Public Law Workshop 5

The Prime Minister, Cabinet and CMR

1.        The Role of the Prime Minister (PM)

·      Political Head of the UK government and leader of the central executive (Prime Minister and Cabinet).

·      Appointed by the King, though this is ceremonial. In practice, the leader of the party commanding the confidence of the House of Commons becomes PM.

·      Typically, this is the leader of the party with a majority in the House of Commons.

2.        Prime Minister's Powers (Mostly by Convention)

·      Appointing/Removing Ministers: Advises the King, whose approval is a formality.

·      Determining the Cabinet: Controls size, composition, policy direction, and Cabinet committees.

·      Civil Service and Treasury: PM serves as Minister for the Civil Service and First Lord of the Treasury.

·      Cabinet Meetings: Sets the agenda and timing for Cabinet discussions.

3.        The Cabinet Office

·      A government department supporting the PM and the Cabinet.

·      Ensures that the Civil Service (neutral administration) assists in achieving policy goals.

·      PM is also a Minister of the Cabinet Office.

·      Cabinet Secretary: The Head of the Civil Service, responsible for political and constitutional reform, national security, and Civil Service oversight.

4.        The Privy Council

·      A historic body, now largely symbolic, advising the monarch on the exercise of the royal prerogative.

·      Ministers approve documents for the monarch, and members swear to keep proceedings secret.

·      Opposition Leaders are included to receive classified information when necessary.

·      Notable Example: The 2019 prorogation of Parliament was ruled unlawful (Miller v PM [2019]).

5.        The Cabinet

·      Senior ministers (Secretaries of State) from major government departments, chaired by the PM.

·      Exists by convention, not legislation. Ministers are also Privy Counsellors.

·      Purpose: To make collective decisions on policy.

6.        Cabinet Committees

·      Reduce the burden on the full Cabinet by addressing specific areas (e.g., national security).

·      Controlled by the PM, and their decisions hold the same status as full Cabinet decisions.

·      COBR Committee: Handles national emergencies (e.g., terrorism, pandemics).

7.        Collective Ministerial Responsibility (CMR)

-              A convention that binds all government ministers to the decisions of the Cabinet.

·      Three Components:

1.        Confidentiality: Cabinet discussions and papers are kept secret.

-              Case Study: *Attorney-General v Jonathan Cape [1976] – Confidentiality recognized, but not enforceable in court unless under breach of confidence.

2.        Unanimity: Once decisions are made, all ministers must publicly support them.

-              Ministers unable to support must resign (e.g., Michael Heseltine’s resignation in 1986 over the Westland Affair).

-              Other resignations include those over the 2003 Iraq War (Robin Cook, Clare Short) and 2018 Brexit policy (Boris Johnson, Dominic Raab).

3.        Confidence: The government must maintain the confidence of Parliament. If it loses a vote of no confidence, the PM is expected to resign and call for a general election.

-              Last instance: James Callaghan's government in 1979.

8. Summary Points

·      Prime Minister leads government policy-making and implementation.

·      Privy Council ensures royal approval of Cabinet decisions.

·      Cabinet includes Secretaries of State, each leading a government department.

·      Collective Ministerial Responsibility** ensures government ministers present a united front, crucial for maintaining Parliament’s confidence.

·      If a vote of no confidence succeeds, the PM must resign and call a general election.

Individual ministerial responsibility

Overview of Individual Ministerial Responsibility (IMR)

·      IMR is one of the "twin conventions" in the UK constitution alongside Collective Ministerial Responsibility.

·      It traditionally requires ministers to accept responsibility for any errors or failures in their departments, including the moral duty to resign if necessary.

·      IMR remains important in ensuring government accountability, though its strict enforcement has weakened over time.

·      Its role has been increasingly supplemented by the Ministerial Code.

Classic Doctrine of IMR

·      Ministers were historically seen as figureheads answerable to Parliament.

·      In cases of serious department failures, ministers were expected to resign, regardless of personal involvement.

·      Two key uncertainties in this convention:

1.        Political Realities: Ministers often avoid resignation due to short-term political factors.

2.        Modern Government Complexity: Determining fault in larger, more complex governmental structures is harder.

Evolution of IMR

·      Flexibility: IMR has evolved over time, influenced by the changing size and scope of government.

·      Originally based on a sense of honour, its moral obligation has become weaker as government expanded.

·      Crichel Down Affair (1954): The resignation of Sir Thomas Dugdale marked a significant event in IMR's evolution, leading to an inquiry and new guidelines.

Maxwell Fyfe Guidelines (1954)

·      Sir David Maxwell Fyfe, Home Secretary, distinguished between when ministers should and should not resign:

·       Resignation required if:

-              The minister made an explicit order or had personal knowledge of an error.

·       Resignation not required if:

-              A civil servant followed policy but made an operational mistake.

-              A civil servant acted without ministerial approval.

Further Development of IMR

·      IMR shifted towards a policy/operational divide:

-              Policy failures: Ministers are responsible.

-              Operational failures: Ministers often avoid blame by pointing to civil servants.

·      Examples:

-              James Prior (1983): Did not resign after IRA prison escapes, citing operational failings.

-              Michael Howard (1994): Refused to resign after prison escape; blamed the Director of the Prison Service.

Modern IMR: Accountability Over Resignation

·      Ministers are less likely to resign over departmental errors and more likely to focus on accountability and informing Parliament.

·      Scott Report (1996): Emphasized transparency and accountability in government after the 'Arms to Iraq' affair.

·      Ministerial Code reinforces this trend, focusing on openness rather than resignation.

Ministerial Code and Informing Parliament

·      Updated May 2022: The Ministerial Code clarifies ministerial duties:

-              Ministers must account for their department’s actions and provide accurate, truthful information to Parliament.

-              Knowingly misleading Parliament** remains a serious offence requiring resignation, as shown in historical cases like John Profumo (1963).

Summary of IMR's Modern Role

·      IMR is a convention (not legally enforceable) tied to the principle of ministerial responsibility for departmental failings.

·      Its application has weakened, especially regarding the requirement to resign, which is now less common.

·      IMR is now closely linked to the Ministerial Code, with greater emphasis on accountability to Parliament rather than personal sacrifice.

Key Takeaways

·      IMR originated in a system where ministers were held strictly accountable for departmental errors.

·      Over time, the growth of government led to the policy vs. operational distinction, reducing resignation pressures on ministers.

·      The Ministerial Code now supplements IMR, emphasizing accountability, transparency, and the importance of keeping Parliament informed.

Ministerial Code

Background of the Ministerial Code

·      The Ministerial Code is a relatively new tool aimed at enhancing transparency and accountability in government.

·      It evolved from the Questions of Procedure for Ministers, confidential guidance from the 1980s.

·      First made public in 1992 under John Major, the official Ministerial Code was introduced by Tony Blair in 1997.

·      It formalizes previously informal conventions, providing written standards for government conduct.

Principles of the Ministerial Code

·      The Code outlines the Seven Principles of Public Life, established by the Committee on Standards in Public Life in 1994 (also known as the Nolan Principles):

1.        Selflessness

2.        Integrity

3.        Objectivity

4.        Accountability

5.        Openness

6.        Honesty

7.        Leadership

Rules of the Ministerial Code

·      The Ministerial Code functions as soft law, without any legal enforcement. Its interpretation and consequences rest with the Prime Minister.

·      Main areas covered include:

-              Ministerial conduct (excluding performance)

-              Collective responsibility

-              Engagement with Parliament

-              Conflict of interest

-              Use of government resources

Application of the Code

·      Applies fully to Government Ministers, while Parliamentary Private Secretaries and Special Advisers are subject to only certain parts.

Updates to the Ministerial Code

·      It is typically updated when a new Prime Minister takes office.

·      A controversial update in May 2022 under Boris Johnson:

-              Omitted specific reference to the Seven Principles.

-              Introduced lesser sanctions for breaches, such as public apologies or temporary salary reductions.

Collective Responsibility

·      General principle (para 2.1): Ministers can argue freely in private but must present a united front once decisions are made.

·      Privacy of Cabinet discussions must be maintained.

Engagement with Parliament

·      Ministers are accountable to Parliament for their department’s policies and decisions.

·      They must provide accurate information and ensure major policy announcements are first made in Parliament (para 9.1).

Examples of Ministerial Conduct and Code Breaches

1. Esther McVey (2018):

   - Misled Parliament regarding Universal Credit rollout.

   - Apologized but resigned for unrelated reasons.

2. Priti Patel (2017):

   - Held unofficial meetings with Israeli officials.

   - Resigned from Theresa May's government but was later reappointed.

3. Michael Fallon(2017), Gavin Williamson (2022), and Dominic Raab (2023):

   - Resigned due to allegations of inappropriate behaviour, bullying, or abuse of power.

Conflict of Interest

·      Ministers must avoid conflicts between their public duties and private interests (para 7.1).

·      No minister should accept gifts, hospitality, or services that could create obligations.

General Principle on Behaviour

- Ministers should treat others with respect and consideration, and bullying or harassment is not tolerated (para 1.2).

- Enforcement has been inconsistent, with some ministers facing no consequences despite findings of inappropriate behaviour.

Case Study: FDA v The Prime Minister (2021)

·      A legal challenge to Boris Johnson's decision not to require Priti Patel** to resign after a bullying inquiry.

·      The court found that issues of workplace behaviour were justiciable but upheld the Prime Minister's discretion over ministerial conduct.

Ministerial Competence

·      Ministers are responsible for policy implementation, public spending, and accountability to Parliament.

·      Despite the conventions and the Ministerial Code, there is no single objective standard for when a minister should resign.

Summary

·      The Ministerial Code consolidates conventions on ministerial conduct, providing clarity and structure but lacking legal enforceability.

·      It codifies collective ministerial responsibility (CMR) but places more emphasis on ministerial accountability (IMR) to Parliament.

·      Personal and professional conduct standards apply, but enforcement is highly political and depends on the Prime Minister's discretion.

·      Numerous examples exist where ministers have breached the Code and yet remained in office or returned to government roles.

Civil Service

Importance of the Civil Service

·      Supports government: The civil service aids the government in developing and implementing policies while delivering public services.

·      Impartiality: Civil servants must act impartially, serving various political parties equally well.

Functions of the Civil Service (Cabinet Manual, 2011)

·      Policy Development: Supports the government's policies.

·      Public Service Delivery: Ensures effective delivery of public services.

·      Adherence to Values: Operates according to the Civil Service Code and the Constitutional Reform and Governance Act 2010.

Constitutional Principles of the Civil Service

1.        Permanence:

-              Civil service personnel do not change with each new government.

-              Maintains a pool of specialists for ministers to draw upon.

2.        Political Neutrality:

-              Essential for permanence; ensures civil service remains impartial during political changes.

3.        Anonymity:

-              Civil servants are typically not public-facing; accountability lies with the Minister for departmental actions.

Ministerial Code

·      General Principle (5.1): Ministers must uphold the civil service's political impartiality and refrain from asking civil servants to act against the Civil Service Code.

Structure of Government Departments

·      Secretary of State: Senior minister and MP appointed by the Prime Minister.

·      Special Advisers (SPADs): Political appointees.

·      Permanent Secretaries: Senior civil servants who are politically neutral.

·      Senior Responsible Owners (SROs): Accountable for major government projects, politically neutral.

Accounting Officers

·      Role: Typically, the Permanent Secretary; accountable for public spending and departmental actions.

·      Evidence to Parliament: Must provide evidence to Parliamentary Select Committees about departmental expenditure and accountability.

Civil Service Code

Principles:

-              Integrity

-              Honesty

-              Objectivity

-              Impartiality

Political Impartiality Requirement:

-             Civil servants must maintain confidence from current and future ministers.

Accountability to Parliament

·      Parliamentary Select Committees (PSCs):

-              Civil servants are questioned by PSCs as part of the accountability process.

-              Performance in select committees influences career prospects.

-              Civil servants must adhere to the Osmotherly Rules when giving evidence.

Issues of Accountability

·      Broken Convention":

-             Criticism from former Chair of the Public Accounts Committee, Margaret Hodge, regarding the effectiveness of civil servant accountability to ministers and, subsequently, to Parliament. The current structure is seen as less effective than when it was established.

Summary

·      The civil service implements government policies.

·      The Civil Service Code outlines standards for civil servants.

·      Government departments distinguish between political appointees and civil servants.

·      Political neutrality is essential for the civil service's constitutional role.

·      Accountability to Parliament is a crucial aspect of civil service governance.

Parliamentary scrutiny

Overview of Parliamentary Scrutiny

·      Purpose: Parliament scrutinises the government to ensure accountability and transparency.

Types of Parliamentary Committees

1.        Select Committees

-              Long-term membership.

-              Scrutinise government activities and policies.

-              Established under Standing Orders, making them permanent entities.

2.        Legislative Committees(Public Bill Committees)

-              Focus on specific pieces of proposed legislation.

House of Commons Select Committees

·      Focus: Scrutinise government departments.

·      Each department of state has a corresponding select committee.

House of Lords Select Committees

·      Focus: Broader thematic scrutiny, covering six main areas:

-              Europe

-              Science and Technology

-              Economics

-              Communications

-              UK Constitution

-              International Relations

Role of Select Committees

·      Key mechanism for holding the government to account.

·      Composed of MPs, Lords, or both (Joint Committees).

·      They inquire into subjects, gather evidence, and publish reports with findings and recommendations.

Importance of Select Committees

·      Enhance Parliament’s capacity to scrutinise the government beyond the Commons chamber.

·      Cross-party collaboration, including both MPs and Lords.

·      Provide an alternative to debates and parliamentary questions due to time constraints.

Select Committee Membership

·      House of Commons:

-              Chairs elected by fellow MPs.

-              Minimum of 11 members, selected through internal party elections.

-              Membership reflects party-political balance.

·      House of Lords:

-              Chairs appointed on proposal by the Committee of Selection.

-              Membership proposed by Committee of Selection, voted on by the House.

-              No fixed number of members or political balance requirements.

Government Scrutiny

·      Select committee reports can be critical of government policies.

·      The government must respond to each report within 60 days.

Influence of Select Committees

·      Writing reports for the House.

·      Attracting media attention to issues.

·      Encouraging ministerial engagement with topics under scrutiny.

Examples of Select Committees

·      House of Commons:

-              Public Accounts Committee: Scrutinises public spending and accountability.

-              Transport Committee: Examines transport policy and expenditure.

-              Committee on Standards: Oversees the conduct and standards of MPs.

·      House of Lords:

-             Constitution Committee: Examines public bills for constitutional implications.

-             Intergenerational Fairness and Provision Committee: Assesses policy impacts on future generations.

-             Gambling Industry Committee: Looks into the gambling industry's social and economic impacts.

Joint Select Committees (members from both Houses):

·      Joint Committee on Human Rights: Addresses human rights issues.

·      Joint Committee for National Security Strategy: Scrutinises national security decision-making.

·      Joint Committee on Statutory Instruments: Considers statutory instruments made under Acts of Parliament.

·      Joint Committee on Consolidation Bills: Reviews Bills that consolidate existing Acts.

Powers of Select Committees

·      House of Commons: Authorized to summon witnesses and gather evidence (both written and oral).

·      Witnesses who refuse to appear may face consequences, including admonishment by the Speaker.

·      Civil servants, Ministers, MPs, and Lords cannot be summoned in this manner.

Who Gives Evidence to Select Committees?

·      Government ministers and civil servants primarily.

·      Private individuals may be summoned in cases of significant issues (e.g., Mark Zuckerberg's testimony on online disinformation).

Notable Select Committee Appearances

·      David Cameron on welfare reform (Liaison Committee).

·      Sir Jeremy Haywood on 'Plebgate' (Public Administration Committee).

·      Theresa May on Brexit agenda (Liaison Committee).

·      Michael Gove on government’s Brexit plans (Exiting the European Union Committee).

·      Business leaders like Philip Green and Mike Ashley on company practices.

Summary

·      Select committees provide a formal mechanism for scrutinising government action.

·      Composed of MPs and/or Lords from various political parties.

·      Have the authority to summon civil servants and private individuals for questioning.

·      Recent high-profile testimonies have highlighted their role in accountability.