Ministerial Responsibility

The doctrine of collective and individual responsibility are effective tools in ensuring the accountability of ministers to Parliament - Justin Santiago

Individual and collective responsibility are examples of conventions that form an important source of constitutional law. They are defined by Hilaire Barnett in Constitutional and Administrative Law as non-legal constitutional rules which imposes an obligation on those bound by the convention and are largely political in nature. They govern the exercise of discretionary powers and regulate many practices in the workings of central government. Conventions regulate the relationship between the various organs of government and supplement the legal rules. Because of its non legally binding nature it helps remove certain aspects of the working of the constitution from the jurisdiction of the courts and helps preserve the doctrine of the separation of powers but at the same time the breach of convention is uncertain and can lead to abuse by an irresponsible government.

Professor Wade has defined the convention of ministerial responsibility as the accountability and responsibility of those who govern to whom they govern. Under these broad ambits are the collective responsibility of the Cabinet to parliament and ultimately the electorate for policy and administration, the individual responsibility of ministers for the policy and administration of his or her department and the individual responsibility of ministers for their personal conduct.

Collective responsibility is evidenced by three interrelated observations :- that the government must speak with one voice, cabinet discussions are confidential and the government must resign if it loses a confidence vote.

The convention of collective responsibility emphasizes the unanimity of government and its accountability to parliament. The rationale for the convention lies in the need for the government to speak with one voice is the presentation of a unanimous front to the parliament, and ultimately the electorate in order to maintain confidence. It is by convention that once the cabinet arrives at a decision, then every member of the cabinet must support that decision regardless of any disagreement beforehand. The ministers are then held collectively to be accountable to Parliament. The Prime Minister has head of the Cabinet is questioned during the Prime Minister question time making him accountable for the collective decisions of the cabinet.

Collective responsibility ensures that the Cabinet is accountable wholly and singularly for any decisions. While this convention works effectively in keeping the pack together it may not necessarily foster free and fair debate. Collective responsibility is more often looked as a political tool to reinforce party unity. It also helps maintain the government’s control over legislation and to contain unpopular public disagreements between departments. A Minister has no choice but to resign if he or she is not able to adhere to this convention. The resignations of the late Robin Cook, former Foreign Secretary and Clare Short, Secretary of State for International Development was due to disagreements with their colleagues over the Iraq war. Collective responsibility dents the accountability of the Government to Parliament because a resignation is indicative of a disagreement for reasons which are never made known.

The confidentiality of Cabinet discussions is often used as a cloak to disguise covert decisions under the banner of unanimity of a decision. The Hutton enquiry into the death of Dr David Kelly provides an idea of how information on the presence of weapons of mass destruction in Iraq could have been sexed up by the Cabinet in order to go to war with Iraq. Although it is not known for sure whether it was or not the decision to go to war was based on secret cabinet meetings which allowed for action to be taken without consultation with Parliament. This element of collective responsibility decreases the level of accountability of the Cabinet to Parliament.

Secrecy in the Matrick Churchill and Arms to Iraq affair enabled ministers who knew about the sale of arms to Iraq signed public immunity certificates thus denying the courts evidence which enabled the defendants to go scot free and hide the bigger crime of sanctioning of a government which sanctioned the illegal sale. This over emphasis on secrecy can backfire when ministers who have resigned author tell all memoirs that can embarrass the government as what happened with the release of the Blunkett tapes by former minister, David Blunkett.

The third aspect of collective responsibility ensures that ministers are accountable to Parliament through the availability of the no confidence motion. The Government must resign if it loses a ‘confidence vote’ and the support of Parliament. This goes to the very heart of accountability and has occurred on multiple occasions. The resignation of the James Callaghan Government in 1979 after a vote of no confidence and the consequent general election is an example.

Collective responsibility has been undermined by the fact that not all important decisions of national policy are taken in full cabinet. Some decisions are taken effectively by a few ministers meeting with the PM, subject at most to confirmation by
the cabinet. For example the budget proposals are settled by the Chancellor of theExchequer in consultation with the PM and not by the full cabinet.

Individual responsibility consists of two different limbs : firstly responsibility to Parliament for the conduct of his or her department, actions carried out by the deparment in pursuit of government policies and discharge of responsibilities laid
down upon him/her as minister and secondly responsibility for personal conduct.

The rationale behind the convention of individual ministerial responsibility is to foster a sense of accountability of individual ministers to Parliament and the electorate as well for acts of his or her civil servants. This convention preserves anonymity of civil servants and shields them from attack on the floor of the House of Parliament and enables to carry out the day to day administration of executive powers and policies while maintaining their position as anonymous advisers of government ministers.

The convention advocates policy culpability during parliamentary sessions. A minister is required to answer questions, introduce and defend bills, participate in debates, supply information and justify his department’s policies. He must accept responsibility for all policy and administrative bungling that is subject to parliamentary scrutiny.

There has been a greater erosion of individual responsibility due to the increasing size and complexity of modern government departments and it is hard to foresee 100 ministers accepting responsibility for the acts of 700,000 civil servants. There is also an increasing use of executive agencies or next step agencies running key areas of the administration diluting the responsibility of the Minister heading the department.

Increasingly inter department committees are formed to make secure coordination between departments with the same problem make it difficult to pinpoint the individual minister to be accountable for any wrongdoings.

Because of the nature of conventions, a breach of individual responsibility may not result in any punitive effect. A Minister may or may not resign. Case in point was the call for Michael Howard, the Home Secretary to resign after the a number of prison breakouts in the late 1980s. He argued that the runningof the prisons was chiefly the responsibility of the Prison Service. Sometimes the erring minister may be transferred to another post. This lack of accountability often buries the incompetency and inefficiency even further.

Also individual responsibility is also likely to be defeated by collective responsibility. The government will usually rally behind a Minister who is being criticized under the convention of collective responsibility or the Minister will remain as he still has the support of the Prime Minister. Thus we see the collision of the two conventions resulting in accountability being the victim.

In the area of personal conduct ministers have to be accountable and this is made available through the courts. In M v Home Office, it was ruled that an injunction could be granted in an action against a minister personally and that applications for judicial review are not proceedings against the Crown for the purposes of the Crown Proceedings Act 1947. This jurisdiction may seldom need to be exercised, but its existence may help to ensure that government is conducted according to law. In the words lf Nolan, LJ,

"The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is".

To make the government more accountable to Parliament the following is suggested :-

The link between individual responsibility and collective responsibility should be severed. Individual and collective responsibility are governed by conventions. There is therfor a need for clarity in codifying some of these conventions to make ministers more accountable. This requires parliamentary muscle in the form of statutes rather than leaving it to practices, habits or obligations which are dependent on political correctness rather than accountability.

Reform of collective and individual ministerial responsibility :-

The Nolan Committee has suggested that the Prime Minister be given explicit powers to determine whether ministers have upheld the required standard of conduct rather than laying down hard and fast rules regarding financial conduct and sexual conduct.

The Scott Report recommended for an abandonment of the blanket refusal to answer parliamentary questions and that more emphasis be placed accountability in answering questions and giving an account to Parliament as opposed to acceptance of responsibility by Ministers.

The Public Service Committee Report also emphasized that proper and rigorous scrutiny and accountability is a more important feature of ministerial responsibility than parliament’s ability to force that minister’s resignation.

Additionally there must be clear guidelines which regulate accountability of ministers and what are the penalties for not acting responsibly. A set of codes similar to the Civil Servant Code of Practice could do formulated to cover ministerial responsibility.

The Freedom of Information Act 2000 which confers on citizens a general right of access to data is a step in the right direction and makes it appear there is more transparency and openness in government.