Ministers, civil servants and parliament relationship

Introduction

There are few legal controls over the organisation of government departments or the relationship between ministers, civil servants and Parliament. The most important aspects of these relationships are dealt with by conventions or by generalised published principles. This lecture will consider the role and powers of Prime Minister within the Cabinet; collective and individual responsibility of ministers; the statutory and common law powers of the cabinet, as well as consideration of the relationship between the executive and parliament.

The Executive

(A) Powers of Prime Minister

The Prime Minister is appointed by the Queen (on the ‘advice' of the Parliament), and in practice will always be a member of the party holding the majority of seats in the House of Commons.

(B) The Cabinet

The functions of the executive include (Ryan, pp. 303-304):

  • Formulating domestic and foreign policy;
  • Initiating legislative proposals;

  • Implementing law and policy;
  • Making various appointments; and,

  • Providing political leadership.

The government also exercises many royal prerogatives, such as declarations of war, deployment of UK armed forces, governance of overseas territories, the granting of pardons and the ratification of international treaties.

Cabinet Ministers

Ministers of State

Parliamentary secretaries

Parliamentary private secretaries

Whips

See: Carltona v Commissioner for Works [1943] 2 All ER 560.

In recent years, concerns have been aired in relation to use by the Prime Minister of techniques to sideline cabinet. See, Butler Report on the Review of Intelligence on Weapons of Mass Destruction, (HC 898, 2003-4, paras 610 et seq.) Clare Short MP, in her memoirs, noted how important documentation leading up to the Iraq War was distributed at the last minute, and when questions on its contents were raised (by her):

I asked why it was so late …. There were then many voices calling for me to be quiet and not ask such questions and no discussion was allowed.

(I) Cabinet Confidentiality

Proceedings of cabinet are confidential, with documents released after 30 years (although governments can decide to release them before of after this time). See however, Attorney General v Jonathan Cape Ltd. [1976] QB 752.

In relation to the Iraq War, Clare Short was able to tell of discussions which took place in cabinet on this issue. In February 2009, the Information Tribunal upheld a decision of the Information Commissioner, ordering the Government to release specified documents relating to legal advice obtained by the Attorney General for UK forces declaring war of Iraq. In Lamb v Cabinet Office the Information Tribunal held in a 2-1 decision (para. 1):

…[T]he public interest in maintaining the confidentiality of the formal minutes of two Cabinet meetings at which Ministers decided to commit forces to military action in Iraq did not, at the time when the Cabinet Office refused a request for disclosure in April 2007, outweigh the public interest in disclosure.

However, a number of days after this decision, Jack Straw vetoed the release of these minutes under provisions of the Freedom of Information Act.

(II) Collective Ministerial Responsibility

  1. All ministers should be loyal to the Government, even if there is a personal disagreement about a policy;
  2. Resignation of the cabinet where it no longer has the support of the Commons;

  3. Cabinet confidentiality (discussed above);
  4. There is collective responsibility for decisions.

See, Ministerial Code: A Code of Conduct and Guidance on Procedures for Ministers (latest edition 2007).

Clare Short stated that the British government had behaved ‘recklessly' in the lead up to the Iraq War. Short was not dismissed from Cabinet and resigned two months later noting:

In [Labour's] second term, the problem is the centralisation of power into the hands of the Prime Minister and an increasingly small number of advisers who make decisions in private without proper discussion….There is no real collective responsibility because there is no collective; just diktats in favour of increasingly badly thought through policy initiatives that come from on high.

House of Commons Debates, Volume 405 Column 38, 12 May 2003.

However, this view has been countered by Lord Wilson of Dinton who has stated:

The constitutional conventions surrounding the Prime Minister, including collective responsibility and answerability of individual Ministers to Parliament, have remained robust and unchanged. Different Prime Ministers do the job in different ways and constitutional practice has… proved flexible in finding ways of enabling this to happen while ensuring that conventions are met. If for instance a Prime Minister wants to do business through ad hoc meetings and bilateral discussions this can be done, provided that his or her colleagues are content for this to happen.

Lord Wilson of Denton, ‘The Robustness of Conventions in a Time of Modernisation and Change', Public Law, Summer 2004 at 417.

(III) Individual Ministerial Responsibility

Individual ministerial responsibility is concerned with a chain of accountability from Parliament through ministers to civil servants. The Ministerial Code of Ethics (2005) seeks to clarify the extent of individual ministerial responsibility:

  1. Ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and Next Step agencies, such as the Prison Service (responsible minister is the Minister of State for Criminal Justice and Offender Management) and the Child Support Agency (Parliamentary Under-Secretary of State).
  2. Ministers must give accurate and truthful information to Parliament and correcting any errors as soon as they become known. Where Ministers knowingly mislead Parliament, they should offer their resignation to the Prime Minister;

  3. Civil servants, acting on the advice of the relevant Minister, should give truthful advice when appearing before parliamentary committees.

(C) Civil Servants

(D) Non-Departmental Public Bodies (colloquially referred to as Quangos)

Bodies such as the Commission for Equality and Human Rights fall into this category for England, Scotland and Wales. Scotland also has a Scottish Human Rights Commission. In Northern Ireland, the Northern Ireland Human Rights Commission (whose functions will be examined in Public Law II) would also constitute a Quango.

The Relationship Between Parliament And The Executive

In theory, as noted in previous weeks, the Executive is accountable to the Parliament. However, in practice, it often seems that the party political system will (in general) ensure that members of political parties toe the line of their leaders, be it the leader of the opposition or Prime Minister. Parliament can be seen as supervising the workings and policies of the Executive in a number of ways:

  1. Prime Minister's Questions (PMQs)
  2. Oral and Written Questions to Government Ministers

  3. Debates
  4. Parliamentary Committees

  5. Legislative Scrutiny

Conclusion

  1. Ensure you can give an overview of powers of the Prime Minister and the Cabinet;
  2. Particularly note ministerial responsibility-both collective and individual, from your reading you should be able to provide examples beyond those discussed in the lecture;

  3. Be mindful of how the powers of the executive can be limited by Parliament, however, also note the influence the executive has over Parliament;