11th April 2022
How could it be allowed, I was asked, for someone with a Green Card and who was married to a Non Dom to be a member of the cabinet?
The answer I gave was that – in principle – anyone can sit in the cabinet and be a minister.
This is one of the examples of the flexibility of the constitution of the United Kingdom and its reliance on conventions.
There are some relevant limits – there is a limit on how many paid ministers there can be.
But this does not limit unpaid ministers – or which ministers are invited to attend cabinet.
And there are limits on how many ministers can be paid at each grade:
There is no requirement as to place of birth or nationality.
The former prime minister Andrew Bonar Law was from New Brunswick, which was in Canada by the time he was prime minister.
A more recent prime minister was born in the United States.
(Yes, him.)
And we have had at least two other prime ministers – including the Duke of Wellington – who were born outside the United Kingdom by reason of being born in Ireland before the Act of Union.
There is also no requirement as to usual residence.
In the second world war we had ministers such as Macmillan resident abroad.
And the South African politician Jan Smuts and other Empire ministers were members of a so-called imperial war cabinet in London in the first world war.
Nobody gave any of this a second thought.
Strictly speaking, you do not even have to be a member of parliament (or a lord) to be a minister.
Indeed, technically, ministers are not members of a parliament between the dissolution of an old one and the start of a new one.
(And so the ‘well actually’ answer to the quiz question as who was the last prime minister not to sit in the house of commons is neither Douglas Home nor Salisbury but Johnson in 2019.)
Under Thatcher, the then Solicitor-General for Scotland Peter Fraser once carried on in his office after losing his parliamentary seat in 1987 for two years before becoming a peer, as there were no other Scottish Tory MPs to take the job.
Of course, there is a practical problem of accountability – a minister cannot stand at the front bench unless he or she is a member of either house of parliament.
But in both the commons and the lords it is not unusual to have one minister answering on behalf of another – so not even this practical problem is insurmountable.
By convention cabinet ministers also are or are appointed as privy councillors – but this is not a limitation, as many non-ministers are appointed to be ‘Right Honourable‘.
The ‘Right Honourable” title is sometimes even given to politicians as a consolation prize for not joining the cabinet.
So, in answer to the query mentioned at the start of the post: there is nothing formal stopping anyone being appointed a minister, even to the cabinet.
Even someone who were a Non Dom themselves.
Perhaps there should be formal restrictions: but as it happens, there are not.
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On 10 October 1984 Mrs.Thatcher made David Young, who had never been a Parliamentary Candidate, a life peer [Baron Young of Graffham] after he was appointed Minister without Portfolio but prior to becoming Secretary of State for Employment [1985] and Secretary of State for Trade and Industry in 1987.
The timing is correct: Young left the Manpower Services Commission to become minister without portfolio in the Cabinet Office – and indeed a cabinet minister – in September 1984, but did not become a peer until October, although Peter Hennessey had reported the possibility that Young might become a peer and a non-departmental minister – effectively Thatcher’s chief of staff in a new “Prime Minister’s office” – in April 1984.
And nearly 40 years later we are still talking about the pros and cons of formalising a separate “Prime Minister’s Department”.
Lynda Chalker, Minister of State for Overseas Development, was thrown out by the voters in 1992 but immediately given a peerage by John Major, enabling her to keep her job.
The Constitutional Reform and Governance Act 2010 provides that members of either House must be tax resident in the UK. Which is why Lord Ashcroft gave up his membership of the Lords. Non Dom’s are clearly NOT tax resident in the UK.
But they can still be ministers.
True, in theory. But in practice difficult. And any MP who is not tax resident in the UK should not be an MP.
Shouldn’t voters be allowed to elect whoever they want? Is it the role of government to vet their representative.
MPs are already required to be UK, Irish or Commonwealth citizens, not bankrupt, etc, so the notion that there are qualifications for Parliament is already well-established. I don’t see that any line would be crossed by requiring candidates to be resident, ordinarily resident or domiciled in the UK.
Here is Part 4 of the Constitutional Reform and Governance Act 2010 (as amended) : https://www.legislation.gov.uk/ukpga/2010/25/part/4
If a person is a member of the House of Commons or the House of Lords for any part of a tax year, they are treated as resident and domiciled in the United Kingdom for the whole of that tax year for the purposes of income tax, capital gains tax, and inheritance tax.
But as David says, a person may be a government minister in the UK without being a member of the House of Commons or the House of Lords.
(Domicile is very different from residence, incidentally: a person who is domiciled outside the UK – in India, say – can be resident in the UK for tax purposes for up to 15 years before they are deemed to be domiciled in the UK for tax purposes, and they could still actually be domiciled overseas for other purposes.)
Currently reading, “Midnight in Washington: How we almost lost our Democracy and Still Could”, by Adam Schiff, Democratic representative of California’s 28th Congressional District.
In Chapter 2, writing of his experience of spending his sophomore year in London, explaining,
“I spent three months studying British constitutional law there. In small and ornate classrooms, once the preserve of dukes and earls, my professor expounded on Britain’s unwritten constitution, comprised of Acts of Parliament, court judgements, and convention. It was astounding to me that a nation that could give rise to such strong principles of constitutional jurisprudence should rely so heavily on unwritten rules – not even the existence of the office of prime minister is codified, but rests only on a strong historical tradition. I thought that our Bill of Rights, and the checks and balances of our system, had a much more solid foundation, because they were laid out explicitly in a written document. Little did I understand how reliant our democracy was on its own conventions, and how easily those norms might be overthrown.”
I suspect (with zero evidence, as is customary [for me!]) that we might be collectively taken-aback if given a full explanation of exactly how much of our democracy is based solely on tradition, without the safety net of sound, legislative foundation.
Then the Chancellor shouldn’t have met the CTC, SC and DV requirements that are in place for most of civil service positions.
I do understand the difference between a minister politically appointed and the civil service. However, if anyone should have lived at least for 3 years in the country before joining the CS, similar rules should apply for the ministers…
It’s quite odd to have a Chancellor whose dom is in the States…
If Brexit is to really mean anything then surely the days of dual nationality and mixed race are over because otherwise Brexit can hardly mean Brexit.
The only people who can truly be British must be those born in Britain of parents who themselves are 100% British. This is at the crux of the latest nationality bill which appears to be in accordance with what people democratically voted for. Compulsory DNA might become commonplace.
There are therefore many people in Parliament who should not be there if the will of the people is to be respected.
In Australia where they have both PR and compulsory voting the results have not been particularly edifying. Also linking nationality to the Australian Parliament has raised some unexpected consequences for certain politicians over there.
Where does such reasoning end ?
The reference to the Duke of Wellington should be put into historical context. The Duke himself commented that just because he was born in Ireland did not mean that a donkey could never leave the stable . Hence he was not too popular with his compatriots.
The late Prince Philip, consort to Queen Elizabeth the Second, was born “Prince Philip of Greece and Denmark”. His Father was Prince Andrew of Greece and Denmark. His mother was Princess Alice of Battenberg.
On that factual basis I think it’s fair to state that Prince Philip was not British. Since he married Queen Elizabeth the Second, it also follows that he is the Father the Prince Charles, heir to the throne, along with Prince Andrew, Prince Edward and Princess Anne, who, since clearly born of a non-British father, would also not qualify as British. Is this what you were trying to say when you wrote about people with mixed race hardly meaning Brexit?
I’m honestly not sure how you managed to come up with a reference to Brexit at all, considering the original article was based on the Green Card carrying status of the Chancellor, unless of course your view is that the United States is now a member of the EU?
Prince Philip may well have started with a domicile of origin outside the UK. Given he has been married and resident in the UK for more than 70 years before he died and was buried here, and in most of that time showed little continuing connection or apparent desire to return and live permanently in Denmark, Germany or Greece, or anywhere else, I’d suggest he probably acquired a domicile of choice in the UK at some point during that period. Perhaps even before Charles was born in 1948, but more securely before Charles turned 18 or 21.
I suspect Charles might laugh at the suggestion that he may have inherited a non-UK domicile from his father.
I agree.
I was simply pointing out what I felt were flaws in the logic of Richard’s argument.
As has been quite eloquently and famously stated, Brexit means Brexit. We have now left the EU, so that means Brexit is fully complete and means nothing more.
Your definition means that nobody is British. If you go back far enough, the British Isles were uninhabited, so nobody was British. Since you require that British person’s parents are both British, this means nobody could ever be born British. We’re all descended from immigrants – the only difference is how far back you have to look to find them. Plus, of course, the land was inhabited long before any political entity arose which could be referred to as “Britain”. Your definition is nonsensical and racist.
Elections are just as much the will of the people as the Brexit referendum. Since the current Commons has been elected since the referendum, its membership overrides implications of in the referendum.
From the states: from watching British politics for 50 years or so as an interested political junkie (I’m 71) I see the “flexibility” of the British system as a tradition that allows—even encourages—avoiding accountability. When you rely on the honor of a politician to accept voluntary accountability you can’t expect much more than the elected dictatorship you seem to have maneuvered yourselves into.
This feels like another example where we assume that people will behave like ‘good chaps’ until they don’t.
In Sunak’s case, the major problem may not be the ‘non-dom’ status itself but the fact that he was so blind – or arrogant? – not to see it was a problem.
The nasty smell surrounding him now is whether some of his decisions may have had a beneficial result for his spouse – short-lived though it may have been as she changes her tax status.
Am I the only person amused by the PM suggesting that politicians families should be kept out of the glare of publicity?
A clarification, as well as being in Churchill’s war cabinet, Johan (Jan) Christian Smuts was also the Prime Minister of the then Union of South Africa.
What we have to remember is that it’s HM’s government, not the people’s. Ministers serve the Crown, not the Commons.
> By convention cabinet ministers also are or are appointed as privy councillors – but this is not a limitation, as many non-ministers are appointed to be ‘Right Honourable‘.
Well actually…! The Cabinet is a quasi-executive committee of the Privy Council. Membership of each may be legally inconsequential, but for cabinet ministers PC membership is a prerequisite not a mere perk.
Moreover, the 1700 Act of Settlement prevents denizens and other non-naturalised foreigners from being Privy Counsellors. https://www.legislation.gov.uk/aep/Will3/12-13/2/section/III There are exceptions for Irish and Commonwealth citizens https://www.legislation.gov.uk/ukpga/1981/61/schedule/7/crossheading/act-of-settlement-12-13-will-3-c-2/enacted which were inadvertently repealed in 2006 before hastily being reinstated in 2010. https://www.legislation.gov.uk/ukpga/2010/25/section/47
“for cabinet ministers PC membership is a prerequisite”
Go on Rich, tell us your legal authority for this.
That the Cabinet is an emanation of the Privy Council is a question of fact. Witness, for example, the Cabinet Manual – “Cabinet is the executive committee of the Privy Council.” https://www.gov.uk/government/publications/cabinet-manual (1.14) Even allowing for that document’s breeziness and partisan authorship, that is a categorical, recent and (contemporaneously at least?) undisputed assertion from an authoritative source. Ivor Jennings, for comparison, is intriguingly ambivalent: “…the Cabinet is merely a private meeting of the more important ministers. It is, however, the rule that Cabinet ministers should be sworn of the Council…” https://archive.org/details/in.ernet.dli.2015.13116/page/n73/mode/1up But that ambivalence is mitigated by Jennings being less authoritative than the above and less recent than the below.
That the constitution of the Cabinet is in at least some circumstances justiciable is put beyond doubt by the Ministerial and other Salaries Act 1975 distinguishing certain officeholders according to whether they are “members of the Cabinet”.
Admittedly membership of committees of the Cabinet is not in turn confined to members of the Cabinet in the way that Cabinet membership is confined to members of the Privy Council. But then Cabinet committees are not the subject of an Act of Parliament.
That said, whether Parliament had Jennings’ “rule” in mind more than his “merely”, is an open question. But the Cabinet Office itself has weighed in with the rule.
So no legal authority, in other words :-)
To be fair, Gina Miller has only so much time. Or have we strayed into Jackie Weaver’s parish? Anyway, noting the lack of citation for your bearish assertion ;_;
We might struggle for a specific legal authority, but as Rich says isn’t the Cabinet effectively (if not formally) an executive subcommittee of the Privy Council? Are there examples of cabinet ministers who are or were not privy councillors?
All very nice and fogeyish – but what legal prohibition is there on who can serve in a cabinet, in the way that an MP can formally be disqualified from the house of commons?
Fogeyish my arse. This is the sort of thing that actually happens when much of the constitution is unwritten.
What laws govern the membership and functions of the privy council or the cabinet? There are acts recognising the existence of the privy council, such as the Judicial Committee Act 1833, but membership is at the pleasure of the crown, on advice from the prime minister, and subject to taking the requisite oaths (for what that is worth).
You may call it nonsense if you like, but I’ve heard nonsense, compared with which that would be as sensible as a dictionary.
And the Commons individually swear allegiance to the Queen and her heirs, thus rendering their House incapable of challenging the monarchic principle. Only the monarch, exerting the powers of absolute autocracy, appears to have the capacity to scrap itself. The deeply-buried latency of those powers and the illusion that, in the interests of sanity and stability, no-one seriously expects them to be used makes the relationship of the Crown to the Commons rather similar to that between a state which owns nuclear weapons and a neighbouring state which doesn’t.
The events of 1649 prove you wrong.