House of Lords - The accountability of civil servants

The accountability of civil servants - Constitution Committee Contents

CHAPTER 2: MINISTERIAL RESPONSIBILITY FOR THE CIVIL SERVICE

3. A fundamental principle of the British system of government is that civil servants are fully accountable to ministers; and ministers are fully accountable to Parliament for all their and their departments' actions and omissions.[6] This principle is often referred to as the convention of individual ministerial responsibility.[7] Since the convention effectively contains the principal mechanism of civil service accountability, no examination of the accountability of civil servants is complete without first briefly considering the convention of ministerial responsibility for civil servants to Parliament.

4. Perhaps the best-known statements on the convention of ministerial responsibility for the civil service were made in the "Crichel Down" episode (as set out in box 1).

BOX 1

Crichel Down

In 1954 the Minister of Agriculture, Sir Thomas Dugdale, resigned following an official inquiry about the approach of the Ministry of Agriculture in disposing of land no longer needed by the Air Ministry after the Second World War. In the Commons debate on the inquiry's report the minister said—

"I, as Minister, must accept full responsibility to Parliament for any mistakes and inefficiency of officials in my Department, just as, when my officials bring off any successes on my behalf, I take full credit for them ... any departure from this long-established rule is bound to bring the civil service right into the political arena, and that we should all, on both sides of the House, deprecate most vigorously".[8]

The Crichel Down episode is perhaps most useful in constitutional terms because of the four categories drawn up by the Home Secretary, Sir David Maxwell Fyfe, to distinguish the degree of accountability of ministers for their civil servants—

(1) A minister must protect a civil servant who has carried out an explicit order by the minister.

(2) A minister must protect and defend a civil servant who acts properly in accordance with the policy laid down by the minister.

(3) Where an official makes a mistake or causes some delay, but not on an important issue of policy and not where a claim to individual rights is seriously involved, the minister acknowledges the mistake and accepts the responsibility, although he is not personally involved, and states that he will take appropriate corrective action in the department. The minister would not expose the official to public criticism.

(4) Where action has been taken by a civil servant of which the minister disapproves and has no prior knowledge, and the conduct of the official is reprehensible, there is no obligation on the part of the minister to endorse what he believes is wrong or to defend what are clearly shown to be errors of his officials. But the minister remains constitutionally responsible to Parliament for the fact that something has gone wrong, and the minister alone can tell Parliament what has occurred.[9]

5. In 1997 both Houses of Parliament agreed resolutions on ministerial accountability, which state that "ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and Executive Agencies ..."[10] The adoption of the resolutions was significant in changing the doctrine of ministerial responsibility to Parliament from an unwritten constitutional convention into a clear parliamentary rule, which can be modified only by Parliament.[11]

6. There are, though, concerns about whether the principle of ministerial responsibility needs re-examining.

7. One concern is that the size and complexity of the state have grown so greatly since the convention was first recognised that it is now unrealistic, even absurd, to expect a minister to be responsible for everything done by a department. Margaret Hodge MP, chair of the House of Commons Public Accounts Committee,[12] told us—

"When Haldane established the constitutional convention that Ministers are accountable to Parliament and civil servants are accountable to Ministers, there were 28 civil servants in the Home Office. Now, despite the changes and the growth of the Ministry of Justice, there are 34,000. The idea that one Cabinet Minister can be accountable for the actions of some 34,000 people is, I think, mistaken."[13]

8. A second concern is that ministers have on occasion tended to distance themselves from failures in government, stating that errors were made by civil servants. It is thought odd that a minister has to be responsible for what are clear errors by civil servants—for example, the loss of a disc containing confidential information on 25 million people by junior officials at Her Majesty's Revenue and Customs.[14]

9. That said, many of our witnesses thought that the convention was still the best means of enabling Parliament to do its job of holding the government to account. Having ministers currently in office answering for all the actions of their departments is the most comprehensive means of Parliament being able to obtain full answers on all issues.[15]

10. The convention, it is said, reflects political reality: when a serious failure occurs in government, the media and the public will inevitably look to the minister for answers—the "Today programme test".[16] It is no bad thing for constitutional convention to match political reality.

11. It is hard to see how any alternative system could work in practice in the Westminster model whereby the government are formed from within Parliament.[17] Although select committees play an increasingly important role in holding the government to account, they are not the only means by which it is done. This is particularly the case for day-to-day scrutiny. Ministers answer oral and written questions, make oral and written statements, respond to debates, and promote bills and secondary legislation in both Houses of Parliament. These ministerial functions in Parliament could not be performed by civil servants. If a minister were able to respond to, say, a parliamentary question by saying he or she did not decide that matter individually and therefore could not answer the question substantively, Parliament would be left uninformed. If ministers were able to avoid constitutional responsibility, they might do so when it was politically advantageous, whilst continuing to take full credit for whatever went well in the department.

12. We conclude that the convention that ministers are constitutionally responsible for all aspects of their departments' business is an essential principle underlying the arrangements that enable Parliament properly to perform its function of holding the Government to account. The convention is clear, straightforward and leaves no gaps.

Accountability and responsibility

13. Some have attempted to refine the concept of ministerial responsibility by drawing a distinction between accountability and responsibility. Lord Howard of Lympne, Home Secretary from 1993 to 1997 and leader of the Conservative Party from 2003 to 2005, told us—

"I think that Ministers should be accountable to Parliament—and Parliament's select committees, obviously—for everything that is within the remit of their department. However, there will be some things within the remit of their department for which they are not responsible—accountable to Parliament, yes, but not responsible."[18]

14. This view holds that two distinct concepts exist: accountability is used to describe answering for a decision and its consequences, whereas responsibility is understood as the praiseworthiness or blameworthiness which attaches to the individual who actually takes the decision in question.

15. A similar distinction may be drawn between the functions of civil servants in providing policy advice to ministers and implementing policies set down by ministers. Some witnesses thought that such a distinction is both possible and desirable;[19] others thought attempting to draw a clear line between policy and implementation was unhelpful, as ministers often get involved in implementation.[20] Where it is possible to separate the two, the distinction may be a valuable means of providing clarity and enhanced accountability, especially of civil servants.

16. Not all of our witnesses agreed with such distinctions. Peter Riddell, Director of the Institute for Government, told us that: "There is a danger of getting too obsessed by the distinction between ministerial accountability and ministerial responsibility ... you can dance round on that and get very confused and not get anything very practical as a result."[21]

17. We considered this matter in the context of the Health and Social Care Bill last session.[22] In our report we concluded that the concepts of constitutional responsibility, accountability and answerability are all a part of the same thing. We maintain our view that there is no constitutional difference between the terms responsibility and accountability.

6 This view of the constitutional position of civil servants was encapsulated in a note by the then Cabinet Secretary and Head of the Home Civil Service, Sir Robert Armstrong (now Lord Armstrong of Ilminster), in 1985: see HC Deb, 26 February 1985, cols 130-32W. The convention is also set out in the Civil Service Code (para 2), the Cabinet Manual (1st edition, para 7.1) and the Government's Civil Service Reform Plan (p 20). Back

7 This is a distinct concept from that of the collective responsibility of the government to Parliament (known as collective ministerial responsibility). The convention of collective ministerial responsibility is not relevant to this report. Back

8 HC Deb, 20 July 1954, col 1186. This seemingly unequivocal statement of responsibility was blurred by the attendant circumstances: civil servants were named and criticised in the inquiry's report; the minister had taken a personal part in the transactions relating to the land; and the minister appeared to have lost the confidence of his backbenchers, who were unhappy with the Ministry's policy. Back

9 ibid., cols 1285-87. Back

10 HL Deb, 20 March 1997, cols 1055-62; HC Deb, 19 March 1997, cols 1046-47. The resolutions followed a recommendation of the then House of Commons Public Service Committee (Public Service Committee, 2nd report (1995-96): Ministerial Accountability and Responsibility (HC 313)), which followed the Scott report into arms to Iraq (HC 115, 1995-96) and the dismissal of Derek Lewis as chief executive of the Prison Service (see Tomkins, The Constitution after Scott (Oxford University Press, 1998), pp 45-49 for more details about the Derek Lewis case). Back

11 Neither House has modified its resolution since it was passed. Back

12 The evidence of Margaret Hodge MP, Sir Alan Beith MP (chair of the House of Commons Justice and Liaison Committees) and Bernard Jenkin MP (chair of the Public Administration Committee) was given in a personal capacity, rather than on behalf of the committees they chaired: see Q 1. Back

13 Q 1. Back

14 See HC Deb, 20 November 2007, cols 1101-04. Back

15 Q 29. Back

16 Q 139. Back

17 Unlock Democracy, para 6. Back