The executive

Question 1

Statutory powers conferred on the executive by parliament

Answer 1

Inquiries act 2005- to improve efficiency
Controlled by parliament
Contrary to the doctrine of separation of powers

Question 2

What is delegated legislation?

Answer 2

Law that is made by government ministers rather than acts of parliament
There is an excessive volume of delegated legislation

Question 3

What is the role of the executive, legislative and judiciary?

Answer 3

Executive governs the state- creates laws and implements them. Number of governmental departments with secretary of state as head (Whitehall)

Legislative- scrutinises and debates legislation
Judiciary- interpreting legislation and solving disputes

Question 4

What are Henry VIII powers?

Answer 4

Authorise ministers to make secondary legislation amending or even repealing Acts of Parliament

Barber considers it to be constitutionally questionable

Question 5

What is an example of the executive’s broad powers to legislate?

Answer 5

Civil contingencies act 2005

• allows ministers to make emergency regulations if it is urgently necessary to prevent or control an emergency.
• the breadth of what can be accomplished under these powers is immense- ‘destruction to animal and plant life and restrictions on travelling’

Question 6

What is the legal effect of delegated legislation?

Answer 6

It is not legally binding- but it can be used to prove negligence e.g. Road traffic act

Question 7

What are the problems with delegated legislation?

Answer 7

There needs to be no publication of the delegated laws - unless it is required by the parent statute- contrary to key principles of the rule of law
Ministers do not need to consult with affected parties- although there are ‘consultation principles’ which requires ongoing dialogue between government and policymakers- important for policymaking

Question 8

What is the role of parliament with regards to delegated legislation?

Answer 8

There is technical scrutiny (by Joint Committee on SI) to ensure that the legislation is not poorly drafted. However, policy scrutiny only occurs occasionally in the Commons (depending on the importance of the legislation). Commons last defeated delegated legislation in 1979. Sometimes there is no scrutiny at all. Not contentious as the process is under the control of parliament.

The House of Lords is more effective in the scrutiny of delegated legislation- defeated 5 SI since 1968. Have their own committee House of Lords Secretary Legislation Scrutiny Committee- Strathclyde review

Question 9

Why does the parliament confer powers to make delegated legislation to the executive?

Answer 9

Parliament is unable to cope with the sheer volume of law-making that is deemed necessary. Parliament nevertheless oversees the exercise of such powers.

Question 10

When can the courts intervene to undertake judicial review?

Answer 10

If a litigant pursues a matter where the executive lawmakers exceed the powers granted to them by parliament
When the executive fails to do things Parliament has indicated must be done- e.g. legislation is to be valid

Question 11

Judicial review of delegated legislation

Answer 11

SI’s do not have the same immunity as Acts of Parliament as they have been made by a Minister who is given limited power to make it. Even if the SI is approved by both Houses the courts can still undertake judicial review under the affirmative resolution procedure.

Example: when the government was going to preclude financial assistance to certain categories of asylum seekers

Question 12

What are the government’s prerogative powers?

Answer 12

Declaring war, deployment of armed troops, signing international treaties
The royal prerogative is to some extent becoming the PM’s prerogative.
Should there be limits?

Question 13

What are the arguments against the prerogative?

Answer 13

It is not traditionally subject to judicial review
The scope of the prerogative is unclear- e.g. after the EU referendum- lack of transparency also problematic in terms of judicial review of prerogative- the executive wanted to use its prerogative powers to trigger article 50- problematic because some think it should be debated by parliament first.

Should be put on statutory footing- legislation enacted to limit prerogative. Need more transparency as the committees do not know what ministers can and will do- especially in relation to armed conflict

It is objectionable that the government possesses imprecise powers.

Question 14

What is the definition of prerogative power?

Answer 14

Dicey’s definition of prerogative power is ‘every act which the executive can lawfully do without the authority of an act of parliament’

Other definitions include the idea that the executive is authorised to do that which everyone else can do- unless there are statutory limitations. The government has the freedom to do anything that is not unlawful.

Question 15

What is the third source of government power?

Answer 15

The third source of government power is the freedom of the government to do anything that is not unlawful. Example, case of Malone where it was deemed legal for the government to listen onto telephone calls because no law prevented this.
Ram doctrine- the government can do what any natural person can do

Question 16

What is the purpose of Acts of parliament and the prerogative?

Answer 16

They make it possible for the executive to lawfully do things that could not otherwise be lawfully done e..g erect a building without planning permission. (source of authority)

Way for government to get things done and implement policy

Question 17

What is contractual power?

Answer 17

Only exists in the latter not the former sense- it is a way for the government to get things done- secure objectives and implement policies

e.g. To implement a statutorily authorised decision to deport a failed asylum seeker, the government may enter into a contract with an airline so that the individual may be returned to his home country. It is the relevant statutory power that empowers the government to have the person deported- the contract with the airline merely facilitates the statutorily authorised deportation

Contractual obligations are necessary

Question 18

What is judicial review?

Answer 18

Legal Framework within which decisions affecting rights of individuals are taken

Example of minister who wants to build an airport- would be subject to political scrutiny, but also legal scrutiny in terms of compensating those that live nearby.

Question 19

What is the principal focus of judicial review?

Answer 19

The way in which decisions are taken rather than the deacons themselves. This does not mean that the court cannot examine any aspect of the decision- especially if it relates to human rights violations

However, because the judicial review procedure is one of review and not appeal they cannot evaluate the merits of the decision.

Question 20

Why are the powers of courts on judicial review limited in this way?

Answer 20

Institutional capacity- of the courts it would be more suitable for the ministers to evaluate the environmental and economic implications.

Democratic legitimacy- courts cannot take a decision out of the democratically elected minister’s hands especially as he has been conferred the powers by parliament- if a minister’s decision is quashed because it was taken unlawfully the same conclusion can be reached by the minister lawfully– ensures that decisions are taken in a fair manner.

Question 21

What is the relation between judicial review and administrative law? What is administrative law?

Answer 21

Administrative law is the collective remedies that individuals can pursue in order to challenge public decisions. Judicial review is an important aspect of administrative law.

Administrative law is the power, duties and rules that must apply in order to administer and implement policy and the decision-making processes that they adopt.

Administrative law limits governmental power?

Question 22

Why did judicial review develop?

Answer 22

To hold government to account- particularly after concerns that parliament was not doing this efficiently.
Especially as the administrative state expanded
Judicial review also holds devolved governments and local authorities into account

Judicial review is a practical response to the weakness of ministerial accountability- forms a trend towards legal constitutionalism

Question 23

What is the significance of judicial review?

Answer 23

Independent courts are necessary to secure minority rights and basic protections against majoritarian interests

Courts ensure that the rights of individuals are not forsaken in the interests of the majority

Fire Brigades Union case is key in judicial review- failings of parliament when holding the executive to account.

Question 24

Evaluation of judicial review

Answer 24

Orthodox view- improper for courts to inquire on policy questions that are traditionally for parliament to hold to account
Others believe that when the policies substantially affect the rights and interests of individuals then courts are the best placed institutions to scrutinise the actions of government

Question 25

Concerns about judicial review. What authorises judges to intervene in decisions made by governmental bodies in the absence of a written constitution?

Answer 25

There are concerns about courts being permitted to examine the substance of judicial decisions- beneath their legal reasoning the judges are involved in making political decisions One reason is that it could lead to judicial supremacy- unelected judges having too much power at the expense of the democratic process Narrow social composition of judges and ethnic background

Question 26

What are demarcation disputes?

Answer 26

Courts are also involved in solving demarcation disputes between the various institutions in the multilayered constitution. e.g. EU departure Devolution issues- courts ensure that devolved governments are not acting beyond their legal competence.

Question 27

What is the ultra vires doctrine?

Answer 27

Ultra views means 'beyond the powers'- superficially attractive justification for judicial review- under the ultra vires doctrine courts are simply policing the boundaries of government power The ultra vires theory constitutionally justifies judicial review.

Question 28

How has judicial review evolved?

Answer 28

The limits on power that the courts are willing to enforce has expanded substantially in recent years. judicial review of non-statutory powers such as the prerogative This contradicts the ultra vires argument which states that judicial review is acceptable as it enforces boundaries that parliament intended when it created such powers. However, non-statutory powers were never conferred by parliament in the first place.

Question 29

What is the common law theory of judicial review?

Answer 29

Common law theory suggests that judicial review rather than being a statutory creation is rooted in common law. Common law is developed by judges and changes in accordance to the social and political climate.

Question 30

What is the significance of Miller I?

Answer 30

In Miller I the Supreme Court held that the PM could not trigger article 50 with the royal prerogative- needed an Act of Parliament.

Question 31

What were the arguments of Miller?

Answer 31

The ECA 1972 created statutory rights and these statutory rights cannot be frustrated without an Act of Parliament- could not be done by royal prerogative alone. Constitutional problem as it would lead to the removal of a source of law- effecting fundamental change to the UK's constitutional arrangements. ECA was an independent and overriding source of domestic law. Case of proclamations says that the prerogative cannot be used to take away rights. However, many of our labour laws come from the EU such as a maximum working hours that would not exist after the two year negotiation period.

Question 32

What is the purpose of accountability?

Answer 32

Ensure that government does not misuse its powers- standards of good governance and that its activities are effectively scrutinised.

Question 33

What is legal accountability?

Answer 33

Ensures that the government acts in accordance with the law The purpose is to prevent the abuse of power and to protect individuals who will be adversely affected by government action.

Question 34

Acceptable conduct of government

Answer 34

While individuals can do anything that is not unlawful, governments can only act in ways that they have been legally authorised. Unlawful government acts can be struck down by judicial review.

Question 35

How do courts determine whether government has acted adversely?

Answer 35

Checks whether the decisions by government comply with the general principles of public law - legality- government can only act within the scope of its legal power - procedural fairness- government must adopt a fair decision making process - rationality: government decisions must be rational or reasonable - proportionality: any infringements of human rights must be proportional to the desired end

Question 36

What are the limitations to legal accountability?

Answer 36

Firstly, the courts are only engaged if they have been called upon to adjudicate upon a legal dispute in which an individual wishes to challenge a government decision. Secondly, the courts can only determine whether the decision was unlawful. They have no jurisdiction to consider whether a decision was right or wrong.

Question 37

Arguments used by Miller

Answer 37

Rights- lead to the abrogation of rights- the ECA confers labour laws- e.g. maximum working hours Frustration- frustrating an existing statute cannot be done solely through the royal prerogative Source of law- the ECA was an independent and overriding source of domestic law Fundamental legal changes need to have the authority of Parliament, especially as the UK is a representative democracy- it should be the Parliament rather than the government that has the final say about how the election is perceived.

Question 38

Significant decisions in Miller I

Answer 38

Need an Act of Parliament to trigger Article 50 Inclusion of devolution- unanimously rejected the claim of the Sewel convention (a convention is political rather than legal)- the Sewel convention is non-justiciable.

Question 39

What are two ways of understanding justiciability?

Answer 39

Institutional justiciability- is the court the right institution to adjudicate on this matter Normative justiciability- are there laws about this.

Question 40

What was the significance of Miller II?

Answer 40

It prevented parliament from carrying out its functions of accountability and sovereignty. Important to note that in Miller II it was the length of prorogation that was the issue. It was typically 5 days