UK Ministerial Responsibility to Parliament

Introduction
Herbert Morrison’s comments represent an ideal of Ministerial Responsibility which his political heirs and descendants have, in truth, abandoned to a large degree. In part this reflects new political realities and a change in the behaviour of politicians who strive to protect individual reputation at the expense of what was once a sacred principle of Government[1].
The responsibility to which Herbert Morrison alludes to arises often in the context of when a minister should resign which has undergone some marked transformations over the years as the apparatus of Whitehall has exploded and powers have been invested in individual ministers: non-departmental bodies, public corporations and other agencies such as quangos[2] now complement ever-growing departments.

As Diane Longley & Norman Lewis observe the roots of the principle stretch far back before Morrison’s time to the days of Dicey where the liability to loss of office was extended to “all official acts”[3] which invariably covered departmental maladministration to more serious matters. The principle, as a means of holding the executive branch of the government to account, has been justifiably described as “hollow”, a “ruling fiction” [4] and leading constitutional scholars have called for reform in this area as far back as the year 2000[5].
Even back in 1956 Professor Finer cast doubt upon its very existence in the wake of the Crichel Down affair[6]. No such reform or replacement has ever arrived, however, and despite notable episodes such as the Hutton inquiry, the cash for questions probes and the recent expenses scandal in Westminster no alternative theory or principle has surfaced[7]. The operation of the principle has also been seen as not aiding government accountability but hindering it by many commentators:
“Many students of public administration, including the authors, have long taken the view that ministerial responsibility/accountability (M.R.) as the ruling convention for calling the executive to account is hollow. Indeed, operating at its most pernicious, it is a system for the mutually-reinforcing active concealment of government action and public purposes.”[8]
This essay will focus on whether the principle of ministerial responsibility, as described by Herbert Morrison, is still accurate in the political climate of 2012. In part 1 this essay will look into the Crichel Down affair of 1937 to establish the supposed convention and then in part 2 the Scott Report, which was commissioned after it emerged that Britain had sold arms to Iraq, will be analysed. The inescapable conclusion is that Morrison’s statement reflects a nobler and purer vision of politics than now endures and that the principle has been so eroded by time as to be virtually unrecognisable: if indeed it existed in the first place.
Part 1: Crichel Down affair
As Bradley & Ewing point out the Crichel Down Affair of 1937 is the acknowledged starting point in any discussion of ministerial responsibility[9]. Farmland in Dorset, which was called Crichel Down, was acquired under compulsory purchase powers[10] by the Air Ministry in 1938 prior to the outbreak of war for a new bombing range[11]. Lieutenant Commander Marten asked that the land be sold back to his family (who had previously owned most of the land) but what followed was, in the opinion of the subsequent inquiry setup to investigate the affair, “muddle, inefficiency, bias and bad faith on the part of some officials named in the report”[12].
In particular an inaccurate report was drafted by a junior civil servant that led to the Ministry of Agriculture adopting a scheme which deprived the former owners of rights in the land or as Wass succinctly puts it, “bona fide applicants for the land had not been given the opportunity they had been promised to bid for a rental or for possession of the land”[13]. Wass highlights the two senior civil servants identified by the inquiry who did attempt to cover their own tracks once the facts were apparent:
“The one [mistake] on which everyone seized was the impropriety of the two principal officials who, realising that applicants to rent or buy the land had not been given the opportunities they had been led to expect, sought to appear retrospectively to have considered their case. This was manifestly wrong and would have been a suitable subject for a mild criticism by the Ombudsman, if he had existed at the time and had the case been referred to him. But it is pretty clear from the papers that, even if the applicants’ cases had been considered, the outcome, viz. a decision to continue to farm the unit as a single unit by a farmer of proved ability, would have been the same.”[14]
The end result was that the Minister of Agriculture, Sir Thomas Dugdale, resigned and the two civil servants were moved to other duties[15]. The constitutional legacy of Crichel Down was that it is now cited as “the last example of a minister’s acceptance of responsibility for all the acts of his department”[16]. In the subsequent debate in the House of Commons Sir David Maxwell’s Fyfe, the then Home Secretary, sought to clarify four situations in which a Minister must vicariously “accept responsibility” to varying degrees for the actions or inactions of his civil servants ranging from where an explicit order is given to where action is taken by a civil servant of which the “Minister disapproves and has no previous knowledge”[17].
This continuum of responsibility did not contain any mention of resignation and the topic remains wedded to circumstances: “there is no duty on a minister to resign when maladministration has occurred within his or her department”[18]. The key factors which influence a resignation are for the most part political: a fact which is corroborated by Professor Finer[19] and Bradley & Ewing’s seminal work on constitutional law[20].
Part 2: Arms to Iraq
By the convention supposedly crystallised in the aftermath of the Crichel Down affair the Ministers responsible for exporting arms to Iraq would have had to have resigned in the wake of the Scott Report into the affair in 1996[21]. Ultimately there were no resignations despite a close vote in the Commons during the debate on the report. The conclusions of the report were, however, devastating in finding that there were numerous failings by ministers to keep Parliament appraised of their arms exporting policy and, fundamentally, they had misled Parliament, albeit not intentionally[22]. Instead the ministers involved managed to slip into what Margaret Liu has called an “accountability gap” which exploits the definitions given to responsibility and accountability respectively[23]. As Liu explains:
“A minister is ‘accountable’ to Parliament for what had occurred in his department without that implying personal blame on the part of a minister if things had gone wrong. By contrast, a minister is said to be ‘responsible’ for broad policy, and the issues that he/she has been personally involved, not for all department affairs. In other words, the minister is not responsible for what is done by the civil service in the Next Steps agency where he has delegated the accountability for administration from parent departments.”[24]
This relatively new artificial distinction allows ministers to escape responsibility for actions in their department carried out by civil servants and ultimately leads, as Liu rightly observes, to “potential areas of government for which no one is ‘responsible’ to Parliament, even though a minister remains ‘accountable’”[25]. Thus despite all of the furore created by the report the ministers were ultimately able to hang onto their jobs and there was to be no supreme sacrifice a la Sir Thomas Dugdale in the Crichel Down affair. This distinction appears to have fuelled the practice of misleading Parliament and being creative with the truth to avoid liability in respect of departmental maladministration.
As Liu points out individual ministerial responsibility essentially involves the private conduct of a minister, the minister’s conduct of his/her department and vicarious acts of civil servants[26]. Personal conduct seems to be the exception with many ministers resigning because it was impossible to conduct their duties in the media glare[27] but as Bradley & Ewing note “there have been very few resignations by ministers taking vicarious responsibility for the errors of civil servants in their departments”[28]. The level of culpability was high in the Arms to Iraq case and the fact that no minister lost their jobs is reflective of modern political times where no minister resigns unless the matter is exceptionally serious or private conduct is preventing them doing their jobs. As Longley & Lewis conclude:
“If the minister is indeed responsible for systems, then he is responsible for their failure either directly or through the identification of those who are. If this is not the case, then plainly ministerial responsibility is a myth. Slowly the effectiveness of the convention has been eroded…Scott may have been successfully defused in the party-political arena, but if his report is left to gather dust when it is an indictment of the deep-seated failure of parliamentary government, then the fabled British system will deserve all the disapprobation which it is bound to receive.”[29]
Conclusion
In conclusion Herbert Morrison’s statement was inaccurate even back in the political climate in which it was created: a time when a minister would supposedly fall for the actions of any civil servant and would do the right thing by standing down[30]. As Professor Finer justifiably notes, the cases which precede the Crichel Down affair do not even lend substance to the convention and the principle in fact relies upon factors such as the mood of the Prime Minister and the will of the minister concerned rather than an overriding sense of accepting responsibility for the actions of others[31]. Applied to the modern political climate the statement is wildly inaccurate with various commentators rightly alleging that it is a “myth” in the British constitution[32]. The Scott Report demonstrates the pliability of the principle well and the artificial distinctions between ‘responsibility’ and ‘accountability’, inextricably linked, serve only to further consign the principle to the dustbin of history save in the most serious of cases. Now creativity is used in giving answers to Parliament and all responsibility is to be evaded until the eleventh hour. This is, as noted in the introduction, a reflection of the growth of the apparatus of the state and the unelected power of ministers. Professor Finer’s four categories are more realistic even in 2012:
“There are four categories of delinquent Ministers: the fortunate, the less fortunate, the unfortunate, and the plain unlucky. After sinning, the first go to other Ministries ; the second to Another Place ; the third just go. Of the fourth there are but twenty examples in a century…”[33]
Bibliography
Journals

Finer, E.S. (1956) ‘The Individual Responsibility of Ministers’ Public Administration 377
Liu, Margaret L (2002) ‘Ministerial Responsibility and Constitutional Law’ Coventry Law 7(2) pp25-37 at p.29
Longley, D & Lewis, Norman (1996) ‘Ministerial Responsibility: The Next Steps’ Public Law Autumn pp490-507
Wass, Douglas (1988) ‘The Mystery of Crichel Down’ Public Law Autumn pp473 – 475

Books

Bradey, AW & Ewing, KD (2007) Constitutional & Administrative Law Pearson: worldwide
Tomkins, Adam (1998) The Constitution After Scott: Government Unwrapped Oxford University Press: Oxford
Turpin, Colin (1994) “Ministerial Responsibility: Myth or Reality?” in J. Jowell and D. Oliver (eds.), The Changing Constitution, (3rd ed), pp. 114-115