Is Ministerial Responsibility a constitutional doctrine or a mere constitutional convention?

The term doctrine is expressed differently but the legal definition of doctrine refers to a rule or principles or the law established through the repeated application of legal precedents.[1]

        Constitutional convention is the rules of political practice which are regarded as binding by those to whom they apply but which are not laws because they are not enforced by the court. They work in the sense that one has to be aware that he or she is under an obligation to act in a certain way. If the persons concerned are not aware that they are under obligation to act in a certain way then there is no convention. This is what distinguishes the convention from mere practice, usage, habit or fact which is not regarded as obligatory[2]. Conventions are sometimes called “unwritten laws” but this is very confusing because according to the accepted doctrine they are not laws at all. Again conventions are sometimes called“customs”.

        Conventions can be analyzed from either a descriptive or prescriptive new point.  A descriptive view is that a convention is a generally accepted political practice, usually with a record of successful application or precedents. An alternative, prescriptive view sees convention as rules of constitutional behavior which are considered to be binding upon those who operate the constitution but which are neither enforced by the law courts nor by the presiding officers in the legislature[3]. 

        Ministerial responsibility is a constitutional convention in governments using the Westminster System that a cabinet of ministers or an individual minister bears the ultimate responsibility for the actions of their ministry or department[4]. It is generally said to be the principle of responsible government. A responsible government is the one which is accountable to the people who put that government into power (article 8). This responsibility is made or seen through people’s representatives, that is the parliament. So the government is held responsible or accountable for its actions by the National Assembly. Dicey recognized ministerial responsibility in one of his last and most perceptive articles. Commenting on the decision of the House of Lords in Local Government Board V Arlidge[5], he referred to the observation of the Lord Chancellor that, “the minister at the head of the Board is directly responsible to the parliament… and the only authority that can review what has been done is the parliament to which the minister in charge is responsible.”  

        The concept of ministerial responsibility is central to the British version of democracy.  Britain has a strong executive and the effectiveness of democracy depends on the degree of control which parliament exercises over current government activities and the extent of accountability (holding the government responsible for past actions).

        The concept of ministerial responsibility antedates the modern party system. It developed at a time in the nineteenth century when the role of the government was limited and a competent minister could be assumed to have personal control of a department. The growth of mass parties, and the welfare state have changed the nature of the convention, but it remains an important aspect of the UK political system and the uncodified constitution.[6] Ministerial responsibility developed, then, within the historic canons of “strong government” and the need for secrecy. It was very much designed to protect the state, to strengthen the two-party system and to shore up Britain’s flexible governing arrangement. Beattie, however, distinguishes two strands of the idea of ministerial responsibility-a more representative “Whig” theory which stresses the need of political control to be paramount and for government to be held responsible for the state actions, and ‘Peelite’ theory which saw the doctrine as means of limiting democratic control to ensure that the business of the government could be carried forward undisturbed and the stability of the state safeguarded. In practice the two views have combined to elevate the role of ministers and justify the unlimited notion of the parliamentary sovereignty.[7]

        Ministerial responsibility can be divided into two categories namely, individual ministerial responsibility and collective ministerial responsibility.

        Individual ministerial responsibility is in the sense that the minister in charge of a department is alone answerable to the Parliament and the President for the exercise of the powers on which the administration of the department depends. This means that if misuse, corruption, or any other misbehavior is found to have occurred within a ministry, the minister is responsible even if the minister had no knowledge of the actions. A minister is ultimately responsible for all actions by a ministry. Even without knowledge of any breach by subordinates the minister approved the hiring and continued employment of those civil servants and the misdeeds are found to have occurred in a ministry the minister is expected to resign. [8]Individual Ministerial Responsibility was clearly stipulated in the Crichel Down affair in 1954 in which the Minister of Agriculture, Thomas Dugdale, resigned, despite an inquiry suggesting that all mistakes were made within his department without his knowledge, and in some cases due to deliberate deceit by civil servants.

        Some recent resignations due to personal errors of judgment or impropriety in UK  include the resignation of Ron Davies, the Secretary of State for Wales, for sexual misconduct (in 1998), and the resignation of Peter Mandelson, Secretary of State for Trade and Industry, for failing to disclose a substantial loan by a Cabinet colleague (in 1999).[9]A minister is responsible for every action of his department. As A.V Dicey expressed it, the responsibility of ministers means, where used in its strict sense, the legal responsibility of every minister for every act of the Crown in which he takes part. Lord Morrison viewed the doctrine equally strictly…a minister is accountable to Parliament for anything he or his department does or for anything he has powers to do whether he does it or not. That is to say if the action or possible action is within the field of ministerial power or competence, the minister is answerable to the parliament. [10] The principle is considered essential as it is seen to guarantee that an elected official is answerable for every single government decision. It is also important to motivate ministers to closely scrutinize the activities within their departments. One rule coming from this principle is that each cabinet member answers for their own ministry in Question Time/Question Period. The reverse of ministerial responsibility is that civil servants are not supposed to take credit for the successes of their department, allowing the government to claim them.[11] 

          Collective Ministerial responsibility is constitutional convention in governments using the Westminster System that members of the Cabinet must publicly support all governmental decisions made in Cabinet, even if they do not privately agree with them. This support includes voting for the government in the legislature. In the United Kingdom, the doctrine applies to all members of the government, from members of the cabinet down to Parliamentary Private Secretaries. Some political parties apply the convention to their central committee. Its inner workings are set out in the Ministerial Code. It is related to the fact that, if a vote of no confidence is passed in parliament, the government is responsible collectively, and thus the entire government resigns. The consequence will be that a new government will be formed, or parliament will dissolve and a general election will be called. Cabinet collective responsibility is not the same as individual ministerial responsibility, which states that ministers are responsible and therefore culpable for the running of their departments.[12]

        The extended application of the Collective Ministerial Responsibility is in a way that Ministers are bound by all decisions of Cabinet, even those taken in committees (or ‘inner Cabinets”) of which they were not members and which never reached full Cabinet. Thus Collective Responsibility applies even where a Minister had no part in the discussion of a full cabinet. Also collective responsibility applies even where a Minister had no part in the discussion or decision or to decisions of which a Minister was not aware at the time but to which he subsequently gave his unspoken approval by continuing in office.[13]

Ministerial responsibility as a constitutional convention.

Constitutional lawyers who claim that Ministerial Responsibility is a constitutional convention give the following arguments.

        Constitutional conventions are not obligatory, but are in effect, procedural agreements which all sides adhere. However, conventions are rarely ever broken. Unless there is a general agreement on the breach, the person who breaks a convention is often heavily criticized on occasions leading to loss of respect or popular support[14]. Geoffrey Marshall contends that the effective operation of ministerial responsibility depend upon the integrity of the minister concerned and the extent to which the acceptance of responsibility is a matter of principles rather than political pragmatism[15].

        Constitutional conventions are means to bring about changes without choice to form a change by legislation as reflected by Jennings comment about, “keeping the constitution in touch with the growth of ideas”. They allegedly give the constitutional flexibility. For example, In England, the concept of Ministerial responsibility has evolved with the Westminster system of government. Lord Buckingham, who was a Minister during the reign of Charles I was impeached by Parliament for implementing the policies of the King rather than that of the Parliament. Gradually, the concept of Ministerial responsibility developed into one where a Minister in the Westminster system became answerable to Parliament rather than to the Monarch. The method of holding a Minister accountable to Parliament was that of impeachment. That in turn gave rise to the expectation that a Minister who had failed his or her duty to Parliament would resign[16].

        Geoffrey Marshall asserts that conventions “are unlike legal rules because they are not the product of a legislative or a judicial process. He further points out that the concept of ministerial responsibility is a constitutional convention in that it’s meaning and application is not rigid and change gradually without formal legislative action[17].

In his book, Constitutional convention Geoffrey Marshall says, “One of the things that every schoolboy is supposed to know…is that the constitution (of the UK) is unwritten…It includes a large number of Non-legal conventional rules…The rule or rules of ministerial responsibility provides an obvious example.”

        Constitutional conventions are subject to the process of growth and transformation. Baldwin said in the House of Commons, “Historians can probably tell you perfectly clearly what the constitutional practice of the country was at any given period in the past but would be very difficult for a living writer to tell you at any given period in his lifetime what the constitution of the country in all respect is.

                Constitutional Conventions are not enforceable in courts, but this does not mean that the courts do not incidentally recognize their existence. They may be relied on as aids to Statutory Interpretation or to justify non- intervention by the courts in Ministerial decisions in areas in which courts feel that they can not or should not become involved. For example in Carltona Ltd V Commissioner of Works[18], Lord Green M.R referred to the convention of Ministers Responsibility to Parliament for the acts of the officials. Also, in A.G V Jonathan Cape Ltd[19], Lord Widgery C.J referred the doctrine of Joint Responsibility within the Cabinet, Cabinet meetings and Secretary to the cabinet and the Prime Minister.

        It has been argued that an examination of Ministerial resignation in the past century shows that individual responsibility in practice has no punitive effects, because either the erring minister who resigns is appointed to another post, a timely reshuffle of Ministerial posts renders resignation unnecessary or a minister who is unpopular with the opposition is protected by the solidarity of his colleagues.[20]

Ministerial Responsibility as a Constitutional doctrine

        Constitutional lawyers such as Wade and Bradley argue that ministerial responsibility is a constitutional doctrine. They contend that the court or judiciary can control ministers’ decisions, despite the fact that the ministers are answerable to the parliament in consequence to their orders or acts. In addition, in Carltona Ltd V Commissioner of Works[21], the court stated that the ministers are responsible for the acts of their subordinates. Furthermore, Ministerial responsibility is a innovation of the England Bill of Rights of 1688 and it was until 1832 when this doctrine got its true profile and the force of law.

Ministerial Responsibility in Tanzania                                          

In Tanzania, Ministerial responsibility originated in the Philosophy of the Late Mwl. Nyerere, the founder of the nation in his book, “Freedom and Socialism (1969)”. While addressing the parliament, Mwl. Nyerere said, “Most importantly of all, members (of the Parliament) must not under any circumstance attack a member of the Civil Office in this House. If they believe a civil Servant is acting wrongly and that injustice is in consequence being done, it is the minister whom members must call to account…" In Tanzania, Ministerial responsibility is both a doctrine and convention. It is a doctrine in the sense that it is found in some statutes. Article53 (1) (2) of the Constitution of the United Republic of Tanzania[22] provides that all the ministers (including the Prime Minister) are collectively responsible (accountable) to the President and the National Assembly for the exercise of their authority and their decisions.  Their decision remain secret and the members are collectively bound to the agreements of the Cabinet otherwise, if a member of the cabinet does not support decision of the majority, then that member has to resign from his post not acting as a hypocrite. For example Mr. Lyatonga Mrema was against the members of the cabinet over the issue of Chavda and so he resigned from the cabinet in 1995. Article 57(2) (c) of the Constitution of the United Republic of Tanzania impliedly provides that a minister is individually responsible to the President. For example Alhaji Ally Hassan Mwinyi resigned from his post as Minister of Home Affairs following the Shinyanga Massacre in 1980’s, Iddi Simba resigned due to the scandal of sugar. Dr. Mbilinyi on the issue of IFM.  

        The rule is that the minister is not allowed to challenge the government in the Parliament even if the minister has a problem in his constituent. They have only to defend the government.

        The principle of ministerial responsibility can be both a convention and a doctrine. It is the political and legal system of a state or country that will determine whether this principle should be called a doctrine or convention. For a principle to be called a doctrine, it should come into operation through the judicial processes and should be backed by sanctions. On the other hand, for a principle to be called a convention, it does not have to come into operation through judicial processes. Conventions become established through long usage and they are not enforced by the courts.

        In conclusion, the concept of Ministerial Responsibility is still a controversy among many Constitutional Lawyers such as Wade, Dicey, Hood, Bradley and many others. However, for it to be regarded as a Constitutional Doctrine or Constitutional Conventions depends on the nature of Constitution of an individual Country in question.

BIBLIOGRAPHY

STATUTES

The Constitution of United Republic of Tanzania of 1977, as amended from time to time [Cap 2 RE: 2002]

BOOKS

Venn D.A, “Introduction to the Study of the Law of the Constitution”, Macmillan, 1915

Barnett H, “Constitutional and administrative Law”, 5th Edition, Routledge Cavendish, 2004

Weir S, Beetham D, “Political Power and Democratic Control in Britain”, Routledge, 1999

 Philips.O.H, Jackson, “Constitutional and Administrative Law”, 8th Edition, Sweet & Maxwell, 2005

INTERNET SOURCES

http://www.duhain.org/legaldictionary./l.aspx.

http://wapedia.mobi/en/constitutional_convention(Political_custom)

http://wapedia.mobi/en/Ministerial_responsibility

http://www.parliament.uk/commons/lib/research/rp2004/rp04-031.pd

http://en.wikipedia.org/wiki/Ministerial_responsibility

http://en.wikipedia.org/wiki/Cabinet_collective_responsibility

http://www.parliament.uk/commons/lib/research/rp2004/rp04-082.pdf

http://wapedia.mobi/en/constitutional¬_convention

http://www.parliament.vic.gov.au/paec/inquiries/strengthening-government/Submissions/19_Louis_Coutts.pdf

http://www.nadr.co.uk

 

[1] http://www.duhain.org/legaldictionary./l.aspx.

[2] O.Hood Philips and Jacksons, “Constitutional and administrative Law”, 8th Edtn Pg 136

[3] http://wapedia.mobi/en/constitutional_convention_(Political_custom)

[4] http://wapedia.mobi/en/Ministerial_responsibility

[5] [1915]AC 120 (English.HL)

[6] http://www.parliament.uk/commons/lib/research/rp2004/rp04-031.pdf

[7] Stuart Weir,  Et al, “Political Power and Democratic Control in Britain” pg 338

[8] B.Hilaire,”Constitutional and administrative Law” pg 345

[9] http://en.wikipedia.org/wiki/Ministerial_responsibility

[10] Ibid

[11] Ibid

[12] http://en.wikipedia.org/wiki/Cabinet_collective_responsibility

[13] http://www.parliament.uk/commons/lib/research/rp2004/rp04-082.pdf

[14] http://wapedia.mobi/en/constitutional¬_convention

[15] D. Burtler, et al, The Law, Politics and the Constitution

[16] http://www.parliament.vic.gov.au/paec/inquiries/strengthening-government/Submissions/19_Louis_Coutts.pdf

[17] http://www.nadr.co.uk

[18] (1943) 2 All E.R 560

[19] (1976)QB752

[20] O. Hood op cit, pg 351

[21] (1943) 2 All ER 560

[22] Of 1977 [Cap 2 RE: 2002]