House of Commons - A new Magna Carta? - Political and Constitutional Reform

A new Magna Carta? - Political and Constitutional Reform Contents

2 CONSTITUTIONAL CONSOLIDATION ACT

An illustrative blueprint (second of three)

A consolidation of existing laws of a constitutional nature in statute, the common law and parliamentary practice, together with a codification of essential constitutional conventions.[8]

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BILL

Consolidate in one Act of Parliament the existing statutory provisions of a constitutional nature, together with a codification of common law principles, parliamentary practice and constitutional conventions, essential to the working of the government of the United Kingdom and its relationship with its citizens.

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-

PART I

THE CROWN AND POLITICAL EXECUTIVE

Chapter 1: THE HEAD OF STATE

1 The Sovereign

(1) The UK is a Constitutional Monarchy.[9]

(2) The Sovereign is the Head of State, the Head of the Armed Forces, the Supreme Governor of the Church of England, and the fount of honours.

2 Title to the Crown

(1) The Princess Sophia, Electress and Duchess Dowager of Hanover, Daughter of the late Queen of Bohemia, Daughter of King James the First, to inherit after the King and the Princess Anne, in Default of Issue of the said Princess and His Majesty, respectively and the Heirs of her Body, being Protestants. [10]

(2) Whereas in the First Year of the Reign of Your Majesty and of our late most gracious Sovereign Lady Queen Mary (of blessed Memory) An Act of Parliament was made intituled [An Act for declaring the Rights and Liberties of the Subject and for settling the Succession of the Crown] wherein it was (amongst other things) enacted established and declared That the Crown and Regall Government of the Kingdoms of England France and Ireland and the Dominions thereunto belonging should be and continue to Your Majestie and the said late Queen during the joynt Lives of Your Majesty and the said Queen and to the Survivor And that after the Decease of Your Majesty and of the said Queen the said Crown and Regall Government should be and remain to the Heirs of the Body of the said late Queen And for Default of such Issue to Her Royall Highness the Princess Ann of Denmark and the Heirs of Her Body And for Default of such Issue to the Heirs of the Body of Your Majesty. [11]

(3) And it was thereby further enacted That all and every Person and Persons that then were or afterwards should be reconciled to or shall hold Communion with the See or Church of Rome or should professe the Popish Religion or marry a Papist should be excluded and are by that Act made for ever incapable to inherit possess or enjoy the Crown and Government of this Realm and Ireland and the Dominions thereunto belonging or any part of the same or to have use or exercise any regall Power Authority or Jurisdiction within the same And in all and every such Case and Cases the People of these Realms shall be and are thereby absolved of their Allegiance And that the said Crown and Government shall from time to time descend to and be enjoyed by such Person or Persons being Protestants as should have inherited and enjoyed the same in case the said Person or Persons so reconciled holding Communion professing or marrying as aforesaid were naturally dead. [12]

(4) To grant to Your Majesty or to Her Royall Highness such Issue as may be inheritable to the Crown and Regall Government aforesaid by the respective Limitations in the said recited Act contained doe constantly implore the Divine Mercy for those Blessings And Your Majesties said Subjects having Daily Experience of Your Royall Care and Concern for the present and future Wellfare of these Kingdoms and particularly recommending from Your Throne a further Provision to be made for the Succession of the Crown in the Protestant Line for the Happiness of the Nation and the Security of our Religion And it being absolutely necessary for the Safety Peace and Quiet of this Realm to obviate all Doubts and Contentions in the same by reason of any pretended Titles to the Crown and to maintain a Certainty in the Succession thereof to which Your Subjects may safely have Recourse for their Protection in case the Limitations in the said recited Act should determine. [13]

(5) Therefore for a further Provision of the Succession of the Crown in the Protestant Line We Your Majesties most dutifull and Loyall Subjects the Lords Spirituall and Temporall and Commons in this present Parliament assembled do beseech Your Majesty that it may be enacted and declared and be it enacted and declared by the Kings most Excellent Majesty by and with the Advice and Consent of the Lords Spirituall and Temporall and Comons in this present Parliament assembled and by the Authority of the same That the most Excellent Princess Sophia Electress and Dutchess Dowager of Hannover Daughter of the most Excellent Princess Elizabeth late Queen of Bohemia Daughter of our late Sovereign Lord King James the First of happy Memory be and is hereby declared to be the next in Succession in the Protestant Line to the Imperiall Crown and Dignity of the said Realms of England France and Ireland with the Dominions and Territories thereunto belonging after His Majesty and the Princess Ann of Denmark and in Default of Issue of the said Princess Ann and of His Majesty respectively and that from and after the Deceases of His said Majesty our now Sovereign Lord and of Her Royall Highness the Princess Ann of Denmark and for Default of Issue of the said Princess Ann and of His Majesty respectively the Crown and Regall Government of the said Kingdoms of England France and Ireland and of the Dominions thereunto belonging with the Royall State and Dignity of the said Realms and all Honours Stiles Titles Regalities Prerogatives Powers Jurisdictions and Authorities to the same belonging and appertaining shall be remain and continue to the said most Excellent Princess Sophia and the Heirs of Her Body being Protestants And thereunto the said Lords Spirituall and Temporall and Commons shall and will in the Name of all the People of this Realm most humbly and faithfully submit themselves their Heirs and Posterities and do faithfully promise. [14]

(6) That after the Deceases of His Majesty and Her Royall Highness and the failure of the Heirs of their respective Bodies to stand to maintain and defend the said Princess Sophia and the Heirs of Her Body being Protestants according to the Limitation and Succession of the Crown in this Act specified and contained to the utmost of their Powers with their Lives and Estates against all Persons whatsoever that shall attempt anything to the contrary. [15]

3 Duties and functions of the Sovereign

(1) The Sovereign appoints the Prime Minister as Head of Government and, on his or her advice, other ministers of the Crown.[16]

(2) The Sovereign appoints the First Minister of Scotland and the First Minister for Wales, and has a role in relation to the Devolved Administrations, as set out in legislation.[17]

(3) The Sovereign opens each new session of Parliament, and brings the session to an end, proroguing Parliament if necessary by Order in Council. [18]

(4) A Bill which has completed all of its prior Parliamentary stages becomes law when Royal Assent is given.[19]

4 Regency of the Sovereign

(1) If the Sovereign is, at His Accession, under the age of eighteen years, then, until He attains that age, the royal functions shall be performed in the name and on behalf of the Sovereign by a Regent. [20]

(2) For the purpose of any enactment requiring any oath or declaration to be taken, made, or subscribed, by the Sovereign on or after His Accession, the date on which the Sovereign attains the age of eighteen years shall be deemed to be the date of His Accession. [21]

(3) If the following persons or any three or more of them, that is to say, the wife or husband of the Sovereign, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice of England, and the Master of the Rolls, declare in writing that they are satisfied by evidence which shall include the evidence of physicians that the Sovereign is by reason of infirmity of mind or body incapable for the time being of performing the royal functions or that they are satisfied by evidence that the Sovereign is for some definite cause not available for the performance of those functions, then, until it is declared in like manner that His Majesty has so far recovered His health as to warrant His resumption of the royal functions or has become available for the performance thereof, as the case may be, those functions shall be performed in the name and on behalf of the Sovereign by a Regent. [22]

(4) A declaration under this section shall be made to the Privy Council and communicated to the Governments of His Majesty's Dominions. [23]

(5) If a Regency becomes necessary under this Act, the Regent shall be that person who, excluding any persons disqualified under this section, is next in the line of succession to the Crown. [24]

(6) A person shall be disqualified from becoming or being Regent, if he is not a British subject of full age and domiciled in some part of the United Kingdom, or is a person who would, under section 2 of the Act of Settlement 1700, be incapable of inheriting, possessing, and enjoying the Crown; and section 3 of the Act of Settlement 1700 shall apply in the case of a Regent as it applies in the case of a Sovereign. [25]

(7) If any person who would at the commencement of a Regency have become Regent but for the fact that he was not then of full age becomes of full age during the Regency, he shall, if he is not otherwise disqualified under this section, thereupon become Regent instead of the person who has theretofore been Regent. [26]

(8) If the Regent dies or becomes disqualified under this section, that person shall become Regent in his stead who would have become Regent if the events necessitating the Regency had occurred immediately after the death or disqualification. [27]

(9) Subsections (3) and (4), above, shall apply in relation to a Regent with the substitution for references to the Sovereign of references to the Regent, and for the words "those functions shall be performed in the name and on behalf of the Sovereign by a Regent" of the words "that person shall be Regent who would have become Regent if the Regent had died." [28]

(10) The Regent shall, before he acts in or enters upon his office, take and subscribe before the Privy Council the oaths set out in the Schedule to the Regency Act 1937 (c.16), and the Privy Council are empowered and required to administer those oaths and to enter them in the Council Books. [29]

(11) The Regent shall not have power to assent to any Bill for changing the order of succession to the Crown or for repealing or altering an Act of the fifth year of the reign of Queen Anne made in Scotland entitled "An Act for Securing the Protestant Religion and Presbyterian Church Government." [30]

5 Guardianship of the Sovereign during Regency

(1) During a Regency, unless Parliament otherwise determines,

(a) if the Sovereign is under the age of eighteen years, and unmarried, His mother, if she is living, shall have the guardianship of His person; [31]

(b) if the Sovereign, being married, is under the age of eighteen years or has been declared under this Constitution to be incapable for the time being of performing the royal functions, the wife or husband of the Sovereign, if of full age, shall have the guardianship of the person of the Sovereign; [32]

(c) the Regent shall, save in the cases aforesaid, have the guardianship of the person of the Sovereign; and the property of the Sovereign, except any private property which in accordance with the terms of any trust affecting it to be administered by some other person, shall be administered by the Regent. [33]

Chapter 2: THE PRIME MINISTER

6 The Prime Minister

(1) The Prime Minister is head of the Government. [34]

(2) The Prime Minister is appointed by the Monarch, on the basis of his or her ability to command the confidence of the House of Commons. [35]

(3) The Prime Minister is a member of the House of Commons. [36]

(4) The Prime Minister advises the Monarch on the exercise of the Royal Prerogative powers in relation to government, and the exercise of statutory powers including the calling of elections where there is an early election or a deferred election under the Fixed-term Parliaments Act 2011. [37]

(5) The Prime Minister advises the Monarch on the appointment, dismissal and acceptance of resignation of other ministers. [38]

(6) The Prime Minister recommends other public appointments formally made by the Monarch, including archbishops and bishops of the Church of England, senior judges and certain civil appointments. He or she also recommends appointments to several public boards and institutions, as well as to various Royal and statutory commissions.[39]

(7) The Prime Minister informs the Monarch of the general business of the government at regular meetings. [40]

(8) The Prime Minister is First Lord of the Treasury[41] and in that capacity takes the oath of office.[42]

(9) The Prime Minister is the minister for the Civil Service and is also the minister responsible for National Security and matters affecting the Secret Intelligence Service, Security Service and GCHQ collectively. [43]

(10) The Prime Minister is responsible for the overall organisation of the executive and the allocation of functions between Ministers in charge of departments. [44]

(11) The Prime Minister is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards. [45]

Chapter 3: MINISTERS AND MINISTERIAL CONDUCT

7 Ministers

(1) In general, the ministers in the government comprise the categories of senior ministers, junior ministers, the Law Officers, and whips. The Prime Minister may agree that a minister in any of the categories can be known by a 'courtesy title' reflecting the job the minister has been asked to do, for example 'Minister for Europe'. A courtesy title has no legal or constitutional significance. [46]

(2) The most senior ministers in the Government are the members of Cabinet. The Prime Minister determines who forms Cabinet, but this will always include the Chancellor of the Exchequer, the Lord Chancellor and the secretaries of state. There are no formal limits on the size of Cabinet, but there are limits on the number of ministerial salaries that can be paid, and particularly who can be paid first-tier Cabinet-level salaries. [47]

(3) Other ministers who are often invited by the Prime Minister to be a member of, or attend, Cabinet include the Lord President of the Council, the Lord Privy Seal, the Chancellor of the Duchy of Lancaster, the Paymaster General, the Chief Secretary to the Treasury and the Parliamentary Secretary to the Treasury (the Commons Chief Whip). A minister of state may also sometimes be invited to be a member of, or attend, Cabinet. [48]

(4) A minister may be appointed Deputy Prime Minister. The responsibilities of a Deputy Prime Minister vary according to the circumstances. The fact that a person has the title of Deputy Prime Minister does not constrain the Sovereign's power to appoint a successor to a Prime Minister. [49]

(5) A minister may be appointed First Secretary of State to indicate seniority. The appointment may be held with another office. The responsibilities of the First Secretary of State will vary according to the circumstances. [50]

(6) Junior ministers are generally ministers of state, Parliamentary under secretaries of state and Parliamentary secretaries. Typically they are ministers within a government department and their function is to support and assist the senior minister in charge of the department. [51]

8 Ministerial propriety and behaviour [52]

(1) The principle of collective responsibility, save where it is explicitly set aside, applies to all Government Ministers;

(2) Ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and agencies;

(3) It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister;

(4) Ministers should be as open as possible with Parliament and the public, refusing to provide information only when disclosure would not be in the public interest which should be decided in accordance with the relevant statutes and the Freedom of Information Act 2000;

(5) Ministers should similarly require civil servants who give evidence before Parliamentary Committees on their behalf and under their direction to be as helpful as possible in providing accurate, truthful and full information in accordance with the duties and responsibilities of civil servants as set out in the Civil Service Code;

(6) Ministers must ensure that no conflict arises, or appears to arise, between their public duties and their private interests;

(7) Ministers should not accept any gift or hospitality which might, or might reasonably appear to, compromise their judgement or place them under an improper obligation;

(8) Ministers in the House of Commons must keep separate their roles as Minister and constituency Member;

(9) Ministers must not use government resources for Party political purposes;

(10) Ministers must uphold the political impartiality of the civil service and not ask civil servants to act in any way which would conflict with the Civil Service Code as set out in the Constitutional Reform and Governance Act 2010.

(11) Ministers must also comply at all times with the requirements which Parliament itself has laid down in relation to the accountability and responsibility of Ministers. [53]

9 Ministers and Parliament

(1) When Parliament is in session, the most important announcements of Government policy should be made in the first instance, in Parliament. [54]

(2) Even when Government announcements are not of major importance their timing may require careful consideration in order to avoid clashes with other Government publications, statements or announcements or with planned Parliamentary business. The Offices of the Leader of the Commons, the Chief Whip, the Deputy Prime Minister and the Prime Minister should be given as long an opportunity as possible to comment on all important announcements. [55]

(3) Every effort should be made to avoid leaving significant announcements to the last day before a recess. [56]

(4) Ministers should not give undertakings, either in or outside the House of Commons, that an oral statement will be made to the House until the agreement has been given by the private secretaries to the Prime Minister, the Deputy Prime Minister, the Leader of the House of Commons and the Chief Whip. The Leader of the House of Lords and Lords Chief Whip should be consulted where a statement is to be made in the House of Lords in the first instance. [57]

(5) A copy of the text of an oral statement should usually be shown to the Opposition shortly before it is made. For this purpose, 15 copies of the statement and associated documents should be sent to the Chief Whip's Office at least 45 minutes before the statement is to be made. At the same time, a copy of the final text of an oral statement should in all cases be sent in advance to the Speaker. [58]

(6) Every effort must be made to ensure that where a former Minister or a Ministerial colleague and/or a fellow MP/Peer is mentioned in a statement or report which prompts a Ministerial statement, he or she is given as much notice as is reasonably possible. [59]

(7) Any Minister or Parliamentary Private Secretary who receives a copy of a Select Committee report in advance of publication excluding copies sent to departments at the Confidential Final Revise stage should make no use of them and should return them without delay to the Clerk of the relevant Committee. Civil servants, including special advisers, are also covered by this ruling. [60]

10 Ministerial powers

(1) Ministers' powers derive from: Parliament, which grants powers through legislation; ministers' common law powers to act; and prerogative powers of the Crown that are exercised by, or on the advice of, ministers. Each form of power is subject to limits and constraints, and its use may be challenged in the courts. Ministers can also only spend public money for the purposes authorised by Parliament. Powers may be exercised by civil servants on behalf of ministers. [61]

(2) Acts of Parliament grant powers to ministers or place statutory duties on ministers.Normal practice is that the powers and duties involved in exercising continuing functions of ministers (particularly those involving financial liabilities extending beyond a given year) should be identified in legislation.Statute also provides ministers with emergency powers, in particular that emergency regulations could be made by Order in Council or by ministers as a last resort where existing legislation is insufficient to respond in the most effective way. [62]

(3) Most statutory powers and duties are conferred on the Secretary of State; these may be exercised or complied with by any one of the secretaries of state, unless a statute confers powers on a specific minister.[63] This reflects the doctrine that there is only one office of Secretary of State, even though it is the well-established practice to appoint more than one person to carry out the functions of the office. [64]

(4) It is also the well-established practice for each secretary of state to be allocated responsibility by the Prime Minister for a particular department (for example health, foreign affairs, defence, transport, education etc.) and, accordingly, for each Secretary of State, in practice, to exercise only those functions that are within that department. It is for the Prime Minister to determine the various departments. [65]

(5) Most secretaries of state are incorporated as 'corporations sole'. This gives the minister a separate legal personality. This is administratively convenient, for example as regards the ownership of property, because it facilitates continuity when the officeholder changes. [66]

(6) Statutory powers conferred on the Treasury are exercisable by the Commissioners of the Treasury, and may not be exercised by other ministers. The First Lord of the Treasury, along with the Chancellor of the Exchequer and the Junior Lords of the Treasury, make up the Commissioners of Her Majesty's Treasury. However, the Treasury Commissioners do not meet in that capacity. In practice, the Treasury is headed by the Chancellor of the Exchequer supported by the Chief Secretary to the Treasury and other junior Treasury ministers. [67]

(7) Ministers' functions are not limited to those authorised by statute. A minister may, as an agent of the Crown, exercise any powers which the Crown may exercise, except insofar as ministers are precluded from doing so by statute and subject to the fact that a minister will only be able to pay for what he or she does if Parliament votes him or her the money. This is a summary of what is known as the Ram doctrine. [68]

(8) The powers that a minister may exercise include any of the legal powers of an individual, for example to enter into contracts, convey property or make extra-statutory payments. As more of ministers' powers have been codified in legislation, the extent of inherent powers has been correspondingly reduced. [69]

(9) Prerogative powers are generally exercised by ministers or by the Sovereign on the advice of ministers, particularly the Prime Minister. However, the Sovereign continues to exercise personally some prerogative powers of the Crown (the award of certain honours, such as the Order of Merit) and reserves the right to exercise others in unusual circumstances. [70]

(10) Prerogative powers may be divided into the following broad categories:[71]

(a) Constitutional or personal prerogatives: these are the powers that the Sovereign continues to exercise either personally or on the advice of the Government. They include the powers to: appoint and dismiss the Prime Minister and other ministers; grant assent to legislation; and prorogue Parliament.

(b) Prerogative executive powers: these are the powers that are exercised on the Sovereign's behalf by ministers. Most prerogative powers fall into this category. They include powers in relation to foreign affairs, to deploy the armed forces, and to grant mercy. The limited prerogative powers that are relevant to devolved functions are exercised by ministers in the Devolved Administrations.

(11) Before the armed forces are committed to significant military action under the royal prerogative, the House of Commons should have an opportunity to debate the matter except when there was an emergency and such action would not ?be appropriate.[72]

(12) The scope of the prerogative is affected both by the common law (as developed by the courts) and by statutes (as enacted by Parliament) and accordingly has changed over time. [73]

(13) The role of the courts in determining the existence and extent of the prerogative from time to time can be a significant control on the prerogative. In particular, the control is strengthened by the common law doctrine that courts cannot create new prerogatives.Equally, however, the courts can recognise prerogatives that were previously of doubtful provenance, or adapt old prerogatives to modern circumstances. [74]

(14) Over time, legislation has also clarified and limited the extent of the prerogative, including in some cases abolishing it. Acts of Parliament which are not primarily aimed at reforming the prerogative may nevertheless bring about significant reform to it. Departmental civil servants provide advice to ministers on the extent of their powers. In the most complex cases, reference can be made to the Law Officers. [75]

(15) The Minister in charge of a department is solely accountable to Parliament for the exercise of the powers on which the administration of that department depends. The Minister's authority may, however, be delegated to a Minister of State, a Parliamentary Secretary, or to an official. It is desirable that Ministers in charge should devolve to their junior Ministers responsibility for a defined range of departmental work, particularly in connection with Parliament. A Minister's proposal for the assignment of duties to junior Ministers, together with any proposed "courtesy titles" descriptive of their duties should be agreed in writing with the Prime Minister, copied to the Cabinet Secretary. [76]

(16) Ministers of State and Parliamentary Secretaries will be authorised to supervise the day-to-day administration of a defined range of subjects. This arrangement does not relieve the Permanent Secretary of general responsibility for the organisation and discipline of the department or of the duty to advise on matters of policy. The Permanent Secretary is not subject to the directions of junior Ministers. Equally, junior Ministers are not subject to the directions of the Permanent Secretary. Any conflict of view between the two can be resolved only by reference to the Minister in charge of the department. [77]

(17) Departments should ensure appropriate arrangements are made for Ministerial cover when Ministers are absent from London. [78]

(18) The Prime Minister's prior approval should be sought for the arrangements for superintending the work of a department when the Minister in charge will be absent. Special care must be taken over the exercise of statutory powers. Ministers should seek legal advice in cases of doubt. [79]

(19) The Prime Minister must be consulted in good time about any proposal to set up:

(a) Royal Commissions: these can only be set up with the sanction of the Cabinet and after The Queen's approval has been sought by the Prime Minister;

(b) Major public inquiries under the Inquiries Act 2005 (c.12). [80]

(20) The Lord Chancellor and Secretary of State for Justice should also be consulted where there is a proposal to appoint a judge or legal officer to the above. [81]

11 Party and constituency interests of Ministers

(1) Facilities provided to Ministers at Government expense to enable them to carry out their official duties should not be used for Party or constituency work. [82]

(2) Government property should not generally be used for constituency work or party activities. A particular exception is recognised in the case of official residences. Where Ministers host Party or personal events in these residences it should be at their own or Party expense with no cost falling to the public purse. [83]

(3) Official facilities and resources may not be used for the dissemination of material which is essentially party political. The conventions governing the work of the Government Communication Network are set out in the Government Communication Network's Propriety Guidance - Guidance on Government Communications. [84]

(4) Where Ministers have to take decisions within their departments which might have an impact on their own constituencies, they must take particular care to avoid any possible conflict of interest. Within departments, the Minister should advise their Permanent Secretary and, in the case of junior Ministers, their Secretary of State of the interest and responsibilities should be arranged to avoid any conflict of interest. [85]

(5) Ministers are free to make their views about constituency matters known to the responsible Minister by correspondence, leading deputations or by personal interview provided they make clear that they are acting as their constituents' representative and not as a Minister. [86]

(6) Ministers are advised to take particular care in cases relating to planning applications in their constituencies or other similar issues. In all such cases, it is important that they make clear that they are representing the views of their constituents, avoid criticism of Government policies and confine themselves to comments which could reasonably be made by those who are not Ministers. Once a decision has been announced, it should be accepted without question or criticism.[87]

(7) Particular care also needs to be taken over cases in which a Minister may have a personal interest or connection, for example because they concern family, friends or employees. If, exceptionally, a Minister wishes to raise questions about the handling of such a case they should advise their Permanent Secretary and write to the Minister responsible, as with constituency cases, but they should make clear their personal connection or interest. The responsible Minister should ensure that any enquiry is handled without special treatment. [88]

12 Private interests of Ministers

(1) Ministers must ensure that no conflict arises, or could reasonably be perceived to arise, between their public duties and their private interests, financial or otherwise. [89]

(2) It is the personal responsibility of each Minister to decide whether and what action is needed to avoid a conflict or the perception of a conflict, taking account of advice received from their Permanent Secretary and the independent adviser on Ministers' interests. [90]

(3) On appointment to each new office, Ministers must provide their Permanent Secretary with a full list in writing of all interests which might be thought to give rise to a conflict. The list should also cover interests of the Minister's spouse or partner and close family which might be thought to give rise to a conflict. [91]

(4) Where appropriate, the Minister will meet the Permanent Secretary and the independent adviser on Ministers' interests to agree action on the handling of interests. Ministers must record in writing what action has been taken, and provide the Permanent Secretary and the independent adviser on Ministers' interests with a copy of that record. [92]

(5) The personal information which Ministers disclose to those who advise them is treated in confidence. However, a statement covering relevant Ministers' interests will be published twice yearly. [93]

(6) Where it is proper for a Minister to retain a private interest, he or she should declare that interest to Ministerial colleagues if they have to discuss public business which in any way affects it and the Minister should remain entirely detached from the consideration of that business. Similar steps may be necessary in relation to a Minister's previous interests. [94]

(7) Ministers must scrupulously avoid any danger of an actual or perceived conflict of interest between their Ministerial position and their private financial interests. They should be guided by the general principle that they should either dispose of the interest giving rise to the conflict or take alternative steps to prevent it. In reaching their decision they should be guided by the advice given to them by their Permanent Secretary and the independent adviser on Ministers' interests. Ministers' decisions should not be influenced by the hope or expectation of future employment with a particular firm or organisation. [95]

(8) Where exceptionally it is decided that a Minister can retain an interest, the Minister and the department must put processes in place to prohibit access to certain papers and ensure that the Minister is not involved in certain decisions and discussions relating to that interest. [96]

(9) In some cases, it may not be possible to devise a mechanism to avoid a conflict of interest. In any such case, the Prime Minister must be consulted and it may be necessary for the Minister to cease to hold the office in question. [97]

(10) Where a Minister is allocated an official residence, they must ensure that all personal tax liabilities, including council tax, are properly discharged, and that they personally pay such liabilities. Ministers who occupy an official residence will not be able to claim Accommodation Expenses from the Independent Parliamentary Standards Authority. [98]

(11) When they take up office, Ministers should give up any other public appointment they may hold. Where exceptionally it is proposed that such an appointment should be retained, the Minister should seek the advice of their Permanent Secretary and the independent adviser on Ministers' interests. [99]

(12) Ministers should take care to ensure that they do not become associated with non-public organisations whose objectives may in any degree conflict with Government policy and thus give rise to a conflict of interest. [100]

(13) Ministers should not therefore normally accept invitations to act as patrons of, or otherwise offer support to, pressure groups, or organisations dependent in whole or in part on Government funding. There is normally less objection to a Minister associating him or herself with a charity, subject to the points above, but Ministers should take care to ensure that in participating in any fund-raising activity, they do not place, or appear to place, themselves under an obligation as Ministers to those to whom appeals are directed and for this reason they should not approach individuals or companies personally for this purpose. In all such cases, the Minister should consult their Permanent Secretary and where appropriate the independent adviser on Ministers' interests. [101]

(14) In order to avoid any conflict of interest, Ministers on taking up office should give up membership or chairmanship of a Select Committee or All Party Parliamentary Group. This is to avoid any risk of criticism that a Minister is seeking to influence the Parliamentary process. Ministers must also avoid being drawn into a situation whereby their membership of a Committee could result in the belief that ministerial support is being given to a particular policy or funding proposal. [102]

(15) Where Ministers become involved in legal proceedings in a personal capacity, there may be implications for them in their official position. Defamation is an example of an area where proceedings will invariably raise issues for the Minister's official as well as his or her private position. In all such cases, Ministers should consult the Law Officers in good time and before legal proceedings are initiated so that they may offer guidance on the potential implications and handling of the proceedings. [103]

(16) Similarly, when a Minister is a defendant or a witness in an action, he or she should notify the Law Officers as soon as possible. Preferably, this should be before he or she has instructed his or her own solicitors in the matter. [104]

(17) From time to time, the personal support of Ministers is requested for nominations being made for international prizes and awards, for example, the annual Nobel prizes. Ministers should not sponsor individual nominations for any awards, since it would be inevitable that some people would assume that the Government was itself thereby giving its sponsorship. [105]

(18) Ministers should not normally, while holding office, accept decorations from foreign countries. [106]

13 Private Secretaries

(1) Cabinet ministers and ministers of state may appoint Parliamentary private secretaries. All appointments require the prior written approval of the Prime Minister. The Chief Whip should also be consulted and no commitments to make such appointments should be entered into until such approval is received. [107]

(2) Parliamentary private secretaries are not members of the Government, although by convention they are bound by collective agreement. Their role is to support ministers in conducting Parliamentary business. [108]

14 Law Officers of the Crown

(1) The term 'the Law Officers' refers to the UK Law Officers, who are the Attorney General, the Solicitor General and the Advocate General for Scotland. The Attorney General for England and Wales is also the ex-officio Advocate General for Northern Ireland. [109]

(2) The Attorney General is the Chief Law Officer for England and Wales and is the Chief Legal Adviser to the Crown. The Solicitor General is in practice the Attorney General's deputy and may exercise any function of the Attorney General. [110]

(3) The Advocate General for Scotland is the principal legal adviser to the Government on Scots law. Jointly with the Attorney General, the Advocate General for Scotland also advises the Government on legal issues, including human rights and EU law. [111]

(4) The core function of the Law Officers is to advise on legal matters, helping ministers to act lawfully and in accordance with the rule of law. The Attorney General is also the minister with responsibility for superintending the Crown Prosecution Service and the Serious Fraud Office. [112]

(5) In addition to these roles, the Law Officers have a number of public interest functions. Acting in the public interest, independently of government, and in accordance with the relevant statutes, they may:

· refer unduly lenient sentences to the Court of Appeal;

· bring contempt of court proceedings;

· grant consent for some specific prosecutions;

· intervene in certain charity and family law cases;

· bring proceedings to restrain vexatious litigants;

· appoint advocates to the Court;and

· refer points of law to the Court of Appeal after acquittals in criminal cases. [113]

(6) The Law Officers must be consulted by ministers or their officials in good time before the Government is committed to critical decisions involving legal considerations.It has normally been considered appropriate to consult the Law Officers in cases where:

· the legal consequences of action by the Government might have important repercussions in the foreign, EU or domestic fields;

· a departmental legal adviser is in doubt concerning:

· the legality or constitutional propriety of proposed primary or subordinate legislation which the Government proposes to introduce;

· the powers necessary to make proposed subordinate legislation; or

· the legality of proposed administrative action, particularly where that action might be subject to challenge in the courts;

· ministers, or their officials, wish to have the advice of the Law Officers on questions involving legal considerations that are likely to come before Cabinet or a Cabinet committee;

· there is a particular legal difficulty (including one that arises in the context of litigation) that may raise sensitive policy issues; or

· two or more government departments disagree on legal questions and wish to seek the view of the Law Officers. [114]

(7) The Law Officers have a role in ensuring the lawfulness and constitutional propriety of legislation. In particular, the Law Officers' consent is required for legislative provisions that have a retrospective effect or where it is proposed that legislation is commenced within two months of Royal Assent. [115]

(8) Where advice from the Law Officers is included in correspondence between ministers, or in papers for Cabinet or ministerial committees, the conclusions of the advice may be summarised, if necessary. But if this is done, the complete text of the advice should be attached. [116]

(9) The fact that the Law Officers have advised, or have not advised, and the content of their advice may not be disclosed outside government without their authority. The Law Officers' advice to government is subject to legal professional privilege (LPP) and is confidential. [117]

15 Government Whips

(1) Government whips are appointed for both the House of Commons and the House of Lords. The government chief whips in the House of Commons and the House of Lords arrange the scheduling of government business, often in consultation with their opposition counterparts. Collectively, the government and opposition whips are often referred to as 'the usual channels' when the question of finding time for a particular item of business is being discussed. [118]

(2) The chief whips and their assistants manage their Parliamentary parties. Their duties include keeping members informed of forthcoming Parliamentary business, maintaining the party's voting strength by ensuring that members attend important votes, and passing on to the party leadership the opinions of backbench members. Whips in the House of Commons do not generally speak during Parliamentary debates. However, Lords whips may speak in Parliament on behalf of departments. [119]

Chapter 4: THE CABINET

16 The Cabinet

(1) Cabinet is chaired by the Prime Minister, who also determines its membership.It will usually comprise senior ministers. The Prime Minister may arrange for other ministers to attend Cabinet, either on a regular basis or for particular business (for example, the Attorney General to give legal advice). All members of Cabinet as Privy Counsellors are bound by the Privy Council Oath. [120]

17 Cabinet business

(1) The business of the Cabinet and Ministerial Committees consists in the main of:

(a) questions which significantly engage the collective responsibility of the Government because they raise major issues of policy or because they are of critical importance to the public;

(b) questions on which there is an unresolved argument between departments. [121]

(2) Collective agreement can be sought at a Cabinet or Cabinet committee meeting or through ministerial correspondence. [122]

(3) There are no set rules about the issues that should be considered by Cabinet itself and it is ultimately for the Prime Minister to decide the agenda, on the advice of the Cabinet Secretary. Cabinet and Cabinet committees can all take collective decisions and the level of committee at which a decision is taken should not be disclosed. [123]

(4) With the agreement of the Prime Minister, consideration of significant domestic or international policy issues may be taken by Cabinet at an early stage by way of a general discussion to inform the development of detailed policy by the relevant Secretary of State, or as a final step prior to announcement. Where an issue is brought to Cabinet at the end of the process, it would normally have been discussed and agreed by the relevant Cabinet committee. [124]

(5) All legislative proposals relating to primary legislation require clearance from the Cabinet committee that is responsible for Parliamentary business and legislation, in addition to clearance through the relevant policy committee.Legislative proposals include public commitments to legislate within certain timescales, clearance of bills before introduction, amendments to bills during their passage through Parliament and the Government's position on Private Members' Bills. [125]

(6) The Chancellor of the Exchequer's Budget and any other Budget statement are disclosed to Cabinet at a meeting on the morning of the day on which they are presented to the House of Commons, although the content of the proposal will often have been discussed with relevant ministers in advance of the meeting. The expectation is that the proposals will be accepted by Cabinet without amendment, although the Chancellor may, if necessary, make amendments. [126]

(7) An agenda is set for each Cabinet and Cabinet committee meeting. In the case of Cabinet, items for the agenda are agreed by the Prime Minister. For other Cabinet committees, the agenda is agreed by the relevant chair. [127]

(8) Any proposals where other departments have an interest should be discussed with them before collective agreement is sought. Where proposals have public expenditure implications, the Treasury should be consulted before they are submitted for collective agreement.Where the department proposing the policy and the Treasury cannot agree in advance, any proposal for collective ministerial consideration should record the Treasury's position in terms which are acceptable to them. Policy proposals with public expenditure implications will not be agreed unless Treasury ministers are content. If necessary, issues can be referred to the Prime Minister or, if he or she so decides, to Cabinet for a decision. [128]

(9) Minutes are taken for each Cabinet and Cabinet committee meeting, forming part of the historic record of government. They record the main points made in discussion and the Cabinet or Cabinet committee conclusions as summed up by the chair. To help preserve the principle of collective responsibility, most contributions by ministers are unattributed. However, points made by the minister introducing the item and the chair's summing-up are generally attributed. [129]

(10) It is the responsibility of the Cabinet Secretariat to write and circulate the minutes to members of Cabinet or the relevant Cabinet committee. This should be done within 24 hours of the meeting. Minutes are not cleared with the chair of Cabinet or the Cabinet committee in advance of circulation. If a minister has a factual correction to make, the Cabinet Secretariat should be informed within 24 hours of circulation of the minutes. [130]

18 Cabinet Committees

(1) Cabinet committees help to ensure that government business is processed more effectively by relieving pressure on Cabinet. The committee structure also supports the principle of collective responsibility, ensuring that policy proposals receive thorough consideration without an issue having to be referred to the whole Cabinet. Cabinet committee decisions have the same authority as Cabinet decisions. [131]

(2) The Prime Minister decides - with the advice of the Cabinet Secretary - the overall structure of the Cabinet committee system, including the chair, deputy chair (if any), membership and the terms of reference of each Cabinet committee. [132]

(3) Committees are usually established to consider a particular area of government business, such as home or domestic affairs, or national security. Where appropriate, sub-committees may be established to consider detailed issues and report as necessary to the full committee. Ad hoc or miscellaneous committees may also be established by the Prime Minister to carry out a particular task, usually over a limited timescale. [133]

(4) The committee structure varies depending on the requirements of the incumbent government. A list of the current committees, their terms of reference and the ministers who sit on them will normally be available from the Cabinet Office website. [134]

(5) The Cabinet Office Briefing Room (COBR) is the mechanism for agreeing the central government response to major emergencies which have international, national or multi-regional impact.Meetings at COBR are in effect Cabinet committee meetings, although there is no fixed membership, and they can meet at ministerial or official level depending on the issue under consideration. In general the chair will be taken by the secretary of state of the government department with lead responsibility for the particular issue being considered. [135]

(6) Official committees can be established to support Cabinet committees. Official committees are chaired by the Cabinet Secretariat. There is no fixed membership, but senior officials will be invited from each department with a minister who is a member of the relevant Cabinet committee. [136]

(7) Official committees may be convened for a variety of purposes, but would normally meet in advance of a Cabinet committee. This would enable them to consider the issues that would need to be covered in Cabinet committee papers and to help the Cabinet Secretariat identify points that are likely to be raised so that it can brief the chair of the Cabinet committee effectively. [137]

(8) The role of the Cabinet committee responsible for primary legislation differs from that of a policy Cabinet committee: it is concerned with the preparation and management of the legislative programme, rather than with agreeing government policy. The committee aims to ensure that the content of the legislative programme as a whole implements the Government's priorities, and that the passage of bills through Parliament can be successfully managed. [138]

19 Collective Responsibility

(1) The principle of collective responsibility, save where it is explicitly set aside, requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed in Cabinet and Ministerial Committees, including in correspondence, should be maintained. [139]

(2) Matters wholly within the responsibility of a single Minister and which do not significantly engage collective responsibility need not be brought to the Cabinet or to a Ministerial Committee unless the Minister wishes to inform his colleagues or to have their advice. No definitive criteria can be given for issues which engage collective responsibility. The Cabinet Secretariats can advise where departments are unsure. When there is a difference between departments, it should not be referred to the Cabinet until other means of resolving it have been exhausted. It is the responsibility of the initiating department to ensure that proposals have been discussed with other interested departments and the outcome of these discussions should be reflected in the memorandum or letter submitted to Cabinet or a Cabinet Committee. [140]

20 The Cabinet Secretary and Cabinet Secretariat

(1) The Cabinet Secretary is the head of the Cabinet Secretariat.The Cabinet Secretary is appointed by the Prime Minister on the advice of the retiring Cabinet Secretary and the First Civil Service Commissioner. [141]

(2) The Cabinet Secretary, unless unavoidably absent, attends all meetings of Cabinet and is responsible for the smooth running of Cabinet meetings and for preparing records of its discussions and decisions. This includes responsibility for advising the Prime Minister on all questions connected with the appointment and organisation of Cabinet committees, including membership and terms of reference. [142]

(3) The Cabinet Secretariat exists to support the Prime Minister, and the Deputy Prime Minister where a minister has been appointed to that office, and the chairs of Cabinet committees in ensuring that government business is conducted in an effective and timely way and that proper collective consideration takes place. The Cabinet Secretariat is therefore non-departmental in function and consists of officials who are based in the Cabinet Office but drawn from across government. [143]

(4) The Cabinet Secretariat reports to the Prime Minister, the Deputy Prime Minister and other ministers who chair Cabinet committees.The Cabinet Secretariat prepares the agenda of Cabinet committee meetings, with the agreement of the chair; it also provides them with advice and support in their functions as chair; and it issues the minutes of the committees. [144]

8 The approach taken by the author to codifying in writing the existing conventions of the constitution for the purpose of this Constitutional Consolidation Act has been to adopt the opinion of the Cabinet office as to what the conventions are, as set in its official publication endorsed by the Cabinet, The Cabinet Manual: A Guide to Laws, Conventions and Rules on the Operation of Government (2011) Ed.1 (hereafter 'Cabinet Manual'). This should not be taken as meaning that the Cabinet Manual is a source of the constitution itself, but simply that it is a peculiarly authoritative secondary source, not only because it sets out the restrictions which the government fully accept upon itself, but also because it is the public document most frequently relied upon by the media to inform the public in its reporting of political events. A more precise and realistic interpretation of some of the conventions, such on prime ministerial appointment and war powers, is given by the author in the Constitutional Code (Part II, 1). Back

9 Common law; Act of Supremacy 1558; see Cabinet Manual Ch.1 Back

10 Act of Settlement 1700 Part 1 Back

11 Act of Settlement 1700 Part 1 Back

12 Act of Settlement 1700 Part 1 Back

13 Act of Settlement 1700 Part 1 Back

14 Act of Settlement 1700 Part 1 Back

15 Act of Settlement 1700 Part 1 Back

16 Common law; convention; Cabinet Manual Ch.1 para 1.1 Back

17 Common law; Scotland Act 1998 c.46, s.45; Government of Wales Act 2006 c.32, s.46; Cabinet Manual Ch.1 para 1.1 Back

18 Common law; Cabinet Manual Ch.1 para 1.1 Back

19 Common law; Prorogation Act 1867; Cabinet Manual Ch.1 para 1.1 Back