Health and Social Care Bill: follow-up - Constitution Committee Contents


APPENDIX 1: INDIVIDUAL MINISTERIAL RESPONSIBILITY


1. The Ministerial Code provides that "Minsters have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and agencies".[13]

2. Individual ministerial responsibility means that ministers must take constitutional responsibility, must be accountable and must be answerable to Parliament for their (and their departments' and agencies') policies, decisions and actions. (In this Appendix "constitutional responsibility" means "ministerial responsibility to Parliament".)

3. This does not mean that ministers must always resign whenever anything goes wrong, although in the most serious cases a minister will be expected to offer his resignation to the Prime Minister.

4. No distinction is to be drawn between ministerial responsibility, accountability and answerability—they are all aspects of the same thing. Likewise, ministerial responsibility to Parliament is not to be qualified. No distinction is to be drawn between ultimate and non-ultimate responsibility, or between direct and indirect responsibility. Further, no distinction is to be drawn between responsibility for policy on the one hand and responsibility for operational decisions on the other.[14]

5. It is essential to bear in mind that (i) what ministers are constitutionally responsible to Parliament for and (ii) what ministers themselves do may not be the same. The distinction matters in the context of the Health and Social Care Bill for the following reason: removing from the Secretary of State the duty to provide health services[15] does not mean that the Secretary of State no longer remains constitutionally responsible to Parliament for the provision of health services. Likewise, a provision to the effect that the Secretary of State remains constitutionally responsible to Parliament for the provision of health services does not mean that the Secretary of State must himself provide the services. It is because of a failure to bear this distinction in mind that much of the confusion about this matter has arisen. It is the Government's policy to legislate for the reality of the fact that the Secretary of State does not himself provide health services. But, as the Government recognise, this needs to be done in a way that does not suggest that the Secretary of State's constitutional responsibility to Parliament for the provision of health services is reduced.

6. All of this said, however, and as has been amply recognised in debates on the Bill, there is no point in legislating for the Secretary of State's ongoing ministerial responsibility to Parliament in respect of health services in England if those services are in fact to be provided by arms-length bodies over which the Secretary of State has no powers. But, as the extensive debates on the scope of the Secretary of State's various intervention and other powers have made plain, ministers will retain considerable powers over both the NHS Commissioning Board and over CCGs (the critical clauses are 17, 20, 44 and 49), albeit that political argument will no doubt continue over whether these powers are adequate or appropriate.

7. Two further points should be noted. First, there is a constitutionally significant difference between ministerial responsibility to Parliament and the accountability of a public body (such as the NHS Commissioning Board) to a minister. In constitutional terms the latter can never be a substitute for the former because, in the latter case, Parliament is not involved. As the Minister correctly stated in his opening speech in the second reading debate, "We in Parliament can only turn to the Secretary of State".[16] Parliament cannot call or hold the Chair of the Commissioning Board, for example, to constitutional account. A select committee can of course call him as a witness, but giving evidence as a witness to a committee and being liable to be held to account by Parliament are not the same thing.

8. Lastly, and for the avoidance of doubt, no-one suggests that the Secretary of State is responsible to Parliament for individual clinical decisions: he plainly is not, and the Bill makes no change to this.


13   Ministerial Code (2010), para 1.2 (b). Back

14   There was extensive argument about these matters during Sir John Major's premiership; they were resolved in 1997: see especially HC Deb, 19 March 1997, cols 1046-7 and HL Deb, 20 March 1997, cols 1055-62. Back

15   NHS Act 2006, section 1(2).  Back

16   HL Deb, 11 Oct, col 1470 (Earl Howe).  Back


 
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