Issues of Ministerial Responsibility

issue under consideration here relates to the issue of ministerial responsibility

The issue under consideration here relates to the issue of ministerial responsibility for the errors for the civil servants or department and whether the minister is liable to offer his resignation for such errors. The issue arises because Napoleon Solo being the Secretary of State has authorised the making of the Home Office report by a civil servant in the department and has then presented the report to the public. As the report was later found to be misleading and inaccurate, the issue arises if Napoleon Solo should resign from his post as Secretary of State for the Home Office.

The responsibility for ministers for the actions of the civil servants and their departments is a constitutional convention in the UK. These constitutional conventions are an essential aspect of political and administrative working of the government. There being no written constitution in the UK, the affairs of the government are guided by an unwritten constitution and constitutional conventions. One of the constitutional conventions relates to the responsibility of the ministers to resign from their office if a certain degree of mismanagement of their departments is shown. However, ministers do not always resign from their departments and the various incidents of such resignations or refusal to make such resignations show that the convention in this respect is fluid and interpretative in nature. Distinctions are also drawn between personal fault and responsibility for errors by the department. For instance, in 1983 following the escape of prisoners from the Maze Prison in Northern Ireland, the Northern Ireland Secretary James Prior refused to resign. He said that he was not personally at fault, therefore, not responsible to offer his resignation.

he was not personally at fault, therefore, not responsible to offer his resignation. In the situation involving Napoleon Solo, there is no personal fault of the minister, therefore, he may argue that there is no requirement under the law for him to resign. Even in situations where the minister has been shown to be incompetent, there may be a motion for his resignation. However, under the law, there is no requirement for him to resign in such a case.

With respect to ministerial responsibility, there are three categories of convention, which are, confidence, collective cabinet responsibility and individual ministerial responsibility. Collective cabinet responsibility provides that the ministers of the cabinet must agree with the decisions of the cabinet in public, even if in private, they do not agree with these decisions. The principle behind this is that the government must stand or fall as a whole.

The ministers are undoubtedly responsible for the functioning of their departments and the errors made by the civil servants or the department. However, that does not necessarily translate into a requirement for them to resign for every error made by the civil servant or department. In some instances, ministers have resigned due to the errors or actions of the civil servants. For instance, the Minister for Agriculture, Sir Thomas Dugdale resigned in 1954 by taking responsibility for errors committed by the civil servants within his department. This despite the fact that the mismanagement had been by the civil servants and there was no personal mismanagement by the minister.

The newer interpretations of ministerial responsibility to resign show that a distinction is drawn between responsibility and accountability, wherein, while the ministers are accountable for the actions of their departments to the Parliament, they are not responsible for offering resignations unless their personal or direct involvement in the problem or error can be shown. Difference is also drawn between failures of policy, for which the minister must offer his resignation, and operational issues, for which the minister need not resign, as was successfully argued by Home Secretary Michael Howard.

Sir David Maxwell Fyfe stated that ministers are responsible to resign for the errors of the civil servants only when the civil servant has acted in strict compliance of an explicit order from the minister and when the civil servant is acting as per the policy laid by the minister.

The issue here is the belief of Napoleon Solo that he is not bound to offer his resignation because this is a convention and not a law. Therefore, there is no legal enforceability of his resignation if he voluntarily does not offer it. Thus, the main issue hinges on the similarities and dissimilarities between conventions and laws and whether the former can be binding in the same sense as the latter are and their application to Napoleon Solo’s situation.

Some of the notable examples of resignations by ministers include the resignation of Sir Thomas Dugdale after the Chrichel Down affair. In 1982, Lord Carrington and two other ministers from the Foreign Office resigned after the invasion of the Falkland Islands. In 2002, the Secretary of State for Education, Estelle Morris resigned after a scandal over A level marking.

Conventions and law differ from each other in some significant respects. Where the existence of a law and its binding nature is usually clear, conventions are not always easily discernible to have legal status. Dicey has distinguished between laws and convention on the ground that unlike the former, the latter cannot be enforced by courts. Jennings provided a three-part test for testing the valid existence of a convention, and these are: the existence of a precedent; the belief of the actors in the precedent of being bound by the rule; and there being a good justification for the rule. The discussion clarifies that there is a distinction between conventions and laws. However, even if conventions may not have the same status as law, they are definitely much more than customs and usages. In the UK, the government formation itself is a matter of convention as the office of the Prime Minister and the Cabinet formation is a convention.

Another point to be noted here is that conventions are not followed they may be justiciable and the non-observance of the convention can be challenged in a court of law. At the same time, it is important that many of the instances where conventional rules are related, courts do refuse to interfere in the application of such rules, as these are seen to be a part of the ministerial conventional accountability to the parliament. This shows that even if conventions are differentiated from law, that does not mean that convention is any less important than the law as the courts refuse to interfere in the convention.

With respect to the present case, even if Napoleon Solo has a belief that the convention is not legally binding because it is not the law, this would not be the correct or appropriate view because even if conventions are not law, these are still binding and can even be enforced through the courts. Having said that, it is important to consider the areas of divergence between law and convention.

Conventions are derived from fundamental political principles that are used by governments to inform their practice. Therefore, government does consider conventions to be binding upon it although conventions cannot be enforced in a court of law. Although conventions are not law and for that reason they are often defined negatively, they do occupy a more fundamental realm because these conventions govern the formation of government and the rule and law making, therefore, in a sense conventions do precede the law.

This situation concerns the convention concerning individual’s responsibility to resign in case of departmental errors. There is no statute in the English law that lays down individual ministerial responsibility. Some guiding rules have been made to make the conventions clear and these may be applied to such cases. The first and principal official guidance note for ministers is the Questions of procedure for ministers (QPM). The QPM was first published in 1992 and the same was amended in 1995. The present version of the QPM is the one which was revised and reissued in 1997 as the Ministerial Code. A recent reissue of the Ministerial Code was issued in December 2016. With respect to the issue under discussion, that is, the ministerial responsibility and resignation, the code specifically provides:

“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”

Here, the language suggests that there is no legal liability to resign if the Minister has failed to give accurate information to the Parliament. Rather, there is an expectation that the Minister concerned will offer such resignation to the Prime Minister. Moreover, in the case of Napoleon Solo, the information was not given to the Parliament, but the public.

According to Brazier, each minister is broadly responsible for his private conduct, the general conduct of his department, and acts done (or left undone) by officials in his department.

The law would not require the minister to resign. There are distinctions drawn between ministerial responsibility for personal faults and those for operational and administrative failure. The position is yet unclear as to the extent of a minister’s responsibility to offer his resignation. For this particular situation, where there is no personal fault of the minister, there is no requirement under the law to resign, although the minister may take moral responsibility for the wrong committed by the prison officer. Claims of incompetence of the minister could lead to a motion for his resignation, but there is not requirement under the law for him to resign in such a case.

Bibliography

• Brazier R, Ministers of the Crown (Clarendon Press 1997)
• Broadbent G, Public Law Directions (Oxford University Press 2009)
• Cabinet Office, “The Ministerial Code 2016”, accessed https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/579752/ministerial_code_december_2016.pdf
• Caulfield M, “Constitutional Conventions in the United Kingdom: Should they be codified?”, (2012) 1 (42) Manchester Student Law Review 42.
• Dicey AV, Introduction to the Study of the Law of Constitution AV Dicey (10th ed., London: Macmillan & Co. 1959)
• Galligan B and Brenton S, “Constitutional Conventions”, in Brian Galligan and Scott Brenton, Constitutional Conventions in Westminster Systems: Controversies, Changes and Challenges (Cambridge: Cambridge University Press 2015)
• Jaconelli J, “Do Constitutional Conventions Bind?”, (2005) 64(1) The Cambridge Law Journal 149.
• Gay O, “Individual ministerial accountability” (SN/PC/06467 of 8 November 2012), accessed researchbriefings.files.parliament.uk/documents/SN06467/SN06467.p
• Gay O and Powell T, ‘Individual ministerial responsibility- issues and examples’, accessed
• Jennings I, The Law and the Constitution (5th ed., London: University of London Press 1959)
• Webley L and Samuels H, Complete Public Law: Text, Cases, and Materials (3rd Edition, Oxford: Oxford University Press 2015)