The Executive Uk Government - Constitutional Law

UK Government

[Parl check & balance on the Exec]

1. Ministerial accountability

   1. What is it

      1. The ‘Whig’ view – Ministers should be responsible to P, because HoC is a democratic and representative institution (E&T)

         1. P is in the driving seat here – this is the public face of ministerial responsibility

            1. **Lord Morrison – a fundamental of our government that some Minister of the Crown is responsible to P, and through P to the public, for every act of the executive

         2. However, detached from reality –

            1. Barendt lamented it is now rare for HoC to hold an individual minister to account

            2. Jowell & Oliver noted that the domination of party of government serves to suppress any sense of a strong HoC function in holding government to account

            3. E&T – government’s attitude is that it and it alone should govern

      2. The ‘Peelite’ view – ministerial responsibility emphasizes that Ministers – rather than parliament, are responsible for governing. Government decisions need not mirror the wishes of P, but rather ministerial responsibility means that Ministers make their own decisions, that they have to explain and defend before P (E&T)

         1. Here, the executive is in the dominant position as the initiative taker – ministerial responsibility is not P’s sword, but a Minister’s shield – intended to preserve executive power

         2. Accords with reality – has a strong undercurrent in governing attitudes

   2. Types of accountability

      1. In addition to explanatory accountability, amendatory or remedial accountability – the obligation to answer for whatever has been revealed of error or misgovernment, and correct or make reparation for it (Mulgan)

         1. A fully responsible government is responsive, submitting to constitutional controls, and is subject to accountability in both explanatory and amendatory forms

         2. In description of UK constitutional system of responsible government, what is primarily meant is that government is responsible to Parliament

      2. Sir Robin Butler – “Accountability” is to mean that the Minister must answer questions and give an account to Parliament without the blame element, but “responsibility” is to accept personal criticism

         1. Hence, Scott – obligation of ministers to give information about activities of their department and give information and explanations for the actions and omissions of their civil servants lie at the heart of ministerial accountability

            1. Performance by P of its functions of controlling the executive and holding it accountability depends on getting from ministers the relevant facts and explanation

   3. Recent developments

      1. Traditional view that a minister is bound to resign in atonement for departmental misconduct does not take into account the great increase in work of government departments, making it impossible for ministers to supervise directly or even know about the bulk of their departments’ everyday business

         1. Hence, this convention is starting to fade out of practice – shift away from remedial to explanatory responsibility due to the size of government

   4. Ministerial Code

      1. Created in 1997, and had been updated regularly since

      2. Codification of a constitutional convention – most important of which being Ministerial Responsibility

      3. “Ministers have a duty to P to account, and be held to account, for the policies, decisions and actions of their departments and agencies”

   5. Exceptions

      1. Scott report has shown that the government has failed lamentably in its observance of the obligation to give information in pursuing its policies on defence sales to Iran & Iraq between 1984 to 1990

         1. Arguably justifiable given the sensitive nature of the matter

         2. But yet particularly dangerous that the government can make momentous decisions without being subjected to scrutiny

   6. Possible reforms (Scott 1996)

      1. Acceptance by government of the obligation of ministers to be more forthcoming – in exceptional cases, the specific reason should be given, and Parliament should not be content with a vague description of ‘public interest’

         1. Appointment of a senior officer to inquire into the adequacy of refusals

      2. Select committees could be more assertive in enforcement of the provision of relevant information

      3. **Obligation of ministers to provide information to Parliament may be reduced to statutory form – that way, Parliament and its machinery would not have the final responsibility of enforcing the obligations

         1. Recognition of the cabinet’s domination of parliament through whips

2. Shadow cabinet

   1. What is it

      1. A senior group of senior members who, under the leadership of LO, form an alternative cabinet to that of the government, and whose members mirror the positions of each individual member of the Cabinet

      2. It is the Shadow Cabinet's responsibility to scrutinize the policies and actions of the government, as well to offer an alternative program

      3. Main scrutinizing function occurs during parliamentary debates

3. House of Commons Select Committees

   1. What is it

      1. There is a Commons Select Committee for each government department, examining three aspects: spending, policies and administration

      2. Findings are reported to the Commons, printed, and published on the Parliament website. The government then usually has 60 days to reply to the committee's recommendations

      3. Recommendations and criticisms given great political weight, and requirement of government to respond adds

   2. Problems

      1. By constitutional convention, Queen invites the party winning the most seats to form the government – normally the majority in FPTP political system – hence the executive often has a majority in HoC

         1. Select Committees Chairs elected by MPs – which in this case is going to belong to the same party

         2. Members of select committee mirror composition of HoC – again dominated by the cabinet’s political party

[Prerogative powers]

1. Starting point

   1. Dicey – every act which the executive government can lawfully do without the authority of an AoP is done in virtue of the prerogative

      1. Appears to include ordinary legal...