Responsible Government Flashcards
The Prime Minister’s powers
The PM has very few powers in law.
However, the office carries very significant powers by convention. These are:
* Advising the King to appoint or remove ministers – this advice is, by convention, always followed.
* Determining the size and composition of the Cabinet
* Determining and coordinating the general policy direction of the government
* Determining the subject matter and composition of Cabinet committees
* Determining when the Cabinet meets
* Determining the agenda for Cabinet discussion
The PM is also the Minister for the Civil Service, and First Lord of the Treasury.
The Cabinet Office
The Cabinet Office is a department of the UK Government.
Its purpose is to support the PM and the Cabinet and ensure that the Civil Service (the politically neutral central government administration) helps the government attain its policy goals.
The Prime Minister is also a Minister of the Cabinet Office. Other ministers include the Leader of the House of Commons and, if someone is selected (this depends on political circumstances), a Deputy Prime Minister.
The Head of the Civil Service is the senior government official within the Cabinet Office, operating as the Cabinet Secretary.
The Cabinet Office has responsibility for the following key areas of government policy:
* Political and constitutional reform
* The Civil Service
* Supporting the National Security Council and Joint Intelligence Organisation
* The Independent Parliamentary Standards Authority
The Privy Council
The historical origins of the Privy Council lie in the group of noblemen who were close to the monarch and relied upon for their advice. The word ‘privy’ means secret.
Today, the ‘privy counsellors’ – numbering over 700 – are individuals who hold, or have held, high political or judicial office. However, the majority play no part in the Privy Council’s day-to-day business, which is mostly conducted by government ministers.
The Privy Council ‘advises’ the monarch on the exercise of the royal prerogative. It meets to secure the monarch’s formal approval of documents which have already been approved by the Cabinet, or by government departments.
Proceedings of the Privy Council are secret. Its members (which include each member of the Cabinet) swear an oath of allegiance, which includes a promise to ‘keep secret all matters revealed or treated of in the privy council’. Leaders of opposition parties are also appointed, so that they can be given classified information, if necessary.
Cabinet committees
To relieve the pressure on decision-making, a number of cabinet committees exist to deal with specific areas of government administration, such as national security.
The number, terms of reference and subject matter of these committees is within the Prime Minister’s control. Cabinet committee decisions have the same status as decisions of the full Cabinet.
You may have heard of the ‘COBRA’ committee in the context of national emergencies. COBR stands for Cabinet Office Briefing Room and it provides the mechanism for agreeing government
response to major emergencies such as a terrorist attack or pandemic.
Meetings of COBR are Cabinet committee meetings, but there is no fixed membership so that the government department with responsibility for the issue under consideration can take the lead.
Collective ministerial responsibility
The decisions made by Cabinet and its committees are subject to the ‘doctrine’ or convention of
collective ministerial responsibility (CMR). This means that all government ministers are bound by
the collective decisions of Cabinet.
There are seen to be three component parts of this convention: confidentiality, unanimity and confidence.
Confidentiality
Under the convention there is a duty on ministers not to disclose confidential matters discussed in Cabinet. This information extends to Cabinet papers and also to ministerial memoirs, which have
to be approved for publication.
In Attorney-General v Jonathan Cape [1976] QB 752, which concerned the publication of the diaries of the late Richard Crossman (a Cabinet minister in Harold Wilson’s government in the 1960s), Lord Widgery CJ recognised the significance of the convention. He added, tellingly: ‘I find
overwhelming evidence that the doctrine of joint responsibility is generally understood and practised, and equally strong evidence that it is on occasion ignored.’
The case is notable for the failure of the Attorney-General’s argument that the convention could be enforced in the courts in its own right. However, the court did accept that in some circumstances (though not in these, given the length of time that had elapsed since the relevant events) the accepted legal cause of action of breach of confidence could potentially extend to
Cabinet information.
Widgery’s comment also appears to refer to the practice of unattributable briefing of journalists by ministers, which can be seen as a form of political pressure reducing valve.
Unanimity
The unanimity component requires that, once a decision or agreement has been reached, all ministers should publicly agree with government policy. If they do not feel able to do this, they should resign.
The principle behind this is that Cabinet ministers should have had the right to contribute to the confidential debate leading up to the decision. If they lose the argument in Cabinet, they are obliged to sign up to the majority view in a ‘united front’ or to leave the government.
In one of the more dramatic instances of this convention in operation, Michael Heseltine resigned as Defence Secretary in the Thatcher government over the ‘Westland Affair’ in 1986, partly because he felt he was excluded from the decision-making process.
Other notable instances have involved some of the most contentious issues of the day. In 2003 three senior ministers resigned from the Blair administration over intervention in Iraq: Robin Cook; Clare Short; and John Denham. More recently, Boris Johnson, Dominic Raab and David Davis all resigned over the direction of Theresa May’s ‘Brexit’ policy in 2018.
Confidence
The final component of the convention of CMR – which underlies its purpose as an important part of governmental authority – is the government’s need to ensure that it has the confidence of Parliament and, by extension, the people.
As we have seen, the Prime Minister and his or her government is in office because it has achieved a majority of seats in the Commons. The continued confidence of the Commons in the government is therefore essential, and this is considerably bolstered by presenting a united front in government.
If this confidence recedes, there are situations – almost invariably when a government’s majority is very fragile – when the Leader of the Opposition may table a ‘vote of no confidence’ in the government. If the government loses such a vote, there is a very strong conventional pressure on
the PM to resign and bring about a general election. The last time that this happened was in 1979 when James Callaghan lost a vote of no confidence by a single vote.
Note that this process was more involved when the Fixed-term Parliaments Act 2011 was in operation but the Act was repealed in 2022 so the position is now purely governed again by convention.
Individual ministerial responsibility
We have seen the operation of the convention of collective ministerial responsibility and the function it plays within the UK’s constitution. The other ‘twin convention’ is individual ministerial
responsibility (IMR).
This still plays a role in relation to the accountability of government but, as we will shortly see, its effect has been supplemented and shadowed to a large extent by the more recent innovation of
the Ministerial Code.
The classic doctrine of individual ministerial responsibility required ministers to accept
responsibility and, if necessary, resign for any errors and failures of their departments. They were seen as the figureheads who were answerable to Parliament and who in sufficiently serious cases had to sacrifice their office in order to accept responsibility.
The uncertainty surrounding this convention arises from two areas:
* Its unavoidable entanglement with the short-term realities of the political world
* Assessing the degree of fault and responsibility in a time of modern, ‘big government’
Maxwell Fyfe guidelines
The recommendations were made by the Home Secretary, Sir David Maxwell Fyfe. He
distinguished between situations in which the relevant minister had personal involvement or knowledge of the issue or error and those where the minister played no role and, given the size of UK government by the mid-20th century, could not have been expected to.
In the first two situations, Maxwell Fyfe believed that the minister should resign. In the remaining two he believed that the minister need not do so:
(a) Where there is an explicit order made by a minister, in which case the minister must protect the civil servant who has carried out his order.
(b) When the civil servant acts properly in accordance with policy laid down by the minister, in which case the minister must protect the civil servant.
(c) Where an official makes a mistake or causes some delay, but not on an important issue of policy.
(d) Where a civil servant has taken the action, of which the minister disapproved and has no prior knowledge, and the conduct of the official is reprehensible.
Further development of IMR
The partial redefinition of the convention to require some personal knowledge or involvement by the minister became more pronounced in subsequent decades. Two serious incidents involving prison escapes exemplified this trend.
In 1983, the Northern Ireland Secretary, James Prior, did not resign following a mass breakout of IRA prisoners from the Maze prison. Prior distinguished between responsibility for policy, which belonged to the minister, and the failure of officials to properly implement policy, for which he
maintained the minister was not necessarily accountable. This is sometimes referred to as the ‘policy/operational divide’.
A similar distinction was made when the then Home Secretary, Michael Howard, refused to resign following the escape of six high category prisoners from Whitemoor Prison in 1994. This led to a subsequent dispute with the Director of the Prison Service, Derek Lewis, who he blamed for the operational failings in security and dismissed.
It is difficult to extract any further clear rules as to the circumstances under which a minister will now be expected to resign. One can say, however, that it is very rare for a minister to resign for reasons that they themselves directly attribute to an error of policy.
Accountability
The different ways in which government can be held to account by individuals and committees in Parliament will be considered in more detail in other materials. However, it is worth noting here
that, while there has been a weakening over time in the degree of obligation felt by ministers to resign, there has been a greater emphasis on more direct forms of accountability.
The importance of ministers keeping Parliament informed about departmental problems and errors, rather than necessarily resigning, has become more pronounced over the last two decades
or so, notably following the lessons drawn in the Scott Report (published in 1996) into the ‘Arms to Iraq affair’ from the 1980s. In some ways this can be seen as a more constructive response to a serious problem within government.
You will see that this enhanced emphasis on accountability and openness of government (though again subject to short-term calculation in the political realm) is one of the key trends in modern public law and one of the principal rationales for judicial scrutiny of the executive. In relation to this topic of responsible government, it is also a notable feature of the Ministerial Code.
Informing Parliament
The principles of ministerial conduct set out in the first part of the Ministerial Code (updated in May 2022) state at paras 1.3 b. and c. that:
* ‘Ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and agencies.’
* ‘It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister.’
Misleading Parliament, which was always seen as a cardinal sin in terms of the convention of IMR – and famously caused the resignation of John Profumo in 1963 – is still classified as a resigning matter in relation to the Code, therefore.
The Ministerial Code - principles
The Ministerial Code sets out the principles underpinning the standards of conduct expected of Ministers.
Along with all public office-holders, ministers are expected to observe the Seven Principles of Public Life – para 1.3. These were first established by the Committee on Standards in Public Life,
set up in 1994 by John Major. They are also known as the Nolan principles after the Committee’s first chairman, the former law lord, Lord Nolan. They are recorded in full in Annex A to the Code.
* Selflessness
* Integrity
* Objectivity
* Accountability
* Openness
* Honesty
* Leadership
The Ministerial Code - ‘rules’
It is important to note that, even though the Code is a formal, published document and so more tangible than the ‘twin conventions’, it also represents an unenforceable set of rules. At most it
can be described as a form of ‘soft law’.
Investigation of a breach, and any consequences, are entirely at the discretion of the Prime Minister, described in para 1.6 as the ‘ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards’.
The Ministerial Code covers the following areas:
* The conduct of ministers (though not their performance or effectiveness in office)
* The principle of collective responsibility
* Proper and transparent engagement with Parliament
* Avoiding potential conflicts of interest
* Proper use of government resources
