Constitutional Law – Week 9 Lecture 1: The Executive

The Executive

The Executive is the administrative function of government (recall – constitutions set out, amongst other things, how we
are governed, hence our interest in what the Executive does).

The Executive:

 Enforces laws made by Parliament (e.g., through the Home O ice, Ministry of Justice, and police).

 Maintains law and order.

 Administers public services (e.g., health, education, transport).

 Conducts the state's external relations.

 Forms policies in areas such as health and education.

 Initiates legislation for Parliament.

Composition of the Executive:

1. The Monarch: Head of state.

2. Prime Minister: Leader of the government.

3. Cabinet: Secretaries of State and Cabinet Ministers (22 members).

4. Ministers: 102 non-Cabinet Ministers (some from the House of Lords).

o 125 total Ministers (95 MPs, 30 Lords members).

5. Government Departments: 44 departments, executive agencies, and non-departmental public bodies.

6. Civil Servants: Around 488,000 in 2022, directly accountable to Ministers.

From Dennet:

the executive often has the capacity to exert its power over Parliament to diminish the e ectiveness of parliamentary
control.

“Elective Dictatorhsip” The government can dominate the UK Parliament because of the First Past to post electoral system
and the lack of separation of powers between the executive and the legislature. Where a government has a large majority
in the House of Commons (such e conservative majority of 144 in 1983 and Labour's majority of 177 in 1997),

Constitutional reforms such as devolution and the Constitutional Reform Act 2005 have put limits on government- and the
government's dominance decreased with the hung amen s in 10 and 2017,

Thus the Crown in its executive sense refers to a corporate, collective idea which includes government ministers and the
wider administration.

(Sedley cites 1714 as the year in which the Crown stopped governing through its min isters and ministers started governing
through the Crown (Stephen Sedley, Lions under the Throne (Cambridge. Cambridge University Press 2015), p 70)).

Civil Servants

Civil servants are employed by "the Crown" and serve the reigning Monarch via Ministers of the Crown. Exceptions:
  Judges, magistrates, MPs (those who are not appointed as Ministers) and those employed by Parliament are not
civil servants. Nor are the police, the armed forces, and those employed in the NHS and by Local Authorities.

 Parliament is quite separate from the Crown so those who are employed by Parliament are not civil servants.

 Only 1 in 12 UK public servants are classified as civil servants.

Prime Minister

 Appointed by the Monarch through constitutional convention.

 The outgoing PM resigns, and the Monarch appoints the new leader of the majority party in the House of
Commons.

 After a General Election, this process takes place as soon as possible after the result is known.

 The PM must be a member of the House of Commons.

 The PM is also First Lord of the Treasury, Minister for the Union and Minister for the Civil Service

 Roles:

1. First Lord of the Treasury.

2. Minister for the Union.

3. Minister for the Civil Service.

Responsibilities:

1. The exercise of all Royal Prerogative powers (foreign a airs, signing treaties, deploy the armed forces, declare war,
passports, national security) concerning the government (by constitutional convention)
2. [National security – defence, economic security, energy security, food security, cyber security, environmental
security, drugs, etc]
3. The opening and closing of Parliament
4. The calling of elections
5. Peerages and honours
6. Heads of intelligence and security services
7. Senior appointments to the armed services
8. Senior o icers of the Church of England

From Dennet:

The Prime Minister heads the government and exercises the powers of government. S/he is First Lord of the Treasury and
Minister for the Civil Service. The Prime Minister bears responsi bility for policy and is supported by their Cabinet (see
section 12.1.4). There is no separate 12 THE EXECUTIVE Prime Minister's department but support is provided by the
Cabinet O ice and the Prime Minister's private o ice. (The Cabinet O ice, described as 'the corporate headquarters for
government', is a ministerial department supported by the Cabinet Secretary, the UKs most senior civil servant.)

The monarch has the right to dismiss the Prime Minister but has not done so since 1783. After the Second World War a
constitutional convention was established that the Prime Minister is a member of the House of Commons; before that, the
Prime Minister could be a member of the House of Lords (the last Prime Minister to sit in the Lords was Lord Salisbury).

The Prime Minister's powers can be limited in practice by

• the available 'talent pool' of potential ministers;

• political di erences with members of Cabinet (eg Margaret : batcher and the resignations of Geo rey Howe (Foreign
Secretary) and Nigel Lawson (Chancellor); see also the West land a air discussed presently);
• leaks of information from Cabinet meetings;

• government defeats in votes or withdrawing proposed Bills,

• backbench dissent and rebellions, eg on Europe in John Major's government;

• public opinion and media criticism,

• by-election defeats, eg during John Major's term in o ice,

• leadership challenges, eg the challenge to Margaret Thatcher in 1990

The Cabinet

 Chosen by the Prime Minister (currently 22 members).

 As with the PM, there is no statutory or common law definition of the Cabinet. The term “Cabinet” refers to a group
of high-ranking government o icials who meet as a committee (usually Ministers/Secretaries of State of the most
important government departments) to run the government.

 Functions:

1. Handles government policy across major areas.

2. Resolves departmental disagreements.Determines the policies/bills to be submitted to Parliament,

including the contents of the King’s Speech and the legislative timetable

3. The broad economic policy within which the Chancellor of the Exchequer formulates the Budget

4. The Pols Cabinet agenda and structure.

 The PM:

1. Determines size and membership of the Cabinet (the latter is the main decision-making body of
Government/the Executive)

2. Controls the agenda of Cabinet

3. Creates and disbands Cabinet Committees (National Security Council, Domestic and Economic A airs,
Energy etc)

 The PM has an o ice with a principal private secretary, private secretaries, a diary secretary, a secretary for
appointments, a political secretary, parliamentary private secretaries, press secretaries and a parliamentary
clerk.

Constitutional Conventions:

 Define relationships between the Monarch and Cabinet.

 Mandate the provision of Cabinet information to the Monarch.

 Govern collective Cabinet responsibility.

Relationship with the Monarch:

 The Monarch does not attend Cabinet meetings or engage in substantive political discussions.

 Ministerial decisions are communicated to the Monarch via the PM.

 The Monarch must be told about any important proposed measures and supplied with drafts of any documents
which will require his/her approval and signature.
  Everything is sent to the PM who then passes information on to the Monarch. The Prime Minister acts as the
medium of communication between the Cabinet and the Monarch.

From Dennet:

The cabinet consists of:

• the Prime Minister;

• between 19 and 24 Secretaries of State;

• the Chancellor of the Duchy of Lancaster, Minister for the Cabinet O ice;

• the Leader of the House of Lords

Attending Cabinet but not full members are:

• the Leader of the House of Commons and Lord President of the Council,

• the Parliamentary Secretary to the Treasury and Chief Whip,

• the Chief Secretary to the Treasury,

• the Attorney General;

• others at the PM's discretion.

The phrase 'inner Cabinet' can be used to describe small, informal meetings of the Prime Min ister, selected advisors, and
ministers (often the Prime Minister's inner circle) to discuss policy or specific issues, but they are normally not part of the
Cabinet structure and have no formal status.

Secretaries of State

Examples of Key Departments:

1. Home Secretary
2. Chancellor of the Exchequer
3. Secretary of State for Foreign and Commonwealth A airs
4. Secretary of State for Defence
5. Lord Chancellor and Secretary of State for Justice
6. Secretary of State for Health and Social Care
7. Secretary of State for Business, Energy and Industrial Strategy
8. Secretary of State for Housing, Communities/Local Government
9. Secretary of State for International Trade and President of the Board of Trade
10. Secretary of State for Education
11. Secretary of State for Environment, Food and Rural A airs
12. Secretary of State for Transport
13. Secretary of State for Work and Pensions
14. Secretary of State for Scotland/Wales/Northern Ireland
15. Secretary of State for International Development, and Digital, Culture, Media & Sport

Other Members of the Executive

 1. Ministerial Departments (24):

o Defence, Home O ice, Education, Work and Pensions, etc.

2. Non-Ministerial Departments (20):

 Her Majesty's Revenue and Customs

 The Forestry Commission
 Ofgem; Ofsted
 Her Majesty's Land Registry
 The Serious Fraud O ice
 The Supreme Court (administration only)
 The Crown Prosecution Service
 The Charity Commission
 The Competition and Markets Authority

Executive Agencies (~45): These are part of government departments and usually provide government services
rather than decide policy - which is done by the department that oversees the agency:

Passport O ice (attached to the Home O ice)

the Met O ice (part of the Environment Agency)

DVLA (Department for Transport)

Public Health England (Department of Health)

Companies House (Department for Business)

3. Public Bodies: The following are public bodies that employ public servants but do not employ civil servants
(therefore not part of the Executive but part of the public sector):

 The National Health Service (1.2m)

 The Armed Forces (150K)

 Public Corporations

 Local Authorities

 The Police (220K)

Public Sector Statistics:

 Civil servants: 488,000.

 Public servants: 5.87 million (includes civil servants).

From Dennet:

The Cabinet Manual categorises government ministers as: senior ministers; junior ministers; the Law O icers, and whips
([3.7]). Senior and junior ministers comprise:

• Secretaries of State (senior ministers appointed by the Prime Minister to take responsibility for a specific
government department and who sit in Cabinet);

• Ministers of State (junior ministers);

• Parliamentary Under-Secretaries of State (junior ministers)

The Ministerial and other Salaries Act 1975 restricts the number of paid ministers to a maximum of 109 (additional ministers
can be unpaid), while the House of Commons Disqualification Act 1975 limits the maximum number of ministers sitting and
voting in the House of Commons at any one time to 95 (the remainder are drawn from the House of Lords). Very occasionally,
ministers have been appointed from outside Parliament

We turn now to the operation of government departments and their agencies which put government policy into practice.
They are divided into:

• Ministerial departments

The Prime Minister can create, merge or abolish ministerial departments.

• Arm's length bodies

An arm's-length body is an organisation that delivers a public service, is not a ministerial government department, and which
operates to a greater or lesser extent at a distance from ministers. The term can include non-departmental public bodies
(NDPBs), executive a^nc'e^' non-ministerial departments, public corporations, NHS bodies, and inspectorates. (Pu
ministration Select Committee, Who's Accountable? Relationships between Government an Arm's-length Bodies

Constitutional Law – Week 9 Lecture 2: Constitutional Sources of Executive Power

This lecture covers:

1. The constitutional sources underpinning and regulating the Executive.

2. Constitutional conventions and codes applying to ministers of the Executive, including:

o Individual Ministerial Responsibility.

o Collective Cabinet Responsibility.

Constitutional Sources of Central Government’s Powers

The Executive derives its powers from:

1. Statutes

2. Common Law

3. Royal Prerogative (RP): The source of the Monarch’s powers as Head of State.

4. Constitutional Conventions

 Legal Authority: All public bodies, government departments, and executive agencies must have formal legal
authority to make decisions a ecting the public or to spend public money. Public funds can only be spent with
Parliament’s approval.

 Ministerial Appointments: Government Ministers are legally appointed by the Monarch and spend money voted
on by Parliament.

 Legislation: Most non-ministerial government departments and executive agencies are created by Acts of
Parliament, which authorize and constrain their activities.

Royal Prerogative and Statutory Powers

 The Executive uses the Royal Prerogative as the legal basis for actions such as:

o Foreign a airs, signing treaties, passports, national defence, and national security.

 Statute Overrides RP: If a statute addresses a prerogative power, the statute takes precedence.
 o Attorney General v. De Keyser’s Royal Hotel (1920):

 During WWI, De Keyser’s hotel was requisitioned under statutory powers (Defence of the Realm
Act 1914). - Here, a London hotel owned by De Keyser’s was requisitioned by the
state/government during WW1 to house troops, the legal basis of which was the Defence of the
Realm Act (1914). There was also a prerogative power related to the defence of the realm that
could provide legal authority for such action.

 The House of Lords ruled that statutory powers superseded prerogative powers and awarded
compensation.

 In essence, prerogative powers must yield to statutory powers

Constitutional Conventions and Codes Regulating the Executive

Collective Cabinet Responsibility

 Definition: A constitutional convention requiring all Cabinet members to support government decisions, even if
they personally disagree.

 Key Points:

o Cabinet members must not vote or speak against government policy.

o All decisions are collective and must not be disclosed.

o Former ministers must not reveal Cabinet secrets (Attorney General v. Jonathan Cape Ltd [1976]).

 Parliamentary Accountability: The Cabinet is collectively accountable to Parliament, and the government must
maintain the confidence of the House of Commons.

 Collective Cabinet responsibility is part of the constitutional principle of Parliamentary Accountability of the
Executive.
 Government/the Ministers of the Executive are drawn from Parliament (mostly the Commons) and must have the
confidence of the House. Before the Prime Minister is appointed, he/she must demonstrate they have the support
of the House to form a government (usually through being the leader of the party with a majority of MPs).
 So the Cabinet/its Ministers are collectively responsible to Parliament for decisions made by the government.

Individual Ministerial Responsibility (IMR)

 Definition: Ministers are personally accountable to Parliament for:

1. Their acts and policies.

2. The actions of their civil servants.

3. Their private conduct, if it raises suitability concerns.

Principles of IMR:

1. Ministers are responsible for any corruption, waste, or misbehavior in their ministry, even if unaware of it.

2. They must:

o Not knowingly mislead Parliament.

 o Protect civil servants who follow their explicit orders.

o Defend civil servants acting in accordance with laid-down policies.

3. Ministers should:

 where an o icial of a department makes a mistake or causes some delay, the Minister should acknowledge the
mistake and accept the responsibility although they are not personally involved.
 where action has been taken by a civil servant of which the Minister disapproves and has no previous knowledge,
and the conduct of the o icial is reprehensible, there is no obligation on a Minister to endorse what they believe to
be wrong.

Ministerial Responsibility to Parliament

Ministers can refuse to answer questions in Parliament on various grounds:

1. That answering the question would reveal confidential commercial information;

2. That answering the question would compromise national security;
3. The information asked for cannot be obtained without undue expense.

From Dennet:

Their conduct is governed by the Ministerial Code, which requires ministers to protect the integrity of public life.

Grounds for Refusal to Answer Parliamentary Questions:

1. Confidential commercial information.

2. National security concerns.

3. Excessive cost or di iculty in obtaining the information.

Ministerial Code

The Ministerial Code is a document written by the Cabinet O ice on behalf of the Prime Minister. It sets out rules and
standards for government ministers, codifying constitutional conventions. The Ministerial Code is an example of a codified
(combined/arranged) constitutional conventions (in essence, much of what is required under IMR now forms part of the
Ministerial Code).

Purpose:

 Preserve public trust in Cabinet government.

 Ensure ministerial accountability.

 The Ministerial Code has ten sections, and one annex.

1. Section 1 — Ministers of the Crown: Sets out the responsibility of ministers to the Government, to Parliament,
and to the people. It directs ministers to ‘behave in a way that upholds the highest standards of propriety’.
2. Section 2 — Ministers and the government: This sets out the precise rules of collective responsibility. Ministers
should relinquish all government material when ceasing to hold a role. This Section contains rules on access
to government papers by former ministers.
3. Section 3 — Ministers and appointments: Sets out the rules regarding special advisers (temporary civil servants
who are political agents of the minister), how many each minister may appoint, and their powers and duties.
4. Section 4 — Ministers and their departments: This looks at the machinery of government (the structure of
government departments and how responsibilities can be transferred), and how ministers should ensure that
their work is covered during any absence from London
 5. Section 5 — Ministers and civil servants: This section has regard to ministerial relationships with the civil
service. It states that ministers ‘must uphold the political impartiality of the Civil Service, and not ask civil
servants to act in any way which would conflict with the Civil Service Code’.
6. Section 6 — Ministers’ constituency and party interests: This directs ministers to refrain from using government
property and resources in their role as an MP. For example, political leaflets must not be distributed at the
expense of public funds.
7. Section 7 — Ministers’ private interests: This section requires ministers to provide their permanent secretary
with a complete list of any financial interests they have. In March 2009, this list was released to the public for
the first time.
8. Section 8 — Ministers and the presentation of policy: This section stipulates that speeches, interviews, and
news releases should all be cleared with the Number 10 Press O ice, to ensure synchronicity of timing and
clarity of content.
9. Section 9 — Ministers and Parliament: Under this section ministers should not make oral statements to
Parliament without prior approval from the Prime Minister. Any other minister or MP to be mentioned in such a
statement should be notified beforehand.
10. Section 10 — Travel by ministers: O icial government transport, paid for by public funds, should normally only
be used on government business, except where security requires that it be used even for personal transport.

Extra from Dennet:

The Law O icers of the Crown are government ministers and senior lawyers. In Central government, they are the Attorney
General for England and Wales, and the Solicitor General England and Wales. The Advocate General for Scotland advises
the UK Government on Scottish law, and the Attorney General also holds the o ice of Advocate General for Northern Ireland.
(The Lord Advocate in Scotland is the devolved Scottish government’s Law O icer, the Counsel General in Wales is the
Welsh Governments Law O ice. there is a separate Attorney General for Northern Ireland.)