Executive Power in the United Kingdom (and Canada, and maybe elsewhere)

I have posted “Executive Power in the United Kingdom” to SSRN. Written for an edited collection on executive power in Europe, here is the abstract:

This paper, written for a pan-European collection edited by Marcel Morabito (Sciences Po) is about the evolution of executive power in the United Kingdom. My goal is to describe the evolution that has taken place, sweeping in broad strokes from the Glorious Revolution of the 17th century to the present day. 

In Part I, I begin with a difficult problem: how to identify executive power in the British Constitution. Given the nature of Britain’s constitutional tradition, there is no neatly labeled and packaged “executive”. Rather, a rough approximation to the “executive” in other legal systems can be made only by carefully scrutinizing the United Kingdom’s constitutional arrangements.

In Part II, I turn to accountability. I begin by introducing a distinction between political and legal accountability. Very broadly speaking, political accountability concerns the accountability of the executive to Parliament (the body which sits in Westminster Palace), whilst legal accountability relates to judicial review of executive action by the courts. I describe the interaction between political and legal accountability by reference to the recent decision of the United Kingdom Supreme Court in the Case of Prorogations. I then trace the historical evolution of political and legal accountability. On the political side, Parliament won its pre-eminence in the constitutional tumult of the 17th century. Parliament’s legitimacy, both for exercising legislative authority and holding the executive to account, was strengthened by progressive extensions of the franchise before, in the 20th century, universal adult suffrage was achieved and the House of Commons became a genuinely popularly representative body. On the legal side, the 17th century was again a critical period, with early decisions establishing the primacy of the courts in determining the existence and extent of prerogative powers and the emergence of the “prerogative writs” as a means for controlling governmental authority. Later on, the prerogative writs were retrofitted to a growing apparatus of public administration, especially in the 20th century. Today, the superior courts sitting at the Royal Courts of Justice stand ready to assess the legality, rationality and procedural propriety of all state action, including governmental decision-making.

In Part III, I critically assess accountability in the contemporary British Constitution. I discuss, on the one hand, the fear that the executive has come to dominate Parliament in recent decades, with power increasingly centralized in the office of the Prime Minister. I then discuss, on the other hand, the myriad ways in which the executive is accountable, not just to Parliament and the courts, but to an increasingly broad range of actors in traditional and social media, civil society and political parties. Political and legal accountability remain central – not least because what happens in the media, civil society and political parties influences what happens in Parliament and the courts – but they do not represent the full picture of executive accountability in the United Kingdom. Executive accountability has evolved considerably in the British Constitution over the centuries, embedding the government of the day in a web of accountability mechanisms, ensuring it is accountable to Parliament, the courts and the populace at large. 

Download the paper here. 

Although this paper is about the United Kingdom, much of it applies to Canada (and probably other Westminster-style jurisdictions), where there have been comparable historical developments in relation to the powers and accountability of the government of the day.

This content has been updated on October 21, 2021 at 21:18.