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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 Essential Cases: Public Law

Case of Proclamations [1610] 77 ER 1352, 12 Co Rep 74, King’s Bench  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Case of Proclamations [1610] 77 ER 1352 12 Co Rep 74, King’s Bench. This classic public law case concerned whether the King could rule by proclamation, or whether he was required to rule through Parliament. It provides one of the core foundations of the law limiting the scope of the royal prerogative today. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Essential Cases: Public Law

Case of Proclamations [1610] 77 ER 1352, 12 Co Rep 74, King’s Bench  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Case of Proclamations [1610] 77 ER 1352 12 Co Rep 74, King’s Bench. This classic public law case concerned whether the King could rule by proclamation, or whether he was required to rule through Parliament. It provides one of the core foundations of the law limiting the scope of the royal prerogative today. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Public Law Directions

3. The features and sources of the UK constitution  

This chapter examines the characteristics of the UK constitution. The main features of the UK constitution are that it is uncodified; flexible; traditionally unitary but now debatably a union state; monarchical; parliamentary; and based on a bedrock of important constitutional doctrines and principles: parliamentary sovereignty, the rule of law, separation of powers; the courts are also basing some decisions on bedrock principles of the common law. Meanwhile, the laws, rules, and practices of the UK constitution can be found in constitutional statutes; judicial decisions; constitutional conventions; international treaties; the royal prerogative; the law and custom of Parliament; and works of authoritative writers. The chapter then looks at the arguments for and against codifying the UK constitution.

Chapter

Cover Public Law Concentrate

7. The monarchy and the Royal Prerogative  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. The UK is a constitutional monarchy: the monarch exercises their legal powers as part of a system of government which is parliamentary and democratic. The chapter discusses the legal source of the monarch’s powers as head of state which is the Royal Prerogative exercised in accordance with binding political rules and practices. The chapter also covers the monarch’s role within the executive. This chapter discusses the special privileges and immunities of the monarch; the powers and duties of the monarch; and the monarch and the organs and functions of government.

Chapter

Cover Concentrate Questions and Answers Public Law

4. The royal prerogative  

The Q&A series offers the best preparation for tackling exam questions. Each chapter includes typical questions, diagram problem and essay answer plans, suggested answers, notes of caution, tips on obtaining extra marks, the key debates on each topic, and suggestions on further reading. This chapter considers the royal prerogative. The questions deal with issues such as the continued existence of prerogative power; the Queen’s formal legal power; the UK government’s exercise of royal prerogative powers; the use of the prerogative in foreign affairs; and judicial review of the prerogative. Many of the prerogative powers are now exercised by the Prime Minister in the name of the Queen.

Chapter

Cover Cases and Materials on Constitutional and Administrative Law

5. The Royal Prerogative and Constitutional Conventions  

This chapter reviews the royal prerogative and constitutional conventions, and the relationship between these two sources of constitutional rules. The first section identifies the various types of prerogative power and explores recent examples where these such powers have been placed on a statutory basis, as well as proposals to reverse this process, such as by repealing the Fixed-term Parliaments Act 2011 and reviving the royal prerogative. It also examines attempts to codify constitutional practice, including the Crown’s personal prerogative of the appointment of the Prime Minister in the Cabinet Manual, and the interaction between prerogative and statute in the courts. The second section of the chapter explores constitutional conventions as a source of the constitution, their relationship with law, and their nature as rules of political behaviour. It considers the treatment of conventions in the courts, whether they can obtain legal force, and the feasibility and desirability of codifying conventions. The important connections between the royal prerogative and constitutional conventions are analysed at various points throughout the chapter.

Chapter

Cover Public Law

6. The Crown, royal prerogative, and constitutional conventions  

This chapter explores the historical, legal, and political nature of the Crown and the royal prerogative. The rule of law requires that the government act according to the law, which means that the powers of the government must be derived from the law. However, within the UK Constitution, some powers of the government stem from the royal prerogative, as recognized by the common law. The concepts of the Crown and the royal prerogative mean that although the Queen is Head of State, it is generally the ministers who form the government that exercise the prerogative powers of the Crown. For this reason, many prerogative powers are often referred to as the ‘ministerial prerogatives’, and the few prerogative powers still exercised personally by the monarch, are referred to as the ‘personal prerogatives’.

Chapter

Cover Public Law

5. UK Central Government  

This chapter discusses what the executive branch of government is and what it does (with particular reference to the UK central government); how it relates to other branches of government (with particular reference to its relationship with Parliament); how it is held accountable, both politically and legally; the institutions and constitutional actors that make up the modern UK executive; and the considerable powers which it has at its disposal. It shows that the executive plays a pivotal role in the British constitution today, and that there are real concerns about whether it enjoys too much power—and about whether that power is subject to adequate oversight and control.

Book

Cover Concentrate Questions and Answers Public Law
The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each chapter includes typical questions, diagram problem and essay answer plans, suggested answers, notes of caution, tips on obtaining extra marks, key debates on each topic, and suggestions on further reading. Q&A Public Law covers a wide range of issues relating to Public Law. The first chapter offers an introduction to the subject, with particular emphasis on exams. The twelfth chapter contains advice on coursework. This is followed by an examination of constitutions in terms of the nature and sources of the UK constitution, the rule of law, and the separation of powers. The text moves on to look at the royal prerogative, Parliament, and parliamentary sovereignty. Next the book considers the Human Rights Act 1998, followed by chapters looking at freedom to protest, police powers, and freedom of expression. Finally, the book considers administrative law and judicial review.

Chapter

Cover Public Law Directions

12. The executive  

This chapter discusses the executive, the administrative branch of government which creates and executes policy, and implements laws. It specifically focuses on the organisation of central government in the UK. Central government in the UK carries out day-to-day administration in relation to England and the whole of the UK on non-devolved matters. Its functions include the conduct of foreign affairs, defence, national security, and oversight of the Civil Service and government agencies. Central government essentially consists of the government and Civil Service but modern government is extensive, multi-layered, and complex. The chapter then studies the sources of ministerial power. Ministers’ legal authority to act can derive from statute, common law, or royal prerogative. The royal prerogative is a source of power which is ‘only available for a case not covered by statute’.

Book

Cover Public Law Concentrate
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. Public Law Concentrate looks at all aspects of constitutional law including sources, rule of law, separation of powers, role of the executive, constitutional monarchy, and the Royal Prerogative. It also discusses parliamentary sovereignty and the changing constitutional relationship between the UK and the EU together with the status of EU retained and converted law under the European Union (Withdrawal) Act 2018 as amended by the 2020 Act, the Agreement on Trade and Cooperation effective from 1 January 2021, and the European Union (Future Relationship) Act 2020. Also covered are: administrative law, judicial review, human rights, police powers, public order, terrorism, the constitutional status of the Sewel Convention, legislative consent motion procedure, use of secondary legislation by the executive to amend law and make regulations creating criminal offences, especially under the Coronavirus Act 2020 and the Public Health (Control of Disease) Act 1984, the separation of powers implications of Henry VIII Clauses, the constitutional role of the Horuse of Lords in scrutinizing and amending primary legislation, the Speakers’ Ruling in the House of Commons on Points of Order and the Contempt of Parliament Motion, whip system, back bench revolts, confidence and supply agreements in government formation, and current legislative and executive devolution in Northern Ireland. The book additionally examines the continuing impact of the HRA 1998 and the European Court of Human Rights on parliamentary sovereignty and the significance of the 2021 Independent Review of the HRA.

Book

Cover Cases and Materials on Constitutional and Administrative Law

Brian Thompson, Michael Gordon, and Adam Tucker

Cases & Materials on Constitutional and Administrative Law is an invaluable resource. Extracts have been chosen from a wide range of historical and contemporary cases and materials to illustrate the reasoning processes of the courts and to show how legal principles are developed. The extracts from the leading cases in the field are combined with legal, political, and philosophical materials and linked together with explanatory text, alongside extensive notes and questions for discussion. The book takes a critical look at the main doctrines of constitutional law as well as the principles of administrative law, examining the operation of the constitution in relation to Parliament, the government, and the citizen. Incisive commentary throughout the text provides explanation and analysis of the key issues and challenges in constitutional and administrative law. The thirteenth edition has been fully revised and updated to reflect the latest developments in legislation, case law, and politics, including the process and implications of exiting the EU, and the UK’s new post-Brexit legal arrangements; continuing change and challenges to the devolution settlement in Scotland, Wales and Northern Ireland; major Supreme Court decisions in Miller (No.2) / Cherry, UNISON, the Scottish Continuity Bill Reference, and Privacy International; new developments in relation to ministerial responsibility and parliamentary accountability (including the impact of the coronavirus pandemic); proposed repeal of the Fixed-term Parliaments Act 2011; and discussion of proposals for reforms of judicial review and tribunal appeal processes, as well as proposed reform of ombudsmen. This text continues to provide instant access to an unrivalled collection of up-to-date judgments, statutory provisions, official publications, and other policy materials.