Coursework Submission Coversheet

College of Business, Arts and Social Sciences

Coursework MUST be submitted online via WISEflow unless you are told otherwise by your Module
Leader.

Student Number: 2116511

Module Code: LX1032

Module Title: Public Law

Module Tutor: Vesco Peskalev

Assessment Number/Name:
e.g. Coursework 1, Coursework 2, Coursework 1
Presentation, Final Assessment

I confirm that I understand a complete submission of coursework is by one electronic copy of my

assignment via WISEflow. I understand that assignments must be submitted by the deadline in order
to achieve an uncapped grade. Separate guidelines apply to reassessed work. Please see the
Coursework Submission Policy for details.

Any coursework or examined submission for assessment where plagiarism, collusion or any form of
cheating is suspected will be dealt with according to the University processes which are detailed in
Senate Regulation 6.

You can access information about plagiarism here.

The University regulations on plagiarism apply to published as well as unpublished work, collusion and
the plagiarism of the work of other students.

Please ensure that you fully understand what constitutes plagiarism before you submit your work.

I confirm that I have read and understood the guidance on plagiarism. I also confirm that I have neither
plagiarised in this coursework, nor allowed my own work to be plagiarised.

The submission of this coversheet is confirmation that you have read and understood the above
statements.

A selection of assessments may be put on Blackboard Learn to be read by other students. I hereby consent
to my assessment being published on the relevant organisation on Blackboard Learn, for teaching and
research purposes.

YES/NO (Delete as appropriate)

NO
________________________________________________________
2116511
PLEASE START YOUR ASSIGNMENT HERE
Title: ‘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 2legislature 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 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

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

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)

2
2116511
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 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 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

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

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
2116511
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
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.’

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)

10
Complete Public Law : Text, Cases, and Materials (Oxford University Press 2021) 115

4
2116511
12
Section 3 of the Human Rights Act affords the courts ‘extensive powers’ and 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 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
Burnton17, citing Lord Scarman. This extract demonstrates that the courts, in some circumstances have

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

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

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-

5
2116511
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
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
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.

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,

6
2116511
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]

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>

7
2116511

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

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

Journals

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)