Historical events change a political reality effecting legal consequences. This idea underlies Flinders’ observation, “that we use this outdated convention to control a modern executive has contributed to the current problems” (Flinders 43). Individual
ministerial responsibility became entrenched in the 1860s resulting from several factors beginning with the Reform Act of 1832 which increased the electorate by 50%. About the same time, the House of Commons was liberated from Crown influence and parties and party discipline carried little influence (Flinders 44). Departments were still small enough for Parliament to reasonably assume that ministers were directly responsible for all policies and operations. “It was expected that ministers would have to work to maintain the confidence of the House” and “more importantly, the government accepted the right of Parliament to hold ministers to account” (Flinders 44). This political reality, which made the convention a practicable way to hold Government responsible and accountable to Parliament, is not the reality in Britain today.
“After the second Reform Act [1867], the relationship between parliament and the executive shifted in the latter’s favour, rules changed, the power of the individual MP reduced, the executive power was consolidated, and by the end of the 19th Century, most votes were whipped and party discipline strong” (Flinders 45). The balance of power shifted once again in favour of the executive. Government expanded in size and complexity. Civil servants multiplied and ministers were no longer directly involved in departmental operations. Holding ministers accountable and responsible to Parliament however was still relied upon because while ministers did not carry out operations personally, they did select the civil servants responsible for those operations.
Lord Greene, in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 (CA), remarked on this point, “The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them” (Turpin 417). The Home Secretary, Sir David Maxwell Fyfe, addressed the House of Commons in 1954 reiterated this point while adding that if a civil servant acts improperly unbeknownst to the minister, the minister is not bound to defend his officer. He is still, however, responsible and accountable to Parliament for his officer’s actions. This arrangement prevents Parliament from effectively scrutinising Government since the person directly responsible for the maladministration remains in office. This problem is apparent in following case.
In the Crichel Down affair, private land had been purchased by the Government at full market price to be used by the Air Ministry. When the Air Ministry no longer needed the land, the department transferred the land to the Ministry of Agriculture which then handed over management to the Agricultural Land Commission. The original landowner made a request to buy back the land but it was instead leased to a nominee of the Commission. “Civil servants had imposed their policy and had overridden the moral claims of the citizen” (Jacob’s The Republican Crown). A public inquiry was ordered and the Minister of Agriculture, Sire Thomas Dugdale, resigned.
Prima facie, this shows a successful application of the convention of individual ministerial responsibility. However, as noted by Turpin (453), several surrounding
circumstances reveal underlying problems. First, the inquiry named and criticised those civil servants responsible for the mismanagement of the land. Second, Dugdale was reported as having been personally involved in the affair but only because he had been misled. The minister honourably took responsibility for his department’s actions and resigned. Those civil servants who threatened Government’s legitimacy, however, remained in office. The convention of individual ministerial responsibility seems to prefer symbolic Government gestures over effective scrutiny and accountability.
There was yet another change in the political landscape during the 1970s when Parliament realised that it could defeat Government measures and effect greater scrutiny and influence without risk of dismissal (Norton, Philip. ‘The House of Commons and the Constitution: The Challenge of the 1970s’ in Turpin 449). Parliament’s paralysis seems to explain why it relied on ministerial responsibility for securing accountability and Government legitimacy. This reliance on an ineffective convention would suggest a responsibility and accountability gap. If there was indeed a gap, it appears to have been filled over time by other influences, such as the Opposition, backbenchers and the media.
For example, a ministerial scandal is often accompanied by “intraparty jockeying” which could have the effect of disrupting the Government’s cohesion or legislative agenda (Kam Not Just Parliamentary ‘Cowboys and Indians’: Ministerial Responsibility and Bureaucratic Drift).
Parliament, aware of the gap resulting from the classic doctrine of ministerial responsibility, attempted to redesign the convention as a way to secure accountability.
Ministers are still responsible to Parliament for policy issues, while the civil servant is responsible to the minister for operational issues. But as Turpin remarked, “the distinction between ‘policy’ and ‘operations’ is problematic and becomes blurred in practice, since ministers have authority to intervene in operational matters and have sometimes done so frequently and in detail” (466).
The new doctrine of individual ministerial responsibility and the abovementioned checks on Government, however, were not effective enough to prevent a series of prison breakouts resulting from operational maladministration. The case involving Michael Howard and the director general, Derek Lewis illustrates the difficulty in distinguishing between the division of responsibilities between ministers and their agencies. Howard, it had been alleged, had “been highly active in telling Lewis, in effect, what to do operationally” (Barker UK Prison Security) and yet it was Lewis who got sacked.
Given the MPs greater willingness to vote against their government, Parliament is now also willing to replace the outdated doctrine of ministerial responsibility with more effective techniques for securing accountability. The Carltona Doctrine and the Osmotherly Rules have worked to secure the executive and its civil servants against parliamentary questions and in-depth Parliamentary scrutiny in the Select Committees.
The Freedom of Information Act therefore is an important step in breaking down these executive barriers. The Government, however, can still claim national security interests for not disclosing certain information.
The old and new doctrines of individual ministerial responsibility are ineffective in securing ministerial accountability and responsibility to Parliament. Its effectiveness depends on specific political circumstances which are not reflective of Britain today. Parliament is the instrument through which the electorate checks the Government. And where ministerial responsibility has failed, other mechanisms arose to fulfil the need for a legitimate government. These mechanisms include the Opposition, backbenchers and the media for example. While ministers may refrain from honourably resigning their position, they still remain, to a certain degree, responsive to media blitz. Parliament has not left this system of checks and balances to outside influences. Rather, it has become more active in scrutinizing Government activity, holding to account both ministers and their civil servants.
Similarly, International Criminal Tribunals will use their limited resources to bring to justice major war criminals rather than those lower-ranking individuals who carried out the crimes.
Robert Craig, Class Notes 20/10/03
According to Christopher Kam, on the other hand, “politicians more effectively police the bureaucracy when they are governed by a doctrine of ministerial responsibility than whey they are not” (Not Just Parliamentary ‘Cowboys and Indians’: Ministerial Responsibility and Bureaucratic Drift).
Hazell, Robert. Making the Civil Service More Accountable