In addition to legal rules, conventions underpin the system of government in the UK and are as important (if not more important) than legal rules. However, there are some important similarities and differences between the two. One similarity is that both have a degree of obligation (and binding) attached to them i.e. they should be followed and if they are not some form of sanctions will be imposed. However there is one important difference between legal rules and conventions. This being that although the courts do recognise the existence of conventions they cannot enforce them (unlike legal rules). The quote below illustrates this point:
‘I find overwhelming evidence that the doctrine of joint responsibility is generally understood and practiced, and equally strong evidence that it is on occasion ignored.’
In other words although conventions, in this case, joint (ministerial) responsibility do exist and are recognised it is often up to the individual person whether they follow them or not.
In addition conventions are not just mere habits. One important distinction is that conventions have an element of what ought/should happen whereas habits are merely descriptive. In addition, if you fail to ‘perform’ a habit there will be no sanctions of any kind i.e. there is no element of obligation whereas a breach of a convention will at the very least attract (serious) criticism. There are various conventions on which the government of the UK is based and some conventions are more complex than others.
As the UK does not have a ‘written’ constitution, conventions (along with legal rules and other sources of constitution) take on an even greater significance. This is because in the absence of any ‘hard and fast’ rules on how the UK should be governed they act as the ‘next best thing’.
One such convention is the convention of Ministerial Responsibility. There are two types of Ministerial Responsibility – collective and individual – for the purposes of this essay Individual Ministerial Responsibility will be looked at in depth. The convention of Ministerial Responsibility is central to the government as it re-enforces that ministers are expected to have ‘honesty and incorruptibility’ and the fact that ministers in addition to the government are also accountable to the general public.
The convention of Individual Ministerial Responsibility is a very important (if complex) one. This is down to the fact that there are various factors which govern this convention, such as media involvement, the Prime Minister and the ministers’ constituency. Individual Ministerial Responsibility basically means that a minister is accountable (to Parliament) not only for his/her personal conduct but also for the conduct of their department and any civil servants under their ‘control’. A more precise definition was provided by Lord Morrison:
‘…a minister is accountable to Parliament for anything he or his department does or for anything he has the power to do, whether he does it or not. That is to say, if the action or possible action is within the field of ministerial power or competence, the minister is answerable Parliament.’
Therefore, as suggested a minister is not just responsible for his/her personal conduct but also for their department. For example as stated by Geoffrey Marshall:
‘there is a consensus that a minister cannot be expected to resign where mistakes are made by civil servants that he could have avoided by exercising reasonable care in his own role.’
Remedies for a departmental error would probably be an apology for the failings in department procedure and a promise that they will be corrected.
On the other hand, a breach of the convention which directly involves the minister i.e. nothing to do with the actions of his department, can be far more serious as it could lead to the resignation of the minister (in certain circumstances).
Regarding the actions of a minister, there are three main reasons, which may constitute a breach of the convention. The first reason is financial. Ministers should not be seen to be accepting money from outside sources and/or in return for ‘favours’. Examples of where this has caused a minister to resign are Michael Mates in 1993. The second reason is sexual. In other words if it comes to light that a minister has been having an (extra-martial) affair then this may cause his ‘downfall’, as was the case in 1992 with David Mellor. The third and final reason is political. This can relate to a number of issues ranging from issues of competence, in the case of Lord Carrington (1982), who resigned of his own free will, due to errors by the Foreign Office over the Falklands, to errors of judgement most famously, Edwina Curry (1988), who was forced to resign because of a ‘careless’ comment about 90% of eggs containing salmonella.
If the minister is found to have breached the convention there are a number of things that could happen. One the minister may admit he has made a mistake and (if he has the confidence of the Prime Minister) may continue to do his job. However, as is often the case, the minister will resign. Ultimately whether a minister stays or goes depends on the Prime Minister but other influences such as the media and the ministers’ constituency do play some part in the decision.
In recent years, however, there has been greater call for ministers to be held responsible for their actions. The Scott Inquiry and the Nolan Committee both strengthened the grounds on which ministers could be held responsible. The Nolan Committee resulted in the appointment of a Commissioner for Standards which resulted in a tightening of parliamentary scrutiny and control over Ministerial Conduct.
Another aspect of conventions (particularly this one) is whether they limit State power. On the one hand, this convention makes ministers accountable to Parliament and to the general public who hold the ‘real’ power i.e. they decide who is in government. Also, it makes may make ministers ‘think before they act’ as this convention provides boundaries (if slightly blurred) as to what the State deems acceptable behaviour although these boundaries can be overcome if you have the support of the Prime Minister. However, on the other hand, only the Prime Minister can appoint and dismiss ministers, not the Queen who is the Head of (the) State, so this limits the power of the State quite considerable.
In conclusion, there are two sides of the argument as to whether the convention of Individual Ministerial Responsibility but also (conventions in general) do act to limit State power. Ultimately, though it is not important that conventions limit State power what is far more important is that conventions ‘work’ (which they do) and do not undermine already established (legal) rules. In addition, conventions fill the ‘political lacuna’ left by the fact that the UK does not have a formal written constitution.
Bibliography
Textbooks
Journal Articles
G. Marshall – ‘Ministerial Responsibility, The Home Office and Mr Baker’ (1992) PL 7
R. Brazier – ‘It is a Constitutional Issue: Fitness for Ministerial Office in the 1990’s’ (1994) PL 431
Websites
Cases
Attorney-General vs. Johnathan Cape (1976) QB 752
Additional Sources
Public Law Module Handbook
Lecture Notes
Jennings, [1959a, pp81-82]
Attorney-General v Jonathan Cape (1976) QB 752 (Judgement of Lords Widsbury)
Jennings [1959a, Chapter 5, p106]
Lord Morrison, 1964, p265
(1992) PL 7 G.Marshall ‘Ministerial Responsibility and Mr Baker’
