<<

. 107
( 155 .)



>>



says, ˜the House of Commons is enmeshed with and supports the government of
the day™ (J Mackintosh (ed), People and Parliament (1978), p 210). It is, indeed, a
paradoxical feature of the modern constitution that for the control and account-
ability of government we rely mainly upon an elected House in which a majority
see it as their principal function to maintain the government in power. But the
ultimate, collective responsibility of the government to Parliament is not without
meaning. The need to retain the con¬dence of the House imposes restraints. It
compels governments to explain, justify, bargain and concede.


John Stuart Mill, Considerations on Representative
Government (1861), p 104
Instead of the function of governing, for which it is radically unfit, the proper office of a rep-
resentative assembly is to watch and control the government: to throw the light of public-
ity on its acts; to compel a full exposition and justification of all of them which any one
considers questionable; to censure them if found condemnable, and, if the men who
compose the government abuse their trust, or fulfil it in a manner which conflicts with the
deliberate sense of the nation, to expel them from office, and either expressly or virtually
appoint their successors.

It was not true when Mill was writing, but over the course of the twentieth
century it became the case that, ordinarily, a government with an absolute
majority in the House of Commons can rely on party cohesion and discipline
to assure it of the con¬dence of the House. Defeats in the House, even on impor-
tant issues, are not considered to require resignation or a dissolution, unless the
House has been expressly invited to treat the issue as one of con¬dence in the
government. (The classic statement of parliamentary government in the era of
John Stuart Mill remains W Bagehot, The English Constitution (1867).)
In the Parliament of March-September 1974 a minority Labour Government
faced a House of Commons in which supporters of opposition parties out-
numbered Labour MPs by over thirty. The Prime Minister explained the
Government™s position to the House.


House of Commons, HC Deb vol 870, cols 70“1, 12 March 1974

The Prime Minister (Mr Harold Wilson): . . . The Government intend to treat with suit-
able respect, but not with exaggerated respect, the results of any snap vote or any snap
Division . . .
In case of a Government defeat, either in such circumstances or in a more clear expres-
sion of opinion, the Government will consider their position and make a definitive statement
after due consideration. But the Government will not be forced to go to the country except
in a situation in which every hon. Member in the House was voting knowing the full
consequences of his vote.
569 Parliament and the responsibility of government


. . . I am saying that if there were to be anything put to the House which could have those
consequences, every hon. Member would have it explained to him in the House by the
Government before he voted.

(A similar statement was made by Ramsay Macdonald as head of a minority
government in 1924: see I Jennings, Cabinet Government (3rd edn 1959), p 494.)
A Prime Minister may announce that an issue will be treated as one of
con¬dence with the object of overcoming dissidence in the ranks of his or her
parliamentary party by the threat of a general election. Mr Major as Prime
Minister resorted to this expedient on several occasions in relation to policy on
the European Union, as in November 1992 on a motion to proceed with the
European Communities (Amendment) Bill, and again in the following year in
moving ˜that this House has con¬dence in the policy of Her Majesty™s
Government on the adoption of the Protocol on Social Policy™ (HC Deb vol 229,
col 625, 23 July 1993: see also col 627). Rebels on the Conservative back benches
were once more coerced during the passage of the European Communities
(Finance) Bill, the Prime Minister saying that the passage of the bill ˜in all
its essentials is inescapably a matter of con¬dence™ (HC Deb vol 250, col 30,
16 November 1994).
Defeats in the House of Commons do not ordinarily put the government in
jeopardy. The 1974 Labour Government su¬ered seventeen defeats in the House
of Commons in that year. In the 1974“79 Parliament, the Labour Government “
again without an overall majority from 1976 “ su¬ered forty-two defeats before
being obliged to appeal to the electorate. (See P Norton, Dissension in the House
of Commons 1974“1979 (1980), p 441.)

Philip Norton, ˜The House of Commons and the Constitution:
the Challenges of the 1970s™ (1981) 34 Parliamentary Affairs 253,
254“5, 266“7

As a result of the political developments of the nineteenth century, the House of Commons
became the dominant element of the triumvirate of the Queen-in-Parliament, but these very
developments (the introduction of near-universal male suffrage and the resulting party gov-
ernment) served to move the House from an important position in the decision-making
process to a somewhat ambivalent one related to, yet not part of, the main decision-making
machinery. The outputs of the Queen-in-Parliament continued to be legally omnipotent as
a result of the judicially self-imposed if not universally revered doctrine of ˜parliamentary
sovereignty™, but those outputs were the results of decisions taken elsewhere. To adapt the
House of Commons to the changed political circumstances, and especially to the new rela-
tionship between it and the government, its functions were variously redefined. These func-
tions find no delineation in one formal, binding document. There does appear, though, to be
some general if at times tenuous agreement on the main functions of the post-1867 House
[following the extension of voting rights by the Representation of the People Act 1867]: To
570 British Government and the Constitution


provide, by convention, the personnel of government (a function shared with the Lords); to
constitute a ˜representative™ assembly, members being returned to defend and pursue the
interest of their constituents and de facto of wider interests (which may be categorised as
the specific and general functions of representation); in pursuance of the representative
function, to legitimise the actions and the legislative measures advanced by Her Majesty™s
government, and prior to giving legitimisation to subject the government and its measures
to a process of scrutiny and influence. The House fulfils a number of other functions, includ-
ing a minor shared legislative role, but the foregoing constitute the most important.
In fulfilling the function of scrutiny and influence, MPs found themselves faced with a
serious limitation. To be effective, scrutiny rested primarily on the existence of the House™s
sanction of defeating the government in the division lobbies “ its ability to deny legitimisa-
tion to a measure or part of it “ but the MPs in the government party proved unwilling to
utilise this power. Much of this refusal was for political reasons: members of the governing
party wanted to support the government and normally approved of its measures. On those
occasions when they were inclined to vote with the opposition, they were restrained from
doing so by what they perceived to be a constitutional convention: that a government defeat
in the division lobbies would necessitate the government either resigning or requesting a
dissolution. As Arthur Balfour commented in 1905, it appeared to be assumed in various parts
of the House ˜that the accepted constitutional principle is that, when a government suffers
defeat, either in supply or on any other subject, the proper course for His Majesty™s respon-
sible advisers is either to ask His Majesty to relieve them of their office or to ask His Majesty
to dissolve parliament™. This view remained current until at least the 1970s . . . A conse-
quence was cohesion in the division lobbies. Sustenance of the government in office was
equated with sustaining the government in every division. The greater the degree of cohe-
sion (or at least the fewer the defeats), the more this appeared to be borne out in practice.
The result was an apparent paradox. On the one hand, the power of the House to ensure
effective scrutiny and influence of government, to determine the boundaries in which it could
operate, was based upon its power to defeat the government, to deny assent to its measures.
On the other hand, given the assumption that a defeat would bring the government down,
a majority of the House was not prepared to use it. Hence the ease with which government
measures went through and the criticisms levelled at the Commons for failing to fulfil effec-
tively the tasks expected of it. The events of the 1970s served to resolve this paradox.
The belief that a defeat in the division lobbies necessitated the government™s resignation
or an election was based on no authoritative source nor upon any continuous basis of prac-
tice. In that sense, the belief could be described as constituting a constitutional ˜myth™.
Nevertheless, so long as members continued in this belief, it influenced their behaviour. It
took the defeats of the 1970s to make members realise that defeats could be imposed upon
the government without there necessarily being any wider constitutional implications. The
constitutional reality, as it had been since 1841, was that a government was required by con-
vention to resign (or dissolve) in the event only of losing a vote of confidence; in the event
of losing a division on an item central to its policy, it had the discretion as to whether to
resign (or request a dissolution) or seek a vote of confidence from the House; in the event
of defeat on any other matter, it had to consider only whether to accept the defeat or seek
its reversal at a later stage. This distinction was given clear recognition by Stanley Baldwin
571 Parliament and the responsibility of government


in the House of Commons in April 1936. The response of the governments of the 1970s to
the defeats suffered was in line with precedent. The popular view that there was a devia-
tion from previous practice is incorrect. What changed was not the basis of the government™s
response but the number of defeats. Whereas previous defeats had been few and far
between, and did not impact themselves upon members™ consciousness, the defeats of the
1970s were too numerous to be ignored. Members began to realise the implications of their
own actions and to realise that they could effect changes in the measures of government
without necessarily threatening its life. This was to generate a change in attitude and to
resolve the paradox of the House depending upon a power it was not willing to use. Members
proved willing to overcome the constraints of party to employ the power that resided with
them. Government could no longer rely upon the loyalty of its own backbenchers to see all
its measures through in the form desired. (Nor upon the electorate and the electoral system
to provide it with an overall majority.) In consequence, members restored to themselves the
means by which they could achieve more effectively their function of scrutiny and influence.


The revived independence of backbench MPs and their willingness to vote
against their own government did not evaporate after 1979, but the substantial
overall majorities enjoyed by Conservative Governments from 1979 to 1992
reduced the incidence of government defeats in the House. After the 1992 elec-
tion Mr Major™s Government had a less secure and diminishing majority
and was more vulnerable to backbench rebellion. (Mutinousness among
˜Eurosceptic™ Conservative backbenchers led to the withdrawal of the whip
from eight of their number in November 1994, for ¬ve months.) The Labour
Government which came to power in 1997 with a majority of 179 and was
returned to o¬ce in 2001 with a majority of 167 and again in 2005 with a
reduced but still seemingly safe majority of 66, has not been immune from
backbench rebellion and, on occasion, defeat in the House, as will be seen later.
(See further P Norton (ed), Parliament in the 1980s (1985), ch 2 and P Cowley,
The Rebels: How Blair Mislaid his Majority (2005); see further below.)
In¬‚uence and scrutiny “ or ˜controlling™ and ˜calling to account™ “ are
functions of Parliament which depend largely on the acceptance by ministers
of the Crown of their collective and individual responsibility to Parliament. The
responsibility of ministers is the mainspring of the working relationship
between Parliament and government. As Michael Rush remarks, it ˜underpins
all debates, all parliamentary questions, all committee activity “ the means by
which Parliament seeks to exercise its scrutiny™ (R Pyper and L Robins (eds),
Governing the UK in the 1990s (1995), p 109).


2 Individual ministerial responsibility
˜One of the fundamentals of our system of Government™, wrote Lord Morrison
(Government and Parliament (3rd edn 1964), p 332), ˜is that some Minister of
the Crown is responsible to Parliament, and through Parliament to the public,
for every act of the Executive™. According to this convention, every minister is
572 British Government and the Constitution


responsible to Parliament for his or her own o¬cial conduct, and a minister
who heads a department also has ultimate responsibility for everything done by
the department. This is known as the convention of individual ministerial
responsibility. (For the collective responsibility of ministers, see chapter 6.)
A convention in these terms is necessary, ¬rst, to enable Parliament to make
good the ˜explanatory accountability™ of government: for every branch of the
government™s business there must be an identi¬able minister who has an oblig-
ation to answer and explain to Parliament. The performance by Parliament of
its functions of controlling the executive and holding it accountable for errors
and malpractice depends on getting from ministers the relevant facts and expla-
nations. This is underlined in the Scott Report on arms to Iraq (HC 115 of
1995“96), para K8.2:

The obligation of Ministers to give information about the activities of their departments and
to give information and explanations for the actions and omissions of their civil servants, lies
at the heart of Ministerial accountability.

The Scott Report revealed, however, that the Government had failed lamentably
in its observance of this obligation in pursuing its policies on defence sales to
Iran and Iraq between 1984 and 1990. Sir Richard Scott found that there had been
˜a consistent undervaluing by Government of the public interest that full infor-
mation should be made available to Parliament™ (para D1.165) and observed
that ˜the withholding of information by an accountable Minister should never
be based on reasons of convenience or for the avoidance of political embarrass-
ment, but should always require special and carefully considered justi¬cation™
(para K8.5).
The Ministerial Code (2005) enjoins ministers to be ˜as open as possible with
Parliament and the public, refusing to provide information only when disclosure
would not be in the public interest™ and declares it to be ˜of paramount impor-
tance that Ministers give accurate and truthful information to Parliament,
correcting any inadvertent error at the earliest opportunity™. (See further above,
p 374.) These statements of principle ¬rst appeared in the 1997 edition of the
Ministerial Code in response to an important initiative taken by both Houses of
Parliament in that year, following a recommendation of the Public Service
Committee of the House of Commons (Second Report, HC 313-I of 1995“96,
para 55, the committee™s recommendation itself coming as a direct consequence
of the ¬ndings of the Scott Report (above)). Each House passed a resolution on
ministerial accountability to Parliament in terms which were subsequently incor-
porated in the Ministerial Code. (See HC Deb vol 292, cols 1046“7, 19 March
1997 and HL Deb vol 579, cols 1055“62, 20 March 1997.) These resolutions
translate the formerly unwritten convention of ministerial responsibility into a
clear parliamentary rule, no longer unilaterally alterable by government. (See A
Tomkins, The Constitution After Scott (1998), p 62; although cf Woodhouse,
˜Ministerial responsibility: something old, something new™ [1997] PL 262.)
573 Parliament and the responsibility of government


Secondly, the convention of individual ministerial responsibility is tradition-
ally supposed to ¬x the blame on the minister heading a department for every
failure of departmental policy or administration, whether it is the minister
himself who was at fault, or a civil servant, or if the failure resulted from a defect
of departmental organisation. The minister must, in this orthodox version,
submit to the judgement of Parliament and, if the failure is a serious one, should
resign from o¬ce without waiting for a vote of censure.


Crichel Down
The traditional view of ministerial responsibility seemed to be vindicated by the
resignation in 1954 of the Minister of Agriculture, Sir Thomas Dugdale, follow-
ing the notorious episode of Crichel Down. In 1938 some land in Dorset had been
acquired by the Air Ministry from its owners, for use as a bombing range. (Powers
of compulsory acquisition were available, but it had not proved necessary to
resort to them.) After the war the land was no longer needed for the purpose for
which it had been acquired, and it was transferred to the Ministry of Agriculture
and by them to the Commissioners for Crown Lands, who let it to a tenant of their
choice. A request by one of the former owners to buy back his land was refused,
and neighbouring landowners who had been given to understand that they would
be able to bid for tenancies of the land were denied the opportunity to do so.
These events led to an o¬cial inquiry which came to the conclusion (since criti-
cised for its partiality: see I Nicolson, The Mystery of Crichel Down (1986)) that
civil servants in the Ministry of Agriculture had acted in a high-handed and
deceitful manner: Report of the Public Inquiry into the Disposal of Land at Crichel
Down (Cmd 9176/1954). In consequence of this report and of widespread criti-
cism, in Parliament and outside, of the conduct of his department, the minister
resigned. He said in the House (HC Deb vol 530, col 1186, 20 July 1954):

I, as Minister, must accept full responsibility to Parliament for any mistakes and inefficiency
of officials in my Department, just as, when my officials bring off any successes on my behalf,
I take full credit for them.

<<

. 107
( 155 .)



>>