A rucksack of Conventions
Practically, Conventions work together as a cluster of high moral standards for senior government machinery to abide by. The first to stand out is the confidence principle. Under it, the government is expected to get its proposal through the Commons and Lords usually in the form of a Bill. In so doing, it has to watch out for rejection on its major policies, typically those related to expenditure, taxation and manifesto undertakings. If, for whatever reason, a government loses the majority legislative support, it is pushed out of office by a motion of no confidence. The follow-up two weeks are spent looking for a political party with command of the House. In its absence, a call for early general election is made – hitting the public pocket hard—position that is a recent fixture brought up by the Fixed Term Parliament Act, 2011.
The second is the confidentiality principle. It deters ministers from giving away government secrets. Both incumbent and outgoing ministers are caught by it. Strictly speaking, retired ministers are not allowed to disclose Cabinet discussions for as long as ten years since their resignation as clearly set out in Attorney General v Jonathon Cape (1976).
The third is the unanimity principle. It requires government to speak up with one voice on matters of utmost importance. It extends to taking united position on policies in the parliament and the public. Ministers are duty-bound to vote in favour of a policy going through the legislative houses. Sitting quiet is taken as a blatant breach and is treated with irresistible calls for immediate resignation, with final call by the PM. In the public gaze, they have to give supporting statements about the government proposals to bridge the democratic deficit. This enjoins them to exercise their freedom of expression to resonate with the overall philosophy of the government except in two situations: One is where difference of opinion, due to fear of internal crumbling, is authorized by the PM. An example from 2016 is David Cameron’s suspension of the cabinet consensus over referendum on the continuing membership of European Union, despite his campaign for ‘stay’. The other is when the government has not taken a policy position and has left it to the individual ministers to condemn or condone the issue.
In addition, individual ministers owe certain character and departmental duties. Taken together, they are called individual ministerial responsibility. Regarding first, financial and personal soundness is vital. As per the Ministerial Code, 2019, ministers have to register their fiscal interests in the e Register of Members’ or Peers’ Interests. They have to keep an official record of the assets owned by them and the gifts taken by them that are likely to compromise their transparency. Regards their personal conduct, they are expected to speak the truth to Parliament, even if they are asked about private matters like intimacy or pornography scandals. Dishonesty is taken seriously and often becomes a rigorous ground for resignation. On top of it, they are bound by seven principles of public life including selflessness, objectivity, accountability, leadership, honesty, integrity and openness. This aims to ensure governance by the morally fittest but is not always adhered to.
On the other hand, they are responsible for their departments. Most of them are huge with a large staff and multiple activities going on at different tiers. Keeping an eye from helm down to the grassroots is a challenge and, perhaps, unrealistic. On this view, the Crichel Down accountability, which forces a minister to resign for anything that goes wrong in his/her department, is impractical. A better view is responsibility for reckless delegation. A minister should devolve work to a diligent junior and make decisions in the light of substantial evidence. This is in line with the reasoning in Carltona Ltd v Commissioner of Works (1943) and R (on the application of Javed) v Secretary of State for the Home Department (2001). After the escape of the prisoners from the Maze Prison, a new line of reasoning has come up often pigeonholed as the Michael Howard accountability. Under it, ministers are not responsible for policy implementation. Their call of duty is confined to substantive merit of the policy. For former, they are under no imperative to resign because they can change the enforcement staff. Their only duty is to offer explanations of fault to the Parliament and take actions to rectify it so as to avoid recurrence. As regards the latter, they are personally responsible and must resign.
However, the recent Priti Patel scandal 2021 bears witness to the fact that the ultimate fate of the falling out minister lies with the Prime Minister. As documented by Sir Alex Report, Ms Patel had been found in beach of the Ministerial Code. Yet ignoring the findings, the man in the cockpit gave his verdict not to fire her as he was sure of her righteous conduct.
To conclude, one can say that conventions are the key to understanding ministerial duties in the British legal system. They are a moral blueprint for effective governance that guides top-notch politicians without judicial intervention. This makes political choices easier but gives the top head of the government unbridled power for deciding contempt of conventions.
The author teaches jurisprudence and legal theory at Pakistan College of law, Lahore. She can be
contacted at: firstname.lastname@example.org