Flashcards in Week 3- Executive, parliamentary privilege, separation of powers Deck (58)
What are the 2 advantages of collective cabinet responsibility?
-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.
What are the 2 disadvantages of collective cabinet responsibility?
-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
What is collective cabinet responsibility?
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.
What is individual ministerial responsibility?
What are the sanctions if ministers fail to uphold the convention?
-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.
What is the relationship between civil servants and ministers?
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
What is cabinet secrecy?
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
How does Bovens describe ministerial accountability and the duty of ministers under the convention?
-“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.
What other concepts does Bovens suggest is covered by 'accountability'?
Transparency, equity, democracy, efficiency, responsiveness, responsibility and integrity.”
What is Boven's "problem of many eyes"?
-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
What is Boven's "problem of many hands"?
-Accountability is increasingly complex when trying to determine who is at fault in the political process. Policies are discussed by many people and are passed through the hands of ministers, civil servants, advisors etc before they are implemented
How does hierarchy within departments direct accountability?
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.
What are the facts and significance of Entick v Carrington?
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.
What are the facts of M v Home office?
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
What is crown immunity?
A legal doctrine which says the state cannot commit a legal wrong and is immune for civicl or criminal lawsuit
What are the facts and significance of Gillan v police commissioner of metropolitan?
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.
What are the facts of R (Cornerhouse) V director of serious fraud office?
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.
What do the cases say about the way in which the executive are subject to the law?
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
What does the lack of precedence for political actors being found guilty of contempt of court?
The lack of precedent to this does show the ministers general acceptance of according to the law out of necessity rather than choice.
What is the royal prerogative?
The crowns right or privilege to act without consultation of parliament, allowing them to perform constitutional functions
What are the main prerogative powers available to the crown?
-Summoning and proroguing parliament
-Signing and making treaties (although commons has some veto powers in some circumstances)
-War declaration (defence of the realm)
What 3 constraints exist on the nature and use of prerogative powers?
-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
What did Lord Camden in Entick v Carrington say about recognising prerogative powers?
"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
Facts and significance of A-G v De Keysers hotel?
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.
Facts and significance of council of civil service v minister for the civil service?
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.
What prerogative powers does the GCHQ case suggest are not subject to judicial review and why?
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.
Facts and significance of R v Home Secretary ex party fire brigade union
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.
Miller facts and significance regarding prerogative powers?
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.
Cherry/ Miller 2 and others case facts and significance?
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.
R (Bancoult) v secretary of state for foreign and commonwealth affairs
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.