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Law of Contract July 2010 LEVEL 6 - UNIT 12 – PUBLIC LAW SUGGESTED ANSWERS - JANUARY 2014 Note to Candidates and Tutors: The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2014 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination. SECTION A Question 1 The Executive, Cabinet Government and the Office of Prime Minister The Executive The Executive is entirely the creature of custom and owes little to statute or even common law, although its existence is recognised in some statutes such as the Ministerial and Other Salaries Act 1975. While Parliament could confer powers on the Cabinet and the Prime Minister it rarely does so. Powers are conferred on individual ministers. The executive function comprises, broadly, the whole corpus of authority to govern, other than that which is involved in the legislative functions of Parliament and the judicial functions of the courts. Historically the Executive was identified with the monarch in whose name many acts are now performed by the Prime Minister and other ministers. The Executive comprises all officials and public authorities by which the functions of government are exercised including the civil service and armed forces. Executive functions are also performed by the police, local government and many statutory bodies and executive agencies, such as the Prison Service, as well as by executives with devolved powers in Scotland, Wales and Northern Ireland. Membership of the European Union entails the exercise by the Council and the Commission of some executive functions in relation to the UK. In a narrow sense the Executive comprises ministers and the civil service. The power of the Executive is circumscribed to some extent by the doctrine of the separation of powers, though the members of the Executive are required by custom to sit in one or other of the Houses of Parliament. However, there is a statutory limit on the number of ministers who may sit in the House of Commons. Technically the Legislature controls the Executive as it can oust a Page 1 of 16 government which is unable to command a majority in the House of Commons but so long as the Cabinet has the support of the Commons it has far reaching control over the functioning of Parliament. Apart from the courts, there is no further accountability apart from the Select Committee system, the Comptroller General and the Parliamentary Commissioner for Administration. The independence of the Judiciary from the Executive is secured by law, constitutional custom and professional and public opinion. By virtue of s3 Constitutional Reform Act 2005 all ministers of the Crown “must uphold the continued independence of the judiciary.” The Judiciary constitutes a further check on the Executive, principally by way of judicial review (see M v Home Office (1994)). The Cabinet At the centre of the Executive is the Cabinet. L S Amery wrote: “the central directing instrument of government, in legislation as well as in administration, is the Cabinet” (“Thoughts on the Constitution 2nd ed 1953). The Cabinet provides the collective leadership of the majority party in the House of Commons. The institution has evolved since the 18th Century along with the office of Prime Minister. It has been said that since the Second World War Cabinet government has become Prime Ministerial government, notably under Margaret Thatcher and Tony Blair. Thus, on occasion, the role of the Cabinet as a forum for the discussion of policy has been displaced by the consultation by the Prime Minister of a small group of senior colleagues i.e. that collective Cabinet decision-making was replaced by mere responsibility for the implementation of policy. Lord Butler’s Review of Intelligence (2004) criticised this trend. No statute regulates the composition of the Cabinet which usually consists of 22 or 23 members. However, the maximum number of salaried cabinet posts is governed by statute i.e. not more than 20, apart from the Prime Minister and Lord Chancellor. It is almost obligatory to include the Foreign Secretary, the Home Secretary and the Chancellor of the Exchequer in the Cabinet. Other key ministers may not have departmental responsibilities such as the Lord President of the Council and the Chancellor of the Duchy of Lancaster. It is normal for some ministers to be drawn from the Upper House including the leader of the House of Lords. With the increasing complexity of government the Cabinet could not have kept abreast of its work without a Secretariat (headed by the Cabinet Secretary, who is frequently also head of the Civil Service) and a complicated network of committees. There were some 45 in 2009. They relieve the Cabinet of a considerable burden and support the principle of collective responsibility. Since 2010 the most important committee has been the Coalition Committee. Cabinet decisions are binding on all members of the government. The privacy of opinions expressed in Cabinet is considered to be vital. Serving Cabinet Ministers would be liable to lose office if they revealed Cabinet secrets. The work of the Cabinet is shrouded in secrecy and Cabinet papers are released only after 30 years (Public Records Act 1958). It is argued that the secrecy is essential for good government but the secrecy extends far beyond what is required for national security. For example, the Chilcott Inquiry on the Second Iraq War has had great difficulty in obtaining relevant papers from the Cabinet Secretary. Incoming governments do not have access to the Cabinet papers of an outgoing government of a different political party. However, former ministers do have the right of access to papers which they dealt with when in office. Page 2 of 16 Cabinet papers are also preserved from scrutiny by way of Public Interest Immunity (PII) procedure whereby the court may authorise non-disclosure of documents the disclosure of which is claimed to be injurious to the public interest. They may also be protected by the Official Secrets Acts 1911-89. The position of former Cabinet ministers was considered in A-G v Jonathan Cape Ltd (1976) in connection with the publication of the diaries of the late Richard Crossman. The court found that publication could be permitted if the existing confidentiality status of the material could not be proven. No reference was made in the judgment to the Privy Councillor’s oath or to the Official Secrets Acts. Subsequently, a Committee of Privy Councillors recommended an informal procedure whereby confidential communications between ministers or between ministers and civil servants should not be published for 15 years without clearance from the Cabinet Office. The Office of Prime Minister The office acquired its present form with the advent of the modern party system. The office is held with the older office of First Lord of the Treasury. Since 1937 the statutory provision of a salary and a pension has assumed that the PM is the First Lord. The office has since been recognised increasingly by statute such as the Chequers Estate Act 1917. The office is occasionally, but rarely, held with another office such as Foreign Secretary or Minister of Defence. The PM is also minister for the Civil Service. In that capacity the PM is responsible for the appointment of commissioners to oversee the interception of communications and the work of the intelligence services (CCSU v Minister for the Civil Service (1984)). His approval is required for the appointment of most senior civil servants and important Crown appointments are filled on his nomination, subject to consultation with any relevant commissions. In the Cabinet the PM is the most powerful voice by virtue of being the leader of the majority party in the House of Commons, but depends upon the confidence of his Cabinet colleagues and that of the parliamentary party. The Prime Minister makes all appointments to ministerial office and settles their order of precedence. He may also dismiss them or advise the Queen to do so. He also controls the machinery of government, as he decides which tasks shall be allocated to which departments. In the Coalition the allocation of ministerial posts is governed by the Coalition Agreement for Stability and Reform. The PM controls Cabinet business by settling the agenda and order of business. He takes the sense of each meeting rather than putting issues to the vote. The doctrine of collective responsibility helps to reinforce the position of the PM. Ministers must not criticise cabinet decisions in public and, if necessary, must defend them, though this appears to break down where governments are coalitions. Compared with Cabinet colleagues, the PM has a more regular opportunity to present and defend government policy in Parliament and has regular meetings with the Queen whom he keeps informed of the Cabinet’s handling of affairs. Exceptionally, she attended a Cabinet meeting at Downing Street in 2012. Question 2 (a) The Human Rights Act 1998 and Strasbourg Jurisprudence The criticism of the Human Rights Act 1998 (“HRA 1998”) has a number of contradictory and seemingly irreconcilable strands. Page 3 of 16 (i) Political Criticism (1) There is a general resentment of European law and institutions which has been exacerbated by the crisis in the Eurozone; however, there continues to be some confusion between Strasbourg and Luxembourg jurisprudence in that regard.
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