Tell us where the buck stops

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The Independent Online
The author is Reader in Government at Oxford University and a Fellow of Brasenose College. His book, 'Comparing Constitutions', will be published by OUP later this year.

THE discovery of Semtex and detonators at the very prison from which, two weeks ago, armed IRA prisoners tried to escape, has fuelled calls for Michael Howard's resignation. It has also questioned the position of Derek Lewis, director-general of the Prison Service. Yet the debate so far has revealed a confusion about the constitutional position of ministers and officials.

Ministers ought to resign only under very exceptional circumstances. The constitutional lawyer Geoffrey Marshall wrote after Cecil Parkinson's resignation in 1983: 'Nobody doubts that ministers should resign if they sell secrets to the enemy, or have mistresses who write rude letters about them in the Times, or if they tell lies to the House of Commons (except on matters of major policy).' Under our parliamentary system, a minister can be made to resign only if he or she loses the support of the Prime Minister, and/or his party is baying for blood. Normally, however, the conventions of collective responsibility and party solidarity will protect an erring minister.

But resignation is hardly a sensible sanction for mismanagement. If a minister resigned every time a departmental error occurred, the Cabinet room would rapidly empty. What is needed is not a resignation but a remedy.

The minister's task is to take corrective action, to ensure that the prisons are managed effectively so that what happened at Whitemoor prison cannot recur.

For the minister to do this, however, he must have mechanisms of feedback and control to check what is happening in his department. Yet it is this vital element in the principle of individual ministerial responsibility that is under threat from the growth of executive agencies such as the Prison Service.

The purpose of establishing agencies was to devolve power from Whitehall to the agency chief executives. Yet the development of new machinery outside Whitehall has been undertaken without altering the mechanisms of accountability.

When the agencies were first proposed, Margaret Thatcher, as Prime Minister, declared: 'There will be no change in the arrangements for accountability. Ministers will continue to account to Parliament for all the work of their departments, including the work of the agencies.'

Yet any real autonomy for the agencies was bound to mean that ministers would be deprived of the means of securing overall control, which is an essential corollary of the doctrine of ministerial responsibility. If ministers exercise self-restraint, ministerial responsibility for the work of the agencies will come to have little meaning.

But if ministers seek to exercise their responsibility, they will undermine the autonomy of the agencies, and the purpose or setting them up - the freeing of civil servants from ministerial interference - will be defeated.

If the political standing of the government is involved, as in the case of the prisons, ministers will inevitably be pressurised to intervene, and the agency will be leant upon to implement the will of the minister.

Thelikely outcome is a confusion of responsibility. Ministers will blame their officials, and vice versa. The incoherent arrangements for constitutional responsibility for the agencies will in practice prevent responsibility from being pinned on anyone. Boards, as Jeremy Bentham noted, are screens designed to obscure, not to clarify, where accountability lies. The truth is that the agencies were established as part of a managerial agenda designed to make government operate more on business lines, and no one bothered to ponder the constitutional implications. Yet it is hardly possible to devolve decision-making power without revising doctrines of ministerial responsibility.

What is now urgently needed is a constitutional clarification of the respective responsibilities of ministers and the chief executives of agencies. Specific responsibilities must be delegated to chief executives and put into statutory form in, for example, statutory instruments. Ministers would then be responsible only for the terms of delegation of responsibility.

Although this would put chief executives in a stronger position, it would mean that some other way would have to be found to make chief executives accountable for the use they make of their delegated powers, perhaps by making them directly accountable to Parliament.

Unless such a clarification occurs, what has happened at Whitemoor will be only the first in a series of expensive and politically embarrassing administrative muddles.

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