Constitutional Conventions: An Analysis of its Appropriateness in Limiting State Power - Report Example

Constitutional Conventions :An analysis of its appropriateness in limiting power Introduction In ages past, humanity had seen rulers using their power to enrich themselves by taking advantage of the ones they rule. History abounds with stories of repression and manipulation by people who were supposed to be their leaders. But those are stories of memories past. The government or the contemporary structure that governs most parts of the worlds is now dedicated to the service of its people. The current trend of thinking is that the government exists primarily because of the need to lead and serve the needs of the populace. It is there to provide the necessary system and policies to deliver the health care, education, business, legal, security and housing needs of the public. It is, by itself, a solutions provider. The logic behind this service is that the people they govern are taxpayers – meaning, they pay the government with a part of their income. This in turn is returned to them thru the services just mentioned. It therefore becomes apparent that the state is deemed responsible for the welfare of its constituents. Any policies that they make should be formulated with the deepest and rational reflection of its features and any consequences that may result from its application. Civil servants are there not to abuse the mandate given to them but to fulfill the expectations of the public. The government is expected to operate in such a way that its personnel can be held directly responsible for the actions that they make. In the United Kingdom, there is no written constitution. Instead, the country has a collection of legal instruments that have developed into constitutional laws. The way the government operates is thru the use of these constitutional conventions. Constitutional conventions are informal and uncodified rules that have been agreed upon and are followed by the institutions of the state. They are not written in any legally binding documents but they are still observed. The rules are not obligatory but since all sides have agreed upon it, it is strictly adhered1. Having such an informal nature, constitutional conventions are said to have inherent weaknesses. One of these weaknesses, it is said, is that it is inappropriate when it comes to limiting state power. This paper shall explore that possibility by using the constitutional convention Individual Ministerial Responsibility as a model. Individual Ministerial Responsibility (IMR) Individual Ministerial Responsibility is a constitutional convention in governments employing the Westminster system. This convention states that the Cabinet Minister should take full responsibility for all the actions of civil servants in his ministry. The traditional concept of IMR is that the minister is ultimately responsible for all the actions of civil servants under him even though he may not have the knowledge of such actions. A case in point was the resignation of Sir Thomas Dugdale over the Crichel Down case in 1954. The minister of Agriculture resigned despite of the fact that the mistakes within his department were committed without his knowledge with some of the mistakes even deliberately and mischievously committed by the civil servants. The successful invasion of the Falkland Islands by Argentina also prompted the resignation of Lord Carrington, then Foreign Secretary, along with two of his junior ministers. The contention was that they failed to their duties by ensuring a sound Foreign Policy2. However, the convention is now being interpreted such that lack of knowledge no longer makes a minister fully responsible for the actions of his ministry’s civil servants although he is still required to explain to the Parliament. Sir David Maxwell summed it up in the following statement3: “The Minister is bound to defend action of which he did not know or of which he disapproves. But he remains constitutionally responsible to the Parliament for the fact that something has gone wrong and he alone can tell Parliament what has occurred and rendered an account of his stewardship”. The minister is given four options to give effect to the IMR which are the following4: 1. Inform and Explain The minister is expected to inform the Parliament of any developments and major events within his ministry. He is also expected to explain actions and policies to the same institution. The methods available for the ministers to be able to do this are ministerial statements, green and white papers and consultation papers. 2. Apologise The minister is expected to apologise to the Parliament for any error within his ministry even though this may not directly involve him. 3. Take Action Failure or unsatisfactory affairs within the minister’s sphere of responsibility are expected to be remedied by the minister. This applies whether or not resignation is involved. 4. Resign If the minister has been proven to be negligent of their duties or if he cannot offer any satisfactory explanations for any mishaps within his department then the ultimate recourse for him is to resign his position. As noted earlier, the ministers may not be held responsible for any actions within his ministry that he has no knowledge of but he is still accountable to Parliament. With this operational definition of Individual Ministerial Responsibility, a distinction between individual responsibility and accountability makes itself pronounced. The consequence of this distinction can be seen in the actions of ministers who defend themselves from criticism by pointing out that mishaps or any undesirable event that occurred within their sphere of responsibility occurred due to operational failure rather than faulty policy. This was the argument used by Northern Island Secretary of State James Prior to defend himself and his Under Secretary Nicholas Scott from the breakout of 38 IRA from the Maze Prison5. This line of reasoning has become the general norm of UK’s government administration. Individual Ministerial Responsibility, therefore, is not concerned with accepting general responsibility but is more concerned with the Minister finding out who or what can account for the failures in the state of affairs. This is rather ambiguous since it is difficult, even paradoxical, to determine if it was operational or policy failure that is to be blamed. IMR and State Power The foregoing discussion implies that constitutional conventions are an inappropriate attempt to limit the powers of the state. It only shows that constitutional convention can be confusing and is prone to redefining or interpretations such that it tailors to the interests of those in power – in this case, the state. Going back to the Maze Prison incident, it was highlighted that the supervision of the prisons in the province was under the Under Secretary of the Northern Island Office. Following the traditional definition of IMR, then Secretary of State, James Prior, would have been held responsible for the breakout. Yet, as the case developed, IMR was redefined such that the operational system was blamed instead of the policy makers6. It is then the operational personnel that must be changed rather than the Secretary himself. The redefinition literally saved James Prior from the humiliating process of resignation. It only goes to show that the constitutional conventions can be redefined such that the state and its policy makers can be protected from any political fall out. Thus, whenever the state adapts a policy, it can always wash its hands from any undesirable effects and events that stemmed from the policy. It can always say that the policy was excellent but the execution and operation was defective. This is like saying that the administration cannot be blamed by the public because it was not them that cause the failure. Having said that, what then hinders the state from adopting policies that proves to be faulty in the future or from exercising or even widening its powers? For sure, the public, the media and the opposition can generally criticize the administration but the fact remains that the policies has already been implemented. Even if the government executives, those who replaced them can still use the defense afforded to them by the IMR to avoid any responsibility for failures in their ministries. Furthermore, since constitutional conventions have an informal and uncodified nature and therefore not legally binding, legal complications may arise in the prosecution of those responsible for faulty policies. At the end of the day, we have seen, thru the use of IMR, that constitutional conventions are indeed inappropriate in terms of limiting the power. The discussion of IMR and its evolution provides an example of how conventions can be manipulated in such a way that it makes the government executives immune to blame. The informal and unwritten nature of constitutional conventions makes it prone to redefinition and ambiguities that can serve the interest of the few. References: wikipedia.org (2006). Constitutional Conventions. Retrieved from Nov 6, 2006 from wikipedia.org Butler, D.G. (2000). Twentieth Century British Political Facts 1900-2000, 8th ed., pp.74-76 House of Commons Deb Vol. 530, cc 1286-87, 20 July 1954. Retrieved Nov 7, 2006 from www.parliament.uk/commons/lib/research/rp2004/rp04-082.pdf Flinders, M. (2000). “The enduring centrality of individual ministerial responsibility within the British constitution”. Legislative Studies. p. 73-92. Flinders, M (2001). The Politics of Accountability in the Modern State. P. 48 Finer, S. (1956). ‘The Individual Responsibility of Ministers’. Public Administration; pp. 377-96 Read More