In theory the prime minister may appoint anyone to the cabinet, but in

practice the selection is confined to members of the prime minister’s

own party. A majority should be members of the House of Commons.

Under the Ministers of the Crown Act 1975, the Lord Chancellor and

three other cabinet members must be drawn from the House of Lords.

Cabinets usually comprise between 20 and 30 ministers including the

heads of the main government departments and certain other senior

office-holders. Other ministers and civil servants often attend cabinet

meetings for particular purposes, notably the Chief Whip who forms a

link between the government and its backbench supporters.

Cabinet business is frequently delegated to committees and sub-

committees or even to informal groups of ministers and other persons

such as civil servants and political advisors. This is an important

method by which the prime minister can control the decision-making

process. Nevertheless, the use of committees and delegation seems to be

an inevitable consequence of the size and complexity of modern gov-

ernment. There are two kinds of formal cabinet committee: (i) ad hoc

committees set up on a temporary basis to deal with particular prob-

lems and (ii) named permanent committees, for example defence and

overseas policy, economic strategy and legislation. The names and

membership of these committees are published (http://www.cabinet.

office.gov.uk). However, even these could be bypassed in favour of

informal groups of prime ministerial cronies.

Collective cabinet responsibility (below) ensures that the cabinet is

bound by committee decisions, whether or not the full cabinet has dis-

cussed them. Thus it is sometimes said that the full cabinet has become

merely a rubber stamp or ‘dignified’ part of the constitution, the key

decisions being made elsewhere. The secrecy surrounding the workings

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of the cabinet is also an aspect of collective responsibility and makes

objective analysis difficult. Other practical limits upon cabinet power

are that its meetings are relatively short (about two hours per week),

its members have departmental loyalties, and its agenda and procedure

are controlled by the prime minister.

Cabinet committees are ‘shadowed’ by committees of civil servants.

The cabinet secretariat services and co-ordinates the work of the cabi-

net including the crucial and sensitive task of recording its decision for

implementation by departments. The deputy prime minister is currently

the minister responsible for the cabinet office. The cabinet secretariat

comprises about 100 civil servants headed by the cabinet secretary who

is also head of the home civil service and chief adviser to the prime

minister. The cabinet secretariat also co-ordinates other Whitehall

committees and designates most of their chairmen. It therefore plays a

central role in the practice of the constitution. Arguably the three roles

of the official concerned create fundamental conflicts of duty.

14.3 Ministers

A minister is defined by the Ministers of the Crown Act 1975 as an

office holder under Her Majesty. It is for the Queen on the advice of

the prime minister to designate the number and titles of ministers. Some

ministers have separate legal personality as corporations sole. By con-

vention a minister must be a member of Parliament. In theory this

strengthens parliamentary control over the executive. As we saw in

Chapter 5, there are statutory limits on the number of paid ministers

who can sit in the Commons so as to prevent a prime minister flooding

the House with his or her supporters. In practice, however, party politi-

cal pressures and patronage have combined to make the Commons

usually subservient to the executive. There are about 100 ministers,

ranked as follows.

. Cabinet ministers. Most cabinet ministers head the largest and most

important departments but some offices are traditionally without

departments and can be assigned to special or co-ordinating work by

the prime minister. These include the Chancellor of the Duchy of

Lancaster and the Lord President of the (Privy) Council. The Leader

of the House of Commons is also a member of the cabinet and is

responsible for managing government business in the House. The

most important departments are headed by secretaries of state. These

316 General Principles of Constitutional and Administrative Law

are the successors of the powerful officials created by Henry VIII to

control the central government. In theory any secretary of state can

exercise the powers of any other secretary of state unless statute says

otherwise (see Simcock, 1992, p. 535).

. Ministers of state. These are the second in command within depart-

ments and are usually allocated particular areas of responsibility.

. Parliamentary under-secretaries of state (where the head of the

department is a secretary of state).

. Parliamentary secretaries. These are mainly recruited from the House

of Commons and assist departmental heads with political and ad-

ministrative work.

. Parliamentary private secretaries. These are members of Parliament

who act as unpaid assistants to individual ministers. They do not

count as ministers for the purpose of counting the number of

ministers who may sit in the House of Commons.

. Whips. These control party discipline and provide a channel of

communication between government and backbenches. The Chief

Whip is not a member of the cabinet but attends cabinet meetings

and consults with the prime minister on matters such as the appoint-

ment of ministers.

. The law officers. The Attorney-General is the chief law officer, and is

assisted by the Solicitor-General. There are corresponding Scottish

law officers. As party politicians the law officers raise questions

about the separation of powers. The Attorney-General and the

Solicitor-General are members of the House of Commons. They are

entitled to consult other ministers but by convention act indepen-

dently. The Attorney-General has the following specific functions in

relation to the judicial process:

(i) representing the government in civil proceedings either as

plaintiff or defendant;

(ii) prosecuting in important criminal cases. By statute his consent

is needed for the prosecution of some offences;

(iii) independently of his role as government lawyer, instituting legal

proceedings on behalf of the general ‘public interest’, either on

his own initiative or on the application of any member of the

public (a relator action). This might include an action against a

public authority. The Attorney-General’s decision whether or

not to intervene cannot be challenged in the courts (Gouriet v.

Union of Post Office Workers (1978));

(iv) intervening in any legal proceedings to put the government’s

view and referring questions of law to the Court of Appeal where

an accused person has been acquitted of a criminal offence.

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Ministers and Departments

The extent to which the Attorney-General is influenced by the wishes

of the government is obscure. For example in a case involving

government attempts to suppress newspaper reports about matters

of national security, his two roles as government lawyer and repre-

sentative of the public interest are inseparable. We have only the

predictable assertions of successive attorney-generals that they can

be trusted. In 1924 the government fell because the attorney acted on

instructions from the government (see Edwards, 1984, pp. 206–12).

14.4 Government Departments

By convention a minister must head each department in order to

preserve ministerial responsibility. There are no constitutional require-

ments relating to the organisation of government departments. They

can freely be created, abolished or amalgamated by the government.

The matter is sometimes regarded as one of ‘royal prerogative’ but

could also be the right of the Crown, as of any private organisation, to

organise itself as it wishes thus illustrating a possible weakness in our

non-statist constitution. In the nineteenth century committees of the

Privy Council or special bodies were set up to deal with new govern-

mental responsibilities but, as the work of government increased,

separate permanent departments headed by ministers were created.

These were expanded, abolished, split up or combined as circumstances

dictated. Flexibility is facilitated by statutory provisions allowing func-

tions, property, etc. to be transferred between departments and also to

outside bodies (see Ministers of the Crown Act 1975, Civil Service

(Management Functions) Act 1992; Deregulation and Contracting Out

Act 1994). For purposes of litigation a list of appropriate departments