Introduction
A constitution is a set of rules, generally in written form, which identify and regulate the
major institutions of the state and govern the relationship between the state and the
individual citizen. In most countries the written constitution is the ultimate source of legal
authority; all actions of government and the law-making body (the legislature) must conform
to the constitution. In order to uphold and interpret the constitution there will be a
Supreme Court. As the constitution is the ultimate authority, any action which contravenes
the rules of the constitution will be both unconstitutional and unlawful. Written constitutions
also contain procedural rules for the amendment of the constitution.
Constitutions, whether written or unwritten, will share common features. They will identify
the principal institutions of the state – the executive, the legislature and the judiciary. In relation
to each of these, the constitution will specify their functions and powers. In addition
the constitution will identify the rights and freedoms of citizens, through a Bill of Rights
which operates both to protect citizens and to restrict the power of the state.
In this chapter we consider the characteristics of the British constitution, and make brief
comparisons with other constitutional arrangements.
Learning outcomes: what
are these for?
2.1 Constitutional forms
Essential reading: read these pages now
Barnett, Chapter 1: ‘Introduction: the scope of constitutional law’, pp.7–15.
2.1.1 Written and unwritten constitutions
Constitutions may be ‘written’ or ‘unwritten’, and unlike the majority of states, the British
constitution is largely unwritten and uncodified. Allied to their written or unwritten character,
constitutions may also be classified as rigid or flexible. A rigid constitution is one in
which amendment is very difficult, requiring special procedures to be employed before any
changes can be made. By contrast, the British constitution is essentially flexible. Parliament
– the supreme law-making body within the United Kingdom – may theoretically alter the
constitution at will, although in practical terms this can only be done with the support of
the people. Where constitutions were devised by their founders as a complete statement
of arrangements for the future, it will generally be difficult to amend them. For example, in
the USA, the constitution of 1787 requires that for any amendment, the proposal must have
been made by a two-thirds majority vote in both houses of Congress (the Senate and the
House of Representatives) and also approved by a three-quarters majority of all the State
legislatures. For this reason it is particularly difficult to amend a written constitution: it is
‘rigid’, rather than ‘flexible’ in nature.
2.1.2 Republican and monarchical
Constitutions may be classified according to whether they are republican or monarchical.
In republics, such as the USA, there will normally be a Head of State (usually designated a
President) who is directly elected by the people. In Britain by contrast, the monarchy remains,
with the Queen as Head of State and holding widespread formal powers (under the
royal prerogative – see Chapter 6). In practice these powers are conventionally exercised by
the elected government of the day which is headed by the Prime Minister.
2.1.3 Unitary and federal
Constitutions may also be unitary or federal. Under a written constitution, the constitution
will define which powers are exercisable by the central federal government, and which
powers are exercisable by the constituent parts of the federation – usually known as states.
In a federal state power is diffused rather than concentrated in any one body. The constitution
has overriding force and any conflicts between the federal government and state
governments will be determined according to the constitution. For centuries, Britain has
been a unitary state, with one Parliament having ultimate law-making power over all the
constituent nations – England, Northern Ireland, Scotland and Wales. Where powers are devolved,
to local government and now to the assemblies of Northern Ireland, Scotland and
Wales, these powers remain subject to the United Kingdom Parliament’s ultimate control.
2.1.4 Supreme and subordinate
A further classification explains whether a particular constitution is supreme or subordinate.
A supreme constitution is not subject to any external superior force. A subordinate
constitution is one where – as with former British colonies – the constitution is drafted and
introduced in a country by an external sovereign power, and theoretically may be amended
or repealed by that external power. In relation to this aspect of constitutions, much debate
continues concerning the status of the British constitution following membership of
the European Community (and now the European Union). The key question is: where does
sovereignty lie? From the standpoint of the European Court of Justice of the Community,
the treaties that establish and define the Community and Union are supreme, and
sovereign. Thus the sovereignty of all EU member states is limited by membership. From
the standpoint of the British judges, however, the sovereignty of the British Parliament
remains intact: we voluntarily accept Union law because an ordinary Act of Parliament – the
European Communities Act 1972 – provides for its reception and enforcement within the
domestic courts of law.
Finally, a constitution may be classified according to whether the powers and functions of
the principal institutions of the state – the executive, legislature and judiciary – are separated
or not. Under the United States’ constitution for example:
Article 1 of the Constitution vests executive power in the President
Article 2 vests legislative power in the Congress and Article 3 vests supreme judicial power
in the Supreme Court
the President is elected separately from Congress and may not be a member of Congress
the President may veto legislation passed by Congress, but his or her veto may be overridden
by a two-thirds vote in the Senate
the President appoints Supreme Court judges
the Supreme Court has the power to declare acts of the President, Acts of Congress or of
state legislatures unconstitutional and therefore unlawful.
As will be seen more fully in Chapter 4, in the United Kingdom there is no such clear separation
of powers.
2.2 The unwritten nature of the British constitution
Only three countries today have constitutions which are not entirely written
– Britain, Israel and New Zealand.
Britain’s largely unwritten constitution is the product of history. Most countries
have experienced an event which marked a clear break with history and provided
the opportunity to codify their constitutional arrangements. Britain is exceptional
in this respect, and the constitution is the result of gradual evolution rather than
any conscious effort to design a complete system of constitution and government.
The British constitution – while by no means totally unwritten (see Chapter
3 on ‘sources’) – has never been defined through a basic constitutional document.
Nevertheless, it is clear that Britain has a constitution which identifies rules and
procedures relating to the principal institutions of the state. There are numerous
rules which we can identify as ‘constitutional’, although there are areas of law
about whose status we may be uncertain. It is a first principle of the constitution
that Parliament is supreme in its law-making power, and that accordingly there
can be no limit as to the matters on which Parliament may legislate. We can also
be clear that Acts of Parliament which:
define the membership of Parliament (e.g. the House of Commons
(Disqualification) Act 1975)
provide for national representative assemblies (see the Northern Ireland Act 1998,
Scotland Act 1998, Government of Wales Act 1998)
enable the reception of European Community law into domestic law (see the European
Communities Act 1972)
protect civil and political rights (e.g. the HRA 1998)
are constitutional statutes. In theory, however, none of these has a formal constitutional
status: they can be amended at Parliament’s will without any special procedure. In 1885,
A.V. Dicey described a flexible constitution as:
one under which every law of every description can legally be changed with the same ease
and in the same manner by one and the same body. (Dicey, 1885)
In practice, as opposed to legal theory, it would be difficult for Parliament to amend or
repeal such statutes without the clear consent of the people. Beyond the core of statutes
which we commonly regard as constitutional, there are areas of doubt. For example, we
may commonly regard the right of a worker to withdraw his or her labour as a basic constitutional
right: but does this mean that statutes which regulate employment matters are
constitutional in nature?
Summary
Constitutions – written or unwritten – identify and regulate the major institutions of
the state and govern the relationship between the state and the individual citizen. Only
three countries have constitutions which are not formally written (Britain, Israel and New
Zealand). The ‘unwritten’ British constitution displays the following characteristics: it is
monarchical, largely unitary and has a supreme Parliament.
2.3 The evolution of the British constitution
Essential reading: read this chapter now
Barnett, Chapter 3: ‘The evolution of the structure of the United Kingdom’.
Supplementary reading: Public law study pack
Barnett, ‘The UK constitution – a very brief history’ in the Public law study pack.
A basic knowledge of constitutional history helps to explain the constitution as it exists
today (see Maitland (1908) and Lockyer (1985)). Of particular importance are the Tudor and
Stuart periods (particularly from 1530 to 1700). In the reign of King Henry VIII (1509–1547),
the King broke the allegiance of the country to Roman Catholicism and established the
Church of England, under his sovereign authority. That action was to have lasting consequences
which involved conflict between the Crown and the House of Commons and ultimately
resulted in Civil War breaking out in 1642. That conflict ended with the execution of
Charles I in 1649 and the abolition of the monarchy, the House of Lords and the established
Church of England.
A period of republican rule began, headed by Oliver Cromwell and maintained by military
rule. By the time of Cromwell’s death in 1659 the people had grown weary of the military
and of the suppression of pleasures resulting from Cromwell’s Puritan ethic. In 1660 the
monarchy was restored under Charles II, as was the House of Lords and the Church. The
original conflict between King Charles I and Parliament was caused by the King’s abuse
of the royal prerogative and fuelled by the suspicion that Charles was secretly a Roman
Catholic. Such suspicions lingered, to come to the foreground when James II (who was
openly a Catholic) succeeded to the throne in 1685. The fear that James might be succeeded
by a Catholic heir who would restore the links with Rome caused parliamentarians
to invite William and Mary of Orange to overthrow James. With knowledge of William’s
imminent arrival, James II fled the country.
William and Mary ruled jointly, but the power of the monarch was curtailed. The price for their
Crown was the Bill of Rights settlement of 1689 which finally established the supremacy of
Parliament over the Crown. The Act of Settlement 1700 clarified the supremacy of the Church
of England, prohibiting any future monarch from being an adherent of Catholicism. The Act
of Settlement also guaranteed the independence of the judiciary by providing that only an
address to the Crown by both Houses of Parliament could remove a senior judge from office.
In 1706 centuries of conflict between England and Scotland ended with the Acts of Union
1706 and 1707 which united the two countries under a single Parliament of Great Britain.
Union with Ireland took place under the Act of Union 1800, to be ended finally in 1921, with
the independence of the Republic of Ireland (Eire) and the partition of Ireland with the six
northern counties remaining united with Britain as the province of Northern Ireland.
From the reign of Elizabeth I (1558–1603) England steadily expanded its empire to the point
where, by the nineteenth century, the British monarch was Head of State in countries spanning
the globe. Although the American colonies were lost at the end of the eighteenth century,
it was in the second half of the twentieth century that the empire was finally lost. Two
world wars, in 1914–1918 and 1939–1945, ended British supremacy in the international arena
forever. Nation after nation, previously part of the empire, established their independence.
Many, however, remained members of the Commonwealth of Nations – the head of which
is the Queen – which represents the formal ties between Britain and her former empire but
is now based on equality among peoples and nations.
The twentieth century also saw the emergence of co-operation among continental
European countries, originating with the Council of Europe in 1949 under whose auspices
the European Convention on Human Rights was drafted and implemented. The predecessor
to the European Union came into being with the establishment of the three original
European Communities: the European Coal and Steel Community in 1951, the European
Atomic Energy Community in 1957, and the European Economic Community in 1957. Britain
stood aside, only to join the European Community as it is now known, with effect from
1 January 1973. 1992 saw the birth of the European Union, which expanded the original
objectives of the Communities into such areas as a common currency, common policies on
defence and security, and co-operation in police and judicial matters relating to crime.
2.4 Constitutional reform
The election in 1997 of the first Labour government for nearly 20 years ushered in a period
of unprecedented constitutional reform. As we shall see in more detail in subsequent chapters,
devolution to national assemblies has taken place. The Northern Ireland Act 1998 reestablished
the Northern Ireland Assembly; the Scotland Act 1998 established the Scottish
Parliament, and the Government of Wales Act 1998 established the Welsh Assembly.
Reform of the House of Lords was also promised. The House of Lords Act 1999 removes
the right of most hereditary peers to sit and vote and a second stage of reform is planned,
although its final form remains unknown at the time of writing. The Human Rights Act 1998
has finally made the civil and political rights guaranteed by the European Convention on
Human Rights enforceable in the domestic courts. Since the 1960s these rights could be
protected, but only by making an application to the Court of Human Rights in Strasbourg,
a slow process in which it could take up to five years to reach a decision. These rights can
now be used against all public bodies in all tribunals and courts.
The government has also introduced reforms relating to political parties and elections. The
Political Parties Elections and Referendums Act 2000 provides for the registration of political
parties, states who may and may not make donations to political parties, and provides
for a register of donations to be maintained. An Electoral Commission has been established
to keep the electoral process under review.
The office of Lord Chancellor – which used to span all three major institutions of the state
(the executive, legislature and judiciary) – has been reformed. Whereas previously the
Lord Chancellor was always a member of the House of Lords, the Constitutional Reform Act
2005 provides that the office of Lord Chancellor can be filled by a member of either House
of Parliament and need no longer be a lawyer. His former position as head of the judiciary
has been reformed and the Lord Chief Justice now fulfils that function. The Lord Chancellor
formerly filled the role of Speaker of the House of Lords. The Constitutional Reform Act
2005 now provides that the House of Lords will in future elect its Speaker from one of its
members. The Act also provides for the establishment of a Supreme Court to take over the
role of the highest domestic court. Formerly the Judicial Committee of the House of Lords,
which hears appeals from both civil and criminal courts, was located in Parliament and the
Lords of Appeal in Ordinary were also members of that House and could participate in the
work of the House, including the scrutiny of legislation.
In July 2007 the Secretary of State for Justice and Lord Chancellor presented to Parliament
the government’s latest proposals for constitutional reform. In The Governance of Britain †
the government proposes the following:
to surrender or limit it prerogative powers to:
deploy troops abroad
request the dissolution of Parliament
request the recall of Parliament
ratify international treaties without decision by Parliament
determine the rules governing entitlement to passports
determine the rules for the granting of pardons
restrict parliamentary oversight of the intelligence services
choose bishops
have a say in the appointment of judges
direct prosecutors in individual criminal cases
establish the rules governing the Civil Service.
The government will also:
work to increase parliamentary scrutiny of some public appointments
review the role of the Attorney General
develop further reforms for the House of Lords.
Public law 3 Sources of the Constitution
3.1 Acts of Parliament
An Act of Parliament is the highest form of law within the United Kingdom. Over the centuries
there have been many Acts of Parliament which have been of fundamental constitutional
importance. These include:
Magna Carta 1215† which aimed to protect citizens against arbitrary power and guaranteed
the right to a fair trial and trial by jury.
The Petition of Right 1628 which prohibited the raising of taxes without Parliament’s
consent.
The Bill of Rights 1689 which set the terms on which William and Mary came to the throne.
It prohibited the Crown from raising taxes without Parliament’s consent, or from executing
or dispensing with law without Parliament’s consent, and prohibited the raising and keeping
of an army in peace time without Parliament’s consent. It also provided for freedom of
speech in Parliament (see Chapter 12).
The Act of Settlement 1700 provided that succession to the Crown was limited to
adherents of the Protestant faith and excluded Roman Catholics or those married to
Roman Catholics. It also provided for security of tenure for senior judges, who can only be
dismissed on an Address by both Houses of Parliament to the Crown.
The Acts of Union 1706 and 1707 which united England and Scotland under a single
Parliament.
The Parliament Acts 1911 and 1949 which formalised the supremacy of the elected House of
Commons over the unelected House of Lords.
The European Communities Act 1972 which provided for the reception and enforcement of
Community law in the United Kingdom.
The Representation of the People Act 1983, as amended, which regulates election matters.
Local Government Acts which define the functions, scope and powers of local authorities.
The Northern Ireland Act 1998, Scotland Act 1998 and Government of Wales Act 1998
which devolved power to national assemblies. See also the Greater London Authority Act
1998, which establishes a London-wide form of devolved government.
The Human Rights Act 1998 which incorporates most of the rights and freedoms guaranteed
under the European Convention on Human Rights into domestic law.
National security and Terrorism Acts, Police Acts, Public Order Acts and other Acts which
regulate state power and define the scope of civil liberties.
The Constitutional Reform Act 2005 which reforms the office of Lord Chancellor and provides
for the establishment of a Supreme Court separate from Parliament.
We could also include – depending on our definition of what is a ‘constitutional Act’ – Acts
which regulate the right to trial by jury, provide for judicial review of actions of public authorities,
and regulate the court system. Further, we could include Acts such as the British
Nationality Act 1981 and the Immigration and Asylum Acts, which regulate citizenship and
the right to enter and remain in the United Kingdom.
3.2 Common law
The decisions of judges through the interpretation of statutes or through development
of the common law are a source of constitutional law where they affect the powers of the
state, the relationship between institutions of the state and the protection of citizens’
rights and freedoms. Of particular relevance are:
those cases that uphold the sovereignty of Parliament (see Chapter 7)
cases that define the scope of the royal prerogative (see Chapter 6)
cases that rule on the legality of actions of public bodies
through judicial review (see Chapter 18)
cases that define civil liberties (see Chapter 16)
decisions made under the Human Rights Act 1998 (see Chapter 15)
3.2.1 The law and custom of Parliament
Parliament as a sovereign body claims for itself certain rights and immunities which are not
only enjoyed by the Houses of Parliament collectively but also confer rights and immunities
on individual Members of Parliament. These are the privileges of Parliament, which are
discussed in Chapter 12. Parliamentary privilege is a unique form of common law, peculiar
to Parliament and enforced by Parliament. If an issue of parliamentary privilege is raised
before a court of law, the judges can determine whether the matter is one of parliamentary
privilege but will decline jurisdiction to rule upon the merit of a claim. This is an illustration
of the separation of powers, with the judges declining to regulate a matter which is
regarded as falling within Parliament’s domain.
3.2.2 The royal prerogative
The royal prerogative is the collection of rights and immunities which belong to the Crown.
They represent the residue of common law powers enjoyed by the Crown before the
settlement of 1689. No new prerogatives may be created, but a prerogative power may be
reinterpreted by the courts to give it a contemporary meaning. As will be seen in Chapter 6,
the royal prerogative covers a range of disparate matters relating to domestic and foreign
affairs. For example, the Prime Minister and other ministers are appointed under the prerogative
and Parliament is summoned and prorogued (suspended) under the prerogative.
In relation to foreign affairs, declarations of war and peace fall under the prerogative, as
does control of the armed forces in overseas operations. International treaties are signed
under the prerogative.
The prerogative has the status of common law and is recognised as a source of legal power
by judges. As with parliamentary privileges, the judges have jurisdiction to rule on the
existence and scope of a prerogative power. As we shall see, however, the judges exercise
self-restraint in relation to the prerogative, which covers many areas of high policy that the
courts regard as more appropriately regulated by the executive in the name of the Crown.
Note that the government is proposing to surrender or limit some of its prerogative powers
under its 2007 constitutional reform proposals (see page 28 of this guide).
3.3 European sources
There are two principal forms of European law which are sources of the constitution. It is
important to understand that these are separate and distinct forms of law with differing
origins and aims and having separate institutions and personnel.
3.3.1 The European Convention on Human Rights
The European Convention was drafted by the Council of Europe after the Second World War
in order to provide European-wide protection of citizens’ civil and political rights against
encroachment by state authorities. The Convention is discussed in detail in Chapter 15. For
present purposes there are several main points to emphasise. The first is that the Court of
Human Rights in Strasbourg (France) has the ultimate jurisdiction to rule on the meaning
and scope of rights. States that have become signatories to the Convention undertake
to respect and abide by the decisions of the Court. Accordingly, where there has been a
violation of a Convention right, the victim sues his or her own government and, if successful,
the government must propose and Parliament pass legislation which remedies the
offending law. Where rights have been violated through policies rather than law, there is a
corresponding obligation to amend the practice.
The Human Rights Act 1998 now enables most Convention rights to be enforced within the
domestic legal system rather than in Strasbourg. The Act requires that domestic courts
take into consideration the case law and opinions of the Court of Human Rights in giving
judgment.
3.3.2 The law of the European Community and Union
Like the Convention on Human Rights, the original three European Communities – now
known as the Community and a part of the wider European Union – were products of World
War II. They were designed in this case to impose supra-national controls over the raw
materials of war and to provide for a common market for the free movement of goods,
services, capital and workers. It was to be 1973 before Britain became a member of the
Community. Membership requires that states comply with the whole body of Community
law as comprised in the Treaties and as defined by the Court of Justice, which sits in
Luxembourg. Accordingly, Parliament may not pass laws which violate Community law, and
must amend the law in line with the requirements of the Court of Justice’s interpretation of
the law. On the question of sovereignty see Chapters 2, 7 and 14.
page 36 University of London External Programme
3.4 Non-legal sources
3.4.1 Constitutional conventions
Essential reading: read these pages again now
Barnett, Chapter 2: ‘Sources of the constitution’, pp.25–38.
Supplementary reading: Public law study pack
Marshall, G. ‘The theory of convention since Dicey’.
Constitutional conventions represent one of the most intriguing sources of the constitution.
They are defined as being:
…rules of constitutional behaviour which are considered to be binding by and upon those
who operate the constitution but which are not enforced by the law courts…nor by the
presiding officers in the Houses of Parliament. (Marshall and Moodie (1971), pp.23–24)
An earlier definition by the nineteenth-century constitutional authority A.V. Dicey† described
conventions as being:
…conventions, understandings, habits or practices which, though they may regulate
the…conduct of the several members of the sovereign power…are not in reality laws at all
since they are not enforced by the courts. (Dicey, 1885)
It is crucial to note that conventions are non-legal (and
therefore cannot be enforced by courts of law), that they are
binding (in that they impose obligations), and that they
regulate the conduct of all actors on the constitutional stage
– the Crown, Parliament, the executive and the judiciary. To
breach a constitutional convention is to act unconstitutionally
but not unlawfully, since these are non-legal rules. The
paradox of conventions is that some are – despite their nonlegal
nature – more important than laws. Equally, an
understanding of the legal or constitutional rules can only be
complete when the operation of conventions is taken into
account. Constitutional conventions underpin the idea of
responsible government and the rule of law.
3.4.2 Conventions illustrated
You will discover a number of different conventions throughout the course of your study.
The following are just a few examples:
In law By convention
the Crown can appoint whomsoever the
monarch wishes as Prime Minister
the Crown appoints the leader of the political
party that wins the most seats in a general election
as Prime Minister
the Crown can dissolve Parliament at will Parliament will be dissolved at the request of
the Prime Minister
the rules regulating Cabinet collective responsibility
are conventions
the rules regulating ministers and their individual
responsibility are a matter of convention
the Crown can refuse to grant the Royal
Assent, which represents the final stage before
an Act of Parliament comes into being
the Royal Assent will never be refused when a
Bill has passed the Commons and Lords
judges must not play an active part in party
politics
Members of Parliament must not criticise decisions
of the judges
the government must resign if it loses the
confidence of the House of Commons.
3.4.3 The differences between conventions and rules of law
Conventions and laws differ in several respects. Firstly, the origins of a law will be found
either in an Act of Parliament or in a judicial decision. A convention, by comparison, comes
into being at an undefined point in time at which a mere practice has hardened into an
obligatory rule, breach of which attracts criticism. Secondly, while there is a vagueness
in areas of law, there is what Professor H.L.A. Hart called a ‘core of certainty’ about legal
rules. This feature is absent from many, but not all, conventions. You can compare the
certainty surrounding the granting of the Royal Assent with the convention of ministerial
responsibility – which is lacking in certainty – to understand this point. Thirdly, a change in
a rule of law will be identifiable from statute or from judicial decisions. Again this is not so
with conventions: they may be reinterpreted to meet a changed situation without there
being any formality surrounding the change. Fourthly, to break a rule of law attracts a legal
sanction. To breach a constitutional convention, by contrast, attracts no legal sanction but
instead risks political repercussions. Finally, a serious breach of a convention may lead to
its destruction or at least redefinition. The breaking of a rule of law, however, has no such
effect on the law’s validity or general effectiveness.
Activities 3.1–3.2
3.1 Between 1909 and 1910 the House of Lords, in breach of convention, refused to agree to
the government’s budget. Parliament then passed the Parliament Act 1911 which laid down
strict rules for the scrutiny of financial legislation by the House of Lords.
Had the House of Lords acted unlawfully in refusing to agree to the budget? Did the House
of Lords ‘break’ the convention, or merely introduce an exception to it?
3.2 In 1975 during debates on Britain’s continued membership of the European
Community, the Prime Minister waived the convention of collective ministerial responsibility
(see section 3.5.1) and permitted free debate. Following the decision to remain in
Europe, the convention was restored.
Was there any unlawful or unconstitutional conduct on the part of the Prime Minister?
Was the convention of collective responsibility ‘broken’ or was an exception to it
introduced?
Summary
The British constitution is made up of a number of formal written legal sources – Acts of
Parliament and case law – and uncodified non-legal constitutional conventions. While conventions
are not law, they are in many respects as important as law because they explain
the manner in which the constitution actually operates.
page 38 University of London External Programme
3.5 Ministerial responsibility
Essential reading: read these pages now
Barnett, Chapter 11: ‘Responsible government’ pp.281–299.†
Ministerial responsibility is designed to ensure that government acts in accordance with
the principles of the constitution and is fully accountable to the electorate through
Parliament. You need to study both of these aspects of ministerial responsibility.
3.5.1 Collective ministerial responsibility
In order that the government is seen to be united and strong, collective ministerial responsibility
requires all ministers to support a policy once it has been adopted by the Cabinet
(the inner core of government: see Chapter 8). If a government fails to maintain the support
of Parliament, the opposition parties may call for a ‘Vote of No Confidence’ in government
policy and if that vote is lost, by convention the government must resign. There are
two aspects to the convention. The first is that all Cabinet discussions are, and must remain,
absolutely confidential. The second rule is that once the decision is taken, every minister
– even if he or she dissents or was not even party to the decision – must outwardly support
that decision. The convention extends to Parliamentary Private Secretaries, the lowest rung
on the ministerial ladder. Any expression of dissent calls for resignation or dismissal.
Holding ministers to a common position is not always easy. In times of disagreement over
key issues it has been the practice, though it is rare, to waive or lift the convention to allow
free debate. This occurred twice in the last century, once over the state of the economy in
the 1930s and once in the 1970s over membership of the European Community. On both
occasions, once there had been full public debate and a consensus formed, the convention
was restored.
3.5.2 Individual ministerial responsibility
As with collective responsibility, there are two aspects to this concept. The first is that a
minister is expected to conduct himself or herself in an appropriate manner. Any financial
or sexual misconduct may lead to demands for resignation. You should be able to cite examples
of where such conduct has led to resignations. The second aspect is that a minister
is accountable to Parliament for the management of his or her government department.
It used to be the case that any serious failures in policy or administration would result in a
minister’s resignation. You should consider the case of Crichel Down in 1954 as an illustration
of this (see Barnett, p.286). However, the position is nowadays by no means clear-cut.
The main reason for this is that a distinction has been developed between responsibility
for policy failures and responsibility for operational matters, with ministers refusing to take
the blame for administrative failures. Accordingly, the idea of ministerial responsibility has
become divorced from the sanction of resignation for departmental failures and it is more
accurate to speak of ministerial ‘accountability’ rather than ‘responsibility’, other than
where a minister is personally at fault.
3.5.3 Authoritative works
In addition to the above sources of the constitution, the writings of respected constitutional
authorities such as Sir William Blackstone (right), A.V. Dicey and Sir Ivor Jennings may
on occasion be relied on in courts of law to aid interpretation.
