Competence and functions of Executive bodies
It is impossible to determine the actual scope of the government's powers only through the analysis of constitutional texts - it is necessary to study the real activities of the government.All countries have a striking gap between the legal and actual status of government. As a General rule, in unitary States the substantive competence of the government is not determined, since the legislator proceeds from the assumption that the boundaries between the Executive, legislative and judicial authorities are quite obvious. Moreover, many constitutions give all Executive powers to the head of state, although in fact they are always exercised by the government. Some constitutions give the government a purely consultative functions, designing it as a certain Advisory body at the head of the state.
Thus, the Danish Constitution of 1953 States: "the King shall, within the limits established by this Constitution, have Supreme power over all matters of the Kingdom and shall exercise such Supreme power through Ministers." The Norwegian Constitution also gives Executive power to the king (§ 3), and the Government - the Council of State - says very little, ultimately reducing its role to giving advice to the sovereign. A number of constitutions briefly define the competence of the government. Thus, article 20 of the Constitution of the French Republic States: "the Government shall determine and implement the policy of the nation. He has the administration and the Armed forces at his disposal." However, in modern France, real state power can be concentrated in the hands of the President if the head of state and the Prime Minister belong to the party (or coalition) of the parliamentary majority. In some countries (e.g. Panama), constitutions contain articles establishing the substantive competence of the government, but the lists are purely formal.In States with a Federal form of government, the powers of the government are also, with rare exceptions (Switzerland), not defined.
The constitutions of these countries are limited to the delimitation of competence between the Union and the subjects of the Federation. The actual situation of the government in foreign countries cannot be determined with absolute certainty, since the boundaries of the exercise of power by the body, which is the main instrument of the exercise of power, are very mobile and changeable.In unitary countries, the scope of government authority is established in the exercise of power by all the highest organs of state power. In Federal States under a democratic regime, the scope of the government's powers depends not only on the actual delimitation of the functional and substantive competence of the Supreme bodies of state power, but also on the distribution of competence between the Union and the constituent entities of the Federation. The government of the Federal state in the sphere of external functions has the same powers as the government of the unitary state; in the sphere of implementation of internal functions, the scope of powers of the Federal government is narrower than that of the unitary one.In the system of higher authorities, the government is the most active and dynamic element, the least subject to legal regulation. It stands above all other Supreme organs of the state.
Without being subject to outside control, the government has the ability to determine the scope of its powers. The management of the state apparatus is one of the main functions of the government. The government not only plays a crucial role in the staffing of the entire state apparatus, but also manages its activities. The modern state apparatus, adapted for the implementation of various state functions, is not only numerically large, but also very complex in purely organizational terms. The government, being primarily a political institution, directs and coordinates the activities of the state apparatus through ministries, departments, headquarters and other agencies. In relation to the state apparatus, the government acts as a centre, which, on the basis of the information it receives, makes decisions carried out by various parts of the apparatus. The implementation of laws according to the letter of the Constitution is the most important function of the government. Such a statement is an axiom for classical state studies, strictly adhering to the principle of separation of powers. According to the traditional theory, the government is entrusted with the Executive power, i.e. it is charged with the duty to take care of the proper implementation of the laws adopted by the Parliament. However, one of the researchers of the British political system, S. Lowe, in the early XX century. He wrote: "it is Hardly an exaggeration to say that Ministers can do anything, provided that they have the confidence of the people's representatives.
As long as Ministers enjoy this trust, they may consider themselves among the most powerful and sovereign rulers on earth... While the Ministers are endowed with the highest authority, which rests on the trust of the people's representatives, the field of their political activity can be considered almost unlimited. "Control over the legislative activity of the Parliament has actually become an independent function of the government. This control is carried out in two main areas.First, the government is the main source of legislative initiative. In the presidential republics, the government's capacity in this regard is limited to a certain extent. In the United States, for example, The President, who does not have the constitutional right of legislative initiative, addresses Congress with messages containing legislative proposals developed in the Executive branch. Then a member of Congress makes a proposal in the form of a bill on his or her own behalf. Such bills are called administration bills, or initiative bills. At the suggestion of the President and his subordinate bodies and persons, up to 30% of draft laws are submitted to Congress. In parliamentary countries, the government is in fact the only subject of legislative initiative. Secondly, the government has a decisive influence on the legislative process. In the presidential republics, the government exercises this control to a lesser extent and in other forms than in parliamentary countries, but it is still quite effective. As a General rule, in presidential republics, the government uses the veto and direct contact with parliamentarians, while party factions play a much smaller role, while in parliamentary countries factions are the main means by which the government controls the legislative process.
The normative work of the government is one of the main directions of its work; governments in some countries are increasingly engaged in this activity, actively invading the exclusive competence of Parliament. The government is the author of most of the regulations in force in any state. Within the framework of the regulatory activities of the government, three main areas can be identified. The government issues various kinds of regulations on the basis and pursuant to parliamentary laws. This is the case of normative acts adopted on matters not generally within the exclusive competence of Parliament. The government acts in this group are of subordinate character.
The government issues regulations under the direct or indirect power of Parliament. The power of attorney may be expressed explicitly in a parliamentary law or it is implied if the law is formulated vaguely. In France and Italy such laws are called "laws-framework", in Anglo - Saxon countries - "skeletal legislation". The government is thus empowered to issue regulations on subjects of legal regulation that fall within the exclusive competence of Parliament. In this case, the Parliament delegates its powers directly or indirectly to the government.
The government issues regulations containing General rules of conduct on matters within the exclusive competence of Parliament, without any authorization from the latter. In a number of countries, however, these acts must subsequently be approved by Parliament. Thus, in Italy, decrees issued by the Government, if necessary and urgent, under its own responsibility, lose their force from the moment of publication, if they have not been approved by the Parliament within 60 days after their publication (part 2 and 3 of article 77 of the Constitution). The second and third standard - setting activities of the government - delegated legislation-in the modern era are the main forms of its standard-setting activities.In the UK, delegated legislation is widely disseminated and implemented by all levels of government. The subjects of this legislation are Ministers, who have the right to delegate their right to issue regulations to the heads of their subordinate institutions and agencies, and those, in turn, can transfer this right to subordinate agencies, resulting in a multi-stage sub-delegation. Local government bodies also belong to the subjects of delegated legislation.
Acts of delegated legislation in the UK far outnumber parliamentary laws. Parliamentary and judicial control over delegated legislation, legally existing in the UK, is weak in practice.In the United States, delegated legislation is implemented by both the President and heads of Executive departments and numerous Federal agencies. Decrees, orders, proclamations, military orders, directives, regulations, etc.issued in this order have the same legal force as acts of Congress. There are no limits to delegated legislation.