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.
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Chapter
16. Ombudsmen and Complaints
Chapter
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
15. 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
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
7. Separation of powers
This chapter looks at the separation of powers. The separation of powers is a doctrine requiring that executive, legislative, and judicial powers within a state should be clearly divided and allocated to separate institutions; the aim is to prevent the concentration of power in any one branch and reduce the potential for arbitrary or oppressive exercise of power. Although the degree of separation between the three branches varies between states, codified constitutions will regulate those spheres of power by allocating specific roles and functions to each branch and will allow checks or controls to operate between them to ensure accountability. The separation of powers in the UK is weakest between the legislative and executive, and strongest and most distinct between the judiciary and the other two branches. Indeed, the Constitutional Reform Act 2005 has brought stronger separation between the judiciary and the executive, making the judiciary more autonomous.
Chapter
7. Separation of powers
This chapter looks at the separation of powers. The separation of powers is a doctrine requiring that executive, legislative, and judicial powers within a state should be clearly divided and allocated to separate institutions; the aim is to prevent the concentration of power in any one branch and reduce the potential for arbitrary or oppressive exercise of power. Although the degree of separation between the three branches varies between states, codified constitutions will regulate those spheres of power by allocating specific roles and functions to each branch and will allow checks or controls to operate between them to ensure accountability. The separation of powers in the UK is weakest between the legislative and executive, and strongest and most distinct between the judiciary and the other two branches. Indeed, the Constitutional Reform Act 2005 has brought stronger separation between the judiciary and the executive, making the judiciary more autonomous.
Chapter
3. The Nature of the British Constitution
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 outlines the characteristics of the UK constitution, which is not a traditional written constitution and, thus, is defined as an ‘unwritten’ constitution. It is not hierarchically superior to all other law in the country, which means that Acts of Parliament cannot be compared with it by judges and be declared as unconstitutional and invalid. Neither can the UK constitution be enforced against the legislature as a result, nor is it entrenched and protected, because it can always be changed by Act of Parliament. However, it can be legally enforced by the mechanism of judicial review against the executive, meaning that the executive may legally act only within its legal power. The chapter also considers the sources that make up the UK constitution and proposed constitutional reforms.
Chapter
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
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
4. Separation of Powers—An Introduction
This chapter explains the separation of powers doctrine, first describing the three branches of government: the legislative, judicial, and executive. It then discusses why separation of powers is needed, different conceptions of separation of powers, and separation of powers in the UK.
Chapter
8. The executiveCentral, devolved, and local government
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. This chapter discusses the executive branch of government. The executive consists of the reigning monarch who is legally the head of state, the Prime Minister, Cabinet, unanimity of advice and collective cabinet responsibility; Secretaries of State, Ministers of the Crown, departments of state, non-departmental public bodies, the civil service, the Civil Service Commission, parliamentary accountability, the Ministerial Code, the seven principles of public life, legal accountability, devolved administrative organizations in Scotland, Wales, Northern Ireland, and London, local authorities, the police, and the armed forces, the effect of the Localism Act 2011, the Scotland Acts 1998, 2012, 2014, and 2016, the Cities and Devolution Act 2016, and the Wales Act 2017. This chapter also discusses the relevant provisions of the European Union (Withdrawal) Act 2018 and the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018.
Book
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.
Chapter
5. Separating and Balancing Powers
This chapter examines the division of powers between the executive, legislative, and judicial branches of government. It considers the debate as to whether, why, and how separation of powers should occur in the UK’s constitutional system. Political constitutionalists tend to downplay the role of courts, while legal constitutionalists tend to be keen on using the idea of separation of powers to bolster the importance of the courts as a major ‘check and balance’ on the institutions that carry out the other two functions (legislative and executive). The discussions also cover the separation of power between the Crown and Parliament; judicial analysis of separation of powers; and interactions between Parliament, the executive, and judges. The ‘Westminster model’ is also explored.
Chapter
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’.
Chapter
4. How the UK is organised
This chapter details how power is allocated in the UK, and its organisation in terms of devolution and regional and local government. Power in the UK is divided into three branches or arms of state: legislature (law-makers), executive (government and administration), and judiciary (courts and judges). Before devolution, the government’s (executive’s) administrative power was centralised and it extended to the whole of the UK, but devolution has made significant changes to the constitution and has brought a substantial rebalancing of power in the government of the UK. Since devolution’s introduction, the power of central government no longer extends to the growing areas of domestic policy that have been devolved to Scotland, Wales, and Northern Ireland. The UK government’s remit therefore now covers England and the whole of the UK on non-devolved matters including the conduct of foreign affairs, defence, national security, and oversight of the Civil Service and government agencies.
Book
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 House 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, backbench 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.
Chapter
8. The executive
Central, devolved, and local government
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. This chapter discusses the executive branch of government. The executive consists of the reigning monarch who is legally the head of state, the Prime Minister, Cabinet, unanimity of advice and collective cabinet responsibility; Secretaries of State, Ministers of the Crown, departments of state, non-departmental public bodies, the civil service, the Civil Service Commission, parliamentary accountability, the Ministerial Code, the seven principles of public life, legal accountability, devolved administrative organizations in Scotland, Wales, Northern Ireland, and London, local authorities, the police, and the armed forces, the effect of the Localism Act 2011, the Scotland Acts 1998, 2012, 2014, and 2016, the Cities and Devolution Act 2016, and the Wales Act 2017. This chapter also discusses the relevant provisions of the European Union (Withdrawal) Act 2018 and the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018.
Chapter
4. How the UK is organised
This chapter details how power is allocated in the UK, and its organisation in terms of devolution and regional and local government. Power in the UK is divided into three branches or arms of state: legislature (law-makers), executive (government and administration), and judiciary (courts and judges). Before devolution, the government’s (executive’s) administrative power was centralised and it extended to the whole of the UK, but devolution has made significant changes to the constitution and has brought a substantial rebalancing of power in the government of the UK. Since devolution’s introduction, the power of central government no longer extends to the growing areas of domestic policy that have been devolved to Scotland, Wales, and Northern Ireland. The UK government’s remit therefore now covers England and the whole of the UK on non-devolved matters including the conduct of foreign affairs, defence, national security, and oversight of the Civil Service and government agencies. Devolving legislative powers to the three nations has reduced the scope and extent of the UK Parliament’s law-making, and devolution has raised issues about its effect on parliamentary sovereignty.
Chapter
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 and legal and political controls on their power. Ministers’ legal authority to act can derive from statute, common law, or royal prerogative. The royal prerogative is a historic source of power which is not authorised by statute. Government power is controlled in various ways, notably through the important doctrine of ministerial responsibility.
Chapter
2. The Separation of Powers
This chapter focuses on the separation of powers, which is an important aspect of the operation of the UK’s constitution. It details the concept of the separation of powers and its origins, before describing the functions of the executive, the legislature, and the judiciary. The chapter goes on to discuss how the powers held by each organ of the state are separated and how the relationship between them is balanced such that the state can achieve its goals. The chapter concludes by highlighting the practical effects of the separation of powers, including political accountability.
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