Responsible Government - Political Accountability 3.0

CMR Confidentiality

Confidentiality encompasses the duty not to disclose confidential information and extends to Cabinet papers and also to ministerial memoirs. There are three exceptions to the rule of collective responsibility: Papers deemed to be in the public domain; Papers dealing with matters known to foreign governments; and Written opinions of law officers. In Attorney-General v Jonathan Cape, [1976] QB 752 ('the Crossman Diaries case') Lord Widgery CJ recognised this convention stating: 'I find overwhelming evidence that the doctrine of joint responsibility is generally understood and practised, and equally strong evidence that it is on occasion ignored.' (See Loveland pp 273-275.)

Debates

Debates take place on the floor of the House. Rarely do debates result in decisions, but they can force the government to account for itself and to defend its policies in a public forum. They also enable MPs to test the view of the House over particular issues, which in turn can place considerable pressure on the government. There are many different forms of debates, most notably: main business debates (on legislation), daily adjournment debates, and emergency debates. Emergency debates can be highly significant as they allow MPs to discuss a specific and important issue. A notable example is the emergency debate, which took place on 18 March 2003, on the proposed war in Iraq. MPs can also table Early Day Motions, which are technically calls for debate but which very rarely lead to one, being used far more often to raise a matter of general concern or to launch a campaign on a specific, often local, issue.

IMR What is the Current Position?

Despite the narrowing of the convention following Crichel Down, Loveland notes that it is difficult to extract a rule as to the circumstances under which a minister will be required to resign, and he draws on Finer's suggestion that political expediency rather than political morality may be the touchstone in explaining the scope of the modern doctrine. Political expediency appears to have played some part in the resignation of the Foreign Secretary, Lord Carrington, in 1982, following Argentina's invasion of the Falkland Islands. He had underestimated the threat from Argentina, but would not necessarily have violated any constitutional convention had he stayed in office. It subsequently became apparent that one reason for his stepping down was to assist the government. It is very rare for a minister to resign for reasons that they themselves directly attribute to an error of policy or administration, though the resignation of Estelle Morris, Education Secretary, in October 2002, could be seen as an example of this. Her stated reason for resignation was that she did not feel equal to the demands of the office. However, she had privately been nursing serious doubts about government education policy, which she would have had to steer, had she not resigned. She also felt compelled to honour her earlier promise to resign if school numeracy and literacy targets were not met. She later cited the example of Stephen Byers, the former Transport Secretary, who had only resigned after several months of allegations against him in the media. Ms Morris preferred not to follow Mr. Byers' example of trying to ride out the criticism and seeing his integrity impugned. One of the most significant ingredients of this area of constitutional behaviour is the modern emphasis on the need for accountability in government. The importance of ministers keeping Parliament informed about departmental problems and errors, rather than necessarily resigning, has become more pronounced over the last two decades, notably following the lessons drawn in the Scott Report (published in 1996) into the "arms to Iraq affair" from the 1980s. (Recommended reading: 'Political Accountability in Play: The Budd Inquiry and David Blunkett's Resignation' [2005] PL 229, which can be found on Westlaw.)

Prime Minister's Questions

Every Wednesday 30 minutes is set aside in Parliament for questions to be directed to the Prime Minister. Usually they start with an 'open question' from an MP about the PM's engagements. This then paves the way for supplementary questions (see further Loveland pp 146-147).

Scrutiny of the Executive by Parliament

In addition to its legislative responsibilities, the House of Commons has the important role of calling the executive to account for its policies, its administration of these policies, and for the personal behaviour of ministers. Among the opportunities given to MPs for examination of government policy are: parliamentary questions, debates, and select and standing committee meetings.

IMR Errors of Judgment or Issues of Personal Morality

In recent years there has been an increasing trend for ministers to resign over personal errors of judgement or for reasons relating to issues of personal morality or propriety. Examples of resignations under these circumstances include the following: Ron Davis (Secretary of State for Wales) in 1999 following an apparent indiscretion on Clapham Common; Peter Mandelson (Secretary of State for Trade and Industry) and Geoffrey Robinson (the Paymaster General) both resigned in December 1998 over an undisclosed loan by Mr Robinson to Mr Mandelson for a house purchase; Beverley Hughes (Immigration Minister) resigned in 2004 following inadvertently misleading public statements regarding the lack of scrutiny of self-employed immigration applicants entering the UK; David Blunkett (Home Secretary) resigned in 2004 over misleading statements relating to a visa application by his ex-lover's nanny; David Laws (briefly Chief Secretary to the Treasury in 2010) resigned following the disclosure of an inappropriate parliamentary expenses claim. Liam Fox (then Defence Secretary) resigned in October 2011 following allegations that he had breached the Ministerial Code in giving a personal friend significant access to the Ministry of Defence and allowing him to accompany him on overseas ministerial visits. Chris Huhne (the Energy and Climate Change Secretary) resigned in February 2012 due to an ongoing criminal investigation into swapping speeding points with his ex-wife (for which he was subsequently imprisoned). Maria Miller, (the Culture Secretary), resigned from Cabinet in April 2014 after reports of over-claiming of parliamentary expenses.

IMR The Crichel Down Affair

Land in Devon was acquired by compulsory purchase in 1938 for use as a bombing range. It was subsequently transferred to the Ministry of Agriculture and then to the Commissioner for Crown Lands, who let it to a tenant of their choice. The former owner of the land was denied the right to buy it back, and neighbouring landowners, who were led to believe that they would be able to bid for it, were also denied this opportunity. These events led to an inquiry, where it was concluded that the civil servants in the Ministry of Agriculture had acted in a deceitful way. The Minister of Agriculture, Sir Thomas Dugdale, then resigned. Following Dugdale's resignation, Sir David Maxwell Fyfe, Home Secretary at the time, distinguished between four different situations, thereby arguably modifying the traditional convention. Where there is an explicit order made by a minister, in which case the minister must protect the civil servant who has carried out his order. When the civil servant acts properly in accordance with policy laid down by the minister, in which case the minister must protect the civil servant. Where an official makes a mistake or causes some delay, but not on an important issue of policy. Where a civil servant has taken the action, of which the minister disapproved and has no prior knowledge and the conduct of the official is reprehensible. In the first two situations, Maxwell Fyfe believed that the minister should resign. In the remaining two he believed that the minister need not do so, due to a lack of personal knowledge. This distinction created the basis from which the modern convention has arguably developed. The redefinition of the convention to require some personal knowledge has been strengthened in more recent decades by instances where ministers have not resigned following errors made within their departments. In 1983, the Northern Ireland Secretary, James Prior, did not resign following a mass breakout of IRA prisoners from the Maze prison. Prior distinguished between responsibility for policy, which belonged to the minister, and the failure of officials to properly implement policy, for which he maintained the minister was not necessarily accountable (see further Loveland pp 283- 284). This is sometimes referred to as the 'policy/operational divide'. See too the refusal of the then Home Secretary, Michael Howard, to resign following the escape of six high category prisoners from Whitemoor Prison in 1994, and his subsequent dispute with the Director of the Prison Service, Derek Lewis.

Questions for Written Answer

Many oral questions (for which there is not time for an oral answer) receive written answers. However, some questions require a written answer as a matter of design. Often this is to enable MPs to pursue a political case or to put pressure on the government on a particular issue or campaign. These questions tend to be more specifically targeted and often require a fuller and more detailed response. There is no limit on the number of these questions that an MP may table.

Conventional Controls

One of the most important ways in which the executive can be held to account, at least in principle, is through operation of conventional political practices. The two key conventions in this area are the so-called 'twin conventions' on ministerial responsibility: collective ministerial responsibility; and individual ministerial responsibility. You should refer back to Chapter 2 for more detailed discussion about the nature of conventions. These conventions are referred to in the Ministerial Code (December 2016)

Other Ways to Hold the Executive to Account

One of the most significant downsides of a reliance on Parliament to hold the executive to account is that it is not sufficiently independent in the political sense, given the natural tendency of MPs on the government side to support their own party's administration. In accordance with the principle of separation of powers (see further in Chapter 4), the courts have historically been reluctant to interfere with matters of government policy. In R (A & Others) v Secretary of State for the Home Department [2004] UKHL 56, Lord Bingham stated that: 'The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision'. So, when an issue at stake is more political in nature, the courts are more likely to defer to Parliament, as the democratic organ of the state. Since the 1960s, however, the courts have played an increased role in holding the executive to account, notably through the mechanism of judicial review (see Chapters 13-17 in particular). This very important constitutional function has also been supplemented by certain powers given to the courts by Parliament through the operation of the Human Rights Act 1998 (see Chapter 9). In addition to the courts scrutinising the actions of the executive through judicial review, the last few decades have seen an expansion in the use of tribunals, ombudsmen and inquiries into matters of public concern. There has also been far greater public scrutiny of government actions by the mainstream and social media.

Oral Questions

Oral questions are answered by ministers at question time, which is held approximately four times a week for one hour. The order in which questions are taken is determined by ballot. However, due to limitations of time, many oral questions are not answered at question time, but replied to later in writing. On each day MPs can ask only two oral questions and each of these must be directed to two different departments. An MP is entitled, at the Speaker's discretion, to ask a supplementary question. This is followed by a supplementary answer and possibly further supplementary questions from other MPs. Answers to questions are prepared by civil servants in the department of the minister concerned. Ministers are also fully briefed about any related matters that may arise in supplementary questioning. A minister can refuse to answer questions on certain subject matters such as national security. Questions and answers are published in Hansard which is the official record of Parliament. Question time is not a spontaneous affair and members are required to table their primary question a minimum of two days before sitting. Supplementary questions do not have to be tabled in advance, however.

Parliamentary Questions

Parliamentary questions are seen as one of the more important mechanisms through which information can be gained from ministers about government policy and actions. Questions can be asked in both the House of Commons and the House of Lords. There are two main types of questions: oral and those requiring a written answer. About 40,000 questions are tabled each year, of which only about 3,000 are put down for oral answer.

Select Committees

Select committees are 'permanent' parliamentary committees appointed by the House to perform a variety of tasks on the House's behalf, including scrutinising the work of all government departments and examining expenditure, procedures, and domestic administration of the House. Committees determine the subjects into which they will inquire and they have extensive powers to gather evidence, both written and oral. Their findings and recommendations are submitted to the House and published as reports. There are around 40 select committees in the Commons, comprising departmental and non-departmental committees, domestic and sub-committees. There are also a number of joint committees, which are comprised of members from both Houses, such as the Joint Committee on Human Rights. Following the 'expenses controversy' in the spring of 2009, a Select Committee on Reform of the House of Commons was established in 2010 which made some recommendations about the composition of select committees. The House agreed with these proposals and made the necessary changes to Standing Orders in March 2010. The chairmen and chairwomen of all select committees form the Liaison Committee. This body meets from time to time to allocate reports for debate to the House and consider matters affecting committees generally. In July 2002, Tony Blair appeared before the Liaison Committee, the first time an incumbent Prime Minister has appeared before a committee since 1937. He was questioned for two and a half hours on issues relating to centralised power, Iraq, pensions, transport and housing. Committees have the power to 'send for persons and papers', but they cannot compel ministers to attend and give evidence, and there are no formal requirements regarding ministerial co-operation, with the exception of the Committee on Standards and Privileges. Generally, however, governments will co-operate with the work of select committees and ministers will agree to give evidence when invited. Proposals and reports publicised by select committees are not binding, although the government should reply to a report within 60 days. The profile of select committees has increased in recent years as they are often televised. This has lead to an alternative career path for some MPs who can increase their profile as chair of a select committee. Examples include Margaret Hodge who, as chair of the public accounts select committee, increased awareness of corporate tax evasion, and Tom Watson who, as chair of the culture media and sport select committee, led the investigation into phone hacking. Arguably, one of the greatest powers of the select committee system is raising media attention and hence influencing public opinion, but this does depend on the subject matter in question.

Standing Committees

Standing committees in the House of Commons are not to be confused with select committees. They are of a temporary nature, being established to examine in detail a bill at the committee stage of its formal passage through Parliament.

Standards of Public Service and the Openness of Government: Freedom of Information Act 2000

The Freedom of Information Act 2000 created new rights of access to information and was intended to generate greater openness in government. It superseded the Code of Practice on Access to Government Information, which came into effect in 1994 (with a revised edition in 1997). It commits departments and public and governmental bodies to publish information, but does not confer an entitlement. The Freedom of Information Act covers a range of public authorities, including government departments, the National Assembly for Wales, the Northern Ireland Assembly, local government and National Health Service. An Information Commissioner, to whom the public has direct access, regulates the provisions in the Act. The Act permits people to apply for access to documents, or copies of documents, as well as the information itself. A very valuable insight into the role of the Information Commissioner and the statutory framework regulating the application of the Act can be gained from reading the leading case of R (Evans) v Attorney General [2015] UKSC 21 relating to the request for disclosure of Prince Charles's letters to ministers.

Individual Ministerial Responsibility

The classic doctrine of individual ministerial responsibility required ministers to accept responsibility and, if necessary, resign for any errors and failures of their departments. In the Ministerial Code this is set out as part of the first general principle. 'Ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and agencies.' The convention is a difficult one to assess, not least because there is considerable academic opinion to the effect that the doctrine in its classic form has rarely been observed in recent times. Certainly one can say that the convention has adapted over time. Some are even of the view that it has effectively disappeared as a meaningful part of our constitutional arrangements. However, there is a pattern emerging where ministers are called upon and feel obliged to resign, not so much for the failings in the operation of their departments, but for their own errors of judgement. The most quoted example of a minister accepting personal blame for departmental errors and resigning as a consequence is that of Sir Thomas Dugdale in relation to the Crichel Down affair in 1954.

Collective Ministerial Responsibility

The doctrine of collective ministerial responsibility is well established. 'The doctrine of collective ministerial responsibility requires that all ministers, and usually parliamentary private secretaries, must accept Cabinet decisions, or dissent from them privately while remaining loyal to them publicly, or dissent publicly and resign, unless collective responsibility is waived by the Cabinet on any given occasion. If a minister does not resign over an issue of policy or procedure he will be collectively responsible for it, in the sense that he will have to support it publicly through his votes in Parliament and through his speeches.' R Brazier, Constitutional Practice (2nd edn Clarendon Press Oxford 1994) It is referred to in the Ministerial Code as a general principle in the following terms: '2.1 The principle of 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, including in correspondence, should be maintained.' Collective responsibility is an important element of government accountability. It has been sub-divided into three aspects: confidence, unanimity, and confidentiality.

CMR Confidence

The rationale for the convention lies in the need for government to present a united front in order to maintain parliamentary (and public) confidence. Confidence relates to the idea that the government must enjoy the support and confidence of the House of Commons in order to remain in office. In practice, this does not mean that the government must resign if it loses a vote on any issue. It should only resign if it loses on a specific 'no-confidence' motion. (See Loveland pp 268-270.)

Civil Servants and Public Officials

There are three main constitutional principles underpinning the civil service. (a) Permanence. The principle of permanence means that the civil service does not change personnel with each new government. This creates a pool of people with specialist skills and experience on which ministers can draw. (b) Political neutrality. It is important, if the civil service is to serve successive ministries from different parties, that it is politically neutral. While lower level civil servants are allowed to engage in political activity, those employed in higher grades are prevented from doing so at a national level. (c) Anonymity. This is important in maintaining the essential political neutrality of the civil service. It also reflects the concept that it is the minister, and not his or her servants, who is responsible for the actions of the department.

Private Notice Questions

These are urgent oral questions about matters of public importance or arrangement of parliamentary business that have not appeared in the order paper. These questions enable the issue to be discussed immediately after question time. As they are considered to take priority over normal parliamentary business, the Speaker must be given notice before noon on the day the MP wishes to put the question and the Speaker has an absolute discretion as to whether to allow the question.

Administrative Bodies

These include central government departments, operating under the control of a government minister and run by civil servants, and local authorities. Please refer to your pre-reading for more detail.

Standards of Public Service and the Openness of Government: Parliamentary Standards Act 2009

This introduced a number of reform measures following the controversy over MPs' expenses. Among these were the establishment of an Independent Parliamentary Standards Authority (IPSA) and the appointment of the Commissioner for Parliamentary Investigations. It also made provision relating to salaries and allowances for MPs and arrangements relating to disclosure of their financial interests and to their conduct (following the 'Nolan principles', set out in the First Report of the Committee on Standards in Public Life).

CMR Unanimity

Unanimity requires that, once a decision or agreement has been reached, all ministers should publicly agree with government policy and, if they feel that they cannot do this, they should resign. This applies even if the minister was not present at the relevant discussions. Examples of such resignations include those of: John Denham, Minister for Police and Crime Reduction; Robin Cook, the Leader of the House; and Clare Short, the International Development Secretary, in protest at the government's decision to embark upon the war in Iraq in 2003. The force of the doctrine of collective responsibility is mitigated by the practice of 'unattributable leaking' by ministers to the press. It has been suggested that this practice is necessary for the preservation of the doctrine. A more radical way of dealing with the difficulties of collective responsibility is the suspension of the doctrine to allow open dissent within specified limits. This is likely where the political disagreement is of great magnitude and the Prime Minister finds it more expedient to suspend the doctrine temporarily. This occurred in 1975 in relation to the referendum on the membership of the European Communities. (See Loveland pp 270-273.) Other more recent examples of this came with the referendum on the Alternative Vote system in May 2011 and most notably during the 2016 EU referendum campaign.

IMR Pressure to Resign

Although there were no examples of overt departmental or policy errors in the Coalition government leading to resignations, there were several examples of circumstances where the media called for resignations due to departmental problems with the implementation of policy. In February 2011, Caroline Spelman, the Environment Secretary, announced a reversal in the policy on the sale of forests. In April 2011, Andrew Lansley, the Health Secretary, declared that there was to be a 'pause' in the reform of the NHS following widely reported problems in his department. In April 2012, Jeremy Hunt, the then Media Secretary, was heavily criticised for his handling of the News Corp bid for BSkyB. Although none of these ministers resigned at the time, in September 2012 all three lost their respective departments in a cabinet reshuffle (although Jeremy Hunt was effectively promoted to fill the newly vacant position as Health Secretary). During the office of the previous Labour government from 1997-2010, the opposition called for Charles Clarke to resign in 2006 in relation to Home Office failures to track foreign nationals who had been released from prison. Although he resisted, he was later sacked by Tony Blair. In November 2007, Alistair Darling, Chancellor of the Exchequer, resisted calls for his resignation following the loss by HM Revenue & Customs of a data disc containing the personal details of 25 million people. This was argued to be an operational error on the part of the department, although arguments were raised that the volume of data on the disc was in part due to policy funding cutbacks, which made it uneconomic to strip out extrinsic data.

Pre-legislative Scrutiny

An important development in recent years has been the number of bills published in draft form by the government for pre-legislative consideration in Parliament through the select committee system of both Houses. Pre-legislative scrutiny by select committees of draft bills or detailed policy statements is recognised as a useful means of testing government policy, and an increasingly effective process for enhanced parliamentary scrutiny of the executive. For example, as part of this process, the Joint Committee on Human Rights considers draft bills at the pre-legislative stage and reports to both Houses on their compatibility with Convention rights.

Introduction

You should refresh your memory on Parliament, the executive and local government from your pre-course reading. The focus of this chapter is on the need to hold the government to account, and the mechanisms by which this is achieved. The concepts of limited, accountable, and responsible government lie at the heart of the notion of 'constitutionalism'. Barnett Constitutional & Administrative Law (5th Ed, Cavendish (pp 5-6)) explains the operation of the doctrine of constitutionalism in the following terms: (a) the exercise of power should be within the legal limits conferred by Parliament - the concept of intra vires - and those who exercise it must be accountable in law; (b) the exercise of power - irrespective of legal authority - must conform to the notion of respect for the individual and the individual citizen's rights; (c) the powers conferred on institutions within a state - whether legislative, executive or judicial - should be sufficiently dispersed between the various institutions so as to avoid abuse of power; and (d) the government, in formulating policy, and the legislature, in legitimating that policy, are accountable to the electorate on whose trust power is held. Parliament has a range of mechanisms in place to hold the government to account. General debates, questions to ministers, and select committee proceedings are some of the key mechanisms through which government accountability to Parliament and the electorate is maintained. As will be seen below, the main concept of responsibility is founded on two key constitutional conventions: collective and individual ministerial responsibility. In addition to parliamentary controls, there are other systems in place to hold the executive to account. These include tribunals, ombudsmen, and inquiries into matters of public concern. Examples of the latter include the Chilcot Inquiry into the Iraq War and the Leveson Inquiry into press standards.

The Central Executive

comprises the Prime Minister and the Cabinet. The Prime Minister is the political head of government in the UK. The Queen, in exercise of royal prerogative power, appoints the Prime Minister. By convention, the person appointed is the leader of the party in Parliament who is able to command the confidence of the House of Commons. This is almost always the leader of the largest party in the Commons. However, when no party gains more than half the seats in a general election, the constitution allows for negotiations to take place to see if an administration can be formed. In this situation the incumbent Prime Minister effectively has the first call on forming a government, either as a minority administration or by building a coalition with another party or parties. The 2010 general election left Gordon Brown briefly as a 'caretaker' Prime Minister while negotiations took place to form a new government. The previous occasion when comparable events occurred was following the February 1974 election when Edward Heath only resigned as Prime Minister on the Monday following polling day after secretive talks with Jeremy Thorpe, leader of the Liberals, had failed to produce a coalition agreement. By way of contrast in 2010 the three main party leaders all made public statements and negotiations took place in an era of rolling news coverage. A Conservative-Liberal Democrat coalition was formed five days later on 11 May 2010. Following the general election on 8 June 2017 the largest party, the Conservatives, failed to gain more than half the seats in the Commons. Unlike the situation in 2010 it does not appear that a formal coalition can or will be formed. Instead, it appears (at the time of writing) that Theresa May will attempt to continue in government with the support of the Democratic Unionist Party from Northern Ireland in the form of a 'confidence and supply' arrangement. Although the office of the Prime Minister enjoys few strictly legal powers, by convention the Prime Minister's powers are very considerable. The Queen's power to appoint and remove other ministers must, also by convention, be exercised on the advice of the Prime Minister. It is, therefore, the Prime Minister who effectively makes ministerial appointments and exercises the power of dismissal, and who determines the size and composition of the Cabinet and the subject matter and composition of Cabinet committees. The Prime Minister also determines when the Cabinet meets and has almost exclusive control over the agenda for discussion. By maintaining control over the Cabinet and discipline within the ruling party, the Prime Minister therefore takes the leading role in deciding the priorities in the government's programme. There are, however, limits to the Prime Minister's powers. According to the convention of collective ministerial responsibility, the Prime Minister, Cabinet, and government are collectively responsible to the House of Commons for their conduct of national affairs and must resign if defeated in a 'vote of no confidence'. In the past, the opposition's ability to defeat the government in a vote of no confidence depended on the relative voting strengths of the parties in the Commons. The last occasion when a government resigned was when the Labour administration, led by James Callaghan, very narrowly lost a vote of confidence in the House, prompting a general election in May 1979 (see further Loveland pp 269-270). Since the passing of the Fixed-term Parliaments Act 2011, governments now have a fixed term of office of five years. The only other ways in which an election can now be triggered are if a motion of no confidence is passed and no alternative government is found, or if a motion for an early general election is agreed either by at least two-thirds of the House (or without division). (This latter method was how Theresa May arranged for an 'early' general election to take place in June 2017.) The Cabinet consists of the most senior ministers, known generally as Secretaries of State, who head the major government departments. The Cabinet Office produced a Cabinet Manual in 2011 outlining how Cabinet ministers should act.