A key convention in UK Politics is that of Ministerial Collective Responsibility. This convention dictates that regardless of whether Ministers agree or disagree with government policy in private, in public, they must support it. If they cannot bring themselvesto do this, the convention dictates that they should resign from the government. The doctrine applies to all members of the government and has now even been codified by its inclusion in the Cabinet Manual.

Historically, there have been many examples of the doctrine of Collective Responsibility being invoked. There have also been a number of issues that have saw the doctrine being followed. A good example of this is the Iraq War which saw Robin Cook and Clare Short both resigning from Tony Blair’s Cabinet and citing Collective Responsibility as their reason for doing so.

However,  no issue has seen more resignations under the doctrine of Collective Responsibility than Brexit. When he was Prime Minister David Cameron anticipated the divisiveness of the issue and decided to suspend Collective Responsibility during the EU Referendum Campaign. It was this that allowed Ministers like Michael Gove, Andrea Leadsom and Chris Grayling to campaign for Britain to leave the European Union despite David Cameron leading the Remain Campaign.

However, after the referendum result, and the formation of Theresa May’s Cabinets, Collective Responsibility is back in force. Although there were always going to be disagreements in Cabinet over Brexit, Ministers have been expected to sell Theresa May’s vision of the direction it should take.

However, many Ministers have found this extremely difficult to do. As of Sunday 17th November 2018, there were sixteen members of the Government who had resigned from the position over Brexit.

Secretaries of State (Members of the Cabinet)

David Davis – David Davis was appointed to the newly founded Cabinet position of Secretary of State for Exiting the European Union (Brexit Secretary). During the referendum campaign he had campaigned for Britain to leave the European Union. As Brexit Secretary it was his job to negotiate with the EU about the terms of Britain’s Exit. It quickly became clear that he was being largely sidelined by Theresa May and when she announced her Chequer’s Plan he decided he could no longer stay in post.

Resignation Letter Quote: ” The Cabinet decision on Friday crystallised this problem. In my view the inevitable consequence of the proposed policies will be to make the supposed control by Parliament illusory rather than real. As I said at Cabinet, the “common rule book” policy hands control of large swathes of our economy to the EU and is certainly not returning control of our laws in any real sense.”

Boris Johnson – Theresa May made Boris Johnson Foreign Secretary when she became Prime Minister. He had campaigned to leave the European Union and was seen my many to have been the most decisive voice in the Leave campaign. In his role as Foreign Secretary Johnson should have been taking a lead role in negotiating Britain’s Exit from the EU. However, it was clear that he never really agreed with the direction Theresa May was pursuing. He had already pushed the boundaries of Collective Responsibility many times before his eventual resignation. For example, he had written  a column for the Daily Telegraph in 2017 in which he laid out a vision of Brexit that seemed different to that of the Prime Minister. Johnson finally resigned on the 9th July 2018 after stating that he could not accept the Prime Minister’s Chequers Plan.

Resignation Letter  Quote: ” Brexit should be about opportunity and hope. It should be a chance to do things differently, to be more nimble and dynamic, and to maximise the particular advantages of the UK as an open, outward-looking global economy. That dream is dying, suffocated by needless self-doubt.”

Dominic Raab – Appointed Brexit Secretary after the resignation of David Davis, Raab was in post for little more than four months. He decided to resign the morning after Theresa May announced her Draft Withdrawal Agreement with the EU. Raab had always held reservations over the direction of the negotiations and decided not to stay in the Cabinet and support the Prime Minister’s agreement with the EU. 

Resignation Letter  Quote: “I cannot reconcile the terms of the proposed deal with the promises we made to the country in our manifesto at the last election. This is, at its heart, a matter of public trust.”

Esther McVey – McVey became the second Cabinet Member to resign on the morning after Theresa May’s Draft Agreement with the EU was published. McVey is a staunch leaver and had long harboured doubts over the direction the government was taking. Her position was not helped by problems she had in the Department of Work and Pensions after it was perceived that she had lied to the House of Commons over Universial Credit. McVey was clearly not a fan of Theresa May and would not stand by and accept a Brexit deal that she did not agree with.

Resignation Letter  Quote: “ I cannot defend this, and I cannot vote for this deal. I could not look my constituents in the eye were I to do that. I therefore have no alternative but to resign from the Government.”

Ministers of State

Shailesh Vara – Vara was one of four resignations the day after the Draft Withdrawal Agreement was published. Vara had been appointed Minsiter of State for Northern Ireland in January 2018. He resigned on the day that the Draft Withdrawal Agreement was published.

Jo Johnson – Jo Johnson, the younger broter of Boris, is one of the most interesting resignations from Theresa May’s ministerial team. This is because Johnson was a firm remainer. However, he resigned as a Minister for Transport because he believed negotations had failed and because he wanted to be able to campign for a second refendum.

Guto Bebb – Bebb was Minister of Procurment in the MoD until the 16th July 2018 when he resigned following the publication of the Drat Withdrawal Agreement.

Other Members of the Government

Andrea Jenkins – Parliamentary Private Secretary to the Ministry of Housing, Communities and Local Government. Resigned 25th May 2018.

Chris Gree – Parliamentary Private Secretary to the Department of Transport. Resigned 8th July 2018. 

Steve Baker – Parliamentary Private Secretary to for the Department for Exiting the European Union. Resigned 9th July 2018.

Robert Courts – Parliamentary Private Secretary to the Foreign Office. Resigned 15th July 2018.

Scott Mann – Parliamentary Private Secretary to the Treasury. Resigned 16th July 2018.

Rehman Christi – Vice-Chairman of the Conservative Party. Resigned 15th November 2018.

Ranil Jayawardena – Parliamentary Under-Secretary of State for the Department of Work and Pensions. Resigned 15th November 2018.

Anne-Marie Trevelyan – Parliamentary Private Secretary. Resigned 15th November 2018.

Suella Braverman – Parliamentary Under-Secretary of State for Exiting the European Union. Resigned 15th November 2018.

The Recall of MPs Act was passed in March 2015 under the Coalition Government. It was sold as a way to enhance democracy, by allowing the removal of MPs by their constituents. It is an example of direct democracy being employed in the Units Kingdom. However, it is arguable that the Recall of MPs Act does not do the job for which it was intended and is an ineffective piece of legislation.

When the Coalition Government was formed in May 2010 there was no mechanism by which an MP could be recalled. In fact, MPs could only be removed from Parliament if they had been jailed for more than one year.

The MPs expenses scandal of 2009-2010 bought the discussion of recall into focus. This was because there were MPs who had clearly acted illegally or immorally and yet could not be removed by their constituents. It was clear that in public consciousness, some kind of mechanism for recall of MPs was needed.

As part of the Coalition Agreement between the Conservatives and Liberal Democrats it was agreed that putting a recall mechanism into place would be explored. In June 2012 the Constitutional Reform Select Committee published a report which listed a number of reasons why a recall system was not advisable.

https://publications.parliament.uk/pa/cm201213/cmselect/cmpolcon/373/37302.htm

The bill eventually bought forward by the Coalition was extremely limited in scope:

1. The Speaker of the House of Commons will contact a Petition Officer in the relevant area if an MP has:

a) Been convicted of a criminal offence and has received a prison sentence.

b) If they are barred from the House of Commons for 10 sitting days or 14 calender days.

c) If they are found to have provided false expenses claims.

The Petition Officer then opens a petition in the MPs constiuency which last for six weeks. If 10% of constituents sign the petition, the seat is declared vacant and a by-election is held.

Whilst the bill was making its way through Parliament, Conservative backbench MP, Zac Goldsmith, proposed an alternative Prvivate Members Bill, which more than 70 MPs across all parties supported. Goldsmith’s Private Members Bill would require just 5% of constituents to sign a petition of recall before 20% being needed to enforce a by-election. Importantly, in Goldsmith’sbill, it would not be down to Members of Parliament to decide if an MP hadbreached the rules and would therefore be open to recall.

However, Goldsmith’s bill did not get enough support and the Coalition Bill was given Royal Assent on 26th March 2015.

The Recall of MPs Act had its first chance to be used in 2018. In September 2017 a Daily Telegraph investigation found that Ian Paisley Jr, a DUP MP, had received hospitality from the Sri Lankan Governmentin 2013 and had failed to disclose this to Parliament. As a result, the House of Commons Standards Committee suspended him from the House of Commons for 30 days, the longest suspension since 1949. The Speaker of the House of Commons =confirmed that he would write to his constituency returning officer to initiate the Recall of MPs process.

However, on September 20th 2018 it was announced that the recall petition had fallen 444 votes short of the numberneeded to trigger a by-election and Paisley escaped the dishonour of being the first MP in British history to be recalled by his constituents.

Despite its limitations in Britain, recall elections have been a common electoral device in the United States. In the Federal System (Congress) there is also no mechanism to recall a Congressman or Senator. However, in nineteen states there are recall procedures in place, including California, Calorado and Wisconsin.

The Recall of MPs Act had the chance to increase democracy in Britain and was hailed by the Coalition as a major constitutional reform. However, in reality, it is extremely limited and the power to remove an MP remains with Parliament, not with that MPs constituents. It cannot really be argued to enhance democracy that much.

  ‘You idiot. You naive, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it.’

Tony Blair on the Freedom of Information Act in his 2010 Autobiography, A Journey.

In the 1997 General Election campaign the Labour Party, now rebranded as New Labour, and under the leadership of Tony Blair planned a number of constitutional changes that had the overall aim of modernising the British Constitution. One of these changes was the Freedom of Information Act (2000). So what was this and why did Tony Blair end up calling himself “naive and irresponsible for introducing it”? 

The Freedom of Information Act is sometimes confused with the Data Protection Act, but they are two very different things: 

– The Data Protection Act was a Statute Law passed in 1998. This law was designed to protect information via which a individually was personally identifiable, for instance their GP’s Records. The Act introduced rights for people to request any information held about themselves. 

– The Freedom of Information Act was a Statute Law passed in 2000 and which came into effect on the 1st January 2005. The Freedom of Information Acts gives citizens the right to access information held by public authorities. The principle behind the Act was to try to make Government more transparent and to increase public confidence in political institutions.

 The right to request information extends to most public institutions – for example the Police, Prisons and Government Departments. There are however exceptions expressly written into the Act, for example the security services, like MI5 and MI6, are exempt. In addition, information they could reasonably be believed to risk public safety, is also not disclosable. For instance, a Freedom of Information request that asked how many soldiers were living in a certain barracks would be exempt under this clause. However, there are also numerous other exemptions written into the Act, including:  

• Any information that is already publicly available- Information contained in Court Records
• Information relating to an ongoing investigation by a public body.
• Information that would harm Britain’s diplomatic relations with other countries

 Any citizen can request information under the Freedom of Information Act. The request simply has to be in writing and include a verifiable postal address. Since its inception in 2005 there have been around 120,000 Freedom of Information requests per year. Between April and June 2018 12,169 Freedom of Information requests were received. Of these, 44% wee responded to in full and 37% were withheld in full. 

It is clear that the Freedom of Information Act has had a huge impact on governance in the UK. There are a number of very important things that have even discovered through the Freedom of Information Act. A number of very important issues have come to light because of information requested under the Freedom of Information Act.

For example:

 The MPs Expenses Scandal – In 2009 the Daily Telegraph requested to see the details of MPs expenses. What they found turned out to be a journalistic goldmine. It was clear that many MPs were blatantly abusing the expenses system that was meant to help them conduct their parliamentary duties. Some of the things discovered included: 

Of particular embarrassment to many MPs was the uncovering of a culture of ‘flipping’. As an acknowledgement that MPs have duties in two different areas (their constituencies and London) MPs were allowed to claim reasonable expenses on one of these properties (their ‘second home’). However, many MPs were using taxpayer money to renovate their properties before changing which property was designated as their ‘second home’, and selling it – often making enormous profits. Some MPs faced criminal prosecutions over this issue.  

Prince Charles ‘Spider Letters’ – In 2010 a Guardian Journalist named Rob Evans made an application under the Freedom of Information Act to see letters that it had emerged that Prince Charles had sent to Government Ministers. The letters were nicknamed the ‘Spider Letters’ due to the Charles’ unique penmanship and presentatitional style.

As Charles will one day become constitutional monarch, and will be expected to politically neutral, Evans and the Guardian believed it was in the public interest for this material to be published. In 2012 the Government refused to release the papers. They argued that the letters had been written by Charles in preparation for him becoming King and were done so under the expectatation that they would be confidential. The Government argued that disclosing the documents may damage Charles’ ability to perform as King in the future. This decision was appealed and in 2014 the case was heared by the Supreme Court in Evans vs Attorney-General. They ruled by 5-2 that the Attorney-General did not have the right to veto the disclosure of the letters under the Freedom of Information Act. In the end, the letters turned out to be pretty mundane and not much of real concern was found in them. However, this case set a very important precedent about the scope of the Freedom of Information Act.  

 Despite being the person most responsible for its implementation, Tony Blair later said that the Freedom of Information Act had been a mistake. He argued that:

 – For the most part, Freedom of Information was not used ‘by the people’ but by journalists for political purposes. This had not been his intention in pushing for the Act.

 – Government Ministers are no longer able to discuss things with a reasonable expectation of confidentiality. He argues that rather than increasing transparency, this reduces the effectiveness of Government. 

The last point, is a particulary interesting criticism of Freedom of Information. During David Cameron’s premiership members of his team were critcised for conducting Government business via Whatsapp. Their only reason for doing this is to avoid the publication of their thoughts via a Freedom of Information Request. In this respect, it could perhaps be argued that the Freedom of Information Act (2000) has had negative effects on the machinery of government.        

One of the often forgotten sources of the UK Constitution are works of authority. These are works, that although not legally binding, are often looked at as important reference points for how the constitution should run.

There are numerous works of authority and new ones develop every year. However, some of the most famous are:

The English Constitution (1867) by Walter Bagehot

In English Constitution was written by Victorian constitutional scholar Walter Bagehot. The book explores a wide range of constitutional issues, but is particularly famous for its outlining of the principles of constitutional monarchy. Among the observations made by Bagehot were that:

– There is a difference between them ‘dignified parts’ of the constitution and the ‘efficient parts’. Bagehot said that the monarchy, and the tradition that surrounded it, were the dignified parts but the mechanisms by which government was run were the efficient part.

– He summed up the role of the monarch in government by saying that they had the “right to be consulted, the right to encourage and the right to warn”

– He said that although the House of Lords played an important constitutional role it must “yield to the people”, by acquiescing to the elected House of Commons when required.

– He said that the fusion of powers was the efficient secret of the UK constitution

Bagehot’s work was seen as seminal and became a guiding constitutional work for generations.

An Introduction to the Study of the Law of the Constitution (1885) by A.V Dicey

Albert Venn Dicey was a Victorian lawyer who specialised in constitutional issues. He wrote the Study of the Law of the Constitution in 1885 which quickly became a hugely influential work. Within it, it Dicey became the first scholar to codify the concept of the Rule of Law which he said was, alongside parliamentary sovereignty, one of the “twin pillars” of the UK constitution. Within the nook he also explained the concept of parliamentary sovereignty in detail, but said it could simply summarised as Parliament can “make or unmake any law”.

A Treatise on the Law, Privileges and Usage of Parliament (known as ‘Parliamentary Practice’) by Erskine May

Erskine May was Clerk of the House of Commons from 1871 to 1886. The Clerk of the House of Commons is the most senior unelected position in Parliament and is the senior advisor on constitutional issues to Members of Parliament. The book was first written in 1884, but has since been republished 23 times, with the 24th edition being published on the 30th June 2011.

It is widely considered to be the bible of parliamentary procedure and is the first port of call for parliamentarians that are trying to understand issues in Parliament. The book covers most conceivable issues that might arise in Parliament and is often considered to be the most important of all works of authority on the British constitution.

The Rule of Law by Thomas Bingham

The Rule of Law was written in 2010 by Thomas Bingham, a former Senior Law Lord. Within the book, Bingham dedicates each chapter to what he considers to be the fundamental elements of the Rule of Law. The chapters are:

The accessibility of the law
Law not discretion
Equality before the Law
The Exercise of Power
Human Rights
Dispute Resolution
A Fair Trial
The Rule of Law in the International Legal Order

The importance of Bingham’s work is that it builds on Dicey’s codification of the Rule of Law but gives due diligence to the fact that concepts of law have changed since the 19th century, when, for example, the concept of universal human rights was not popularised.

None of these works are legally binding, instead, they form reference points for constitutional actors, scholars and lawyers. As Tom Bingham’s Rule of Law shows, new authorities will continue to emerge in the future that will help with the understanding of Britain’s uncodified constitution.

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The week before last week Theresa May faced perhaps her most difficult moment as Prime Minister as her plan for Brexit, the Chequers Plan, was rejected by EU Leaders during a meeting in Salzburg. Time is running out in the Brexit negotiations, with a no-deal scenario seemingly more likely every day. So, given the Conservative Party Conference takes place this week,  what happened in Austria and what is next for Theresa May?

Almost as soon as becoming Prime Minister Theresa May made clear that “Brexit means Brexit”. However, this statement did little to clarify what kind of Brexit she wanted.

Ever since the vote of June 23rd June 2016, there has been a debate over which type of Brexit Britain should have. Some people advocate a Soft Brexit, whereby Britain leaves the European Union but remains closely aligned with it, for example by remaining in the Single Market. Others want a Hard Brexit, where Britain completely separates itself from the European Union and its institutions and forges a new path independently. One of the problems faced by Theresa May is that her own party is deeply divided over which approach to take.

Clockwise from Top Left: Anna Soubry, Kenneth Clark, Dominic Grieve and Nicky Morgan. These are some of the Conservative MPs that want a Soft Brexit.

Boris Johnson and Jacob Rees-Mogg are two MPs who favour a harder form of Brexit than that that Theresa May proposes in her Chequers Plan.

The result of the referendum was 52%-48% in favour of leaving. Although this is a clear mandate to leave the European Union, it is less clear what type of exit British voters want. As Prime Minister Theresa May has had to manage expectations of her party and the population, whilst simultaneously having to negotiate a deal with the European Union.

It is clear that the position of the British Government under Theresa May has changed through time. Since becoming Prime Minister, Theresa May has given two important blueprints for her negotiating position with the European Union.

Lancaster House (17th January 2017)

This speech was made at Lancaster House in London. It was the first time that Theresa May had outlined Britain’s negotiating stance. A number of key points emerged in the Lancaster Speech:

• Britain would not remain in the Single Market as this would mean that Britain would have to comply with Freedom of Movement, meaning that immigration could not be controlled. In addition, Britain would have to remain under the jurisdiction of the European Court of Justice (ECJ). The Government judged that remaining in the Single Market and under the jurisdiction of the ECJ would not be in keeping with the mandate they were given to ‘leave’ the EU.
• Britain would not be part of the EU Customs Union. The Customs Union is  an area within which tariffs cannot be placed on goods. However, being a member of the Customs Union means putting in place the same external tariffs as the EU. This would make it difficult for Britain to strike up its own trade deals after Brexit.
• Britain would seek a phased implementation of the new arrangements to ease the transition.
• Britain would not seek to join the European Free Trade Area. This is an extension to the market of the EU, used by countries like Norway. EFTA Members have access to the Single Market granted in exchange for an acceptance of Freedom of Movement. Due to the perceived requirement to have greater control over immigration, this was not something that May could countenance.
• Theresa May promised to avoid a hard border between Northern Ireland and the Republic of Ireland.

Chequers Plan (7th July 2018)

Little progress was seemingly being made on the basis of Theresa May’s Lancaster House Speech. There were divisions within her Cabinet, some of which had been aired very publicly. Therefore, in early July 2018 the Prime Minister summoned her Cabinet to Chequers, the Prime Minister’s official country retreat. There, the Cabinet (at least most of them) agreed on a new negotiating stance with the European Union. Under the Chequers Plan:

• The UK would follow a common rulebook for goods – meaning the same standards would be applied in trading in goods as the European Union has. The Government argue that this is a way to keep as seamless a trading relationship as possible with the EU. Importantly, it would be down to Parliament to oversee this and Britain would not be bound by ECJ rulings.
• A joint framework would be established to monitor and interpret UK-EU trading arrangements. This would be done in the UK through UK Courts and through the EU by EU Courts.
• Borders between UK and EU would be treated as a combined customs territory, meaning the UK would charge EU tariffs for any goods that were destined for the EU.

Theresa May did not get the reaction to Chequers that she hoped from fellow EU Leaders.

Last week the Prime Minister took her Chequers Plan to Salzburg for a meeting with EU Leaders where it was where it was swiftly rejected. This has damaged her position as Prime Minister hugely. There was scepticism from EU Leaders at Theresa May’s plan to follow a Common Rulebook on goods. To many in the EU, this appears that Britain is trying to ‘have its cake and eat it’ – by gaining the benefits of EU Membership without any of the costs.

However, one issue stands out more than any other – the position of Northern Ireland.

Between 1968 and 1998 Northern Ireland was embroiled in a period called the Troubles. During this period, Unionist and Republican communities were fighting a bloody war. The British Armed Forces were deployed to Northern Ireland to try to keep the peace. In total, over 3,500 individual from both sides lost their lives. One of the most enduring images of the Troubles is of the border check-points between the Republic and Northern Ireland.

One of the most important achievements of the peace process in Northern Ireland is the removal of a hard border between Northern Ireland and the Republic of Ireland. This allows seamless trade of goods between the two countries, as both are part of the the European Union. However, if Britain leaves the European Union free movement between Northern Ireland and the Republic will no longer become an automatic right. An agreement to maintain it has to be reached with the EU.

As far as the EU is concerned, if Britain leaves the EU, any free movement of goods across the Irish Border is not acceptable. They argue that this would fundamentally undermine the Single Market.

The EU propose that Northern Ireland remains in the Single Market, whilst the rest of the UK leaves. For Theresa May, is something that cannot happen – as it would see Northern Ireland economically detached from the rest of the United Kingdom, with a virtual border down the Irish Sea.

The disagreements over Northern Ireland seem isoluble, yet without it, it is hard to imagine a deal can be reached. Innovative thinking, and compromise, needs to be bought to the fore on both sides.

The number of questions marks over Brexit, and Theresa May’s future are rising. Tomorrow’s article deals with how a Tory Leadership contest would take place – a scenario that is seeming more likely.