Using relevant examples, critically assess the extent to which existing procedures enable Parliament to obtain an explanation of ministerial departmental conduct and if necessary force remedial action. Scrutiny of the government and administration is done by; parliamentary questions, debates, select committees, national finance and scrutiny of the legislative function through standing committees. The overlap of the Executive, Legislature, and Judiciary defines the lack of a separation of powers in the United Kingdom. 1 It is imperative in a democracy for the executive to be accountable to Parliament.
This ensures the power balance is monitored and the rule of law is observed fairly. The term ‘ministerial departmental conduct’ encompasses the actions of both Ministers and their civil servants. It is thus pertinent to delineate the Government’s distinction between minister’s accountability and responsibility to Parliament. After reading myriad interpretations of this distinction2, my understanding is that ministers are responsible to Parliament for their actions and those of their departments, but not actually blameworthy, or in other words accountable, for the actions of their civil servants.
The diametric between responsibility and accountability will be attacked and used to frame the critical discussion of the shortcomings of parliamentary questions and select committees. Setting historic inquiries against recent examples will illustrate that procedures have not evolved to become anymore effective in forcing remedial action in the form of resignations. The benchmark defining the necessary conditions for a minister’s resignation will also be looked at. Ministers resign for three reasons. First, they are to blame for their errors.
Second, they mislead Parliament. Third, they lose the support of their Prime Minister. The David Blunkett affair, which saw Blunkett investigated for abusing his ministerial position, is testament to Tony Blair being the ultimate decision maker in the process of a minister’s resignation. Similarly, The Scott Inquiry was conducted on behalf of the Prime Minister instead of for Parliament. 3 Instead of ministerial accountability to Parliament, accountability to the Prime Minister is played out time and time again.
The PM himself is further weakly accountable to Parliament. 4 This circular system ultimately undermines all procedures designed to scrutinise the executive. Moreover, Sir Alan, the appointed head of the Blunkett inquiry, was Blair’s old treasury colleague. Here the circular principle of accountability is clearly played out. Drawing on historical examples, neither Sir Thomas Dugdale’s resignation over the Crichel Down Affair in 1854, nor Lord Carrington’s resignation in 1982 were a result of their ‘vicarious liability’ for civil servants actions.
It is necessary for ministers to reign when there is a serious departmental error owing to their ‘supervisory role’. 6 This would give a firmer definition to the malleable concept of ministerial responsibility and accountability which would shed the “cloak for a lot of ministerial muddle and slip shoddery within department”. 7 Maxwell Fyfe, following Crichel Down, categorised the minister relationship with his civil servant in relation to the minister’s responsibility to Parliament. He crucially neglected a conclusion over the obligation of ministers to resign for departmental errors.
History thus sets no precedent to follow. The question of when resignation is necessary is very subjective and is steered by politics, and, to an increasing degree, the public reaction of the day. The issue of Ministers blaming their civil servants is central to the distinction between accountability and responsibility. Sir Allan’s report reiterated this point; “I have not been able to determine whether Mr Blunkett gave any instructions in relation to the case”8 This leaves room for blame to be apportioned to his civil servants who become convenient scapegoats in the affair.
The problem with separating accountability and responsibility is that it opens up a chasm where no-one is directly responsible to Parliament, even though a Minister remains responsible. 9 Looking to the lessons of history, the Scott report identified the key to ministerial responsibility is the obligation to give information. 10 Blunkett’s department did not, however, take heed of this advice when his department failed to provide the information required for a conclusive investigation. 11 It is fair to say that the veracity of ministers is at the crux of a democracy.
On the one hand, ministers, by definition, should know what is going on in their department. On the other hand, however, it may be logistically impossible for a minister to be responsible for every action of their employees. Woodhouse addresses this contradiction. She takes a holistic approach whereby any investigation into a minister’s wrong doing should seek to establish responsibility beyond the stop gap of operational matters toward policy. 12 Unfortunately existing procedures designed to scrutinise the executive stop at operational level.
This serves to exonerate ministers from any wrong doing. Ministers control departmental and select committee inquiries. In this role they can ensure their lack of culpability. This, however, undermines the independence and integrity of the work of select committees. Admittedly, there is a fine line between ministers legitimately blaming civil servants on the one hand, and unreasonably attributing blame in order to shirk culpability on the other. 13 Unfortunately, the existing procedures are not sufficiently independent to allow this fine line to be judged accurately.
Nicholas Sturgeon, in a parliamentary question, called for the extension of the Freedom of Information legislation to cover civil servants advice to ministers. This was dismissed by Jack McConnell as a ‘silly suggestion’. 14 As long as entrenched secrecy galvanises the procedures which scrutinise ministers and their departments the system will remain forever ineffective. Parliamentary Questions are allocated for Members of Parliament to question ministers and can be divided into two broad categories; questions with notice and questions without notice.
Questions over the Tsunami disaster typified the ineffectiveness of questions as a tool of scrutiny. They failed to address critical issues burning in the minds of the British public; the government’s initial frugal aid offers, the deployment of ships and aircraft which may have helped, and the British victims who weren’t helped home. 15 Thus questions can only begin to effectively scrutinise the executive when ministers direct them to the issues of the day. A further disadvantage of Parliamentary Questions is that MPs can refrain from answering the question if the cost of a research exercise exceeds £600.
It has been countered, however, that civil servants all too readily use the ‘disproportionate cost’ defence as a refusal to answer a question. 16 Hough alludes to the incident of March 2002 when information was deemed unavailable to answer a Parliamentary Question from Steve Webb. Following an enquiry into the department under the Data Protection Act it was discovered that the information was indeed available at the time he asked the question. 17 Unfortunately, recent parliamentary questions have continued to evince numerous instances where refusals are made on the grounds of disproportionate costs, or unavailability of information.
A case in point is the unanswered question of how many victims from human trafficking have been returned to their home countries. 18 Suspicions are raised over the convenient dismissal of a question which confronts a controversial topic. A further example is seen in the recent PQ session when there was no mention of the contentious issue of house arrest owing to the time lapse of putting down questions. 19 Moreover, a parliamentary question revealed only 76 % of ordinary written questions, and 35 % of named day questions were answered in 2003-2004.
These findings substantiate Forsyth and Woods suggestion that MPs rarely achieve success with a constituent’s grievance with a parliamentary question. 21 The limited parameters of the Freedom of Information Act negate its use as a means for Parliament to obtain a justification of ministerial conduct. This is seen in “the provision allowing a minister to override any ruling by the commissioner that the government does not like”22 More particularly, there have been a number of requests for the release of the Attorney General’s advice on the legality of the invasion of Iraq.
Section 42 (1) of the Act provides that information is exempt if it has legal professional privilege. 23 The legal advice sought by the government with regards to the Iraq invasion thus falls within this section of disclosure. 24 The minister’s veto dilutes the purpose of the Act making it a ‘cosmetic decoration on our constitution’ 25 that allows ministers to limit transparency of their departments. Journalists, professional campaigners and other citizens can persevere to make carefully honed requests for information and, when refused, take the cases to the Information Commissioner.
The media is not perceived as an official arm of the executive scrutiny per se, but it has increasing resonance over existing procedures which are deemed to be inadequate. There is a commission named ‘Parliament in the Public Eye’ formed in 2004 which recognises that the effectiveness of Parliament “depends to an extraordinary degree on public confidence”. 26 The media is a vital conduit between Parliament and the public. It could be argued whether the presence of the media during Parliamentary Questions makes the procedure more effective in scrutinising the executive.
Ministers, aware of the prying lenses, may be compelled to give more candid answers. Conversely the media may encourage more guarded answers from ministers who are all too aware of their public image. From watching the televised Parliamentary Question sessions they seem imbued with a somewhat theatrical overtone I support the later. The ferocity of the British media in holding ministers to account is spurred by the “absence of other means of accountability”27.
The interview by Jeremey Paxman on Newsnight laid bare the inaccuracies of Michael Howard’s reasoning for sacking the civil servant Derick Lewis who was the governor of Brixton Prison when several IRA prisoners escaped from it. 28 The existing procedures of parliamentary questions and select committee findings failed to lay bare the inconsistencies in Howard’s accountability to Parliament. This is an example of; “Minister being held to account not Parliament, but a Minister being held to account directly to the public through the medium of live Television” 29 Moving to select committees which were set up by Standing Order 130 “……. o examine the expenditure, administration and policy of the principal government departments. ”
Once again there are many criticisms levelled at this procedure. A Parliamentary Question asked Jack Straw how many recommendations by parliamentary select committees have been adopted by his Department since June 2001. 31 The answer, like many, was not directly addressed. Jack Straw said the information is not held ‘centrally’ and the “cost of compiling such information would incur disproportionate costs’. 32 The Scott Inquiry criticised ministers for failing to publish guidelines and give parliament the opportunity to debate them.
It appears the reports of Select Committees are not usually aired in the House of Commons, therefore the government does not face the full extent of the pressure generated by the Reports. 34 To cite a recent case; the Commons Defence Select Committee is looking into the Ministry of Defences duty of care owed to members of the Armed Forces after young soldiers died under mysterious circumstances in Deepcut barracks in Surrey. The refusal of ministers to order a public inquiry, as demanded by the families and MPs, underlines there are areas of work still to be done to make ministers and their departments transparent.
Further, the circular system of accountability to the Prime Minister and not Parliament is furnished by the fact that the review is being conducted by a minister appointed QC and the Minister of State is overseeing proceedings. The plea for sceptical onlookers to “suspend criticism”35 until the inquiry has reached its full conclusion is a tall order in light of the past ineffectual inquiries. Existing procedures designed to scrutinise the executive are inadequate. The criticisms centre around the ambiguous construction of the accountability and responsibility of ministers to Parliament.
Further, cases cited reveal that ministers are in reality accountable to the Prime Minister. The relationship of Ministers with their civil servants confuses the matter of culpability and the apportionment of blame which only in extreme cases result in resignation. Answers to parliamentary questions obfuscate the issue, deviate from the topic, or can’t come about due to the attendant costs and lack of resources. Select committees comprise members chosen by party Whips and are ultimately under the control of the minister with little discussion or implementation of their findings in Parliament.
The Freedom of Information Act is embedded in the system of secrecy and doesn’t enable a fair scrutiny of the executive owing to the ministers veto. Lessons from history have not created a precedent. Inconclusive findings result, with ministers continuing to shirk their responsibility and undermine the system of scrutinising the executive. The burgeoning force of the media and the pressure of public opinion are ostensibly the surest mode for the people of a democracy to hold the executive to account.