Lecture 7 – The Structure of Government:
In part two we start looking at the structures of government in greater detail. Therefore we will look at the various parts of Government – the Crown, the Privy Council, The Prime Minister and Cabinet, The Civil Serivce, as well as local, and regional government structures.
- The Crown:
All actions of government are taken in the name of the crown. The King or the Queen of England is the head of government. The United Kingdom
However, it is important to remember that the role of the queen is largely informal/ceremonial. The UK is a constitutional monarchy, and the crown is only the symbolic head and of the three arms of government.
The Act of Settlement of 1701 prescribes succession to the Crown is determined. It expressly removes Roman Catholics (or anyone married to a Roman Catholic) from consideration as heirs. (why? The Monarch is also the head of the Church of England). Succession to the Crown is also structured to give male heirs precedence over female heirs. If the Monarch is incapable of performing his or her role, under the Regency Act of 1937, Counsellors of State may be appointed to fulfill his/her duties.
The Monarchy is funded by the Civil List – this allows for all expenses related to the official business of the Monarch to be funded by the state from the consolidated fund. The Sovereign is not liable to pay tax for the income she receives from the state, but voluntarily started doing so in 1993.
A lot of the specific duties assigned to the monarch have already been discussed in our class on the Royal Preroragtive. But the role of the Queen in government has been described by Walter Bagehot as including “The right to be consulted, the right to encourage and the right to warn”. Thus even today, the Queen continues to play a key advisory role in government by:
- Assenting to bills
- Calling & Dissolving Parliament
- Etc.
In addition, the Queen receives copies of all significant government papers – cabinet papers, diplomatic reports etc.
She also has a weekly audience with the Prime Minister, where she is given an opportunity to air her views on all relevant matters. The Audience last 30min – 1 hour.
The relationship between the Queen and the Prime Minister is summed up in a letter from the queen’s Private Secretary to the crown dated 29th July, 1986. The letter was written in response to a story that the social policies of Margaret Thatcher were causing the queen ‘dismay’.
- The sovereign has a right and a duty to counsel, encourage and warn her government. She is thus entitled to have opinions on government policy.
- Whatever the queen’s personal opinion might be, she is bound to act on the advice and support of her ministers.
- The sovereign is obliged to treat all communications with the PM as confidential
The Privy Council
The Privy Council is a group consisting of the Monarch’s closest advisors. The modern day cabinet has its historical origins in the Privy Council. “Privy” means private – all meetings of the council are held in private. The Council is made up of all cabinet members, ambassadors, former and present speakers, clerics and judges. The Council also performs judicial functions, which are for the most part delegated to the Judicial Committee. The Committee consists of senior judges appointed as Privy Counsellors: Senior Judges from the Britain Scotland Northern Ireland British Empire , and continues to hear appeals from British Overseas Territories
The Council’s historical origins arise from the traditional councilors that had historically surrounded the monarchy. Eventually, jurisdictional disputes between the powers exercised by the privy council (especially by the privy councils judicial arm, which was known as the Court of Star Chamber) led to the council’s legislative powers being reduced, and to the judicial powers of the council being abolished altogether. However, as discussed above, the Privy Council still maintains some Judicial Power over British colonies and overseas territories. It also hears disputes connected to the devolution of legislative powers to assemblies in Northern Ireland, Wales and Scotland.
The Privy Council has about 400 members. The quorum of the council is 3. Hence the complaint by Maitland about its potentially undemocratic nature; it allows the work of government to fall into the hands of a small group of individuals – e.g. the King, acting with the Lord Chancellor and the Lord Privy Seal, the First Lord/Secretary of the treasury.
Prime Minister
The position of Prime minister was created in the later part of the 18th Century. It was largely created by Convention. Consequently, his role is not set down in any code or statute. Even though the prime minister is supposed to be the first among equals, the extent of power which he has suggests otherwise. The Prime Minister is, for example –
The First Lord of the Treasury
The Minister for the Civil Service
The Prime Minister appoints and dismisses ministers - The Prime Minister also has the right to ask a member of cabinet to resign – and if that cabinet member does not resign, the Prime Minister can ask the queen to remove that cabinet member.
The Prime Minister also determines which ministers become cabinet ministers.
Going to war, signing treaties – a lot of the powers of the crown which the crown ostensibly exercises under the royal prerogative are actually exercised by the prime minister
The Prime Minister is appointed by the monarch – By convention, the Monarch appoints the leader of the party that wins the most seats in the last parliamentary election. By convention, the Prime Minister has always been a member of the House of Commons. The last prime minister who acted in that capacity from the House of Lords resigned as recently as 1902. However, it has become increasingly apparent that this is an office that is best held by a person who is a member of the House of Commons. There are a number of practical reasons why this should be the case, the main one being that the prime minister must be held accountable to the electorate through parliament.
The first task of the prime minister is to choose his cabinet. Once in office, Again – this is a task that is technically done by the queen. In practice (and by convention) it is the Prime Minister who determines who should become a member of Cabinet. The Prime Minister also determines the size of the cabinet, the agenda of cabinet meetings, and controls the number and role of cabinet committees.
The Cabinet
The Cabinet consists (normally) of approximately 20 senior members of the government. For example, if you look at the current list of cabinet members it includes:
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| Deputy Prime Minister Lord President of the Council (special responsibility for political & constitutional reform) | | |
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| Secretary of State for Scotland (providing ministerial support to the Deputy Prime Minister in the Cabinet Office) | | |
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Role and Function of Cabinet – Cabinet is where government policies are formulated, initiated and implemented. It is the central decision making body of the government. Different governments have used cabinets in different ways, so the level of importance or the level of influence that a parliament has really depends on the circumstances of a particular government and even on the personality of the prime minister. Strong prime ministers tend to dominate their cabinets. Weak prime ministers are dominated by them. Sometimes, they are a function of internal party compromises. (Labor, Blair and Brown).
But even the strongest of Prime ministers must govern with the support of a cabinet i.e. Thus, Margaret Thatcher, who was one of the strongest PMs in the last century, was compelled to resign when she lost support of the cabinet.
How does cabinet function – the decisions are taken as a whole – but cabinet often functions through cabinet committees. Sometimes formed to address particular matters – perhaps security, perhaps economic issues in the time of a crisis.
The Committee system brings us back to our discussion of collective and individual ministerial responsibility. (who can refresh our memories about that)
Page 270 of Barnett
Collective – joint responsibility – flouted by any minister, said minister must resign.
Also – Individual responsibility – for actions in one department, for scandals, etc. in another department.
The daily functioning of the parliament is governed by the Cabinet Office, which is run by the Secretary to the Cabinet.
The Civil Service:
Defined as a “ a servant of the crown, other than holders of political or judicial office, who is employed in a civil capacity and whose renumeration is paid wholly and directly out of monies voted by parliament.
The civil service provides administrative support for various government ministries. Ministerial appointments are transient, temporary and ministers are often reshuffled. So Civil servants provide a level of permanence and stability within the various ministries to ensure that they continue to run smoothly when ministers are replaced.
Civil Servants are there permanently – they are servants of the crown and hold their offices “ at the pleasure of the crown”. This means, in theory that their appointments can be revoked quite easily. In practice however, Civil Servants have a number of laws that gives them a fair amount of security and permanence within their agencies.
Civil Servants must, to the greatest extent possible, be politically neutral. Their loyalty should not be to any particular government – their loyalty should be to the government of the day. As a result, some categories of senior civil servants are prohibited from engaging in national politics (though they may take part in local politics)
The Civil Service – for the purposes of political neutrality – is divided into three categories;
These are:
- The politically free category- i.e. industrial staff, non officer grades, who may engage freely in either national or local politics;
- The politically restricted category compromising of higher staff grades who are debarred from participating in national political activities; but may be permitted to engage in local politics;
- An intermediate group which compromises of those who are neither employed by the highest or the lowest grades.
Also, as a result of this, Civil Servants must maintain a veil of anonymity – they are shielded from public life and their actions are shielded from parliamentary scrutiny. For e.g. they do not appear in parliament to defend actions taken by a particular ministry – that is left for the minister. Also, the advise that they give ministers on particular issues is private.
See in Re M; The Government and the Courts;
Before the Crown Proceedings Act of 1947, two main principles governed the question of the legal liability of the crown. The first of these was that the ‘King could no wrong’ i.e. he could not be held liable for any actions which would be unlawful if they were committed by individuals. The second rule was that the King could not be sued in his own courts. These two basic principles served to insulate the king from legal action.
As the range of governmental powers increased, these principles became problematic – in particular, they weakened the legal protections available to citizens against rights abuses by officers and agents of the crown. The CPA of 1947 permitted actions to be brought against the Crown. It allowed for actions to be brought against specific government agencies, or where there was no specific government agency, against the Attorney-General.
However, remedies against the Crown are limited to declarations – i.e. no orders of specific performance. However, in M v Home Office, it was held that an injunction could be granted against a minister personally who is acting in his official capacity.
Also, EU law requires that rights are given sufficient enforcement within the EU system. In the case of R v Secretary of Transport, Ex Parte Factortame, an issue arose as to whether any damages could lie for a losses that arose as a result of the passage of legislation. Ordinarily, damages would not lie for such a breach. But the court held that “a national court, which in a case before it concerning Community Law, considers the sole obstacle which precludes it from granting relief is a national law must set aside that rule” The court based its decision on the international law principles of liability – which made no distinctions as to where the breach comes from.
[In] international law a State whose liability for breach of an international commitment is in issue will be viewed as a single entity irrespective of whether the breach which gave rise to the damage is attributable to the legislature, the judiciary or the executive. This must apply a fortiori in the Community legal order since all State authorities including the legislature, are bound in performing their tasks to comply with the rules laid down by Community law directly governing the situation of individuals.
The decision in Factortame was based on earlier decision in Francovich v Italy (1991) (Facts – whether remedies under EU law was available to some laid of Italian Factory workers) in which the court held that;
[t]he full effectiveness of Community rules would be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain redress when their rights are infringed by a breach of Community law for which a Member State can be held responsible.
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A further basis ... is to be found in article 5 of the Treaty, under which the Member States are required to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under Community law. Among these is the obligation to nullify the unlawful consequences of a breach of Community law
A further basis ... is to be found in article 5 of the Treaty, under which the Member States are required to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under Community law. Among these is the obligation to nullify the unlawful consequences of a breach of Community law
Questions:
What kind of government does the UK have today – Parliamentary, Prime Ministerial or Cabinet?
Regional Government and the devolution of Power –
In recent times, there have been efforts to devolve power in England England
You can see from this definition that one of the key features of devolution is the transfer of power from a higher parliament i.e. the Westminster Parliament to a lower Parliament i.e. the parliaments that have been created in NI, Scotland Wales Westminster United Kingdom
But it is debatable because as we shall see, some executive power is also transferred from Westminster
Let’s begin by a discussion of devolution of power in Wales Northern Ireland Scotland
The Welsh Assembly is imbued with some limited lawmaking powers. The assembly nominates a First Minister, who will then be appointed by the Queen. The assembly also allows for the appointment of up to 12 ministerial positions. The Assembly has a total of 60 elected members.
The assembly can pass laws that are within the scope of its legislative competence. There are 20 fields within which the Welsh Parliament can legislate. These are agriculture, fisheries, forestry, rural development, health, local government, social welfare, town and country planning etc. So the Parliament at Westminster
The movement for devolution in Scotland
Again it was the election of Labor in 1997 that led to the passage of the Scotland Act.
The Scottish Parliament consists of 129 members. Each parliament lasts for a fixed term of four years. The executive consists of a first minister, a Lord Advocate who serves as a solicitor general for Scotland
In respect of law making powers, the Scottish Assembly has the power to pass laws, which are known as Acts of the Scottish Parliament. However, the Scottish Parliament cannot make any law that affects the power of the Westminster Parliament to make laws for Scotland
Where there is a dispute as to whether or not the Scottish Assembly can pass laws on a subject, the dispute is referred to the Privy Council for determination.
Devolution in Northern Ireland Northern Ireland
Similar – Devolution came to Northern Ireland Scotland
Impact of Devolution – The English Question
Impractical, which questions have only English implications. Then you create a system where you basically have two tracks of MPs.
Local Government in England Wales
Under these regional divisions are subdivisions at the County Level
They also regulate things such as taxi licenses, child care facilities etc.
