Appendix
The Government welcomes the Committee's follow-up
Report and interest in this subject. The Government recognises
the important role of Parliament in holding the Executive to account,
as shown by the Governance of Britain White Paper and draft Constitutional
Renewal Bill.
For the reasons set out in this memorandum, the Government
does not believe it is feasible to give Parliament a say in major
machinery of government changes before they happen. However, the
Government proposes to continue the recent practice of announcing
significant changes with a Written Ministerial Statement and of
placing detailed background material on significant changes in
the Library of the House. The Government also believes that after
significant machinery of government changes are made, ministers
should make themselves available to select committees that wish
to examine the consequences of those changes.
The Government's response to the Committee's recommendations
is set out below.
1. The Governance of Britain paper and the
response to our Report show strongly contrasting attitudes to
the role of Parliament, which we believe ought to be reconciled.
(Paragraph 3)
2 If the Government is prepared to allow Parliament
a vote on matters as important and urgent as the deployment of
the armed forces overseas, we do not understand why it should
be resistant to giving Parliament a more effective voice on the
reorganisation of civil service departments. (Paragraph 11)
The Governance of Britain programme shows the Government's
support for parliamentary scrutiny and limiting the power of the
Executive, for example, through seeking the approval of Parliament
before committing UK forces to armed conflict overseas or when
requesting the recall of Parliament.
It is useful to consider briefly how machinery of
government changes arise. The organisation and functions
of a Government Department are fundamentally a reflection of the
responsibilities of the minister in charge of the Department. The
allocation of functions between ministers in charge of Departments
is the responsibility of the Prime Minister of the day as part
of his responsibility for the overall organisation of the Executive,
as set out in the Ministerial Code. The Prime Minister is responsible
for choosing the members of the Cabinet, and determining the responsibilities
that each Cabinet member should fulfil.
Responsibilities of members of the Cabinet are determined
according to the Prime Minister's assessment of the key challenges
faced, and, as priorities shift over time, departmental structures
will need to change with them. Fundamentally, the organisation
of Central Government Departments cannot therefore be separated
from the allocation of policy responsibilities among members of
the Cabinet; so decisions on changes to Cabinet portfolios
will very often bring with them changes to the structure,
and sometimes the titles of Departments. Because the allocation
of responsibilities by the Prime Minister and the necessary structural
changes to Departments are so interlinked, the Government does
not believe that giving Parliament a vote on major machinery of
government changes before they happen is compatible with preserving
the right of the Prime Minister of the day to organise the distribution
of responsibilities among members of the Cabinet.
3. Transfer of Functions Orders do not provide
for effective parliamentary scrutiny of changes to the organisation
of the civil service, both for the reasons set out in paragraph
4 above, and because any debate or vote on an order can only take
place at the behest of the Government. There have been no debates
or votes on such orders for more than 25 years. A different mechanism
is required. (Paragraph 6)
4. Making a
written ministerial statement is an important way of providing
information to Parliament, but it does not
require Government to engage with Parliament in a way that would
provide meaningful accountability. (Paragraph 9)
5. The forthcoming draft bill on constitutional
reform is likely to include provisions to put the civil service
on a statutory footing. As part of these provisions, we recommend
measures to allow Parliament effective scrutiny of changes to
the organisation of government itself. (Paragraph 12)
The Government recognises that a Transfer of Functions
Order does not always specify the details of the portfolio changes
taking place. Depending on the changes, a Transfer of Functions
Order may or may not be needed, and may be substantive in terms
of the powers it addresses, or may deal with more minor matters.
If for example, statutory functions are conferred on "the
Secretary of State" (as is general practice) then no Transfer
of Functions Order will be necessary to transfer those functions
between Secretaries of State, though one may be needed for supplementary
purposes (e.g. transferring property, rights and liabilities).
Conversely, if statutory functions are conferred on a designated
minister (e.g. the Lord Chancellor), then a Transfer of Functions
Order will be needed to transfer those functions to another minister.
This means that in some cases a TFO will not cover the substance
of a change; but in others, where statutory functions need to
be transferred from or to a designated minister, it may be a prerequisite
to new arrangements coming into operation.
The Ministers of the Crown Act 1975 acknowledged
the right of the Prime Minister of the day to organise the structure
of the Government, subject to this accountability mechanism. The
Government considers that this, coupled with the additional steps
specified earlier, makes for the right balance between enabling
parliamentary scrutiny, giving the Prime Minister the ability
to appoint his Cabinet when needed, and minimising uncertainty
for those in Departments affected by changes.
The Government is committed to facilitating Parliamentary
scrutiny, and believes that after significant changes, ministers
should make themselves available to Select Committees that wish
to examine the consequences and management of changes.
In all recent significant changes, the Prime Minister
has made a Written Ministerial Statement to announce the change.
In addition, the larger changes last year were all accompanied
by detailed papers placed in the Library of the House to explain
the background to the changes. The Government intends to continue
both of these practices.
As stated previously, the Government will provide
for a debate on a Transfer of Functions Order if it is prayed
against and if there is sufficient desire for a debate. Departments
are of course responsible to Parliament for their spending through
their Accounting Officer, which provides another mechanism for
scrutiny of the use of public money and spending priorities.
4. Machinery of government changes should
always take place after proper analysis of the consequences. It
is not appropriate that Prime Ministers should be able to alter
the structure of the civil service departments on a whim, and
we do not understand why they should ever need to do so. (Paragraph
10)
The Government agrees that consideration of the implications
of machinery of government change is important before changes
are decided upon or implemented, and examines these issues to
the fullest extent possible. Prime Ministers need to be able to
allocate responsibilities among Cabinet Ministers, and sometimes
decisions need to be taken quickly. Where changes are proposed
the Prime Minister is advised by the Secretary of the Cabinet
and Head of the Home Civil Service.
The Government believes it is important to reserve
the right of a Prime Minister to organise the responsibilities
of members of the Cabinet, from which high-level Departmental
structures are derived.
25 April 2008
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