Is maintained by the Treasury. In cases of doubt the Attorney-General

represents the Crown (Crown Proceedings Act 1947 s. 17).

Some government departments and ministers, notably the Treasury

and the Lord Chancellor, trace their origins back to medieval times.

The Treasury is an overlord and co-ordinating department in the sense

that it is responsible for the economy as a whole and finances the other

departments. The Home Office and the Foreign Office are nineteenth-

century creations without a statutory basis. The Home Office exer-

cises a mixed bag of responsibilities, being essentially a receptacle for

domestic matters not allocated elsewhere. Its responsibilities include,

for example, law and order, prisons, the electoral system, immigration,

drugs and explosives.

318 General Principles of Constitutional and Administrative Law

A perennial problem for modern governments is that many policy

programmes, for example urban regeneration do not fit neatly within

departmental boundaries, and yet the civil service is organised on de-

partmental lines and ministers’ careers depend upon departmental suc-

cess. Thus internal rivalries are a feature of the governmental process.

As long ago as 1918 the Haldane Committee recommended that

government business should be reorganised upon broadly functional

lines, for example finance, commerce, defence, policing. This was not

implemented as such. However, there are many inter-departmental and

co-ordinating committees and the Treasury and cabinet office have

important co-ordinating functions.

14.5 Ministerial Responsibility

We have frequently referred to the doctrine of ministerial responsi-

bility. This is a central principle of the constitution that defines both

the relationships between ministers and Parliament and that between

ministers and civil servants. It has two aspects which are not entirely

consistent, namely collective and individual responsibility. ‘Responsi-

bility’ is sometimes used interchangeably with ‘accountability’. Both

terms have a range of meanings. They include duties of at least the

following kinds: explanation, information, acknowledgement, review,

redress and punishment. The particular combination appropriate to

any given case depends on the circumstances (see Barberis, 1998).

Ministerial responsibility does not mean that Parliament (except in

its capacity as lawmaker) can give orders to ministers or lay down

policies. Parliament does not itself govern and to this extent we have a

separation of powers. It means only that the government and indi-

vidual ministers must usually explain and justify themselves to Parlia-

ment and, if the Commons so votes, the government or an individual

minister must resign. Ministers must discharge their duties in a manner

which has the continued support of the Commons which can influence

ministers in their decisions, exert pressure for changes in government

policy, and obtain information about governmental action. Ministerial

responsibility may also provide information to arm opponents in the

adversarial conduct of British political debate.

The doctrine of ministerial responsibility developed during the

eighteenth and nineteenth centuries, corresponding with the rise of

the House of Commons and the decline in the power of the Crown.

Its original purpose was as a weapon against the monarch. According

to one view, the convention can be acclaimed as a device to ensure

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Ministers and Departments

accountability of government in the sense that an elected person has to

take responsibility. An alternative view is that the convention favours

‘strong’ government because, given the domination of the House of

Commons by the executive, it allows ministers to govern with little

effective supervision or interference.

It can also be argued that the doctrine of ministerial responsibility is

out of line with the practices of modern government in particular the

fact that much of modern government is carried out by unelected

officials especially through contemporary techniques of devolved pub-

lic management. The chain of accountability through Parliament to

the electorate has been broken and ministerial responsibility serves

to strengthen the executive and to reinforce the tradition of secrecy that

pervades government in the UK. This is reinforced firstly by the con-

vention that civil service advice to ministers cannot be disclosed nor can

whether that advice was accepted, a convention that is reflected in the

Freedom of Information Act 2000 (see Chapter 22), and secondly by

the convention that civil servants appear before parliamentary com-

mittees only with the permission of ministers (see Civil Service Code

(January 1996); Notes of Guidance on the Duties and Responsibilities of

Civil Servants in Relation to Ministers (the Armstrong Memorandum)

1985; Oliver, 1994).

14.5.1 Collective responsibility

Collective responsibility applies to the cabinet and probably to all

government ministers. It was developed originally so that government

and Parliament could put up a solid front against the king. It suggests

a misleading picture of collegial government and has three aspects:

(i) Solidarity. All ministers must be loyal to the policies of the gov-

ernment, whether or not they are personally concerned with them.

(ii) It requires the government as a whole to resign if defeated on

a vote of confidence in the House of Commons or if the Prime

Minister resigns.

(iii) It requires that cabinet and government business be confidential.

Collective responsibility is often said to be important for the Hob-

besian purpose of ensuring that the government speaks with a single

voice even though there may be no single solutions. Ministers can also

discuss policy differences in private confident that all will support the

decision which is eventually reached. The presentation of a single view

also adds authority to the government’s position because it disguises

the coalition nature of many governments.

320 General Principles of Constitutional and Administrative Law

The drastic sanction of a vote of confidence is the only method by

which Parliament can enforce collective responsibility, but governments

have rarely been defeated in this way in modern times. In 1924 Ramsey

MacDonald’s Labour government resigned, and in 1979 so did James

Callaghan’s Labour government. Both were minority governments.

Collective responsibility is also important as a method of asserting

prime ministerial power and protects secrecy within the government

since cabinet discussions are confidential (see Ministerial Code, Cabi-

net Office 2001, para 17). Indeed, the cabinet is not recognised as a

public authority for the purposes of the Freedom of Information Act

2000 (see Chapter 22). A minister is not entitled to disclose what went

on in cabinet nor to disclose any disagreement he may have with his col-

leagues (see A-G v. Jonathan Cape (1975)). Resignation is also required

before a minister can speak out on a particular issue. Collective respon-

sibility applies even though many important decisions are made by

informal groups or subcommittees and are not fully discussed by the

cabinet as a whole. Nevertheless, as a convention, it may be adapted to

new circumstances. The prime minister can apparently modify it over a

particular issue (for example, membership of the EEC (1975)).

The relationship between the prime minister and cabinet can be

obscure. There are tensions between a collegial style and a prime

ministerial style of government. The collegial model of government,

which emphasises the participation of all cabinet ministers in decision

making, disguises the dominance of the prime minister in the formula-

tion of policy. This is so notwithstanding that the prime minister has

few formal powers. The prime minister controls the agenda of the

cabinet and appoints members of it to cabinet subcommittees and,

perhaps more important, informal working groups the most impor-

tant of which he chairs (and where he does not, he may choose who

does). The power to appoint loyal colleagues as ministers and dismiss

opponents also strengthens the Prime Minister’s position and may be

seen as the prime minister’s most significant power. It has become

notorious that collective ministerial responsibility does not function so

as to permit all policy issues to be openly debated in cabinet. It serves

to require ministers to lend unswerving loyalty to policies formu-

lated elsewhere.

The extent to which the prime minister can exercise an authoritarian

style depends on the composition and mood of the cabinet, the atti-

tude and cohesion of the party, and that of the Commons, the temper

of the electorate and not least the personal style of the prime minister.

If undue reliance is placed on a select group of senior ministers, if

too many ‘private deals’ are struck with individual ministers, or if too

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Ministers and Departments

many controversial policies are effectively formulated outside the cab-

inet, ministers may be reluctant to express loyalty to policies in the

discussion of which they had not participated and with which they do

not sympathise. Some consensus amongst ministers would seem to be

necessary if only to avoid political embarrassment or ministerial resig-

nations over policy differences. Serious embarrassment can result where

senior ministers resign having concluded that the workings of the

cabinet have strayed unacceptably far from the collegial model. Michael

Heseltine resigned during the Westland affair in 1986. Similarly,

Geoffrey Howe’s resignation over EC policy in 1990 was closely related

to his perception of the manner in which the prime minister appeared to

disregard collective decision making. This resignation played a pivotal

role in ending Mrs Thatcher’s tenure of No. 10 Downing Street.

It is uncertain how far collective responsibility applies to junior

ministers and whips who have no legal status as ministers of the Crown,

and who do not even nominally participate in the decision in question.

It would appear, however, that the same ‘conform or go’ rule can be

applied by a prime minister. Thus the government is assured of the

‘payroll vote’ from about 100 MPs who hold government office and

from the whips. It seems that a junior minister cannot accept individual

responsibility for departmental errors, because this is a responsibility

that lies with the Secretary of State. Junior ministers account to Parlia-

ment on behalf of the minister. However, a constitutional duty binds

even junior ministers to resign in the event of serious personal mis-

judgement (e.g., Edwina Currie and the salmonella affair).

It could be argued that collective responsibility is no different from

the solidarity expected within any organisation. This argument begs the

question whether government can be compared with, say, a large pri-

vate sector company. Governments exist on behalf of and for the benefit

of the people and in that sense has no ‘rights’ only ‘duties’. Constitu-

tional doctrines should therefore be assessed only in the light of their

advantage to the public. From this perspective, collective responsibility

can be defended on the ground that it strengthens both the authority

and the accountability of the government who stand or fall together.

14.5.2 Individual responsibility

The conventional formulation of the doctrine of individual ministerial

responsibility is as follows, ‘Each minister is responsible to Parliament

for the conduct of his or her department, and for the actions carried out

by the department in pursuit of government policies or in discharge

of responsibilities laid upon him or her as a minister. Ministers are

322 General Principles of Constitutional and Administrative Law

accountable to Parliament in the sense that they have a duty to explain

to Parliament the exercise of their powers and duties and to give an

account to Parliament of what is done by them in their capacity as

ministers or by their departments. This includes the duty to give Parlia-

ment, including its select committees, and the public, as full infor-

mation as possible about the policies, decisions and actions of the

government and not to deceive or mislead Parliament and the public’

(Questions of Procedure for Ministers, Cabinet Office, 1992).

In fulfilment of the convention ministers provide information to

Parliament by means of answers to parliamentary questions, formal

ministerial statements and letters to MPs. As we shall see, there have

been many recent reforms to the convention, but it was not felt to be

appropriate to go further and give the new Parliamentary Commis-

sioner for Standards a responsibility in respect of ministerial conduct.

The scope of individual ministerial responsibility to Parliament, and

the relationship between ministers and civil servants, has recently been

subjected to close scrutiny. It was at issue in the Scott Inquiry into

arms sales to Iraq (1996), in which ministers were found to have given

inaccurate, incomplete or misleading answers to Parliament, and in the

Nolan Inquiry into Standards in Public Life (1995) as well as in

the controversies surrounding such events as the dismissal of the Head

of the Prison Services Agency, Derek Lewis, and the Westland affair in

1986. The major restructuring of government involving the creation of

Executive or Next Steps Agencies has also prompted criticism and

debate concerning the convention.

The classical doctrine emphasises that a minister must always answer

questions and give a full account of the actions of his department. This

is so whether or not the minister is personally at fault for what has gone

wrong. The classical doctrine does not, however, satisfactorily resolve

the question of when, as a constitutional requirement, a minister’s

‘responsibility’ entails a duty to take the blame for departmental errors,

if necessary by resignation. One interpretation of the convention is that

resignation is required for every serious departmental error regardless

of the personal blame of the minister. As we shall see, with the possible

exception of Lord Carrington’s resignation as foreign secretary follow-

ing the Argentinean invasion of the Falkland Islands, modern practice

does not support this ministerial vicarious liability. The burdens of

government have become so extensive and so complex that ministers

have been unwilling to resign, even for serious errors by their officials.

Direct personal involvement is almost certainly now required.

Ministers have attempted to limit their responsibility to ‘policy’

mistakes as opposed to ‘operational’ errors, which are deemed to be

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Ministers and Departments

failures properly to implement policy. This has particularly been evi-

dent following the radical restructuring of government, with the

majority of civil servants working in semi-detached Executive or Next

Steps Agencies under the day-to-day direction of chief executives with

only limited departmental control. The distinction between policy and

operation has been accompanied by a dichotomy between ‘account-

ability’ and ‘responsibility’ (Scott, below). This seems to be to divorce

the circumstances in which a minister must give to the House an

explanation of the actions of their department (accountability) from

cases in which a minister must accept the blame for departmental

mistakes and resign (responsibility), thereby restricting the scope of

ministerial responsibility. In Taking Forward Continuity and Change

(Cm. 2748, pp. 27–8) the government stated that Parliament can always

call a minister to account for all that goes on his department, but it

added that a minister cannot be responsible in the sense of having

personal knowledge and control of every action taken, and cannot be

personally blameworthy when delegated tasks are carried out incompe-

tently or errors of judgement are made at an operational level (see also

the Armstrong Memorandum of 1st December 1987).

The accountability/responsibility distinction was in substance

accepted by the Scott Inquiry (1995–6) Section K Vol. IV (Scott,

1996a). It appears to mean that a minister, regardless of personal

blame, and with only limited exceptions (related inter alia to com-

mercial confidence, national security and some macro-economic issues)

cannot escape from the constitutional duty to answer questions, not

intentionally to mislead, and to give an account of the actions of his

department. Ministers must be prepared to offer a complete explana-

tion of any error to Parliament. The duty embraces an obligation to

offer reasons by way of justification in the face of criticism.

Even this restricted version of the convention has not been applied

consistently. The forthright conclusion of the Scott Inquiry (Scott,

1995–6), was that numerous examples came to light of ministers failing

to give full information about the policies, decisions and actions of

government regarding arms sales to Iraq (K8.1 para. 27) and that this

had undermined the democratic process (D4.56–D4.58). Answers to

parliamentary questions in the affair had been ‘designedly uninforma-

tive’ because of a fear of adverse political consequences if the truth

were revealed (D3.107).

Following revelations of this kind about the manner in which both

ministers and civil servants had interpreted their constitutional func-

tions, it became clear that there should be a renewed commitment

to the doctrine of individual responsibility combined with a need to