Constitutional Framework:
The courts (Legal Check) and Parliament (Political Check) provide checks and balances on the executive. [1] In reality, neither can adequately check every working of the executive due to time restraints.
Dual Role of the Constitution [2]:
The constitution has a twin role of enabling executive action and constraining it.
The executive is enabled to take action in the public interest through the constitution’s established framework for policy making. However, they are limited by the constitution to ensure it is accountable and adheres to the rule of law.
The State, Crown and Executive:
There is no clear concept of the ‘State’ in English law, but the term is occasionally used in legislation or in courts.
The nearest equivalent to the ‘State’ is the ‘Crown’. The Crown is the entire structure of the institutions of government, not just the current one. This creates a problem as the Crown is traditionally immune from legal process. To combat this, the idea of the monarch and Crown need to be separated, and the actions of the Crown in general and its executive functions need to be distinguished too.
The Crown exists ‘to do justice and judgement, to maintain the peace of the land, etc, to separate right from wrong, and the good from the ill’. [3]
Separation of Monarchy and the Crown:
The monarch is conceptualised as having two bodies: a natural body and a body politic.
‘The King has two Capacities, for he has two Bodies, the one whereof is a Body natural, consisting of natural Members as every other Man has, and in this he is subject to Passions and Death as other Men are; the other is a Body politic, and the Members thereof are his Subjects, and he and his Subjects together compose the Corporation ... and he is incorporated with them, and they with him, and he is the Head, and they are the Members, and he has the sole Government of them; and this Body is not subject to the Passions as the other is, nor to Death, for as to this Body the King never dies’. [4]
Some kings (notably the Stuarts) rejected the idea that the monarch had two distinct bodies to further their right to the throne under the divine right of kings. This was one of the contributing factors towards the Civil War and subsequent Bill of Rights 1689.
For this reason, public revenue and private property of the monarch are separated.
The Executive (The Crown and Government):
Composition:
The executive role of the monarch has mostly, but not completely, been replaced by the office of the Prime Minister. They work with other ministers, civil servants, agencies, and the privy council to form the executive.
‘the Crown’ means ‘the government’ and includes ‘all of the ministers and parliamentary secretaries under whose direction the administrative work of government is carried on’. [5]
This is perhaps incorrect from a strictly legal sense – ministers serve the crown, but do not act for it. [6]
The monarch still has the right ‘to be informed, to be consulted, to advise, to encourage and to warn’. [7]
Source of Power:
Written Constitution (unapplicable to Britain)
Statutes
Common Law
Royal Prerogative
EU Law (formerly)
In Entick v Carrington, the court held that executive action must be based on a legal foundation.
In Britain, two sources of executive power can be categorised as statutes and common law. It is argued that there is a ‘third source of power’ whereby ministers have to power to do things because the law does not expressly prevent their actions, just like a private citizen. [8]
If an action ‘can be carried out without any breach of the law, it does not require any statutory or common law power to justify it: it can lawfully be done simply because there is nothing to make it unlawful.’ [9]
Prerogative Powers:
Prerogative Powers and Parliament:
Prerogative powers are the powers that a monarch would historically hold that were necessary to their rule. They have never formally been granted to a monarch by Parliament but are still a source of public law.
Many of these powers have now been conferred to the cabinet. Therefore, it is harder to hold ministers to account when they use prerogative powers, as opposed to statutory powers. Some prerogative powers have been changed to statutory powers to overcome this, though many prerogative powers remain.
Those who use these powers are accountable to the courts and Parliament. That being said, the courts will not intervene in cases that are non-justiciable.
EG: matters of national security, state of emergency etc.
Definitions:
Locke [11]: certain powers must be left to the discretionary of the executive so they can provide for the public good when the law has not yet addressed a specific problem.
Blackstone [12]: it is natural that the monarch has certain powers that are exclusive to the Crown.
Dicey [13]: discretionary / arbitrary power is given to the Crown so they can lawfully conduct their duty. They are ‘residual’ because they only apply until the Parliament intervenes with statutory powers.
Powers [10]:
Selecting and dismissing the prime minister, ministers and the government.
Appointing the judiciary.
Mercy (pardoning).
Keeping peace.
Acquiring new territories.
Diplomacy / ratifying treaties.
Issuing and withdrawing passports.
Declaring war and deployment of armed forces.
In Miller No1, it was questioned whether the royal prerogative of entering treaties extended to include withdrawing from treaties. The Supreme Court concluded that it could withdraw from the treaty but could not alter domestic law with prerogative powers.
Summoning, proroguing and dissolving parliament.
Giving assent to bills.
In Miller No2, it was questioned whether the courts could review the royal prerogative of proroguing Parliament.
Historical Context:
Over time, Parliament and the courts have questioned or eliminated some prerogative powers.
Some prerogative powers are now exercised by ministers, rather than the monarch. This is because the ministers have democratic legitimacy.
The Bill of Rights 1689 was a major change in prerogative powers, making many of them illegal.
The Fixed-term Parliaments Act 2011 changed the royal prerogative of dissolving parliament.
The Case of Proclamations established that the courts can review prerogative powers. This is rarely done though, as it appears that the judiciary are assuming the role of the executive, so it is quite controversial. Alternatively, since the executive do not hold the sovereignty that parliament has, its functions should be reviewable by the judiciary.
Prerogative powers ‘exist in the shadow of the rule of law’. [14]
Prerogative Powers vs Statutory Powers:
Statutory powers are established in legislation and usually provide certain powers to ministers.
In Attorney General v De Keyser’s Royal Hotel, during WW1 the government could either requisition a hotel by using either a prerogative power or statutory power. If the government chose to use the prerogative power, it would not have to pay compensation, whereas if it used the statutory one it would. The House of Lords held that where there was a statutory power, that had to be used first.
Prerogative powers cannot undermine statute or use them to change the law.
‘the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm’ [15]
Proposed Reform:
Some argue that prerogative powers should no longer exist without statutory provisions for democratic accountability, while others argue that they maintain the efficient running of government, especially in times of crisis.
Jack Straw MP commented that ‘royal prerogative has no place in a modern western democracy [. . . the prerogative] has been used as a smoke-screen by Ministers to obfuscate the use of power for which they are insufficiently accountable’.
Professor Brazier argues that Parliament has the right to know what powers are being exercised by ministers – ‘ministers should not have imprecise powers’ because there can be no effective accountability without full information and transparency. [16]
Resources:
References:
[1] Paul Craig and Adam Tomkins, The Executive and Public Law (Oxford University Press 2006) 1 [2] Andrew P. Le Sueur, Jo Eric Murkens, and Maurice Sunkin, Public Law: Text, Cases and Materials (4th edn, Oxford University Press 2019) 243 [3] Calvin's Case (1608), 77 ER 377, (1608) Co Rep 1a [4] Willion v Berkley (1559) [5] Town Investments Ltd v Department of the Environment (1978) UKHL 2 (Diplock LJ) [6] M. Sunkin, ‘Crown’, in P. Cane and J. Conaghan (eds) The New Oxford Companion to Law (Oxford University Press 2008) 286–7 [7] R. Brazier, ‘The Monarchy’, in V. Bogdanor (ed.) The British Constitution in the Twentieth Century (Oxford: British Academy/OUP 2003) ch. 3, p. 78 [8] M. Elliott, The Constitutional Foundations of Judicial Review (2001, Oxford: Hart Publishing) 170–1 [9] Malone v Metroploitan Police Commissioner [1979] Ch 344, 367 (Megarry V-C) [10] Ministry of Justice, The Governance of Britain, Review of the Executive Royal Prerogative Powers: Final Report (October 2009), Annex (‘Ministerial prerogative powers’) [11] Locke, Second Treatise of Government (1690) [12] William Blackstone, Commentaries on the Laws of England (1765) [13] A.V. Dicey, Introduction to the Study of the Law of the Constitution (1885; 10th edn 1959, London: Macmillan & Co.) 424 [14] M. Elliott and A. Perreau-Saussine, Pyrrhic public law: Bancoult and the sources, status and content of common law limitations on prerogative power [2009] Public Law 697, 705–6 [15] The Case of Proclamations [1610] EWHC KB J22 (Coke CJ) [16] House of Commons Public Administration Select Committee, Taming the Prerogative, Strengthening Ministerial Accountability to Parliament (Fourth Report, Session 2003–04) (HC 422)
Cases Mentioned:
Entick v Carrington [1765] EWHC KB J98
R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 ('Miller No1')
R (on the application of Miller) v the Prime Minister; Cherry and others v Advocate General for Scotland [2019] UKSC 41 ('Miller No2')
The Case of Proclamations [1610] EWHC KB J22 (Coke CJ)
Attorney General v De Keyser’s Royal Hotel [1920] AC 508
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