For a party whose members often pride themselves on being defenders of the UK’s unwritten constitution, it is surprising how Conservative MPs have recently shown little regard for conventions – some of which were considered so important as to be almost binding not that long ago.
Because our constitution is unwritten, UK law has evolved through a variety of different sources. These include established customs and practices of political behaviour, or ‘constitutional conventions’, which are considered by the courts to be binding but not enforceable.
While they adapt and develop with socio-political change over time, most conventions remain a vital part of the way in which government, Parliament and the courts interact. Without the convention that the prime minister should be the person who leads the party (or coalition of parties) with an absolute majority in the House of Commons, government would be left in disarray.
The convention of individual ministerial responsibility means that government ministers are responsible to Parliament for the policies and administration of their department and for their own personal conduct. There must be no conflict of interest between a minister’s public duties and his private interests. A Minister who breaches this convention should resign.
That’s why in 1982 the foreign secretary, Lord Carrington, resigned following criticism of the Foreign Office, which failed to plan for the Argentine invasion of the Falkland Islands. In 2004, David Blunkett resigned as home secretary after an affair with a married woman whose nanny’s visa application he had fast-tracked.
Fast-forward to a year ago and the behaviour of Jeremy Hunt, then culture secretary, over the BSkyB bid provides a sharp contrast. Hunt’s office, through his special adviser Adam Smith, regularly updated News Corp on the progress of its bid to takeover BskyB – hardly “completely fair, impartial and above board” although this is how Hunt described his own behavior. Smith duly resigned. Astonishingly the buck stopped there. David Cameron decided that Hunt had not breached his ministerial responsibility, and that was that.
Arguably, Hunt broke both arms of this convention – principally his responsibility for the administration of his department, special advisers included (as set out in the ministerial code) – and possibly even the conflict of interest between his public duties (a fair contest for the bid) and his private interests (he admitted being “sympathetic” towards News Corp’s bid while denying being at all biased).
Thirty years ago the idea that a Minister would remain in office in such circumstances was unthinkable. But although many called for Hunt’s head, he kept his job and was even promoted shortly thereafter.
Another convention exists to maintain the separation of powers between the judiciary and government – criticising in public individual members of the judiciary. It is not uncommon for friction to occur between home secretaries and judges – Labour has had its own run ins in the forms of David Blunkett and Charles Clarke – but recently Theresa May marched into unchartered territory with an unprecedented vocal attack on unnamed judges. Directly following a judgment against the deportation of a foreign criminal, it was not difficult to determine exactly which judges she meant.
The moment that judges feel threatened by the government, their legitimacy and independence is called into question. May’s attack was so fierce that Lord Neuberger, president of the Supreme Court, said that her strongly worded criticism was “inappropriate, unhelpful and wrong”.
Labour is by no means faultless. However, it is astonishing that the Conservatives, apparently so fond of our unique constitution governed by discrete checks and balances, should so blatantly pick and choose conventions with such little regard for the consequences.
There are many Eurosceptic Tory MPs deeply attached to the idea of parliamentary supremacy over EU law, as well as many unwilling to endorse constitutional reform of the House of Lords. But conventions don’t exist for the government to use only those which suit their needs and disregard those that don’t. The respect and discretion placed upon conventions are what hold together our political framework for hundreds of years.
If an unwritten constitution is to remain a legitimate form of governance, the Conservatives need to start practising what they preach.