Ministerial Accountability (CMR/IMR)
Relevant Readings:
- Module Guide, Chapter 6: The executive
- Murkens, Chapter 9: Government and Accountability
- Barnett, Chapter 10: Responsible Government
Summary:
1. Introduction
1.1. Definition of Conventions
1.2. The Westminster Model
1.3. Parliamentary Scrutiny Mechanisms
2. Ministerial Responsibility
2.1. Collective Responsibility
2.1.1. The confidence principle
2.1.2. The unanimity principle
2.1.3. The confidentiality principle
2.2. Individual Ministerial Responsibility
2.2.1. Personal conduct
2.2.2. Responsibility for government department
2.2.2.1. The ‘Carltona principle’
3. Other Parliamentary Mechanisms
4. Effectiveness
Public law – LA1020 Ministerial Accountability (CMR/IMR)
1. Introduction
The United Kingdom is one of the few states that do not have a codified
constitution. This means that there is no single documentary source setting out the
roles and responsibilities of the different institutions of state. Instead, the UK’s
unique constitution has evolved over time and is drawn from both legal sources
such as statute and common law; and non-legal sources those such as prerogative
powers and conventions. Much of the constitution is now codified, but there are still
some grey areas which are entirely regulated by conventions.
The relationships between individuals working in the various organs of the state is
almost entirely regulated by Conventions and as such they are of considerable
constitutional importance. Similarly, the relationship between Cabinet Ministers is
not prescribed by law, but instead is regulated by conventions.
1.1. Definition of conventions
Dicey defined conventions as habits, understanding and practices’ that are
considered to be binding, but have no legal force. Constitutional conventions
are perhaps more than mere practices in the sense that they are accepted as
rules by those who are bound by them and while there are not any legal
sanctions for their breach, there are certainly political consequences.
Jennings suggested that they were ‘the flesh which clothes the dry bones of
the law’ indicating that they help to make things ‘work’ in practice. He further
argued that a convention requires precedent, acceptance of the precedent by
the individuals concerned, and a reason for the rule.
They have been explained, by Adam Tomkins, as ‘nonlegal but nonetheless
binding rules of constitutional behaviour’.
1.2. The Westminster Model
In the ‘Westminster Model’ system of Government the relationship between
the Executive and Legislature is of vital importance. It is largely through the
presence of Government Ministers in the Houses of Parliament which is
required by constitutional convention that political accountability, in between
General Elections, is imposed.
the phrase ‘Westminster model’ essentially means that in the British
constitution, the Government is drawn from amongst the members of the
Parliament. This means that every member of Government also has a seat in
one or other of the chambers of Parliament, either the House of Commons or
House of Lords.
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This system has received both criticism and acclaim over the years, with
Bagehot referring to the overlap between the legislative and executive
branches as ‘the efficient secret’ of the British constitution which can be
contrasted with Lord Hailsham’s description of such a system as an ‘elective
dictatorship’. The reality, however, lies somewhere in between. There is a very
real risk of the executive dominating the parliament although this is somewhat
limited by both statute and by constitutional convention.
It is due, at least in large part, to the successful operation of the constitutional
conventions which we will examine in this lecture plus (namely those relating
to Ministerial Responsibility both collective and individual) that the concept of
a parliamentary executive within the so called ‘Westminster model’ works as
well as it does. This is, of course, made all the more interesting by the fact that
the consequences of breaching a convention are not legal but political.
1.3. Ministerial Scrutiny Mechanisms
There is a range of accountability mechanisms – both legal and political - which
aim to keep the Executive in check and within legal and political limits. These
can also be described as checks and controls which cover the activity and
decisions of the executive (and other public bodies).
Accountability to Parliament encompasses such notions as ministerial
responsibility, parliamentary questions, debates and the role that the various
parliamentary committees play. There are also checks on the lawfulness of
Executive activities, available in courts and tribunals either by appeals or more
often through the field of law called judicial review. Whereas judicial review is
concerned with lawfulness, the traditional forum for contesting the merits of
executive policy and actions is Parliament and it is this that we are looking at
today.
2. Ministerial Responsibility
The principle of ministerial responsibility serves to ensure that Government is
responsible to Parliament, and so is central to the constitution; Parliament not only
provides the Government, but also the forum and the opportunity for it to be called
to account. These conventions may be found in written form in the Ministerial
Code.
The Ministerial Code is a document, issued by the Prime Minister, which ‘sets out
the standards of conduct expected of government ministers and how they
discharge their duties’. It is essentially a ‘code of conduct’ for ministers and the
conventions of ministerial responsibility apply to all members of the Government.
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A new version of the code is issued with each new government, although the
substantive content changes little.
There are two separate but related conventions which primarily regulate ministerial
behavior; collective ministerial responsibility and individual ministerial
responsibility.
2.1. Collective Responsibility
Collective Ministerial Responsibility all members of the government to be held
accountable for the actions and decisions of government as a whole. They take
‘collective’ responsibility for the policy and decisions of government as set out
in the Ministerial Code 2019, para 2.1:
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 and
Ministerial Committees, including in correspondence, should be maintained.
The constitutional convention of collective ministerial responsibility is generally
composed of three strands: the confidence rule, the unanimity rule and the
confidentiality rule.
Theresa May won by a margin of 19 votes. Where there has been a major
change in public attitude towards any issue, contrary to what the govt. stands
2.1.1. Confidence by, the leadership may be compelled to resign, as in the case of David
Cameron.
The confidence rule requires the government of the day should be
Confidence: The
Parliament doesn't have supported by a majority in the House of Commons, and should resign if it
to agree with every wish is unable to do so.
of the Govt. It is to
maintain the trust in the
ability of the Govt. to
For many years, it was assumed that this meant that defeat on any major
govern efficiently policy issue would lead to resignation. However, as Sunkin notes that
more recently there have been bills which have been defeated and
Marshall and Moodie withdrawn but the government was not called to resign.
1967- defeat of a
substantial bill in
Parliament amounts to a Accordingly, the rule now appears to be that resignation need only follow
loss in confidence, so ensuing a motion of no confidence. Such was the case in 1979 when a
govts. consider it
motion of no confidence was passed against the government of James
necessary to avoid such a
loss. Callaghan following which fresh elections were called. More recently in
Sunkin et al - bills may be January 2019, the then Prime Minister, Theresa May, successfully saw off
voted against and a vote of no confidence, winning by 325 to 306.
withdrawn, does not
necessarily call for
resignation. eg: Nov 2005, Additionally, where there has been a major change of public attitude
bill against detention of towards a certain issue which is contrary to what the government stands
terrorists for 90 days
without trial was defeated
in the Commons. 4
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by, leadership may feel compelled to resign. This is what happened in
2016 when the then premier David Cameron, a fierce advocate against
Brexit, resigned following the referendum. He felt unable to retain his
position as the Prime Minister and stated that following such a shift in policy
would require a new leadership.
2.1.2. Confidentiality
the confidentiality principle dictates that all Cabinet discussions are to be
kept absolutely secret. Confidentiality fulfils several functions,
predominantly the idea of emphasising or indicating a united front, of
ministerial unanimity and also this element of government secrecy that is
important for the administration to operate effectively and for government
to govern.
The case established the It even requires that the government of the day not release a previous
principle that although government’s papers without the consent of the former Prime Minister. In
conventions are not in and
of themselves legally AG v Jonathan Cape, the issue of the publication of the diaries of Richard
enforceable, they may Crossman, a former Labour Cabinet member, was considered. Executors
give rise to legal of the estate of Richard Crossman sought to publish his Diaries; the
obligations that the court government sought an injunction restraining publication. While the court
may enforce.
The court does have the recognised the convention of collective responsibility, it declined its
power to restrain exercise on this certain occasion. The Radcliffe Committee report 1976
disclosure of confidential provides when the minister's memoirs could not be published, for instance,
information, to protect the
doctrine of collective
if there were any details that if published could endanger national security.
responsibility.
2.1.3. Unanimity
The unanimity rule requires the cabinet to present a united front to the
world at large. Any differences of opinion which may have arisen during
the formulation of government policy during cabinet negotiations should
not be acknowledged in any public forum. And as such a policy decided
upon at cabinet level requires members of the cabinet to support and
defend it whenever it is necessary to do so. If they feel unable to meet this
obligation, the convention requires them to resign since any division within
the cabinet can have a destabilizing effect upon the government.
Thus, in 1986, Michael Heseltine, by the then Secretary of State for
Defence in Margaret Thatcher’s government resigned because he
disagreed with the decision to choose an American company to ‘rescue’
and merge with Westland helicopters, rather than the European
consortium bid which he favoured (the Westland Affair).
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2016: Iain Duncan Smith,
the work and pensions Similarly, in 2003, the then Leader of the HC, the late Robin Cook,
secretary, reigned due to resigned from the Government as he felt unable to support the Iraq war.
cuts to disability benefits More recently, in 2014 Baroness Warsi, dissatisfied with the
proposed by the chancellor
and government’s response to Israeli attacks on Gaza resigned.
reisgnation of Lord O'Neill
of Gately due to the Govt.'s Contrastingly, the convention was seemingly flouted by Clare Short, who,
economic policy like Cook, opposed the Iraq war yet remained in Cabinet for another two
months. This illustrates that the operation of the convention is rather
arbitrary.
As with all constitutional conventions there is an element of flexibility in
operation and actually in the context of ministerial responsibility in
particular, on occasion it may be suspended where there is deep division
within a cabinet over a policy matter. This is referred to as an ‘agreement
to differ’ as in 1975 where the then Prime Minister allowed Ministers to give
their own views outside Parliament in relation to the referendum on
continued membership of the European Community. A similar situation
James Callaghan arose in 2016 before the Brexit referendum. In such circumstances this is
1977, agreement to a means by which Prime Ministers can keep an element of unity in
differ for elections to government by permitting different views to be voiced publicly on one issue
the European
for a limited period of time.
Parliament
Under Coalition Government other considerations come to the fore. This
was, of course, evident in the UK between 2010 and 2015 when we had a
coalition government formed of the Conservative and Liberal Democrat
parties. The Coalition Government's Programme for government specified
five areas where the parties to the coalition might adopt different positions
– that is, where they would not be bound by collective ministerial
responsibility – in recognition of the fact that there would be certain issues
where Ministers from different parties would have to ‘agree to differ’. These
were: the referendum in 2011 on changing the voting system; university
funding; the renewal of Trident; nuclear power; and a tax allowance for
married couples.
2.2. Individual Ministerial Responsibility
In addition to collective responsibility, by convention of individual responsibility,
a minister is required to uphold the highest standards as to their personal
conduct and also takes responsibility for the conduct of all those employed by
their department. Breaching this convention may result (depending upon a
number of factors) in the ultimate sanction of departure from ministerial office,
either by resignation or dismissal.
Individual ministerial responsibility requires ministers to be constitutionally
responsible to Parliament for their department and its decisions and actions.
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This responsibility to Parliament may take one of several forms: to inform and
explain; to apologise; to take action; or, ultimately, to resign.
1963: john profumo, It is the accountability and responsibility to Parliament in this context which is
minister of war, of particular interest to us, as this convention illustrates how having the
reisgned due to executive physically included as a part of the legislature enables effective
contempt of the house
by lying about his
holding to account and thus helps to combat concerns of ‘executive
affair. dominance’. contrast w Hailsham's argument
2016, sir michael fallon
resigned as defence Individual ministerial responsibility also has various strands. We can
secretary for repeatedly
touching the knee of a summarise this as responsibility for his or her private or personal conduct and,
journalist. also for our purposes the more important aspect, of responsibility for his or her
the Nolan Committee department. This departmental responsibility includes the actions and
commented that it is in the
decisions of officials in that department.
hands of the Prime
minister to decide if the
ministers have uphled2.2.1.
the Personal conduct
highest degree of
propriety in conduct.
The convention of individual responsibility holds a minister accountable for
conduct while in office, but the requirements of the rule have shifted over
Financial conduct of time. It no longer appears to be the case that personal ‘scandal’ will
ministers: custom inevitably result in resignation.
requires that ministers
declare financial
interests in the Register In the 1990s, accounts of an affair led to the resignation of Cecil
of Members' interests Parkinson, whereas John Prescott remained in office following similar
as well as in debates revelations. Perhaps this is indicative of the convention responding to
and committee
proceedings where reflect the shift in attitude of the public at large. However, as numerous
they may influence commentators have pointed out, the rule has rarely been fixed, and sexual
their impartiality. scandal generally leads to resignation only if there are other implications.
Ministerial Code
requires that ministers
consult the Advisory In the present case, Parkinson was a member of a government that
Committe on Business stressed moral values, but had fathered an illegitimate child; it could be
Appointments about argued that it was this hypocrisy that led to the view that he was unfit for
appointments to be
made within two years
office. If, however, resignations does entail following any such scandal
of leaving office: David then, arguably, the principle has become less rigid as the moral boundaries
Blunkett breached this of wider society have relaxed.
in 2005 and reigned.
David Mellor also 2.2.2. Responsibility for government department
reigned after accepting
a gift from a woman A minister may also accountable for failings within their department. This
associated with the is referred to as the ‘Carltona principle’ developed in the case of Carltona
Palestinian Liberation
Organisation. Ltd v. Commissioner of Works [1943].
in 2009 upon revelation The ‘Carltona principle’
that ministers had
misused Parliamentary
funds, there were many What this means is that in order to enable effective and efficient
resignations such as administration Government Ministers are, in an exception to non-
that if David Laws who delegation rule, permitted to pass power to civil servants in their
was Chief Secretary to
the Treasury. 7
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departments. This is simply because it is not possible for Ministers to
personally attend to the multitude of functions they are given.
Consequently, the duties and powers conferred upon ministers are
normally exercised under their authority by responsible officials of the
relevant department. In constitutional terms, the decisions or actions of
such officials equates to the decision of the minister for which the minister
is accountable to Parliament. As Lord Greene indicated in Carltona:
“The whole system of departmental organisation and administration is
based on the view that ministers, being responsible to Parliament, will see
that important duties are committed to experienced officials. If they do not
do that, Parliament is the place where complaint must be made against
them.”
In 1949, Toby and Mary Hence, although the Prime Minister refused to accept it, William Whitelaw
Marten, the owners of the felt compelled to offer his resignation following the discovery of an intruder
Crichel estate, began a
campaign for the in Buckingham Palace.
government's promise to
be kept, by a return sale There are many examples of ministerial resignation due to failings in their
of the land. They gained department, including of Sir Thomas Dugdale as a result of the Crichel
a public inquiry. This
inquiry was conducted by Down affair despite the fact that he had had no personal involvement in
Sir Andrew Clark QC the matter. It is also possible to find examples where a minister has
whose report was resisted calls for resignation.
damning about actions in
the case taken by those
acting for the government. More recently in May 2019, Gavin Williamson was ‘sacked’ as defence
secretary by Theresa May after the prime minister believed that he was
The minister responsible, the source of a leak from a National Security Council meeting. Williamson
Sir Thomas Dugdale, disputed the prime minister’s accusation and refused to voluntarily resign
resigned and the Crichel
estate part of the land from government.
was sold back to the
owners. The resignation In a recent time, we saw the resignation of Amber Rudd as Secretary of
of Dugdale has been State for the Home Department because she ‘inadvertently misled’ the
taken as a precedent on
ministerial responsibility, Home Affairs Select Committee over whether the department had issued
even though the doctrine targets for the removal of illegal immigrants.
supposed to arise from
the affair is only partially Another example was the resignation, after various failures in her
supported by the details.
department in 2002, of Estelle Morris as Secretary of State for Education
essentially because she felt she was not up to the job.
Do ministers always resign? Should they?
As we see from the example of the Crichel Down Affair, historically the
expectation of ministerial resignation was fairly high but over the years
resignation has become less common.
Generally, ministers have a constitutional duty to inform and explain – that
is explaining their actions and policies to Parliament, and informing
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Parliament of developments within their sphere of responsibility. If an error
has occurred, whether on the part of a minister personally or by a civil
servant, the Minster will usually be expected to apologise to Parliament,
as part of a full explanation, whether or not a resignation or dismissal is
involved. Ministers are also expected to take action to remedy or correct
any errors or problems within their area of responsibility.
Finally, the ultimate accountability action and sanction is that of resignation
Select committees: each which may have been called for by the opposition or Parliament more
dept has a committee of generally. It often occurs under political pressure.
11 MPs.
Ministers spend the first It is very difficult to predict with any level of certainly when resignation will
hour of business happen. Ministerial resignations depend on many factors and ultimately
answering questions by the prime minister is the judge of any breach and decides what should
MPs, however they may
have advance notice. happen. Misleading Parliament, whether inadvertently or not, historically
since 2003, the PM has tends to result in resignation.
been required to attend
Pm Question Time at Department and policy
noon each Wednesday
for 30 mins but this often
turns into a gladiatorial Ministers appear to have drawn a distinction between matters of policy and
contest of deflecting matters of administration. The Secretary of State for Northern Ireland,
techniques. James Prior, refused to resign in 1983 after 38 convicts escaped from the
MPs can only press the Maze Prison, on the basis that policy decisions were not the cause of the
minister and bring the escape. Michael Howard drew the same distinction between
matter before the chair of administration and policy when he too declined to resign as Home
the Public Administration Secretary in the wake of Whitemoor prison escapes. Analysis of ministerial
Select Committee.
responses seems to suggest that resignation depends less on the
Only 20 days a year are existence of a conventional rule and more on the political support that the
allocated to opposition to individual can command from colleagues and the media. In all the
the choose the topic for examples concerning the conduct of ministers, it should be stressed that,
debates, but there is a
parallel chamber since as conventions are not enforceable by the courts, a refusal to comply
1999 and another carries no legal sanction.
debating room called the "
Westminster Hall."
3. Other Parliamentary Mechanisms for Accountability of Ministers
The main idea behind these conventions is to make a minister more responsible
as to his conduct. The Parliament has also developed certain mechanisms through
which it holds ministers accountable.
This accountability is achieved through select committees, parliamentary
questions and debates on the floor of each House. Every major department has
its own select committee which comprises of MPs from cross-party as to prevent
them from being influenced by party politics. They conduct inquiries and function
in an advisory capacity. Ministers are subjected to rigorous questioning by these
committees. While the departments are obligated to respond to committee reports,
the findings of those reports are not binding on them.
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In 2011 the UCL Constitutional Unit studied the impact of select committees and
found that around only 40% of committee recommendations were implemented by
the government while two-thirds of those prescribing a major policy changed were
unsuccessful.
4. Effectiveness of Conventions
The effectiveness of conventions in acting as a constitutional brake on power is
debatable. Of course, the focal argument against conventions is that they can exert
only political or moral pressure on the executive. If this proves to be ineffective,
there can be no possibility of legal enforcement.
There have been a number of instances where ministers have chosen not to resign
in circumstances where convention suggests that they should. Nevertheless, the
moral and political weight of conventions is difficult to resist. The question that
arises then is whether is it appropriate for rules governing such important areas of
conduct in public office to be so poorly defined and without legal sanction.
The executive continues to recognise the force of constitutional convention. Thus,
it appears that conventions will continue to play a role in regulating ministers’
conduct. It is perhaps possible to give these conventions statutory footing so a
more formal and robust means of dealing with unconstitutional conduct is provided.
This, however, seems unlikely and would threaten the very the thing that British
constitutionalists hold sacred, the flexibility of the constitution.
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