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  • Writer's pictureRida Noor

Separation of Powers - Student Blog

Updated: Jul 21, 2021

The doctrine of separation of powers is ineffective if it is unable to hold other institutes accountable. In Britain, to perform this function concerning the Executive branch of Government, constitutional conventions on ministerial responsibility are in place. The convention sets a standard of behaviour for all the Ministers to follow during their term in office and Ministers are expected either to conform to those behavioural practices or resign. In fact, the convention on ministerial responsibility is the basic code of conduct for a Minister to follow during their term in office. Although highly persuasive and politically binding, ministerial conventions are not legally binding, but their breach has severe repercussions for the political career of a Minister. Constitutional convention plays the role of scrutinising the working of the executive branch of government. Its non-legal nature ensures the smooth working of the institutions, whilst its persuasiveness ensures accountability, a twofold process: (1) Institutional (collective ministerial responsibility) and (2) at an individual level.

Constitutional conventions are not only part of the British system, but also the American, Canadian, and Australian one. However, the conventions within the British system differ from the others as in Britain there is no codified constitution that can enforce effective accountability and maintain a strict separation of powers. Everything in the UK is reliant upon the will of parliament and, unlike the US the Executive is also utilised within the legislature, thus further enhancing the scope for scrutiny. In this scenario, the role of constitutional convention in the UK is miraculous- it morally and politically binds the Ministers to resign in a particular situation (for example, the resignation of David Cameroon, former Prime Minister of the UK, in the wake of the Brexit referendum).

However, it is argued that actual resignation varies on the political strength of the Minister and his relationship with the cabinet and position in parliament (Rodney Brazier). It is also believed that the convention on ministerial responsibility is the kind of device which Ministers with greater political strength can escape, whilst their weaker counterparts get caught out. So, it is now believed that ministerial responsibility means ministerial obedience to the Prime Minister. To truly arrive at a conclusion on the operation, effect and role of both conventions in the British legal system, one needs to examine different aspects of constitutional convention on ministerial responsibility.

This process works both collectively and individually. Collective responsibility is extended to all the Ministers present in the cabinet, each of whom is expected to maintain both a collective front in public and the secrecy of official information. This convention is based on public policy and plays a vital role in maintaining the stability and the exchange market of the country. Political disagreement brings instability and lack of confidence, which in turn weakens the government. Hence, The Cabinet Office’s Ministerial Code (2015) outlines how collective responsibility should work in practice "Ministers should be able to express their views frankly in the expectation that they can argue freely in private while united when decisions have been reached. The privacy of opinions expressed in Cabinet and Ministerial Committees, including in correspondence, should be maintained, too".

The two facets of collective ministerial responsibility refer to the unanimity of the cabinet. If any Minister is unable to obey the basic code of conduct, then they are considered incapable of holding the public seat of Minister, therefore they must resign, as set by previous examples of the resignation of Foreign Secretary Robin Cook in 2003, as a protest against the government on its policy towards Iraq. A more recent example is the resignation of Baroness Warsi, a Minister in the Foreign Office in August 2014, because she could not agree with the Government’s policy on the Israel-Gaza conflict. She wrote to the Prime Minister, stating that the "Government’s approach in Britain's national interest". Hence, after resignation one is free to express their opinion and to agree or disagree with government policies.

However, the second aspect of this convention is that of maintaining the secrecy of ministerial meetings to ensure important secrets remain under wraps, even after the resignation of a Minister. In the case of AG v Jonathan Cape, it was held that a Minister cannot release any confidential information learned during their tenure, even after 10 years- however, Ministers who resign are free to make a public statement in Parliament, publish a resignation letter, or hold a press conference explaining the reason for the action, which would not be considered a breach of this convention.

The exception to the operation of this convention is the temporary suspension of this convention by the Prime Minister, on the doctrine of free vote or an agreement to differ. Free vote refers to any situation in which the Government has no stated policy on the matter and the question of dissent by some Ministers does not arise. Agreement to differ simply means that the Government has adopted a policy, but Ministers are given the right to dissent from that policy in public. Examples of this occurred in 1932, 1975 and 2016 as a result of tariff policies of the government, accession of ECA and the EU Referendum, respectively. However, aside from these exceptions, this rule governing conduct must be obeyed in all circumstances. The significance and strength of this convention are evidenced by the fact that in Northern Ireland, to abide by the content of this collective convention is enforceable by law.

The second convention on ministerial responsibility governs the individual aspects of the Minister and their conduct in relation to their department. According to Rodney Brazier, each Minister is responsible for:

(1) their private conduct,

(2) the general conduct of their department, and

(3) acts done (or left undone) by officials in their department.

So, if there is any breach relating to these three areas, the political pressure on the Minister demands their immediate resignation. But the simple resignation is not enough. Accountability involves accounting in detail for one’s actions as Minister, according to the Defence Select Committee with regards to the Westland affairs.

There are four steps which are to be followed by the Minister, should they breach this convention, in order to make the accountability process effective. This includes the duty to:

(1) inform and explain,

(2) apologise,

(3) take action, and

(4) resign.

As far as responsibility for private conduct is concerned, followed by the precedent set in 2012 by Chris Huhne, Secretary of State for Energy and Climate Change, the expectation is that Ministers are to immediately tender their resignation to the Prime Minister. However, the situation of ministerial responsibility for the whole department is contentious, as previously the onus of complete responsibility in the event of defection within their department lies with the Minister, regardless of who is at fault, as can be seen by the resignation of Sir Thomas Dugdale, Minister of Agriculture during the Crichel Down affairs.

However, with the introduction of next-step agencies (semi-private bodies performing public functions) and the large size of departments, the new trend would appear to be that the Minister should not be regarded as responsible for looking after, or be held liable for, every petty matter in his department.

This argument would dictate that the convention on individual ministerial responsibility is now appropriately modified to deal with this situation.

So now, where departmental responsibility is involved, the fault is said to arise from two situations: (1) faulty policies allegedly made by the Minister and (2) incorrect implementation of the said policy by the officials of the department. Now, the Minister is only responsible for wrong policies changes.

So, if they can provide adequate justification to Parliament regarding the policymaking of their department, they can escape resignation. As far as implementation of said policy by officials is concerned, the Minister bears no responsibility. This distinction has weakened the accountability of the executive branch of government, as can be seen by many instances of non-resignation by Ministers in case of departmental failure. In 1982, Home Secretary Mr. William Whitelaw did not resign over a breach of security at Buckingham Palace, nor did Mr. James Prior, the Northern Ireland Minister, resign in 1984, following the escape of terrorists from the Maze Prison.

The reality of uncodified and unenforceable constitutional convention proves that conventions don't need to be strictly codified in order to have its true impact. The political pressure and moral obligation to follow it creates enough of a safeguard and deterrent, and the constitutional convention is an important doctrine of the unwritten British constitution. The origin of the convention is traced back to the times of King George but academically, the term was first referred to by A.V. Dicey in the following words:

"Understandings, habits, or practices though they may regulate conduct of the several members of the sovereign power, are not really laws, since they are not enforced by the courts." - AV Dicey

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