In the nineteenth century Bagehot claimed that the cabinet was the

essential link between Parliament and the executive this arrangement

giving the constitution its motive power and balance. It is often argued,

however, that the cabinet is losing political power because a group of

this kind cannot deal with the size and complexity of modern govern-

ment and may be merely a rubber stamp for decisions taken elsewhere.

The Crown acts through its servants. These comprise ministers and

permanent civil servants. Civil servants have no constitutional or legal

status as such. They act only under powers flowing to them through

ministers. Indeed the law has treated civil servants and ministers as a

single body for the purpose of excluding any duty to disclose com-

munications within a government department at a public inquiry (see

Bushell v. Secretary of State for the Environment [1981] 1 AC 75 95;

Alconbury Holdings v. Secretary of State [2001] 2 All ER 929, 995).

Senior civil servants (of whom there are about 30,000) have the

competing functions of offering impartial advice to ministers and carry-

ing out ministerial instructions. In a system designed to allow political

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The Structure of the UK Government: An Overview

power to change hands abruptly, a permanent civil service is an essen-

tial source of continuity and a repository of knowledge. In recent years

the independence of the civil service may have been diluted by the

appointment of about 81 special advisers who, although civil servants

also have political duties including liaison with the media. Special

advisers are appointed by ministers to whom they have direct access.

They are not required to be politically neutral. The delicate relationship

between the civil service and political advisers has been put into

question by empowering some special advisers to give orders to civil

servants (Civil Service (Amendment) Order in Council 1999). On the

other hand special advisers might also protect civil servants from

political involvement. There is no systematic body of civil service law,

the civil service being subject to an untidy mixture of royal preroga-

tive, convention contract and practice with little statutory element.

The Committee on Standards in Public Life in its 6th Report (Neill,

2000A), recommended that the civil service be placed on a statutory

basis so as to protect its objectivity, and that the role and number of

special advisers be clarified.

The distinction between Crown servants and others is of limited

significance since many of the traditional immunities enjoyed by the

Crown have been abolished. Most importantly the Crown is not bound

by statute in the absence of express language or necessary implication.

However, where powers are conferred by Parliament directly on a

minister the courts are not prepared to let the minister shelter behind

Crown immunity. In M. v. Home Office (1993), Lord Templeman

remarked (at 541) ‘that the argument that there is no power to enforce

the law . . . against a minister in his official capacity would, if upheld,

establish the proposition that the executive obey the law as a matter of

grace and not as a matter of necessity, a proposition which would

reverse the result of the Civil War’.

4.7 Parliamentary Government and Ministerial

Responsibility

The core of the constitution is that the Crown rules on the basis of

powers given or allowed to it by Parliament and by convention the

executive powers of the Crown are exercised by or on the advice of

ministers who must be members of Parliament. The Queen must

usually dissolve Parliament if requested to do so by the prime minister

who must request her to dissolve Parliament if defeated on a vote of

78 General Principles of Constitutional and Administrative Law

confidence in the Commons thereby precipitating an election. In many

other systems, the legislature runs for a fixed term, in some cases sub-

ject to the government being defeated on a vote of confidence. If this

were to be adopted here, Parliament would be strengthened. In excep-

tional cases where the normal processes have broken down, the Queen

might have a residue of personal power. Thus the monarchy acts as a

last resort to safeguard the constitution.

The conventions relating to ministerial responsibility are intended to

make the executive responsible to Parliament and so indirectly to the

people. Ministerial responsibility has two limbs. The cabinet is collect-

ively responsible to Parliament for the conduct of the government as a

whole while individual ministers are responsible to Parliament for the

conduct of their departments. Thus there is a chain of accountability.

When ministerial responsibility was developed in the eighteenth

century government departments were small enough for ministers to

be personally in control. The position is different today since many

government departments are multi-million pound businesses staffed

by hundreds, sometimes thousands of civil servants. It is therefore

impossible to expect a minister to be personally in control of the many

detailed decisions that are made on a day-to-day basis. The meaning of

the convention is therefore unclear. In an extreme case the minister

should resign but in practice this is likely to happen only where the

minister is personally at fault or where the problem is the result of a

policy for which the minister is directly responsible.

Collective responsibility can be used to justify government secrecy on

the basis that the unity of the cabinet would be threatened if its inner

discussions were exposed. This attitude is embodied, for example, in the

Freedom of Information Act 2000, which exempts matters affecting

collective responsibility and other internal policy documents from

disclosure. Ministerial responsibility also shields civil servants who are

protected by anonymity, appear before Parliament only with the

permission of the minister and owe duties only to the minister. This

might be regarded as unreal. On the other hand their protection is said

to secure their impartiality and ability to serve every kind of govern-

ment. There is nevertheless a gap in the chain of accountability.

However, various devices including investigatory bodies such as the

Ombudsman, who investigates maladministration, and the National

Audit Office, which investigates government spending, can probe

behind the facade of ministerial responsibility and question civil ser-

vants directly.

Ministerial responsibility also affects the courts. The conventional

wisdom is that accountability is split. Government is accountable to the

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The Structure of the UK Government: An Overview

courts for the legality of its conduct and to Parliament for the merits of

its conduct i.e. whether its conduct is good or bad. Therefore the fact

that a decision has been approved by Parliament does not normally

restrict judicial review (Hoffman – La Roche Ltd v. Trade and Industry

Secretary of State (1974)). Nevertheless, as we shall see, the line between

legality and merits is blurred and judges disagree (Chapter 16). A court,

aware of the weakness of Parliament, might be tempted to stretch

the notion of legality in order to do justice (e.g. R. v. Foreign Sec-

retary ex parte World Development Movement (1995)). On the other

hand the existence of parliamentary accountability may work the other

way and persuade a court not to interfere in a politically sensitive area

(e.g. Nottinghamshire County Council v. Secretary of State (1986); see

also R. v. Secretary of State ex parte Fire Brigades Union (1995)).

Another recent development has further distanced ministers from the

operational work of executive departments and put a strain on the

credibility of ministerial responsibility. During the 1990s executive

power was reorganised and redistributed and the methods of govern-

mental decision making changed. Traditional bureaucratic hierarchies

have in many cases been replaced by looser quasi-autonomous struc-

tures copied from the private sector. The central civil service has been

split into two kinds. The day-to-day work of delivering services has been

delegated to ‘executive agencies’, sometimes known as ‘Next-Steps’

agencies (see Jenkins et al., 1988). Each agency, although having a parent

department with a minister retaining overall responsibility, has signifi-

cant management autonomy and is organised more along private sector

lines than according to traditional civil service practices. Executive

agencies now comprise about three-quarters of all civil servants. They

range from the Inland Revenue which is a self-contained government

department, through bodies such as the Prison Service, the Benefits

Agency and the Court Service to the Vehicle Inspectorate and the Public

Records Office. The core civil service remains responsible for policy

making, research, advising ministers and supervising the agencies, thus

forming an elite corps. In theory ministers remain fully accountable to

Parliament for executive agencies. However, given the amount of

operational independence exercised by the agencies, in practice this is

blurred and unrealistic.

4.8 ‘Hollowed-Out’ Government

Apart from executive agencies the provision of public services has in

recent years been dispersed among many different bodies. The election

80 General Principles of Constitutional and Administrative Law

of the Conservative government in 1979 led to a return to individual-

istic ideology perhaps generated by the belief that the welfare state

cost more than the UK’s declining economy could support. The driving

force behind these changes was the desire to cut public costs and so

lower taxes. The rationale is that of ‘public choice’ which assumes that

self-interest is the driving motivation of public officials. This was

thought to require self-contained units subject to competition with

those providing the service, being personally accountable. Rather than

the traditional hierarchical bureaucracies, each unit has relative

freedom to manage its own affairs. The public interest is served by

various regulatory devices. These include competition with the private

sector for the provision of services, and published performance stan-

dards and indicators of achievement. Regulation is carried out in some

cases by the central government directly, in others by special regulators

created by statute, such as the various utilities regulators. These are

subject to varying degrees of central government control by means of

ministerial powers to give directions, or guidance.

Miscellaneous devices have been used to achieve this fragmented

form of government (see Jenkins et al., 1996). Most of the nationalised

industries including gas, electricity, rail, telecommunications, and steel

and water supply were privatised by creating commercial companies

each having one or more statutory regulators. In some cases, notably

social housing, non-profit-making bodies partly funded by govern-

ment have been the preferred vehicle. Some public services remain but

their day-to-day running has been partly contracted out to private

bodies. This includes education and the prison service. In certain cases,

notably trunk roads and hospital building, ‘public/private’ partner-

ships have been created whereby private funding is put into a public

service in return for a share in the assets thereby generated (Govern-

ment Reserves and Accounts Act 2000). The National Health Ser-

vice, although operated as a conglomerate of separate ‘trusts’ entity,

remains part of the Crown and the Post Office is a statutory body with

certain market freedoms. British Waterways remains a wholly public

body. Parasitic on this structure are numerous statutory authorities,

some acting as regulators, some directly providing finance or services,

and some giving ‘advice’. Some, such as the Housing Corporation,

combine all these functions in a farrago of conflicts of interest (see

Housing Act 1996).

In addition the central government increased its powers over bodies

which had previously enjoyed relative autonomy. It strengthened its

control over local authorities so as to prevent them retaining the

traditional communitarian public service orthodoxy and in particular

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The Structure of the UK Government: An Overview

encouraged them to transfer their housing stock to non-profit-making

housing associations, these being hybrid bodies with both public and

private characteristics. State schools have been given increased inde-

pendence from local control. The central government also tightened its

control over universities by exercising detailed powers of direction

over the Higher Education Funding Council, and through its patron-

age over research funding bodies.

It has been argued that this dispersal of public functions is likely

to weaken government overall. This is because, although it retains

formal control through its lawmaking powers and its powers of patron-

age, the central government has neither the resources nor the will

to co-ordinate its increasingly dispersed progeny (see Rhodes, 1996).

On the other hand it is arguable that the arrangements are held together

by the established tradition of deference to ministers and tribal loyalties

that ensure that positions of power are kept within overlapping net-

works of personal and family relationships.

4.9 Ethics in Government

There are three broad methods of ensuring governmental account-

ability. First there is the accountability of ministers to Parliament

(above). Second there is accountability to individuals through the

courts (Chapters 16, 17). Third, and increasingly common, there is

accountability through non-legally binding codes of conduct either self-

regulated, as for example the House of Lords prefers for itself, or

policed by a range of commissions, advisory bodies etc. appointed

from the insider networks and working with varying degrees of infor-

mality. These do not usually have enforcement powers nor does a

citizen have a right to an investigation. However, their reports are

usually published and can be implemented through internal enforce-

ment mechanisms within government. We shall meet many examples

throughout the book.

As we have seen, the informal nature of much of the UK consti-

tution, particularly at the higher levels, makes our arrangements

heavily dependent on trusting those in power, a trust which history

suggests is often misplaced. A series of scandals from the 1980s exposed

significant corruption, ambivalence and incompetence within central

government and Parliament. These included the following: the ‘arms to

Iraq’ affair which involved allegations that ministers had tried to cover

up breaches of UN sanctions against Iran and which resulted in the

Scott Report (1996, HC 115); the clumsy prosecutions or censorship of

82 General Principles of Constitutional and Administrative Law

civil service whistleblowers such as Kathie Massister, Clive Ponting and

Peter Wright who made allegations of misconduct against ministers

and officials; the Westlands affair in 1987 where civil servants appeared

to disregard the traditional principle of impartiality and ministers

to conspire against each other; cases where MPs and ministers were

found by courts and parliamentary committees to have received bribes

from business interests; claims that favours are performed in return for

donations to party funds; conflicts between governmental media-

management and civil service objectivity.

The result was an attempt to lay down standards to be expected from

persons in public life. The Committee on Standards in Public Life

was appointed by the prime minister in 1994, but without a statutory

basis as a standing (permanent) committee. Its wide terms of reference

included the UK and European Parliaments, central and local gov-

ernment and other publicly funded bodies such as universities and local

voluntary bodies. In its first report (Nolan, 1995) the Committee

promulgated seven ‘Principles of Public Life’ that subsequently became

widely regarded as representing the core values applicable in public

life and public service of all kinds. These principles are as follows:

‘selflessness, integrity, objectivity, accountability, openness, honesty,

and leadership’. The principles are supported by what Nolan called

‘common threads’, these being mechanisms used to imbed the prin-

ciples into governmental institutions. These are codes of conduct,

independent scrutiny and guidance and education. The Committee,

currently chaired by Sir Brian Wicks, reports to the prime minister in

relation to standards of conduct of all holders of public office but does

not investigate complaints against individuals. It quickly became very

influential and generated other regulatory bodies. A Parliamentary

Commissioner for Standards was created in 1996 to adjudicate upon

questions arising out of MPs’ interests and to report to the Standards

and Privileges Committee of the House of Commons thus creating

enforceable adjudicative machinery. However, being appointed by the

Commons, serving only for a fixed renewable term and depending

on the Commons for resources the PCS has limited independence.

Furthermore the Commissioner cannot publish its own reports. There

is also a Commissioner for Public Appointments created under the

royal prerogative, a civil service commission (which long pre-dated

Nolan), and a House of Lords Appointments Commission. Codes of

conduct have been produced for MPs, non-departmental public bodies

and existing ministerial, civil service and local government codes have

been revised (see 1st Report 1995 cm. 2850). The most recent report

(Neill, 2000b) suggested that the House of Lords should be subject to a

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The Structure of the UK Government: An Overview

formal code relating to conflicts of interest. The Committee is

currently examining standards in the Commons and the relationships

between ministers, political advisors and civil servants.

The Nolan principles have also been incorporated into the law both

directly by statute and indirectly by the courts (e.g. Northern Ireland

Act 1998 s. 16 (4); see Bridge in Economides et al., 2000). After its

Fifth Report (1998) on the funding of political parties a statutory

Electoral Commission was created to ensure openness and account-

ability in the conduct of elections and campaign funding (Political

Parties, Elections and Referendums Act 2000). There is also a com-

mission to enforce standards in local government (Local Government

Act 2000). It has been suggested that the standards of public life

translated into legal principles such as fairness, rationality, propor-

tionality and respect for rights might form the basis of general public

law reform (see Oliver in Taggart, 1997; Harlow, 1997).