When things go wrong in government, a ministerial scapegoat is often sought. Joshua Chambers examines the convention of ministerial responsibility – and asks whether it still holds the power to unseat secretaries of state.
When Moses’ brother Aaron bestowed the sins of his people onto a goat and sent it out into the wilderness, he began a habit of ‘scapegoating’ that’s lasted millennia. The habit is particularly strong in politics; in her memoirs, Margaret Thatcher observed the “visceral desire that a disaster should be paid for by a scapegoat.”
The particular scapegoat Thatcher was referring to was foreign secretary Lord Carrington, who resigned over the invasion of the Falkland Islands. But while Carrington personally accepted responsibility for the foreign policy failures that led up to the invasion, not all ministers are so ready to take the blame. Despite the apparent clarity of the convention of individual ministerial responsibility – which holds that ministers are responsible for all their department’s work – the issue remains something of a constitutional grey area.
Two recent events have seen this subject return to prominence. First, the row at the UK Borders Agency, where Border Force chief Brodie Clark was named by home secretary Theresa May as the person responsible for a controversial relaxation of routine border security checks. Second, Lord Prescott’s response to a Public Accounts Committee report into his disastrous FireControl project, which went massively over budget. Prescott told a journalist that senior civil servants, not ministers, should be held responsible for the problems.
Both of these cases are examined below – but first, a look at the historical roots of the conventions that decide how blame is divvied out in government.
The rules
The tradition of individual ministerial responsibility predates the modern party system. According to a paper by the House of Commons Library’s Parliament and Constitution Centre (PCC), “it developed at a time in the 19th century when the role of government was limited and a competent minister could be assumed to have personal control of a department. The growth of mass parties and the welfare state have changed the nature of the convention, but it remains an important aspect of the... uncodified constitution.”
The fact that ministerial responsibility is a convention, rather than a rigid rule, makes it tricky to pin down. “It’s all part of the very British culture of muddling through with the rather cloudy, muddy, opaque understandings that we treasure; they’re typically British and very flexible, but at the same time impenetrable,” says Professor Matthew Flinders, a constitutional expert at the University of Sheffield.
Indeed, while ministerial responsibility is often described as a constitutional convention, the PCC paper notes that “it is a convention difficult to define with certainty and which, to a large degree, depends on the circumstances of each individual case.”
Ministerial responsibility differs from the more concrete idea of accountability. On the latter, a clear convention was agreed in 1997 and is set out in the Ministerial Code: “Ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and agencies.” Constitutional expert Lord Hennessy explains that, put simply, this is “the mechanism to be held accountable for the responsibility you hold.”
The doctrine of ministerial responsibility was set out in a statement in 1954 by home secretary Sir David Maxwell Fyfe. In response to the resignation of a minister over mistakes made by civil servants, Maxwell Fyfe tried to produce a clear convention on responsibility – and concluded that ministers must protect civil servants, especially where they’ve acted in accordance with a policy. “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 he accepts the responsibility, although he is not personally involved,” he said. And while “the minister is not bound to defend action of which he did not know, or of which he disapproves… he remains constitutionally responsible to Parliament for the fact that something has gone wrong, and he alone can tell Parliament what had occurred”.
In taking responsibility, a minister has four options, according to the PCC: inform and explain to Parliament; apologise; take remedial action; or resign.
Ultimately, though, whether ministers do any of these things – or indeed nothing at all – is up to them and the PM; so events are often determined by the minister’s and PM’s personalities, and the specifics of the case. For example, Charles Clarke decided not to resign as home secretary when foreign prisoners were released at the end of their sentence rather than being deported, but was sacked days later in a reshuffle. Stephen Byers, though, eventually resigned as transport secretary after his special adviser suggested in an email to staff that 9/11 was a “good day to bury bad news”.
How does this fit with UKBA and FireControl?
In the case of the UKBA row, May has said she didn’t know that routine checks on entrants into the country had been relaxed: she told the House of Commons that “the head of the UK Border Force, Brodie Clark, confirmed... that border controls had been relaxed without ministerial approval… I did not give my consent or authorisation for any of these decisions. Indeed, I told officials explicitly that the pilot was to go no further than we had agreed.”
Flinders says that, in this case, May doesn’t have to take responsibility “because she had no awareness or capacity to know without her department having been informed. If there had been a ‘smoking gun’ email that built a connection between what was happening and the minister’s office, even if her civil service team hadn’t told her, she wouldn’t have been able to hide.”
However, while May has observed the letter of ministerial responsibility, openly heaping blame on an official is clearly not within the convention’s spirit. Jonathan Baume, the boss of Clark’s union the FDA – which is helping him take the Home Office to an employment tribunal – says that “the events at the UKBA are still being explored, but it was certainly not appropriate for Mrs May to make the comments that she did”. And Professor Robert Hazell of UCL’s Constitution Unit notes that “any official in the Home Office or its agencies will feel that Theresa May has not been exactly loyal, and their own loyalty in return will be significantly diminished.”
In the case of the botched FireControl programme, Prescott recently told The Today Programme that “it was a policy from the government with the civil service implementing it… I have responsibility for the policy”, and claimed that civil servants hadn’t informed him of the scale of the overspend. However, the Public Accounts Committee has noted that “the project was flawed from the outset”, and that ultimately, it wasted £469m without achieving any of the original objectives. Baume comments that “any analysis would demonstrate that the overwhelming responsibility for what went wrong rests with John Prescott and his conscience.”
In both cases, the politicians claimed not to know of the problematic events; but according to Lord Hennessey, ministers should take responsibility for the communications systems within their departments. “If you haven’t got in place a system where you’re spared nothing and told everything, then you have a system failure. They have to make plain to their officials that the secretary of state has got to be informed.”
The future of responsibility
The line between responsibility and accountability is too vague, thinks Flinders – especially when it comes to the actions of quangos. While ministers remain formally responsible for the actions of the quangos they supervise, Flinders says that in practice a new convention has now developed whereby agency chief executives take some of that responsibility. “If you accept a position as an agency chief executive, you basically know that you are not going to be anonymous: you are going to be visible, and ministers will not protect you if something goes wrong. Your job will be insecure, but you will be paid loads of money for it.”
The visibility of chief executives has been magnified by increasingly assertive select committees, argues Institute for Government chief Peter Riddell. Both Riddell and Flinders recently appeared in front of the Commons’ Liaison Committee to discuss how ministerial responsibility and accountability have become intertwined and unclear. For Riddell, the solution is to clarify the rules over how ministers and civil servants should interact.
Ministers, though, may not want to clarify the rules. As constitutional expert Rodney Brazier wrote in his book Ministers of the Crown, their elasticity “can be crucial [for ministers], especially when they are trying to defend themselves against demands for their resignation”. If the current ambiguity continues, then in this era of increased scrutiny, ministers may be tempted to name and blame civil servants rather than take responsibility themselves. But as Hazell notes, scapegoating civil servants “is corrosive, and it certainly doesn’t do the politician any good in Whitehall”.