#17382 - Central Government - Public Law

Central Government

Institutions and Functions

1. The Monarch

• Distinguish Monarch acting in her personal capacity versus her public capacity, i.e. performing acts of government

• Functions: Head of State, Head of the Armed Forces, the Supreme Governor of the Church of England and the fount of honor (has the exclusive right of conferring legitimate titles of nobility and orders of chivalry); is also the reigning constitutional monarch in all 16 sovereign states members of the Commonwealth and has a role in relation to Crown Dependencies (Channel Islands and Isle of Man) and to Overseas Territories

The Royal prerogative power refers to the residual power inherent in the Sovereign. Its scope has changed over time and the bulk of prerogative powers are now exercised by ministers (see Cabinet Manual, 1.5).

Certain fundamental principles apply to the use of prerogative powers:

• Where there is a conflict between the prerogative and statute, statute prevails. Statute law cannot be altered by use of the prerogative (Case of Proclamations).

• The use of the prerogative is subject to judicial review in most cases (GCHQ; Miller v PM).

• While the prerogative can be abolished or abrogated by statute, it can never be broadened. However, Parliament could create powers by statute that are similar to prerogative powers in their nature.

The nature and scope of prerogative powers were challenged in the R (on the application of Miller) v Secretary of State for Exiting the European Union and Miller v Prime Minister cases.

In terms of the exercise of prerogative powers = two categories.

1. Appointing the Prime Minister

• By convention, the person appointed as Prime Minister is the person best positioned to command an overall majority in the House of Commons. Typically, the leader of the party with such a majority, though not necessarily.

• What happens when there is no clear leader of the majority party?

• What happens when there is no clear majority in Parliament (a ‘hung Parliament’)?

The First-Past-the-Post electoral system is designed to make this outcome highly unlikely. The monarch could (1) send for the leader of the party with the most number of seats (even if not a majority), resulting in a minority government, or (2) initiate discussions to see whether another person exists who could command a majority or a coalition could be formed, resulting in a coalition government.

Advantages of First Past The Post

• It is easy to understand

• It can be quick to count the votes and declare a winner

• Voters can express a clear view on which party they want in government

• In a two-party system, it has normally produced a single-party government with a clear mandate to govern

Disadvantages of the system

• MPs can be elected with relatively small percentage of the vote.

• It encourages tactical voting where people vote against the candidate they most dislike.

• Many votes are wasted: either those cast for a losing candidate or those for a winning candidate past the level needed to win the seat.

• Penalises small parties whose votes are spread widely across the country, not concentrated in particular seats.

• The Monarch also formally appoints the First Ministers of Scotland and Wales, but there has less leeway – she must appoint whoever the Presiding Officer of the Scottish Parliament (Scotland Act s.46) or of the Welsh Assembly (Government of Wales Act 2006, s.47) nominates, whoever that may be.

2. Granting royal assent to legislation

• Last used in 1708

• Conventionally Queen always signs as would be a constitutional crisis for monarch to refuse to assent the decrees of an elected body.

• A potential exception to the convention falling into disuse if the monarch were to act on the Prime Minister’s advice.

• Is the fact that a convention has not been used in a long time a clear indication it no longer is valid?

3. Dismissal of the Government

• Last used in the UK in 1834

4. Dissolution of Parliament (until 2011)

• Before the Fixed-term Parliaments Act 2011, the timing of the dissolution of Parliament was for the Prime Minister to decide. Maximum term was 5 years, but the actual duration was not fixed.

• After passing of Fixed-term Parliaments Act 2011:

  • Next polling day: 7 May 2015; thereafter: first Thursday May in the 5^th calendar year since last election – no later than 2 months after this (if approved by resolution in each House + a statement of PM’s reasons)

  • Parliament dissolves on the 25^th working day prior to this day

  • Early elections:

    • If HC passes a motion, with 2/3 absolute majority: “That there shall be an early parliamentary general election.” OR

    • If there is a vote of no confidence:

(1) HC passes a motion: “That this House has no confidence in Her Majesty’s Government.” AND

(2) Within 14 days, no motion of confidence has been passed to say: “That this House has confidence in Her Majesty’s Government.”

• Elections for the devolved legislatures must not fall on the same date. As a result, the elections for devolved parliaments were held on 5 May 2016.

• The Queen still formally prorogues Parliament (closes session) and officiates the State Opening (of new session).

5. Spheres of influence

   • Weekly audience with the PM

   • Head of the Commonwealth

2. The Prime Minister

The office of the PM is mostly governed by constitutional convention. It is occasionally referred to in statutes, e.g. Ministerial and Other Salaries Act 1975, but the role is not precisely defined and has evolved, without statutory grounding, over hundreds of years.

There has been an expansion of the PM’s functions over time:

• Greater policy capacity

• Management of multilayered government (devolution)

• Greater role in international decision-making (including EU)

There has also been a change in the manner in which the role has been exercised, moving from a collegiate cabinet government to the ‘presidentialisation’ of the premiership.

In an effort to consolidate these conventions (as they refer to the operation of the entire central government, not just the PM), the Cabinet Manual was adopted in October 2011. It specifies rules for:

• The appointment of the PM

• The functions of the PM:

• Exercises certain prerogatives, e.g. recommending the appointment of ministers and determining the membership of Cabinet and Cabinet Committees.

• Advises the Sovereign on the exercise of the Royal Prerogative powers in relation to government (e.g. appointment, dismissal and acceptance of resignation of ministers) and to certain statutory powers (e.g. the calling of an early election or a deferred election under the Fixed-term Parliaments Act 2011).

• Informs the Sovereign on general business of government during regular meetings.

• Recommends a number of appointments to the Sovereign: high-ranking members of the Church of England, senior judges and certain civil service appointments; to certain public boards and institutions; and to various commissions.

• Holds the office of Minister of the Civil Service (created in 1968), in which capacity s/he has overall responsibility for the management of most of the Civil Service.

• Is the minister responsible for national security and matters affecting the intelligence services (together with the Home and Foreign Secretaries of State and the Secretary of State for Northern Ireland for specific operations).

• Is a member of the Privy Council.

Under what conditions does the PM fall?

• Losing vote of no confidence in HC

• Internal party reasons

• Resignation for personal reasons

Sometimes, the cabinet includes a Deputy Prime Minister – e.g. Nick Clegg during the 2010-15 coalition government. (See Cabinet Manual 3.11 for more on the role of the Deputy PM.)

3. Ministers and the Cabinet

The Ministerial and Other Salaries Act 1975: maximum number of paid ministerial posts is 109.

The House of Commons Disqualification Act 1975: not more than 95 holders of Ministerial offices may sit and vote in the House of Commons at any one time. There is no equivalent legal restraint on the number of Ministers in the Lords.

Categories of ministers:

• Senior ministers include those who are part of the Cabinet. The latter are determined by the PM but will always include the Chancellor of the Exchequer, the Lord Chancellor and the secretaries of state. The secretaries of state are typically assigned one government department (home, health, education, defence, transport etc.)

• Junior ministers are generally ministers of state, Parliamentary under secretaries of state and Parliamentary secretaries. Typically they are ministers within a government department and their function is to support and assist the senior minister in charge of...