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( 155 .)


General™s role as guardian of the public interest see further Attorney General
v Blake [1998] Ch 439). While entitled to consult ministerial colleagues before
taking action of these kinds in cases raising political issues, the Attorney
General is required by convention to exercise an independent judgement
unin¬‚uenced by considerations of party advantage.
Is the simultaneous wearing of these various ˜government™ and ˜indepen-
dent™ hats desirable? In September 1984 allegations were made that the pros-
ecution of a civil servant, Mr Ponting, under section 2 of the O¬cial Secrets
Act 1911 had been undertaken on the insistence of the Secretary of State for
Defence, supported by the Prime Minister. Mrs Thatcher denied the allegation
in a letter to Dr David Owen MP, saying that the decision to prosecute had
369 Crown and government

been taken by the Law O¬cers without consulting any of their ministerial
colleagues, and adding:

you must know that the Attorney-General acts in a totally independent and non-political
capacity in making decisions on prosecutions. It would be improper for me or my colleagues
to interfere in any way with his discretion in the exercise of that function and I confirm that
we did not do so in Mr Ponting™s case. [The Times, 17 September 1984.]

The Prime Minister™s statement was corroborated by the Attorney General
himself in Parliament: HC Deb vol 73, col 180, 12 February 1985.
When the Attorney General brought proceedings for an injunction in the
˜Crossman Diaries™ case (see chapter 2) he acted on his own judgement (albeit
after consulting ministerial colleagues) in his capacity as guardian of the public
interest (see J Edwards, The Attorney-General, Politics and the Public Interest
(1984), pp 337“42). When, a decade later, another Attorney General brought
proceedings in Australia for injunctions to prevent the publication of Mr Peter
Wright™s book, Spycatcher, he acted on a di¬erent conception of his role.
Questioned in the House of Commons about his part in decisions not to bring
criminal or civil proceedings in respect of the publication of certain other books
about espionage and the security services, the Attorney General (Sir Michael
Havers) replied:

When I am wearing my hat as Attorney-General and prosecutor, nobody can influence me
and I would not accept any attempt to influence me from anybody. When the Government
are acting as Government in civil proceedings I happen, by tradition, to be the nominal plain-
tiff and that is what has happened here.

Later, with reference to the decision to take proceedings in Australia against
Spycatcher, he said:

[T]his was a Government decision and, of course, like my fellow Ministers, I accept collec-
tive responsibility.

Pressed to con¬rm that it was ˜the Attorney-General™s duty to determine the
public interest before commencing the injunctive process to ban a book, and
not the duty of Ministers collectively™, the Attorney General made an evasive
reply. (See HC Deb vol 106, cols 623“4, 1 December 1986.) In contempt pro-
ceedings connected with the Spycatcher litigation the Attorney General was said
to be acting ˜in a quite di¬erent capacity independently of the government of
the day . . . as “guardian of the public interest in the due administration of
justice” ™ (Sir John Donaldson MR in Attorney General v Newspaper Publishing
plc [1988] Ch 333, 362). The Ministerial Code (2005), para 6.27, rea¬rms the
distinction between civil proceedings ˜in which the Law O¬cers are involved in
a representative capacity on behalf of the Government, and action undertaken
370 British Government and the Constitution

by them in the general interest, for example, to enforce the law on behalf of the
general community™.
Is it realistic to expect the Law O¬cers to keep their political and public-
interest responsibilities in separate mental compartments? As a Lord of Appeal,
Lord Steyn, has remarked extra-judicially, the Attorney General is ˜a political
¬gure responsive to public pressure™: see (1996) 146 NLJ 1770. Should the o¬ce
of Attorney General be removed from the political arena, as an independent
o¬ce outside government? How might such an independent o¬cer be held
accountable for his or her actions? (Cf Edwards, above, pp 62“7 and Brazier,
˜Government and the law: ministerial responsibility for legal a¬airs™ [1989]
PL 64, and see generally Edwards, above, chs 11 and 12; N Walker in M Sunkin
and S Payne (eds), The Nature of the Crown (1999), ch 6.)
Next in rank below full or senior ministers (most of whom head departments
and sit in the Cabinet) are ministers of state, who are attached to departments
headed by Cabinet ministers. Ministers of state are often appointed to take
charge (under the departmental minister) of a particular section of a depart-
ment and are designated accordingly “ for example, the Minister for Europe in
the Foreign and Commonwealth O¬ce. Others have tasks allotted to them by
the departmental minister at his or her discretion. Departments also include
junior ministers known as Parliamentary Secretaries (or Parliamentary Under-
Secretaries of State if the senior minister is a Secretary of State), some of whom,
too, may be appointed to named o¬ces. In the Department of Trade and
Industry in 2006 there were, besides the Secretary of State, three Ministers of
State and two Parliamentary Under-Secretaries of State. Statutory powers are
not conferred on subordinate ministers, who act as delegates of the Secretary of
State or other senior minister who heads the department, in whom powers are
legally vested and who remains responsible to Parliament for their exercise.
Ministers may be assisted, in their parliamentary and political work, by
Members of Parliament appointed by them (with the approval of the Prime
Minister) as parliamentary private secretaries, who are unpaid and do not
themselves rank as ministers.
Government Whips have posts with titles which do not indicate their func-
tions of backbench liaison and party discipline: the Chief Whip in the House of
Commons has the title of Parliamentary Secretary to the Treasury and the
Deputy Chief Whip that of Treasurer of Her Majesty™s Household.
A minister must, by convention, be a member of one or other House of
Parliament (although exceptions have sometimes been made for Law O¬cers).
By statute there can be no more than ninety-¬ve holders of ministerial o¬ce in
the House of Commons at any time (House of Commons Disquali¬cation Act
1975, s 2(1)) “ a rule designed to prevent executive dominance of the House.
(The Ministerial and Other Salaries Act 1975 limits the number of ministerial
salaries that can be paid: see Rodney Brazier, Ministers of the Crown (1997),
pp 36“8.) The number of MPs involved in government (including whips and
371 Crown and government

parliamentary private secretaries) has generally been somewhere between 130
and 145 in recent years. The principle of collective responsibility (see below)
usually assures the government of the support at least of this substantial body
of parliamentarians for its policies and bills.
Since the ¬nancial responsibilities of Parliament are exercised by the House
of Commons alone, the Chancellor of the Exchequer, the Chief Secretary to
the Treasury (who also usually has a seat in the Cabinet) and the Financial
Secretary are invariably members of the lower House. The two leading parties
have di¬ered in their readiness to entrust major departmental responsibilities
to peers. In the 1964“70 and 1974“79 Labour Governments the only heads of
principal departments who were peers were the Lord Chancellor and (brie¬‚y in
1965“66) the Colonial Secretary. A peer, Lord Carrington, held successively the
portfolios of Defence, Energy and Foreign and Commonwealth A¬airs in the
1970“74 and 1979“83 Conservative administrations. Lord Young of Gra¬ham
was a member of Mrs Thatcher™s Cabinet from 1984“89, successively as
Minister Without Portfolio, Secretary of State for Employment and Secretary
of State for Trade and Industry. Since 1989 the Lord Chancellor and the Leader
of the House of Lords have usually been the only peers in Conservative and
Labour Cabinets. (A peer brie¬‚y held o¬ce as Secretary of State for Overseas
Development in 2003.)
Ministers generally have a quite short tenure of o¬ce. In the eight years from
1983 to 1991, as Richard Rose notes, seven di¬erent ministers were in charge of
the Department of Trade and Industry (Too Much Reshu¬„ing of the Cabinet
Pack? (1991), p 3). The Department of Transport was headed successively by
eleven di¬erent ministers in the Conservative administrations of 1979“97. In
the period 1997“2006 six Secretaries of State have headed the Department of
Social Security/Department of Work and Pensions. Rose discovered that in the
period 1964“91 the average length of time for which a Cabinet minister headed
a department was two-and-a-half years (above, Table 1), while Rodney Brazier
remarks that in the course of Mrs Thatcher™s premiership ˜¬fty-seven people
entered and left the Cabinet™ (above, p 288). Few ministers bring to their
departments an appropriate specialised knowledge and few remain long
enough to acquire it.
It is impossible for a departmental minister to be kept informed in detail
about the immense and multifarious activity of a modern government depart-
ment, or to take the management of the department™s business into his or her
own hands. Overloaded ministers rely greatly on their permanent secretaries
and other senior o¬cials in the running of their departments, but a manageri-
ally minded minister may take a close interest in the department™s organisa-
tional structure and decision-making processes. Ministers in the Thatcher
administration were encouraged to adopt a managerial role, but it is question-
able whether ministers in general have the aptitude, experience or inclination
for departmental management. Christopher Foster and Francis Plowden
372 British Government and the Constitution

observe (The State Under Stress (1996), p 177) that if e¬ciency and the control
of public expenditure are to be achieved:

then the civil service is a more hopeful instrument of such changes than politicians can ever
be. They are in a better position to retain and restore old notions of good administration and
civil service management, at the same time as learning to manage contracts and agencies
as efficiently as the best private-sector management, because they have a long-term inter-
est in government.
But the price of achieving such levels of efficiency is that the role of the minister must be

Ministers, these authors say (p 246), must have ˜more time to focus on those
things . . . for which they are most needed “ leadership, policy-making and per-
suasion™. The lightening of ministers™ workloads was one objective of the devo-
lution of operational management to executive agencies within the departments,
a reform initiated in 1988 and now an established feature of departmental
organisation (see below, pp 409“11).
In developing policies and reviewing the work of the department a minister
has the help of subordinate ministers, parliamentary private secretaries, senior
o¬cials and it may be one or more special policy advisers brought in from
outside government (see below, pp 426“7). The ministers in a large department
may meet regularly and act ˜as a sort of departmental board of directors™
(WH Greenleaf, The British Political Tradition, vol III, part 2 (1987), p 665).
Existing arrangements could be developed so as to provide ministers with polit-
ical and specialist support of the kind that is made available to ministers in
France through a system of ministerial cabinets. The Treasury and Civil Service
Committee of the House of Commons proposed an experiment on these lines
in 1986, suggesting that the minister™s private o¬ce should be expanded into a
Policy Unit (Seventh Report, HC 92-I of 1985“86, paras 5.28“5.30). A minister™s
policy unit would be composed of several special policy advisers together with
a number of career civil servants and the minister™s parliamentary private sec-
retary. Its role would be to strengthen the minister, ˜increasing his in¬‚uence
and control over the department, putting him in a better position to participate
in the collective decision-making of cabinet™. There was further support for an
innovation of this kind from a Working Group of the Royal Institute of Public
Administration (Top Jobs in Whitehall (1987)) and from the Re-Skilling
Government Group (Re-Skilling Government (1986), (1987)). The Treasury and
Civil Service Committee returned to the matter in 1994 and, while noting
doubts as to the validity of the French cabinet model in the British context,
urged that the Government should give further consideration to the strength-
ening of support for ministers. Ferdinand Mount (The British Constitution Now
(1993), p 154) found these proposals ˜a little over-elaborate™ and suggested a
more limited reform, which builds on existing practice, allowing ministers to
bring in four to six advisers from outside, together with two or three outside
373 Crown and government

experts on temporary secondment to assist with technical aspects of new
policies. (See too the sceptical comment by Simon James, British Cabinet
Government (2nd edn 1999), pp 241“2.)
Collective ministerial responsibility for the whole of government policy enti-
tles each Cabinet minister to claim a share in general policy-making, including
policies on important issues emerging from other departments. But ministers
immersed in the ˜urgent minutiae™ of departmental life (Barbara Castle, The
Castle Diaries, 1974“76 (1980), p 523) seldom have time to inform themselves
adequately about extra-departmental matters. When these arise in Cabinet or
Cabinet committee, departmental ministers may simply remain passive, or else
take positions urged on them previously by ministerial colleagues, or follow
briefs prepared by their own civil servants. Some ministers are more assertive
and try to take a full part in government policy-making. Whether they are able
to do so will depend upon their standing with their colleagues and the Prime
Minister, their membership of the inner Cabinet, if there is one, and of relevant
Cabinet committees, and their ability to limit their involvement in departmen-
tal administration, as by delegating responsibility to subordinate ministers.
(Ministerial Policy Units might also help in this respect: see above.) The
Chancellor of the Exchequer is in a special position as, being responsible for
public expenditure, he or she is bound to take a close interest in policies and
spending decisions of other ministers. It is a convention that no departmental
expenditure can properly be incurred without the approval of the Treasury, and
the Chancellor, as a former holder of the o¬ce has remarked, ˜has his ¬nger in
pretty well every pie in government™ (Nigel Lawson, The View from No 11 (1993
edn), p 273).
By convention some kinds of decision are taken on the personal responsibil-
ity of the minister concerned, without engaging the collective responsibility of
ministerial colleagues. This applies, for instance, to decisions of the Home
Secretary in extradition cases. (See HL Deb vol 606, col 185 WA, 11 November
In principle all Secretaries of State and other Cabinet ministers are equal in
status, although there is an informal ranking of them by the Prime Minister.
Sometimes a minister is designated as First Secretary of State, and the Prime
Minister may nominate a Deputy Prime Minister (eg, Whitelaw, 1979“88;
Howe, 1989“90; Heseltine, 1995“97). Mr John Prescott was given the title of
Deputy Prime Minister in 1997 and, from 2001, held o¬ce as Deputy Prime
Minister and First Secretary of State. A Deputy Prime Minister may act on
behalf of the Prime Minister during his or her illness or absence, but has no enti-
tlement to be appointed Prime Minister if that o¬ce becomes vacant. (See
Brazier [1988] PL 176; P Hennessy, The Hidden Wiring (1996), pp 14“19.)

(i) Conduct of ministers
A rule-book, formerly called Questions of Procedure for Ministers and updated
from time to time under successive Prime Ministers, was from the middle of the
374 British Government and the Constitution

twentieth century issued to ministers on their appointment. It set out guidelines
on a variety of questions of Cabinet procedure and ministerial conduct and was
described, with a dash of hyperbole, as ˜the nearest thing we have to a written
constitution for British Cabinet government™ (Peter Hennessy, Cabinet (1986),
p 7). This document was formerly withheld from the public and classi¬ed as
con¬dential. The 1992 edition was released into the public domain; the heavens
did not fall. Anxieties about the standards of conduct of ministers and other
public servants led to the setting up in 1994 of the Nolan Committee on
Standards in Public Life. (See Peter Hennessy™s racy account of the Nolan
inquiry: The Hidden Wiring (1996), ch 8.) In its First Report (Cm 2850-I/1995)
the Committee recommended the revision and strengthening of Questions of
Procedure for Ministers. The amended document is now entitled the Ministerial
Code: A Code of Ethics and Procedural Guidance for Ministers. The Code is issued
on the authority of the Prime Minister. It does not have the force of law but min-
isters are expected to work within its letter and spirit and ˜to behave according
to the highest standards of constitutional and personal conduct in the perfor-
mance of their duties™ (Ministerial Code (2005), Foreword and para 1.1). The
Code is to be read (para 1.5):

against the background of the overarching duty on Ministers to comply with the law, includ-
ing international law and treaty obligations, to uphold the administration of justice and to
protect the integrity of public life.


. 73
( 155 .)