#3122 - Responsible Government And Political Responsibility - GDL Constitutional and Administrative Law

- Introduction:

• [H Barnett]: principles of constitutionalism.

  • legal limits to exercise of power: accountable to law for ultra vires acts.

  • respect for individual + individual’s rights.

  • avoid abuse of power: sufficiently dispersed.

  • government + legislature accountable to electorate.

• [J Alder]: accountability of govt: ‘necessary and basic characteristic of any democracy’.

Background: Structure of Executive

• Central Executive: Prime Minister + Cabinet

- Prime Minister: political head of government – resp. for overall organisation of Executive.

• appointed by Queen: by convention, leader of majority party in Commons.

  • if no majority: incumbent PM has first call on forming govt. (e.g. 1974: Heath resigned after talks to form coalition with Liberals failed, 2010: Brown “caretaker” PM while negotiations ongoing – much more public negotiations.).

• powers: few strictly legal, but many customary/prerogative.

  • ministerial appointments + dismissals: exercised by Queen on PM’s advice.

  • control of Cabinet: size + composition, subject + composition of committees, chooses when meets + agenda PM takes leading role deciding govt. priorities.

• limits to power:

  • collective ministerial responsibility: PM + Cabinet + govt. share responsibility to Commons for conduct of national affairs ‘ no confidence vote’: must resign (e.g. May 1979: Callaghan Labour govt. forced to resign).

- Cabinet: est. by convention: no specific powers in legislation.

• Cabinet Office Draft Cabinet Manual: recent attempt to set out conventions.

• composition: at PM’s discretion, but always inc. Chancellor of Exchequer, Lord Chancellor + secretaries of state – but: financial limits – max. no. of first-tier salaries can be paid.

• powers + duties of ministers:

  • 1. granted by Parliament: (1) powers/duties for exercising continuing functions (esp. financial liabilities for >1yr); (2) emergency powers.

    • many granted to ‘the Secretary of State’: in practice, PM allocates (each usually incorporated as ‘corporation sole’: separate legal personality).

  • 2. common law: Ram doctrine – may exercise any power of the Crown, subject to statute + funding; powers of individual: e.g. contracts, conveyancing, extra-statutory payments.

  • 3. prerogative executive powers: exercised on Sovereign’s behalf by ministers, e.g. foreign affairs, Armed Forces control, mercy.

    • constrained: no new prerogatives + statute: overrules prerogatives.

• court scrutiny: judicial review – 3 grounds for challenge of exercise of ministerial power:

  • 1. no power to act in such a way (inc. on human rights grounds).

  • 2. unreasonableness.

  • 3. procedurally unfair.

• exercise of ministerial power: accountable to Parliament for decisions.

  • Carltona principle: junior ministers + civil servants in dept. may exercise power of minister in charge CoA: constitutionally, treated as decisions of the minister.

  • Deregulation and Contracting Out Act 1994, pt. 2: minister can authorise any person to exercise some ministerial functions (only those that could be exercised by civil servant in dept.)

• ministerial conduct: Ministerial Code – no longer gov. just by convention.

  • ‘Nolan Principles’ – 7 Principles of Public Life: selflessness, integrity, objectivity, accountability, openness, honesty, leadership.

  • restricted for 2 years after office: Advisory Committee on Business Appointments: decisions on appointments/employment; cannot lobby.

• collective responsibility: all ministers bound by collective decisions of Cabinet (unless specifically waived) decision of Cabinet or committee binding on all members of govt.

  • contentious issues require Cabinet committee consideration: e.g. matters affecting >1 dept., or likely to attract public criticism.

  • Cabinet agreement assumed in some cases: e.g. Chancellor of Exchequer’s Budget; quasi-judicial functions of some ministerial posts (e.g. planning permission, mercy); prosecution (but Shawcross exercise: Att-Gen may ask ministers for information to judge public interest of prosecution).

- Civil servants and public officials – 3 constitutional principles:

• permanence: no change with election – permanent specialist pool available to minister + dept.

• political neutrality: higher-grade civil servants cannot engage in national politics able to serve successive ministries from different parties.

• anonymity: minister responsible for actions of department; + necessary for political neutrality.

  • not accountable to public.

- Administrative bodies: inc. central govt. depts.. + local authorities.

Scrutiny of the executive: primarily by House of Commons.

- Parliamentary questions: 40000 tabled each year only 3000 put down for oral answer.

• oral questions: ministers answer at question time (4 times p/w) – timing: many answered in writing.

  • rules: MP can ask 2 primary questions to different depts. (+ supplementary questions: Speaker’s discretion), must table primary questions 2 days before sitting.

  • Prime Minister’s questions: 30 mins each Wednesday.

  • private notice questions: urgent oral questions on matters of public importance or arrangement of parliamentary business take priority: allow issue to be discussed immediately after question time.

    • rules: Speaker’s discretion – notice before 12pm.

  • criticism: test of public speaking, not really forum for criticism.

• questions for written answer: answered in Hansard – tend to be more specifically targeted. allow MP to pursue political case or put pressure of govt. on particular issue – no limit to no. MP can table.

- Debates: force govt. to account for self + defend policies MPs can pressure.

• forms: main business debates (legislation); daily adjournment debates; emergency debates.

• emergency debates: can be v. significant – allow MPs to discuss specific important issue.

  • e.g. 18 Mar 2003: on proposed war in Iraq.

• Early Day Motions: MPs raise matter of general concern or to launch campaign on specific issue (technically call for debate, but rarely lead to one).

• petitions: members of public can raise issues – debate considered after 100,000 supporters.

- Select committees: ‘permanent’ parliamentary committees (1 per department), ~34 in Commons.

• 1979 Select Committee Report: reformed composition etc.

• powers: gather written + oral evidence (‘send for persons and papers’).

  • but: cannot compel attendance (inc. ministers, although generally govt. will cooperate).

  • reports not binding: but govt. should respond within 60 days.

  • political pressure: raise media attention + influence public opinion.

• composition: cross-party, but reflect proportions of control in House.

  • pre-2010: MPs nominated by Committee of Selection (senior MPs nominated by whips).

    • criticism: committees skewed towards majority party.

  • 2010: (on recommendation of Select Committee on Reform of the House of Commons, following expenses scandal) chairs elected by House, members elected within parties – party balance: reflects proportion of seats in House.

• Liaison Committee: chairs of all select committees – allocates reports for debate to the House + considers matters affecting committees generally.

• pre-legislative scrutiny: recently many draft bills considered by select committees of both Houses testing govt. policy + scrutiny of executive.

  • e.g. Joint Committee on Human Rights: reports on compatibility with Convention rights.

• how effective are select committees?

  • dep. partly on composition: MPs not trying to boost profile (usually older) less deferential.

• recent issues:

  • ex-borders chief Brodie Clark: argument over whether Home Sec. authorised relaxation of border checks (Commons Home Affairs Committee 15/11/11).

  • James Murdoch: called ‘mafia boss’ by Tom Watson MP (Commons Culture, Media and Sports Committee 10/11/11).

- Standing Committees: temporary – examine specific bill at committee stage.

- The Courts: limited role in holding executive to account.

• R (on app. of A & Others) v SoS for Home Dept. [2004].

• BUT: political matters left to Parliament.

Collective Ministerial Responsibility

• doctrine: all ministers + parliamentary private secretaries must accept Cabinet decisions.

  • [R Brazier]: if a minister does not resign over an issue of policy or procedure he will be collectively responsible for it – 3 elements: confidence, unanimity, confidentiality.

• no public dissent while in office: must resign to dissent publicly.

- Confidence: government must present united front to retain confidence of Commons.

• rationale: govt. accountable to Commons (+through them: electorate).

• no-confidence motion: Commons can force govt. to resign – [Loveland]: stresses that executive accountable to Commons.

  • in practice v. unlikely: requires backbench revolt.

  • e.g.: 1979: James Callaghan voted out; Tony Blair: challenged (but no votes) on 90 days detention + cash for peerages scandal.

• [Michael Howard]: ‘in office but not in power’ if confidence lost.

- Unanimity: once decision made, all ministers should publicly agree or resign.

• [Loveland]: ministers can argue freely in private, but maintain united front in public.

• resignations:

  • 1986: Michael Heseltine resigned over Westland Affair – decision to buy US helicopters.

  • 1989: Nigel Lawson resigned over ERM.

  • 2003 over Iraq war: John Denham (Minister for Police and Crime Reduction); Robin Cook (Leader of the House), Clare Short (International Development Secretary).

• doctrine inflexible – BUT: can been mitigated:

  • ‘unattributable leaking’: ministers circumvent doctrine – perhaps necessary to preserve.

  • temporary suspension by PM: open debate allowed within specified terms – e.g. 1975: referendum on EC membership;...