Current General Picture:
There is generally scepticism that Parliament can no longer effectively holding the government to account. This concern is especially important since governments generally hold majorities in Parliament.
Legal accountability of government is increasing because Parliamentary mechanisms are seen to fail; the courts are reviewing ministerial work more than ever previously.
There is a legal cap on the number of ministers to prevent the government dominating parliament. This would allow them to work without being held to account.
It must be seen that a government is legitimate. Although citizens do not have to agree with everything that a politician does for their role to be legitimate, a legitimate government must be supported by people who have confidence in its processes.
‘In a good constitution, it is not enough for those who govern to say ‘the law gives us power to govern’ (legality); they must also implicitly or expressly make a claim as to why their powers to govern ought to be accepted, and that claim must be accepted by most of the people most of the time. This is the idea of legitimacy.’ [1]
‘Conditions of legitimacy exist if, for good reason, people have confidence in administrative processes and respect and accept decisions of public authorities, even though they may disagree with some individual determinations.’ [2]
The UK has a ‘constitutional monarchy’ or ‘constitutional sovereign’. Since the monarch conventionally must act on the advice of their ministers, it is ministers who are held to account for the exercise of the Crown’s powers.
The government effectively timetables the debates that occur within the House of Commons, allowing them to focus on their own policy. This arguably prevents other change from happening. On the other hand, the government were elected to implement their manifesto, so need the power to control the events in the House of Commons.
Modes of Ministerial Responsibility:
Collective Responsibility:
Collective responsibility is a convention whereby all ministers publicly endorse the majority decision of the cabinet, even if they do not privately agree with them.
Confidence in the Commons:
Authority is derived from Parliament, so the government needs the confidence of the House of Commons to maintain a majority government. Without the confidence, the government collapses.
It is normal that confidence is not ‘lost’, but ‘challenged’ by MPs.
Ministerial Solidarity:
Ministers are expected form a united front of the position of the cabinet. They, therefore, must take the opinion of the majority of the government, even if they personally disagree with the policy. If they feel unable to support policy, they are expected to resign.
The Prime Minister has the discretion to suspend this practice to facilitate open debate.
Cabinet Confidentiality:
Ministers should be able to express their views in private to allow them to form a united front for the public.
‘The principle of collective responsibility … requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed in Cabinet … should be maintained.’ [3]
An unattributed leak is when a minister exposes information that has been said privately in confidence to the public.
In AG v Jonathan Cape Ltd, the House of Lords ruled that cabinet discussions could be published in a memoir after a passage of time.
Individual / Personal Responsibility:
Ministers are responsible for the actions that they personally take and the actions of their departments.
‘For every act of the government, there is a minister responsible to parliament.’
For a minister to resign, the minister has to be willing, the Prime Minister has to be insistent, and the political party must agree. Resignation is generally uncommon.
Minister’s Personal Responsibilities [4]:
To inform and justify a decision / action once taken.
To apologise for errors made.
To undertake corrective measures after the fact.
To resign after the fact.
Minister and Department:
It is the responsibility of the minister to protect the civil servants in their department for any issue or error made about policy. However, ministers can only be held to account for decisions that they either directly caused or knew about.
‘Constitutionally, the decision of [a civil servant] is the decision of the Minister. The Minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority’ [5]
Ministerial Accountability:
The ultimate political sanction is to be sacked or forced to tender resignation.
By drawing the executive from the legislative, the government is accountable to Parliament.
How Ministers are held to Account:
Courts
EG: Miller Cases
Parliament-Executive Nexus
Open Government
Freedom of Information
Voluntary Publication by Government
Specific Mechanisms in relation to the Decentralised State
Before House of Commons and/or Lords (in Questions) – subject to conditions. [6]
There is criticisms that it is not effective enough.
Before Select Committees
Departments are obliged to respond to findings, but not to implement them.
Cross Party Examination on the House Floor
Challenges:
The Ministerial Code can be seen as ‘lore not law’, meaning that it is not legally binding. It is just a convention / set of guidelines that the Prime Minister and their government can break without recourse.
There is a distinction to be made between giving an account to Parliament and being held to account. Some argue that Parliament does not take an active enough roll in holding ministers to account.
References:
[1] Andrew Le Sueur, Maurice Sunkin, and Jo Eric Khushal Murkens, Public Law: Text, Cases, and Materials (4th edn, Oxford University Press 2019) 252 [2] A. Le Sueur, ‘People as “Users” and “Citizens”: The Quest for Legitimacy in British Public Administration’, in M. Ruffert (ed.) Legitimacy in European Administrative Law (Groningen: Europa Law Publishing 2011), ch. 3, p. 30 [3] Ministerial Code (2010) [4] House of Commons Hansard Resolution (19 March 1997) [5] Carltona v Works Commissioners [1943] 2 All ER 560 (Lord Green MR) [6] House of Commons Information Office, Parliamentary Questions, Factsheet P1 (December 2008), See LSM p298
Cases Mentioned:
Attorney General v Jonathan Cape Ltd (1976) QB 752
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