Central government and accountability - Mechanisms of accountability

Learning Outcomes

This article outlines the primary mechanisms ensuring the accountability of the UK's central government. It details the conventions of collective and individual ministerial responsibility and introduces judicial review as a legal check on executive power. For the SQE1 assessments, you will need to understand how these mechanisms function to hold government ministers and departments answerable for their actions and decisions. This knowledge will enable you to identify the relevant constitutional principles and apply them to specific factual scenarios presented in SQE1-style multiple-choice questions.

SQE1 Syllabus

For SQE1, you are required to understand the key mechanisms that hold the UK central government to account. This involves appreciating the constitutional conventions supporting ministerial responsibility and the role of the courts in scrutinising executive action through judicial review. Your revision should focus on:

• The concept and application of collective ministerial responsibility.
• The concept and application of individual ministerial responsibility.
• The role of the Ministerial Code in setting standards of conduct.
• Judicial review as a means of ensuring government actions are lawful.
• The practical implications of these accountability mechanisms in different governmental contexts.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which constitutional principle requires all government ministers to publicly support government policy, regardless of private disagreement?
   1. Parliamentary sovereignty
   2. Separation of powers
   3. Individual ministerial responsibility
   4. Collective ministerial responsibility
2. A government minister is found to have personally accepted inappropriate gifts from a business seeking a government contract. Which principle of accountability is primarily engaged?
   1. Collective responsibility
   2. Individual ministerial responsibility (personal conduct)
   3. Judicial review
   4. The rule of law
3. Which body ultimately determines whether a government decision is lawful when challenged via judicial review?
   1. Parliament
   2. The Prime Minister
   3. The relevant government department
   4. The courts

4. True or false? Constitutional conventions like ministerial responsibility are legally enforceable in UK courts.

Introduction

Accountability is a fundamental element of the UK's unwritten constitution, ensuring that government power is exercised responsibly and subject to scrutiny. For SQE1, understanding the mechanisms by which central government and its ministers are held to account is essential. These mechanisms primarily involve political accountability through ministerial responsibility (both collective and individual) and legal accountability through judicial review. These processes ensure that ministers answer for their decisions, the actions of their departments, and their personal conduct, and that government action remains within the bounds of the law.

Ministerial Responsibility

Ministerial responsibility is a central constitutional convention governing the conduct of government ministers. It is not legally codified but is outlined in the Ministerial Code, a document issued by the Prime Minister setting standards of conduct. It operates in two forms: collective and individual.

Collective Ministerial Responsibility

Collective responsibility dictates that all members of the government are jointly responsible for its policies and decisions. Once a decision is made, usually in Cabinet, all ministers must support it publicly, irrespective of their personal views or departmental stance.

Key Term: Collective Ministerial Responsibility
The convention that ministers are jointly responsible for government policy and must publicly support all government decisions. Confidentiality of internal discussions and the requirement to resign if unable to support policy are key aspects.

The core elements include:

• Unanimity: Ministers must present a united front to Parliament and the public. If a minister cannot publicly support a major government policy, they are expected by convention to resign.
• Confidentiality: Discussions within Cabinet and its committees remain confidential to allow for frank debate. Unauthorised disclosure is a breach of this convention.
• Confidence: The government as a whole must retain the confidence of the House of Commons. If the government loses a vote of confidence, it is expected to resign or seek a dissolution of Parliament.

Worked Example 1.1

The Cabinet decides on a new environmental tax policy after considerable internal debate. The Secretary of State for Transport privately opposed the policy, fearing its impact on road users. However, following the Cabinet decision, the Secretary publicly endorses the policy in a press conference. A week later, leaked emails reveal the Secretary's initial opposition. What constitutional convention has been potentially breached?

Answer: The convention of collective ministerial responsibility, specifically the principle of confidentiality regarding Cabinet discussions, appears to have been breached by the leak. The Secretary of State, however, adhered to the unanimity aspect by publicly supporting the agreed policy despite private reservations.

Individual Ministerial Responsibility

Individual ministerial responsibility holds ministers personally accountable for their actions and the actions of their department.

Key Term: Individual Ministerial Responsibility
The convention holding ministers accountable to Parliament for their own conduct and the conduct of their department. This includes answering for policy decisions and administrative errors.

This convention covers two main areas:

• Departmental Responsibility: Ministers are responsible for the policies, decisions, and actions of their government departments and agencies. They must answer questions in Parliament, provide information, and take corrective action if errors occur. Resignation may follow serious departmental failures, though this is less common today than accounting to Parliament.
• Personal Conduct: Ministers must uphold high standards of behaviour and propriety in their personal lives, ensuring no conflict arises between their public duties and private interests. Breaches of the standards expected by the Ministerial Code may lead to resignation.

Worked Example 1.2

A significant error in processing benefit payments by the Department for Work and Pensions leads to thousands of claimants receiving incorrect amounts, causing widespread hardship. The Secretary of State for Work and Pensions is called to Parliament to explain. What aspect of ministerial responsibility is primarily engaged, and what is the Minister expected to do?

Answer: Individual ministerial responsibility (departmental responsibility) is engaged. The Secretary of State is expected to account to Parliament for the department's failures, explain the cause of the error, outline the steps being taken to rectify the situation and prevent recurrence, and potentially offer an apology. Resignation would depend on the severity of the failure and the political context.

Exam Warning

Distinguish carefully between collective and individual responsibility. Collective responsibility relates to government policy and requires Cabinet solidarity. Individual responsibility relates to a minister's own actions or their department's actions. While both are conventions, their focus and consequences differ.

Judicial Review

Judicial review is a distinct mechanism providing legal, rather than political, accountability. It allows the courts to review the lawfulness of actions and decisions made by public bodies, including government ministers and departments.

Key Term: Judicial Review
A court procedure where a judge reviews the lawfulness of a decision or action made by a public body. It is concerned with how a decision was made, not its merits.

Judicial review ensures that the executive acts within the powers granted to it by Parliament (intra vires) and respects the rule of law. It is not an appeal against the merits of a decision, but a challenge to its legality.

Grounds for Judicial Review

The main grounds on which a decision can be challenged are:

• Illegality: The decision-maker acted outside their legal powers (ultra vires), misunderstood the law, delegated power unlawfully, or considered irrelevant factors/failed to consider relevant factors.
• Irrationality: The decision is so unreasonable that no reasonable decision-maker could have reached it (often called Wednesbury unreasonableness).
• Procedural Impropriety: The decision-making process was unfair, biased, or failed to follow required statutory procedures or rules of natural justice (e.g., right to a fair hearing, rule against bias).
• Breach of Human Rights Act 1998: The decision is incompatible with a Convention right.
• Breach of Legitimate Expectation: The decision unlawfully frustrates an expectation created by the public body's promise or practice.

Worked Example 1.3

The Home Secretary makes a decision under statutory powers to refuse entry visas to all applicants from country X, based on a blanket policy without considering individual applications. The relevant statute requires the Home Secretary to consider each application on its merits. An applicant from country X seeks to challenge the refusal. What is the likely ground for judicial review?

Answer: The likely ground is illegality. The Home Secretary appears to have acted ultra vires by failing to exercise the discretion granted by the statute (fettering discretion through a blanket policy) and potentially by failing to consider relevant factors (the individual merits of the application).

Limitations

Judicial review is subject to procedural requirements, including time limits (claims must usually be brought promptly and within three months) and the need for the claimant to have ‘sufficient interest’ (standing) in the matter. Furthermore, courts generally defer to the executive on matters of high policy or national security. Recent legislation, such as the Judicial Review and Courts Act 2022, has introduced further modifications to remedies available.

Revision Tip

For SQE1, focus on identifying the correct ground for judicial review in a scenario, rather than the procedural complexities of bringing a claim. Understand the difference between challenging the legality versus the merits of a decision.

Interplay of Accountability Mechanisms

Ministerial responsibility (political accountability) and judicial review (legal accountability) operate alongside each other. A minister might be held politically accountable in Parliament for a decision, while the same decision could be challenged in court via judicial review for its lawfulness. For example, a minister might survive a parliamentary vote of confidence regarding a controversial policy (satisfying collective responsibility), but the policy itself could later be quashed by the courts if found to be unlawful.

Key Point Checklist

This article has covered the following key knowledge points:

• Accountability mechanisms ensure central government acts lawfully and responsibly.
• Ministerial responsibility is a constitutional convention with two strands: collective and individual.
• Collective responsibility requires government solidarity, confidentiality, and confidence.
• Individual responsibility holds ministers accountable for their department's actions and their personal conduct.
• The Ministerial Code provides guidance on the standards expected of ministers.
• Judicial review is a legal process where courts scrutinise the lawfulness (not the merits) of decisions by public bodies, including ministers.
• Grounds for judicial review include illegality, irrationality, and procedural impropriety.
• Political and legal accountability mechanisms can operate concurrently.

Key Terms and Concepts

• Collective Ministerial Responsibility
• Individual Ministerial Responsibility
• Judicial Review