The Executive in the Constitution Structure, Autonomy, and Internal Control

by Daintith, Terence; Page, Alan

• ISBN13: 9780198268703
• ISBN10: 019826870X
• Format: Hardcover
• Copyright: 1999-10-28
• Publisher: Oxford University Press

Summary

The Executive in the Constitution: Structure, Autonomy, and Internal Control is the first constitutional and legal analysis of the inner workings of the executive for many years. It aims to provoke a reappraisal, by constitutional lawyers, of the place of the executive within the constitution,by exploring an area hitherto largely neglected in constitutional law: the legal foundations of the powers and structure of the executive, and the mechanisms through which the centre of the executive seeks to control the actions of departments. The authors, both pre-eminent in the field off constitutional law, show that the machinery of executive co-ordination and control is no less crucial a dimension of the constitutional order than the external machinery of democratic and legal control. These external parliamentary and judicialcontrols depend for their effectiveness on the executive's ability to control itself. The plural structure of the executive, however, makes the co-ordination and control of its component parts a highly problematical pursuit. Against the background of an analysis of the executive's legal structure,the book examines in detail the controls governing departmental access to staffing, financial, and legal resources, analysing the relationship between these internal controls and the external machinery of democratic and legal control, and showing how the machinery of internal control has been shapedby the structure of the executive branch. The organization of the executive and the way it controls the actions of its departments has changed significantly in recent year. This book explores the impact of the machinery if executive co-ordination and control of the ambitious public service reform project which has been pursued bysuccessive governments over the last twenty years, as well as of changes in the wider constitutional framework, including those stemming from the United Kingdom's membership of the European Union and the growth of judicial review. It shows how public service reforms, judicial review, and Europeanlaw are changing not just the inner life of the executive government but its place in the constitution as well.

Author Biography

Alan Page is Professor of Public Law at the University of Dundee.

Table of Contents

List of abbreviations	xv
Table of statutes, regulations, etc.	xvii
United Kingdom statutes	xvii
United Kingdom regulations	xviii
EC treaties, regulations, directives etc.	xix
Table of cases	xxi
United Kingdom courts	xxi
Cases from other courts	xxiii
The executive in the constitution	1	(25)
Introduction	1	(1)
Why is the executive important?	2	(8)
The executive in shadow	2	(1)
External controls and the compliance principle	3	(3)
The plural executive	6	(4)
Why is the executive neglected?	10	(5)
The political background	10	(1)
The separation of powers	10	(2)
The Crown	12	(1)
The lack of `real' law	13	(2)
Positive constitutional theory	15	(4)
The constitution as empirical record	16	(1)
The constitution as one `grand idea'	16	(1)
The constitution as fiction	17	(1)
The constitution as a structure of values	18	(1)
The executive in a resource-based theory of the constitution	19	(7)
The executive in constitutional law	26	(33)
Introduction	26	(1)
The Crown	27	(1)
The ministerial department	28	(9)
The principle of departmental autonomy	29	(3)
The establishment of departments	32	(1)
Departmental powers	33	(3)
The Ministers of the Crown Act	36	(1)
Hollowing out the department	37	(14)
Next Steps agencies	37	(2)
Status of agencies	39	(1)
Mode of establishment	39	(2)
Relationship with sponsor departments	41	(1)
Strategic management	41	(1)
Framework documents	41	(1)
Targets	42	(1)
Agency chief executives	43	(2)
Agency reviews	45	(1)
Contracting out	46	(1)
The Deregulation and Contracting Out Act	47	(2)
Non-departmental public bodies	49	(2)
The cabinet and ministry	51	(6)
The cabinet	51	(1)
`Cabinet business'	52	(2)
The Cabinet Secretariat	54	(1)
Strengthening the `centre'	54	(3)
Conclusion	57	(2)
The civil service	59	(45)
Introduction	59	(3)
The legal basis of control	62	(3)
The organization of control	65	(13)
The Treasury	65	(1)
The Cabinet Office	66	(3)
The Office of the Civil Service Commissioners	69	(2)
Departments and agencies	71	(1)
The principal establishments officer	71	(1)
Delegated responsibilities	72	(1)
`Cabinet Office requirements'	73	(2)
The Senior Civil Service	75	(1)
The central pay framework	75	(1)
Personal contracts	76	(2)
Recruitment	78	(8)
Audited self-regulation	78	(1)
The recruitment principles	78	(2)
Commissioners' approval	80	(2)
`SASC Group' appointments	82	(1)
Exceptions	83	(1)
Compliance and audit	84	(2)
`Central requirements'	86	(1)
Conduct and discipline	86	(15)
Standards of conduct	86	(1)
The central framework	87	(4)
The Civil Service Code	91	(3)
The Armstrong memorandum	94	(1)
Departmental and agency rules	95	(1)
Discipline	96	(1)
Ministerial conduct	97	(1)
Appeals	98	(3)
Conclusions	101	(3)
The financial resources of government: institutions	104	(36)
Introduction: the constitutional dimension	104	(3)
The constitutional structure	107	(2)
The institutions of the executive	109	(31)
The Treasury	109	(1)
Tasks and organization	110	(3)
History	113	(3)
Powers	116	(1)
Issuance of public funds	117	(1)
Supervision of expenditure of funds	118	(2)
Control of access to Parliament	120	(2)
Conclusion	122	(1)
Control of resources otherwise than by the Treasury	123	(3)
The spending Departments	126	(1)
The Accounting Officer	126	(3)
The Finance Division, and the Principal Finance Officer (PFO)	129	(3)
Executive agencies and trading funds	132	(1)
History	132	(1)
Creation	133	(1)
Types	134	(1)
Government trading funds	135	(1)
Agencies with their own Vote	136	(1)
Other agencies	137	(1)
Central responsibilities for accountancy and internal audit	137	(3)
The financial resources of government: allocation and appropriation	140	(29)
Introduction: a plurality of systems	140	(3)
The public Expenditure Survey system	143	(12)
History	143	(1)
The public expenditure total	144	(4)
Fitting Departmental activities to public expenditure plans	148	(3)
Results	151	(1)
PES in Parliament	152	(1)
In general	152	(1)
The Code of Fiscal Stability	153	(1)
Departmental reports	154	(1)
The supply system	155	(9)
The supply cycle	155	(4)
The estimates	159	(1)
Structure and control	159	(3)
Simplification and alignment with PES	162	(2)
Resource accounting and budgeting	164	(5)
In general	164	(1)
Resource accounting	165	(1)
Resource budgeting	166	(3)
The financial resources of government: monitoring and control	169	(38)
In general: criteria, constraints, concepts	169	(8)
Introduction	169	(1)
Legislative, parliamentary, and internal rules	170	(1)
Regularity, propriety and value for money	171	(1)
Regularity	171	(2)
Propriety	173	(2)
Value for money	175	(1)
Conclusion	176	(1)
Treasury authorizations and delegations	177	(6)
Introduction	177	(1)
From approvals to delegations	177	(3)
Virement	180	(1)
Establishments	181	(1)
New works and services	182	(1)
Cash control	183	(7)
Cash limits and supplementary estimates	183	(3)
The Reserve and the Contingencies Fund	186	(2)
Running costs control	188	(2)
Control and sanctions	190	(17)
A self-enforcing system?	190	(3)
Links with external controls: Parliament	193	(1)
The Comptroller and Auditor-General and the National Audit Office	193	(2)
Treasury--NAO relations	195	(4)
Links with external controls: the law and the courts	199	(8)
The organization of the legal function in government	207	(33)
Introduction	207	(7)
The salience of legality	207	(1)
Whose legality?	208	(2)
Legality as a professional specialism	210	(2)
Legal tasks in government	212	(2)
The development of the structure for government legal work	214	(3)
The current structure of legal services	217	(14)
The Treasury Solicitor's Department	217	(4)
The Parliamentary Counsel Office	221	(1)
The Crown Prosecution Service and the Serious Fraud Office	221	(1)
The Legal Secretariat to the Law Officers	222	(1)
Law reform	223	(1)
Departmental legal services	223	(5)
Scotland and Wales	228	(2)
Northern Ireland	230	(1)
General comments	230	(1)
The Law Officers: history and status	231	(9)
The English Law Officers	231	(5)
The Scottish Law Officers	236	(3)
Conclusion	239	(1)
Legislation	240	(47)
Introduction	240	(1)
Machinery and purposes	241	(23)
Primary legislation	241	(1)
Determining legislative priorities	242	(3)
`Better legislation'	245	(1)
Policy clearance	246	(4)
Drafting	250	(1)
The PCO's monopoly	251	(1)
Ministerial responsibility	251	(1)
Drafting authority	252	(1)
Relations with instructing departments	253	(1)
Counsel as guardians of legal values	254	(2)
The role of the Law Officers	256	(2)
Subordinate legislation	258	(1)
The Statutory Instruments Act 1946	258	(1)
Departmental practice	259	(1)
Parliamentary scrutiny	260	(3)
The changing character of subordinate legislation	263	(1)
The impact of Europe	264	(7)
The negotiation and implementation of EU law	265	(1)
EC law-making	265	(1)
Giving effect to EC obligations	266	(1)
Central co-ordination	266	(1)
PCO scrutiny	267	(1)
The impact on domestic law-making	268	(1)
European Community law	268	(1)
The European Convention on Human Rights	269	(2)
Burdens on Business	271	(14)
Machinery	272	(1)
Mechanisms	273	(1)
Regulatory appraisal and regulatory impact assessments	274	(3)
Principles of good regulation	277	(1)
Deregulation orders	278	(1)
Secondary legislation	279	(1)
EC legislation	280	(5)
Conclusions	285	(2)
Litigation and legal advice: co-ordination and control	287	(36)
The Law Officers, criminal prosecutions, and civil litigation	287	(10)
The general constitutional position	287	(3)
The exercise of the Law Officers' powers	290	(5)
The appointment of counsel	295	(2)
The Law Officers as the government's chief legal advisers	297	(18)
Introduction	297	(1)
Law Officers' opinions: their nature	298	(4)
Asking for advice	302	(7)
Confidentiality, dissemination, and impact	309	(1)
Disclosure outside government	309	(4)
Dissemination within government	313	(2)
Cabinet Office co-ordination in legal matters	315	(4)
In general	315	(1)
On European law	316	(3)
Co-ordination within the framework of the Government Legal Service	319	(4)
Executive legality: constitutional background and current issues	323	(25)
Legality: pluralism and centralization	323	(2)
Constitutional roots of our present system	325	(7)
Ministerial responsibility	325	(1)
Executive subservience to the judiciary	326	(5)
Executive dominance of Parliament	331	(1)
The changing context	332	(8)
Administrative heterogeneity	332	(3)
The rise and rise of judicial review	335	(1)
Expansion in scope and depth	335	(1)
Positive reactions	336	(1)
Negative reactions	337	(1)
Underlying problems	338	(2)
Change within the executive	340	(8)
Litigation strategy	341	(2)
The executive in legal debate	343	(2)
The ethics of government lawyering	345	(2)
Conclusion	347	(1)
Better government: charter standards, open government and good administration	348	(32)
Introduction	348	(1)
The Citizen's Charter and Service First	349	(18)
A non-statutory initiative	350	(1)
Principles of public service delivery	351	(1)
Delivering the principles	352	(2)
Charter standards	354	(3)
Performance audit	357	(1)
Charter standards: conclusions	357	(1)
Complaints procedures	358	(3)
Redress	361	(4)
Systems improvement	365	(1)
Complaints procedures: conclusions	366	(1)
Access to official information	367	(6)
The Code of Practice	367	(5)
Towards a Freedom of Information Act	372	(1)
External controls on standards of administration	373	(5)
Parliament	373	(1)
The parliamentary Commissioner for Administration	373	(3)
Other parliamentary checks	376	(1)
The courts	377	(1)
The Council on Tribunals	378	(1)
Conclusion	378	(2)
Conclusions: internal control in a plural executive	380	(19)
Introduction	380	(1)
Trends in internal control	381	(7)
The traditional system	381	(2)
Growth and change	383	(1)
Forces for change	383	(1)
Co-ordination versus centralization	383	(3)
Formalization	386	(2)
Internal control and external controls	388	(5)
Executive reliance on external control: Parliament	388	(3)
Executive reliance on external control: the courts	391	(1)
The dependence of external controls on internal control	392	(1)
The constitutional significance of internal control	393	(6)
Bibliography	399	(26)
1 Books and articles	399	(14)
2 Parliamentary and other official papers	413	(12)
Index	425