2116511

‘It is the executive who dominates the UK constitutional order’

The constitutional order is said to be a reasonably stable set of institutions through which

the nations fundamental decisions are made over a sustained period and the principles that

guide those decisions1. To put it another way, a constitution consists of legal and non-legal

norms that regulate how a country is governed. It has authority outside and above a

2
legislature and forms of laws that can be seen as superior to any other laws. According to

Professor Feldman, the constitution fulfils four basic roles; to establish the state's

institutions and give them and their members sufficient authorities to carry out their

responsibilities, to establish checks and balances to prevent abuse of authority and to offer

methods to detect, restrain, or punish such abuse. It provides some justification for the

exercise of power and lastly gives a degree of flexibility to allow the state to evolve as it will

over time, without allowing it to shift dramatically without intentional effort on the part of

those in power and the public3. Some constitutions can be referred to as 'written'

constitutions because they contain a body of constitutional law in a single text. Others are

referred to as 'unwritten' or 'uncodified' constitutions because they are made up of a

collection of different sources. In terms of the UK’s constitution, it can be viewed as

distinctive in that it is not included in a single document as well as a series of documents

1
Klug H and Tushnet M, “Review of the New Constitutional Order” (2004) 31 Journal of Law
and Society 280

‌
2

3
D Feldman “None, one or several? Perspectives on the UK’s constitution(s)” Complete
Public Law : Text, Cases, and Materials (Oxford University Press 2021) Cambridge Law
Journal 329-335 (2005)

1
[Type here]
2116511

which would make it uncodified. Additionally, rather than being republican, the UK’s

constitution is a constitutional monarchical one, which makes it religious as the Queen Is the

head of state as well as the church of England (which is the state’s church). The United

Kingdom’s constitution is often known as a unitary constitution, that is to say there is one

primary source of legal power which is the parliament. In terms of domestic law, it is this

body that holds final legislative authority. Parliamentary sovereignty is often recognised as

the British Constitution's basic principle. The ultimate law-making power vested in the UK

parliament is the power to make or repeal any law. However, as the Human Rights Act

shows, parliament can limit its legislative power. Furthermore, the British constitution

consists of many sources, that are seen to be legal and non-legal, written, and unwritten,

lastly international, and domestic. For example, legal sources would include primary and

secondary legislations whilst non legal sources have to do with the constitutional

conventions and authoritative opinions. Secondary legislation is law created by ministers (or

other bodies) under powers given to them by an Act of Parliament. It can also be used to set

the date for when provisions of an Act will come into effect as law, or to amend existing

laws4. The British constitution possesses three main bodies, which are the legislative,

executive and judiciary powers. The legislative power (the parliament) compromises the

crown, the house of common and the house of lords in which they enact laws. The executive

accommodates the crown, the government, the prime minister, and ministers under the

cabinet in which they put the laws made by the legislatives into effect. The judiciary includes

judges in the courts of law and tribunals in who control the magistrate’s courts, they strive

4
UK Parliament, “What Is Secondary Legislation?” (UK Parliament2012)
<https://www.parliament.uk/about/how/laws/secondary-legislation/>

2
[Type here]
2116511

to administer justice by using the law when needed to guarantee that the law is upheld. This

essay intends to analyse the roles of each of the three powers most especially the

executives and consider whether they significantly contribute to the UK’s constitution. This

essay will not solely focus on the executive power but determine if it dominates the UK’s

constitutional order.

At face value, when enquiring as to what the constitutional role of the executive is, It could

be argued that the prime minister, cabinet and the department of states are depicted as the

bodies that put the laws into effect. Furthermore, the crown and the central government

make up most of the executive. In the context of the United Kingdom, the government has

the ability to govern the country to be aligned with the laws put forward by parliament as

well as, if the royal prerogative allows for it to be put forward. The question as to whether

the executive dominates the UK’s constitutional order, could be answered by the fact that

the executive function extends further than the domestic sphere, unlike the legislative

function, in most countries because it is the executive that represents the country

internationally. The monarch, as head of state is the UK’s representative in international

affairs5. Subsequently, this view can be argued with the simple fact that the separation of

powers allows for each body to interfere with the aspects they each have. In Accordance

with the Magna Carta of 12156 (which was the first constitutional document), the monarch

(a sovereign authority) could potentially limit its authority. The rule of law is a theory or
5
Complete Public Law : Text, Cases, and Materials (Oxford University Press 2021) 115

6
John K and Edward I, “Executive Power - Magna Carta: Muse and Mentor
(www.loc.govNovember 6, 2014)| Exhibitions - Library of Congress”

3
[Type here]
2116511

doctrine that describes the extent to which certain features are present within a legal

system. AW Dicey’s ‘The law of the constitution’ supports the idea that ‘no one is above the

law’. Dicey states “Every official from the prime minister down to a constable or collector of

taxes is under the same responsibility for every act done without loyal justification as any

other citizen… are as responsible for any act which the law does not authorise as in any

private and unofficial person”7. An example of this put into aspect, would be the case of M v

Home office 19948, where the home secretary was held to be legally accountable for the

actions of his department, in which the court found out that the minister had acted contrary

to a court order. This case is used as evidence for the proposition that government ministers

are also subject to the law and to the operation of court orders. The Bill of Rights act 1689

also supported this view, that the monarch had to act in accordance with parliament advice,

to simplify the executive could not govern with parliaments agreements in subjects covered

by the Bill of rights. The case of Entwick v Carrington9 is a leading authority on the rule of

law that can be used to depict how the executive pursued to diminish the power of the

judges also known as the judiciary. In Addition, the case establishes how the secretary of

7
Thomas E. Webb, (Usa Ieee 1982)

8
M v Home Office and Another [1994] 1 AC 377; [1993] 3 All ER 537”
(learninglink.oup.com2020)
<https://learninglink.oup.com/static/5c0e79ef50eddf00160f35ad/casebook_206.htm>

9
Entick v Carrington (1765) 19 ST TR 1030

Webb TE, Essential Cases: Public Law, vol. 817 (Oxford University Press 2021)

4
[Type here]
2116511

state had the powers under statute to issue warrants. Lord Cansden noted that “The statute

was not a justice and in any event the messengers had not followed the terms of the

warrant”.10 This case brings forth the idea that what was done by the executive was

unlawful, therefore asserting the question that perhaps the judiciary may have the ability to

determine the UK’s constitutional order without going through illegal lengths. However, in

some instances, the executive is required for the public benefit and in accordance with the

constitution. As it is particularly responsible for ‘war and peace decisions’ as well as forming

the UK’s external relations and commitments, homeland security, immigration and broad

policy agendas like Brexit11.

When it comes to the constitutional role of the judiciary, it could be said that the courts

hold a crucial role in the concept of the rule of law and the preservation of human rights.

Both of which are fundamental concepts in the UK’s constitutional order. Moreover, the

judiciary is depicted as independent, most especially from both the Human rights act of

1998 and the Constitutional Reform Act of 2005. When interpreting the law in in conformity

with the Human Rights Act, the judiciary have the authority to go beyond the statute. The

‘public authority’ in the HRA refers to both the courts of the tribunals, which they are said

(in section 8 of the act) to ‘grant such relief or remedy or make such order within its powers

as it considers just and appropriate… But damages may be awarded only by a court which

has power to award damages or to order the payment of compensation in civil proceedings.’

12
Section 3 of the Human Rights Act affords the courts ‘extensive powers’ and
10
Complete Public Law : Text, Cases, and Materials (Oxford University Press 2021) 115

‌
11

12
the national archives, “Human Rights Act 1998” (Legislation.gov.uk2018)
https://www.legislation.gov.uk/ukpga/1998/42/section/8>
5
[Type here]
2116511

responsibilities in terms of constitutional interpretation. Moreover, chapter 4 of the

Constitutional reform act13 furthered the idea of judicial independence. It was stated that

“The Lord Chancellor and other ministers of the crown must not seek to influence particular

judicial decisions through any special access to the judiciary’14. Consequently the authority

that had been delegated to the judiciary, which is that the executive can no longer

contribute whether to determine how long a prisoner must remain in jail before being

considered for parole. In Alexander Hamiltons essay ‘Federation no 78’ the judiciary is

referred to as the ‘least dangerous political rights of the constitution’15. In context, this is

highly significant as the legislative branch establishes laws to regulate the public, whereas

the judicial branch has little authority over societies riches. Similarly, the judiciary is

remarkable as it is less likely to misuse a person’s rights than the executive or legislative

branches, since its most important concern is the people’s rights which must be protected.

The perspective that the judiciary has the ability to review the power held upon the

executive is evident in the M v Home office 1994 case16. As the home secretary ignored the

13
The National Archives, “Constitutional Reform Act 2005” (Legislation.gov.uk2012)
https://www.legislation.gov.uk/ukpga/2005/4/section/4> accessed January 14, 2022

14
The National Archives, “Constitutional Reform Act 2005” (Legislation.gov.uk2012)
https://www.legislation.gov.uk/ukpga/2005/4/section/4> accessed January 14, 2022

15
Hamilton A, “Research Guides: The Federalist Papers: Primary Documents in American
History: Federalist Nos. 71-80” (Loc.gov2019) < 71-80>

16
M v Home Office and Another [1994] 1 AC 377; [1993] 3 All ER 537
6
[Type here]
2116511

injunction, that went against the respect that the judiciary should be independent.

However, in some instances, the judiciary is delineated to have its ‘power’ abused. The case

of Baple Action gives further evidence for the executive’s constitutional position. This

assumption is furthered in the extract by Mr Justice Stanley Burnton 17, citing Lord Scarman.

This extract demonstrates that the courts, in some circumstances have limited authority

over executive action and parliamentary decisions. Therefore, the assertion as to whether

the executive dominates the UK’s constitutional order can be brought to question when

discussing the judiciary. It is evident that the judiciary can solely authorise its power through

judicial review cases, as well as respecting the executive’s actions (as long as it is rational

and made in accordance with natural justice laws and procedures.)

The legislative has also made a substantial contribution to the United Kingdom’s

constitutional balance. The UK’s integration of both the executive and legislative branches

of governments, is considered to offer stability and efficiency in government operations.

Additionally, enacting and facing legislation, keeping order securing and managing the

parliament’s foreign relations are the responsibilities of the legislative. The legislation put

forward by the legislative is what enables the executive to be able to govern the country.

Philosopher John Locke added to this assertion by stating “The legislature is still bound by

the law of nature and much of what It does is set down laws that further the goals of natural

Oxford university press,

(<https://learninglink.oup.com/static/5c0e79ef50eddf00160f35ad/casebook_206.htm>

17
Complete Public Law : Text, Cases, and Materials (Oxford University Press 2021) 138
chapter 5 www-oxfordlawtrove-

7
[Type here]
2116511

law… the executive power is then charged with enforcing the law as it is applied In specific

cases18”

The royal prerogative is bounded by the legislature and the legislation, which incorporates

the sovereign’s power over parliament. The case of Miller contributes to the exercise of the

royal prerogative. “Thus, consistently with parliamentary sovereignty a prerogative power

however well established may be curtailed or abrogated by statute… most of which made

up the royal prerogative have been curtailed in this way19”. As mentioned, parliament is

sovereign, and an act put forward can overrule a prerogative authority that may contradict

it. The executive cannot change any circumstances made by the legislative, instead any

modification must be made by statute, with the power being placed through the act of

parliament. Parliamentary supremacy (which is an expression that explains that the

Westminster parliament is legally entitled to pass, amend or repeal any law it wishes) is a

conduct of this. For example, if the house of Lords and commons pass the legislations and

the monarch gives her royal assent, then no court or other person is said to have legal

power to declare legislation valid. Thus, validating the idea that perhaps the legislative

dominates the UK’s constitutional order. On the contrary, while the parliament has the

power to enact any law it pleases. It is, nevertheless, considered one of the most democratic

forms of democracy. This is due to the manner in which the people elect their

18
Webley L and Samuels H, Complete Public Law : Text, Cases, and Materials, vol. chapter 5
(Oxford University Press 2021) 129

19
Miller, R (on the Application Of) v the Prime Minister [2019] UKSC 41 (24 September 2019)
(www.bailii.orgSeptember 24, 2019) United Kingdom Supreme Court,

8
[Type here]
2116511

representatives in parliament. It simply requires the commons to enact a bill, which

requisites 650 persons chosen by the population, to carry out the legislation’s requirements.

So, if anything negative was to happen, the population can choose and change who they

want to legislate for themselves, when the time comes.

To conclude, without a codified constitution, defining the precise boundaries between the

three branches’ respective powers is challenging, therefore, anything would be possible for

each branch on their own terms. The judiciary can intervene in political matters as they can

guarantee citizens’ rights. This is prevalent in the Human Rights Act of 1998, in which the

executive must also follow. Moreover, it would be extremely difficult to repeal such

legislations because there is no compelling reason to do so, given that the law is partially

entrenched. On that account, the statement whether ‘it is the executive who dominated the

UK constitutional order’ would be argued upon, due to how both the executive and

legislative can be deemed to potentially constitute a threat to the constitution.

Bibliography

Cases

Entick v Carrington (1765) 19 ST TR 1030

M v Home Office and Another [1994] 1 AC 377; [1993] 3 All ER 537

M v Home Office and Another [1994] 1 AC 377; [1993] 3 All ER 537

Miller, R (on the Application Of) v the Prime Minister [2019]

9
[Type here]
2116511

Books

Complete Public Law : Text, Cases, and Materials (Oxford University Press 2021) 138 chapter
5 www-oxfordlawtrove-

D Feldman “None, one or several? Perspectives on the UK’s constitution(s)” Complete

Public Law : Text, Cases, and Materials (Oxford University Press 2021) Cambridge Law
Journal 329-335 (2005)

Complete Public Law : Text, Cases, and Materials (Oxford University Press 2021) 115

Webley L and Samuels H, Complete Public Law : Text, Cases, and Materials, vol. chapter 5

(Oxford University Press 2021) 129

Webb TE, Essential Cases: Public Law, vol. 817 (Oxford University Press 2021)

Websites

(learninglink.oup.com2020)

<https://learninglink.oup.com/static/5c0e79ef50eddf00160f35ad/casebook_206.htm>

The National Archives, “Constitutional Reform Act 2005” (Legislation.gov.uk2012)

https://www.legislation.gov.uk/ukpga/2005/4/section/4> accessed January 14, 2022

the national archives, “Human Rights Act 1998” (Legislation.gov.uk2018)

https://www.legislation.gov.uk/ukpga/1998/42/section/8>

UK Parliament, “What Is Secondary Legislation?” (UK Parliament2012)

<https://www.parliament.uk/about/how/laws/secondary-legislation/>

Journals
10
[Type here]
2116511

Hamilton A, “Research Guides: The Federalist Papers: Primary Documents in American

History: Federalist Nos. 71-80” (Loc.gov2019) < 71-80>

John K and Edward I, “Executive Power - Magna Carta: Muse and Mentor

(www.loc.govNovember 6, 2014)| Exhibitions - Library of Congress”

Klug H and Tushnet M, “Review of the New Constitutional Order” (2004) 31 Journal of Law

and Society 280

Thomas E. Webb, (Usa Ieee 1982)

11
[Type here]