Ministerial Irresponsibility in the UK Government: Constitutional Accountability after Theresa May and Boris Johnson - Michael Gordon
This article provides a comprehensive analysis of the operation of the constitutional conventions of ministerial responsibility in the United Kingdom (UK) between 2016 and 2022, during the momentous governments of Prime Ministers Theresa May and Boris Johnson. It argues that the UK Government has entered an era of constitutional accountability defined by ministerial irresponsibility. This re-conceptualisation of the UK’s framework of political responsibility has five dimensions: a historic volume of ministerial resignations; the existence of gaps and imbalances in the application of the conventional rules; the exacerbation of tensions in political responsibility by intense political disagreement; the specific challenges generated by the role and responsibilities of the Prime Minister; and the failure of the dual normative purposes of these rules underpinning responsible government. By arguing that the UK Government’s constitutional practice is now best characterised using the idea of ministerial irresponsibility, the article moves beyond claims that the conventions of ministerial responsibility were either destroyed or vindicated during the May-Johnson era. Instead, the concept of ministerial irresponsibility is intended to capture the systemic failings of this fundamental part of the UK’s political accountability framework, in a context where the specific rules of ministerial responsibility retain both descriptive and normative constitutional salience. The article argues that these constitutional norms must ultimately be redeemable, although there is little evidence in the period after May and Johnson that the UK’s era of ministerial irresponsibility was a short-term deviation from standard practice, rather than a more fundamental shift.
The Developing Jurisprudence of the Supreme Court on Convention Rights - Lord Sales
The Supreme Court has been the intermediary between the Convention system at the international level, as enforced by the European Court of Human Rights in Strasbourg, and the domestic legal system, as framed by the Human Rights Act 1998. This has informed the way in which the Supreme Court has developed its jurisprudence when ruling upon the meaning and effect of Convention rights in the domestic legal order. Six themes have emerged in the recent jurisprudence of the Supreme Court in carrying out that task. (1) Consistency in rights interpretation, and a concern whether the translation of obligations from the international to the domestic plane might alter the content of such obligations. (2) The approach to be adopted by domestic courts when faced with a gap in the Strasbourg court’s jurisprudence, explaining what the "mirror principle" requires. (3) The standard of review to be applied by appellate courts when reviewing a lower court’s decision on proportionality, and the factors that influence the approach endorsed by the Supreme Court. (4) The impact of Convention rights on the form of law, and how the choice of a form of law reflects, in the context of the Convention, the relative importance of the competing aims of flexibility and certainty. (5) The extent to which unincorporated treaties might indirectly influence the interpretation of Convention rights in a manner compatible with the UK’s dualist system. (6) The importance of the margin of appreciation in driving the practical outcome in the determination of disputes. The Supreme Court has sought to promote rule of law values in the application of Convention rights by providing determinate guidance to lower courts that is underpinned by articulated and justified principles.
A Defence of the Human Rights Act 1998: The UK, The European Court of Human Rights and Immigration - Matilda Gillis
The Government of the United Kingdom (UK) has long been concerned that the European Court of Human Rights (the ECtHR) impedes the work of the UK Parliament and threatens its democratic sovereignty. These concerns appeared to culminate in 2021 when the Government sought to replace the Human Rights Act 1998 with a new "modern" Bill of Rights. Although that Bill was ultimately withdrawn from the Parliament, the arguments against the Human Rights Act 1998 and the ECtHR, have persisted and even strengthened in intensity. The purpose of this article is to show that these concerns and arguments are excessive and inaccurate and, in turn, to provide a defence of the Human Rights Act 1998 and of UK membership of the European Convention system, as well as a tool to evaluate and scrutinise both governmental plans and the public justifications for those plans. The article demonstrates that, even when the ECtHR makes a decision which is adverse to the UK, the UK is not left without options, and the Government is not essentially forced to act against its stated and desired objectives. Rather, what occurs is that the UK Executive and Parliament in effect work and interact with the ECtHR to produce a moderated protection of rights, which respects both the minimum standard of rights protection set down by the Court, and which, significantly, still achieves the Government’s original legislative and policy goals. The article illustrates this by providing an in-depth examination of three decisions made by the ECtHR adversely to the arguments made by the UK Government. The effect of each decision examined here was to provide some protection to non-UK nationals to enter and/or remain in the UK. The immigration focus of the article is deliberate. It is the area in which the intervention of the ECtHR gives the UK Government its potentially strongest argument against the Court.
Who should Exercise the Hospital Managers’ Discharge Power under the Mental Health Act 1983 s.23?
- Thomas E Webb
Mental Health Act 1983 (the Act) s.23 empowers hospital managers to review decisions made by healthcare professionals about whether compulsory mental health care is justified, and to order a person’s discharge where they find it is not. Decisions are made by Hospital Manager Panels (HMPs) in a judicial-type process. Section 23 expressly authorises hospital managers to delegate this responsibility, and indeed it is assumed that hospital managers pass their HMP function to specially appointed members of the local community; Associate Hospital Managers (AHMs). There is no data about whether, or understanding of the basis upon which, delegation occurs. To address this in relation to NHS providers of mental healthcare, this paper discusses (i) data derived from Freedom of Information Act requests to 62 NHS trusts and health boards in England and Wales, and (ii) a framework to justify how delegation decisions should be made by hospital managers based on expectations arising from governance arrangements, constitutionality and democratic community legitimacy. This framework is grounded in the expectation that HMPs serve three functions: review mechanism, safeguard for service user rights, and democratic legitimacy-generating process. This framework promotes an approach to HMPs which should be incorporated into any future mental health legislation following the demise of the Draft Mental Health Bill 2022.
From Sovereignty to Social Liberalism: Two New Dimensions of Constitutional Identity in Ireland - Eoin Daly
The question of constitutional identity has long been muted in Ireland, largely because the Supreme Court affirmed a principle of unlimited constitutional amendability which precluded any immutable core of constitutional "identity" being recognised. However, the concept has recently become more prominent in two, quite different senses. First, the Supreme Court has recently recognised constitutional identity as a limit on the Government’s capacity to ratify international treaties, thus developing a formal doctrine of constitutional identity for the first time. Secondly, in the period since the great recession, constitutional referendums have increasingly been used as a mechanism of identity-affirmation, crafting an organic constitutional identity that has, in practice, been linked with a new politics of social liberalism in Ireland. This article describes both the limits and specificities of the new formal doctrine developed by the Supreme Court, as well as the peculiar use of constitutional referendums as a symbolic and identity-affirming mechanism in recent Irish politics.
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