Sunday, January 21, 2018

Ministerial responsibility revisited

Reginald Dumas logo29

Mark Fraser

In his letter of resignation from the Cabinet, Anil Roberts told the Prime Minister, among other things, that “the claims by so-called scribes that the Westminster system dictates my resignation couldn’t be further from the truth for the Westminster system posits that a minister’s resignation is unwarranted when the departments under his portfolio over which he exerts no direct control nor ministerial authority operate ultra vires to good co-operate (sic) governance practices.” Since I was one of the persons who said that under the Westminster system, which we say we follow, he should resign, I am logically one of the “so-called scribes” he had in mind.

The convention of individual ministerial responsibility achieved salience in the 1950s UK Crichel Down case, a land matter which fell within the Ministry of Agriculture and Fisheries. After much dissatisfaction over the mnistry’s approach, the minister, Sir Thomas Dugdale, arranged for a public inquiry, the report on which severely criticised ministry officials. (Sir Thomas was said to be ignorant of what had been going on, though information surfacing several years later suggested that he did know.)

On July 20, 1954 Dugdale addressed the House of Commons on the subject. He said in part: “I would like to say a word about the conduct of the civil servants concerned. General issues of great constitutional importance arise in this regard...I am quite clear that it would be deplorable if there were to be any departure from the recognised constitutional position. 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.” (My emphasis.)

The enquiry report found no trace of “bribery, corruption or personal dishonesty”, but Dugdale said he had been criticised for “seeming to attach too much importance to the dismissal of any suggestion of corruption and too little to other faults (revealed).” However, he knew that “mistakes and grave errors of judgment (had been) made which undoubtedly merited severe censure and reprimand.”

And he ended: “Having now had this opportunity of rendering account...of the actions which I saw fit to take, I have, as the Minister responsible during this period (my emphasis), tendered my resignation to the Prime Minister...” He did so even though no bribery or corruption or personal dishonesty had been uncovered.

Has the situation changed at Westminster? The Sixth Report of the UK Parliament’s Constitution Committee on The accountability of civil servants was presented in November 2012. It examined the Crichel Down example and “conclude(d) 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.” (My emphasis.) Note: “all aspects of their departments’ business”.

But this matter of the responsibility of the political head of a government ministry or department isn’t peculiar to the UK. Section 85 of our own Constitution is relevant. And in April this year Kathleen Sebelius, then US Secretary for Health and Human Services, took responsibility for the botched website launch of Obamacare and resigned. She was not of course directly involved in the technicalities of the operation, but, as Secretary, she said she was to blame.

The following month, May, the Veterans Affairs Secretary, Eric Shinseki, resigned after he discovered widespread abuse of the healthcare system for veterans. Though personally guiltless, he too left the Obama administration: “I will not defend (the abuse) because it is indefensible. But I can take responsibility for it, and I do.”

In the LifeSport issue I make no accusations of malfeasance; that would be premature and improper. I have no personal or political agenda. Rather, my concern is institutional. I have been writing and speaking about this for decades, and I shall continue to do so. If I am therefore to be dispraised as a “scribe” – or, worse, a “so-called” one – what to do. At least, nobody has damned me as a Pharisee. Yet.

• Capil Bissoon returns next week.