TheUnited Kingdom (UK) does not have a codified constitution – the country’sconstitutional rules are not written down in one legal document. However almostall of the UK’s constitutional rules are written down somewhere. This state ofaffairs is described to be a dispersed constitutional rulebook. The Britishconstitution is made up of formal, written, legal sources such as Acts ofParliament (the Human Rights Act 1998, the House of Lords Act 1999, theConstitutional Reform Act 2005), and uncodified, non-legal sources such asconstitutional conventions. Conventionsare defined by Adam Tonkins as “Non-legal but nonetheless binding rules ofconstitutional behaviour”. Sir Ivor Jennings argued that conventions “… providethe flesh that clothes the dry bones of the law…” Thereare several examples of constitutional conventions, which are followed by eachof the entities of the Westminster model. When considering the monarchy,the Monarch must invite the leader in the House of Commons of the politicalparty with an overall majority, to form government.
With regard to the legislature,the sub judice rule Members of Parliament (MPs) are barred from raisingproceedings that are either before court or awaiting trial during debate. Inthe executive, by convention ministers are collectively and individuallyresponsible to Parliament. In the judiciary, by convention judges shouldnot be politically active in the formal sense of being engaged in a politicalparty. Accountabilityis a principle, which requires public authorities to explain their actions andbe subject to scrutiny. It may also entail sanctions, such as resignation fromoffice or censure. Government accountability in the UK operates through theconventions of both collective and individual ministerial responsibility.
Theconvention of collective ministerial responsibility provides that oncethe Cabinet has made a decision, all government ministers must publicly supportand defend it. If an individual minister cannot, for any reason, do so, theconvention requires them to resign. Professor Woodhouse observed thatcollective ministerial responsibility “provides Parliament with the means ofholding the government as a body accountable”. This convention has threetraditional branches: confidence, confidentiality and unanimity. Accordingto the confidence principle, a government can only remain in office foras long as it retains the confidence of the House of Commons, which is assumedunless and until proven otherwise by a confidence vote.
Previously, the PrimeMinister would, under a constitutional convention, be obliged to ask themonarch to exercise her prerogative power to dissolve Parliament where therewas a defeat of any substantial bill or where there was a defeat in a ‘noconfidence’ motion. However the current practice is far more relaxed as seen inNovember 2005 where the government’s proposed policy to allow terroristsuspects to be detained without charge or trial for 90 days was voted down bythe Commons – there was no suggestion made for the government to resign.Therefore the application of the convention has been narrowed down to thelatter only as seen in 1979 when Prime Minister James Callaghan treated it asobligatory to advice dissolution of Parliament when the government was defeatedon a confidence motion. Theconfidentiality principle is described in the Cabinet Office MinisterialCode 2016. The essence of the principle is that ministers should be able toexpress their views frankly in the expectation that they can argue freely inprivate.
Moreover, the internal process by which a decision has been made orthe level of committee by which it was taken should not be disclosed. In thecase of Attorney General v. Jonathan Cape Ltd., the Attorney Generalsought to prevent the publication of the Crossman Diaries which includedCabinet proceedings, on the grounds of a breach of convention. The conventionwas recognized through this case and the Lord Chief Justice concluded thatthere had to be a time limit on the obligation of confidentiality for theenforcement of the convention.
The case therefore accepted theprinciple of a legal obligation of Cabinet secrecy but that application woulddepend on the time period involved between Cabinet meeting/decision and itsdisclosure. Under theunanimity principle, a minister who feels unable to support governmentpolicy is expected to resign from office. It is not possible for ministers tosimultaneously to remain in office and seek to disagree or disassociatethemselves from the collective view of the government.
Examples of ministerialresignations over disagreements with collective decisions include BaronessWarsi, who resigned from the coalition government in August 2014 because shecould no longer support government policy on the Israel-Gaza conflict, RobinCook resigned as Leader of the House of Commons in March 2003 in protest overgovernment policy on Iraq and Sir Geoffrey Howe resigned as Deputy PrimeMinister in November 1990 over government policy on the European singlecurrency and the general approach to the European Union (EU). This rule applieseven if the minister in question was not involved in actually making thedecision. There arehowever, some matters of public interest on which the government does not havea collective view.
If such a matter comes before Parliament, there is a ‘freevote’ meaning that the whips do not seek to instruct members of the governingparty on how to vote. Recent examples are in relation to Bills on: same-sexmarriage, making it an offence to smoke in a vehicle with a child in it andstandardized tobacco packaging. There arealso agreed exceptions to the unanimity principle. In some circumstances aPrime Minister may choose to suspend the convention in relation to a particularlycontroversial issue on which their government is divided. Examples includeHarold Wilson’s decision to permit ministers to campaign on both sides of the1975 referendum on European Community membership. In 1977, James Callaghan allowedministers to take different views on direct elections to the EuropeanParliament. Moreover, the Coalition: our programme for government 2010 setout five areas of policy where ministers were allowed to speak out againstpublic policy and their MPs were given permission to abstain form key votes:transferable tax allowances for married couples, the referendum on thealternative vote electoral system for the House of Commons, an alternativedefence system to the Trident system, student fees increases and nuclear powerpolicy.
Theimportance of the unanimity principle is illustrated in Vernon Bogdanor’sargument, which provides that it would be sensible for a government to followthe convention in order to “… maintain a united front, so as not to weaken itsposition by publicly displaying differences of opinion…”