Commons:

1. Confidence — government remains in office only so long as it commands the confidence of the House of Commons

2. Control over War Powers — a vote to whether the UK should enter a war

3. Scrutiny of treaties

4. Parliament's authorisation of major constitutional changes

collective ministerial responsibility

The collective decision of the parliament is binding on all members of the government

individual ministerial responsibility

Minister takes responsibility for the actions of their civil servants and are expected to resign when something goes wrong

Carltona Ltd v Comissioner of Works 1943

It was held that decisions made by officials within the government can be attributed to the minister in charge so long as the decision-making power was delegated to those officials by the minister

What did the dissolution and calling of Parliament Act 2022 determine about prerogative powers

statue can create new prerogative powers by reviving old ones that previously existed

What did FDA v Prime Minister [2021] determine about the ministerial code

it is not a legally binding document but instead a convention