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Ministerial Responsibility

Public international law (University of Dar es Salaam)

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MINISTERIAL RESPONSIBILITY
GEOFFREY MARSHALL
IN rejecting proposals for settingup new machinery to investigate
complaints against the administration the Government have stated
that the methods suggested would be incompatible with the British
constitutional doctrine of ministerial responsibility. Judgment of
the relevance of this objection may be assisted by a review of
some of the ways in which similar arguments about ministerial
responsibility havebeen used in the past.

The General Nature of the Doctrine

The uncontroversial implications of ministerial responsibility may
be stated simply. Ministers, asthe Crown’s servants, carry on the
executive government of the country. They accept legal resr-
sibility for the use made of the royal prerogative and for the a vice
which they give to the Crown. They are politically accountable to
the House of Commons both collectivelyand individually. They
must by convention resign if defeated in the Commons on an
important policy issue. A Minister as head of a department should
resign if he is found to be at fault in the running of it or if
important errors are made by civil servants under his control which
are of such a kind that they imply inadequate supervision by the
Minister. (It has sometimes been suggested that resignation should
follow as a form of vicarious penance for any administrative
misdeed, but no one now appears to believe this.’)
For the present purpose it is unnecessaryto trace the history of
the process by which the Crown’s Ministers became collectively
responsiblefor their policies. Today the significanceof this may be
seen in what ministerial responsibility is contrasted with, namely,
a system of government in which legislature and executive are
constitutionally cwrdinate and (as in the United States) the
administration is not formally answerable to the legislature.
Answerability in a literal sense isone of the primary characteristics
The author is a Fellow of The Queen’s College, Oxford, and Lecturer in Politics in
the University of Oxford.
1 The most frequently cited post-war dicta about responsibilityin relation to civil servants
are thox of SirDavid Maxwell Fyfe and Mr. Herbert Morrison(as they then were)
speakingin the Crichel Down Debate of 1954, 530 H.C.Dcb. 5 s., cols. 1286-1287 and
1278-1280. Sce also Lord Morrison’s Government and Purliument (1954), pp. 320-324,
Sir Ivor Jcnnings, Cabinet Goumment (3rd cd.), p,
120-133, and S. E. Finer, The
Individual Responsibilityof Ministers” (Public A mrnrstrutron 1956, p. 377).

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MINISTERIAL RESPONSIBILITY
of the British systemin that Ministers may be asked questions about
matters which fall withinthe field of their de tment's work. A
number of propositionsabout the civil service erefore must also betr
included in a statement of the ministerial res nsibility principle.
Civil servants speak throu h the mouth of t e Minister or of a
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ministerial spokesman an have no other constitutional channel
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of communication with the public, the Press, or Members of
Parliament. All of this is elementary and undisputed.
What the Principle is Not
It is important, however, to notice one way in which the doctrine
of ministerial responsibility is uninformative. It merely tells us
that Ministers must be accountable and answer to Parliament and
ultimately the electorate for matters which are entrusted to them or
to their departments. It does not tell us what matters ought to be
entrusted to them or in what degree solelyentrusted to them. As a
principle of the Constitution, ministerialres nsibility certainly does
g.
not imply that Ministers must be responsi le for all public issues.
Erskine May s cifies many matters for which Ministers are not
f"
held answerabe by way of questioning in either House of
Parliament.
Nor can it be deduced from the principle that Ministers alone
should make the final decision in all matters affecting the work of
their departments. Otherwise an administrative tribunal would bc
a standing interference with ministerial responsibility. In many
fields of which pensions, national insurance, and industrial injuries
are typical, deasions made in the name of a Minister may be
disputed by the citizen and reversed after an independent decision
over which the Minister has no control and which he cannot over-
ride. Of course this is because Parliament, in passing the relevant
statutes, has laid down general rules and decided that decisions
affectin the rights of individual citizens shall be made in this way;
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but Par ament has equally obviously provided in other fields that
decision-making shall be shared in a variety of ways between
Ministers and other bodies. A ublic inquiry, a consumer council,
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an advisory committee or the se ect committees on Statutory Instru-
ments, Nationalised Industries, and Estimates all result in the
making of inquiries and the publishing of conclusionsabout matters
a Obvious exam la being restions decided in courtsof law, decisions in day-to-day
matters taken !y the boar s of nationalid industries, and matters underthe cone01 of
local authorities. In the 16th cd. of Parliammtmy Practice (ed. Fcllowes and Cocks)
(1959, twenty-nine inadmissible types of question are listed.

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GEOFFREY MARSHALL

falling within the field of departmental business. Again, in the

Council on Tribunals appointed under the Act of 1958’ Parliament
has set up a non-departmental body with powers of inquiry and
report. Both the Council and the Estimates Committee may carry
on a public argument with a Minister on a matter falling within
the Minister’s duties. Recent examplesare the correspondence
between the Council and the Lord Chancellor about the ‘ chalkpit
case ” ’ and the Estimates Committee’s criticismsand ministerial
counter-observationson the organisation of the War Office.5
Thus in some areas of administration Parliament has provided
that Ministers shall have a relatively clearfield for decision; in some
areas that certain kinds of decision shall not rest within the
Minister’s discretionat all; and in yet other areas that there shall be
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various external bodies com tent to inquire, criticise or tender
advice on matters about w ch Ministers take a final decision.
There is nothing “ natural ” or sacrosanctabout ministerial respon-
sibility or discretion in its simplest form. It is merely one form of
decision-making. All that can be historically or logically deduced
from our present arrangements is that Parliament does not provide
for Ministers to be responsible to the legislature where it has made
arrangements for the relevant uestions to be argued before and
i!
decided by some other body wit executivepowers such as a court,
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an administrative tribunal or an independent authorit of any kind.
But Parliament might, without violating this princip e, provide for
ministerial decisionsto be reached in any of a number of ways and
for administrative discretion to be subject to many forms of scrutiny
and publicity. The British Constitution is potentially fertile in
devicesof this kind.

The Usesof the Ministerial Responsibility Argument

Nevertheless, it cannot be denied that the principle of ministerial
responsibility has very frequently been cited by Ministers and
governmental spokesmen when placed in certain predicaments or
when faced by certain demands. Though these situations overlap
they could be set out under the following heads:
(1) Occasions on which Parliament has demanded independent
inquiries into matters of civil or military administration.
Tribunals and Inquiries Act (6 & 7 Elu. 2, c. 55).
4 See Annual Report of the Council on Tribunals 1961, pp. 12-14, and 239 H.L.Dcb.
1139-1154.
s H.C. 25, 1962, Third Special Report from the Ertimates Committee.

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MINISTERIAL RESPONSIBILITY

(2) Occasionson which requests are made for information in the

hands of Ministers and these meet with refusal on the
ground that disclosureto Parliament or the public would be
contrary to the ublic interest.
R;
(3) Occasionson w ch new administrative machineryor parlia-
mentary procedures are proposed and resisted on the ground
that ministerial authority would be impaired.
Examples under each heading are not difficult to find.
Inquiries into Administration
There is no doubt that the law and custom of Parliament enable it
to set up inquiries into the activities of Ministers or their servants
and to require the production of papers. Each House enjoys this
authority separately. A distinction is, however, drawn between
matters which involve the exercise of the royal prerogative and
matters which do not. In the latter case the House itself orders the
return of papers; in the former they are obtained via an address
to the Crown. The application of the princi le, Erskine May tells
f
us, is not always clear, but “ as a general ru e it may be stated that
all public departments connected with the collectionor management
of the revenue, or which are under the control of the TreasurJ3 Or
are constituted or regulated by statute, may be reached by a irect
order from either House of Parliament : but that ublic officersand
departments subject to Her Majesty’ssecretarieso state or the Privy
Council are to receive their orders from the Crown ”. Given the
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modern party system, different advice is not likely to be presented
to the Crown by the House of Commons ’ and by Ministers (who
in general have the right to advise the Crown as to the exercise of
the rero ative). But constitutionally there is the possibility of a
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con ict o advice, since the Cabinet or responsible Ministermight
advise against production of the return despite the advice
in the House’s address. Such a situation could be resolve only by
a ministerial resignation. May, however, recognises that a motion
groffered
for papers will not be put down where “considerations of public
it. The opinions of law offcers given
in any question of di lomacy or state
policy provide an example.* So obviouslydo recor s of proceedings
in Cabinet.
B
0 Parliamentary Practice (16th ed.), p. 271.
7 Though the House of Lords may well contain a majority hostile to the government of
the day.
8 May at p. 273.

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GEOFFREY MARSHALL
There is a passage in the same writer’s Constitutional History
which aptly points the fact that executive authority belongs to
Ministers and the Crown. “ Parliament has no direct control over
le department of the state. It may order the roduction of
its information, it may investigate the con uct of public
may pronounce its opinion upon the manner in which
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every function of the government has been or ought to be dis-
charged. But it cannot conveyits orders or directions to the meanest
executive officerin relation to the performance of his duty.’”
May’s distinction here is an essential inference from the principle
of ministerial responsibility. The borderline between inquiry and
execution is one which the Commons was sometimes thought to
have overstepped in periods when Parliament’s authority over the
Crown’s servantswas greater than that which has become familiar
in the last century.”
One notable piece of parliamentary enterprise occurred in 1695
when the Commons resolved that a Council of Trade be set up
which should have powers to require information from merchants
and traders and to send directions for the protection of trade to the
Lord High Admiral “which directions are to be controulable by
His Majesty under his Sign Manual ”. They were to receive pro-
posals for the better employing and setting on work of the poor of
the Kingdom and in addition it was resolved that “the said
Commissioners be likewise impowered to receive complaints in
relation to trade, of the misbehaviour of Commanders and Officers
and to re resent the same to His Majesty . . . and send their direc-
tions to tl!e Admiralty against offenders according to
law ”.I1 Though this an interesting precedent as a
iece of machinery of grievances its somewhat
gizarre mixture of functions could certainly be described in today’s
idiom as a derogation from ministerial responsibility.
A much later inquiry which Ministers at least regarded in that
light was the committee which was roposed in the Commons in
1855 to investigate the conduct of t e Crimean war. Roebuck’s
motion was: “That a Select Committee be ap inted to inquire
fl
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into the condition of our arm before Sebastopo and into the con-
duct of those Departments o the Government whose duty it has
0 Constiturional History of England (1863), Vol. I, p. 466.
p“
10 See, for examples, Hallam’s comments on various committees set up towards the end of
the seventeenth century to inquire into matters of civil and military administration.
The “interference of Parliament with all the course of government . ..
if not abso-
lutely new, was more uncontested and more effectual than before therevolution ”.
Henry Hallam, Constitutional Histo of England (1832 ed), Vol. 3, p. 194.
11 11 Commons lournalr, 423 (January%, 1695).

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MINISTERIAL RESPONSIBILITY

been to minister to the wants of the army”. Though the Com-

mittee eventually sat it was resisted by Ministers and Aberdeen’s
Cabinet fell after a defeat in the House on the issue. Mr. Gladstone
had no doubts about the impropriety of the Committee.” He
thought it “ a proceeding which has no foundation either in the
constitution or m the practice of preceding Parliaments ”. It was,
he thought, a transfer of the functions of the executive to a select
committee. Here Gladstone can be seen adopting a rather modern
attitude, albeit unsuccessfully. He and his colleagues were simply
attem ting to treat as a matter of confidencea propal for inquiry
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unwe come to the ministry. But their arguments o principle hardly
stand examination. There was nothing unprecedented about the
inquiry. Nor did it transfer the executivegovernment in any sin le
matter to a select committee as its opponents suggested. l%e
in uiry revealed much which might otherwise have remained
1
hi den. It provides an apt illustration of the way in which the
House of Commons was able at that time to extract information
from the government.’’ Ministerial responsibilit in the sense of
answerability to the House of Commons operatedr both collectively
and on individual Ministers.
The facts of life in the shape of solid party voting in the House
which have transformed this picture are well known. Whilst a
overnment retains its support collective ministerial responsibility
Lcomes in ractice answerability to the electorate at a tune in the
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future large y within the Prime Minister’s control. Responsibility
for individual acts of administration is often impossible to enforce,
and it has been possibleto argue that in the absence of any other
than parliamentary methods of investigating and publicisin
administrative failings, the extent to which this function is carric
out in the British system is unduly hampered and attenuated.
8
The disadvantages of public opinion and general elections as
checks upon ministerial power were aptly enough described in
12 136 Parl.Deb. 3 s., col. 1205, and John Morley, Life of Gludzronc, Vol. I, p. 388 e: re
Cf. the speech of Mr. Sidnc Herbert: ‘‘ You cannot mean to inquire into the mo%;
of conducting the business ola dcpartmcnt, or to enter into a pedantic disquisition as
to the duties of this or that office; for depend upon it you must look no;,= much to
the form of the office as to the energy and will of the man who holds it . 136 Pul.
Deb. 3 s., col.998. The Commons, of course, wanted to look at both.
1s The ition of the Cabinet in relation to the demands of private members at this
pcrixs described in John P. Mackintosh’s recent study, The Britirh Cabine: (1962),
pp. 71-105. It is rcmarkcd that the effect of yielding to demands for informauon or
papers was not necessarilyalways to weaken the government’s position. In consequence,
“the House, the Press, and the public had very full accounts of the Levant crisis of
1839-41, the origins of the Crimean war, the arguments over Italy, Schlawig-Holstein,
and all the other major questions laid before them almost at once” (:bid. p. 93). The
twentieth-century Housc of Commons has been less fortunate.

261
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GEOFFREY MARSHALL

Sidney Low’s Governance of En land, first published in 1904.

f
“ For the control of Parliament ” ( e wrote) “ which was supposed

to be regular steady and constant is exchanged the control of the

electorate which is powerful but intermittent. It is brought into
operation at uncertain intervals and is exercisedonly with reference
to one or two great issues of policy, often determined by Ministers
themselves,instead of being applied from day to day to the conduct
of public affairs.” l4 The facts in any situation in which indepen-
dent inquiry would be likely to damage the electoral image of
Ministers in ofice may well remain concealed from the British
ublic for many years whether the government in question stays or
palls. They may not be fully revealed if Ministers resign rather
than face inquiry, as Mr. Ramsay Macdonald’sgovernment did in
1924 after the withdrawal of the Campbell prosecution. Equally
lainly they may remain hidden if a government does not resign
gut keeps its majority, refuses an inquiry and asserts that it must
take responsibilityand be judged (without the evidence) by history
and the electorate-as did the government of Sir Anthony Eden
after the military operationsof 1956.
It is noteworthy that the independent inquiries sometimes con-
ceded by Ministers and set up, whether under the provisionsof the
1921Tribunals of Inquiry (Evidence) Act or otherwise, have never
been regarded as in any way incompatible withministerial res
sibility. The issues under in uiry, of course, have often not
1
related to departmental con uct (as, for exam le, where police
c:i
behaviour has been in question) but a number ave involved the
conduct of Ministersor persons under their control. Exampleswere
R
the Budget leak Tribunal of 1936, the Lynskey Tribunal of 1948,
the Crichel Down inquiry of 1954,and the Vassal1inquiry of 1963.

Refusalof Information
A second type of situation in which arguments about ministerial
responsibilityare often advanced is that in which claims of privilege
are made in relation to documents or information in the possession
of departments, or Ministers take advantage in the House of their
right to remain silent in responseto uestioning on the ground that
they judge that course to be require! by the public interest or the
proper working of the machinery of government. Two claims are
14 At p. 81. In contrastingpublic and private responsibilityLow remarked that: “If a
butler, after being told that he is responsible for theplate chat, carelesslyallows the
spoons tobe stolen, he may be discharged without a characterand may never again get
a good place” (ibid. p. 144). h analogous predicament for Ministers has not bcen
noticeablein recent rimes.

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MINISTERIAL RESPONSIBILITY

involved here. First, that publicity for certain material is undesir-

able; secondly, that only Ministers or their subordinates should
judge the limits of desirability and the occasions for secrecy. In
the courts Crown privilege was previously claimed for documents
which it is now admitted may be produced without deleterious
consequencesfor the efficientconduct of governmental business. As
a matter of practice," privilege is no longer claimed in cases where
a Minister considersthat documents of importance to litigants (such
as medical or accident reports)may be disclosed without danger
either to security or the giving of frank and confidential advice to
Ministers. Public and judicial criticism clearlybrought about in this
area a relaxation of ministerial attitudes, just as similar and even
more rolonged public criticism brought Ministers in 1947 l6 to
agree $at formal departmental immunity from actions in tort need
no longer be maintained.
The notions of ministerial responsibility and public interest are
fre uently linked together by Ministers when standing on their
i!
par iamentary rights of nondisclosure. The nineteenthcentury
affair of the Mazzini correspondence providesan example of the
form which ministerial answers have often taken on similar occa-
sions. On June 14, 1844, Mr. T. Duncombe presented a petition
complaining that the letters of Joseph Mazzini, W. T. Linton, and
two others residing at No. 47 Devonshire Street, Queen S uare, had
been opened and begged to ask Sir James Graham ( e Home
Secretary) whether he was aware of the opening of the letters and
1
whether what had been done was by the authority of any of the
principal Secretaries of State. Graham replied that the letters of
one person had been opened under the authority of the Secretary
of State. The report continues:
" Having said this much that as he had the power so he had exercised it,

he was bound to add that this authority was vested in the rcsponn'bk Officers
of the Crown and entrusted to them for the ublic safety and that while
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Parliament placed its confidence in the individua exercising this power it was
not for the public good to pry or inquire into the particular causes which
called for the exercise thereof. He could not consent to enter into any further
explanations and would only express his hope that the Housc would confide
. .
in the motives which had influenced him. , It was not consistent with
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his duty to give an more explicit answer. He had given an explanation and
he must respectfuly but firmly decline saying anything further on the
matter." l7
1s See statements by the Lord Chancellor in 1956 (197 H.L.Deb. 741-747) and 1962 (237
H.L.Deb. 1191-1193.
18 With thepingdthe Crown Proceedin Act, 1947 (10 & I1 Goo.6, c. 44). It will
be recall that this maw first came ungr active official consideration in 1921.
17 75 Parl.Deb. 3 s., col. 893 (italics added).
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GEOFFREY MARSHALL
A somewhat similar form of answer was given by SirAnthon
Eden in May 1956when asked to make a statement about the deat
of Commander Crabb, an ex-naval " frogman ". In his answer the
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Prime Minister stated that " it would not be in the public interest
to disclose the circumstances in which Commander Crabb is pre-
sumed to have met his death ".la He added that whilst it was the
ractice for Ministers to accept responsibility,what had happened
[ad happened without the authority or knowledge of Her Majesty's
Ministersand certain disciplinaryaction was being taken. He would
add nothing further to this statement. This episode illustrates
one permissible (if etymologically odd) form of ministerial
responsibility."
Man such situations relate to what could unambiguously be
called 'Ysecurity information ". Not all, however, do so. That
there are other grounds on which Ministers may decideto stand
upon (or in some cases one might be tempted to say " sit upon ")
their responsibilities couldbe illustrated by the attitude adopted until
1959towards requests for information about the Casement Diaries.
Before that time a number of requests had been made either to see
the diaries or to obtain a statement about their existence. Mr. J. R.
Clynes, as Home Secretary in 1930,stated that " on inquiry I find
that it was decided long ago not to make any official statement as
to the existence or nonexistence of these diaries. I have carefully
considered whether it is still necessary to maintain that rule and
there seem to me to be very good reasons whyin the public interest
it is desirablenot to break the official silence".'O Subsequent Home
Secretaries maintained this view of the public interest until Mr.
R. A. Butler's announcement in 1959 that the diaries had been in
the Home Ofice since 15125and were to be placed in the Public
Record Office.

Resistance to New Machinery or Procedures

It is a revealing exercise to select someof the procedures or institu-
tions which are now admitted to be a useful part of our machinery
18 552 H.C.Deb. 5 s., col. 1220.
Defendin the Prime Minister's attitude in a subsequent debate, Sir Patrick Spcns said:
'' Once fe responsible Minister of the Crown, accerg full responsibility upon himself,
has said it is impossible to give the public in ormation because public security is
involved it behoves no other responsible citizen . ..
to attempt to carry the matter
further in this way. It is the ~CI onnbility of Miters and always has been to give
such a considered answer when tle occasion arises". 552 H.C.Deb. 5 s., col. 1767
(italics added).
20 Sce The Trio1 of Sir Ro er Cacemenr, ed. (1960) H. Montgomery Hyde, and R. MacColl,
Sir Roger Casement (l& pp. 278-283.

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MINISTERIAL RESPONSIBILITY

of government and to set out the .arguments which were being

urged against them by oficial spokesmen before their adoption.
Exposure to this process is almost suficient to bring about a con-
viction that there exists in Whitehall an all-purposespeech(with the
requisite blank spaces) which is used for expressing doubt about
the viability of new parliamentary or administrative procedures.
The key phrases in it are “ incompatible with ministerial responsi-
bility ” and “ inappro riate to our constitutional arrangements ”.
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Some reference may a so be expected to the rights of the House of
Commons, the ade uacy of existing procedures and the im rtance
2
of avoiding “ mu dles ”, “ blurs ”, and “ confusions” tween
executive and legislative functions or between the British form of
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government and other forms of government-especially those of
France and the United States of America.
An episode which illustrates the process is the setting up of the
procedure by which statutory instruments made b government
departments are scrutinised. Durin the war o 1939-45 the
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desirabilityof some control of this kin was urged upon the govern-
r
ment by a number of back-benchers. A committee of the House
had been recommended for this purpose by the Committee on
Ministers’ Powers which reported in 1932, but the suggestion had
never been adopted. Thus Mr. Herbert Morrison was able to say
on January 19, 1943, that no government since that time had
thought that it would be a good thing to a point a committee. He
added that it might weaken the posiaon o the ordinary member.z1
On May 26 Mr. Morrison stated that “either the House or the
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Government should be clearly responsible. We had better not mix
ourselves u in responsibility betweenthe two”.2z Mr. Maxton
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suggested t at analogous committees for scrutiny already existed in
the field of Public Accounts, Estimates, and National Expenditure.
Mr. Morrison replied that none of those three committees was in
L6
any sense executive”. He was speaking, he said, “ of executive
only in the legislative sense, not in the ordinary sense ”. Neither
the ordinary nor the “ legislative” sense of “ executive” was clear
to members of the House. They did their best to make the point
that they did not want anexecutivecommittee in any sense but only
an advisory committee. Sir Herbert Williams was “ quite tired of
arguing with the government. They put up a bogy and proceed
to knockit down again ”.”
21 386 H.C.Deb. 5 s., col. 160.
22 389 H.C.Dcb. 5 s., col. 1655.
2s Ibid. col. 1684.

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GEOFFREY MARSHALL

The Home Secretary was prepared to admit that no one was

asking for an executive committee, but if the proposal were to
work, " this is where we get to ".
The government could not share
the responsibility with a committee of Parliament. For:
" The succcss of the British Constitution to a great extent lies in the fact

that the House of Commons and the Executive can work together and at the
same time the Executive on the one hand and Parliament on the other have
definite responsibilities. If we ot them mixed up in day to day matters I
d
am sure we would get into a mu dle." 24
In July 1944 the Home Office found that it had set up a National
Fire Service three years earlier without laying the necessary regula-
tions before the House and the scrutiny committee was set up
within the year. It is admitted to be a successful and useful piece
of machinery which has affected departmental activities for the
better.
In 1946 a Select Committee reported on the procedure of the
House of Commons. Amongst the ro sals considered and
rejected were a number made by the Cler o the House, Sir Gilbert
Campion. Inter diu, Sir Gilbert sug ested that the terms of the
EP"
scrutmy committee might be extende to the consideration of the
merits (in a defined and restricted sense) of regulations. Mr.
fi
Morrison, in the course of explaining the government's objections
to this proposal, conceded that the official arguments against the
setting up of a committee in 1944 had been just as absolute as they
now were to any extension of it. He suggested, however, that it
was not the merits of the case which had dictated the earlier attitude
but the strain and pressure of war-time administration. " I was the
villain then ", he said. I was speaking for the government, of
"

course. ... Ths was a case where the persistence of the House
and the changing circumstances caused the government to give way,
and I think we were right to give way." "
In 1959 Mr. R. A. Butler found himself ex ressing similar
sentiments to those of his predecessor before anot er Select Com-
mittee on Procedure. A memorandum placed before the Committee
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had suggested the setting up of a specialist committee of the House
on colonial affairs. It was made clear that no executive powers
should be conferred on the committee. It should simply receive
information, keep in touch with the department, and advise the
House of any matter by way of resolution. The Select Committee
'4 At CO~S. 1657-1661.
25 Third Report from the Select Committee on Procedure,H.C. 189-1 (1946), Minutes of
Evidence, p. 149.

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RESPONSIBILITY
split on party lines and the scheme was rejected in the following
words :
“The main argument against the proposal and one which convinces us
lies in the nature of the committee, which in our view would constitute a
. .
radical constitutional innovation. . There is little doubt that the activities
of such a committee would ultimately be aimed at controlling rather than
criticisina the policg and actions of the department concerned. . (The ..
House) as always een careful not to arrogate to itself an of the executive
power. The establishment of a colonial committee woul not only invade
this principle but would also lead to the establishment of other similar
d
committees.” ‘b
In oral evidence Mr. Butler elaboratedthe government’s view.
Such a committee, he thought :
.
‘‘ would be a muddle in our constitution . . it would be difficult from the
point of view of administration because it might well be such a specialist
committee would confound the French and American systems and imagine it
had a direct say in the administration of colonial affairs. Therefore I think
any government of the day would regard this as a muddle which is not one
that fitsin with normal parliamentary procedure ...
a sitting specialist
committee ...
would get in the way of administration and blur ministerial
responsibility ”.”
The affinity in structure between Mr. Butler’sview and that put
forward in 1944is unmistakable. Perhaps it would not be going
too far to call it “ the Morrisonian argument ”.
The deliberations of the Franks Committee provide a similar
recent occasion on which a conflict was thought to occur between
administrative innovation and ministeriaI responsibility. The issue
was that of publication of the reports made to Ministers after statu-
tory public mquiries. The official witnesses discussed the question
before the Committee at some length and were opposedto it. The
Treasury Solicitor’s viewwas that the ins ctors making the reports
were civil servants and their advice shou d be confidential. It was r
an essential part of ministerial responsibilitythat a Minister should
not have his officials’ advicequoted against him. To carry this
process too far would “ really break down the machinery of minis-
terial responsibilityto Parliament ”.’” The Franks Committee did
not, however, concurin this conclusion,preferring the argument for
publication set out in 1932by their predecessorson the Donough-
more Committee.’g This time the Government agreed. Reports
28 Report from the Select Committee on Procedure, H.C.92-1 (1959, p. xxv.
2’ lbrd. Minutes of Evidence, pp. 188-189.
’8 Reporr of the Committee on Administratiue Tribrtnals and Enqirics, Cmnd. 218 (1959,
pp. 2a4, 273.
2s Commrttee on Ministers’ Power Report, Cmd. 4060(1932) at pp. 100-107.

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GEOFFREY MARSHALL

are now published. The machinery of ministerial responsibility

survives.
The language of the official statement on the Whyatt Report
roposals for a Parliamentary Commissioner is familiar in its out-
Ene. (The proposal was also made that more tribunals might be
considered to rovide appeals against departmental and other
B
decisionsin fie1 s where none now exist.”)
“The government consider that there are serious objections in principle
to both proposals and that it would not be possible to reconcile them with
the principle of ministerial responsibility to Parliament. They believe that
any substantial extension of the system of reference to tribunals would lead
to inflexibility and delay in administration and that the ap intment of a
Parliamentary Commissioner would seriously interfere with tR“c
prompt and
efficient dispatch of public business. In the government’s view there is already
adequate provision under our constitutional and parliamentary practice for
the redress of any genuine complaint of maladministration.”
Since the proposals under discussionenvisagenothing more than
publicity, inquiry, and report to Parliament their compatibility with
ministerial responsibilityas hitherto understood seems plain beyond
dispute. It is difficult to resist the conclusion that “ ministerial
res nsibility ”,as it occurs in statements of the foregoing kind, is
1.X
1 e more than a form of official incantation and one which often
embodies an apparent determination to exaggerate or misrepresent
the proposals against which it is directed. Its use here corresponds
closely to a tactic recommended in F. M. Cornford’s maxims for
Liberal-Conservative obstructionistsP’ “ When other methods of
obstruction fail,” we read, “ You should have recourse to Wasting
Time. . . . The simplest method is Boring. Talk slowly and
indistinctly, at a little distance from the point.’’ The injunction
has clearlybeen obeyed.

30 One such field is the refusal of admission under the Commonwealth Immigrants Act,
1962. Resisting an amendment to provide for an appeals tribunalthe Lord Chancellor
argued that the proposal would “come between Ministers and theirresponsibilitiesto
Parliament and would prove frustrating in its exercise”. (See 238 H.L.Dcb. 5 s.,
col. 420 et seq.)
31 MirrocoosmogrophicoAcademica (1953 cd.),p. 19.

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