<<

. 77
( 155 .)



>>

(ed), Advising the Rulers (1987), pp 66“70; Burch and Holliday, ˜The Prime
Minister™s and Cabinet O¬ces™ (1999) 52 Parliamentary Affairs 32; D Kavanagh
and A Seldon, The Powers Behind the Prime Minister (1999), pp 316“25.)


(c) The Cabinet
In the mid-nineteenth and early twentieth centuries the British governmental
system was commonly described as one of ˜Cabinet government™, expressing
a principle that the Prime Minister and senior ministers assembled in Cabinet
are the supreme governing authority in the state and that it is here that policies
are agreed upon and the most important decisions are taken. Whether this was
ever wholly true may perhaps be doubted: have ministers ever had the knowl-
edge, the inclination “ or the time “ to become actively involved in subjects
392 British Government and the Constitution


beyond their own portfolios? In any case, and as we have seen, this view cannot
be said to accord with modern government practice.
The Prime Minister decides on the membership of the Cabinet and allocates
portfolios, although for an incoming Labour Prime Minister there is a con-
straint in the party rule which requires Cabinet places to be found for the elected
members of the Parliamentary Committee (Shadow Cabinet). Secretaries of
State and other heads of principal government departments nowadays always
have seats in the Cabinet. Since the Second World War the size of the Cabinet
has varied between sixteen and twenty-four members. After the general election
of May 2005 the Cabinet had twenty-three members, as follows:
Prime Minister, First Lord of the Treasury and Minister for the Civil Service
Deputy Prime Minister and First Secretary of State
Chancellor of the Exchequer
Secretary of State for Foreign and Commonwealth A¬airs
Secretary of State for Work and Pensions
Secretary of State for Environment, Food and Rural A¬airs
Secretary of State for Transport and Secretary of State for Scotland
Secretary of State for Defence
Lord Privy Seal and Leader of the House of Commons
Secretary of State for Health
Secretary of State for Culture, Media and Sport
Parliamentary Secretary to the Treasury and Chief Whip
Secretary of State for the Home Department
Secretary of State for Northern Ireland and Secretary of State for Wales
Minister without Portfolio
Leader of the House of Lords and Lord President of the Council
Secretary of State for Constitutional A¬airs and Lord Chancellor
Secretary of State for International Development
Secretary of State for Trade and Industry
Secretary of State for Education and Skills
Chancellor of the Duchy of Lancaster (Minister for the Cabinet O¬ce)
Chief Secretary to the Treasury
Minister of Communities and Local Government
All members of the Cabinet have, in principle, an equal voice, but it is not usual
for a vote to be taken. The Prime Minister normally sums up at the end of a dis-
cussion and declares what he or she takes to be the Cabinet view.


Patrick Gordon Walker, The Cabinet (rev edn 1972), p 15

A secret of the smooth adaptability of the British Constitution is that the Cabinet, which is
central to the political life of the nation, is unknown to the law and thus extra-constitutional.
Many constitutional changes and amendments that in other countries might have to be
393 Crown and government


formally made are in Britain brought about by developments in the form and functions
of the Cabinet. All that is necessary is that these developments should be accepted
and carried on by successive Governments: often they may scarcely be noticed as constitu-
tional innovations and may not be recognised and analysed until after they have passed into
normal practice.


The modern Cabinet is the result of the slow growth of constitutional
convention and has received only incidental recognition from the law (eg, in
the Ministerial and other Salaries Act 1975, Schedule 1). No powers are formally
vested in it. The Cabinet is not, however, correctly described as ˜extra-
constitutional™ simply because it belongs to the conventional part of the
constitution rather than to the part governed by law. The fact that ¬rm rules
about its composition, functions and procedure are lacking does mean, as
Gordon Walker indicates, that changes in its role and operating practice
may occur without formality or publicity. This feature has led one commenta-
tor to speak of the ˜plasticity™ of Cabinet government (Peter Hennessy, Cabinet
(1986), p 4).
The Ministerial Code (2005), para 6.2, states that the business of Cabinet and
of ministerial committees of the Cabinet consists, in the main, of:

a. questions which significantly engage the collective responsibility of the Government
because they raise major issues of policy or because they are of critical importance to the
public;
b. questions on which there is an unresolved argument between Departments.


The Code adds that: ˜Matters wholly within the responsibility of a single
Minister and which do not signi¬cantly engage collective responsibility as
de¬ned above need not be brought to the Cabinet or to a Ministerial Committee
unless the Minister wishes to inform his colleagues or to have their advice™. The
Prime Minister, Mr Blair, placed a noteworthy gloss on this in saying: ˜Only
where matters cannot be satisfactorily resolved elsewhere need they be referred
to the full Cabinet™: HC Deb vol 301, col 269 W (20 November 1997).
For Bagehot, writing in 1867, the Cabinet was a body chosen ˜to rule the
nation™ and was ˜the most powerful body in the State™ (The English Constitution
(Fontana edn 1963), pp 67, 68). Since then power has drained away from
the Cabinet “ to the great departments of state, the Prime Minister, Cabinet
committees, coteries of senior ministers, and even to organisations and
groups outside government. Richard Crossman expressed the view in 1963 that
the Cabinet was becoming one of the ˜digni¬ed™ (rather than ˜e¬cient™)
elements of the constitution (˜Introduction™ to Bagehot, above, at p 54); he
repeated his view in his Diaries of a Cabinet Minister, 3 vols (1975“77), but his
account of the actual working of the Cabinet gives a more equivocal impression
of Cabinet power.
394 British Government and the Constitution


Richard Rose, Politics in England: Change and Perspective
(5th edn 1989), pp 97“8
The Cabinet is the court of last resort for the resolution of differences between ministers, but
it takes relatively few decisions. One reason is the pressure of time: the Cabinet meets only
once or twice a week [in recent years only once a week], and its agenda is extremely
crowded by routine business, such as reports on pending legislation and foreign affairs, and
by the need to deal with emergencies. A second reason is practical: most Cabinet ministers
will not be informed about most of the work of other departments and have little interest
in discussing activities for which they are not personally responsible. A third reason is orga-
nizational: it is possible to examine issues in formal or informal Cabinet committees.
The Cabinet is a framework within which many decisions can be taken committing the
whole of the Cabinet outside the formal setting of a full Cabinet meeting. When a crisis
requires prompt action, there may not be time to discuss matters with nonexpert ministers,
and the full Cabinet may only be told about a decision when it is a fait accompli. During
the Falklands War, for example, Mrs Thatcher constituted a small ˜War Cabinet™ to supervise
military operations to which the whole of the Cabinet was committed. Actions that give little
prospect of political controversy can be taken within a ministry. Measures low in controversy
may be settled by bilateral discussions between two ministries, with the object of producing
an agreement that will be formally ratified by Cabinet. Ministers who have not been involved
in negotiations prefer to let recommendations pass without question, in the expectation that
their bargains will similarly be approved when they appear on the Cabinet agenda.


Graham P Thomas, Prime Minister and Cabinet Today (1998), p 192
It is impossible to definitely state the role of the Cabinet and what its functions are. A great
deal depends on the personalities involved and the political circumstances at any particular
time. It is no longer the case (if it ever was) that the Cabinet directs and oversees govern-
ment policy on a continuous basis. The sheer scale and complexity of governmental respon-
sibilities make this impossible; many crucial decisions, especially those relating to defence,
security and key financial and economic issues, are kept away from Cabinet and taken by the
Prime Minister and a close circle of colleagues and advisers. The use made by successive Prime
Ministers of the Cabinet, the extent to which it has acted in a collegiate manner as opposed
to being in a sense a ˜rubber stamp™ for prime ministerial initiatives, has varied since the war.
Thus the Cabinet is best seen as a part of a wider central executive, acting basically as a body
to ratify decisions taken elsewhere, receiving reports rather than initiating action. On the other
hand, its importance should not be ignored. Although rarely a policy-making body, its consent
to major initiatives must usually be obtained and not even the most determined Prime
Minister could prevail against the opposition of the majority of his or her colleagues for long.

Martin Smith held it to be a ˜constitutional myth of collective responsibility,
which sees the cabinet as the central decision-maker in government™, whereas
in reality ˜the majority of decisions, most of the time, are made elsewhere™
(The Core Executive in Britain (1999), p 72).
395 Crown and government


In the 1945“51 Attlee Government the decision to develop a British atomic
bomb was made by the Prime Minister and an inner group of leading ministers
in a Cabinet committee, Mr Attlee taking the view that ˜the fewer people who
were aware of what was happening, the better™ (J Mackintosh, The British
Cabinet (3rd edn 1977), p 502). The issue was not discussed in Cabinet.
Similarly, in the 1974“79 Labour Government the critical decisions on
development of the improved Polaris missile (Chevaline) and on support for a
NATO programme of new theatre nuclear weapons in Europe, were taken not
by the Cabinet but by small groups of senior ministers. In 1984 a controversial
decision by the Conservative Government to ban trade union membership at
the Government Communications Headquarters at Cheltenham was taken by
a group of ministers without discussion in the Cabinet. The decision to allow
British bases to be used for the American air attack on Tripoli in April 1986 was
taken by the Prime Minister after consulting three Cabinet ministers: other
ministers learned of the raid from the radio news. (See Peter Hennessy,
Whitehall (1989), pp 317“8; Hugo Young, One of Us (1993 edn), p 476.) A con-
tentious decision to close thirty-one coal pits in 1992 was taken by the Prime
Minister together with ministers in economic departments without Cabinet
discussion or approval (The Times, 16 October 1992).
It is generally agreed that collective decision-making in Cabinet su¬ered
a marked decline during the ˜Thatcher years™, 1979“90, when Mrs Thatcher
reduced the number of Cabinet meetings, asserted a dominating authority in
Cabinet (at all events from 1981), and channelled decision-making to Cabinet
committees and informal meetings with small groups of ministers. Sir
Christopher Foster remarks that Cabinet was turned into a ˜business meeting™,
and ˜was not meant to discuss policy™ (A Stronger Centre of Government (1997),
pp 1, 6). It was on the ground of a failure of collective “ or, as he expressed it,
˜constitutional™ “ government that Mr Heseltine, Secretary of State for Defence,
justi¬ed his resignation from the Government during the Westland a¬air in
January 1986. In his resignation statement he deplored what he saw as a denial
of opportunity for full, collective discussion by ministers of the issues of
helicopter procurement, European collaboration and the defence industrial
base arising from the reconstruction of the Westland helicopter company.
(Mr Heseltine™s resignation statement was published in The Times on
10 January 1986. The Westland a¬air has been considered above, pp 377“8.
Nigel Lawson gives a more ambivalent assessment of Cabinet government
under Mrs Thatcher (The View from No 11 (1993 edn)). Remarking that ˜in
general and for good reason, key decisions were taken in smaller groups™, he
continues (p 125):


The Cabinet™s customary role was to rubber stamp decisions that had already been taken, to
keep all colleagues reasonably informed about what was going on, and to provide a forum
for general political discussion if time permitted.
396 British Government and the Constitution


Lawson also refers, however, to Mrs Thatcher™s ˜increasingly complex attempts
to divide and rule™ through very small, hand-picked groups (p 128).
Mr Major has said of his premiership (1990“97), ˜I was very keen to bring
Cabinet Government back™ (Evidence to the Public Administration Committee,
HC 821-i of 1999“00, Q8) and the Major years saw a partial revival of tradi-
tional decision-making in Cabinet and Cabinet committees. As Patrick Weller
has observed, however, the ˜party and parliamentary circumstances™ of
Mr Major™s administrations were crucial in this: ˜Every prime minister in the
last ¬fty years who relied heavily on cabinet has been in a parlous political
situation, either in Parliament or in the polls™ (˜Cabinet government: an elusive
ideal?™ (2003) 81 Pub Adm 701, 714).
The revival has not been maintained under Mr Blair: Cabinet and its
committees have again been overshadowed by informal processes of decision-
making, in ad hoc meetings and bilateral discussions between the Prime
Minister and individual ministers “ a ˜creeping bilateralism™, it is said, such as
characterised the Thatcher years (P Hennessy, The Blair Revolution in
Government? (2000), p 13. See also P Hennessy, The Prime Minister (2000),
pp 517“23.) Before and during the Iraq war in 2003 the Cabinet, in its brief
weekly meetings, was not kept fully informed; in particular, the Attorney
General™s written advice on the question of legal authority for the war was not
made available to the Cabinet. The Prime Minister and the Foreign and Defence
Secretaries briefed the Cabinet orally, but relevant and informative papers
written by o¬cials were not discussed in Cabinet or Cabinet Committee. In the
year before the start of the war there were frequent informal meetings of the
Prime Minister and a small number of leading ministers, o¬cials and military
o¬cers, and during the con¬‚ict there was oversight by an informal ˜war cabinet™
consisting of the Prime Minister, three Secretaries of State and prime-
ministerial o¬cial advisers. The Defence and Overseas Policy Committee of the
Cabinet did not meet during the Iraq crisis. (On these matters see Clare Short™s
evidence to the House of Commons Foreign A¬airs Committee, vol III, HC
813-III of 2002“03, QQ 63“156; Clare Short, An Honourable Deception? (2004),
pp 147, 186“7, 247, 254“5; Butler Report, Review of Intelligence on Weapons
of Mass Destruction (HC 898 of 2003“04), paras 606“11.) The Butler Report
concluded:


We do not suggest that there is or should be an ideal or unchangeable system of collec-
tive Government, still less that procedures are in aggregate any less effective now than
in earlier times. However, we are concerned that the informality and circumscribed
character of the Government™s procedures which we saw in the context of policy-making
towards Iraq risks reducing the scope for informed collective political judgement. Such
risks are particularly significant in a field like the subject of our Review, where hard facts
are inherently difficult to come by and the quality of judgement is accordingly all the
more important.
397 Crown and government


With respect to Mr Blair™s ˜informal style™, the former Cabinet Secretary, Lord
Wilson of Dinton, has remarked (in W Runciman (ed), Hutton and Butler:
Lifting the Lid on the Workings of Power (2004), p 85):

Different Prime Ministers have different ways of doing business and there is no ˜right™ way
of running a Government. It is quite possible to reconcile due process with an informal style.
But the risk is that informality can slide into something more fluid and unstructured, where
advice and dissent may either not always be offered or else may not be heard.

The role of the Cabinet in the working of central government is ¬‚uid and
variable, and if Cabinet has su¬ered a decline it is not yet moribund. GW Jones™
observation in 1975 that ˜for the most politically important issues the Cabinet
is the e¬ective decision-making body™ (in W Thornhill (ed), The Modernization
of British Government (1975), p 31) may need quali¬cation but has not yet been
falsi¬ed. Professor Jones has since remarked that even Mrs Thatcher™s style of
government was not without precedent and that she ˜streamlined cabinet
government without losing its essential collective nature™ (˜Cabinet government
since Bagehot™ in R Blackburn (ed), Constitutional Studies (1994 edn), pp 20“3).
It may be di¬cult to refute Martin Burch™s conclusion that ˜the idea that the
Cabinet is in supreme control of decision-making must be judged untenable™

<<

. 77
( 155 .)



>>