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6 Ministerial accountability Introduction In this chapter we will consider how the concepts of legitimacy and accountability relate, before

e examining the roles and accountability of the monarch and the Prime Minister. The role of ministers in cabinet will be examined, as well as their accountability to Parliament through the doctrines of individual and ministerial accountability. Finally, we will review the role of civil servants and the extent to which there is still ministerial accountability for their actions.

6.1 Legitimacy and accountability Before we consider the roles of the monarch, the Prime Minister and other ministers and the civil service, it is useful to look at the concepts of legitimacy and accountability. egitimacy Legitimacy, in the context of government, implies a general degree of respect and confidence in public authorities, without necessarily accepting every decision. !ndrew e "ueur has described the concept as follows. o Conditions of legitimacy exist if, for good reason, people have confidence in administrative processes and respect and accept decisions of public authorities, even though they may disagree with some individual determinations.

#in Matthias $uffert #ed.% egitimacy in &uropean administrative law #'())%%

ssessing whether an office or government institution is legitimate according to this definition will, inevitably, involve some sub!ective !udgments. In every society, including the "nited #ingdom, most of the population will disagree with at least some of the decisions of the government, even if they voted for them. $onetheless, at least in general elections for the *estminster Parliament, the ma!ority of adults still feel sufficiently motivated to vote for their M%s and next government. Instances of widespread mass civil disobedience in response to government actions are rare, although occasionally public anger leads to action which forces changes in policy.

ctivity +onsider this '()( report on the website of the Independent recalling the ),,( -poll tax- riots. ics0the1battle1of1trafalgar1s2uare1the1 poll1tax1riots1revisited1),'3456.html &o the riots and the comments of participants seem to you to reflect a loss of legitimacy by the Conservative government and' perhaps' the police( &o you think it was merely criminality( o "tudents will form their own views and some may recall the political atmosphere in 1))*. o It is perhaps worth remembering that the Conservative government was re+elected in 1)), by the nation as a whole, although with a different leader.

!ccountability ccountability is an important aspect of legitimacy. It re-uires public authorities to explain and !ustify their actions. !s well as this scrutiny, sanctions such as resignation from office or official censure may be applied. Bear this principle in mind as we look at the accountability of the key figures in the executive' particularly the ministers.

6.. /he role of the monarch The "nited #ingdom is commonly described as a constitutional monarchy. The symbols of the 0ueen, the head of state, are pervasive , with her image appearing on coins and stamps and her initials #or those of her predecessors% appearing on letter boxes belonging to the $oyal Mail. ! constitutional monarchy can be defined as a democracy whose head of state is selected under a hereditary principle rather than by direct or indirect election. The monarch' currently 7ueen &li8abeth II, has extremely limited freedom of action in relation to constitutional affairs and must act in accordance with the advice of their ministers.

The 0ueen has a number of key ceremonial and constitutional duties. o !ppointing the Prime Minister in accordance with convention. o 9pening each session of Parliament at which she reads the 10ueen1s speech1 +written by the %rime Minister 1 setting out the programme of legislation for that session. o *here an early general election is to be ordered, under the 2ixed+ term %arliaments ct .*11, the 7ueen will set the date by proclamation on the advice of the Prime Minister. o The 7ueen gives formal approval in the form of the royal assent to each !ct of Parliament once it has been approved by the :ouses of +ommons and ords.

o The 7ueen also appoints the First Minister of "cotland and the First Minister of *ales in accordance with the "cotland !ct ),,4 and the ;overnment of *ales !ct ),,4 and subse2uent legislation. o The 0ueen has an important symbolic international role as head of the +ommonwealth.

egitimacy come from history The legitimacy of the monarch was a /ey issue in the )5th century. #ing Charles I strongly believed that his legitimacy and right to rule was given to him by 3od. This was described as the -divine right of /ings-. 4is opponents in %arliament challenged this concept but claimed, initially at least, to be fighting for -/ing and Parliament-. "ltimately' the 5ill of 6ights 167) and the ct of 8ettlement 19** set a framewor/ for the relationship between the monarch and %arliament. This transferred real power to %arliament' leaving the monarch with a formal and ceremonial role only.

In the .1st century, the legitimacy of the monarchy seems to rest on historical continuity, affection for the 7ueen as a person and, perhaps, a belief that the main alternative 1 a directly elected president of a republic 1 would be worse.

!ccountability rest on openness !n important aspect of accountability is openness. The special status of the 0ueen and, particularly, %rince Charles #her eldest son and heir% have been criticised in recent years on a number of grounds.

$ead the report in the ;uardian about freedom of information re2uests relating to Prince +harles and the 7ueen at.'()'0aug06)0 secret1royal1veto1powers1exposed :hich two freedom of information re-uests are discussed( o &etails from a manual of guidance used by civil servants to decide which pieces of legislation relating to his personal financial interests should be referred to %rince Charles for approval. o %ersonal 1black spider1 letters from %rince Charles to government ministers on various topics. o 8uch letters are kept secret and it is unclear to what extent' if at all' government policy is influenced.

$ead the BB+ article at. )<<')555 :hat was the government response to the decision of the information commissioner discussed here( :hat !ustification was given( &o you think this is an ade-uate !ustification in a democracy( o The government refused to disclose the manual of guidance because of 1protocol1' the parliamentary rulebook 1;rskine May1 and precedent 1 it had never been disclosed in relation to previous monarchs and their heirs. o 1%rotocol1 on its own seems a flimsy reason for concealing elements of the law+making process from the public

6.< /he role of the %rime Minister Power of PM derived from convention on behalf on the crown rather than any statute and political authority over cabinet *e have already seen in our discussion of the constitutional role of the monarch, how often duties which, on the face of it, are ma!or responsibilities are carried out 1on the advice of the %rime Minister1. "uch 1advice1' given that the 0ueen, by convention, does not have power to ignore or refuse it, indicates that the site of real political power is in the hands of the %rime Minister. The phrase 1the power behind the throne1 reflects the =nited >ingdom-s )5th century constitutional -bargain-, which left the monarch with all the visual trimmings of power #including crown and robes , palaces, etc.%, and policy and decision making are placed

firmly in the hands of the elected %rime Minister. The power of the Prime Minister, who is normally the leader of the largest political party in the 4ouse of Commons, does not rest on many statutes. There are relatively few cts of %arliament which refer to the %rime Minister, although we have already seen how the Constitutional Reform and Governance Act 2010 sets out the factors that must be considered by the rime !inister when appointing the "ord Chancellor. Most of the %rime Minister1s power rests on their political authority over the cabinet and, ultimately, Parliament, as well as their powers exercised by convention on behalf of the Crown' known as the royal prerogative #see +hapter 5%.

6.<.1 ccountability of the %rime Minister to the monarch 7ueen appoint the leader of political party which has overall ma?ority *hen examining the relationship between the monarch, the head of state and her Prime Minister, an important 2uestion is whether or not the monarch has any real say in which Prime Minister is appointed and when #or if% they should resign. The point at which this issue becomes vital is immediately after a general election. In almost all general elections since 1),=' a straightforward constitutional convention has been sufficient. The convention provides that the 0ueen must appoint the leader in the 4ouse of Commons of the political party with an overall ma!ority #i.e. the party which has sufficient MPs to be able to out1vote

the MPs of all the other parties combined%.

@ifficult situation when no overall ma?ority1 incumbent parliament stay until new parliament formed The obvious difficulty arises when the electorate, inconveniently, elects a %arliament where no political party has an overall ma!ority. Because this has happened so rarely, there has been some academic debate about the extent to which, if any, the 7ueen retains residual powers to choose a new Prime Minister. These academic debates became politically significant during the '()( general election campaign, as it became increasingly unli/ely that any one political party would win an overall ma?ority.

!nticipating such a result, the Cabinet 8ecretary' 8ir 3us >1&onnell' updated the Cabinet Manual setting out the basis on which the %rime Minister' the leaders of the other main parties in the :ouse of +ommons and the +abinet "ecretary, on behalf of the neutral civil service should act. The /ey clause that was inserted, stated. o 14ung1 %arliaments o )3. *here an election does not result in a clear ma!ority for a single party, the incumbent 3overnment remains in office unless and until the %rime Minister tenders his and the 3overnment1s resignation to the Monarch. o !n incumbent 3overnment is entitled to await the meeting of the new %arliament to see if it can command the confidence of the :ouse of +ommons or to resign if it becomes clear that it is

unlikely to command that confidence. o If a ;overnment is defeated on a motion of confidence in the :ouse of +ommons, a Prime Minister is expected to tender the ;overnment-s resignation immediately. ! motion of confidence may be tabled by the 9pposition, or may be a measure which the ;overnment has previously said will be a test of the :ouse-s confidence in it. Aotes on the 7ueen-s speech have traditionally been regarded as motions of confidence.

=> constitution enables the coalition govt formed 2uic/ly lthough the Cabinet Manual does not have the status of an ct of %arliament, but its restatement and amplification of existing conventions is given added force by the events which followed the general election on 6 May .*1*. 3ordon 5rown, the Prime Minister, stayed in post initially, despite the fact that his abour Party had lost its overall ma!ority and the +onservative Party was the largest party #though without an overall ma?ority%. 4is negotiations with the third largest party' the Liberal &emocrats, to form a minority government failed and he eventually resigned as %rime Minister on )) May. &avid Cameron became %rime Minister on the same day when he could show that he had formed a coalition government with a

ma!ority with the Liberal &emocrats. @espite the comments of some ?ournalists who were clearly not used to the political uncertainty of building a coalition, it is remarkable how -uickly the coalition was created. >ther ;uropean countries where coalition government is normal tend to negotiate at a much more leisurely pace.

Bo expectation of the 7ueen involved in reaching the agreement *hat was the 7ueen-s personal role during this periodC &ssentially, she seems to have left the negotiating to the politicians, with the Cabinet 8ecretary acting as a neutral facilitator of the discussions. ny other behaviour could, of course, have led to a dangerous perception of political bias.

&avid Cameron has subse-uently written a new edition of the Cabinet Manual which amplifies the paragraph set out above as follows. o '.)6 *here a range of different administrations could potentially be formed, political parties may wish to hold discussions to establish who is best able to command the confidence of the 4ouse of Commons and should form the next government. The 8overeign would not expect to become involved in any negotiations, although there are responsibilities on those involved in the process to /eep the Palace informed. /his could be done by political parties or the Cabinet 8ecretary. The Principal Private "ecretary to the Prime Minister may also have a role, for example, in communicating with the Palace.

o '.)D If the leaders of the political parties involved in any negotiations see/ the support of the +ivil "ervice, this support may only be organised by the +abinet "ecretary with the authorisation of the Prime Minister. If the Prime Minister authorises any support it would be focused and provided on an e2ual basis to all the parties involved, including the party that was currently in government. The +ivil "ervice would continue to advise the incumbent government in the usual way. /he focus is clearly on the elected party leaders to sort out the negotiations and there is no suggestion that the 0ueen should be expected to help them reach agreement.

ctivity? The Federal $epublic of ;ermany has a written constitution which provides for an elected head of state, the president and a chancellor who leads the government. +oalition governments are common in ;ermany. &o you think the 3erman president has more power or influence over the appointment of the chancellor than the 0ueen does in relation to the appointment of the "# %rime Minister( The written constitution spells out a very precise and limited role for the president. Clearly the constitution does not, despite their elected status, intend the president to be an active political 1player1 in political negotiations. It is difficult to compare the president1s role with that of the

0ueen' since her residual powers are very poorly defined. 6.<.. ccountability of the %rime Minister to %arliament PM 7uestion Time In some ways, the => constitution is very theatrical. !s well as the pomp and ceremony associated with the monarchy, the public perception of %arliament is heavily influenced by scenes of elected middle+aged politicians shouting and cheering as the %rime Minister responds to 1-uestions1 from his #or her, in the case of Margaret Thatcher% opponents at the wee/ly %rime Minister1s -uestions #PM7s%.

!ctivity $ead the following article in the &aily /elegraph celebrating the =*th anniversary of %M0s? D<(<D0Prime1Ministers17uestion1 Time1celebrates1<(1years.html and answer the following 2uestions. *hat does the writer consider the public thin/ about PM7sC o 4e thinks that they love it for its entertainment value. *hich /ey changes does he thin/ have fundamentally changed its nature during the <( yearsC o The introduction of sound and later television recording, which has encouraged M%s to show off and the change from two 1=+minute sessions to one <*+ minute session per week in ),,5.

!ctivity ! speech by the current spea/er of the :ouse of +ommons, Eohn Bercow, to the +entre for Parliamentary "tudies and answer the 2uestions at the end. *hat do you thin/ Bercow means by -scrutiny by screech-C o 4e is referring to the extremely noisy and confrontational atmosphere in which -uestions are asked and answers given. *hat percentage of 2uestions to the Prime Minister in '((, did the $egulatory Policy Institute calculate were actually answered by himC o =6@

:ow does Bercow describe the 2uestions which were not genuineC o -! litany A B of attacks, soundbites and planted 2uestions from across the spectrum. *hat practical improvements would Bercow li/eC o an agreement between the main party leaders to conduct the discussions in a more civilised way o a reduction in the number of 2uestions reserved for the leader of the opposition or an extension of %M0s to ,= minutes or an hour in order that a greater percentage of time be allocated to the 2uestions of bac/bench MPs o a more detailed review by the %rocedure Committee considering' amongst other

things, whether or not the use of open -uestions is appropriate @o you agree with Bercow, or do you thin/ he should loo/ for another ?ob more suited to a hopeless idealistC o it appears that many M%s would like a different speaker.

6., /he role of ministers and the cabinet The cabinet consists of the most senior government ministers, approximately .* in number, who meet' normally' once a week at the %rime Minister1s residence at 1* &owning 8treet. It has no legal personality as an institution and has been described as 1a creature of convention1. It is supported by a civil service department called the Cabinet >ffice which ta/es a leading role in the civil service #see www.cabinetoffice. gov.u/0%.

6.,.1 :hy is the cabinet important( 1 formed from most politically important members from +ommons and :9 The cabinet consists of the most politically important members of the 4ouse of Commons and 4ouse of Lords. They are normally chosen from the governing party although, in the case of a coalition, both governing parties will provide members.

!ny gathering of ministers with distinct responsibilities for different government departments would be li/ely to be important politically, but the cabinet has significant control over %arliament in its power to set the legislative agenda for each annual session. &ecisions on policy and legislation are often made by

cabinet committees which include officials as well as ministers.

6.,.. /he relationship between the cabinet and the %rime Minister Political ?ournalists always love stories about conflict between Prime Ministers and their ministers. It is clear that, even where a government consists of only one party, there are often serious personality and policy clashes between the %rime Minister and individual ministers.

!ndrew e "ueur describes the relationship as follows. o The relative powers of the Prime Minister and the +abinet have been the sub?ect of much analysis and debate. o For some, the 1central directing instrument of government, in legislation as well as in administration, is the Cabinet...It is the Cabinet which controls %arliament and governs the country.o 2or another' the 1post+war epoch has seen the final transformation of Cabinet 3overnment into %rime Ministerial 3overnment1. o "till others relate the role and importance of the +abinet to the leadership styles of particular Prime Ministers. #in @. Feldman #ed.% &nglish public law #9xford. 9xford =niversity Press, '((,%%

6.,.< /he role of the cabinet in the coalition government The Coalition agreement for stability and reform, which was agreed in May '()(, dealt with the way in which government was to operate in the unusual circumstances of a coalition. It is worth loo/ing at the clauses dealing with the cabinet. ). +omposition of the ;overnment o The initial allocation of +abinet, Ministerial, *hip and "pecial !dviser appointments between the two Parties was agreed between the %rime Minister and the &eputy %rime Minister.

o 2uture allocation will continue to be based on the principle that the Parliamentary Party with fewer MPs will have a share of +abinet, Ministerial and *hip appointments agreed between the Prime Minister and the @eputy Prime Minister, approximately in proportion to the siCe of the two %arliamentary parties. o The %rime Minister' following consultation with the &eputy %rime Minister, will ma/e nominations for the appointment of Ministers. o The %rime Minister will nominate Conservative %arty Ministers and the &eputy %rime Minister will nominate Liberal &emocrat Ministers. o The Prime Minister and the @eputy Prime Minister will agree the nomination of the aw 9fficers.

ny changes to the allocation of portfolios between the Parliamentary Parties during the lifetime of the +oalition will be agreed between the %rime Minister and the &eputy %rime Minister.

o $o Liberal &emocrat Minister or :hip may be removed on the recommendation of the %rime Minister without full consultation with the &eputy %rime Minister. *e can see that the cabinet is to be drawn from leading members of the +onservative and iberal @emocrat parties. The cabinet does not represent the best effort of the %rime Minister to form an effective and moderately united team.

Instead, it is the product of negotiations where the initial decisions are which party is to have which ministerial role. 9nly then, are the %rime Minister and the deputy %rime Minister able to select who is to serve in their party-s allocated roles.

Prevention of FparalysisG by setting up +ommittee ! disinterested observer might conclude from this part of the agreement that the cabinet would spend most of its time as the battlefield between the two political 1teams1 and would risk political and administrative paralysis. 9ne reason this does not appear to have happened is through the establishment of a coalition committee whose role is set out below. o 6.D. The %rime Minister' with the agreement of the &eputy %rime Minister, has established a Coalition Committee which will oversee the operation of the Coalition' supported by the Cabinet 8ecretariat. It will be co+chaired by the %rime Minister and the &eputy %rime Minister, with e-ual numbers of members

drawn from the two Coalition %arties.

o 6.<. "nresolved issues may be referred to the Coalition Committee from any other +abinet +ommittee by either that +ommittee-s chair #who will be a member of one +oalition Party% or its deputy chair #who will be a member of the other +oalition Party%.

6.,., ccountability of ministers to %arliament 1 Fail in policy but not fail in operation !lthough the cabinet draws its power from its political authority and convention, individual ministers have duties and responsibilities which are laid down in statutes. ! /ey issue in a parliamentary democracy is how they are individually responsible to %arliament for the failure of their departments in fulfilling these duties. et us first consider how a government department can experience failure. o The first example is where there is a single catastrophic failure. This may be due to the actions of a single civil servant who ma/es a mista/e in executing their duties.

o !lternatively, failure may be due to an operational error by the management of a government agency. o The third category of failure may be due to a foolish policy decision, or failure to act, of the individual minister. It is often genuinely difficult to disentangle the true cause of a failure in government and, of course, the opposition will be keen to pin the blame on the minister' rather than on their civil servants.

:onesty to Parliament be the important issue In essence, the convention of ministerial responsibility re-uires a minister to accept political responsibility to %arliament in contrast to the political neutrality of their civil servants. The Ministerial Code, which was issued in May .*1*, sets out the convention as follows. o Ministers have a duty to %arliament to account, and be held to account' for the policies' decisions and actions of their departments and agenciesH o It is of paramount importance that Ministers give accurate and truthful information to %arliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead %arliament will be expected to offer their resignation to the Prime MinisterH

o Ministers should be as open as possible with Parliament and the public, refusing to provide information only when disclosure would not be in the public interest which should be decided in accordance with the relevant statutes and the 2reedom of Information ct .***H o Ministers should similarly re-uire civil servants who give evidence before %arliamentary Committees on their behalf and under their direction to be as helpful as possible in providing accurate' truthful and full information in accordance with the duties and responsibilities of civil servants as set out in the +ivil "ervice +odeH...

$esignation reason changed in the time being The interpretation of ministersresponsibilities under the convention has varied over the years. !n early example is the resignation of the government minister 8ir /homas &ugdale who resigned in ),<D, following revelations of maladministration of his agriculture department in the +richel @own affair. In ),4', Lord Carrington, the Foreign "ecretary, resigned following the unanticipated invasion of the 2alkland Islands by !rgentina.

In contrast, in ),,D the :ome "ecretary, Michael 4oward' refused to resign following the escape of prisoners from a prison. o 4e argued that the failure was an operational one on the part of the director1general of prisons. o 4e retained the support of his fellow Conservative M%s and' crucially' the %rime Minister and was not forced to resign.

!cTiviTy $ead s.1 of the 4ealth and 8ocial Care ct .*1.. o #6% The 8ecretary of 8tate retains ministerial responsibility for the provision of the health service in &ngland. The arguments over this sub1clause in Parliament reflected the importance attached by M%s and members of the 4ouse of Lords to the concept of ministerial responsibility. This sub1clause was an amendment reflecting fears that the government was seeking to privatise large parts of the $ational 4ealth 8ervice and that the health secretary wished to avoid ministerial responsibility to %arliament.

The Constitution Committee of the 4ouse of Lords considered this issue $ead !ppendix ) and answer the following 2uestions. Paragraph D states that no distinction should be drawn between ministerial responsibility and whatC o ccountability and answerability.

*hy had it been argued that there was no point in retaining ministerial responsibility for the health service and why did the committee disagree with thisC o It was argued that health care was to be delivered by the $ational 4ealth Commissioning 5oard and Clinical Commissioning 3roups DCC3sE and the secretary of state would have no powers over them. o The committee countered this argument by pointing out that significant powers of intervention were still available to the secretary of state and they should therefore remain responsible.

*hy is ministerial responsibility constitutionally different from the accountability of the $48 Commissioning 5oard( o %arliament cannot call the chair of the $48 Commissioning 5oard to account 1 they can merely be called as a witness to a select committee, which is not the same as the accountability of a minister

6.,.= Collective ministerial responsibility 1 "how united 9rdinary members of the public probably underestimate the pressure that ministers experience from the media, their own constituents, their colleagues, pressure groups and industry lobbies and, of course, the 9pposition. 9ne of the /ey ways in which ministers cope with the media' pressure groups and opponents, who are often see/ing to gain advantage by exploiting divisions between them, is to present a united 1front1. This enables them to /eep their vigorous debates in cabinet about policy decisions reasonably private and encourages all members of the cabinet to accept decisions with which they disagree, in the greater interest of government unity.

This appeal to collective loyalty is underpinned by the crucial constitutional convention of collective ministerial responsibility which provides that, once the cabinet has made the decision' all government ministers must publicly support and defend it. If an individual minister cannot' for any reason, do so, the convention re-uires them to resign. The +abinet 9ffice Ministerial +ode describes the convention as follows. o '.) The principle of collective responsibility, save where it is explicitly set aside, re-uires 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. o /his in turn re-uires that the privacy of opinions expressed in Cabinet and Ministerial Committees, including in

correspondence, should be maintained... o '.6 The internal process through which a decision has been made, or the level of +ommittee by which it was ta/en should not be disclosed. &ecisions reached by the Cabinet or Ministerial Committees are binding on all members of the 3overnment. They are, however, normally announced and explained as the decision of the Minister concerned. 9n occasion, it may be desirable to emphasise the importance of a decision by stating specifically that it is the decision of :er Ma?esty-s ;overnment. This, however, is the exception rather than the rule.

o '.D Matters wholly within the responsibility of a single Minister and which do not significantly engage collective responsibility need not be brought to the +abinet or to a Ministerial +ommittee unless the Minister wishes to inform his colleagues or to have their advice. Bo definitive criteria can be given for issues which engage collective responsibility. The +abinet "ecretariats can advise where departments are unsure. *hen there is a difference between departments, it should not be referred to the +abinet until other means of resolving it have been exhausted. It is the responsibility of the initiating department to ensure that proposals have been discussed with other interested departments and the outcome of these discussions should be reflected in the memorandum or letter submitted to +abinet or a +abinet +ommittee.

1 $esign if did not agreed to the decision Inevitably, given the strongly held beliefs of individual politicians and the difficult and controversial decisions which all governments have to ma/e, some ministers will not be prepared to accept collective ministerial responsibility and will resign. &xamples of ministerial resignations over decisions include 6obin Cook who resigned as eader of the :ouse of +ommons in '((6 over the decision to invade Ira- and called the press to announce his opinions Bote that the convention applied here' even though foreign policy and defence issues were not part of the responsibilities of the eader of the :ouse of +ommons. In ),43, Michael 4eseltine, the "ecretary of "tate for Trade and Industry, resigned over the :estland 4elicopters contract.

6.,.6 2ree votes+ on particular controversial issue "ometimes a government may not have a collective view on a particular proposal. !n example is the controversial issue of abortion where governments have not instructed their M%s Dincluding ministersE on how to vote. This approach has applied to all votes on abortion since the !bortion !ct ),35 legalised it in the =nited >ingdom. It is usually politically easier for a %rime Minister to grant a free vote if the opposition is also granting a free vote to its shadow ministers and M%s.

6.,.9 greed exceptions to collective ministerial responsibility In some circumstances, a %rime Minister may choose to suspend the convention in relation to a particularly controversial issue on which their government is divided. !n example is 4arold :ilson1s decision to permit ministers to campaign on both sides of the 1)9= referendum on ;uropean Community membership.

!cTiviTy $ead the statement of %rime Minister 4arold :ilson in the :ouse of +ommons $esearch Paper (D04' )< Bovember .**, The +ollective $esponsibility of Ministers an 9utline of the Issues setting out guidelines on how this exception should apply to ministers, and answer the 2uestions at the end. 4ow were ministers who were responsible for matters involving the ;uropean Community expected to behave when 2uestioned in Parliament about this issueC o They were expected to state the government1s official position #in favour of continued membership of the &uropean +ommunity% and not to get drawn into arguments against it

:hy do you think the %rime Minister sought to restrict the way in which ministers disagreed with each other in public debates outside ParliamentC o /he %rime Minister would have been aware of the political damage which bitter and very personal debating styles would inflict on his party. o :e would also have been concerned about the damage to relationships between colleagues in the cabinet which would affect their ability to agree on other issues subse-uently

6.,.7 Collective cabinet responsibility under the coalition government The formation of the coalition government in '()( posed new challenges for the convention. ! cabinet formed of iberal @emocrat and +onservative ministers would be li/ely to contain a significantly wider range of political beliefs and views on policy than one made up of representatives of only one party.

The negotiating party leaders were very aware of this issue which was dealt with in the Coalition# agreement for stability and reform $2010%. o +ollective responsibility '.) The principle of collective responsibility, &e'cept where it is e'plicitly set aside(, continues to apply to all 3overnment Ministers. This re2uires. an appropriate degree of consultation and discussion among Ministers to provide the opportunity for them to express their views fran/ly as decisions are reached, and to ensure the support of all MinistersH the opinions expressed and advice offered within ;overnment to remain privateH

decisions of the +abinet to be binding on and supported by all MinistersH full use being made of the +abinet +ommittee system and application of the mechanisms for sharing information and resolving disputes set out in this document.

The +oalition. our programme for government #'()(% set out five areas of policy where ministers were allowed to speak against public policy and their MPs were given permission to abstain from /ey votes. o transferable tax allowances for married couples #a +onservative manifesto commitment% o the referendum on the alternative vote electoral system for the :ouse of +ommons 1 in the actual referendum campaign the iberal @emocrats argued in favour of the reform while the +onservatives opposed it o an alternative nuclear defence system to the Trident system 1 no final decision is to be made until '()3 #the iberal @emocrats oppose the Trident system% o student fees increases 1 iberal @emocrat MPs were free to abstain #although ') voted against% but all the ministers supported the legislation o nuclear power policy.

6.,.) 4ow useful is collective cabinet responsibility( !cTiviTy Aernon Bogdanor has argued. o The implication would seem to be that collective cabinet responsibility is as much a maxim of political prudence as it is a convention of the constitution. o It is in general sensible for a government to observe it, ?ust as it is sensible for any collective executive, such as, for example, the board of a company, to maintain a united front, so as not to wea/en its position by publicly displaying differences of opinion. 9n certain occasions, however, where there are deep seated differences of opinion which cannot easily be reconciled, it may be the lesser evil to suspend the principle.

o ...For the principle of collective responsibility is more appropriate to an era of collective duopoly and tribal politics than to a period of multi+party politics, when governments are less li/ely to be unified ideologically than they once were. #The new British constitution #9xford. :art Publishing, '((,%%

&o you think' on balance' collective cabinet responsibility is applied too strictly in the "# constitution( o The practical advantages for decisive decision ma/ing in cabinet can be balanced against a re2uirement on ministers to pretend in public to agree with something they disagree with strongly or else to sacrifice their careers as ministers. o :here the media and electorate are aware of this disagreement #which is increasingly the case%, ministers appear to be hypocrites and, arguably, confidence in the integrity of politicians as a whole may be undermined. o /his can be particularly difficult when there is a coalition government in which the parties- manifestos conflicted over an issue and where the government has to decide which

party1s manifesto promise must be broken. 6.= Ministerial accountability and the civil service *e have already seen how a government minister is treated as having ministerial responsibility for the actions of their civil servants. It is clear from the discussion at "ections 3.D.) and 3.D.' that ministers are no longer Dif they ever wereE prepared to accept full responsibility for everything that goes wrong in government. In the light of this trend, there has been an increasing focus on the ways in which civil servants themselves are held accountable to %arliament. In +hapter ' at "ection '.6.) we reviewed how the select committee system wor/s in practice. !t this point it is helpful to consider the guidance for civil servants giving evidence to select committees.

!cTiviTy $ead the following extracts from this guidance set out in the +abinet 9ffice, departmental evidence and response to select committees Dalso known as the 1>smotherley rules1E and answer the 2uestions at the end. o In providing guidance, the memorandum attempts to summarise a number of long1 standing conventions that have developed in the relationship between Parliament, in the form of its "elect +ommittees, and successive ;overnments. o !s a matter of practice, Parliament has generally recognised these conventions. It is important to note, however, that this memorandum is a ;overnment document. !lthough "elect +ommittees will be familiar with its contents, it has no formal Parliamentary standing or approval, nor does it claim to have.

o D(. +ivil servants who give evidence to "elect +ommittees do so on behalf of their Ministers and under their directions. o D). This is in accordance with the principle that it is Ministers who are accountable to %arliament for the policies and actions of their &epartments. Civil servants are accountable to Ministers and are sub?ect to their instructionH but they are not directly accountable to %arliament in the same way. It is for this reason that when civil servants appear before 8elect Committees they do so, on behalf of their Ministers and under their directions because it is the Minister, not the civil servant, who is accountable to Parliament for the evidence given to the +ommittee.

This does not mean, of course, that officials may not be called upon to give a full account of ;overnment policies, or indeed of their own actions or recollections of particular events, but their purpose in doing so is to contribute to the central process of Ministerial accountability, not to offer personal views or !udgements on matters of political controversy or to become involved in what would amount to disciplinary investigations which are for @epartments to underta/e.

o <'. %arliamentary proceedings are sub!ect to absolute privilege, to ensure that those participating in them, including witnesses before select committees, can do so without fear of external conse-uences. This protection, enshrined in the Bill of $ights, is an essential element in ensuring that Parliament can exercise its powers freely on behalf of its electors. /here must be no disciplinary action taken against civil servants or members of B@PBs Inon1departmental public bodyJ #or anyone else% as a conse2uence of them giving evidence to a "elect +ommittee. ny such action might be regarded as contempt of the 4ouse' with potentially serious conse-uences for those involved.

o <<. >fficials should as far as possible confine their evidence to -uestions of fact and explanation relating to government policies and actions. They should be ready to explain what those policies areH the ?ustification and ob?ectives of those policies as the ;overnment sees themH the extent to which those ob?ectives have been metH and also to explain how administrative factors may have affected both the choice of policy measures and the manner of their implementation. !ny comment by officials on government policies and actions should always be consistent with the principle of civil service political impartiality. >fficials should as far as possible avoid being drawn into discussion of the merits of alternative policies where this is politically contentious.

If official witnesses are pressed by the Committee to go beyond these limits, they should suggest that the -uestioning should be referred to Ministers. 56. >ccasionally -uestions from a "elect +ommittee may appear to be directed to the conduct of individual officials, not ?ust in the sense of establishing the facts about what occurred in ma/ing decisions or implementing ;overnment policies, but with the implication of allocating individual criticism or blame.

5D. In such circumstances, and in accordance with the principles of Ministerial accountability, it is for the Minister to look into the matter and if necessary to institute a formal in-uiry. o "uch an in2uiry into the conduct and behaviour of individual officials and consideration of disciplinary action is properly carried out within the @epartment according to established procedures designed and agreed for the purpose, and with appropriate safeguards for the individual. o It is then the Minister-s responsibility to inform the +ommittee of what has happened, and of what has been done to put the matter right and to prevent a recurrence. &vidence to a "elect +ommittee on this should be given not by the official or officials concerned, but by the Minister or by a senior official designated by the Minister to give such evidence on the Minister-s behalf.

*hy do you thin/ civil servants are re-uired to avoid becoming involved in discussions relating to disciplinary action against individual civil servants( o It is important that individual civil servants1 actions are sub!ect to fair and impartial investigation within their departments. o !n open select committee hearing would not be an appropriate forum for such an investigation *hat should a civil servant do if a line of 2uestioning as/s for their personal opinions on a controversial policyC o 6efer the -uestionerDsE to the minister responsible for their department.

@o you thin/ that this attempt to spell out the boundary between civil service accountability and ministerial accountability to Parliament is sufficiently preciseC o Its effectiveness in practice does, of course, rely heavily on the willingness of M%s and Lords on select committees to respect the boundary as well.

6.6 8ummary The concept of legitimacy reflects a general acceptance and confidence in the administration of public affairs by the public. @ecisions will generally be accepted even if individual members of the public disagree with them. ccountability re2uires public authorities, including ministers, to explain and !ustify their decisions and actions. o "anctions such as censure or dismissal may be applied. The monarch1s role in the => constitution is formal and ceremonial as the head of state. o The 7ueen is re2uired to follow the -advice- of her ministers. :er formal duties include opening Parliament and reading the -7ueen-s speech- #written by the Prime Minister%, and setting the date of an early general election on the advice of the Prime Minister in accordance with the Fixed1term Parliaments !ct '()).

reas of controversy relating to the monarch1s role in the constitution include the secrecy surrounding the consultations with the 0ueen and %rince Charles over new legislation and %rince Charles1s secret correspondence with government ministers on various sub!ects. The selection of the %rime Minister normally follows automatically when one party wins an overall ma?ority in a general election. o /here has been academic debate about the residual powers of the monarch in the event of a 1hung1 parliament #with no party having an overall ma?ority in the :ouse of +ommons%, but in '()( the +onservative and iberal @emocrat party leaders negotiated a coalition with the assistance of the cabinet secretary in accordance with the +abinet Manual.

The Prime Minister is accountable to the :ouse of +ommons at %rime Minister1s -uestions D%M0sE once a wee/ for 6( minutes. o /hese are often very rowdy occasions and the speaker' Fohn 5ercow' has argued that they should be reformed with more civilised behaviour and fewer 1planted1 -uestions. The cabinet consists of the most senior representatives of the governing partyDiesE who have been appointed by the Prime Minister as ministers. o Cabinet committees play an important role in inter+ departmental negotiations. o The balance of power between the %rime Minister and the cabinet varies over time and some %rime Ministers have greater political authority over their colleagues than others.

The coalition cabinet includes ministers from the Liberal &emocrat and Conservative parties. o The allocation of ministerial posts has been negotiated by the %rime Minister and deputy %rime Minister and each party leader has effective autonomy in choosing ministers for their party-s portfolios, although full consultation between them is laid down in the +oalition agreement for stability and reform. Ministers are individually politically responsible to %arliament for the actions of their departments- civil servants and their policies and decisions. o /hey are re-uired to give accurate and truthful information in accordance with statutes including the Freedom of Information !ct '(((. o There appears to have been a change in the willingness of ministers to accept responsibility for failures in their departments in recent years. compare the +richel @own affair with Michael :oward-s refusal to resign in ),,D.

The convention of collective ministerial responsibility re2uires government ministers publicly to support decisions made by cabinet, even if they argued against them in cabinet. o If a minister is not prepared to do so' they will be re-uired to resign. o &xamples include $obin +oo/ resigning in '((6 over the invasion of Ira2. 2ree votes are granted by the %rime Minister on certain issues which are seen to be non1party political, such as abortion. >n rare occasions' a %rime Minister may suspend collective ministerial responsibility in relation to a particularly divisive issue. o :arold *ilson granted such an exception in ),5< in relation to the referendum on the &uropean +ommunity, but set out ground rules for ministers designed to prevent the debate becoming destructive of cabinet unity.

The Coalition? our programme for government D.*1*E set out five areas of policy in which ministers in the coalition government were to be allowed to disagree publicly and abstain on /ey parliamentary votes. o The most important was the referendum on the alternative vote electoral system for the 4ouse of Commons. The 1>smotherley rules1 set out the approach civil servants are expected to take when responding to -uestions by M% and ords in select committees. o /hey are expected to focus on factual information and not to be drawn into discussions of controversial policies or disciplinary issues affecting individual civil servants.