The
United Kingdom (UK) does not have a codified constitution – the country’s
constitutional rules are not written down in one legal document. However almost
all of the UK’s constitutional rules are written down somewhere. This state of
affairs is described to be a dispersed constitutional rulebook. The British
constitution is made up of formal, written, legal sources such as Acts of
Parliament (the Human Rights Act 1998, the House of Lords Act 1999, the
Constitutional Reform Act 2005), and uncodified, non-legal sources such as
constitutional conventions.

 

Conventions
are defined by Adam Tonkins as “Non-legal but nonetheless binding rules of
constitutional behaviour”. Sir Ivor Jennings argued that conventions “… provide
the flesh that clothes the dry bones of the law…”

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There
are several examples of constitutional conventions, which are followed by each
of the entities of the Westminster model. When considering the monarchy,
the Monarch must invite the leader in the House of Commons of the political
party with an overall majority, to form government. With regard to the legislature,
the sub judice rule Members of Parliament (MPs) are barred from raising
proceedings that are either before court or awaiting trial during debate. In
the executive, by convention ministers are collectively and individually
responsible to Parliament. In the judiciary, by convention judges should
not be politically active in the formal sense of being engaged in a political
party.

 

Accountability
is a principle, which requires public authorities to explain their actions and
be subject to scrutiny. It may also entail sanctions, such as resignation from
office or censure. Government accountability in the UK operates through the
conventions of both collective and individual ministerial responsibility.

 

The
convention of collective ministerial responsibility provides that once
the Cabinet has made a decision, all government ministers must publicly support
and defend it. If an individual minister cannot, for any reason, do so, the
convention requires them to resign. Professor Woodhouse observed that
collective ministerial responsibility “provides Parliament with the means of
holding the government as a body accountable”. This convention has three
traditional branches: confidence, confidentiality and unanimity.

 

According
to the confidence principle, a government can only remain in office for
as long as it retains the confidence of the House of Commons, which is assumed
unless and until proven otherwise by a confidence vote. Previously, the Prime
Minister would, under a constitutional convention, be obliged to ask the
monarch to exercise her prerogative power to dissolve Parliament where there
was a defeat of any substantial bill or where there was a defeat in a ‘no
confidence’ motion. However the current practice is far more relaxed as seen in
November 2005 where the government’s proposed policy to allow terrorist
suspects to be detained without charge or trial for 90 days was voted down by
the Commons – there was no suggestion made for the government to resign.

Therefore the application of the convention has been narrowed down to the
latter only as seen in 1979 when Prime Minister James Callaghan treated it as
obligatory to advice dissolution of Parliament when the government was defeated
on a confidence motion.

 

The
confidentiality principle is described in the Cabinet Office Ministerial
Code 2016. The essence of the principle is that ministers should be able to
express their views frankly in the expectation that they can argue freely in
private. Moreover, the internal process by which a decision has been made or
the level of committee by which it was taken should not be disclosed. In the
case of Attorney General v. Jonathan Cape Ltd., the Attorney General
sought to prevent the publication of the Crossman Diaries which included
Cabinet proceedings, on the grounds of a breach of convention. The convention
was recognized through this case and the Lord Chief Justice concluded that
there had to be a time limit on the obligation of confidentiality for the
enforcement of the convention. The case therefore accepted the
principle of a legal obligation of Cabinet secrecy but that application would
depend on the time period involved between Cabinet meeting/decision and its
disclosure.

 

Under the
unanimity principle, a minister who feels unable to support government
policy is expected to resign from office. It is not possible for ministers to
simultaneously to remain in office and seek to disagree or disassociate
themselves from the collective view of the government. Examples of ministerial
resignations over disagreements with collective decisions include Baroness
Warsi, who resigned from the coalition government in August 2014 because she
could no longer support government policy on the Israel-Gaza conflict, Robin
Cook resigned as Leader of the House of Commons in March 2003 in protest over
government policy on Iraq and Sir Geoffrey Howe resigned as Deputy Prime
Minister in November 1990 over government policy on the European single
currency and the general approach to the European Union (EU). This rule applies
even if the minister in question was not involved in actually making the
decision.

 

There are
however, some matters of public interest on which the government does not have
a collective view. If such a matter comes before Parliament, there is a ‘free
vote’ meaning that the whips do not seek to instruct members of the governing
party on how to vote. Recent examples are in relation to Bills on: same-sex
marriage, making it an offence to smoke in a vehicle with a child in it and
standardized tobacco packaging.

 

There are
also agreed exceptions to the unanimity principle. In some circumstances a
Prime Minister may choose to suspend the convention in relation to a particularly
controversial issue on which their government is divided. Examples include
Harold Wilson’s decision to permit ministers to campaign on both sides of the
1975 referendum on European Community membership. In 1977, James Callaghan allowed
ministers to take different views on direct elections to the European
Parliament. Moreover, the Coalition: our programme for government 2010 set
out five areas of policy where ministers were allowed to speak out against
public policy and their MPs were given permission to abstain form key votes:
transferable tax allowances for married couples, the referendum on the
alternative vote electoral system for the House of Commons, an alternative
defence system to the Trident system, student fees increases and nuclear power
policy.

 

The
importance of the unanimity principle is illustrated in Vernon Bogdanor’s
argument, which provides that it would be sensible for a government to follow
the convention in order to “… maintain a united front, so as not to weaken its
position by publicly displaying differences of opinion…”

 

 

 

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