Written evidence from the Regulatory Policy
Institute's Better Government Programme
The Better Government Programme, a free-standing
entity within the Regulatory Policy Institute, focuses on the
machinery of government and regulation and on improvements to
policy and regulatory processes. In 2009, a commission established
by the Programme produced a series of recommendations on improving
trust in institutions and processes. As part of its work, it considered
the role and functions of Ministers and this submission draws
on that analysis.
The submission, which focuses on the Committee's
questions one to four, does not necessarily represent the corporate
view of the RPI.
Summary
- There are few constitutional arguments against
the appointment of Ministers from outside Parliament. Prime Ministers
should be free to select Ministers from the widest possible pool
of talent.
- There is no reason why unelected decision makers
should not be as accountable as elected Ministers to Parliament
and the public.
- A significant move to appointment of non-political
Ministers might limit the less attractive aspects of politicised
debate over policy and public administration and would introduce
greater separation between Executive and Legislature.
- Public and media accessibility demands make it
difficult to reduce the number of formal decision makers, but
better policy making and governance model may only require an
elected Secretary of State and one other political chaperone for
non-political appointees in each Department.
- Concern that unelected decision makers may be
technocratic and out of touch with the public mood can be addressed
through departmental policy governance boards combining elected
and non-political members.
1. What do Ministers do and is their work best
done by Ministers who are drawn from Parliament?
1.1 Ministers currently have four roles:
- To act as the political managers of their departments,
progressing and taking responsibility for the Government's policies.
- To act as the ultimate decision makers on any
issue within their Departments.
- To act as the link between their Departments
and the legislature, accounting to Parliament for their decisions
and providing the highest level of accountability for their Departments'
work.
- To act as the ultimate departmental representatives
of the Government in public fora.
1.2 Is that work best done by Ministers drawn
from Parliament? Before answering, we should consider whether
it is constitutionally a requirement, or at least desirable, that
Ministers should be members of either House. Not necessarily,
we would submit, for the following reasons:
- Citizens do not vote for Ministers. While electors
can collectively dismiss a constituency MP because of poor performance
as a Minister, they are formally asked to vote only for a representative
for that constituency. They have no say in the appointment or
removal of Ministers (whether drawn from the Commons or Lords)
once a government is formed.
- Some maintain that decisions in the system of
government can only be considered legitimate if they are taken
by those electorally mandated to make them. But that implies that
decisions taken by the unelected - bodies such as the Competition
Commission, Monetary Policy Committee and sector regulators -
under delegated powers lack legitimacy. Legally and constitutionally,
that is clearly incorrect.
- Some also suggest that only those drawn from
Parliament can be truly accountable to the public; but that concept
should only prevail if accountability as we currently experience
it is effective and if it would not be possible for those outside
Parliament to be at least as accountable to it as Ministers are
now. The current experience is that this is insupportable. Traditional
accountability mechanisms, such as questions in the House or the
ability to vote out a government every few years, have encouraged
a culture of obfuscation, point scoring rather than calling to
account, and Lines to Take rather than true explanation. And there
is no reason why unelected decision makers, who regularly appear
before Select Committees now, should not also answer Oral Questions
or handle Standing Committee stages.[1]
In short, there is no need to pair "unelected" with
"unaccountable".
1.3 Aside from points of principle, there is
the question of credibility and competence. Elected Ministers
are often seen as amateurs whose decisions are made without the
benefit of personal expertise. They are less the best people for
the job than the best people (or just the rewardees) that Prime
Ministers have chosen from the small pool - one likely, under
proposals to reduce the number of constituencies, to get even
smaller - of their own party's (largely) elected members. And
election does not confer on an individual a special skill of competent
decision making that is lacking in others. In the United States
and France for example, there are no concerns over the ability
of presidents to select the most capable individuals to Cabinet-level
positions without confining themselves to the legislature. Why
should a Prime Minister not be given the same freedom provided,
we reiterate, that unelected Ministers are placed - and perceived
to be - in a position of genuine accountability? There is certainly
no constitutional barrier to it.
1.4 Both Government and Opposition have recognised
that the public trusts non-political "experts" (however
defined) above politicians to make certain types of decisions[2]
or to manage processes. We have mentioned the MPC and Competition
Commission, but we have also seen the establishment of bodies
such as the Office of Budgetary Responsibility and the UK Statistics
Authority as a result of suspicion of political intervention.
Where Ministers have relinquished powers (for example in setting
interest rates or in most merger cases) confidence in the objectivity
of processes has improved (even if they are no more transparent
or certain) because their replacements are perceived as focused
only on their job and not on demagogy or playing Party games.
On the other hand, "expert" in this context is often
associated with a technocratic approach to government under which
evidentially "correct" decisions do not take account
of the public mood, to which Ministers drawn from constituency
MPs are more exposed; but that does not mean that unelected decision
makers are by definition out of touch or incapable of equity.
1.5 The record of Ministers appointed from outside
Parliament has been mixed, but they have rarely been placed in
major decision making positions and in recent years have been
used mainly as consigliere between the Government and their
former sector. Many have found it hard to cope with the aggressive
nature of party political culture (it is difficult to imagine
Beveridge getting his welfare proposals through today), which
suggests that even though a widespread move to non-political Ministers
might introduce a civilising element into policy debate, even
the most capable of such appointees may need to sit alongside
"political" Ministers (or at least mentors such as Special
Advisers) in order to deliver policy effectively. But that may
be considered more as an indictment of party political gaming
than of the ability of non-political appointees to make and deliver
sound decisions. It is however important to avoid appointments
on the basis of personal profile and political acceptability without
consideration of their ability to understand and work effectively
within the Whitehall machine.
1.6 There is a second element to the Committee's
question - what should Ministers do? Do we need to adhere to the
convention (or fiction, given the scale of delegated power) that
Ministers should be regarded as involved in and responsible for
all policy decisions? There may be arguments in favour of reviewing
this principle:
- It encourages them to involve themselves in management
of a system the size of which is impossible for the great majority
of transient Ministers to control. It also encourages an environment
in which Ministers are criticised both for taking credit for policy
and for evasiveness when blamed for problems that in most cases
were not their fault.
- It encourages the personalisation of power, with
Ministers claiming responsibility for popular decisions and running
away from poor ones; and with Opposition parties opportunistically
seeking to blame Ministers for every failure of government, regardless
of involvement.
- In the absence of stronger constraints, it permits
Ministers to impose on what they have said should be an evidence-driven
process decisions that may be driven by the desire to court short-term
popularity or to reward supporters.
- Even when Ministers do not involve themselves,
the strength of the constitutional fiction[3]
is such that unnecessary risk is often created through uncertainty
over political intervention.
- Several witnesses to the Committee's Better
Government inquiry [HC 983] shared the view that the convention
that Ministers are deemed to know of and be responsible for everything
that goes on under their command should not be sacrosanct. Sir
Steve Robson[4]
said that:
"delegation... is a good route to go but it
is only going to bring profound benefits if Ministers cease to
be responsible for micro issues", adding that Ministers "account
for the broad policy, they account for the structure they put
in place.... they account for the top hires, and they account
for the incentives they give their top hires—and that is
it", observing that so long as ministerial responsibility
exists, "delegation is not going to bring the benefits it
can do because it is never going to be real delegation."
Kenneth Clarke MP observed[5]
that:
"The relationship between the politicians and
the Civil Servants has changed very badly. We have taken to absurd
lengths the idea that politicians lay down policy and Civil Servants
deliver.... They [Civil Servants] will administer things better
if they play the key role they used to have in the formulation
of policy."
Sir Richard Mottram[6]
added that:
"big departments should be run on the principle
that the Secretary of State is effectively the executive chairman
for strategy and policy, and the non-executive chairman for the
leadership and management and proper conduct of business of the
department, and the Permanent Secretary should be held to account
for all of these things."
1.7 The members of our Trust Commission had mixed
views on this:
"I do not believe responsibility for policy
making should pass from elected politicians to unelected Civil
Servants or to other, shadowy individuals who would have "no
interest in anything but doing the job". How would these
paragons be identified or chosen? There has to be a real risk
that they would be drawn from the massed ranks of political cronies.
Be that as it may, I fear that far from enhancing public trust,
this diluting of democracy could do the opposite. It would certainly
give politicians/officials/advisers/others a heaven-sent opportunity
to blame each other and evade responsibility for mistakes even
more effectively than they do now."
"I would not be comfortable with geneticists
setting the policy for stem cell research, but once they have
been given their policy parameters by politicians I don't think
the political class can have anything more of value to say on
the subject and the scientists should get on with it. Likewise,
I don't think the Bank of England should fix the monetary framework
or its targets, but it should have the independence to meet its
set objectives in whatever way it sees fit. Nor should the FSA
write banking legislation, but it should be free from political
influence when it supervises a financial firm...
I would be happy with a position that says that the
elected political level should clearly and transparently set policy,
preferably at a high enough level that it doesn't need endless
revision. The system should then encourage appointed experts or
agencies to carry out these policies as independently as possible.
Also, independence isn't a carte blanche to run away with
an issue, as it must always be tempered by, for example, accountability
to Parliament; or review (ombudsman, judicial etc.) if it strays
beyond the parameters that were set by the high level policy objectives."
This submission favours the second approach; and,
as we explain in 2. below, it could lead to a reduction in the
number of Ministers, at least as we know them now.
2. Are there too many Ministers, not enough, or
is the level about right?
(a) Are current statutory limits on the number of Ministers
set at an appropriate level?
(b) Is there an optimal number of Ministers in the interests
of good government?
2.1 The complexity of each Department's portfolio
(and this is unlikely to decline significantly even if direct
responsibility for some sectors is devolved because decision making
will, at least to some extent, be replaced by oversight) and the
need to provide reasonable access to Ministers through visits
and speeches makes it difficult to reduce the number of Ministers
without imposing unsustainable strain on those who remain.
2.2 Some commentators point to the appreciable
growth in the number of Ministers over the past 50 years (examined
in the Committee's Too Many Ministers? report). In that
report, the Committee concluded that:
The ever-upward trend in the size of government over
the last hundred years or more is striking and hard to justify
objectively in the context of the end of Empire, privatisation,
and, most recently, devolution to Scotland, Wales and Northern
Ireland. (para 5)
2.3 But that overlooks the nature of modern government.
"Good government" is about more than just the efficient
delivery of fairly made policies and decisions. In a world of
"stakeholders" and 24 hour news media, Ministers are
expected to be seen, and to account and be a spokesman for the
Government to a far greater extent than their predecessors. It
would be difficult to envisage that a smaller cadre of those doing
the work of Ministers could satisfy the demands of today's concept
of accountability. But that does not mean that such work should
be reserved only for Ministers as we know them now.
2.4 We do not agree with the Committee (ibid,
para 9) that it would be desirable to cap the number of unpaid
ministerial posts. While we agree (ibid, para 15) that appointment
to a ministerial post as a reward should not be condoned, it is
for governments to determine whether the creation of Ministers
is necessary provided that the salary burden is limited. However,
there would not appear to be any good case for increasing the
number.
2.5 A review of decision making and accountability
conventions, as discussed in 1. above, might lead to a reduction
in the number of Ministers. We examined a model under which decisions
within the system should be regarded as having been taken by people
with relevant expertise; be seen to be based on a fair balancing
of evidence and to be taken in the national interest; and be subjected
to true scrutiny, with the additional benefit of introducing greater
separation between the Executive and the Legislature. It might
have the following characteristics:
- The convention that Ministers make all decisions
and are responsible for everything would be replaced with a
radical change in role. While the Prime Minister's ability to
appoint the Cabinet would be unchanged, Departments would be restructured
on the lines of a managed fund or the BBC Trust, under which the
Secretary of State would appoint (from the best available talent,
which could include Parliament, and perhaps by competition) and
chair a board that would allocate budgets, decide on policy objectives
and parameters and give directions to sector specialists, who
would be responsible for detailed policy making and implementation.
- The board would therefore
be akin to trustees, responsible (and accountable to Parliament)
for governance; the executive staff for execution (although we
would envisage them discussing implementation options with the
Board). While the operation of the BBC Trust has been called into
question, a parallel to its model, under which the roles of and
relationship between the trustees and the executive would be defined
by published protocols, similar to the relationship between Ministers
and sector regulators and akin in concept to Service Level Agreements
(or the BBC Trust's Purpose Remits and Service Licences) could
be considered. Failure of governance or execution, as defined
in the protocols and in statute, would be judicially reviewable.
- The Board (not including
the Secretary of State) and senior executive level appointments
would be subject to confirmation (not just nomination) hearings
by the relevant Select Committee or by a joint Commons/Lords committee,
which could vote against appointment.
- Responsibility for errors should be attributable
where they are caused, and not always to the top of departments.[7]
Officials, regulators and NDPB heads should be directly accountable
to Parliament as well as to the Board.
- The board would have the
support of a scrutiny cabinet to monitor executive performance.
- Board members would lead
during Whole House stages of legislation but the Board and officials
would jointly be answerable during the Standing Committee stage
in order to improve the quality of responses to amendments and
questions.
2.5 This change must be
coupled with a move away from rapid changes in ministerial posts.
As one of our Commission members commented,
"Compare the longevity in post of the CEO's
of the UK's top 25 firms with that of Cabinet Ministers.
Frequently changing guard is very largely a measure of how
inadequate too many SofS's are for the posts they
are given. Having a half-life measurable in months is the antidote
to continuity, accountability and effective governance. Mastery
of a Department develops over time. I recall meeting and being
impressed by how seriously XXXX had mastered the hugely complex
XXXX brief when in opposition. Weeks after hearing how much effort
he'd put into getting on top of the subject and how much he looked
forward to making a contribution to an increasingly important/overdue national
debate on the subject, he was given a completely different job
to do. This isn't even Cabinet stuff, so how much worse is it
when the brief goes wider?"
2.6 Would a smaller number of Ministers with
reduced powers deter parliamentary candidates because their prospects
of promotion would be more limited? Leaving aside the priority
that should be given to an MP's traditional role as constituency
representative, the evidence suggests that there was no shortage
of candidates when the Government was half its present size.
2.7 And would ending the right of the unelected
to hide behind Ministers inhibit the desire of those outside Parliament
to put themselves forward for public service? It may be felt that
if people are not prepared to be called to account they are the
wrong ones for the job.
3. If proposals to reduce the number of MPs are
implemented, should the number of Ministers also be reduced?
(a) If so, to what extent?
(b) How should it be done?
3.1 There is a difference between Parliament
and the Executive. The number of Ministers should be geared to
the demands on them, and if we pass a point in delegation/devolution
where decision making gives way to oversight and the focus of
accountability for policy and service delivery shifts, the number
can be cut. If the Government's declared aspirations
come to fruition we are likely to end up with smaller departments
with fewer functions and significantly smaller budgets. That would
suggest fewer Ministers and fewer quangos. But while Ministers
talk about decentralisation in the same breath as spending
cuts, we do not yet have clarity about which functions are to
be shed by Whitehall and who, if anyone, will pick them up. Some
would consider it optimistic to assume that there is a latent
army of eager volunteers with the right skills and in the right
places to bring the Big Society to life.
4. What implications does coalition government
have for the role of Ministers and how they operate, both collectively
and at the level of individual departments?
4.1 None. Ministers' duty is to the Crown, not
to any political faction. Trust in Ministers would be materially
improved if they were regularly reminded of this.
August 2010
1 And Ministers are arguably at their most accountable
on the Today or Question Time programmes, which are not restricted
to MPs or Peers. Back
2
The Committee may wish to decide whether there is any conceptual
reason why, for example, the Food Standards Agency is trusted
to take most decisions on food safety but only Ministers are considered
appropriate decision makers on GMOs. Back
3
The courts have acknowledged that the principle of ministerial
decision-making in reality means a collaborative process: "To
treat the minister in his decision-making capacity as someone
separate and distinct from the department of government of which
he is the political head and for whose actions he alone in constitutional
theory is accountable to Parliament is to ignore not only practical
realities but also Parliament's intention."-Diplock LJ in
Bushell and Another v Secretary of State for the Environment [1981]
AC 75 at p 94. Back
4
Better Government, Public Administration Select Committee,
HC 983, Q83-84 Back
5
Ibid, Q135 Back
6
Ibid, Q27 Back
7
The Conservatives (It's Your Money-A New Plan for Disciplined
Spending in Government, 2009) proposed including a fiduciary responsibility
to taxpayers in the employment agreements of all senior officials,
with disciplinary implications if it is breached. We agree, but
believe that Parliament should have the power to discipline officials
and Ministers for failure of duty. Back
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