View that there should be no distinction between the constitutional

responsibilities of chief executives and other civil servants. This would

mean that when they answer written parliamentary questions or appear

before select committees they do so on behalf of their ministers. The

Committee stated emphatically that ministers remain accountable for

what goes on in agencies just as in their departments. However, there

remain concerns that when chief executives appear before select com-

mittees they are subject to the direction of their minister under the

Departmental Evidence and Response to Select Committees (Cabinet

Office, January 1997) which would limit their competence as witnesses

and Parliament’s ability to investigate.

14.8 Non-Departmental Public Bodies

Contemporary political fashion favours the devolution of many

governmental functions to specialist bodies including private bodies

338 General Principles of Constitutional and Administrative Law

outside the central government framework thereby further weakening

constitutional accountability but ostensibly reducing government ex-

penditure. Under the Deregulation and Contracting Out Act 1994 a

minister can authorise the transfer of any of his or her functions to any

other body and can authorise a local authority to do likewise. This does

not apply to the jurisdiction of courts or tribunals which exercise ‘the

judicial power of the state’ nor to functions which affect individual

liberty or involve the power of search, entry to or seizure of property

(subject to exceptions mainly concerned with the lucrative insolvency

business), nor to the making of subordinate legislation (s. 71).

Non-departmental public bodies (NDPDs), sometimes called

‘Quangos’ (quasi-autonomous non-governmental organisations) are

usually created by statute although some are voluntary bodies. They

are controlled by ministers through various devices, the extent and

nature of control depending on the particular body. Typically a min-

ister appoints and dismisses the boards of non-departmental bodies

(although some, such as the utilities and rail regulators have a cer-

tain amount of security of tenure). Such appointments are therefore a

valuable lever of patronage attracting as they are likely to do, the

sycophantic and the conformist.

Following the recommendations of the Nolan Committee (below)

(see 6th Report of the Committee on Standards in Public Life; Neill,

2000a), an independent Commissioner for Public Appointments has

been created under the royal prerogative with the power to regulate

and oversee appointments made by ministers to NDPDs and to deal

with complaints (Order in Council, 23 Nov. 1995). Ministers are

bound by its general principles and code of practice (see http:/

www.ocpa.gov.uk). These principles follow the Nolan Principles of

Public Life and emphasise openness, fair competition and proportion-

ality in the process of making appointments. Characteristically, there

are no legal sanctions other than the general law of judicial review.

The Commission has no enforcement powers of its own, responsibility

being political and probably vesting in the prime minister.

An important question is whether a particular body is part of the

Crown, and so subject to certain immunities and special rights and

accountable directly to Parliament. Legislation establishing a public

body usually specifies whether or not that body is part of the Crown

(e.g. Utilities Act 2000 s. 1: the gas and electricity regulator is part of the

Crown), but failing this, the test is the extent to which the Crown,

through ministers, is entitled in law to exercise detailed control over the

body in question (see e.g. Tamlin v. Hannaford (1950)). By virtue of

particular statutes ministers can usually give directions or guidance to

339

Ministers and Departments

NDPDs (the latter not being strictly binding), and also provide finance.

Thus in practice NDPDs have little significant independence from

central government but the extent to which ministers are formally

accountable for them is blurred (below). NDPDs must be distinguished

from (i) ‘ministerial public bodies’, such as the Inland Revenue and the

NHS for which a minister is fully accountable; and (ii) ‘non-ministerial

departmental bodies’ such as the Charity Commissioners, (Charities

Act 1996), and the Gas and Electricity Markets Authority (Utilities Act

2000), who exercise functions wholly on behalf of the Crown but over

which ministers have only limited powers.

NDPDs are not usually part of the Crown and comprise a large and

variegated category (see Executive NDPDs, Cm. 4657 (1999)). They

are usually subdivided into executive bodies such as the Higher Edu-

cation Funding Council and the Environment Agency, advisory bodies

such as the Committee on Standards in Public Life (which is non-

statutory) and tribunals exercising judicial functions, for example the

Immigration Appeals tribunal. However, many non-judicial bodies, for

example English Nature, exercise both executive and advisory func-

tions. Moreover in recent years regulatory bodies have been created or

their powers increased in order to exercise governmental control over

the activities of private bodies exercising functions that had previously

been carried out by government. In defiance of the separation of

powers some of these bodies exercise a mixture of judicial and execu-

tive functions acting as police force, judge and executioner in one

(e.g. Housing Act 1996 – The Housing Corporation). These arrange-

ments may fall under the scrutiny of the Human Rights Act 1998 in

respect of whether they afford a fair trial before a sufficiently inde-

pendent tribunal. However, provided that judicial review is available

conflicts of function will probably not violate Art. 6 at least in the case of

policy-making bodies (see R. (Alconbury) v. Secretary of State (2001;

Adam v. Newham BC (2002) (below p. 430)).

There are also numerous voluntary bodies such as housing associa-

tions that carry out functions on behalf of government and, in doing

so, have surrendered the independence that is arguably important in

a democracy. These bodies are collectively known as ‘public service

organisations’, a term which has no legal significance. Many activities,

notably professional sports, are subject to regulation on a voluntary

basis by bodies which have no formal links with government or special

powers but nevertheless act to protect the public. Profit-making bodies

have also contracted with government to provide public services,

notably in the case of prisons and trunk roads. Under the Private

Finance Initiative private enterprises finance government projects

340 General Principles of Constitutional and Administrative Law

either as loans or in return for benefits such as leases or shares in

revenue (see Government Resources and Accounts Act 2000 ss. 16,

17). The fact that a given body exercises functions under an agreement

with government or is funded by government is not sufficient in itself

to make that body a public body for example for Human Rights Act

purposes. However, its functions may be regarded as public functions

if they are enmeshed with those of a government body (see Donoughue

v. PHARCA (2001)).

The dispersal of power to private bodies raises problems of account-

ability. Ministers will not formally be accountable to Parliament for

their activities except to the extent that a minister exercises his or her

own powers. Indeed, apart from the courts and statutory agencies such

as the Charity Commission, the Financial Services Authority and the

Housing Corporation, which regulate some of these bodies, there is no

method of formal accountability. In 1918 the Haldane Committee on

the machinery of government warned about dangers in creating

governmental bodies without the ‘safeguards’ of ministerial responsi-

bility to Parliament. Moreover where a private company runs a service

on behalf of the government it will owe dual and perhaps conflicting

loyalty to its shareholders and to the government but without clear

accountability mechanisms. There might also be accountability prob-

lems where private bodies claim commercial confidentiality for their

decisions or where they seek the protection of contractual rights

against public interest concerns.

Summary

14.1 As a body the cabinet has been reduced in power in recent years, with

decisions being effectively made by smaller groups within and outside the

cabinet and by departments of the executive.

14.2 There are few constitutional laws or conventions concerning the detailed

distribution of functions between departments. Political and administrative

considerations rather than constitutional principle determine the number,

size, shape and interrelationship of government departments. The creation

of bodies outside the framework of the Crown is of greater constitutional and

legal significance.

14.3 The convention of ministerial responsibility is central to the UK constitution.

We discussed its two limbs with their several branches. Collective respon-

sibility means that all members of the government must loyally support

government policy and decisions and must not disclose internal disagree-

ments. Individual responsibility means that each minister is answerable to

Parliament for all the activities of the department under his control. It also

341

Ministers and Departments

means that civil servants are not personally accountable. From these

principles follow: (i) the traditional notion of the civil service as anonymous

and politically neutral having a duty to serve with unquestioning loyalty

governments of any political complexion; (ii) the secrecy that pervades the

British system of government.

14.4 Many people believe that the traditional doctrine of ministerial responsibility

is out of line with the practices of modern government and effectively shields

the government from accountability. In particular: (i) cabinet decisions are

rarely made collectively; (ii) many government bodies are not directly

controlled by ministers, the creation of executive agencies reinforcing this;

(iii) civil servants are increasingly expected to make political decisions and

to be responsible for the financial management of their allotted activities,

(iv) public functions are increasingly being given to special bodies or private

bodies. Thus the traditional chain of accountability between Parliament,

ministers and civil servants is weakened.

14.5 In law, civil servants are servants of the Crown. They can be dismissed

‘at pleasure’, that is, without notice and without reason being given. However,

the modern cases suggest that there can be a contractual relationship

between the Crown and a civil servant and that a civil servant can be pro-

tected by the law of judicial review.

14.6 Civil servants are regarded as servants of the government of the day with an

absolute duty of loyalty to ministers. Their advice to ministers is secret and

they appear before Parliament only with the consent of ministers. They are

supposed to be non-political and neutral, responsible for giving ministers

objective advice and for carrying out ministerial orders, thus providing

stability and continuity. The neutrality of the civil service has been affected

by the appointment of politically partisan special advisers.

14.7 The internal arrangements for the carrying out of government business

involve entrusting individual civil servants with considerable decision-

making responsibility and in recent years with financial accountability within

the government machine. Many civil servants work in executive agencies,

hived off from the central departmental structure and outside the direct

control of ministers. This has led to tensions between traditional ideas of

ministerial responsibility and the actual channels of accountability and has

raised problems in connection with the supposed distinction between policy

and operational matters. Ministerial responsibility is also weakened by the

practice of entrusting public functions to specialised NDPDs operating to

varying extents independently of the central government.

14.8 The civil service is torn between competing duties, that of giving impartial

advice to ministers and that of carrying out the goals of the elected govern-

ment. In particular there is the moral dilemma faced by ‘whistleblowers’ who

wish to expose misconduct by ministers and also by civil servants who are

sometimes required to conduct inquiries in politically sensitive areas.

Further Reading

Barberis, P. (1998) ‘The new public management and a new accountability’, 76 Public

Administration 451.

Brazier, Constitutional Practice, chapters 5, 6, 7.

342 General Principles of Constitutional and Administrative Law

Dowding, K. and Wun-Taek, K. (1998) ‘Ministerial resignations’, 76 Public Adminis-

tration 411.

Hennessy, The Hidden Wiring, chapters 3, 4, 5, 8.

Jowell and Oliver, chapters 5, 6.

Lewis (1994) ‘Reviewing change in government. New public management and next

steps’, Public Law 105.

Lewis, N. (1998) ‘A civil service act for the United Kingdom’, Public Law 463.

Lewis, N. and Longley, D. (1996) ‘Ministerial responsibility. The next steps’, Public

Law 490.

McEldowney, Public Law, chapters 10, 13.

Marr (1995) Ruling Britannia, Michael Joseph.

Oliver and Drewry, (1996) Public Service Reforms, Pinter.

Rhodes, R. (1994), ‘The hollowing out of the state: the changing nature of the public

service in Britain’, 65 Political Quarterly 158.

Tomkins (1998) The Constitution After Scott, OUP.

Willet (ed.), Public Sector Reforms and the Citizen’s Charter, chapters 4, 5.

Woodhouse (1997) In Pursuit of Good Administration, Ministers, Civil Servants and

Judges.

Woodhouse (1994) Ministers and Parliament, Clarendon Press, Oxford.

Exercises

14.1 Consider whether the relevant laws and conventions support Bagehot’s view

that the Cabinet is the central institution of the UK constitution.

14.2 Draft a bill which defines the powers of the prime minister and strengthens

his accountability.

14.3 ‘Ministerial responsibility is, in practice, an obstacle to the availability of

information and to the holding of government to account’ (Oliver). Discuss.

14.4 To what extent can powers conferred on a minister be exercised (a) by

another minister? (b) by a civil servant?

14.5 How does the ‘Next Steps’ initiative affect the accountability of the executive?

14.6 To what extent can Parliament and the public scrutinise the activities of a

civil servant? (see also Ch. 2).

14.7 What is the distinction between accountability and responsibility? Has this

distinction limited ministerial responsibility?

14.8 When should a minister resign?

14.9 The government creates an executive agency to regulate motorway service

areas. The Secretary of State for Consumption delegates to the agency his

statutory powers to ensure the ‘adequate provision of motorway services’.

Under a contract made with the Secretary of State, the agency promises to

achieve certain ‘targets’, including the provision of high-quality catering and a

clean environment. The agency is given power to approve all catering outlets

at service areas. The agency informs George that it proposes to approve his

ice-cream stall at the Naff Service Area on the M6. George thereupon pur-

chases several thousand gallons of low-grade ice-cream made from petro-

leum by-products. George is subsequently told by the agency that it has

revised its food quality standards in the light of an EC Directive and that he

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Ministers and Departments

must therefore sell ice-cream made only from milk. George sells his ice-

cream to a local garage at a considerable loss.

The agency makes a contract with Grasper to provide a cleaning and

waste disposal service at the Naff Service Area. Due to cuts in its funding

from the Secretary of State, the agency does not check Grasper’s perform-

ance but increases its chief executive‘s annual ‘performance bonus’ by

100%. Jane, a regular user of the service area, writes to the agency stating

her view that the standards of cleanliness are inadequate and are likely to

create a health risk. She receives a reply stating only that the agency is

committed to ‘fazing in Nolan Standards of Excellence in all our Missions’

and apologising for the delay in ‘actioning her application’.

George and Jane now write to Crawler, their MP (who is a government

loyalist), complaining about their treatment. Explain to them their chances of

obtaining redress by this means.

15 The Police and the

Armed Forces

15.1 Introduction

The police and the armed forces together constitute the enforcement

arm of the community authorised to use violence. However, the con-

stitutional position of each of them is different. In the case of the

armed forces the overriding imperative in a democracy is to ensure

that they are subordinate to the civilian power and that there is politi-

cal accountability. It is also important to accommodate the need for

special powers and disciplines with the values of the rule of law so as to

ensure that the military are not only subject to the law but also pro-

tected by it. In the case of the police the issues are more complex,

because the police are closely connected with the judicial arm of gov-

ernment having the dual responsibilities of keeping order and investi-

gating crime. As well as the need to subject police powers to the rule of

law there is the concern to accommodate political accountability with

police independence.

15.2 Police Organisation and Control

The organisation of police forces in the UK rests upon three incom-

mensurable concerns. These have led to complex and tension-ridden

arrangements for police governance and accountability. First there is

the traditional status at common law of the constable as an independ-

ent officer owing duties directly to the Crown and the rule of law to

keep the peace. All police officers and also prison officers are con-

stables. The office of constable is an ancient office of the Crown with

inherent common law powers, although many powers, particularly

those concerned with arrest, search and detention, have been super-

seded by statute. A constable has no immunity from liability for wrong-

ful acts, thus reflecting Dicey’s version of the rule of law. Today the

police have a wide range of statutory powers and are subject to con-

siderable administrative regulation.

A constable is not, strictly speaking an employee of anyone (although

under regulations made by the Home Secretary many of the conditions

344

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The Police and the Armed Forces

of work are similar to those of employees) and the powers and duties of

a constable derive from the general law (Fisher v. Oldham Corporation

(1930)). According to dicta in Fisher, the status of a constable is that of

‘a servant of the state’, and a police officer has been held to be ‘a person

holding office under her Majesty’ so as to be bound by the Official

Secrets Act (Lewis v. Cattle (1938)). This means only that the police

officer’s legal powers derive ultimately from the Crown and it does not

follow that the Crown can control the day-to-day activities of the

police. Police premises provided by the Crown may attract Crown