. 106
( 155 .)


Some of the exemptions are expressed as being absolute, so that the duty to
disclose (or to con¬rm or deny that the information exists) can have no appli-
cation: these include, for instance, the exemptions for court records relating to
particular proceedings, information provided in con¬dence and information
562 British Government and the Constitution

supplied by or relating to the security and intelligence services. Most of the
exemptions are not absolute and in these cases the public authority must
disclose the information unless ˜in all the circumstances of the case, the public
interest in maintaining the exemption outweighs the public interest in disclos-
ing the information™. (See section 2.) This applies, for instance, to the exemp-
tion for information relating to the formulation or development of government
policy, and in this case it is further provided (s 35(4)) that ˜regard shall be had
to the particular public interest in the disclosure of factual information which
has been used, or is intended to be used, to provide an informed background to
decision-taking™. The e¬ect is that material such as internal reports, the evalu-
ation of policy options and inter-departmental communications in the course
of formulating policy are protected from disclosure, subject to the balancing
test, while factual and background information used in the policy-making
process is not only subject to balancing but (in the words of a government
minister) is given ˜a strong steer towards disclosure™ (Lord Falconer of
Thoroton, HL Deb vol 612, col 827, 20 April 2000).
The expression ˜public interest™ in section 2 is not de¬ned. How is it to be
understood? Is it in the public interest that the government or public authority
should not be exposed to embarrassment or mistrust or ill-informed criticism?
If a public authority refuses to disclose the information requested, it must
give reasons for doing so. An applicant who complains of a refusal to disclose
information (or to con¬rm or deny its existence) must ¬rst seek internal review
by the public authority concerned in accordance with its complaints procedure.
If not satis¬ed with the result the complainant may bring the matter before the
Information Commissioner, as explained below.
The Act confers supervisory and enforcement powers on the independent
Information Commissioner, whose o¬ce subsumes that of the Data Protection
Commissioner appointed under the Data Protection Act 1998. The Commi-
ssioner has responsibility for the administration of both Acts; he or she is to
promote good practice by public authorities and their observance of the statu-
tory requirements, and gives guidance to individuals and organisations about
their rights and obligations under the law. A complainant against a refusal to
disclose information (or to con¬rm or deny) may apply to the Information
Commissioner for a decision whether the public authority has complied with
the requirements of the Act. Unless the Commissioner makes no decision on the
application (giving reasons for not doing so), he or she noti¬es the complainant
and the public authority of the decision reached in a formal ˜decision notice™. If
the Commissioner has found that the authority is in breach of its obligation to
make disclosure “ whether in having wrongly concluded that the information
sought was exempt from disclosure, or that (in the case of a ˜contents™ exemp-
tion) disclosure would cause prejudice, or that (in the case of any non-absolute
exemption) the public interest in disclosing the information was outweighed by
the public interest in maintaining the exemption “ the Commissioner can over-
rule the authority™s decision and specify in the decision notice the steps it must
take to comply with the Act. Either the complainant or the public authority may
563 Parties, groups and the people

appeal to the Information Tribunal against a decision notice, and either party
may appeal against the decision of the Tribunal to the High Court on a point of
law. (The Tribunal also hears appeals against notices issued under the Data
Protection Act 1998 and the Environmental Information Regulations 2004.)
Some decisions of the Information Commissioner can be overridden by exec-
utive order under section 53 of the Act. This ˜executive override™ applies to a
decision of the Commissioner that a public authority must disclose informa-
tion on the ground that the public interest in disclosure prevails over the public
interest in maintaining the exemption. A Cabinet minister or the Attorney
General may in this case only give the Commissioner a certi¬cate that ˜he has on
reasonable grounds formed the opinion™ that the authority was not in breach of
its obligation to make disclosure. Reasons for the opinion must be given. A copy
of the certi¬cate must be laid before each House of Parliament, and the
Government has given assurances that any decision to issue an overriding
certi¬cate will be considered by ministers collectively. (See HL Deb vol 618, cols
441“3, 25 October 2000.) The issue of an overriding certi¬cate is in principle
open to judicial review.
The Commissioner may investigate a public authority™s compliance with the
Act on his or her own initiative and issue an ˜enforcement notice™ if the author-
ity is found to be in breach of its obligations. The authority may appeal to the
Tribunal against such a notice and it is subject to the executive override on the
question of public interest (as above).
As well as providing a right to information for individual applicants, the Act
requires public authorities to adopt and publish schemes for the publication of
information as a matter of course. A publication scheme must specify the classes
of information which the authority intends to publish, the manner of publica-
tion and whether fees are payable. In adopting (or reviewing) a scheme, an
authority is to have particular regard to the public interest in allowing public
access to information that it holds as well as the public interest in the publica-
tion of reasons for decisions made by it. It was envisaged that publication
schemes would ˜encourage public authorities to release information automati-
cally and to make disclosure a natural part of their working routine™ (Annual
Report of the Information Commissioner, HC 2 of 2000“01, p 17). Schemes have
to be approved by the Information Commissioner.
Despite its limitations, the Freedom of Information Act has provided a
modest reinforcement of governmental accountability and a worthwhile exten-
sion of the rights of the individual. The Select Committee on Constitutional
A¬airs said in its Seventh Report (HC 991 of 2005“06, para 13):

It is clear to us that the implementation of the FOI Act has already brought about significant
and new releases of information and that this information is being used in a constructive and
positive way by a range of different individuals and organisations. We have seen many exam-
ples of the benefits resulting from this legislation and are impressed with the efforts made
by public authorities to meet the demands of the Act. This is a significant success.
564 British Government and the Constitution

On the other hand it was noted that compliance had been variable and that
delay was a particular problem, both in responses by public authorities to
requests for information and in the investigation of complaints by the O¬ce
of the Information Commissioner. Some uncertainty prevails about the scope
of the exemptions under the Act. The workload for authorities and the
Information Commissioner has been considerable, with well over 100,000
requests for information in 2005 (about 38,000 to government departments,
70,000 to local authorities and 21,000 to the police service), while 2,385 cases
reached the O¬ce of the Information Commissioner in that year. The report of
an independent Review of Government Communications (the Phillis Report
(2004)) urged that a liberal approach should be taken in the administration of
the Act, to overcome the reservations of those in the public service who ˜look
on the Act as an administrative burden and a source of potential embarrass-
ment, rather than an important foundation of a healthier political system™.
Section 75 of the Freedom of Information Act empowers the Secretary of
State to make orders repealing or amending prohibitions of the release of infor-
mation contained in other enactments. A series of orders has been made under
this provision; in addition the Enterprise Act 2002 repealed or amended a large
number of prohibitions and provided a distinct access regime for consumer
information. A separate access regime for information about environmental
matters was established by the Environmental Information Regulations 2004,
SI 2004/3391, implementing a European Union Directive.
Access to information is a matter devolved to the Scottish Parliament, which
has enacted the Freedom of Information (Scotland) Act 2002, broadly similar
to (but in some respects less restrictive than) the UK statute.
It has yet to be seen whether the legislation on freedom of information will
bring about an invigorating ˜culture of openness™ in British government.
A marked scepticism as to the objectives and e¬ectiveness of the Freedom of
Information Act is expressed by Rodney Austin, ˜The Freedom of Information
Act 2000: a sheep in wolf ™s clothing?™, in J Jowell and D Oliver (eds), The
Changing Constitution (5th edn 2004).
(See generally P Birkinshaw, Government and Information: the Law relating to
Access, Disclosure and their Regulation (3rd edn 2005); J Wadham and J Gri¬ths,
Blackstone™s Guide to the Freedom of Information Act (2nd edn 2005).)

Parliament and the responsibility
of government

1 Introduction: responsible government
2 Individual ministerial responsibility
(a) A convention of resignation?
(b) Responsibility of civil servants
3 The power of Parliament
(a) Opposition
(b) Backbenchers
(c) The House
4 Control and scrutiny
(a) Policy and administration
(b) Legislation
(c) Finance
5 The House of Lords
(a) Reform

1 Introduction: responsible government
Our constitutional system is one of ˜responsible government™. The idea of
political (or constitutional) responsibility is wide enough to include a number
of values (no fewer than twelve are identi¬ed by Gilbert, ˜The framework of
administrative responsibility™ (1959) 21 The Journal of Politics 373), but in the
present context two are of particular importance. The ¬rst is indicated by AH
Birch, Representative and Responsible Government (1964), pp 17“18, in saying
that ˜the term “responsible” is commonly used to describe a system of gov-
ernment in which the administration is responsive to public demands and
movements of public opinion™. The responsibility of government in this sense
implies that it is responsive to (takes heed of, defers to) demands, pressure or
in¬‚uence exerted by the public, or on its behalf by institutions or organisa-
tions that have an acknowledged place in the constitutional system. We may
take the correlative of ˜responsiveness™ to be ˜control™, so that a responsive
566 British Government and the Constitution

government is one that submits to control by the public or by representative
bodies. ˜Control™ is a central concept of constitutional thought and practice,
and it needs some elucidation.
A dictionary de¬nition of control gives as synonyms ˜command™, ˜restraint™
and ˜a check™, and it is evident that the word may be used in strong or
weak senses. Even mere in¬‚uence can be thought of as a relative power,
or control in a weak sense, so that control extends in a series from a power of
direction at one extreme to inducement or in¬‚uence at the other. It is helpful
for our purposes to retain the full range of meaning. If control were to be
restricted to the power of directing the actions of subordinates, the usefulness
of this term in describing the working of the constitution would be very limited,
and in practice it is not so restricted. The weaker forms of control are of great
importance in our system of government. Carl Friedrich has written that, apart
from power, ˜in¬‚uence is probably the most important basic concept of politi-
cal science™ (Constitutional Government and Politics (1937), pp 16“17). Control
in whatever degree is exercised a priori, before the relevant action or decision is
taken. (For a useful analysis of the nature and forms of control, see Dunsire,
˜Control over government™ (1984) 26 Malaya Law Review 79.)
The second concept embodied in the idea of political responsibility is that of
accountability (or ˜responsibility™ in a narrow sense). Accountability implies
obligations: in the ¬rst place, an obligation to give account “ to answer, disclose,
explain or justify “ which may be called ˜explanatory accountability™. Next to it
is ˜amendatory™ or ˜remedial™ accountability, the obligation to account for action
or inaction “ to ˜answer for™ whatever has been revealed of error or misgovern-
ment, and correct or make due reparation for it. It is this sense of accountabil-
ity that is meant in phrases such as ˜held accountable for™, with its connotations
of blame and penalty. Amendatory accountability is evidently retrospective or
a posteriori. (See Mulgan, ˜ “Accountability”: an ever-expanding concept?™
(2000) 78 Pub Adm 555.)
Like control, accountability (of either kind) may be strong or weak. There
may be a strict legal liability to account, or an obligation founded on estab-
lished convention, or a merely voluntary “ and perhaps limited “ acceptance
of the demands of accountability. Accountability complements control.
A fully responsible government is responsive, submitting to constitutional
controls, and is subject to accountability in both the explanatory and the
amendatory forms. In an ideal system the machinery of control prescribes or
indicates limits, guidelines or policies for government; explanatory account-
ability provides a ¬‚ow of information before, during and after the exercise
of control; and amendatory accountability enables blame to be attached to
government for failure of policy or abuse of power, and redress or amendment
to be exacted.
As we consider the various institutions and structures through which politi-
cal control and accountability are made e¬ective against the government, we
need to be aware that these organisations are themselves possessors of power
567 Parliament and the responsibility of government

and may have their own interests and objectives. As MJC Vile observes
(Constitutionalism and the Separation of Powers (1967), p 333):

There have grown up new and powerful means of controlling government, but like the earlier
mechanisms of control they are not neutral instruments, but organisations which must them-
selves be subject to control. Indeed, there can never be a ˜neutral™ control system, for we
must never lose sight of the fact that these ˜controls™ are not pieces of machinery in the
mechanical sense. The mechanical analogy is a dangerous one. They are all, without excep-
tion, patterns of behaviour, they are all procedures operated by human beings, and they can
never be neutral.

We should also be aware that control and accountability function as restraints
upon government and make demands on public resources. These must be
accepted in a system of responsible government and indeed such restraints can
contribute to the rationality (prudence, consistency and competence) of gov-
ernment. But there is a balance to be struck between their claims and the need
for governmental e¬ectiveness, because after all, as LJ Sharpe tells us (in JAG
Gri¬th (ed), From Policy to Administration (1976), p 132):

government in a democracy must possess the capacity to govern; that is to say, it must have
that functional effectiveness that makes a reality [of] the choice between alternative poli-
cies that democracy claims to offer the electorate.

In the description of the British constitutional system as one of responsible
government, what is primarily meant is that the government is responsible to
Parliament, and more precisely to the House of Commons. In other words ours
is a system of parliamentary government in which the government™s authority
depends upon its having the con¬dence of the elected House. (As we saw in
chapter 4, this model also applies, albeit with a number of variations, to the
devolved institutions in Scotland, Wales and Northern Ireland.) The aspect of
responsibility which is emphasised in this description is the liability of the gov-
ernment to be dismissed by a vote of the Commons (subject to an appeal to the
electorate). Dorothy Pickles has written (Democracy (1970), p 148): ˜The essen-
tial requirement in a parliamentary democracy is that Parliament shall retain
the power to dismiss Governments.™ In practice such dismissals have been a
rarity in Britain. Governments were defeated on votes of con¬dence only three
times in the twentieth century “ in 1924 (twice) and 1979 “ but the requirement
that the government must retain the con¬dence of the House of Commons is
still a fundamental principle of the constitution. In the last resort it is sustained
by the government™s dependence on the House of Commons for ˜supply™
(¬nance) and the passing of legislation.
In practice the power of Parliament to dismiss the government is a contingent
power, which can be asserted only in circumstances of minority government or
breakdown of party solidarity. In normal circumstances, as John Mackintosh
568 British Government and the Constitution


. 106
( 155 .)