MINISTERIAL RESPONSIBILITY
Democracy requires that those who govern should be responsible to those whom they govern. The convention of ministerial responsibility seeks to achieve this aim.
The Cabinet represents the center of government. Its constitutional role is to provide confidential advice to the Sovereign. Again it is a creature of convention rather than law. The Prime Minister determines which Ministers are members of Cabinet, although there are restraints on his or her freedom of appointment. The holders of offices such as the Lord Chancellor, Chancellor of the Exchequer, Home Secretary, Foreign Secretary and the Leaders of the House of Commons and House of Lords are always members of Cabinet. Cabinet generally comprises 20 to 24 Ministers, although the number is nowhere fixed by rules. The Cabinet is serviced by the Cabinet Secretary, the most powerful office in the Civil Service. Cabinet meets weekly to discuss, decide and endorse government, policy.
The convention of ministerial responsibility is central to the constitution, and plays a fundamental role in the relationship between the executive and parliament. For the doctrine of government under the law to be observed, it is essential that government be accountable to both parliament and the electorate and that government be conducted in a manner sufficiently open, subject to the requirements of the national interest, to inspire public confidence. Marsha and Moodie describe ministerial responsibility as follows:
Ministers are responsible for the general conduct of government, including the exercise of many powers legally vested in the Monarch; and ultimately, through Parliament and parties, to the electorate. [1971, Chapter -1]
The doctrine thus has two limbs – individual and collective responsibility. In order to facilitate analysis, the topic may be broken down into three aspects:
(a) the collective responsibility of the Cabinet to parliament, and ultimately the electorate, for policy and administration;
(b) the individual responsibility of ministers for the policy and administration of his or her Department; (c) the individual responsibility of ministers for their personal conduct.
COLLECTIVE MINISTERIAL RESPONSIBILITY
Theoretically, a check is kept on the executive through the operation of the convention of CMR. Collective responsibility requires that all Ministers must accept cabinet decisions and action consequent thereon, or dissent privately, or speak out and resign; unless the doctrine is waived on any given occasion. CMR increases party discipline and unity within the government and also serves to strengthen the authority of the PM in relation to his colleagues.
The doctrine of collective responsibility involves two rules:
1. The rule that the government would resign for failing to gain `Vote of No Confidence’. It means that a failure to convince Parliament that the government is strong and united may well lead to a ‘Vote of No Confidence’, which, if lost by the government, requires its resignation. In fact, the PM and his ministers are collectively responsible to Parliament for the conduct of national affairs. If the PM loses support in Parliament he must resign or seek dissolution of Parliament. However, only two governments, both in a minority in the Commons, have lost the confidence of the House; first one is in 1924 and the second one in 1979.
2. The rule that the government must express their views in one voice:
The first rule is that, once an agreement is reached in Cabinet, all members of Cabinet – and many outside Cabinet – are bound to speak in support of the decision. There should be no criticism or dissent from the decision in public – irrespective of whether or not the particular member of Cabinet was party to the discussion. Equally, if a decision is reached by the Prime Minister in Cabinet Committee or the Inner Cabinet when only a small handful of members are present, the decision binds all.
The convention of collective Cabinet responsibility emphasis the unanimity of government and its accountability to parliament. The classic expression of collective responsibility remains that of Lord Salisbury:
For all that passes in Cabinet every member of it who does not resign is absolutely and irretrievably responsible and has no right afterwards to say that he agreed in one case to a compromise, while in another he was persuaded by his colleagues … It is only on the principle that absolute responsibility is undertaken by every member of the Cabinet, who, after a decision is arrived at, remains a member of it, that the joint responsibility of Ministers to Parliament can be upheld and one of the essential principles of parliamentary responsibility established.
The rationale for the convention lies in the need for government to present a united front to parliament and the public in order to maintain confidence. A government, which exhibits public disagreements over policy matters, is one, which will be regarded as weak, and will be subjected to challenges to its authority to continue in office.
Agreement to differ
It is possible for the convention of collective responsibility to be waived when the circumstances are such that the political disagreements within Cabinet are of such magnitude that the Prime Minister finds it more convenient to set aside the convention than to have the convention broken by members of Cabinet. Two illustrations of waiver can be given. In 1931-32, the National (coalition) government contained bitterly opposing views over economic policy; in particular, over the levy of tariff duties. Four members of Cabinet handed in their resignations, and withdrew them only after the Prime Minister, Mr. Ramsey MacDonald, decided to waive the convention and allow the dissident members to express their views publicly.
In 1975 the labor government of Mr. Harold Wilson was faced with an equally intransigent faction in Cabinet on the matter of the United Kingdom’s continued membership of the European Community. The government had decided to put the question to the people in a referendum, although, in advance of the referendum, the government announced that it would not be bound by the result.
Rather than face a public display of disunity in contravention of collective responsibility, Mr. Wilson announced a limited waiver of the convention, in the guise of an ‘agreement to differ …those ministers who do not agree with the governments recommendation in favour of continued membership of the European Community are, in the unique circumstances of the referendum, now free to advocate a different view during the referendum campaign.
In the event, one minister (Eric Heffer) flouted the limited waiver, and two senior Cabinet members, Mr. Roy Jenkins, Tom– Benn. opposed each other in a public televised debate shortly before the referendum took place.
The second supporting rule is that records of Cabinet discussions are absolutely secret. The knowledge that Cabinet records are protected by confidentiality enhances the opportunity for members of Cabinet to discuss matters freely, secure in the knowledge that their, personal point of view, whatever the decision, will be protected from the public gaze.
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. Moreover, Cabinet and Committee documents will often contain information, which needs to be protected in the national interest. It is therefore essential that ministers take the necessary steps to ensure that they and their staff preserve the privacy of Cabinet business and protect the security of government documents. (Cabinet Office, 1992, revised 2001, Para 17)
Cabinet papers
The confidentiality of Cabinet discussion is protected by the prohibition against disclosure by members of Cabinet. In addition, the rules regarding the confidentiality of Cabinet papers include the rule that the government of the day may not release the papers of a previous government without the consent of the former Prime Minister. Furthermore, the papers of the previous government may not be disclosed to a government of a different political persuasion. It may at first sight appear curious that an incoming government cannot gain access to the papers of the previous government, and it may be wondered how the government is supposed to act effectively in any policy area if denied so much data- Nevertheless, the rifle is justified on the basis that an outgoing government might be tempted to remove politically sensitive documentation if it feared that a new – Government would make political capital out of it. Three categories of papers are excepted from the convention:
(a) papers which, even if not publicly available, can be deemed to be in the public domain, for example, letters sent by former ministers to trade associations, trade unions, etc, or to Members of Parliament about constituency cases, or to members of the public;
(b) papers, other than genuinely personal messages, dealing with matters which are known to foreign governments, for example, messages about inter. Governmental negotiations;
(c) written opinions of the Law Officers, which are essentially legal rather than political documents.
Ministerial memoirs( autobiography):
The publication of a former minister’s memoirs of his political life poses problems for the rules relating to Cabinet secrecy. In 1976, the Radcliff Committee Report stated that:
The author should be free to use his ministerial experience for the purpose of giving an account of his own work, subject to restrictions on three separate categories of information:
(a) he must not reveal anything that contravenes the requirements of national security operative at the time of his proposed publication;
(b) he must not make disclosures injurious to this country’s relations with other nations
(c) he must refrain from publishing information destructive of the confidential relationships on which our system of government is based.
The final restriction relates to opinions or attitudes of Cabinet colleagues, advice given to him by colleagues and criticism of those working for him in office.
In Attorney General v Jonathan Cape Ltd (1976), the issue of the publication of the diaries of Richard Cross man, a former Labour Cabinet member, was considered. Executors of the estate of Richard Crossman sought to publish his Diaries; the government sought an injunction restraining publication. Recognising the convention of collective responsibility, Lord Widgery CJ stated:
I find overwhelming evidence that the doctrine of joint responsibility is generally understood and practiced, and equally strong evidence that it is on occasion ignored. Having given such ambivalent recognition to the convention, which in any event was not court-enforceable, the injunction was denied. Examples of such resignations include Sir Anthony Eden’s in 1938 over Chamberlain’s policy towards Mussolini, and arguably Michael Heseltine’s in 1986 due to disagreement with government policy in respect of Westland plc.
INDIVIDUAL MINISTERIAL RESPONSIBILITY
The classic doctrine of this limb of ministerial responsibility states that a minister is responsible for every action of his department.
Lord Morrison viewed the doctrine equally strictly:
… a minister is accountable to Parliament for anything he or his department does or for anything he has powers to do, whether he does it or not. That is to say, if the action or possible action is within the, field of ministerial power or competence, the minister is answerable to Parliament. (196-1, p 265}
The convention of IMR requires that ministers are responsible to Parliament for their own actions, omissions, mistakes as well as for those of the officials in their departments. We have seen that this also entails two aspects. First, a Minister is required to conduct him or herself in such a manner (financial or sexual misconduct) as not to cause embarrassment to the government or political party. Second, Ministers are responsible for the conduct of their departments.
a. Resignation for personal misconduct
If a minister is personally blameworthy, he might be expected to resign depending on the nature of the misbehavior. Conduct improper for a minister of the Crown, whether a private or public nature, would probably lead to resignation; for example, the resignation of Ron Davies in October 1998, after an indiscretion of some sort took place on Clapham Common.
The personal relationships of ministers are also matters, which fall under intense public scrutiny–. In 1963, the Minister of Defence, Mr. john profumo was found to have been having a sexual relationship with a prostitute, Christine Keeler, it was found also enjoyed a close personal relationship with a Russian Naval Attache at the Soviet Embassy. When questioned in the House of Commons about the affair, Mr. Profumo lied to the house when the truth emerged, Mr. Profumo resigned office. The cause of his resignation was not so much the sexual affair, but the contempt of the House committed through lying. The potential security aspects of the affair led to a judicial inquiry headed by Lord Denning MR.
In 1983, Cecil Parkinson MP, the Secretary of State for Trade and Industry and Conservative Party Chairman, resigned following revelations about a long standing relationship with his secretary, Sarah Keays, who became pregnant. For some time, the Prime Minister, Mrs. Thatcher, and the Party maintained their support for Mr. Parkinson as did his wife throughout the public attention focused onthe affair. When Sarah Keays published a series of articles in the national press about the matter, and alleged that Mr. Parkinson had said that he wanted to marry her, public and political support began to win, and Mr. Parkinson resigned.
In February 1994, Hartley Booth MP resigned after a ‘close relationship’ with a research assistant; in May 1994, Michael Brown MP resigned following newspaper reports of a ‘friendship’ with a male civil servant. In 1998 Ron Davies the Welsh Secretary, resigned immediately after being discovered in still unexplained but curious circumstances on Clapham Common. The message is, if you are caught out resign sooner rather than later in order to spare the government embarrassment and loss of public confidence.
Financial probity
The personal financial probity of ministers, their Parliamentary Private Secretaries and other Members of Parliament is regarded with seriousness. Under the law and custom of parliament, Members must declare their financial interests in the Register of Members’ Interests and make public declarations in debate or committee proceedings of any interests they hold which may affect their impartiality. The holding of directorships, ownership of shares, consultancy positions and receipt of gifts all raise issues concerning integrity and fitness for office. Ministers of the Crown must give up any public appointments or directorships on assuming office. Further, they must divest themselves of any financial interests on assuming office where that interest might give rise to conflict with his or her ministerial responsibilities.
The Ministerial Code states that ‘Ministers must ensure that no conflict arises, or appears to arise, between their public duties and their private interests, financial or otherwise’. There is an inherent vagueness in such criteria, yet relatively few ministers and other Members of Parliament have fallen from grace as a result of imprudent (or dishonest) financial dealings. In 1913, the issue of ministers holding shares was raised in debate following allegations of improper ministerial involvement in the Marconi Company. It was rumored that ministers had used information received as ministers for their own personal advantage. All three ministers involved denied any share dealings. A select committee inquiry exonerated the ministers of all charges of corruption and from charges that they had used their ministerial positions for personal gain.
In 1949, a Tribunal of Inquiry was established to inquire into allegations of payments and other benefits being made to John Belcher MP, Parliamentary Secretary to the Board of Trade. Mr. Belcher had . received gifts offered with a view to securing favourable treatment in relation to licenses granted by the Board of Trade. He resigned office and his parliamentary seat as a result.
Further embarrassment was caused to the government in 1994, when it was alleged that Jeffrey Archer, former Conservative Party Chairman, had been involved in share-dealing in Anglia Television, on whose Board of Directors his wife held a directorship. Also in 1994, allegations were made that Members of Parliament had accepted payment for asking parliamentary questions. This affair escalated into a full-scale judicial inquiry into ‘standards in public life’, and to a tightening of the rules regulating the financial interests of all members of the House of Commons.
Premature disclosure of confidential information
In 1936, the Colonial Secretary, JH Thomas, resigned after revealing information relating to Budget proposals before they had been announced in parliament. As a consequence, two friends, Alfred Bates and Sir Alfred Butt MP, made financial gains. A ‘leak’ of information was suspected and a Tribunal of Inquiry was established. The Prime Minister described Thomas’s conduct as ‘letting his tongue wag when he was in his cups’. The Attorney General refused to prosecute under the Official Secrets Act,and the minister resigned. In 1947, the Chancellor of the Exchequer, Sir Hugh Dalton, resigned after revealing Budget proposals to a journalist.
b. Resignation for departmental maladministration
When departmental maladministration has occurred, matters are less clear cut. It seems that there is no expectation that a minister will accept responsibility, in the sense of personal blame, for every mistake occurring in his department.
Perhaps one of the clearest examples of a minister resigning because of a mistake, even though he knew nothing of it at the time it occurred, is that of Sir Thomas Dugdale who resigned as Minister of Agriculture as a result of the Crichel Down Affair in 1954. In doing so he took responsibility for alleged maladministration by senior civil servants without his knowledge. Some commentators have sought to explain this resignation on the basis that compulsory purchase was involved, but it certainly stands as a most stringent example of the ‘rule’ in force, particularly since the maladministration affected only one family and was a matter of embarrassment rather than one where severe loss either financial or in terms of physical wellbeing was concerned Crichel Down
The classic doctrine was seen to operate most clearly in the Crichel Down affair in 1954. Crichel Down, an area of some 725 acres in Dorset, Had been compulsorily acquired by the Air Ministry in 1937 for use as a bombing range. After the Second World War, the land was no longer needed and it was transferred to the Ministry of Agriculture and administered by the Agriculture Land Commission. In 1950, the Commission decided that the best way of disposing of the land was to equip it as a single farm unit and lease it.
Three hundred and twenty eight acres of Crichel Down had been part of the Crichel Estates owned by a Mrs. Marten. Her husband wanted to reclaim the land. In both 1950 and 1952 he asked the Commission whether he could buy back the land. The Commission wrongly thought that they had no power of sale and declined to investigate his request. Mr. Marten raised the matter with his Member of Parliament who referred the matter to the Parliamentary Secretary– to the Minister of Agriculture, who requested a report from the Land Commission. The official in charge of making the report was instructed not to approach the previous owners or to inspect the land. and to new the matter as one of great confidentiality. The resulting report was full of inaccuracies, and went unchecked by the Ministry, which decided to adhere to its original plan for the land.
‘Mr. Marten was informed of the decision in 1953, and advised the Ministry that he would rent the whole of the land. Meanwhile, the Ministry had committed itself to another course of action. Mr. Marten’s letters to the authorities went unanswered and he pressed for a public inquiry. The inquiry found that there had been inaccuracies in the report on the land, muddle and inefficiency in handling the matter and hostility to Mr. Marten. In July 1954, the-minister Thomas Dugdale accepted responsibility and resigned.
In a debate on the Crichel Down Affair 1954, the Home Secretary stated his view as to when a minister must accept responsibility and not blame his civil servants:
i. a minister must protect a civil servant who has carried out his explicit orders,
ii. a minister must defend a civil servant who acts properly in accordance with the policy laid down by the minister,
iii. where an official makes a mistake or causes some delay, but not on an important issue of
policy and not where a claim to individual rights seriously involved, the minister acknowledges the mistake and he accepts the responsibility although he is not personally involved.
Lord Carrington’s registration in 1982 as Secretary of State for Foreign Affairs together with those of the other Foreign Office ministers who resigned with him can also be seen as an example of a minister resigning for the mistake of the department.
Although there were a number of major failings in government policy, including arms to Iraq affair, the BSL crisis and the prison breakout only one minister, Lord Carrignton, actually accepted responsibility for error in his department and resigned. Most resignations in fact occur either over sexual or financial misconduct or indiscreet and damaging remarks which embarrass the government such as Edwina Currie’s pronouncement over the infection of British eggs by salmonella. Ron Davie’ resignation first with the mould neatly. Woodhouse, writing in 2002 in Public Law, page ’13, observed that in the second half of the 20th century, only the resignations of Dugdale(1954), Carrington (1982) and Brittan (1986) can, with degree of certainty, be , attributable to departmental fault.
Evaluating the evidence
However, as has been seen above, the existence and acceptance of responsibility does not inevitably lead to the consequence of the resignation of a minister for the failures within his or her department. No hard and fast rules exist which will determine whether and when a minister should resign, and accordingly it cannot clearly be said that resignation forms a part of the convention itself. On the question of the circumstances under which a minister will resign as a result of departmental mismanagement, Professor SE Finer (1956) considered that:
…whether a minister is forced to resign depends on three factors: on himself, his Prime Minister and his party:
For a resignation to occur, all three factors have to be just so: the minister compliant, the Prime Minister firm, the party clamorous. This conjuncture is rare, and is in fact fortuitous. Above all, it is indiscriminate – which ministers escape and which do not is decided neither by the circumstances of the offence nor by its gravity.
Professor Finer went on to question whether in fact there is a ‘convention’ of resignation at all, and concluded that the convention is so messy in operation that it cannot amount to a rule.
In debate, Mr. Prior distinguished carefully between responsibility for policy – for which he accepted responsibility and the failure of officials to follow the correct orders and procedures for which he denied responsibility:
In 1994, the Home Secretary, Michael Howard, faced several calls for his resignation over escapes from Whitemore prison and over the finding of escape equipment and weapons in prisons. Mr. Howard refused to resign, citing in his support the precedent set by Mr. James Prior (as he then was) over escapes from the Maze prison in Ulster, and the distinction between responsibility for operational matters and matters of policy. In 2002, the Secretary of State for Transport, Stephen Byers, resigned. He had inherited a department, which had ambitious plans for revitalisation of transport over a ten-year period. However, Byers seemed unable to produce progress in any area and was perceived by many to be less than straightforward in accounting for the department. He also, fatally, failed to dismiss his special adviser after a callous remark made on 11 September 2001. Increasingly his tenure became damaging to the government and Byers left office. Also in 2002, the Secretary of State for Education resigned following sustained criticism over examinations.
IS THERE A DUTY TO RESIGN? OR ARE THE MINISTERS INCREASINGLY RELUCTANT TO RESIGN?
In recent years a rattier different attitude has been taken in relation to mistakes by civil servants. Whereas formerly the minister maintained the anonymity of the civil servant and would take responsibility, in certain recent cases the blame has been laid directly at the feet of civil servants whilst ministers have felt no compunction to resign. An example is the Maze Prison breakout which was followed by resignation of civil servants but no ministerial departures.
The current trend is therefore that ministers will only resign if it can be clearly shown that the fault for what has gone wrong rests with ministerial policy decisions, rather than the decisions of civil servants in their department.
It should also be noted that whether a minister survives a mistake seems to depend upon factors such as whether he retains the confidence of the PM and the Cabinet, the view of the backbenchers of his own party and the level of public outcry. Ministers will only be forced to resign when, on a hard-headed political calculation, their staying on will cause more damage to the governing party than their resignation.
Suspicion has been voiced by various commentators that the split between is ‘operational matters’ and ‘matters of policy’ is blurred and open to manipulation by the government of the day.