THE STRUCTURE OF GOVERNMENT
ii)The Privy Council
iii) The office of prime minister
b)The Cabinet and ministerial responsibility
c)The civil service
d) Local Government
Walter Bagehot’s often-quoted phrase:
It is commonly hidden like a mystery, and sometimes paraded like a pageant, but in neither case is it contentious. The nation is divided into parties, but the Crown is of no party. Its apparent separation from business is that which removes it both from enmities and from desecration, which preserves its mystery, which enables it to combine the affection of conflicting parties – to be a visible symbol of unity to those still so imperfectly educated as to need a symbol.
Queen Elizabeth II since her accession to the throne in 1952, has presided over 35 years of Conservative rule and 19 years of Labour rule. She has thus accumulated a wealth of experience in political matters unmatched by her individual Prime Ministers.
The UK constitution is a constitutional monarchy, meaning that there is a non-elected head of state who does not govern in person. The Crown is the symbolic head of state and also the formal head of the executive, legislature and judiciary branch. The Crown governs through ministers chosen from members of Parliament, can make law only in conjunction with Parliament and depends on Parliament for finance. However, although it cannot interfere with the legal rights of others except under powers given to it by,’ Parliament or under certain powers known as the royal prerogative, the Crown as a person is otherwise free in law to do anything that an adult individual can do, although it is restricted by numerous’ conventions and traditions.
Strictly speaking, Acts of Parliament are made by the Queen following advice from Parliament and there is no other way she can make laws. Moreover, by convention the monarch cannot refuse the Royal Assent to any bill properly presented by Parliament.
Appointment of the judiciary:
Members of the judiciary are in law appointed by the Queen and act in the Queen’s name since their powers historically derive from the royal functions of keeping order and doing. justice. However, since the seventeenth century, the judicial function has been separated from the executive functions of the Crown (Prohibitions del Roy (1607) and it is settled that the Crown cannot establish new courts or interfere with judicial decision making.
The executive is still run in the name of the Crown but by convention the Queen must act through ministers supported by Parliament.’ Ministers can act through appointed civil servants who are also Crown servants but ministers remain legally and constitutionally responsible. Thus there is a tension between the dispersed way in which powers are allocated, which leads for example to rivalry between government departments and the legal theory that the Crown is a single entity. The Crown is treated as a single legal entity for the purpose of private law such as property ownership but statutory powers are usually exercised by ministers in their own right.
The royal prerogative:
There are also certain powers vested in the Crown under the common law. These are known as the royal prerogative. This is a residue of the powers of the medieval monarchs although some prerogatives can be justified as being necessary in any state, for example the power to declare war or to make treaties. Most royal prerogative powers are exercised by, ministers, many of them by the Prime Minister. Because they do not require the support of laws made by Parliament they are relatively difficult to subject to democratic control as was recently illustrated by the controversy, over the war with Iraq. As head of state, the monarch exercises ceremonial and symbolic functions such as signing important legal instruments granting titles and honours and representing the UK abroad. More controversially, the Queen must exercise real political power in the form of her residual sovereignty if the normal system of parliamentary government collapses, for example if a Prime Minister tries to remain in office without the support of Parliament.
The Crown also has certain legal immunities deriving from the mystique of monarchy. However the medieval maxim, ‘the King can do no wrong’. For example in M v Home Office (1993), it was held that the Crown, ministers, and the courts were separate entities and that minister; could not hide behind Crown immunity. Lord Templeman remarked that to hold otherwise would be equal to backtracking on the seventeenth century revolution. However, the Queen cannot be held liable personally in a court not probably even compelled to attend a court.
Succession to the Crown:
The Act of Settlement 1700 provides that succession to the throne is confined to members of the Protestant religion and specifically excludes Roman Catholics, or those married to Roman Catholics, from succession This religious exclusion has been under recent discussion. Any, amendment to the Act of Settlement would require the consent of the parliaments of the United Kingdom’s Dominions. and may also require the assent of the parliaments of all independent member countries of the Commonwealth which recognize the Queen as Head of State.
The line of succession:
Succession to the Crown traditionally devolves according to the principles of primogeniture, that is to say that male heir, and their children (irrespective of sex), take precedence over female heirs. Again, ‘this matter is said to be under current discussion with a view to reform. Because of primogeniture, the current line of succession is Prince Charles, his sons Prince William and Prince Henry, ,Andrew, Duke of York, his daughters, Princess Beatrice and Princess Eugenie, Prince Edward, his daughter Lady Louise Windsor, Princess Anne, the Princess Royal, and then her children, Peter and Zara Phillips, and thereafter to other members of the Royal Family in a predetermined line of succession.
Were the Queen to abdicate, in favour of an early succession by Prince Charles, the assent of the parliaments of the Dominions would be required. The only precedent case is that of King Edward VIII, who abdicated in 1936 in order to avoid the constitutional crisis, which was perceived to be imminent if he persisted in his intention to marry the American divorcee, Wallis Simpson.
The Regency Acts:
Should the Crown fall ‘vacant’, through death or (more rarely–) abdication, or the Monarch becomes too ill to fulfill his or her constitutional duties, and the successor has not yet reached the age of majority,_ there will be a need for the appointment of an adult with responsibility for the Crown’s duties during the successor’s minority. This situation is regulated under the Regency Acts 1937-53.
The Regency Act 1937 provides that the Sovereign may appoint Counselors of State, charged with the responsibility of carrying out the Sovereign’s duties whenever he or she is either absent from the United Kingdom, or suffering from temporary physical or mental illness. Those eligible to be appointed include the Monarch’s spouse and the next four persons in line of succession. Where there is the need to appoint a Regent, the Regency Act 1937 provides that, until the heir to the Throne reaches the age of 18, his or her duties will be carried out by a Regent. The appointment of a Regent continues until it is declared to be no longer necessary by the wife or husband of the Monarch, the Lord Chancellor, the Speaker, the Lord Chief Justice and the Master of the Rolls.
The Royal Titles Act 1953, By statute, the Monarch may assume whatever title she thinks fit, with the assent of member governments of the Commonwealth. The Royal Titles Act provides the title: Elizabeth II by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith. Within the Commonwealth, it was agreed in 1952 that the title of the Monarch within the Commonwealth was for each state to determine Accordingly, the only title of the Monarch which is uniform throughout the Commonwealth is that of ‘Head of the Commonwealth’.
The Civil List:
The Civil List is a fund provided by parliament for the financing of expenditure on official business by the monarch and specified members of her family. The Civil List is designed to offset expenditure incurred on official business, the cost of maintaining royal residences and the salaries and pensions payable to -employees of the Crown The List was established in the reign of George III (1760-1820) and represents an agreement whereby parliament will vote monies for the official business of the Royal Family in exchange for the surrender of hereditary revenues held by the Crown. The revenues are paid directly into the Exchequer and become part of the Consolidated Fund. Payments under the Civil List are provided for by the Civil List Act 1952, as amended The Civil List Act 1972 made separate provision for the Duke of Edinburgh and other members’ of the Royal Family who undertake public duties in the name of the Crown. In1992, the Queen took over financial responsibility for members of the Royal Family, although the Duke of Edinburgh still receives separate provision under the Civil List, as did the late Queen Mother. Financial provision for the Prince of Wales is made from the revenue; accruing from the Duchy of Cornwall.
Taxation and the Sovereign: Until 1992, the Sovereign was not liable to pay tax on her private property unless an Act of Parliament so determined. From 1993, the Queen, on her own undertaking, has paid tax on her private income.
The state opening of parliament:
At the start of each new parliamentary session, the Monarch formally opens parliament. The Queen’s Speech is formally delivered to the House of Lords with members of the House of Commons having been summoned to the Lords by Black Rod. The Speech outlines the government of the day’s proposals for legislation in the forthcoming session. Thereafter, there is a four or five day debate on the Speech in the Commons.
The Monarch receives copies of all significant government papers. She also receives copies of reports from ambassadors’ abroad and Commonwealth High Commissioners. All Cabinet papers and the minutes of Cabinet meetings are received by the Queen.
The weekly prime ministerial audience:
Whatever the pressure of work, the Prime Minister attends a weekly half to one-hour audience with the Queen. It is at this weekly meeting that issues will be discussed and the Queen’s views made known to the Prime Minister. Channels of communication are facilitated by the Queen’s Private Secretary, whose appointment is the choice of the Queen, and who on ‘appointment will become a Member of the Privy Council. The Private Secretary may not belong to any political party. Very rarely will the Queen’s Private Secretary be drawn into public debate although, in 1986, the then Private Secretary, Sir William Heseltine, wrote to The Times (following public claims that the Queen and Prime Minister -then Mrs. Thatcher – disagreed on policy matters). In his letter, Sir William Heseltine spelled out three main points concerning the relationship between the Crown and the Prime Minister:
(a) The Sovereign has the right and duty to counsel, encourage and warn her government. She is thus entitled to have opinions on government policy and to express them to the Prime Minister;
(b) Whatever the Queen’s personal opinions may be, she is bound to accept and act on the advice of her Ministers;
(c) the Sovereign is obliged to treat communications with the Prime Minister as entirely confidential.
in Walter Bagehot’s often-quoted phrase, the Monarch has the right to ‘be consulted, the right to encourage, the right to warn’ (1867). As such, the Queen must be fully informed of the actions of her government, and given adequate opportunity to express her views. If the role of the Monarch is to remain respected by governments of all political persuasions, and the nation, it is axiomatic that the Queen be seen formally to be immune from party-political differences and to fulfill her duties in an even-handed manner.
THE PRIVY COUNCIL
Historical origins: Members are appointed by the Queen on the advice of the Prime Minister.
Since 1066, the Monarch has appointed a Chancellor, who was head of the King’s administration and had custody of the Great Seal. The Chancellor had responsibility for the administration of law, drawing up royal writs and exercising judicial powers. The Chancellor has always been a Member of the King’s Council. The Privy Council may be viewed as the successor to the Curia Regis, the supreme legislative, executive and judicial body. The Council is traceable to the thirteenth century. It was through the Privy Council that monarchs would rule without recourse to parliament. Under Edward I (1272-1307), it was difficult to discern whether legislative acts emanated from the King in Parliament. Throughout the fourteenth century, however, there were serious conflicts between the Council and parliament and, in the reigns of Henry IV (1399-1413) and Henry V (1413-22), there is evidence of the Commons petitioning the King against the jurisdiction seized by the Council. The Council by this time was exercising judicial powers in relation to both criminal and civil litigation. Enforcement of the criminal law, where offences against the state were alleged or officers of state were involved, was effected by the feared Court of Star Chamber. To this claim to wide civil and criminal jurisdiction came parliamentary objection on the basis that the Star Chamber was usurping the function of the common law courts. FW Maitland writes of the Council at this time that:
The Tudor reigns are. we may say. the golden age of the Council: the Council exercises enormous powers of the most various kinds; but it is not an independent body – as against the King it has little power or none at all. [‘9()R. p 256]
By the reign of Henry VIII (1509–47), the Council comprised Privy Councillors – the King’s elite advisers – and ordinary Councillors – lawyers and administrators. Over time, the Council fragmented into committees dealing with specified matters. The Council survived the abolition of the Star Chamber, although its powers were much weakened. Following the restoration of the monarchy, it became the body on which the King relied for advice.
With the Glorious Revolution of 1688 and the rise of parliamentary sovereignty, the role of the Council changed. Under William, the inner circle of the Council became known as the Cabinet Council. Through this Cabinet, the King could exercise all his powers, although he had to have recourse to the wider membership of the Privy Council in order to undertake acts which required Orders in Council, the formal means bt• which such prerogative acts came into effect. It was the Privy Council, which determined the summoning and dissolution of parliament, although it seems clear that the King would act through Orders in Council published after consultation with an inner circle of the Privy Council. The early origins of Cabinet government can be seen here. As FW Maitland observed:
We now see how it is legally possible for the work of government to fall into the hands of a small number of the Council – those Members who hold the high offices of state and who have control over the seals of office. If the King has with him the Chancellor, the Treasurer or First Lord of the Treasury; the Lord Privy Seal, and the Secretaries of State, he can get his work done without consulting the mass of Privy Councillors. If, for any purpose, an Order in Council is required, a meeting of the King with just these few intimate advisers will be a good enough meeting of the Privy Council at which Orders in Council can be made. So much is the legal possibility of Cabinet government. [1908, p 394)
While King William and Queen Anne attended Council meetings regularly, a change of practice occurred with the reign of George I (1714-27) and George II (1727-60). Neither could speak English, and nor were they particularly concerned with English matters. Accordingly, the Cabinet began to meet without the King. Under George III (1760-1820), the same situation prevailed, the Cabinet meeting without the King and communicating its decision to the King. Again,– we find the origins of today’s Cabinet, with _ the three principles of Cabinet government becoming apparent: those of ‘political unanimity, common responsibility to parliament and a common leader’. With the rise of the Cabinet system of government in the eighteenth century, the Privy Council gradually lost much of its power.
Composition of the Privy Council:
The Privy Council has over-400 members, half of whom are peers, half commoners. There is no fixed number of members. The Crown, with the advice of the Prime Minister, makes appointments. By convention, all present and past Cabinet members are appointed to the Privy Council. Also included in the membership are members of the Royal Family, senior judges, two Archbishops, British Ambassadors, the Speaker of the House of Commons, present and former leaders of the Opposition, and leading Commonwealth spokesmen and judges. On appointment, a new member of the Council takes the oath of allegiance, or affirms loyalty. The Privy Council oath binds the member to secrecy in relation to any matters discussed in the Council.
Meetings of the Privy Council:
The Privy Council may meet wherever the Queen so decides although, normally, the Council will meet at Buckingham Palace. The quorum is three.
FUNCTIONS OF THE PRIVY COUNCIL
Proclamations and Orders in Council:
Proclamations are used for the summoning, proroguing and dissolving of parliament and declarations of war and peace. Orders in Council give effect to decisions reached under the royal prerogative and under statute. Orders in Council may be legislative, executive or judicial.
Committees of the Privy Council:
The majority of Privy Council functions are undertaken in committees. Miscellaneous committees have been established. These include committees dealing with scientific research, universities and the granting of charters. The most important committee is the judicial Committee.
The Judicial Committee was established under statute by the judicial Committee Act 1833. The Judicial Committee Act 1844 provided that the Queen may, by Order in Council, admits appeals from courts of British colonies or overseas territories. The judicial Committee is composed of the Lord Chancellor, Lord President and former Lord Presidents of the Council, Lords of Appeal in Ordinary and the Lord Justices of Appeal, former Lord Chancellors and retired Lords of Appeal; senior judges or former judges of those Commonwealth countries from which a right of appeal still lies
In addition to its appellate jurisdiction, the judicial Committee will on occasion examine and report on matters of constitutional importance. It has, for example, examined the legality of telephone tapping, issues of state security, and British policy in relation to the Falkland Islands.
Apart from its judicial functions (below), the role of the Privy Council is largely formal. Its approval is needed for certain important exercises of the royal prerogative, known as prerogative orders in council, including for example the regulation of the civil service, and also for ‘statutory orders in council’ where Parliament gives power to the executive to make laws in this form. Approval is usually given by a small deputation of Councillors attending the Queen. The Privy Council also confers state recognition and legal personality by granting charters to bodies such as universities and professional, scientific and cultural organisations. It can exercise some degree of supervision over such bodies.
The office of Prime Minister:
The office of Prime Minister is established via convention rather than law. Historically, with the growth in Cabinet government, there became a need for a principal Minister to advise the Crown. The Prime Minister is said to be primus inter pares (first among equals), although the breadth of the Prime Minister’s power suggests otherwise. The Prime Minister is the head of the political party, which wins the largest number of seats at a general election. The Prime Minister is also an ordinary Member of Parliament representing his or her own constituency. He or she chooses who will fill ministerial posts and has the power to reorganize the structure of government departments. The Prime Minister may, in the name of the Crown, dismiss a Minister.
The Prime Minister chairs the Cabinet, the inner core of government, and determines which matters will be discussed. He or she also defines the powers and duties of Ministers through the Ministerial Code of