mbryan90
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| 17 Jul 2014 04:57 PM |
21st Parliament Leader of the House of Commons, Mbryan90 ___
The Constitution [WHITE PAPER] Standard Note: SN/PC/0291 Last updated: 17 July 2014 House of Commons, Parliamentary Library ___
7. The Cabinet and Parliament
Members of the House of Commons are directly elected by the population of the United Kingdom. Most Members of the House of Lords are appointed for life by the Sovereign, on the advice of the Prime Minister and the Lord Great Chamberlain and the Earl Marshal, who are both ex-officio Members. The House of Commons has primacy over the House of Lords. It is the democratically elected institution of the United Kingdom and the Government derives its democratic mandate from its command of the confidence of the Commons. The Commons may pass an identical bill in the following session of Parliament, then it may receive Royal Assent without being passed by the Lords.
In all their dealings with Parliament, ministers should be governed by the following principles:
- Ministers have a duty to Parliament to account, and to be held to account, for the policies, decisions and actions of their departments and agencies. - 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. - Ministers should be as open as possible with Parliament and the public, refusing to provide information only when disclosure would not be in the public interest, which should be decided in accordance with relevant statutes and the Freedom of Information Act. - Ministers should require civil servants who give evidence before parliamentary committees on their behalf and under their direction to be as helpful as possible in providing accurate, truthful and full information in accordance with the duties and responsibilities of civil servants as set out in the Civil Service Code.
The subjects of debates in Westminster Hall are determined by backbenchers through a ballot system and through the Liaison Committee and the Backbench Business Committee.
The Leader of the House of Commons and the Leader of the House of Lords are government ministers. They work closely with the government chief whip in each House to plan the Government’s business. The Leader of the House has a responsibility to support the business of the House and on occasion to make time available and to move the necessary motions for the House to dispose of its own internal or domestic business, even though it is not government business. The Leader of the House of Commons is also an ex-officio member of various statutory bodies related to the House, including the House of Commons Commission, and the Speaker’s Committee.
Scrutiny of the Executive is one of the core functions of Parliament. Members of both Houses can table questions – for oral or written answer – to ministers. Parliamentary questions may seek factual information or press the Government to take a particular course of action. In response to these, ministers are obliged to explain and account for the work, policy decisions and actions of their departments. Each House appoints select committees to scrutinise the work of government and hold it to account. In the Commons, a public bill committee may also take evidence on the bill that is before it.
When Parliament is in session the most important announcements of government policy should, in the first instance, be made to Parliament. Ministers may, subject to the relevant collective clearance being received, make statements to Parliament both orally and in writing on the work of their department. The Government, not the House of Commons, decides whether a statement is made. Oral statements are followed by the relevant minister taking questions from Members on the issue. Ministers may also make written statements to each House. When the Government does not plan to make a statement on a matter of public interest, the Speaker of the House of Commons may allow a Member to ask an urgent question on the subject, or less commonly to apply for an emergency debate to discuss the issue in more detail to ensure appropriate scrutiny.
Each session of Parliament begins with the ceremony of the State Opening, when the Sovereign formally opens Parliament. This includes the King’s Speech, which outlines the forthcoming legislative programme. The Speech is written by the Government and approved by
Following a State Opening, the Government's legislative programme is then debated by both Houses, usually for a few days. Ministers will be required to explain and defend the proposed legislation of their departments.
Passage of legislation
Every government bill goes through the following stages in each House. It is presented and read a first time; this is in effect a formality which enables the bill to be published. The first substantive proceeding is the second reading which is a debate, usually lasting half an hour, on the principles of the bill. The debate is opened by a minister (normally the Secretary of State in the House of Commons) with the closing speech usually given by another minister. The bill is then sent to a committee, which considers each clause of the bill in detail and may make amendments. Committee stage is usually handled by a junior minister and the demands on the minister’s time can be very significant while the bill is in committee, with the committee typically meeting four times a week. The bill then returns to the House, where it can be further amended on consideration (also known as Report stage). It then receives a final, third reading before being sent to the other House. If the second House amends the bill, then the first House only considers the amendments which that House sends back, not the bill as a whole. This process may go through several iterations before agreement is reached between the two Houses.
Although the stages are the same in each House, there are two significant differences. In the House of Commons, bills are more usually committed to a public bill committee, which consists of a number of members specifically nominated to it and meets in a committee room away from the Chamber, whereas in the House of Lords bills are more commonly considered by a committee of the whole House (which meets in the Chamber) or a grand committee, which any peer may attend. However, any bills that are of constitutional significance in the House of Commons are taken in committee of the whole House rather than in a public bill committee. The House of Lords also allows amendments to be tabled at third reading, whereas the Commons does not.
Ministers should consider publishing bills in draft for pre-legislative scrutiny, where it is appropriate to do so. Reports from the Commons Liaison Committee have identified this as good practice. Most draft bills are considered either by select committees in the Commons or by a joint committee of both Houses. Once a committee has scrutinised and reported on the draft bill, the Government considers the committee’s recommendations and makes any alterations to the bill before it is formally introduced to Parliament. Pre-legislative scrutiny can help to improve the quality of legislation and to ensure that Parliament and the public are more involved with and aware of the Government’s plans for legislation.
Once legislation has been passed, the Government has undertaken that ministers will (subject to some exceptions) provide the relevant select committee with a post-legislative scrutiny memorandum, within three to five days of Royal Assent. It includes a preliminary assessment of how the Act is working in practice, relative to its original objectives. The select committee uses the memorandum to decide whether to carry out a fuller post-legislative inquiry.
Post-legislative scrutiny is in addition to other post-enactment review work, which might include internal policy reviews, but may be combined with reviews commissioned from external bodies, or post-implementation reviews as part of the Impact Assessment process. Parliamentary select committees have a role in scrutinising key public appointments. Before such appointments are made, but after the selection process is complete, a pre-appointment hearing with the proposed appointee takes place in public. A report is then published setting out the committee’s view on whether or not the candidate is suitable for the post. The hearings are non-binding and the Government has agreed that ministers should consider the committee’s report before deciding whether to appoint the candidate. Pre-appointment hearings only apply to new appointments; however, select committees already take evidence from serving post-holders as part of their ongoing scrutiny of public bodies and public appointments.
8. The Cabinet and the Law
The term “the Law Officers‟ refers to the UK Law Officers, who are the Attorney General and the Solicitor General.
The Attorney General is the Chief Law Officer for England and Wales and is the Chief Legal Adviser to the Crown. The Solicitor General is in practice the Attorney General’s deputy and may exercise any function of the Attorney General.
The core function of the Law Officers is to advise on legal matters, helping ministers to act lawfully and in accordance with the rule of law. The Attorney General is also the minister with responsibility for superintending the Crown Prosecution Service.
In addition to these roles, the Law Officers have a number of public interest functions. Acting in the public interest, independently of government, they may:
- Refer unduly lenient sentences to the Court of Appeal - Bring contempt of court proceedings - Grant consent for some specific prosecutions - Bring proceedings to restrain vexatious litigants - Appoint advocates for the Crown, and - Refer points of law to the Court of Appeal after acquittals in criminal cases.
The Law Officers must be consulted in good time before the Government is committed to critical decisions involving legal considerations. It has normally been considered appropriate to consult the Law Officers in cases where the legal consequences of action by the Government might have important repercussions in the foreign, EU or domestic fields. A departmental legal adviser is in doubt concerning: - The legality or constitutional propriety of proposed primary, or - Subordinate legislation which the Government - Proposes to introduce - The vires of proposed subordinate legislation, or - The legality of proposed administrative action, particularly where that action might be subject to challenge in the courts - Ministers, or their officials, wish to have the advice of the Law - Officers on questions involving legal considerations, which are likely to come before the Cabinet or Cabinet committee - There is a particular legal difficulty (including one that arises in the context of litigation) that may raise sensitive policy issues, or - Two or more departments disagree on legal questions and wish to seek the view of the Law Officers.
The Law Officers normally have a role in ensuring the lawfulness and constitutional propriety of legislation. In particular, the Law Officers consent is required for legislative provisions that have a retrospective effect or where it is proposed that legislation is commenced within two months of Royal Assent.
Where the advice from the Law Officers is included in correspondence between ministers or in papers for the Cabinet or ministerial committees, the conclusions may if necessary be summarised but, if this is done, the complete text of the advice should be attached.
The fact that the Law Officers have advised, or have not advised, and the content of their advice may not be disclosed outside government without their authority. The Law Officers’ advice to government is subject to legal professional privilege and is confidential.
Ministers’ decisions, and the process by which they exercise (or fail to exercise) their powers, can be reviewed by the High Court, although the courts will usually hesitate to intervene in cases where they accept that, because of the subject matter (entering into treaties, the defence of the realm, the grant of honours, etc.), the decision-maker is better qualified than the Court to make a judgment.
In judicial review the Court will consider a minister’s exercise of public powers by reference to:
- legality (acting within the scope of any powers, and for a proper purpose) - procedural fairness (for example giving an individual affected by the decision the opportunity to be heard) - Reasonableness or rationality (following a proper reasoning process to reach a reasonable conclusion).
The exercise of statutory powers conferred on particular ministers is usually subject to collective agreement.
Where a decision is one that the minister had discretion to make, the Court will examine it to decide whether logical or rational principles were applied when making it. If the Court finds that the decision was unreasonable, it will usually simply cancel (or “quash‟) the decision, so requiring the minister to make a fresh decision, taking into account the guidance given by the Court.
In practice, a minister will depend on civil servants in the decision-making process, and those officials will often be key witnesses in judicial review proceedings. Legally and constitutionally, however, the acts of officials are the acts of the ministers to whom they are accountable, and the Court will regard the minister as the person who is ultimately responsible for ensuring that a particular decision is made reasonably, fairly and according to law. See Chapter 3 for more information on the powers of ministers and the Carltona principle.
Disclosure as applied in private law litigation is not often used in judicial review. More often than not the Court accepts the facts as presented by the parties. This imposes a duty on all parties to be open and honest (“the duty of candour‟).
The duty of candour weighs particularly heavily on ministers and civil servants, as they will have the information showing the basis for the decision under review and because they are representatives of the public interest, and it cannot be in the public interest for the Court to be presented with an incomplete or inaccurate account of the facts. While civil servants are responsible for finding the documents that relate to the matter in question, the lawyer acting for a minister in judicial review has overall responsibility for ensuring that the disclosure has been sufficient to discharge the duty of candour. Any matter of disclosure may be referred to the Attorney General if necessary.
In judicial review proceedings it will usually be officials with relevant knowledge and responsibility within the department who give witness statements setting out the reasons for a minister’s decision or action, although it may sometimes be desirable for a minister to give a statement. The Court will allow the cross-examination of a minister or official if it is necessary to enable the case to be disposed of fairly, but cross-examination is unlikely to be ordered if the chain of documents culminating in a decision is sufficiently complete and the witness statements address the matters raised in the case.
If there is any prospect of a minister becoming involved in legal proceedings in a personal capacity, or being a witness in proceedings in his or her personal capacity, he or she must consult the Law Officers in good time.
It is the practice for ministers to be indemnified by the Crown for any actions taken against them for things done or decisions made in the course of their ministerial duties. The indemnity will cover the cost of defending the proceedings, and any costs or damages awarded against the minister.
Ministers may be sued for acts which, although done while a minister, have a more “personal‟ aspect to them. For example, proceedings may be instituted alleging that a minister said something defamatory in a speech or that a minister has acted dishonestly or in bad faith. The extent to which a minister will be personally liable will depend on the law relating to the particular matter.
A minister may wish to bring proceedings in a personal capacity, for example where they believe they have been defamed. Such proceedings may have a bearing on the minister’s official position as well as their private position. For example, they may require disclosure of official documents or evidence about things done in the minister’s official capacity.
Decisions about whether public funds should meet a minister’s costs in bringing or defending any such proceedings, or any damages awarded against a minister, are for the relevant accounting officer, who should be consulted about the matter at the earliest opportunity (see Chapter 10 for more information on the responsibilities of the accounting officer). The accounting officer will wish to take into account any views of the Attorney General.
The Government has statutory and non-statutory powers to call inquiries. Statutory public inquiries are governed principally by the Inquiries Act, which provides that a minister may establish an inquiry if it appears to him or her that particular events have caused or are capable of causing public concern, or if there is public concern that particular events may have occurred. The Act provides how the inquiry should be set up and conducted and how its findings should be reported. It grants powers compelling the attendance of witnesses and the production of documents, and provides for the conduct of an inquiry to take place in private if necessary.
A non-statutory inquiry may be held where, for example, all relevant parties have agreed to cooperate, and it may be convened and concluded more quickly and perhaps more cheaply. The terms of reference will normally be determined wholly by the minister in discussion with officials.
The Prime Minister must be consulted in good time about any proposal to set up a major public inquiry. The power to hold an inquiry should be used sparingly and consideration given to potential costs.
The Lord Chief Justice is head of the judiciary in England and Wales, Head of Criminal Justice and President of the Courts of England and Wales. There is a duty to uphold the continued independence of the judiciary extending to the Lord Chancellor, ministers of the Crown and “all with responsibility for matters relating to the judiciary or otherwise to the administration of justice”, including civil servants and Members of Parliament. There is also a duty not to seek to influence judicial decision - making through special access; for example, individual cases should not be discussed between ministers and judges.
The Lord Chancellor has a particular responsibility to defend judicial independence and to consider the public interest in respect of matters relating to the judiciary. The Lord Chancellor also has a responsibility to ensure that there is an efficient and effective system for the administration of justice. The Lord Chancellor is under a general duty to provide sufficient resources to support the business of the courts in United Kingdom.
The Lord Chief Justice may make written representations to Parliament on matters which he or she believes are of importance relating to the judiciary or the administration of justice. In practice, dialogue between the judiciary and ministers occurs through consultation and regular meetings. Judges may comment on the practical effect of legislative proposals insofar as such proposals affect the operation of the courts or the administration of justice. However, principles of judicial independence mean that the judiciary should not be asked to comment on the merits of proposed government policy, and individual judicial office-holders should not be asked to comment on matters that may then require the judge to disqualify themselves in subsequent litigation.
The Supreme Court of the UK is the final court of appeal for all civil law cases in the UK and for all criminal law cases in England. The Supreme Court hears appeals on arguable points of law of general public importance, and concentrates on cases of the greatest public and constitutional importance. The impact of Supreme Court decisions extends beyond the parties involved in any given case and plays an important role in the development of UK civil law and criminal law in the United Kingdom.
9. The Cabinet and the Civil Service
Civil servants are servants of the Crown. The Civil Service is an important part of the government of the UK. It supports the government of the day in developing and implementing its policies, and in delivering public services. Civil servants are accountable to ministers, who in turn are accountable to Parliament.
Civil servants are employees which work for the public sector. They serve the elected government of the day, in line with the standards set out in the Civil Service Code. The Code sets out the standards of conduct and behaviours expected of all civil servants in upholding the core Civil Service values, and in carrying out their duties and responsibilities, and makes clear what they can and cannot do. The core Civil Service values and behaviours as set out in the Code are:
Integrity – putting the obligations of public service above your own personal interests Honesty – being truthful and open Objectivity – basing your advice and decisions on rigorous analysis of the evidence Impartiality, including political impartiality – acting solely according to the merits of the case and serving equally well the governments of different political persuasions.
The statutory framework for the Civil Service by providing a power for the Minister for the Civil Service (the Prime Minister) to manage the Civil Service, and making provision for a code of conduct for civil servants which specifically requires them to carry out their duties in accordance with the four core Civil Service values set out above. The Act also provides for recruitment to the Civil Service to be on merit on the basis of fair and open competition, and provides for a statutory Civil Service Commission to safeguard and oversee the application of this fundamental principle, and to investigate complaints under the Code of Conduct.
The most senior civil servant in a department is a permanent secretary. Each permanent secretary supports the government minister who heads the department and who is accountable to Parliament for the department’s actions and performance. In a limited number of departments there may be more than one permanent secretary, or a deputy or second permanent secretary to deal with issues of operational or national significance, such as national security. Permanent secretaries are responsible to the Cabinet Secretary and the Head of the Civil Service for the effective day-to-day management of their department, or the particular issues for which they are responsible.
The permanent secretary is normally the accounting officer for their department, reporting to Parliament.
Special advisers are employed as temporary civil servants to help ministers on matters where the work of government and the work of the party, or parties, of government overlap and where it would be inappropriate for permanent civil servants to become involved. They are an additional resource for the minister, providing assistance from a standpoint that is more politically committed and politically aware than would be available to a minister from the permanent Civil Service.
There are broad limits on the number of special advisers that ministers may appoint.
Parliamentary select committees have a crucial role in ensuring the full and proper accountability of the Executive to Parliament. Ministers are expected to observe the principle that civil servants who give evidence before parliamentary select committees on their behalf and under their direction should be as helpful as possible in providing accurate, truthful and full information in accordance with the duties and responsibilities of civil servants as set out in the Civil Service Code.
All public appointees are expected to work to the highest personal and professional standards. To this end, codes of conduct are in place for boards of public bodies and all public appointees are expected to follow the Seven Principles of Public Life: selflessness, integrity, objectivity, accountability, openness, honesty and leadership. For more on parliamentary scrutiny in relation to some public appointments.
10. Group Holder
The Group Holder serves as a formality, along with a supplementary role, in addition to his role as election returning officer. Often referred to as ‘the founder’ or ‘the mighty one’, the Group Holder is given additional responsibilities including:
- Managing and Announcing National Elections - Managing London - Managing and Moderating the main UK - Ensuring a stable transition into Government
The Group Holder is given the same privileges as the Sovereign (see third section).
11. Official Information
Information is central to government’s effective functioning. Proper records need to be kept to ensure clarity and accountability, and in due course to provide a historic record of government. Much government information is available to the public, but some needs to be kept confidential, to protect national security and in the interest of collective responsibility. Well-established rules govern access to information by former ministers and their successors.
Official information is information created and commissioned in the course of official government business. It includes information created or received by ministers in a ministerial capacity. Official information can be in any format, and includes correspondence and memoranda, guidance, emails, datasets and databases, websites, official blogs and wikis, and film and sound recordings.
It is important that the official record is maintained and that there is a proper separation of official information from personal, party or constituency information. Information received by ministers in an official capacity is the responsibility of ministers and their departments.
The record of the proceedings of Cabinet and its committees is kept by the Cabinet Secretariat. This includes agendas, papers, minutes and correspondence. Departments should not keep Cabinet or committee minutes for longer than four weeks.
The FOI Act give the public a general right to request access to recorded information held by public authorities, including departments.
Under the FOI Act, a public authority (including a government department) normally has to respond to any request by providing the information requested – if it is held by the authority – within 20 working days. However, there are limited exemptions. The most significant of these in relation to ministerial records is if the information relates to national security, defence, international relations, relations within the UK, the economy, law enforcement, the formulation of government policy, communications with the Sovereign, legal professional privilege or commercial interests. In some cases the exemption is absolute; in others a judgement is needed as to whether the public interest in maintaining confidentiality exceeds that of making the information available.
The FOI Act also provides a Cabinet minister or the Attorney General with the power to issue a certificate that would exempt information from disclosure when the information was supplied by, or relates to, one of the listed security bodies or when it is required for the purposes of safeguarding national security.
Under the Official Secrets Act, it is an offence to disclose official information relating to certain categories, including security and intelligence, defence and international relations. The Official Secrets Act applies to a number of public servants, including government ministers, civil servants, members of the armed forces and the police.
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