Responsibility in the Constitution
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The Constitutional Role of the Privy Council and the Prerogative 3
Foreword The Privy Council is shrouded in mystery. As Patrick O’Connor points out, even its statutory definition is circular: the Privy Council is defined by the Interpretation Act 1978 as the members of ‘Her Majesty’s Honourable Privy Council’. Many people may have heard of its judicial committee, but its other roles emerge from the constitutional fog only occasionally – at their most controversial, to dispossess the Chagos Islanders of their home, more routinely to grant a charter to a university. Tracing its origin back to the twelfth or thirteen century, its continued existence, if considered at all, is regarded as vaguely charming and largely formal. But, as the vehicle that dispossessed those living on or near Diego Garcia, the Privy Council can still display the power that once it had more widely as an instrument of feudal rule. Many of its Orders in Council bypass Parliament but have the same force as democratically passed legislation. They are passed, unlike such legislation, without any express statement of compatibility with the European Convention on Human Rights. What is more, Orders in Council are not even published simultaneously with their passage. Two important orders relating to the treatment of the Chagos Islanders were made public only five days after they were passed. Patrick, originally inspired by his discovery of the essay that the great nineteenth century jurist Albert Venn Dicey wrote for his All Souls Fellowship, provides a fascinating account of the history and continuing role of the Privy Council. He concludes by arguing that its role, and indeed continued existence, should be subject to fundamental review. -
Page 1 Halsbury's Laws of England (3) RELATIONSHIP BETWEEN THE
Page 1 Halsbury's Laws of England (3) RELATIONSHIP BETWEEN THE CROWN AND THE JUDICIARY 133. The monarch as the source of justice. The constitutional status of the judiciary is underpinned by its origins in the royal prerogative and its legal relationship with the Crown, dating from the medieval period when the prerogatives were exercised by the monarch personally. By virtue of the prerogative the monarch is the source and fountain of justice, and all jurisdiction is derived from her1. Hence, in legal contemplation, the Sovereign's Majesty is deemed always to be present in court2 and, by the terms of the coronation oath and by the maxims of the common law, as also by the ancient charters and statutes confirming the liberties of the subject, the monarch is bound to cause law and justice in mercy to be administered in all judgments3. This is, however, now a purely impersonal conception, for the monarch cannot personally execute any office relating to the administration of justice4 nor effect an arrest5. 1 Bac Abr, Prerogative, D1: see COURTS AND TRIBUNALS VOL 24 (2010) PARA 609. 2 1 Bl Com (14th Edn) 269. 3 As to the duty to cause law and justice to be executed see PARA 36 head (2). 4 2 Co Inst 187; 4 Co Inst 71; Prohibitions del Roy (1607) 12 Co Rep 63. James I is said to have endeavoured to revive the ancient practice of sitting in court, but was informed by the judges that he could not deliver an opinion: Prohibitions del Roy (1607) 12 Co Rep 63; see 3 Stephen's Commentaries (4th Edn) 357n. -
British Reaction to the Sepoy Mutiny, 1857-1858 Approved
BRITISH REACTION TO THE SEPOY MUTINY, 1857-1858 APPROVED: Major /Professor mor Frotessar of History Dean' ot the GraduatGradua' e ScHooT* BRITISH REACTION TO THE SEPOY MUTINY, 1857-185S THESIS Presented to the Graduate Council of the North Texas State University in Partial Fulfillment of the Requirements For the Degree of MASTER OF ARTS By Samuel Shafeeq Denton, Texas August, 1970 PREFACE English and Indian historians have devoted considerable research and analysis to the genesis of the Sepoy Mutiny of 1857 but have ignored contemporary British reaction to it, a neglect which this study attempts to satisfy. After the initial, spontaneous, condemnation of Sepoy atrocities, Queen Victoria, her Parliament, and subjects took a more rational and constructive attitude toward the insurrection in India, which stemmed primarily from British interference in Indian religious and social customs, symbolized by the cartridge issue. Englishmen demanded reform, and Parliament-- at once anxious to please the electorate and to preserve the valuable colony of India--complied within a year, although the Commons defeated the first two Indian bills, because of the interposition of other foreign and domestic problems. But John Bright, Lord Edward Stanley, William Gladstone, Benjamin Disraeli, and their friends joined forces to pass the third Indian bill, which became law on August 2, 1858. For this study, the most useful primary sources are Parliamentary Debates. Journals of the House of Commons and Lords, British and Foreign State' Papers, English Historical Queen Victoria's Letters , and the Annual' Re'g'i'st'er. Of the few secondary works which focus on British reac- tion to the Sepoy Mutiny, Anthony Wood's Nineteenth Centirr/ Britain, 1815-1914 gives a good account of British politics after the Mutiny. -
Treasury Board Secretariat
TREASURY BOARD SECRETARIAT PRESENTATION TO THE COMMITTEE OF EXPERTS OF THE MECHANISM FOR FOLLOW-UP ON THE IMPLEMENTATION OF THE INTER-AMERICAN CONVENTION AGAINST CORRUPTION (MESICIC) FIFTH ROUND OF REVIEW APRIL 25-27, 2017 Values and Ethics, Office of the Chief Human Resources Officer Objectives 1 To give you an overview of the Canadian Federal Public Service 2 To give you an overview of the role of the Treasury Board Secretariat 3 To speak to Values and Ethics in the Public Sector 2 Structure of the Executive Branch Prime Minister Cabinet Cabinet Committees Treasury Board Central Agencies Public Service Commission Privy Council Office Treasury Board Secretariat Hiring Policy Department of the Prime Minister Management Office Staffing investigations Government’s Policy Agenda Budget Office Oversight of Political Activities People Management Departments 3 The Treasury Board Secretariat (TBS) • TBS: – Is a central agency and the administrative arm of the Treasury Board, providing advice and support to Treasury Board ministers by managing TB meetings and providing written advice – Is a department with roughly 1800 employees*. – Is led by the Secretary (deputy minister) and two other deputy ministers: the Comptroller General of Canada and the Chief Human Resources Officer. – Provides guidance to management functions within departments. – Provides direction, leadership and capacity building for functional communities across government (e.g. financial officers, human resources advisors, audit executives, etc.). • TBS supports TB in its four -
The Role of Deputy Ministers in Canadian Government
10 The Role of Deputy Ministers in Canadian Government Chapter Summary The role of the deputy minister (DM) is the main interchange between the political head of a department, the minister, and the public servants of the department. In an advisory capacity to the minister, the deputy minister serves primarily as the Chief Executive Officer (CEO) of a department. The deputy minister is not subject to the merit system of the Public Service of Canada (PSC) but must follow most provisions as outlined in the Public Service Employment Act. A deputy minister’s position can be made through a discretionary appointment, by designation or selection, or through an appointment process by the Governor-in Council on the advice and recommendation of the prime minister. The powers of the deputy minister are not specified in any specific statute, except for several regulatory departments such as Revenue, Consumer Affairs, Justice, and Immigration. A DM is considered the manager of all of the financial and human resources of a department as well as serving as an accounting officer. In addition, the deputy minister implements the appropriate statutes for a department and can contribute to the drafting of rules and regulations and undertake related policy-making decisions. The accountability of a deputy minister can be both challenging and difficult to understand. The DM is answerable to many different people within the political process. For example, a DM is responsible to parliament and its committees for the work of his or her ministry and ultimately to the PM, who made the recommendation to have them serve as DM for a specific department. -
What the Crown May Do
WHAT THE CROWN MAY DO 1. It is now established, at least at the level of the Court of Appeal (so that Court has recently stated)1, that, absent some prohibition, a Government minister may do anything which any individual may do. The purpose of this paper is to explain why this rule is misconceived and why it, and the conception of the “prerogative” which it necessarily assumes, should be rejected as a matter of constitutional law. 2. The suggested rule raises two substantive issues of constitutional law: (i) who ought to decide in what new activities the executive may engage, in what circumstances and under what conditions; and (ii) what is the scope for abuse that such a rule may create and should it be left without legal control. 3. As Sir William Wade once pointed out (in a passage subsequently approved by the Appellate Committee2), “The powers of public authorities are...essentially different from those of private persons. A man making his will may, subject to any rights of his dependants, dispose of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law this does not affect his exercise of power. In the same way a private person has an absolute power to release a debtor, or, where the law permits, to evict a tenant, regardless of his motives. This is unfettered discretion.” If a minister may do anything that an individual may do, he may pursue any purpose which an individual may do when engaged in such activities. -
5. the Responsibilities and Accountabilities of Deputy Ministers
5 CHAPTER FIVE THE RESPONSIBILITIES AND ACCOUNTABILITIES OF DEPUTY MINISTERS This chapter examines the responsibilities and accountabilities of the most senior public servants, the Deputy Ministers. Deputy Ministers are the managers of the departments of government. Under their Ministers, they direct the administration of financial and human resources.They advise the Minister on policy issues and on reforms to administration.Together they form a community that must work as a team to coordinate and direct the work of government. Most policy initiatives cross-cut several departments and demand coordination of policy-making in several departments.Deputy Ministers have extensive management and other responsibilities. As the managers of departments, Deputy Ministers are responsible for the work and actions of the public servants under them. It is their job 83 84 RESTORING ACCOUNTABILITY:RECOMMENDATIONS to ensure that departmental administration meets established standards. Not only their Ministers but Parliament as well must be assured that Deputy Ministers fulfill their responsibilities as departmental managers. The Statutory Responsibilities of Deputy Ministers The statutory responsibilities of Deputy Ministers originate from two different sources.First are their responsibilities under the Interpretation Act1 and other departmental acts which permit Deputy Ministers to act in the name of Ministers for all powers possessed by Ministers, except the power to make regulations. There is no question that, for the exercise of these powers, Deputy Ministers act under the authority delegated by their particular Minister, and they are ultimately accountable to those Ministers for the use of these powers. Ministers are,in turn,accountable to Parliament for what was done,whether the Minister or the Deputy Minister actually made the decision. -
Treaty-Making and the British Parliament -Europe
Chicago-Kent Law Review Volume 67 Issue 2 Symposium on Parliamentary Participation in the Making and Operation of Article 9 Treaties June 1991 Treaty-Making and the British Parliament -Europe Chicago-Kent Law Review Templeman The Right Honourable The Lord Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Law Commons Recommended Citation Chicago-Kent Law Review Templeman The Right Honourable The Lord, Treaty-Making and the British Parliament -Europe, 67 Chi.-Kent L. Rev. 459 (1991). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol67/iss2/9 This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. TREATY-MAKING AND THE BRITISH PARLIAMENT THE RIGHT HONOURABLE THE LORD TEMPLEMAN* I. INTRODUCTION Under English law the capacity to negotiate and conclude treaties falls entirely to the executive arm of government. Nominally Parliament plays no role at all in this process. This paper will explain the British system, the different functions of the executive and legislature, the pro- cess of concluding and implementing treaties, and finally the role played by the courts in upholding this system. An understanding of how trea- ties are entered into and implemented in British law depends on an ap- preciation of the division between the international aspects of treaty- making and the domestic aspects of implementation. -
The Cabinet Manual
The Cabinet Manual A guide to laws, conventions and rules on the operation of government 1st edition October 2011 The Cabinet Manual A guide to laws, conventions and rules on the operation of government 1st edition October 2011 Foreword by the Prime Minister On entering government I set out, Cabinet has endorsed the Cabinet Manual as an authoritative guide for ministers and officials, with the Deputy Prime Minister, our and I expect everyone working in government to shared desire for a political system be mindful of the guidance it contains. that is looked at with admiration This country has a rich constitution developed around the world and is more through history and practice, and the Cabinet transparent and accountable. Manual is invaluable in recording this and in ensuring that the workings of government are The Cabinet Manual sets out the internal rules far more open and accountable. and procedures under which the Government operates. For the first time the conventions determining how the Government operates are transparently set out in one place. Codifying and publishing these sheds welcome light on how the Government interacts with the other parts of our democratic system. We are currently in the first coalition Government David Cameron for over 60 years. The manual sets out the laws, Prime Minister conventions and rules that do not change from one administration to the next but also how the current coalition Government operates and recent changes to legislation such as the establishment of fixed-term Parliaments. The content of the Cabinet Manual is not party political – it is a record of fact, and I welcome the role that the previous government, select committees and constitutional experts have played in developing it in draft to final publication. -
Legislative Consent Memorandum Trade
LEGISLATIVE CONSENT MEMORANDUM TRADE (DISCLOSURE OF INFORMATION) BILL Introduction 1. The Trade (Disclosure of Information) Bill (the Bill) was introduced in the House of Commons on 15 December 2020. As the Bill is a relevant Bill under Rule 9B.1 of the Parliament’s Standing Orders, this memorandum has been lodged by Fiona Hyslop MSP, Cabinet Secretary for Economy, Fair Work and Culture, and supported by Ivan McKee MSP, Minister for Trade, Investment and Innovation in accordance with Rule 9B.3.1(a). The Bill and its supporting documents can be found at Trade (Disclosure of Information) Bill 2019-21 — UK Parliament. This memorandum relates to the Bill as introduced. 2. The Bill is necessary to ensure that powers are in place to allow the UK Government to ensure flow and manage any border friction arising at the end of the Transition Period. The powers in this Bill largely replicate the powers in the Trade Bill to which the Scottish Parliament consented on 8 October 2020: as that Bill will not receive Royal Assent by 31 December, standalone legislation is required. Content of the Bill 3. The UK Government has set out the aims and purpose of the proposed legislation in the Explanatory Notes which accompany the Bill. The UK Government describes the principal purpose of the Bill as providing key data sharing measures that are required as the UK Government prepares for its new relationship with the European Union (paragraph 1 of the Explanatory Notes). The main provisions of the Bill are as follows: Clause 1 • Creating a power for HMRC to collect information on the number and identity of exporters of goods and services in the UK and share this with public and private bodies (including the devolved administrations) so that they can fulfil their public functions relating to trade. -
Judicial Review of Ministerial Advice to the Crown
33 Judicial Review of Ministerial Advice to the Crown Mark D Walters* For Thomas Hobbes, nothing illustrated the The orthodox view is that the Crown or its “inconstant use of words” better than the confu- representative in Canada must exercise its legal sion between “Counsels and Commands,” for the powers only upon the advice of ministers who words “Doe this,” he said, “are the words not only are responsible to the elected members of Parlia- of him that Commandeth; but also of him that ment, and that this rule is one of constitutional giveth Counsell.”1 This confusion remains with convention, not law.4 Rules of constitutional con- us today. We still do not have a sound grasp of vention are, in the orthodox view, customary rules the distinctive place that counsel or advice plays of constitutional practice or morality enforced within our constitutional system. How is minis- politically, whereas rules of constitutional law terial advice to the sovereign concerning how a are true laws enforced by courts.5 Applying these power ought to be exercised different from the ideas, the government argued that Alani’s case exercise of the power itself? Does ministerial had to fail: the Prime Minister’s “advisory role” in advice exist within a domain of political action Senate appointments “exists only by virtue of the beyond the reach of law? These are persistent constitutional convention” and so it cannot be a questions in Canada. concern for judges.6 Prime ministerial advice to the Crown is, in other words, sealed off from law. Was this argument sound? Does constitutional Consider Aniz Alani’s challenge to the deci- convention allow executive power asserted in the sion made in 2014 by (then) Prime Minister form of advice or counsel to reign within a “legal Stephen Harper to stop filling Senate vacancies black hole”?7 Although the case was dismissed — or, to speak more accurately, the decision to for mootness, the substance of the arguments it refuse to advise the Governor General of Canada raised are worth considering. -
Queen's Or Prince's Consent
QUEEN’S OR PRINCE’S CONSENT This pamphlet is intended for members of the Office of the Parliamentary Counsel. Unless otherwise stated: • references to Erskine May are to the 24th edition (2011), • references to the Companion to the Standing Orders are to the Companion to the Standing Orders and Guide to Proceedings of the House of Lords (25th edition, 2017), • references to the Cabinet Office Guide to Making Legislation are to the version of July 2017. Office of the Parliamentary Counsel September 2018 CONTENTS CHAPTER 1 INTRODUCTION CHAPTER 2 QUEEN’S CONSENT Introduction. 2 The prerogative. 2 Hereditary revenues, the Duchies and personal property and interests . 4 Exceptions and examples . 6 CHAPTER 3 PRINCE’S CONSENT Introduction. 7 The Duchy of Cornwall . 7 The Prince and Steward of Scotland . 8 Prince’s consent in other circumstances . 8 Exceptions and examples . 8 CHAPTER 4 GENERAL EXCEPTIONS The remoteness/de minimis tests . 10 Original consent sufficient for later provisions . 10 No adverse effect on the Crown. 11 CHAPTER 5 THE SIGNIFICATION OF CONSENT Signification following amendments to a bill. 13 Re-signification for identical bill . 14 The manner of signification . 14 The form of signification . 15 CHAPTER 6 PRACTICAL STEPS Obtaining consent. 17 Informing the Whips . 17 Writing to the House authorities . 17 Private Members’ Bills. 17 Informing the Palace of further developments . 18 Other. 18 CHAPTER 7 MISCELLANEOUS Draft bills . 19 Consent not obtained . 19 Inadvertent failure to signify consent . 19 Consent in the absence of the Queen. 20 Consent before introduction of a bill . 20 Queen’s speech . 20 Royal Assent .