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Chapter

Cover Public Law

8. Introduction to Executive Functions  

This chapter provides an overview of the themes covered in Part II of the book, consisting of Chapters 8-11. It addresses the following questions: What is executive function? What is the role of a constitution in relation to executive functions? It then summarizes the basic constitutional and legal aspects of the various executive bodies considered in Chapter.

Chapter

Cover Public Law

7. Introduction to Executive Functions  

This chapter provides an overview of the themes covered in Part II of the book, consisting of Chapters 8–10. It addresses the following questions: What is the executive function? Broadly, this can be defined as the powers of government to decide issues of policy, to raise and spend public money, and to implement decisions. What is the role of a constitution in relation to executive functions? Generally, we can say that constitutions have a dual role: they enable executive action (by providing institutional and procedural frameworks for decision-making) and they also constrain it (to ensure that it stays within what is permitted by law and to make governments accountable for their actions). It then summarizes the basic constitutional and legal aspects of the various executive bodies considered in the Chapter.

Chapter

Cover Company Law

11. Duty of care, skill, and independent judgment  

In addition to their fiduciary obligations, directors are subject to duties of care and skill. This chapter discusses the statutory standard of care, skill, and diligence; the content of the duty; and the duty to exercise independent judgement. In looking at care and skill, key issues are the extent to which delegation is possible and the degree to which the delegating director must maintain a residual duty of supervision. The chapter considers the law’s expectations of executive and non-executive directors, including the level of knowledge that they must bring to bear and examines how the standard required reflects their differing roles in the management of the business.

Chapter

Cover The English Legal System

10. The Legal Professions  

Alisdair A. Gillespie and Siobhan Weare

This chapter explains what the legal professions are, what they do, and how to qualify as a member of the professions. It examines the rules governing practice as a member of the professions and, in particular, the issue of ethical behaviour. There are three principal branches to the legal profession in England and Wales. The first consists of barristers, the second of solicitors, and the third of chartered legal executives. The routes to qualification vary for each of the branches, but broadly speaking all involve an academic stage and work-based training. When considering the current routes to qualification for each of the branches of the profession, the chapter also explores potential qualification reforms, in particular those proposed by the Solicitors’ Regulation Authority with the introduction of the Solicitors’ Qualifying Exam (SQE). Diversity within each branch of the profession is also explored in relation to gender, ethnicity, and socio-economic backgrounds.

Chapter

Cover Public Law

2. The institutions of government and the separation of powers  

This chapter explores the key institutions—the legislature, the executive, and the judiciary—and considers the relevance of the principle of the separation of powers in respect of the UK Constitution. It begins with a discussion of the functions fulfilled by these institutions, including an examination of their structure and key roles, allowing fuller exploration of the separation of powers doctrine in the UK Constitution. The chapter identifies a common distinction drawn between what is known as the pure and partial separation of powers: The former favours total separation, while the latter allows a degree of overlap to the point of ensuring a system of checks and balances. Application of this distinction enables broader exploration of the UK’s application of the separation of powers doctrine.

Chapter

Cover Public Law

8. Government of the United Kingdom  

This chapter examines the people and processes that comprise government in the UK. It considers the constitutional and legal status and role of the monarchy (the King), ministers (the Prime Minister, Secretaries of State, and other ministers), civil servants (politically neutral officials responsible for supporting ministers to implement policies), as well as holders of appointed public offices (such as regulatory bodies that operate independently of ministers). A key question is where does government get its legal power from (legality)? In general terms, those who govern have such powers as are conferred by Acts of Parliament, prerogative powers (in the case of some ministers and the King), and the common law. Another key question is about legitimacy: government bodies must implicitly or expressly make a claim that their powers to govern ought to be accepted, and that claim must be accepted by most of the people most of the time.

Chapter

Cover The English Legal System

10. The Legal Professions  

This chapter explains what the legal professions are, what they do, and how to qualify as a member of the professions. It examines the rules governing practice as a member of the professions and, in particular, the issue of ethical behaviour. There are three principal branches to the legal profession in England and Wales. The first consists of barristers, the second of solicitors, and the third of chartered legal executives. The routes to qualification vary for each of the branches, but broadly speaking all involve an academic stage and work-based training. When considering the current routes to qualification for each of the branches of the profession, the chapter also explores potential qualification reforms, in particular those proposed by the Solicitors Regulation Authority with the introduction of the Solicitors’ Qualifying Exam (SQE). Diversity within each branch of the profession is also explored in relation to gender, ethnicity, and socio-economic backgrounds.

Chapter

Cover The Changing Constitution

7. The Executive in Public Law  

Thomas Poole

This chapter focuses on the executive, the branch of government responsible for initiating and implementing the laws and for acting where necessary to secure the interests of the state. We trace its development out of a medieval model of government structured around the king and his court, to a modern world of offices exercising executive functions, grouped under the legacy term ‘the Crown’. The resulting institutions display a complicated pattern of law and custom, and legal concepts and principles relate to them often in convoluted ways. Our analysis focuses on how executive power is normally understood from the legal point of view—deriving from an authorizing statute via rules made within a government department to eventual application by subordinate officials or agents—and traces some of the ways the courts monitor that process. But we also examine the executive’s non-statutory or ‘prerogative’ powers, the two main compartments of which are treated separately, as the general executive powers and the general administrative powers of the Crown respectively.

Chapter

Cover Public Law

9. Government and Accountability  

This chapter examines the people and processes that comprise government in the UK. It considers the constitutional and legal status and role of the monarchy, ministers, civil servants, as well as holders of appointed public offices. It then turns to one of the central features of a good constitution, namely that it provides opportunities for those who exercise public power to be ‘held to account’ or ‘accountable’ for their decisions and conduct.

Chapter

Cover Essential Cases: Public Law

R (on the application of Miller and Cherry) v Prime Minister and Advocate General for Scotland [2019] UKSC 41, Supreme Court  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case note summarizes the facts and decision in R (on the application of Miller and Cherry) v Prime Minister and Advocate General for Scotland [2019] UKSC 41, Supreme Court. This case concerned the constitutional-legal limits on a Prime Minister’s capacity to advise the monarch to exercise their power to prorogue Parliament. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Essential Cases: Public Law

M v Home Office [1994] 1 AC 377, House of Lords (also known as Re M)  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in M v Home Office [1994] 1 AC 377, House of Lords (also known as Re M). The case considered whether the courts had the power to issue injunctions against government departments and the ministers attached to them, and whether the rule of law required that those departments and ministers could be held in contempt of court for breach of court orders. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Essential Cases: Public Law

R (on the application of Miller and Cherry) v Prime Minister and Advocate General for Scotland [2019] UKSC 41, Supreme Court  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case note summarizes the facts and decision in R (on the application of Miller and Cherry) v Prime Minister and Advocate General for Scotland [2019] UKSC 41, Supreme Court. This case concerned the constitutional-legal limits on a Prime Minister’s capacity to advise the monarch to exercise their power to prorogue Parliament. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Essential Cases: Public Law

M v Home Office [1994] 1 AC 377, House of Lords (also known as Re M)  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in M v Home Office [1994] 1 AC 377, House of Lords (also known as Re M). The case considered whether the courts had the power to issue injunctions against government departments and the ministers attached to them, and whether the rule of law required that those departments and ministers could be held in contempt of court for breach of court orders. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Public Law

16. Ombudsmen and Complaints  

This chapter examines systems for handling complaints against public bodies. It focuses particularly upon public sector ombudsmen while locating ombudsmen within the wider complaint-handling landscape. Public sector ombudsmen constitute an important mechanism by which the executive (and other public bodies) can be held to account. The relationship between ombudsmen and other accountability mechanisms, together with questions concerning the legal enforceability of ombudsmen’s findings, raise important issues about legal and political forms of constitutionalism. The multilayered nature of the UK’s constitution post-devolution has resulted in a diversity of ombudsman schemes and poses particular challenges in relation to the rationalisation of ombudsmen in England.

Chapter

Cover Complete Public Law

11. Executive Power and Accountability  

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter examines the nature and extent of the power that the executive uses to run the country and begins by defining executive power, and by explaining where it is derived and who may exercise it. It then discusses the mechanisms by which an executive can be called to account for its exercise of power; the extent to which Parliament may hold the government accountable; and the extent that courts may hold the government accountable.

Chapter

Cover Complete Public Law

12. Responsible Government and Constitutional Conventions  

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the nature and extent of constitutional conventions, which are political rules that are binding upon those to whom they apply. They apply to the relationships between the Crown, Parliament, the judiciary, the civil service, and the executive, and play a key role in limiting the powers granted to institutions of government by unwritten rules or sources. Constitutional conventions also regulate key parts of the relationship between the institutions of government. The doctrine of ministerial responsibility is one of the most important examples of constitutional conventions regulating the behaviour of the executive. There are two main branches of ministerial responsibility. One is individual ministerial responsibility—that is, a minister’s obligation to account to Parliament for his or her words and actions and for those of his or her civil servants. The second branch of ministerial responsibility is collective ministerial responsibility. Amongst other things, collective ministerial responsibility prescribes that decisions reached by the Cabinet or other ministerial committees are binding on all members of the government, regardless of whether or not the individual ministers agree with them.

Chapter

Cover European Union Law

9. Executive Powers  

Competences and Procedures

This chapter studies three executive powers in the context of the European Union. It begins with an examination of the political power to act as government. The ‘steering’ power of high politics belongs to two EU institutions: the European Council and the Commission. The Union ‘government’ is thus based on a ‘dual executive’. The chapter then moves to an analysis of the (delegated) legislative powers of the Union executive. The central provisions here are Articles 290 and 291 TFEU. The European legal order has allowed for wide delegations of power to the Commission; while nonetheless insisting on substantive and procedural safeguards to protect federalism and democracy. Finally, the chapter looks at the (administrative) enforcement powers of the Union. Based on the idea of ‘executive federalism’, the power to apply and enforce European law is here divided between the Union and the Member States. The Union can—exceptionally—execute its own law; yet, as a rule, it is the Member States that primarily execute Union law.

Chapter

Cover European Constitutional Law

9. Executive Powers  

Competences and Procedures

This chapter studies three executive powers in the context of the European Union. It begins with an examination of the political power to act as government. The ‘steering’ power of high politics belongs to two EU institutions: the European Council and the Commission. The Union ‘government’ is thus based on a ‘dual executive’. The chapter then moves to an analysis of the (delegated) legislative powers of the Union executive. The central provisions here are Articles 290 and 291 TFEU. The European legal order has allowed for wide delegations of power to the Commission; while nonetheless insisting on substantive and procedural safeguards to protect federalism and democracy. Finally, the chapter looks at the (administrative) enforcement powers of the Union. Based on the idea of ‘executive federalism’, the power to apply and enforce European law is here divided between the Union and the Member States. The Union can—exceptionally—execute its own law; yet, as a rule, it is the Member States that primarily execute Union law.

Chapter

Cover Company Law

7. Classifications of director  

This chapter assesses what a director is and the different types of director that exist. Section 250 of the Companies Act 2006 (CA 2006) provides that a director ‘includes any person occupying the position of director, by whatever name called’. A person validly appointed as a director is known as a de jure director, whereas a person who has not been validly appointed, but who acts as a director, is known as a de facto director. A shadow director is ‘a person in accordance with whose directions or instructions the directors of a company are accustomed to act’. Other types of director include executive director, non-executive director, and alternate director. Meanwhile, certain persons such as major shareholders or creditors may have power to nominate a person to the board, and this nominated person is known as a nominee director. Many companies appoint some of their directors to specific board roles.

Chapter

Cover Public Law

10. Localism and regionalism  

This chapter explores local government in the UK, by which is meant the myriad bodies and institutions elected in localities across the country and tasked with providing governance and leadership for a specific area. The historical development of such institutions is explored, placing this development in a broad constitutional context. The chapter explains the way in which local government operates, looking at the various structures adopted across the different parts of the UK. It also discusses and explains councils’ executive arrangements, focusing in particular on distinctions between single- and two-tier models and the emergence of directly elected mayors. A key constitutional consideration with regards to UK local government, though, is councils’ relationship with centralised (or devolved) authority. This is discussed in the chapter, with a particular emphasis on the way in which central government exerts control over local bodies including on the question of finance. The chapter also discusses recent and potential reform of local government.