Ministerial Responsibility and The Government Privacy

Confidentiality and Ministerial Responsibility

‘In principle, any disagreements between government ministers must be kept private. In practice, it is very difficult to ensure that a united front between Cabinet ministers is presented to the public, particularly when the political issues are divisive and individual ministers cannot, or simply refuse to, agree.’

Collective ministerial responsibility is a crucial part of the British constitution; the Government is responsible for its decision and action to Parliament. According to the Cabinet Manual (2011) para 13: a minister who cannot accept collective responsibility is expected to resign. Ministers are able to express their opinions, either by disagreeing or agreeing privately but once the decision has been approved officially by the cabinet, every member of the Government has the responsibility to accept and acknowledge the decision in public. However, it is very difficult to keep private opinions and decisions of all members of the Government, especially if they have different point of views. This document will critically discuss the importance of keeping private the cabinet’s confidential information and analyse past situations where the collective responsibility convention has been breached. Furthermore, the document will also discuss about the action that can be adopted by the Parliament to provide better privacy to the cabinet.

The Ministerial responsibility operates under two different elements: (1) Collective Ministerial Responsibility: applies to all ministers to ensure members of the cabinet publicly respect the decision taken by the government. However, if the minister cannot abide by the decision, shehe must resign. (2) Individual Ministerial Responsibility: a minister in order to be responsible of its own personal action must resign. Both conventions are stated in the Cabinet Manual.

The Cabinet Manual is a document published by the cabinet office in 2011 which sets out conventions, laws and rules affecting the operation of the British government. The document clearly emphasised that collective responsibility is a convention rather than a demand which applies in all situations, para 4.2: “Save where it is explicitly set aside”. In 1977, Prime Minister James Callaghan said: “I certainly think that the doctrine should apply, except in cases where I announce that it does not”. The purpose of the doctrine of collective ministerial responsibility is (a) display political strength though a unified government which formally speck with one voice (b) promotes privacy by keeping ‘in house’ confidential discussion of the government. However, if a minister cannot accept the collective responsibility is expected to resign, to maintain integrity in the government. For example, Robin cook, the former foreign secretary resigned in 2003 as he could not accepted the decision of military action in Iraq without international agreement, he said: “In principle I believe it is wrong to embark on military action without broad international support. In practice I believe it is against Britain's interests to create a precedent for unilateral military action”.

Second factor threatening the government privacy is the leakage of information; data revealed or published without the consent of other ministers can be strongly harmful for the reputation of the cabinet. The government is extremely worried about leaks of confidential information as it breaches the convention of ministerial collective responsibility. Leaks of confidential information can cost cabinet ministers their jobs as in case of Jimmy Thomas, Labour cabinet minister who resigned in 1930 after leaking budget secrets to Tory MP. Discussions of cabinet ministers are frequently published by press reports. The issues arise whether for how long the minister is bound by the convention of collective responsibility, after leaving the position as minister in the government.

In the leading case of Attorney General v Johnathan Cape LTD, Crossman who was a member of the cabinet, kept a personal diary to take notes of the discussion held in meetings by ministers of the cabinet. His intention was to publish the diary, after the retirement. However, he died prematurely, and his wife took the action to publish the information, before the expected period. The government sought injunction to protect confidential information from further publication. The publishers debated that cabinet confidentiality is hardly an obligation, as there is no written law that prevent the publication of confidential information of the government. The Lord Widgery supported the publisher of the diary and no injunction was applied for further publications. Secondly, due to the lapse in time of ten years, the court stated that the information had lost confidentiality. Lord Widgery held: “The Attorney-General must show (a) that such publication would be a breach of confidence; (b) that the public interest requires that the publication be restrained, and (c) that there are no other facts of the public interest contradictory of and more compelling than that relied upon. Moreover, the court, when asked to restrain such a publication, must closely examine the extent to which relief is necessary to ensure that restrictions are not imposed beyond the strict requirement of public need.”

The protection of confidential information of the government is extremely important to preserve minister’s identity from damage and sustain the political strength. Leaking news and a government sustaining different voices can represent a segregated legal system which can impact negatively on the image of the country. The Duty of Confidentiality should be applied in the cabinet between ministers, which is a legal obligation that protects confidential information to be shared with a third party, without consent. In common law, the Duty of Confidentiality is mainly applied by lawyers and doctors which are legally bound to preserve their clients or patient confidential information by preventing disclosure of information to a third party, without authorisation. However, the Duty of Confidentiality and Collective Responsibility Convention are not solid rules that could prevent a minister to leak confidential information of the cabinet. Further actions should be taken by the Parliament to limit the power of cabinet’s minister to take unsatisfactory actions. A legislation can be introduced, to strictly limit the actions of minister from further damage of the government’s image. For example, the Data Protection Act 2018 is a written regulation that provides a clear guidance to businesses and organisations to ensure that individuals’ information is used fairly, lawfully and transparently. Therefore, breach of Data Protection Act can occur serious offences, including fine over millions of Pounds or possible prison sentences, depending on the gravity of the case.

Introduction of a similar regulation can protect cabinet’s confidential information and provide a clear guidance to follow for all the representatives of the cabinet. Therefore, it can strongly promote unity of the government as all the confidential information will remain ‘in house’. Secondly, unauthorised publications of information or leaks not only damage the image of the government but also the identity of other ministers can have impacted negatively. However, by introducing a legally enforceable legislation, the government can avoid such situation to take place.

Conclusion

In conclusion, better actions should be taken by the English legal system to reduce the frightening cases taken place concerned about the privacy of the government. Strict guidance and rules needs to be introduced by the Parliament of the United Kingdom to reinforce the unanimity of the government. Therefore, power of ministers can be limited by applying rigid laws, when a party perform unsatisfactory actions which not only damage the identity of other representatives of the cabinet but also impacts negatively on the image of the government as it will demonstrates discordance and unprofessionalism to public.