The conventions governing ministerial responsibility

As we have learnt from out study of conventions, it would be very difficult to track down every convention relevant to ministerial responsibility, as they can be found from a variety of sources, some of which are unwritten. I shall be attempting to examine the most significant conventions, and examining their nature to determine exactly how effective they are. In particular, I shall look at the nature of convention itself to establish criteria on which we can judge the scope and adequacy of the conventions.

I shall also examine incompetence and impropriety throughout ministerial departments and the civil service, because as we shall discover shortly, ministers are accountable for more than just their own actions. Conventions are the rules which regulate the day-to-day functioning of the legal constitution, described by some as the rules of constitutional morality. The most important conventions in the constitution are commonly regarded as those which either limit monarchical power or, as is applicable here, regulate the relationship between government and Parliament.

The nature of convention is such that some may be well-established and clear, like that which ensures that Parliament meets at least once a year, whereas others are less clear and tend to cause controversy. For a convention to be properly established, it needs to be accepted by those whom it affects. However, a convention is not directly enforceable by law, which is where matters of inadequacy play a part, as we shall discover later on.

Ministers are members or supporters of the party in power which holds political office, who often have departmental responsibilities for which they are politically responsible to Parliament as individuals.

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Ministers are thus responsible for their own actions, a concept known as individual responsibility, and are accountable for the actions of their department, and I shall discuss the distinction between the two later on.

Ministerial responsibility has been the accepted basis of parliamentary government in Britain since the mid-19th century, along with particular development in the other main aspect of ministerial responsibility – collective responsibility. This is the idea that ministers must hold a united front once a cabinet decision has been made, having been given the chance to dissent or resign when the decision itself was being made. It is necessary to outline some of the governmental conventions used regarding ministerial responsibility.

The Ministerial Code created in 1945 is the primary source for most of these conventions, which were revised and reissued by Blair in 1997. The principles of ministerial conduct stated in this code include a duty to uphold collective responsibility and a requirement for ministers to account for the activities of their department/agency. More specifically, the code also states that, ‘ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister,’ and the word ‘knowingly’ is of particular significance.

Ministers have a duty to be ‘as open as possible with Parliament and the public, refusing information only when disclosure would not be in the public interest. ‘ A minister must ‘behave according to the highest standards of constitutional and personal conduct in the performance of their duties. ‘ The Carltona Principle also states that ‘if a decision is made on behalf of one of his officials, then that constitutionally is the minister’s decision. ‘ It is also a duty of a minister to send civil servants under him to select committees for questioning, if they are called upon.

However, in most cases, civil servants are not responsible for their actions and decisions, unless powers have been formally delegated from a minister. Despite the apparently clear nature of these conventions, the system of ministerial responsibility has been shown by many to be an insufficient means of scrutinising government, and ways of breaking these conventions, or amending them to suit circumstances have exposed their uncertainty and inadequacy. If we examine some of the conventions that I listed, we can show how each of them has failed in their duty to govern ministerial responsibility.

I outlined that ministers have a duty to account for their departments, but there is a growing ‘accountability gap’ which is allowing ministers to distance themselves from the traditional full accountability for their department. Prison difficulties in 1995 exposed this issue, when the chief executive of the Prison Service was dismissed following review of prison security, which showed problems traceable to the prison service headquarters. The Home Secretary, Michael Howard denied that any policy of his caused the problems, and refused to take responsibility for his agency’s failures.

The fact that a minister actually has the freedom to do this exposes the clear inadequacy of the convention in safeguarding against ministerial impropriety, which saw a member of the civil service take responsibility for the issue without much political tumult from the rest of the government. Even if Howard wasn’t at fault, the convention has no means of testing or ensuring that, nor of actively stopping a minister from relinquishing responsibility for a departmental error.

The Scott Report 1996 is full of examples of ministers deliberately holding back information, refusing to answer questions and providing inadequate responses to questions. The whole ‘arms to Iraq’ issue exposed problems within the conventions of ministerial responsibility, particularly in defining who was accountable, and in extracting necessary information from officials. It can be argued that those ministers who did not account for their actions for reasons of ‘commercial confidentiality,’ or in the ‘public interest,’ were not fulfilling their ministerial duty, particularly in ‘knowingly’ misleading Parliament.

Scott specifically stated that “British Governments act as though they are the state, and regularly confuse the public interest with their own governmental convenience. ” Even though the government narrowly avoided being implicated for a cover-up by surviving a parliamentary debate by one vote, convention was shown to insufficiently prevent ministerial misconduct. I find that the usage of the ‘confidentiality’ excuse was particularly barren, as it contradicted UK policy to publish details of certain arms exports in the UN Arms Register, itself an initiative of John Major.

As Lewis and Longley identify, there was no reason why the ministers could not have at least provided details regarding the nature and quantity of arms involved, even if commercial confidentiality had to be maintained. In general, conventions regarding avoidance of answering questions are completely deficient in preventing the avoidance of ‘politically fragile’ issues out of convenience. The democratic process is totally undermined by the inability to scrutinise government, and prevent such indirectness.

Another issue brought up by the report was the prevention of the select committee from questioning key civil servants who had retired. These civil servants would have provided valuable information to the inquiry, but convention held that they could not be questioned. Inadequate safeguarding against ministerial errors is yet again exposed, as this convention acts as yet another means of shielding ministers (and departments) from taking responsibility for their actions.

On the whole, the Scott Report exposed a general assumption of executive dominance over Parliament, prioritising government policy over law, and depicting the conventions as open to discretion and highly ambiguous. It is outlined in convention that ministers should maintain ‘the highest standards of constitutional and personal conduct,’ yet the nature of ministerial responsibility has been shown to be such that the upholding of this convention is also unnecessary.

The government almost always backs any minister that is facing an enquiry, using its majority in the House of Commons, if opposition attempts to table a motion of censure to try and employ some means of governmental scrutiny. Thus another convention is shown to be empty and easy to bypass by government shielding of its own. I have discussed the inadequacy of these conventions in some depth, but further examination of the uncertainty of the scope of some of these conventions is also required.

I outlined a duty to uphold collective responsibility. However, from examples such as dissent regarding implementation of a 10% tariff in the economic crisis of 1932, and the unwillingness to continue membership of the European Communities in 1974, an alternative option was given to ministers whereby it was not necessary for ministers to resign, known as ‘agreement to differ. ‘ In the first example, the option for completely open dissent was given, but in the second example, only dissent outside of Parliament was permitted.

It appears from these examples that departure from convention governing ministerial responsibility is permissible when it suits the Cabinet, undermining the nature of the convention itself. Also, as outward cabinet unity (regarded by many as the main reason for collective responsibility) has been sacrificed in any case by allowing open dissent, why should different levels of outward dissent be permitted in different circumstances? The scope of convention is shown to be uncertain here, as well as the extent to which the convention should apply, and when ‘agreement to differ,’ should be permitted.

The whole ‘responsibility vs. ccountability’ debate shows further uncertainty as to how far convention actually applies. Theoretically, a minister is accountable for all that happens in his department, but my example of the Home Secretary in 1995 showed weakness in this convention. The real problems arise when there is genuine uncertainty as to who is responsible for a policy. The uncertain nature of this convention allows a minister to avoid taking responsibility for a decision made in his department, but similarly, a civil servant can also avoid this responsibility, as he isn’t expected to know enough to make sufficiently educated decisions.

There is also continuing debate regarding how far a minister is responsible for maladministration of power if a civil servant below him makes a mistake, and the circumstances in which a minister should have to resign. Clearly convention does not hold the answer to these questions, as the answers depend on the political atmosphere in which the issue has occurred, so convention can be shown to be uncertain in providing safeguards against relinquishment of ministerial responsibilities.

I have based my argument on criticism of the conventions governing ministerial responsibility. However, there are aspects of convention which could be called creditable, and show why the system of convention has lasted so long. One good thing about this system is that it has allowed power to theoretically remain in the hands of the electorate, so that ministers can share out policy-making and administrative authority, rather than having it concentrated in the hands of the monarch. This in turn makes it relatively easier to scrutinise these spread powers.

Although the idea of absolute control of political behaviour through collective responsibility is debatably a dangerous idea, it also has positive aspects in showing the party to be uniform in policy and ideas, working together for the good of the people, and also helps to contain public disagreement between departments, which would otherwise present the view of a dysfunctional government. Also, when I discussed the nature of ‘agreement to differ,’ although my point was that it contravened convention, I do believe that the actual concept itself is positive, and should be more clearly incorporated into the convention itself.

I have emphasised throughout the essay that the civil service are able to avoid taking responsibility for many of their actions, but ministers do have the power to dismiss civil servants for maladministration or other major errors, so they are not completely free from responsibility. The courts can also get involved in issues of ministerial responsibility where necessary, although their power is limited to compensation and other similar judgements, rather than amendments to problems cemented by the nature of ministerial responsibility.

I must also stress that in criticising the conventions governing ministerial responsibility, I am not necessarily discrediting the convention system as a whole; rather I am identifying that the current conventions that we have are vague, uncertain and inadequate at preventing ministerial incompetence and impropriety. It must still be noted that conventions remain an effective way of keeping the constitution up to date regarding contemporary political values. I also commented on how convention is not actually legally enforceable.

However, as Dicey argues, breaking of many conventions can in fact still lead to involvement of the courts, as convention and law in our constitution are so intertwined that breaking one will very often require breaking of the other. In a survey, Mancuso stated that “whatever is not expressly forbidden is tacitly permitted. ” In this summary of the nature of convention, Mancuso highlights what I think is the main problem with our current conventions governing ministerial responsibility. The conventions are too vague and open to interpretation, and as a result, it is impossible for the convention system to effectively scrutinise government.

Clearer definitions need to be made of the conventions, possibly using legislation as well, so that proper safeguards against ministerial (and departmental) incompetence and impropriety can be imposed. Once these conventions are amended, it will be much easier to make specific changes to the administration, such as creating a policy register so that blame and responsibility can be effectively administered, and changing circumstances in which ministers can avoid answering questions when subject to select committee review.