What Happens When Transparent Government Conflicts With Collective Responsibility?

By: Cassandra Somers-Joce

The principle of collective responsibility exists in tension with transparent government. The former tends towards preserving the confidentiality of Cabinet decisions and the latter requires governmental action to be open to examination, scrutiny and challenge. This blog post explores the balance which has been struck between these countervailing interests, before considering how growing demands for transparency might further undermine the principle of collective ministerial responsibility. 

Collective responsibility has been a feature of the constitutional arrangements of the United Kingdom since at least the reign of George III.[1] The principle allows ministers to discuss policy frankly, but once a decision has been reached, dictates that they must support the common position in public. Examples of the principle being formally suspended are rare, but include the 2016 EU Referendum campaign, and the discussions surrounding a third runway at Heathrow. Collective responsibility is explicitly referenced in para 2.1 of the Ministerial Code, in addition to appearing in both the Scottish Ministerial Code and the Welsh Ministerial Code. The principle has been undermined by actions of Ministers in recent years, though. For instance, Suella Braverman and Boris Johnson during their respective times in Cabinet came under extensive scrutiny for publicly expressing positions which were not government policy, including in newspaper articles and interviews. Although these actions invariably have consequences for collective responsibility, the focus of this blog post is the relationship between the principle and formal mechanisms of disclosure.

While paragraph 2.1 of the Ministerial Code lays out the requirement for privacy within collective responsibility, more explicit reference to disclosure comes in paragraph 2.3: 

The internal process through which a decision has been made, or the level of Committee by which it was taken should not be disclosed. Neither should the individual views of Ministers or advice provided by civil servants as part of that internal process be disclosed.

Paragraph 2.3 thus takes a relatively expansive view of the extent of collective responsibility and demarcates the scope of the principle as including “advice provided by civil servants as part of that internal process”. The Code, then, adopts a clear position as to the balance which is to be struck between the public interest in having a window into governance and collective ministerial responsibility. 

In contrast, transparency and openness are referred to only once in the Ministerial Code, when discussing “the Seven Principles of Public Life”. There, “openness” is listed as one such principle. In fact, the Code provides that “holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for doing so”. The broad principle that government should be transparent, then, might well be said to be eclipsed by the explicit detail of provisions relating to collective responsibility.

Mirroring the emphasis in the Ministerial Code, the courts have recognised the importance of preserving the confidentiality of Cabinet discussions. Perhaps the most often cited example of this is the decision in Attorney General v Jonathan Cape Ltd [1976] QB 752. In this case, the Attorney General had attempted to prevent the publication of the book “Diaries of a Cabinet Minister”, which contained material from the diaries of former Labour Cabinet minister Richard Crossman throughout the period 1964-1966. The diaries had detailed the views exchanged during Cabinet meetings, including those of individual ministers, and the advice given by civil servants. Lord Widgery held that because upholding the principle of collective responsibility was in the public interest, and that the principle might be prejudiced by the disclosure of the views of individual ministers, any views expressed during Cabinet meetings were confidential until such time as their disclosure would not undermine joint Cabinet responsibility. On the facts, he held that publication was permissible because the diaries dealt with events which had occurred ten years previously, and so did not risk prejudice to a current Cabinet.

The decision in AG v Jonathan Cape now seems somewhat dated, and was, to some extent, a product of a more deferential political culture. The modern relationship between disclosure and collective ministerial responsibility is now better demonstrated by the balance struck under the Freedom of Information Act 2000. The Act protects the formulation of policy in relatively robust and sweeping terms. Part II of this Act, which relates to information which is exempt from the scope of the Act, makes specific reference to ministerial discussions in section 35 (“Formulation of Government Policy, etc”) and section 36 (“Prejudice to Effective Conduct of Public Affairs”). In particular, section 36(2)(a) details that information which will be exempt from disclosure provided in the reasonable opinion of a qualified person that it would (or would be likely to) prejudice the maintenance of the convention. Further, section 36(2)(b) provides that information which would inhibit the free and frank provision of advice, and exchange of views, for the purposes of deliberation will also be exempt. 

As the Upper Tribunal noted in Cabinet Office v Information Commissioner [2014] UKUT 0461 at [65], “section 36(2)(a)(i) is potentially significant in indicating the importance attached by FOIA to the convention of Cabinet (or ministerial) collective responsibility”. At its least, it is clear that the principle of collective responsibility is recognised both at common law and in the statutory provisions which regulate disclosure. This feature of the law is desirable. As Cabinet Office v Information Commissionerand Parr (EA/2019/0082) describes, “By holding all Ministers to a settled cabinet position, it encourages Ministers to strive to produce a robust joint decision, rather than seeking to exculpate themselves from any odium which may attach to it”. It may in turn guard against the scapegoating of certain ministers for poor policy decisions upon which the balance of the Cabinet were agreed, and encourage broad tent government which includes figures from different factions of a party. Moreover, by delivering one message from Cabinet to the public, the principle of collective responsibility contributes to coherent messaging, and possibly greater public confidence in governmental action. This is perhaps particularly effective in periods of coalition governance. 

However, the principle of collective responsibility appears to be at risk of being undermined by the shift towards increased openness and transparency in government. The increasing use of administrative law processes to intervene in sensitive political debates means that there is pressure on strict confidentiality protections contained in a range of constitutional measures. This risk was recognised explicitly in Public Law Project v Information Commissioner [2022] 3 WLUK 568. In this case, the Public Law Project had appealed against the Information Commissioner’s decision that the Secretary of State had been entitled to refuse a Freedom of Information Act 2000 submitted in relation to submissions made by government departments to the Independent Review of Administrative Law. The appeal was dismissed. It was noted there that disclosure would undermine the principle of collective responsibility, which was not confined only to activity in Cabinet or on committees, but applied in any context in which a minister may express an individual view on matters of policy (at paragraph [68]). The submissions which had been requested would have revealed opinions expressed by individual ministers, and that would have adverse consequences for good governance. The judgment noted that, even if the submissions could have been amended to prevent individual Ministers from being identified, it would still undermine the presentation of a united front. The public interest in upholding the principle of collective responsibility outweighed the public interest in disclosure (at [71]). 

Despite the strong protection afforded to the principle of collective responsibility, a somewhat different approach was taken in R (IAB) v Secretary of State for the Home Department [2024] EWCA Civ 66. In this case, the Court of Appeal held that the redaction of the names of junior civil servants in disclosed documents in judicial review proceedings would be a breach of the duty of candour unless there were “good and specific reasons” for doing so. At paragraph [36], the Court noted that “the practice [of redaction] is inimical to open government and unsupported by authority”. The decision in R (IAB) was not concerned with the Cabinet. Indeed, the principle of collective responsibility did not feature in any detail in the case. But this decision appears to demonstrate how increasing demands for accountability may come to encroach upon the principle of collective responsibility explained in the Ministerial Code. Specifically, that advice of civil servants may, on occasion, fall outside the protections afforded by collective responsibility. By exposing civil servants to greater scrutiny, we might have seen a tentative first step in altering the principle embedded in collective responsibility that civil service advice should remain confidential.

That is not to say that there are not clear benefits which attach to a transparent and open government. Transparency promotes confidence and assurance in governance. It facilitates scrutiny and accountability. In turn, it may result in better policy making as it incentivises the following of correct procedures. Although open governance is, rightly, an end towards which the law should continue to move, it ought to be cautious of encroaching upon the scope of collective responsibility. Striking the balance between these countervailing interests is likely to be a feature of future decisions, as the jurisprudence on disclosure shows no sign of slowing. Admittedly many judicial review cases concerning the implementation of a policy will not engage these types of questions. However, ‘political’ judicial reviews of policies that have attracted disagreement within government may provide a forum, as might cases which involve appeals against refusals of Freedom of Information Act requests (such as Public Law Project v Information Commissioner). Courts ought to be wary of allowing disclosure of too much in this space, as the potential effect on advice is very serious, and may open the door to abusive “fishing expedition” judicial reviews.

Cassandra Somers-Joce.

Cassandra Somers-Joce studied law at Oxford University, where she is currently a non-stipendiary lecturer. She has previously taught public law at King’s College London, in addition to holding research roles at the University of York and Durham University.

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.

[1] Richard Pares, George III and the Politicians (1953).