Q&A Public Law Chapter 3: Prime Minister and Cabinet Question 1

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Clements: Q&A Public Law

Chapter 3: Prime Minister and Cabinet

Question 1:

What is meant by the convention of ministerial responsibility? How has it been affected by recent developments in Parliament and government?

This looks very similar to the existing question 3 in the book: “How does the convention of ministerial responsibility operate in relation to departmental error? How has this been affected by recent developments in Parliament and government?” That question wants you to focus on a minister’s responsibility for what his or her department does. These were the issues discussed in the classic ‘Chrichel Down affair’. What is a minister supposed to do about civil servants’ mistakes of which they are unaware? In what circumstances is a minister expected to resign for something they themselves did not do? Plenty of examples can be found in a study of political history or by following current affairs.

The newer question allows the student to cover the above issues, but also to include other aspects of ministerial responsibility. Ministers are responsible for their own conduct. The Ministerial Code contains strict rules about ministers’ and their financial interests. There are plenty of examples of ministers being forced to resign because of their financial misconduct and from this material an essay can be developed trying to identify the precise nature of the underlying conventions. Although it is not mentioned in the Ministerial Code, sexual misconduct is also a frequent factor in ministerial resignations. Changing ideas of what is permitted and what is not permitted can be explored in your answer.

Question 2:

Lemon is an MP and, as Secretary of State for the Family, he is a member of the Cabinet. His conduct has been criticised in the media and MPs, including members of his own party, have passed on their concerns to the Prime Minister. Lemon has refused to implement policies agreed by the Cabinet, failed to turn up for meetings with his civil servants, used his ministerial position to find a job for his son and paid for sex with a prostitute. When questioned about this by the PM and MPs, he has denied all the accusations.

Advise the Prime Minister.

The advice to the PM is easy, ask Lemon to resign, but your answer should explain why by going through the conventions that he has broken.

The first would be the convention of collective responsibility, which is clearly explained in the Ministerial Code. Lemon has the right to attend Cabinet meetings and express his point of view, but once the decision is taken, he is expected to abide by it.

If a minister turns out to be incompetent administratively, this is generally dealt with quietly by the PM. The offending minister would be moved to an easier job or returned to the backbenches at the next Cabinet reshuffle.

It is clear that minsters must separate their personal business interests from their public duty. They should not use their official position to help their family. Ministers who have done so, have been heavily criticised and often forced to resign. The Maudling/Poulson affair of the early seventies is a good example of an extreme abuse of ministerial office.

Personal behaviour of a sexual nature is problematic, because our society has become more open minded. Profumo had to resign for an extra marital relationship in 1962, but John Whittingdale did not have to resign because of a relationship with a dominatrix in 2016.

Telling the truth to Parliament is very important as highlighted by the Scott Inquiry of 1996 into the sale of arms to Iraq. Parliament requires resignation if an MP is caught lying and so would the PM, as shown by the Profumo affair.

When deciding whether to ask for a Minister’s resignation, the PM has to take public opinion into account and the view of MPs, particularly his own party, but Lemon’s behaviour has been so bad he is likely to have little support and can safely be asked to resign.

Question 3:

Critically assess the powers of the Prime Minister to govern the country.

This question has some similarities with question 1 in the book: “To what extent is it true to say that the UK has moved for a system of Cabinet government to a system of Prime Ministerial government?” The difference is that the new question requires more attention to be paid to the Prime Minister and less to the Cabinet.

The office of Prime Minister is interesting as it is not legally defined, but instead has been created by convention. The Queen has the legal power to govern the country, known as the royal prerogative, but over the years the practice has grown up whereby the PM is the person who actually uses these powers. Legally the Queen chooses her PM, but in reality the PM is the person who can command a majority in the House of Commons. Usually a new PM is the winner of a General Election, but the PM can change without that, if the majority political party selects a new leader. This was seen in the aftermath of a European Union Referendum in 2016, when the PM, David Cameron resigned and was replaced by Theresa May.

The PM chooses who is to be a government minister and also who are to be the most senior of them and be members of the Cabinet. Ministers can also be removed from office and replaced by the PM. She also has the power to restructure the government by creating new government departments and removing old ones. The new PM, Teresa May, did all of these things in July 2016.

The PM decides how often the Cabinet meets, what they talk about and sums up what has been decided. She also creates a network of Cabinet committees, according to her priorities. Ms May, quite understandably, has set up a new Cabinet committee on leaving the European Union, which she is to chair.

The Queen has a whole range of prerogative powers, such as the conduct of foreign affairs, defence and national security, the grant of honours and appointments to numerous government bodies. The PM exercise these on behalf of the Queen, which give the PM enormous power. Because of the workload involved, the PM has to delegate many of these powers to her ministers and politically would need to gain

the permission of Parliament for important decisions, such as going to war or triggering the Article 50 procedure to leave the EU.

How powerful a PM is depends upon their personality, popularity in the country and the size of their parliamentary majority. A good answer might compare a few Prime Ministers, The dominant Thatcher and Blair, with the less effective John Major, Gordon Brown and David Cameron.

Question 4:

How does the convention of collective responsibility operate?

Discuss, giving examples.

The idea behind this convention is that government ministers must appear united. No one should publicly dissent from agreed government policy. This convention applies to all government ministers, but is strongest for the twenty or so who are in the Cabinet.

Policy decisions can be taken at Cabinet meetings, where the minister is entitled to express their point of view, but decisions are often taken by the large number of committees and sub-committees that the Cabinet has and just ratified by the full Cabinet. Most Prime Ministers also take decisions personally or with a small group of advisers, who may or may not be ministers. Wherever the decision is made, ministers are expected to abide by it. It is important for the government to appear united to the public, so that the public has confidence in it.

So that matters can be discussed freely and in private all of these government decisions are confidential. This is enforced by convention, not the law, as shown in Attorney –General v Jonathan Cape [1976] QB 752. Misbehaving ministers may be disciplined, demoted or removed by the Prime Minister or incur the distrust of their colleagues, damaging their career, as seen in 2016, with the Secretary of State for Justice, Michael Gove.

The principle lying behind this convention is that the government only remains the government, if it maintains the confidence of Parliament i.e. its majority. Prime Ministers resign when they lose the support of their party e.g. Thatcher in 1990 and Blair in 2007. Whole governments resign if they lose a vote of confidence and a General Election has to be called, although this is rare, the last example being the Labour government of 1979.

Collective responsibility is only a convention, not a constitutional law, so it is flexible and can be adapted to suit different circumstances. Its strictness was reduced when the government was a coalition between two political parties, the Conservatives and

the Liberal Democrats between 2010 and 2015 and when there was a National Government in 1932. It was removed by the PM altogether in the two European Union referendums of 1975 and 2016.

Question 5:

How is the convention of cabinet confidentiality enforced?

Discuss.

Cabinet ministers are supposed not to reveal government discussions, particularly those in Cabinet to the media and public. They may argue and dissent, but only in private. The courts cannot enforce this convention, because it is not law, as shown in Attorney –General v Jonathan Cape [1976] QB 752.

Instead the convention is enforced by the Prime Minister, colleagues and a general feeling that it is the wrong thing to do and may damage the government or the “leaking” minister’s own career.

Cabinet minutes are eventually released under the Public Records Acts 1958 and 1967, but only after a period of thirty years and even then the release of some records is delayed, sometimes indefinitely.

The Freedom of Information Act 2000 has somewhat changed this picture, where members of the public can request government documents. Although the Act seems somewhat restrictive on the release of communications between ministers and between ministers and civil servants, the courts have refused to uphold a blanket ban on any category of information. Cabinet minutes, on the decision to invade Iraq, were ordered to be released in Cabinet Office v Information Commissioner EA/2008/0024 and EA/2008/0029. Under section 53 of the Freedom of Information Act 2000, Parliament may vote to prevent release, as they did in this case. However, when Parliament tried to do the same thing, after the Information Tribunal ordered the publication of letters written by Prince Charles to ministers, the Supreme Court overruled the government, by saying that they had no rational reason for disagreeing with the decision of the Information Tribunal: R (Evans) v Attorney-General [2015] UKSC 21.

There has been much public concern about excessive secrecy in government decision making and perhaps the telling of untruths. As a result, there have been several major inquiries into the background to some controversial decisions, which

have revealed much about the inner workings of government. The Butler Review of Intelligence on Weapons of Mass Destruction 2004 and the Chilcott Inquiry into the decisions that lead up to the invasion of Irag and the conduct of that war, have revealed much about Tony Blair’s style of government. The earlier Scott Report on the Export of Weapons to Iraq in 1996, did the same for the Margaret Thatcher government.