<<

. 74
( 155 .)



>>

Ministers are expected to observe the seven ˜Principles of Public Life™ set out in
the First Report of the Nolan Committee, p 14 and in Annex A to the Code,
under the headings: sel¬‚essness; integrity; objectivity; accountability; openness;
honesty; leadership. More speci¬cally, the Code sets out nine principles of
conduct which ministers are directed to observe:

Ministerial Code (2005), para 1.5
a. Ministers must uphold the principle of collective responsibility;
b. Ministers have a duty to Parliament to account, and be held to account, for the policies,
decisions and actions of their departments and agencies [see below, pp 409“11];
c. it is of paramount importance that Ministers give accurate and truthful information to
Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who
knowingly mislead Parliament will be expected to offer their resignation to the Prime
Minister;
d. Ministers should be as open as possible with Parliament and the public, refusing to
provide information only when disclosure would not be in the public interest which should
be decided in accordance with the relevant statutes and the Freedom of Information Act
2000 [see below, p 560];
e. Ministers should similarly require civil servants who give evidence before Parliamentary
Committees on their behalf and under their direction to be as helpful as possible in
375 Crown and government


providing accurate, truthful and full information in accordance with the duties and respon-
sibilities of civil servants as set out in the Civil Service Code [see below, p 419];
f. Ministers must ensure that no conflict arises, or appears to arise, between their public
duties and their private interests;
g. Ministers should avoid accepting any gift or hospitality which might, or might reasonably
appear to, compromise their judgement or place them under an improper obligation;
h. Ministers in the House of Commons must keep separate their roles as Minister and con-
stituency Member;
i. Ministers must not use government resources for Party political purposes. They must
uphold the political impartiality of the Civil Service and not ask civil servants to act in any
way which would conflict with the Civil Service Code.


The Code declares that it is ˜not a rule-book™ but provides ˜guidance™ to minis-
ters, and that (para 1.3):

Ministers are personally responsible for deciding how to act and conduct themselves in the
light of the Code and for justifying their actions and conduct in Parliament.


Then it is added:

Ministers only remain in office for so long as they retain the confidence of the Prime Minister.
He is the ultimate judge of the standards of behaviour expected of a Minister and the appro-
priate consequences of a breach of those standards.


The Code is a prime-ministerial document in the sense that successive Prime
Ministers make alterations to it on their own authority, although in practice
after some consultation with ministerial colleagues and senior o¬cials. The
Code has a hybrid nature, setting out prime-ministerial instructions and prac-
tical guidance which may be varied from time to time, but also rea¬rming prin-
ciples of good government and conventions of a binding character (relating for
instance to ministerial accountability to Parliament). It exempli¬es, as Peter
Hennessy has remarked (˜Introduction™ to Amy Baker, Prime Ministers and the
Rule Book (2000)):

the ˜coral-reef™ nature of much of British constitutional practice “ how a cluster of guidelines
can grow and harden, first into expectations, then into conventions and ultimately into a code
if not quite into a fully-fledged constitutional artefact.


That the Ministerial Code should be ˜the Prime Minister™s property™ has been
deplored as a ˜constitutional anomaly™ with disturbing implications for the
accountability of Prime Minister and ministers alike: ˜There is an urgent need
to ¬nd a proper guardian for the code™ (Blick, Byrne and Weir, ˜Democratic
audit™ (2005) 58 Parliamentary Affairs 408, 415). The House of Commons Select
376 British Government and the Constitution


Committee on Public Administration forcefully argued in 2006 that, while the
Prime Minister must remain the ultimate judge, an ˜independent investigatory
capacity™ should be created ˜which does not undermine the Prime Minister™s
right to decide whether a minister has breached the Ministerial Code and
what the consequences must be™. Such an investigatory machinery, in the
Committee™s view, must be ˜manifestly independent of the Executive™, should
not involve the creation of yet another regulatory o¬ce but should be under-
taken by an o¬cial connected to the House of Commons (see the Committee™s
Seventh Report: The Ministerial Code “ The Case for Independent Investigation
(HC 1457 of 2005“06), paras 21“25).
(See further Amy Baker, above; S Weir and D Beetham, Political Power and
Democratic Control in Britain (1999), pp 306“14.)

(ii) Ministerial solidarity
The convention of collective ministerial responsibility obliges ministers to
support and defend the policies and decisions of the government to which they
belong; the conventional rule is rea¬rmed in the Ministerial Code (2005), para
6.16: ˜Decisions reached by the Cabinet or Ministerial Committees are binding
on all members of the Government™. Then in para 6.17 it is said:

Collective responsibility requires that Ministers should be able to express their views frankly
in the expectation that they can argue freely in private while maintaining a united front when
decisions have been reached.


The classic or strict version of the principle requires a minister to resign from
o¬ce if he or she feels bound to express public dissent from government
policies.
The principle of collective solidarity began as a political expedient for coun-
tering the authority of the King and managing Parliament; it was forti¬ed by the
development of party cohesion in the nineteenth century. Lord Salisbury gave
his emphatic endorsement to the principle in 1878.


House of Lords, 8 April 1878 (Parl Deb 3rd series vol 239, cols 833“4)
Lord Salisbury: Now, my Lords, am I not defending a great Constitutional principle, when I say
that, for all that passes in a Cabinet, each Member of it who does not resign is absolutely and
irretrievably responsible, and that he has no right afterwards to say that he agreed in one case
to a compromise, while in another he was persuaded by one of his Colleagues. Consider the
inconvenience which will arise if such a great Constitutional law is not respected. . . . It is,
I maintain, only on the principle that absolute responsibility is undertaken by every Member
of a Cabinet who, after a decision is arrived at, remains a Member of it, that the joint respon-
sibility of Ministers to Parliament can be upheld, and one of the most essential conditions of
Parliamentary responsibility established.
377 Crown and government


The principle is in the interest of the government, which is able to present a
united front against the Opposition. In this respect it seems to be essentially
a feature of the party political system, and we ¬nd that a similar convention is
observed by the Opposition, whose frontbench spokesmen are expected to
uphold Opposition party policies. But it can also be claimed that the conven-
tion has a wider ˜constitutional™ function, in that it makes for coherent and
accountable government and the loyalty of ministers to policies which have
been approved by the electorate. It is the collective responsibility of ministers
that ˜welds the separate functions of Government into a single Administration™
(Peter Hennessy, The Hidden Wiring (1996), p 102, quoting from an internal
government document).
The obligation of ministerial solidarity is most convincingly justi¬ed in
principle if governmental decisions are reached collectively. A Home O¬ce
minister (Mr Mike O™Brien) expressed this in saying (Standing Committee B on
the Freedom of Information Bill, 27 January 2000, cols 323“4) that collective
responsibility:

is the bedrock of the Government, of whichever party. It is a safeguard under our constitu-
tion that any Minister who makes a decision or speaks on behalf of a Department or
the Government as a whole requires the collective consent of other Ministers to make that
statement, propound the policy or deliver that decision. . . . That protection, which is for the
citizen as well, must be ensured.

Ministers who have contributed to a decision are properly required to
support and defend it. In a modern government it is, however, impossible for
all ministers to take part in all decisions: most questions must necessarily
be decided in Cabinet or a ministerial committee of the Cabinet or within
government departments or by inter-departmental discussion. These decisions
must be accepted as having been taken on behalf of the government as a whole.
Nevertheless, a principle of collective decision-making is embedded in our
governmental system. All major departments are represented in the Cabinet by
the departmental minister, and ministers whose responsibilities are a¬ected will
generally be members of the relevant ministerial committee. The ¬‚exibility of
the conventional arrangements does, however, allow for a less collegiate style
of decision-making through informal networks, unacknowledged ad hoc
groups and bilateral exchanges between an interventionist Prime Minister and
departmental ministers. In these circumstances, ministerial solidarity may serve
merely to strengthen the position of the Prime Minister or a cabal of senior min-
isters. A government that practises collective decision-making to the greatest
extent that is feasible has the strongest claim upon individual ministers to give
their loyal support to the decisions reached.
Questions of ministerial solidarity were severely tested in the Westland a¬air
of 1985“86. Political arguments about rescue plans for the Westland helicopter
company culminated in 1986 in the resignation of two senior ministers, in
378 British Government and the Constitution


circumstances which raise questions about the conventions of ministerial
responsibility. For the present we shall consider the signi¬cance of these events
in the context of governmental decision-making and the collective responsibil-
ity (solidarity) of ministers. (Individual ministerial responsibility is considered
in chapter 9.)
The question at issue was whether Westland plc, a principal supplier of
helicopters to the Ministry of Defence, should resolve its ¬nancial di¬culties
through an association with the American company, Sikorsky, or instead with a
consortium of European companies, the British Government participating, in
either event, in the reconstruction ˜package™. The Government™s policy was that
the choice between Sikorsky and the European consortium was a matter for the
Westland Board, the Government itself adopting a neutral position. Mr Michael
Heseltine, the Secretary of State for Defence, came to favour the ˜European™
solution, and took an active part in fostering a proposal from the European
consortium and in publicly urging that the national interest favoured its accep-
tance. In this, as a parliamentary select committee afterwards observed, he was
˜pursuing a policy which was diametrically opposed to the Government™s stated
policy™ (Fourth Report, Defence Committee, HC 519 of 1985“86, para 105). The
Prime Minister might have requested his resignation on this ground, but
did not do so.
Mr Heseltine did, however, resign in January 1986, after a meeting of the
Cabinet at which it was decided that ministers™ statements on the subject of
Westland should ¬rst be submitted to the Cabinet O¬ce for clearance as being
consistent with the Government™s policy. Mr Heseltine was unable to accept
this ruling, and afterwards declared that he had resigned because there had
been a ˜breakdown of constitutional government™ in that the Prime Minister
had frustrated collective consideration of the Westland issue, refusing to allow
it to be discussed in Cabinet and cancelling a ministerial meeting which
had been arranged to deal with the matter. (The Government™s account of
these events di¬ered from Mr Heseltine™s.) Peter Hennessy remarks on this
a¬air that ˜Each side claimed the other was breaking the rules. Both sides were
right™ (K Minogue and M Biddiss (eds), Thatcherism: Personality and Politics
(1987), p 66).
(See also P Hennessy, Cabinet (1986), pp 106“11; Marshall, ˜Cabinet govern-
ment and the Westland a¬air™ [1986] PL 184; Oliver and Austin, ˜Political
and constitutional aspects of the Westland a¬air™ (1987) 40 Parliamentary
Affairs 20.)
Dissension within government was again dramatically displayed in October
1989, when Mr Nigel Lawson, the Chancellor of the Exchequer, resigned from
the o¬ce he had held for six years and from the government. Mr Lawson
believed that his position had been undermined by di¬erences on questions of
economic policy between himself and the Prime Minister, Mrs Thatcher, who
was disposed to follow the counsel of her economic adviser, Sir Alan Walters,
whose opinions (publicly expressed) on some important matters of policy were
379 Crown and government


in opposition to those of the Chancellor. In his resignation letter to the Prime
Minister, Mr Lawson declared:

The successful conduct of economic policy is possible only if there is, and is seen to be, full
agreement between the Prime Minister and the Chancellor of the Exchequer.
Recent events have confirmed that this essential requirement cannot be satisfied so long
as Alan Walters remains your personal economic adviser.
I have therefore regretfully concluded that it is in the best interests of the Government
for me to resign my office without further ado.

Speaking in the House of Commons on 31 October 1989, Mr Lawson said (HC
Deb vol 159, col 208):

[F]or our system of Cabinet government to work effectively, the Prime Minister of the day
must appoint Ministers whom he or she trusts and then leave them to carry out the policy.
When differences of view emerge, as they are bound to do from time to time, they should
be resolved privately and, whenever appropriate, collectively.

The strains and ¬ssures in collective, Cabinet government in the latter days of
Mrs Thatcher™s premiership were once more to be exposed in the resignation of
the Deputy Prime Minister, Sir Geo¬rey Howe, in November 1990. Deploring
the Prime Minister™s role in the conduct of monetary policy in Europe, he
observed in his resignation letter that ˜Cabinet government is all about trying
to persuade one another from within™, adding in his resignation speech that it
had become futile ˜to pretend that there was a common policy when every step
forward risked being subverted by some casual comment or impulsive answer™
by the Prime Minister (HC Deb vol 180, col 465, 13 November 1990). These
resignations contributed to the eventual resignation of Mrs Thatcher herself:
see further below, p 387.
Mr Blair as Prime Minister has a commanding style of leadership and places
a strong emphasis on ministerial unity. A revisionist approach to traditional,
˜old Labour™ policies and priorities in his ¬rst term did not cause serious
disa¬ection at the centre of government or resignations of senior ministers.
The ¬rst resignation from the new Labour Government on the ground of
policy disagreement was that of Mr Malcolm Chisholm, a Parliamentary
Secretary, in 1997 over the reduction of bene¬ts for lone parents. Another
junior minister, Mr Peter Kilfoyle, resigned in 2000, disapproving what he saw
as the Government™s disregard of traditional Labour supporters in the regions
and their concerns. A more serious reaction was provoked by the military
intervention in Iraq in 2003, which led to the resignations of two senior
ministers, Mr Robin Cook (President of the Council and Leader of the House
of Commons) and Ms Clare Short (Secretary of State for International
Development). The former could not support the Government™s decision
to embark on military action without speci¬c authorisation in a United
380 British Government and the Constitution


Nations Security Council resolution. (Two subordinate ministers resigned on
the same principle.) Subsequently Ms Short resigned on the ground of
the Government™s failure to seek a United Nations mandate authorising the
measures necessary for the establishment of a legitimate government in Iraq.
She also expressed concerns about the style and organisation of government,
in particular a concentration of power in the hands of the Prime Minister and
the downgrading of collective Cabinet government. (See Clare Short™s resig-
nation statement, HC Deb vol 505, cols 36“9, 12 May 2003. In her book,
An Honourable Deception? (2004), p 71, she remarks that ˜The term collec-

<<

. 74
( 155 .)



>>