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Ministerial responsibility

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In the course of their duties, Government Ministers in the United Kingdom exercise powers granted to them through statute, prerogative authority and debatably “general common law powers that allow for residual powers where their actions will have no legal consequence for others”. Ministerial responsibility defines the relationships between ministers and Parliament as well as that between ministers and civil servants in their departments. In the United Kingdom, this relationship is not regulated by statute, but rather operates under constitutional convention. This guidance has become formalized in the Ministerial Code, first issued by Prime Minister Tony Blair in 1997 and subsequently re-issued by the Prime Minister at the beginning of each new administration. (Grey, O, Individual Ministerial Accountability, SN/PC/06467, 2012)

In the same year that the Ministerial Code was first issued, both houses of parliament agreed resolutions on ministerial accountability which state that ministers have a duty to Parliament to account and to be held to account for the policies, decisions and actions of their departments and executive agencies. The adoption of the resolutions was significant in changing the doctrine of ministerial responsibility to parliament from an unwritten constitutional convention to a clear parliamentary rule which can only be modified by parliament.

Whist it is necessary to view the concept of ministerial accountability as a whole in terms of overall accountability to the electorate, it is important to distinguish between the two facets of ministerial responsibility – collective and individual.

COLLECTIVE RESPONSIBILITY

Collective ministerial responsibility entails all ministers presenting a united front in the interest of government unity. Members of cabinet must publicly support all governmental decisions made in cabinet even if they privately do not agree with them. This requires that once a decision has been made in cabinet, all ministers must publicly support and defend it. Where ministers cannot reconcile their personal beliefs with cabinet decision, they are expected to resign, for example Robin Cook resigned over the decision to invade Iraq in 2003. Whilst opinions may be debated freely in private, internal processes are not disclosed and must remain confidential.

In the Crossman Diaries case in 1975, the Attorney General sought to suppress the memoirs of a deceased cabinet minister by arguing that such a breach of confidentiality would undermine the constitutional principle of collective responsibility and inhibit cabinet ministers from speaking frankly. This argument is in line with the view of Vernon Bogdan or who states that “collective cabinet responsibility is political prudence as much as a convention”.

Prime Minister can suspend this convention in relation to a particularly controversial decision over which government is undecided.

INDIVIDUAL RESPONSIBILITY

Ministers have a duty to account and be held to account for the policies and decisions and actions of their departments and agencies. This is known as individual ministerial responsibility and is laid down in the Ministerial Code (last updated Dec 2016). Ministerial responsibility for all aspects of their departments business is essential principle underlying the arrangements that enable parliament to properly perform its function of holding government to account.

Ministers are reliant on civil servants to perform their functions. Testimony to the House of Commons Public Administration Select Committee highlighted that a strong and politically impartial civil service is a constitutional check on powerful executive. The idea of ministers having greater reliance on the civil service to perform their functions was first outlined in the Haldane Report in 1918. In the seminal case of Carltona v Commissioner of Works [1943] 2 All ER 560 (CA) Lord Greene stated that “the duties imposed on ministers and the powers given to ministers are normally exercised under the authority of ministers by responsible officials of the department. Public business could not be carried on if that were not the case”.

However, this greater reliance on civil servants has caused the lines of individual ministerial accountability to become blurred due to the “complexity of modern government” (Gay, O, 2004). At the time of the Haldane Report, there were only 28 civil servants in the Home Office. There are now over 3400 (Ibid) which makes the traditional allocation of full accountability to ministers more problematic. A clear indication of this blurring of lines can be seen by contrasting the Crichel Down affair in 1954 where the minister resigned after a damning report of the actions of those acting for government, with the case in 1996, where the Home Secretary, Michael Howard, refused to resign over the performance of the Prison Service (House of Commons Research Paper 04/31: Individual Ministerial Responsibility- Issues and Examples). Howard argued that ministers should be responsible for decisions which they have taken and civil servants should be responsible for decisions which they have taken. This view is more prevalent today than it was in previous years.

It is important to note that civil servants give evidence under direction and on behalf of ministers. The Osmotherley rules (a convention never formally approved by Parliament) say they must be as open and transparent as possible as greater transparency is needed about who made a decision before full separation between ministerial and civil service accountability can be achieved. Testimony needs to be accurate and truthful in accordance with statutes including Freedom of Information Act 2000.

According to a report on Ministerial Accountability and Responsibility, it is not possible to distinguish absolutely areas of personal liability from areas of constitutional accountability (Ministerial Accountability and Responsibility, HC, 313-I) especially as operational issues are increasingly delegated to agencies. Select committees now hold hearings more frequently with greater scrutiny being placed on Ministers and civil servants. However, the Constitutional Reform and Governance Act 2010 provides in S3.6 that the Minister for the Civil Service must ensure that civil servants who advise Ministers are aware of the constitutional significance of Parliament and of conventions that govern the relationship between Parliament and Government.

RESPONSIBILITY V ACCOUNTABILITY

Although Lord Howard argued in 1997 that there is a difference between responsibility and accountability, ministerial responsibility is central to the Westminster system as it ensures the accountability of government to parliament and ultimately to the electorate. Its importance can also be highlighted by the fact that ministerial prerogatives include taking decisions on armed conflicts and international treaties (Taming the Prerogative, Strengthening Ministerial Accountability to Parliament -House of Commons Public Admin Select Committee Report, 2004). These ministerial powers are not found in statute, but rather flow from the ancient prerogative of the crown (Dicey).

“However the distinction between responsibility and accountability has been contested by academics such as Matthew Flinders who has commented that it is ‘confusing and ambiguous as to the requirements of ministerial responsibility where operational fault is concerned’24 and by the Public Services Committee which made the criticism that ‘It is not possible absolutely to distinguish an area in which a minister is personally responsible, and liable to take the blame, from one in which he is constitutionally accountable’.” (House of Commons Research Paper 04/31: Individual Ministerial Responsibility- Issues and Examples).

The importance of accountability cannot be underemphasized as parliament is supposed to hold government in check. However, an increasing amount of laws are made by delegated legislation with minimal parliamentary scrutiny. The United Kingdom does not have the constraint of a constitutional court.

MEANS BY WHICH ENFORCED

The Ministerial Rules state that Ministers hold office as long as they hold the confidence pf the Prime Minister. Accountability requires public authorities to be justify their decisions and actions. Sanctions include censure and dismissal. This is succinctly put in a Canadian Parliamentary paper that states that by ministers being called upon to “explain and defend the actions of their departments…it is the loss of political reputation, rather than the loss of a job, that puts the bite into the doctrine of ministerial responsibility”. (TIPS-35E November 29, 2000 – Library of Parliament for Canada, Ministerial Responsibility)
No constitutional diff between accountability and responsibility?

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