UK central government has lost is power upwards to the European Union and other international organisations, and downwards to more localised institutions. This represents a major challenge to established means of constitutional accountabilit
‘UK central government has lost is power upwards to the European Union and other international organisations, and downwards to more localised institutions. This represents a major challenge to established means of constitutional accountability’. Discuss
In a 1995 report chaired by Lord Nolan, accountability was identified as one of the “Seven Principles of Public Life,” applicable in all areas; the public can be confident in electing an administration, only if they can be confident that it is accountable for its actions. Can one still be sure of the accountability of the Government?
English and Welsh law provides that a general election take place every five years, a notion which holds democracy and accountability together. An unpopular government will govern for a maximum of five years before being held to account for their actions by virtue of their success in a general election. It is insufficient however that Government only is accountable every five years, for both the public and for government itself. The people have a right to ensure that they are not subject to arbitrary government for that period, and government have greater chance of success in subsequent campaigns if they are able to hold onto public support. The role of maintaining executive accountability between elections is shared. Parliament, the courts and the media all play crucial roles in keeping Government in check.
The Courts ensure legal accountability. By means of judicial review, the courts can prevent, to use Lord Diplock’s terminology, “illegality”, “irrationality” and “procedural impropriety” in legislation.
Parliament, together with the massive influence of the media, ensures accountability by political means. Tomkins explains that:
“It is fundamental to English public law that the Crown’s government may continue in office only for so long as it enjoys majority support in the House of Commons. As soon as such support is withdrawn the Government must either resign or seek immediate dissolution of Parliament...”
Parliament’s role in ensuring accountability is far wider reaching however than a simple popularity contest, it ensures a continuing scrutiny of Government’s work, and theoretically, of individual minister’s work.
Political accountability “is delivered through the convention of ministerial responsibility,” a convention based on two responsibilities which are laid out in the Ministerial Code, “a guide to principles and practices expected of ministers.” The first of these responsibilities, known as Collective Responsibility,
“...requires that ministers should be able to express their views frankly in the expectation that they can argue freely in public, while maintaining a united front once decisions have been reached.”
Collective responsibility began as a protectionist idea used by early parliamentarians to protect individuals from the King, if a united front was shown, then no individual could be blamed for an unpopular policy. Today its purpose has changed; it now states that any minister must be prepared to defend party policy in Parliament, and support t wholly, through word and vote. This has a variety of effects, including one of ensuring executive dominance in the House. Relevant to accountability however, it ensures that Parliament is aware of what Government policy is, and prevents ‘buck-passing.’ The convention, however, detracts from necessary openness, another of the Nolan Report’s seven principles. The convention hides governmental debate and decision making process from Parliament; how can Parliament call Government to account for poor internal processes if they cannot see them? Instead Parliament must work off targets, and whether or not those targets are achieved, as discussed below.
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The second responsibility is the notion of Individual Responsibility, which impresses on a Minister a wide range of responsibilities. According to Individual Responsibility, a Minister is accountable for:
- His or her own policies, decisions and actions
- His or her private life
- The actions and decisions taken within his or her department
The first two categories are very easily understood and demonstrated. Take for example Edwina Currie; whilst working as a junior Health Minister in 1988, Mrs Currie made public comments about the level of salmonella infection in British eggs. As a result a slump in the sale of British farmed eggs occurred, and following pressure from both sides of the House of Commons, and significant pressure from the press she resigned. We may consider any number of ministers who have resigned following private incidents, but I would like to consider instead David Mellor, as it serves to demonstrate effectively the effect of both the press, and strong party support. Mr Mellor was able to initially survive in office because he was a friend of the Prime Minister, John Major, despite being unpopular with the rest of Parliament. The final decision about ‘resignations’ rests with the Prime Minister, even he, however, cannot ignore the public. After two months of continued press coverage of the story, outright mockery of Mr Mellor, he was forced to hand in his resignation. This story serves to illustrate two aspects of the system of Political Accountability; that, with the support of your party, especially the Prime Minister, Parliament will struggle to have any sway. Secondly, that the press have a huge capacity to affect politics, and carry a great amount of influence.
The third category is far more contentious and open to discussion and debate. Carol Harlow suggests that Individual Responsibility “is based on the twin fictions that a minister delegates powers to civil servants... and that she or he is in charge of their department.” Such comment is born from the confusion which shrouds the accountability of the civil service, next steps agencies and similar governmental organisations. The Crichton Down affair was thought to demonstrate the notion of individual ministerial accountability to the letter; it was only when Sir Thomas Dugdale released his memoirs that his true motives for resignation were revealed. According to purist constitutional theory, a minister alone may be held accountable for the actions of his department, as “civil servants have no constitutional personality and thus no constitutional responsibility.” As Sir Maxwell-Fyfe explained in his subsequent speech, “he [the civil servant] is wholly and directly responsible to his Minister.”
Sir Maxwell-Fyfe continued, in the same speech, to outline four situations and the accountability which applies therein. When a civil servant takes a direct order or follows procedure correctly then the minister must protect them. When a civil servant makes a mistake or causes delay insofar as individual rights are not seriously involved, then the Minister will protect the civil servant from public criticism, by maintaining civil servant anonymity, but take corrective measures internally. The fourth category allows for actions of a civil servant which the minister was not aware of, and did not approve of. In such a situation, the Minister is not obliged to defend the civil servant.
It is worth noting at this point that accountable does not imply that a minister ought to resign following any failure on his part or the part of his department, instead, it obliges the Minister to render an account of what happened, and to explain how and why. Resignation is not the only method of discharging accountability.
On 13 December 2007, the Treaty of Lisbon was signed, with a provisional timetable providing for ratification by all member states by January 1 2009. Despite 24 members having ratified the treaty, it is still not effective. Why? Because the Irish voters rejected it in a 2008 referendum. The democratically elected governments of twenty four states in Europe have been denied the ability to act as they would and form a treaty, because 53% of Irish voters rejected the treaty. The power which the public have endowed on the various administrations has been jeopardised because of the regulations of a superior body. The power to act freely in the country’s interest is no longer complete, our governments are governed. The question we must address is; whether this superior governor is accountable for its actions. As the Nolan report continues, “holders of public office are accountable for thier decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to thier office,” one would expect the governor of governments to be subject to an extreme level of scrutiny.
As above, the predominant mechanisms for enforcing political accountability of central government are Parliament and the press. Clearly, Parliament has little or no ability to hold the Council to account, as it has no supremacy over it. It carries out a number of scrutiny functions, which investigate legislative proposals from the Council; however, the only ability that the UK alone has to prevent legislation is to withhold the 29 votes it receives. The media hold phenomenal power in swaying public opinion, and this cannot be ignored by those in power, however, one need only to read a newspaper to realise that the coverage of European politics, and indeed the level of public interest, is dramatically lower than the equivalent national levels. A brief look at voting statistics suggests that, if the current trend continues, voter turnout in the 2009 elections may be as low as 40%. For political accountability to be effective, an active political sphere is absolutely necessary. The level of interest and participation is insufficient for traditional methods to be effective.
It is non-governmental departmental bodies which pose the greatest threat to the traditional notion of accountability. The traditional line would, as above, hold the Minister accountable for almost any failure in his department. How, therefore, do Parliament identify a failure in the department? Parliamentary Select Committees exist to scrutinise the work of agencies. As a tool to be used on central government, select committees accord a greater level of scrutiny thanks to their specialist nature. They are not suitable however for continuing scrutiny and audit, as is truly necessary for the monitoring of agencies. A select committee instead may carry out a detailed investigation to a reported failure. Success of an agency is measured according to a target set at the beginning of a period. These targets are the first major challenge to departmental accountability. The targets are set by the department itself; clearly a nervous agency could set itself low targets to avoid investigation and risk retribution. Indeed as Carol Harlow quotes in her investigation in to the failure of the child support agency, the financial targets set were notional and “no better than an informed guess.” Is it true accountability when the agency itself determines success or failure?
Understandably, no Minister will be too happy to hand in his resignation when he has not let the public down in any way. As Sir Robin Butler said of Lord Carrington’s resignation, “You do not have to resign because you are criticised, you have to resign because you are at fault.” It was this objection to taking unwarranted punishment that led Sir Butler (now Lord) to propose a distinction between accountable and responsible. Whilst a Minister is always accountable to Parliament, and must explain why a fault has occurred, the fourth of Maxwell-Fyfe’s conditions has become a defence to departmental failure; the responsible party ought instead to suffer retribution. This distinction has led to widespread confusion as to what the true procedure ought to be, with purists maintaining that as long as the Carltona Doctrine is valid, the Minister is responsible for all use of his powers. A more realistic view recognises that this approach simply cannot work on the scale adopted today, each department is further departmentalised, and the governing Minister’s role is vastly separate from much of the department. Harlow indeed describes the classic approach as “based on...twin fictions.” The first of these fictions is that the Carltona Doctrine holds today and the second; that the Minister is in fact in charge of his department. Whilst other reports have sought to play down the shift in placement of accountability, by suggesting that a Minister ought to “look into, question and even intervene in the operations of their agencies,” most recent examples would have us believe otherwise. The question of accountability was posed following the escape of dangerous inmates from Whitemoor and Parkhurst prisons. A special inquiry was commissioned to investigate the cause of the escapes; to determine whether it was a question of policy (which would render the Michael Howard, the then Home Secretary responsible) or of operation (which would place responsibility on Derek Lewis, the chief executive of the Prisons Agency.) Despite the findings of the report, which clearly implicated the Home Secretary, it was Mr. Lewis who ultimately lost his job.
When we consider also the increasing role of Civil Servants in accounting to Parliament for the work of their department (answering to Select Committees, and submitting written response to Parliamentary questions) I find little difficulty in suggesting that constitutional accountability with respect to government agencies is largely passed, and we have moved towards an era of Managerial Accountability. Is this however something with which we ought to have a quarrel? Surely it makes sense that those who are truly at fault are the ones held accountable for errors. That said, when we consider that civil servants are not elected, must we not propose that the Carltona doctrine hold true, and only the Minister can dispense his power, through delegates perhaps, but ultimately he is responsible for any use of the powers bestowed on him? I have little hesitation in the appropriation of blame to those responsible, but find that it is surely fundamental to democracy, that only the elected can dispense power, and that they ought to be held accountable for its use.
A.W. Bradley & K.D. Ewing, Constitutional and Administrative Law (14th Edition) (Pearson Education, 2007)
Jeffrey Jowell & Dawn Oliver, The Changing Constitution (Sixth Edition) (Oxford University Press 2007)
Adam Tomkins, Public Law (Clarendon Law Series, 2003)
Carol Harlow, Accountability, New Public Management, and the Problems of the Child Support Agency, Journal of Law and Society (Volume 26, Number 2, June 1999)
Oonagh Gay & Thomas Powell, ‘Individual ministerial responsibility – issues and examples’, Research Paper 04/31 (2004)
Sir Richard Scott, ‘Ministerial Accountability’, Public Law (P.L. 1996 410-426)
Diana Woodhouse, ‘The Reconstruction of Constitutional Accountability’, Public Law (P.L. 73 -90, 2002)
First Report of The Committee on Standards in Public Life (Cm 2850-1, 1995)
Cabinet Office, Ministerial Code: A Code of Conduct and Guidance on Procedures for Ministers
Service Committee, Ministerial Accountability and Responsibility, HC (1995/6)
First Report of The Committee on Standards in Public Life (Cm 2850-1, 1995), p. 14
Council of Civil Service Unions v Minister for the Civil Service  AC 374, at 410 cited in Adam Tomkins, Public Law (Clarendon Law Series, 2003) p. 172
Diana Woodhouse, ‘The Reconstruction of Constitutional Accountability’, Public Law (P.L. 73 -90, 2002) p. 73
Gordon Brown, ‘Foreword’, Cabinet Office, Ministerial Code: A Code of Conduct and Guidance on Procedures for Ministers
Cabinet Office, Ministerial Code: A Code of Conduct and Guidance on Procedures for Ministers p. 3
See n. 14, infra p.144
Carol Harlow, Accountability, New Public Management, and the Problems of the Child Support Agency, Journal of Law and Society (Volume 26, Number 2, June 1999)
Civil Service Code cited in Diana Woodhouse, see n.4 supra
HC Deb 20 July 1954 vol 530 c1186 available at last checked 19 April 2009
Oonagh Gay & Thomas Powell, ‘Individual ministerial responsibility – issues and examples’, Research Paper 04/31 (2004) p. 7
28th Amendment Lisbon Treaty: Full Results available at last checked 18 April 2009
See n. 1, supra
European Parliament election turnout 1979 – 2004, available at
last checked 19 April 2009
Anonymous quote cited in Carol Harlow, see n. 8 supra
Sir Robin Butler cited in Sir Richard Scott, ‘Ministerial Accountability’, Public Law (P.L. 1996 410-426) P.L. 414
Carltona v Minister of Works  2All E.R. 560
Carol Harlow, see n.8 supra
Evidence to Public Service Committee, Ministerial Accountability and Responsibility, HC (1995/6)