“Ministerial responsibility is the cornerstone
In medieval times, the royal will was signified in documents bearing royal seal and was applied by one of the King’s ministers. Maitland has described this practice as being “the foundation for our modern doctrine of ministerial responsibility – that for every exercise of the royal power some minister is answerable”[1]. This essay will consider the modern doctrine of ministerial responsibility and examine the extent to which it forms, in modern political times, the cornerstone of accountability in the UK constitution.
The convention of ministerial responsibility has been described by Loveland as “perhaps the most important non-legal rule within our constitution”[2]. The convention may be said to be concerned with regulating the conduct of government activities, both in respect of Ministers’ relations with each other, and with the two Houses of Parliament[3]. Ministerial responsibility comprises of two branches: collective responsibility and individual responsibility[4].
Collective ministerial responsibility may be further reduced into three main rules: the confidence rule; the unanimity rule, and; the confidentiality rule[5]. Through the operation of these rules, Ministers of the Government all appear to others to share the same policy opinions, whatever their own personal views. They are therefore collectively responsible for any decisions made by the Government and the Government as a whole should resign if it loses confidence. The doctrine of collective responsibility was stated in 2005 in the following form:
“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 should be maintained.”[6]
It therefore follows that where a Minister does not wish to be publicly accountable to Parliament and the electorate for a Governmental decision, he should resign from the Government. This occurred, for example, when Robin Cooke resigned over the Labour Government’s decision to invade Iraq in 2003[7].
Collective ministerial responsibility allows all members of Government to be accountable as a whole, thus avoiding arguments and blame-shifting between different Ministers and Departments. In this way, collective responsibility enhances the accountability of Government.
Individual ministerial responsibility is the convention that a Minister answers to Parliament for his department, with praise and blame being addressed to the minister and not civil servants[8]. It has been said that “the fundamental purpose of the convention of individual ministerial responsibility is that it provides an important means of drawing information into the public domain”[9] The principle has often been associated with the idea that ministers must resign in cases of official wrongdoing[10] but it also encompasses Ministers’ on-going obligations to account to Parliament for their departments’ work[11].
However, in 2000, Jowell and Oliver suggested that ministerial responsibility to Parliament had been “significantly weakened over the last ten years or so… so that it can no longer be said, in our view, that it is a fundamental doctrine of the constitution”[12]. Their opinion may have been influenced by the structural changes in government. During the 20th century tasks of the state expanded and vast Whitehall departments were created, with the effect that ministers could not oversee all aspects of the departments’ work[13]. Executive ‘Next Steps’ agencies created since 1988 had the specific purpose of delegating managerial power. Indeed, as Turner states: “Ministerial responsibility, however, is a different matter in the modern era. It has shrunk, it seems, almost to nothing, thanks, in no small part, to the creation of “independent” agencies to undertake the work of government.”[14]
Where civil servants have great authority, the question arises as to what extent a Minister is responsible for any acts of maladministration, and whether maladministration results in a duty to resign. Is it fair to hold the Minister responsible? If not, who should be and how does this affect accountability?
As Tomkins notes, during the Major Government’s office from 1990 to 1997 “Ministers and senior civil servants… proposed a number of initiatives that sought significantly to undermine the tenets of individual responsibility”[15]. It was claimed that Ministers were responsible only for those decisions in which they were directly and personally involved. Michael Howard claimed, after serious failings leading to Prison escapes, that Ministers were responsible to Parliament only for policy matters, with “operational” failings falling outside the scope of individual responsibility[16]. Furthermore, it was argued that where Ministers had misled Parliament, they should resign only if they had done so knowingly rather than inadvertently[17].
In this way Ministerial responsibility was weakened, with accountability becoming more prominent. A minister may be said to be accountable to Parliament for everything which occurs in a department, having a duty to inform Parliament about the policies and decision of the department and to announce when something has gone wrong. However, this does not bring with it responsibility in the sense that the Minister takes the blame.
In 1997 the Ministerial Code reformulated ministerial responsibility to the effect that:
Ministers must uphold the principle of collective responsibility; (b) Ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and agencies; (c) 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; (d) Ministers should be as open as possible with Parliament, refusing to provide information only when disclosure would not be in the public interest…; (e) Ministers should similarly require civil servants who give evidence before Parliamentary Committees on their behalf and under their direction to be as helpful as possible in providing accurate, truthful and full information…[18]
This new formulation would suggest that it is now ministerial accountability rather than responsibility which forms the cornerstone of accountability in the UK constitution. Unless there is fully open Government, there may be situations which arise where no person will take responsibility for actions and Ministers’ relationship with the Civil Service will be fundamentally changed. As Hennessy points out: “For the Civil Service the buck-stopping question is of crucial importance. Under the doctrine of ministerial responsibility, ministers are the ultimate can-carriers for everything done by the civil service in their name”[19]. This will no longer be the case where a Minister’s responsibility ends with alerting Parliament to a problem.
Bibliography
Allen, M. & Thompson, B., Cases and Materials on Constitutional and Administrative Law, 9th Edition, (2008), OUP
Bamforth, N., “Political accountability in play: the Budd Inquiry and David Blunkett’s resignation”, (2005), Public Law, 229
Bradley, A.W. & Ewing, K.D., Constitutional and Administrative Law, 14th Edition (2007), Pearson Longman
Brazier, R., “It is a Constitutional Issue: Fitness for Ministerial Office in the 1990s”, (1994), Public Law, 431
Cooke, R., The Point of Departure (2003), Simon and Schuster
Hansard, HC cols 31-46 (January 10, 1995)
Hennessy, P., Whitehall, (1989), Secker & Warburg
Hough, B., “Ministerial responses to parliamentary questions: some recent concerns”, (2003), Public Law, 211
Jowell, J. & Oliver, D., The Changing Constitution, 4th Edition, (2000), OUP
Lewis, N. & Longley, D., “Ministerial Responsibility: The Next Steps”, (1996), Public Law, 490
Loveland, I., Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction, 4th Edition, (2006), OUP,
Maitland, Constitutional History,
Marshall, G., Constitutional Conventions, (1984)
Ministerial Code: a Code of Ethics and Procedural Guidance for Ministers (reissued, July 2005)
Tomkins, A., The Constitution after Scott: Government Unwrapped, (1998), Clarendon
Tomkins, A., Public Law, (2003), OUP
Turner, A., “Losing heads over the lost data”, (2007), 171, Justice of the Peace, 841
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