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Lecture notes Constitutional and Administrative Law (LW1120)
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TUTORIAL 3THE ROLE OF THE EXECUTIVE AND LEGISLATURE
1. What is the meant by the terms ‘legislature’, ‘executive’ and ‘judiciary’?
Legislature- The legislature debates and enacts legislation. It also scrutinises the
executive.
Executive (government/administration)-governing body of state. Exists by virtue of
its majority in the Commons and there are no legal limits upon Parliament’s law-
making powers. Purpose= make and implement public policy across the range of
areas for which it is responsible. Branch of the state responsible for executing and
administering laws enacted by the legislature. Split to 2; 1responsible for running
country (e.g. NHS; controlling immigration; EU relations; taxes; wars) 2 only
branch of government that can fairly be described as an initiative-taker. Courts
limited (take cases brought to them) and parliament limited to scrutinising and
enacting gov leg. agenda. Parliamentary approval is required before a Bill can
become law, but law is made by exec. executive is ‘the dominant institution to which
the other two institutions react’. Falls to exec to take initiative- exec develops and
designs planned changes in public policy & execs task of reacting to sudden,
unforeseeable (or at least unforeseen) events falls.
Judiciary- purpose of the judiciary is primarily to adjudicate upon and resolve legal
disputes.
Notes: exec & legislatures most political, actions guided by political factors whereas
judiciary=non political. Gov. peopled by gov Ministers and civil servants and PM;
organised into several dpts such as DPT for Education; Health; Foreign &
Commonwealth Office; Ministry of Justice; each of these headed by a Minister (aka
Secretary of State)
Exec and public law-not recognised by public law. Maitland=exec isn’t legal
organisation; law doesn’t condemn nor recognise it.
2. Can you explain the relationship between the government (exec) and the legislature
(parl) in the UK?
composition of Parliament determines the political complexion of the executive.
Parls function to criticize and oppose gov./scrutinise but also sustain.
Gov formulates policy in specific terms to leg standards and enactment of leg would
be matter for parl. gov. would put proposals in form of Bill but Parl decide whether
to enact it/amend/refuse. Enacted=gov implement new leg. needs parl approval
(convince and negotiate)
British system of parl gov-exec and leg are intertwined; Lord Hailsham ‘elective
dictatorship’ making exec more powerful. Exec not directly elected; determined by
outcome of elections to legislature. Party from which exec is drawn normally
accounts for more than half of MP’s in Commons. Gov numerical dominance in
Commons means gov can rely on MP’s
Exec and Judicial Relations-strict separation. Judiciary must remain independent of
gov to maintain integrity of administration of justice and public confidence. Role of
judiciary to adjudicate on legal disputes and provide legally authoritative rulings. Gov
, has to respect judiciary rulings to ensure gov acts in compliance with rule of law.
Courts bound by parl sov to respect primary leg (role-interpret and give effect). Gov
influences content of leg thus exerts a degree of influence of how courts interpret it.
Gov can bring forward new proposals to amed leg to reverse judicial decisions.
Although they’re indepent, gov influence over leg overlaps.
Exec in political const-const role not governed by const/legal principles but by
political imperative to run country in accordance with wishes of electorate. Criteria
of gov: cant infringe legal rights; assent of parl and comply with EU and HRA (1998)
3. In central government, is power typically vested in the hands of the monarch, the Prime
Minister, government ministers, the Cabinet, government departments, the civil service, or
special advisers?
Political power of exec placed at centre of British Const.
PM-Member of HoC; ultimately resp for policies and decisions. Roles-appoints
members of gov; principle gov figure in HoC; oversees operation of civil service and
gov agencies; chairs cabinet. Office of PM convention and political practice. Few legal
powers.
Cabinet-if PM wants to present policy but need majority to push policies.
4. What are the sources of the Executive’s power to govern?
Political and legal accountability of exec-gov must be accountable for exercise of its
powers. 1) legally by courts. 2) politically by parl.
Constitutional conventions
Statutory powers generally-parl delegates statutory powers to Ministers since its too
extensive for parl to do is themselves (not competent enough; role limited to
resolving general policies).
Prerogative powers-declare wars etc.
Statutory powers to make delegated leg-authority in statute
Contractual power-acts of parl and prerogative empower-1) source of authority.
2)statut and prerog powers constitute a means by which gov may get things done,
project influence and implement policy. Legal consequences. Contractual-doesn’t
constitute source of auth. But gov can seek to secure obj and implement policies
that’s already allowed to pursue.
5. What are prerogative powers? How are they different from statutory powers? Should
they still have a place in a parliamentary democracy in the 21 st-century?
Monarchs personal prerogatives-const powers exercised by prerogative. Sov can
appoint anyone to be her PM; can appoint/dismiss gov Ministers. However, in
practise Queen doesn’t personally do this, acts on ministerial advice. Power supports
symbolism of monarchy but ensures political powers responsibility resides with gov.
Parl has not authorised exec to do-declaration of war; disposition of armed forces;
signing of treaties; granting of mercy and honours; IR; issuing passports. Exercise of
exec prerogative powers matter of gov of the day.
Statut and prerogative powers allow gov to do things that couldn’t otherwise be
legally done.
Statut-ministers through delegated leg. =more refined/defined.
Might be misused.
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