Q&As

Can a Secretary of State be directed to take a decision or action one way or another by the Prime Minister or Cabinet office such that the exercise of their statutory power is fettered? Is there any legal or constitutional principle, authority or guidance governing this relationship or scenario?

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Produced in partnership with Philip Rule of No 5 Chambers
Published on LexisPSL on 01/11/2018

The following Public Law Q&A Produced in partnership with Philip Rule of No 5 Chambers provides comprehensive and up to date legal information covering:

  • Can a Secretary of State be directed to take a decision or action one way or another by the Prime Minister or Cabinet office such that the exercise of their statutory power is fettered? Is there any legal or constitutional principle, authority or guidance governing this relationship or scenario?
  • The importance of who exercises public power
  • Surrender of power
  • The principle of non-surrender applies to ministers
  • Conclusion
  • Further reading

The office of the Prime Minister has developed by convention, and unlike the devolution settlements for instance, has no single, formal legal source. The Cabinet and its role has similarly evolved over time. Neither office has a single statutory footing, though both are recognised in statute for certain purposes.

The main functions of the Cabinet include the determination of government policy and the legislative programme, and the coordination of the activities of government departments. The Cabinet may also resolve disputes between government departments.

Major government departments are placed under the control of a Secretary of State, under whom other ministers may contribute to particular functions. The authority of Secretaries of State may derive from the royal prerogative, but in practice many of their powers are statutory.

This question deals with the issue of whether a government minister can be directed by the Prime Minister or Cabinet office to exercise their statutory power in a certain way. The answer therefore discusses the legal principles governing the exercise of statutory power.

Whenever a discretionary power is granted by statute to a public authority, the issue arises as to who should properly exercise that discretion. The starting-point is that the power is identified to be entrusted by statute to the Secretary of State, and does not emanate from the royal prerogative or powers of the Prime Minister being delegated.

The importance of

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