The issue of Ministers blaming their civil servants is central to the distinction between accountability and responsibility. Sir Allan’s report reiterated this point;
“I have not been able to determine whether Mr Blunkett gave any instructions in
relation to the case”
This leaves room for blame to be apportioned to his civil servants who become convenient scapegoats in the affair. The problem with separating accountability and responsibility is that it opens up a chasm where no-one is directly responsible to Parliament, even though a Minister remains responsible. Looking to the lessons of history, the Scott report identified the key to ministerial responsibility is the obligation to give information. Blunkett’s department did not, however, take heed of this advice when his department failed to provide the information required for a conclusive investigation.
It is fair to say that the veracity of ministers is at the crux of a democracy. On the one hand, ministers, by definition, should know what is going on in their department. On the other hand, however, it may be logistically impossible for a minister to be responsible for every action of their employees. Woodhouse addresses this contradiction. She takes a holistic approach whereby any investigation into a minister’s wrong doing should seek to establish responsibility beyond the stop gap of operational matters toward policy. Unfortunately existing procedures designed to scrutinise the executive stop at operational level. This serves to exonerate ministers from any wrong doing.
Ministers control departmental and select committee inquiries. In this role they can ensure their lack of culpability. This, however, undermines the independence and integrity of the work of select committees. Admittedly, there is a fine line between ministers legitimately blaming civil servants on the one hand, and unreasonably attributing blame in order to shirk culpability on the other. Unfortunately, the existing procedures are not sufficiently independent to allow this fine line to be judged accurately. Nicholas Sturgeon, in a parliamentary question, called for the extension of the Freedom of Information legislation to cover civil servants advice to ministers. This was dismissed by Jack McConnell as a ‘silly suggestion’. As long as entrenched secrecy galvanises the procedures which scrutinise ministers and their departments the system will remain forever ineffective.
Parliamentary Questions are allocated for Members of Parliament to question ministers and can be divided into two broad categories; questions with notice and questions without notice. Questions over the Tsunami disaster typified the ineffectiveness of questions as a tool of scrutiny. They failed to address critical issues burning in the minds of the British public; the government’s initial frugal aid offers, the deployment of ships and aircraft which may have helped, and the British victims who weren’t helped home. Thus questions can only begin to effectively scrutinise the executive when ministers direct them to the issues of the day.
A further disadvantage of Parliamentary Questions is that MPs can refrain from answering the question if the cost of a research exercise exceeds £600. It has been countered, however, that civil servants all too readily use the ‘disproportionate cost’ defence as a refusal to answer a question. Hough alludes to the incident of March 2002 when information was deemed unavailable to answer a Parliamentary Question from Steve Webb. Following an enquiry into the department under the Data Protection Act it was discovered that the information was indeed available at the time he asked the question. Unfortunately, recent parliamentary questions have continued to evince numerous instances where refusals are made on the grounds of disproportionate costs, or unavailability of information. A case in point is the unanswered question of how many victims from human trafficking have been returned to their home countries. Suspicions are raised over the convenient dismissal of a question which confronts a controversial topic. A further example is seen in the recent PQ session when there was no mention of the contentious issue of house arrest owing to the time lapse of putting down questions. Moreover, a parliamentary question revealed only 76 % of ordinary written questions, and 35 % of named day questions were answered in 2003-2004. These findings substantiate Forsyth and Woods suggestion that MPs rarely achieve success with a constituent’s grievance with a parliamentary question.
The limited parameters of the Freedom of Information Act negate its use as a means for Parliament to obtain a justification of ministerial conduct. This is seen in “the provision allowing a minister to override any ruling by the commissioner that the government does not like” More particularly, there have been a number of requests for the release of the Attorney General’s advice on the legality of the invasion of Iraq. Section 42 (1) of the Act provides that information is exempt if it has legal professional privilege. The legal advice sought by the government with regards to the Iraq invasion thus falls within this section of disclosure. The minister’s veto dilutes the purpose of the Act making it a ‘cosmetic decoration on our constitution’ that allows ministers to limit transparency of their departments.
Journalists, professional campaigners and other citizens can persevere to make carefully honed requests for information and, when refused, take the cases to the Information Commissioner. The media is not perceived as an official arm of the executive scrutiny per se, but it has increasing resonance over existing procedures which are deemed to be inadequate.
There is a commission named ‘Parliament in the Public Eye’ formed in 2004 which recognises that the effectiveness of Parliament “depends to an extraordinary degree on public confidence”. The media is a vital conduit between Parliament and the public. It could be argued whether the presence of the media during Parliamentary Questions makes the procedure more effective in scrutinising the executive. Ministers, aware of the prying lenses, may be compelled to give more candid answers. Conversely the media may encourage more guarded answers from ministers who are all too aware of their public image. From watching the televised Parliamentary Question sessions they seem imbued with a somewhat theatrical overtone I support the later. The ferocity of the British media in holding ministers to account is spurred by the “absence of other means of accountability”. The interview by Jeremey Paxman on Newsnight laid bare the inaccuracies of Michael Howard’s reasoning for sacking the civil servant Derick Lewis who was the governor of Brixton Prison when several IRA prisoners escaped from it. The existing procedures of parliamentary questions and select committee findings failed to lay bare the inconsistencies in Howard’s accountability to Parliament. This is an example of;
“Minister being held to account not Parliament, but a Minister being held to account directly to the public through the medium of live Television”
Moving to select committees which were set up by Standing Order 130 “……. to examine the expenditure, administration and policy of the principal government departments.” Once again there are many criticisms levelled at this procedure. A Parliamentary Question asked Jack Straw how many recommendations by parliamentary select committees have been adopted by his Department since June 2001. The answer, like many, was not directly addressed. Jack Straw said the information is not held ‘centrally’ and the “cost of compiling such information would incur disproportionate costs’. The Scott Inquiry criticised ministers for failing to publish guidelines and give parliament the opportunity to debate them. It appears the reports of Select Committees are not usually aired in the House of Commons, therefore the government does not face the full extent of the pressure generated by the Reports.
To cite a recent case; the Commons Defence Select Committee is looking into the Ministry of Defences duty of care owed to members of the Armed Forces after young soldiers died under mysterious circumstances in Deepcut barracks in Surrey. The refusal of ministers to order a public inquiry, as demanded by the families and MPs, underlines there are areas of work still to be done to make ministers and their departments transparent. Further, the circular system of accountability to the Prime Minister and not Parliament is furnished by the fact that the review is being conducted by a minister appointed QC and the Minister of State is overseeing proceedings. The plea for sceptical onlookers to “suspend criticism” until the inquiry has reached its full conclusion is a tall order in light of the past ineffectual inquiries.
Existing procedures designed to scrutinise the executive are inadequate. The criticisms centre around the ambiguous construction of the accountability and responsibility of ministers to Parliament. Further, cases cited reveal that ministers are in reality accountable to the Prime Minister. The relationship of Ministers with their civil servants confuses the matter of culpability and the apportionment of blame which only in extreme cases result in resignation. Answers to parliamentary questions obfuscate the issue, deviate from the topic, or can’t come about due to the attendant costs and lack of resources. Select committees comprise members chosen by party Whips and are ultimately under the control of the minister with little discussion or implementation of their findings in Parliament. The Freedom of Information Act is embedded in the system of secrecy and doesn’t enable a fair scrutiny of the executive owing to the ministers veto. Lessons from history have not created a precedent. Inconclusive findings result, with ministers continuing to shirk their responsibility and undermine the system of scrutinising the executive. The burgeoning force of the media and the pressure of public opinion are ostensibly the surest mode for the people of a democracy to hold the executive to account.
L’Espirit des Los Chap XI, pp 3 – 6 cited in Philips, O. Hood & Jackson: Constitutional and Administrative Law eight edition, page 12
Woodhouse, D “Ministerial Responsibility Something Old Something New 1997” Public law page 266 and Woodhouse, D “The Reconstruction of Constitutional Accountability” Public Law page 73
McEldowney, J Public Law 2nd edition page 280
Woodhouse, D “Ministerial Responsibility Something Old Something New 1997” Public law page 265
Woodhouse, D “The Reconstruction of Constitutional Accountability” Public Law page 12
McEldownery, J F op cit. page 89,
; Sir Alan Budd An Application Into An Enquiry For An Indefinite Leave To Remain, December 2004
This was an observation noted by Gordon Prentice a member of the Commons Public Administration Committee whilst interviewing Sir Alan Budd on 12 January 2005 http://www.parliament.the-stationery-office.co.uk/pa/cm200405/cmselect/cmpubadm/51/5011203.htm
Woodhouse, D “Ministerial Responsibility Something Old Something New 1997” Public law page 264
This was an observation noted by Gordon Prentice a member of the Commons Public Administration Committee whilst interviewing Sir Alan Budd on 12 January 2005 http://www.parliament.the-stationery-office.co.uk/pa/cm200405/cmselect/cmpubadm/51/5011203.htm
Woodhouse, D “The Reconstruction of Constitutional Accountability” Public Law page 74
Woodhouse, D ibid page 81
First Minister's Question Time - Sep 16, 2004 Nicolas Sturgeon “to revisit the Freedom of Information (Scotland) Act 2002 to ensure that the advice that ministers receive and the questions that they ask are always open to public scrutiny? Politicians must be open with the Scottish people at all times. Will the First Minister pledge today to end once and for all the culture of secrecy within Government in this country?” TheFirst Minister: I believe that that is a silly suggestion and it is certainly not one that we are going to take up. http://www.scotland.gov.uk/News/This-Week/First-Ministers-Questions/040916
Hamilton, A The Independent “We have been let down by our leaders; this isn’t the normal run of politics” 13 January 2005
Hough, B Ministerial Responsibility to Parliamentary Questions, Public Law (2003) page 213
http://www.publications.parliament.uk/pa/cm200304/cmselect/cmpubadm/355/35513.htm
Hansard 2nd February 2005 Mr Hanncock asked Mr Browne
Treneman, A “Ministers Caught by Doodle Bug” The Times, 01February, 2005
HWR Wade and CF Forsyth, Administrative Law page 30
Michael, J “Is this new freedom an empty gesture? The Freedom of Information Act and other changes that will enhance the public’s right to know” The Times 11th January 05
3rd February 2005, http://www.hmso.gov.uk/acts/acts2000/00036--h.htm
This was an observation noted by Gordon Prentice a member of the Commons Public Administration Committee whilst interviewing Sir Alan Budd on 12 January 2005 http://www.parliament.the-stationery-office.co.uk/pa/cm200405/cmselect/cmpubadm/51/5011203.htm
5th February, http://www.hansardsociety.org.uk/programmes/puttnam_commission
Jenkins, S “When Blair calls in the poodles, we have only the press wolves to save us” The Times 8 December 2004
Newsnight, Friday November 26, 2004
6th February 2005, http://www.publications.parliament.uk/pa/cm200405/cmstords/2/205.htm
Hansard 11th November 2004
Hansard 11th November 2004
McEldowney, J op cit page 279
McEldowney, J op cit page 279
15th December Hansardhttp://www.publications.parliament.uk/cgi-bin/ukparl_hl?DB=ukparl&STEMMER=en&WORDS=ministeri+respons+&COLOUR=Red&STYLE=s&URL=/pa/cm200405/cmselect/cmpubadm/51/5109.htm#muscat_highlighter_first_match