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Conventions vs Law

Ministerial Responsibility and Conventions:

CONVENTIONS vs LAW: Key definitions:

  • Dicey: 'Rules which make up constitutional law, include two sets of principles or maxims of totally distinct character. One set of rules are 'laws' and are enforced by the courts also known as constitutional law and are undoubted laws. The other set consists of conventions, understandings or habits that regulate the conduct of members of sovereign power but are not in reality laws at all and are not enforced by the courts also known as conventions of the constitution and not in strictness laws at all'.
  • Marshall: to say that constitutional conventions determine the way in which prerogative powers of the Crown are exercised in practice is an incomprehensible picture. 
  • Sir Ivor Jennings: 'coventions provide the flesh which cloth the dry bones of the law to keep the constitution in touch with the growth of ideas.'(Intended to be able to change!!!)
  • Sir Ivor Jennings: 'new needs demand new orientation even when the law remains fixed'. This shows the inflexibility of constitutional law and the flexibility of conventions.


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Examples of conventions:

Some Constitutional Coventions examples:

Maxims of how political behaviour and conduct should be exercised in a democracy:

1. There should be a Prime Minister who chairs a cabinet of Ministers

2. Prime Minister must be member of Parliament (now House of Commons)

3. Prime Minister must resign after losing an election

4. Ministers are responsible for the acitivites of their departments

5. Ministers are collectively responsible for the decisions of the government

6. Parliament must be summoned by the Crown to meet annually


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Case law on conventions

Limited case law as conventions are not subject to the judiciary like the law is...

1. Reference Re Amendment of the Constitution of Canada 1982:

Conventions are to 'ensure that the legal framework of the Constitution will be operated in accordance with prevailing constitutional values or principles of the period'. Conventions are binding in politicals but not in law. No parental role is played by the courts in relation to conventions!

2. AG v Jonathan Cape Ltd 1976: Lord Widgery

This case concerned the release of memoirs of the affairs in cabinet before the 30/50 year period requirement by Richard Crossman. Attempts to stop the memoir being released due to the Convention of Collective Ministerial Responsibility but the courts held that unless can find a law to stop him so that the courts can intervene, Convention of Collective Ministerial Responsibility is not actionable by the courts and they cannot stop the release nor can the equitable doctrine of confidentiality be affirmed. Affirmed the status of constitutional conventions as highly persuasive rules of political practice only! Lord Widgery found that conventions are firmly understood in society but often ignored!

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3 Fold existence test of Conventions..

Jennings: 3 fold test to know if a convention exists:


1. What are the precedents?

2. Did the actors in the precedents believe they were bound by a rule

(Very criticised: focus on 'belief'... Is this a reliable way of measuring existence?

3. Is there a good reason for the rule?

Jennings: Conventions ARE flexible and can change by convention! 

i.e. a convention can change a convention

- Can also be codified i.e. Ministerial Code or Civil Service Code or legislated for (meaning they become law) i.e. Parliament Act 1911

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Buzz words associated with Conventions...

Flimsy Uncertain Balancing Act of firm conduct vs flexibility

Unstable Unenforceable Weak

Changing Ineffective Subordinate

Political Maxims Historical Rules of conduct

Political actors Control the executive   Controversial

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Structure...

Political government =  Ministers = Responsible for their department, serve for a limited time, have limited knowledge, accountable to Parliament distracted by other political interests i.e. parties, constituencies

Civil service = Civil Servants = work for ministers, administration of the state, know their department well thus experts, servants of the Crown, do not change when governments change, no political view but loyal to current government, cannot be blamed:

1. Permanence

2. Political Neutrality

3. Anonymity

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Control of the executive

TWO Conventions dealing with Parliament controlling the Executive:

1. Collective Ministerial Responsibility

(ministers jointly responsible for government decisions)

2. Individual Ministerial Responsibility

(minister is individually responsible for work of department)

  • About 100 ministers in charge of various departments (senior and juniors)
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Collective Ministerial Responsibility

1. Collective Ministerial Responsibility

    Government speaks with one voice: 'every member that does not resign is absolutely and irretrievably responsible...absolute responsibility' per Lord Salisbury 1878 in House of Lords

REASONS AND EXPECTATIONS:

    A good government is one that is : UNIFIED 

    Disagreement in cabinet will not be broadcast

    Minutes in cabinet NOT published

    Ministers may not reveal indivudal views at all

    Must resign before expressing disagreement which can only be personal anyway!

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Ignoring the convention...

1. Collective Ministerial Responsibility:

When can Ministers ignore the Convention:

  • Resign before speaking (but minutes must remain confidential)
  • Prime Minister dispensation to disagree (issues of conscience) (seen in referendum in 1975 about remaining in the EU and the PM allowed ministers to speak against governments policies).
  • Public papers already in the public domain

The Ministerial Code (July 2005) states:

'Collective Ministerial Responsibility requires Ministers to be able to express their views frankly in the expectation that they can argue freely in private whilst maintaining a united front when decisions have been reached. Thus, privacy of opinions expressed in Cabinet should be maintained'

This protects Ministers from FEARING their own opinions....

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Individual Ministerial Responsibility

2. Individual Ministerial Responsibility:

(more problematic than 1st)

- Individual focussed

- One Minister against the rest

- Clear cut convention

- 2 dimensional duty:

a. Accountability

b. Responsibility

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Accountability of Individual Ministerial Responsib

ACCOUNTABILITY:

1. Accountable to give an account of the workings of a department of state (but Ministers only have limited knowledge and civil servants know more so they assist)

2. The duty to report the activities of the department and its agencies to Parliament (with assistance of civil servants and other officials)

 3. Parliament must have opportunities to call for account to be given (on the floor of the house, in committees and in written answers to questions by Parliament)

4. Limited disclosure to Parliament allowed (ministers can decide what and how much to say but cannot lie, manipulate information by misleading by failing to reveal info or revealing only partial truths also known as spinning)

BREACH = RESIGNATION

(for failing to answer or misleading) 

BUT.... can CORRECT untruths if done by 'accident' at earliest opportunity


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Responsibility of Individual Ministerial Responsib

Responsibility:

1. To respond to criticism for departmental work (and to take action to remedy flaws in the function of the department)

FAILURE TO DO SO   =

RESIGNATION

(although this is last resort)

(Where departments fail significantly but there is a policy to decide the need to resign) 

BUT

If failure is less significant, what must ministers do? Is there any remedial action? Nothing contained in these conventions!

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Personal Conduct of Individual Ministerial Respons

Personal Conduct???

The PRIME MINISTER can fire a Minister but this is very rare!!! 

  • Ministers should only fail to provide information if not in public interest.
  • Various political scandals of MP's from sexual activities: Mark Oaten had an affair with a male prostitute, MP for Winchester, resigned as home affairs spokesman last month.He had a relationship with a 23-year-old male prostitute.He stood down from the front bench - that is the price he's paid but didn't stand down as an MP.
  • Lord Hailsham 1975: 'A politician should bow himself out of public life' (if not honest)

Two inquiries set up:

1. Nolan Committee Inquiry- established 1994 in response to concerns that conduct by politicians was unethical:Nolan Principles: Selflessness, Integrity,Openness,Honesty

2. Scott Inquiry into Arms to Iraq -  the most exhaustive and critical study of the failings of individual responsibility of ministers to Parliament.

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When do ministers actually resign?

When do they resign?

1. When ministers accept responsibility

2. PM expects responsibility

3. Parliament requires responsibility to be taken

4. Press???

Principles from Parliament governing ministerial conduct:

1. Ministers have a duty to Parliament to account and be held accountable 

2. Ministers must give accurate and truthful information and correct any errors of mislead

3. Ministers should be open

4. Ministers should require civil servants to be helpful as possible

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Current Affairs Study 1: Individual Ministerial Re

Current Affairs Study 1:

Individual Ministerial Responsibility

Individual and date: Estelle Morris, Secretary of State for Education, 2002

Facts: Pressure over A Level marking. Promised to resign if did not meet education targets but failed to do so even though targets missed and refused to resign. Commented controversially 'some schools that wouldn't touch with a bargpole'. She offered a full inquiry into the A level marking issue. Morris was accused of interfering with the inquiry as well as interfering with the overturning of the appeals of 2 school children who were suspended for sending death threats. Morris had no power or authority to overturn.

Outcome: Resigned as she said she was second best for the job in 2002 and PM accepted resignation 'with regret'. 


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Current Affairs Study 2: Individual Ministerial Re

Current Affairs Study 2:

Individual Ministerial Responsibility

Individual and date: James Prior, Secretary of State for NI, 1983

Facts: Mass escape of 38 IRA convicted prisoners for murder etc at Maze Prison. 

Outcome: Prior refused to resign as he said the break out was not caused by any policy of his or his department. Set up an inquiry called the 'Hennessy Report' which blamed prison staff and security. Many argued that the reason for the escape was political interference.

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current Affairs Study 3: Individual Ministerial Re

Current Affairs Study 3:

Individual Ministerial Responsibility

Finer 'The Individual Responsibility of Ministers': 

Only 20 ministers resigned between 1855-1955

VERY small amount suggesting resignation is very rare!

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current Affairs Study 4: Collective Ministerial Re

Current Affairs Study 4:

Collective Ministerial Responsibility

Individual and date: Clare Short, Secretary of State for International Development, 2003

Facts: Publically called Tony Blair on BBC radio 'reckless' and threatened to resign if we went to war with Iraq. 

Outcome: Tony Blair did not fire her despite Short ignoring the convention of collective ministerial responsibility to remain unified and not express views in public. She remained in cabinet to support the governments resolution in the House of Commons (i.e. back the war).

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Current Affairs Study 5: Collective Ministerial Re

Current Affairs Study 5:

Collective Ministerial Responsibility

Individual and date: David Cairns, Scotland Office Minister, 2008

Facts: Ignored the convention partly when rebel MPs began calling for a leadership contest during Gordon Browns power. Open attacks on Gordon Brown and various internal debates. Handed in his resignation letter in accordance with the collective ministerial responsibility convention.

Outcome: In his resignation letter, Cairns said he had decided to quit because it was "hardly credible" for the party to continue to deny that leadership had become an issue. Brown accepted his resignation stating that exercise of government demands collective ministerial responsibility. 

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