. 108
( 155 .)


But this seemingly unequivocal demonstration of individual ministerial
responsibility in its traditional sense was in fact blurred by some of the atten-
dant circumstances. First, civil servants concerned in the case had been named
and criticised in the report of the Inquiry: it was not only the minister who
had to take the blame. Secondly, the minister himself (and two junior ministers)
had taken a personal part in the transactions relating to Crichel Down, and the
minister was to admit to the House that his decisions had been taken with
knowledge of the main facts of the case. (See Nicolson, above, pp 54“5, 61, 76“7,
90“1.) In reality, it seems that, notwithstanding its iconic status as the leading
example of a minister falling on his sword because of mistakes made by
others and where he himself had done nothing wrong, Sir Thomas Dugdale™s
574 British Government and the Constitution

resignation actually owed more to the fact that his policies had fallen out of
favour with both the Cabinet and the Conservative backbenchers, who had
begun to lose con¬dence in him (see A Tomkins, The Constitution after Scott
(1998), p 56). In the Crichel Down debate on 20 July 1954 the Home Secretary
attempted to clarify the convention.

House of Commons, HC Deb vol 530, cols 1285“7, 20 July 1954

The Home Secretary (Sir David Maxwell Fyfe): . . . There has been criticism that the princi-
ple operates so as to oblige Ministers to extend total protection to their officials and to endorse
their acts, and to cause the position that civil servants cannot be called to account and are
effectively responsible to no one. That is a position which I believe is quite wrong, and I think
it is the cardinal error that has crept into the appreciation of this situation. It is quite untrue
that well-justified public criticism of the actions of civil servants cannot be made on a suitable
occasion. The position of the civil servant is that he is wholly and directly responsible to his
Minister. It is worth stating again that he holds his office ˜at pleasure™ and can be dismissed at
any time by the Minister; and that power is none the less real because it is seldom used. . . .
I would like to put the different categories where different considerations apply. I am in
agreement with the right hon. Gentleman who has just spoken, that in the case where there
is an explicit order by a Minister, the Minister must protect the civil servant who has carried
out his order. Equally, where the civil servant acts properly in accordance with the policy laid
down by the Minister, the Minister must protect and defend him.
I come to the third category, which is different. . . . Where an official makes a mistake or
causes some delay, but not on an important issue of policy and not where a claim to indi-
vidual rights is seriously involved, the Minister acknowledges the mistake and he accepts
the responsibility, although he is not personally involved. He states that he will take correc-
tive action in the Department. I agree with the right hon. Gentleman that he would not, in
those circumstances, expose the official to public criticism. . . .
But when one comes to the fourth category, where action has been taken by a civil servant
of which the Minister disapproves and has no prior knowledge, and the conduct of the offi-
cial is reprehensible, then there is no obligation on the part of the Minister to endorse what
he believes to be wrong, or to defend what are clearly shown to be errors of his officers. The
Minister is not bound to defend action of which he did not know, or of which he disapproves.
But, of course, he remains constitutionally responsible to Parliament for the fact that some-
thing has gone wrong, and he alone can tell Parliament what has occurred and render an
account of his stewardship.

(See further the discussion of the Crichel Down a¬air by J Jacob, The Republican
Crown (1996), pp 168“74.)

(a) A convention of resignation?
The traditional view that a minister is bound to resign in atonement for depart-
mental misconduct does not take account of the great increase in the work of
government departments in modern times, which has made it impossible for
575 Parliament and the responsibility of government

ministers to supervise directly or even know about the bulk of their departments™
everyday business, including decisions taken by o¬cials in the minister™s name.
It has also been shown that the traditional view, with its emphasis on the sanction
of ministerial resignation, does not accord with the facts of political life. Professor
SE Finer looked for ministerial resignations in the period 1855“1955 that had
been ˜forced by overt criticism from the House of Commons™ and so might be
attributed to the convention of ministerial responsibility. He found that there had
been only twenty such resignations in the century, ˜a tiny number™, as he wrote,
˜compared with the known instances of mismanagement and blunderings™. The
following passage gives his conclusions.

SE Finer, ˜The Individual Responsibility of Ministers™ (1956)
34 Pub Adm 377, 393“4

The convention implies a form of punishment for a delinquent Minister. That punishment is
no longer an act of attainder, or an impeachment, but simply loss of office.
If each, or even very many charges of incompetence were habitually followed by the
punishment, the remedy would be a very real one: its deterrent effect would be extremely
great. In fact, that sequence is not only exceedingly rare, but arbitrary and unpredictable.
Most charges never reach the stage of individualisation at all: they are stifled under the
blanket of party solidarity. Only when there is a minority Government, or in the infrequent
cases where the Minister seriously alienates his own back benchers, does the issue of
the individual culpability of the Minister even arise. Even there it is subject to hazards: the
punishment may be avoided if the Prime Minister, whether on his own or on the Minister™s
initiative, makes a timely re-shuffle. Even when some charges get through the now finely
woven net, and are laid at the door of a Minister, much depends on his nicety, and much on
the character of the Prime Minister. Brazen tenacity of office can still win a reprieve. And, in
the last resort “ though this happens infrequently “ the resignation of the Minister may be
made purely formal by reappointment to another post soon afterwards.
We may put the matter in this way: whether a Minister is forced to resign depends on
three factors, on himself, his Prime Minister and his party . . . For a resignation to occur all
three factors have to be just so: the Minister compliant, the Prime Minister firm, the party
clamorous. This conjuncture is rare, and is in fact fortuitous. Above all, it is indiscriminate “
which Ministers escape and which do not is decided neither by the circumstances of the
offence nor its gravity. A Wyndham and a Chamberlain go for a peccadillo, a Kitchener will
remain despite major blunders.
A remedy ought to be certain. A punishment, to be deterrent, ought to be certain. But
whether the Minister should resign is simply the (necessarily) haphazard consequence of a
fortuitous concomitance of personal, party and political temper.
Is there then a ˜convention™ of resignation at all?
A convention, in Dicey™s sense, is a rule which is not enforced by the Courts. The important
word is ˜rule™. ˜Rule™ does not mean merely an observed uniformity in the past; the notion
includes the expectation that the uniformity will continue in the future. It is not simply
a description; it is a prescription. It has a compulsive force.
576 British Government and the Constitution

Now in its first sense, that the Minister alone speaks for his Civil Servants to the House
and to his Civil Servants for the House, the convention of ministerial responsibility has both
the proleptic and the compulsive features of a ˜rule™. But in the sense in which we have been
considering it, that the Minister may be punished, through loss of office for all the misdeeds
and neglects of his Civil Servants which he cannot prove to have been outside all possibility
of his cognisance and control, the proposition does not seem to be a rule at all.
What is the compulsive element in such a ˜rule™? All it says (on examination) is that if the
Minister is yielding, his Prime Minister unbending and his party out for blood “ no matter
how serious or trivial the reason “ the Minister will find himself without Parliamentary
support. This is a statement of fact, not a code. What is more, as a statement of fact it comes
very close to being a truism: that a Minister entrusted by his Prime Minister with certain
duties must needs resign if he loses the support of his majority. The only compulsive element
in the proposition is that if and when a Minister loses his majority he ought to get out rather
than be kicked out.
Moreover, even as a simple generalisation, an observed uniformity, the ˜convention™
is, surely, highly misleading? It takes the wrong cases: it generalises from the exceptions
and neglects the common run. There are four categories of delinquent Ministers: the fortu-
nate, the less fortunate, the unfortunate, and the plain unlucky. After sinning, the first go
to other Ministries; the second to Another Place [ie to the House of Lords]; the third just go.
Of the fourth there are but twenty examples in a century: indeed, if one omits Neville
Chamberlain (an anomaly) and the ˜personal™ cases . . ., there are but sixteen. Not for these
sixteen the honourable exchange of offices, or the silent and not dishonourable exit. Their
lot is public penance in the white sheet of a resignation speech or letter . . . It is on some
sixteen or at most nineteen penitents and one anomaly that the generalisation has been

The resignation of Sir Thomas Dugdale in the Crichel Down a¬air (above) was
in accord with Finer™s thesis: the minister had lost the con¬dence of MPs of his
own party, and the Cabinet did not ¬nd it expedient to outface its backbench
Between 1955 and 1982 there were only two resignations of senior ministers
(Profumo and Jellicoe) that can be put down to an acknowledgement by the
ministers concerned of their responsibility to Parliament (the resignation of
Maudling in 1972 would not seem to fall into this category) and in each case the
resignation was connected with the minister™s own conduct, not the actions of
his department. In 1982 the unexpected Argentine invasion of the Falkland
Islands and public and parliamentary criticism of the role of the Foreign and
Commonwealth O¬ce was followed by the resignations of the Foreign
Secretary (Lord Carrington), the Lord Privy Seal (Mr Humphrey Atkins), who
had been the spokesman for the Foreign O¬ce in the House of Commons, and
a Minister of State who had conducted the negotiations with Argentina on the
Falkland Islands question. The ministers in resigning accepted responsibility to
Parliament for a failure of policy, afterwards attributed in part to defects in
577 Parliament and the responsibility of government

the machinery of government, misjudgements by ministers and o¬cials of
Argentine intentions and faulty decisions by ministers. (See Falkland Islands
Review, Cmnd 8787/1983.)

Letter of Resignation from Lord Carrington, Secretary of State
for Foreign and Commonwealth Affairs, to the Prime Minister,
Mrs Margaret Thatcher, 5 April 1982

Dear Margaret
The Argentine invasion of the Falkland Islands has led to strong criticism in Parliament and
in the press on the Government™s policy. In my view, much of the criticism is unfounded. But
I have been responsible for the conduct of that policy and I think it right that I should resign.
As you know, I have given long and careful thought to this. I warmly appreciate the kind-
ness and support which you showed me when we discussed this matter on Saturday. But the
fact remains that the invasion of the Falkland Islands has been a humiliating affront to this
We must now, as you said in the House of Commons, do everything we can to uphold
the right of the islanders to live in peace, to choose their own way of life and to deter-
mine their own allegiance. I am sure that this is the right course, and one which deserves
the undivided support of Parliament and of the country. But I have concluded with regret
that this support will more easily be maintained if the Foreign Office is entrusted to
someone else.
I have been privileged to be a member of this Government and to be associated with its
achievements over the past three years. I need hardly say that the Government will continue
to have my active support. I am most grateful to you personally for the unfailing confidence
you have shown in me.
Yours ever, Peter

(The Minister of State who resigned “ Mr Richard Luce “ was reappointed to
the same o¬ce ¬fteen months later.)
It has been remarked that the resignation of Lord Carrington and his
colleagues ˜continues to shine like a beacon of honour in an era when most
ministers in trouble appear to hang on to their o¬ce as if it were a personal
freehold rather than a Crown possession™ (P Hennessy, The Prime Minister
(2000), p 415). The invasion of the Falklands had caused a loss of con¬dence
among parliamentarians “ not least those of the government party “ and the
public in the organisation and leadership of the Foreign O¬ce, and the minis-
ters concerned rightly concluded that their resignations were required for
a restoration of that con¬dence. But the circumstances were unusual, and most
administrative failures are of a more limited kind which do not bring into
question the whole departmental organisation or the leadership of ministers.
It is not likely that a minister™s head will be demanded or pro¬ered in such
cases. But if the error is serious and has grave consequences, critical attention
578 British Government and the Constitution

may be focused on the minister. His or her response will depend on the factors
of personality, party and politics indicated by Professor Finer (above).

The Maze break-out
In September 1983 there was a mass break-out of republican prisoners from the
Maze prison in Belfast, an event described in a leading article in The Times
(8 February 1984) as ˜a fearful blow to the authority of the state in Northern
Ireland™. It was serious enough to raise the question of the responsibility of min-
isters. Those concerned were the Secretary of State in charge of the Northern
Ireland O¬ce, Mr James Prior, and the Under Secretary of State responsible for
the prison service, Mr Nicholas Scott, who had been in o¬ce for only three
months at the time of the break-out. His predecessor, Lord Gowrie, had moved
to the Privy Council O¬ce as Minister for the Arts.
A report by Sir James Hennessy on security arrangements at the Maze
prison (HC 203 of 1983“84) found that there had been de¬ciencies in the
management and physical security of the prison, and that faulty procedures
and laxity and negligence of sta¬ had facilitated the escape. For this state of
a¬airs the report held the prison governor to be primarily responsible; there
was also some criticism of the prison department of the Northern Ireland
O¬ce for its oversight of security at the prison. The Government accepted
the report and its recommendations. The prison governor resigned, but no
ministers did so. For reasons which may be surmised, the Prime Minister was
not disposed to press for Mr Prior™s resignation; neither did the Labour
Opposition wish to see him replaced at the Northern Ireland O¬ce by any
other Tory minister.

House of Commons, HC Deb vol 53, cols 1042, 1055“6, 1060“1,
1108, 9 February 1984

The Secretary of State for Northern Ireland (Mr James Prior): . . . There are those who,
while they accept this policy [of treating IRA prisoners like all other prisoners] have never-
theless suggested that the circumstances of the escape demand ministerial resignation.
I take that view seriously and have given it the most careful consideration. I share hon.
Members™ concern about the honour of public life and the maintenance of the highest
standards. I said at the time of my statement to the House on 24 October, without any
pre-knowledge of what Hennessy would find:
˜It would be a matter for resignation if the report of the Hennessy inquiry showed that
what happened was the result of some act of policy that was my responsibility, or that
I failed to implement something that I had been asked to implement, or should have
implemented. In that case, I should resign.™
In putting the emphasis that I did on the issue of ˜policy™, I was not seeking to map out
some new doctrine of ministerial responsibility. I was responding to the accusations made
579 Parliament and the responsibility of government

at that time that it was policy decisions, reached at the end of the hunger strike, that made
the escape possible.
Since the report was published, the nature of the charges levelled at my hon. Friend
and myself has changed. It is now argued in some quarters that Ministers are respon-
sible for everything that happens in their Departments and should resign if anything goes
wrong . . . I want to make it quite clear that if there were any evidence in the Hennessy
report that Ministers were to blame for the escape, I would not hesitate to accept that
blame and act accordingly, and so I know, would my hon. Friend [Mr Nicholas Scott].
However, I do not accept “ and I do not think it right for the House to accept “ that there
is any constitutional or other principle that requires ministerial resignations in the face of
failure, either by others to carry out orders or procedures or by their supervisors to ensure
that staff carried out those orders. Let the House be clear: the Hennessy report finds that
the escape would not have succeeded if orders and procedures had been properly carried
out that Sunday afternoon . . .
Whatever some may wish, there is no clear rule and no established convention. Rightly,
it is a matter of judgement in the light of individual circumstances. I do not . . . seek to justify
my decision on the ground that there are many difficulties in Northern Ireland. There are,
but that adds to rather than subtracts from the argument. The question that I have asked


. 108
( 155 .)