Executive Power

Question 1

Confidence of the Commons (collective responsibility)

Answer 1

• Confidence is evaluated by the various ways in which the Commons (and Lords) come into conflict with the government by scrutinising, regulating, and frustrating the cabinet’s policies
• Authority of government is derived not from the prerogative power of appointment, but from the continuing confidence of the Commons

Question 2

Ministerial solidarity (how the government behaves while in office)

Answer 2

• Ministers must accept responsibility for the policies and decisions of the government
• Even if 1. they did not develop or take them or 2. they disagree with them
• Every minister speaks for the government
• Prime minister’s discretion to suspend the practice

Question 3

Cabinet confidentiality (how the government behaves whilst in office)

Answer 3

• Ministerial Code (2010)
  ‘the principle of collective responsibility…requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed in Cabinet… should be maintained.’

Question 4

Attorney General v Jonathan Cape Ltd (unattributed ‘leak’ in Cabinet confidentiality)

Answer 4

Held:

• The preservation of the doctrine of collective responsibility within the Cabinet was held to be in the public interest
• the Court found that the revelation of individual Ministers’ views and opinions disclosed within the framework of confidential Cabinet meetings would undermine the doctrine – at least until a certain period time passed
• in this case 10 years had passed so publication was allowed to go ahead

Question 5

Individual responsibility of ministers within the government

Answer 5

Actions taken by the Minister personally
e.g. Priti Patel MP: 2017 met with Israeli minister for Westminster agenda and had to resign; 2020 accused of bullying
Amber Rudd MP: involved in settling targets for deportation after denying such actions
Boris Johnson FS: misrepresentation of the actions of a woman detained in Iran leaving her more likely to be detained

Question 6

Should a minister be responsible for every policy decision of a department?

Answer 6

Carlton v Works Commissioners
‘Constitutionally, the decision of [a civil servant] is a decision of the Minister. The Minister is responsible. it is he who must answer before Parliament for anything that his officials have done under his authority’

Question 7

What must be done when taking responsibility for Minister’s department?

Answer 7

Statement by Home Secretary Sir David-Maxwell Fyfe

a. if the civil servant follows an explicit order of the Minister, the Minister must protect the civil servant
b. if the civil servant acts in accordance with the policy laid down by the Minister, the Minister must protect the civil servant
c. if a civil servant makes a mistake, but not on an important issue of policy, the Minister may acknowledge the error and accept responsibility by stating that correct action will be taken
d. if a Ministers disapproves of a decision of the civil servant for which he has no prior knowledge, there is no obligation on the minister to endorse the decision, but the Minister remains constitutionally responsible to Parliament for the fact that something has gone wrong

Question 8

How are Ministers responsible?

Answer 8

1. to inform and justify decisions and actions once taken
2. to apologise for errors once made
3. to undertake corrective measures after the fact
4. to resign after the fact

Question 9

Why do ministers resign?

Answer 9

• 3 Factors: himself, his PM and his party. All three factors must be just so: the Minister compliant, the PM firm, and the party clamorous

Question 10

What variables explain the patterns of ministerial resignation?

Answer 10

• Finer argues that the conjunction is rare, quite fortuitous, and indiscriminate (ie whether ministers escape or are caught has very little to do with the gravity of the offence)
• The convention is misleading because it focuses on the wrong cases: ie tries to generalise from the exceptional cases and ignores the common case
• Resignation occurs not based on the severity of the case, but based on specific conjunction of political factors

Question 11

Main constitutional provisions/mechanisms for accountability and openness

Answer 11

• The courts
• Parliament-executive nexus
• Voluntary publication by Government (open government)
• specific mechanisms in the context of modern decentralised state
• FOI 2000; common law principles of open government

Question 12

Parliamentary provisions for accountability and openness

Answer 12

• Before House of Commons or Lords as a whole: debate, written parliamentary questions, oral parliamentary questions
• Before select committees of the House: each gov department has a corresponding select committee; cross-party examination of expenditure/administration/policy; committee chairs now elected by Commons
• Parliament’s affirmation of ministerial responsibility: commons resolution (1997), mirrored in Lords - ministerial code best seen as ‘lore not law’; as ‘constitutional window-dressing’