The Westminster Model- Detail

This web page discusses various aspects of the Westminster Model in more detail.  It should be read only after reading my Summary of the Westminster Model.

Accountability ...

... means being held to account, scrutinised, and being required to give an account or explanation. If it is effective, accountability causes the decision maker to think hard about the the range of decisions that are available to him/her, and the fairness, appropriateness and proportionality of each possible decision. Jonathan Haidt refers to this as exploratory thought, and argues (I think correctly) that effective accountability has three vital elements:

Civil servants are accountable for three things:-

1. Our stewardship of public funds etc. including:

2. Compliance

3. Our Performance, including

Accountable to Whom?

Apart from their relationship with ministers, civil servants are

Parliamentary scrutiny is provided through the Public Accounts Committee (the PAC) (assisted by the National Audit Office - the NAO), other Select Committees, Parliamentary Questions and debates, correspondence with MPs, and the Parliamentary Commissioner for Administration - the "Parliamentary Ombudsman".  But Parliamentary scrutiny seldom meets any of the key tests listed above.  Parliamentarians love 'naming and shaming', and the Parliamentary spotlight too often moves frequently and unpredictably.  And then the views of MPs, when they do get involved in one of our issues, are often highly predictable, driven by party-political considerations, and not least the governing party's need to support Prime Minister Johnson. 

Also, although Parliamentarians cannot of course be expert in many of the areas in which they are asked to form judgements, they very seldom draw on sufficient expert outside advice. They are also not skilled in questioning those who appear before them (who - unlike MPs - often prepare for hours or days in advance of their appearance). All this in turn means that Parliamentary reports are politics-driven, or at least driven by a desire to look good by criticising Ministers, or criticising officials who can neither argue back nor point to bad Ministerial decision-making. It is no wonder that most PAC reports, and most Select Committee reports, have very little long term impact.  And, parliamentary scrutiny of the Executive is nowadays recognised to be generally ineffective, unlike Judicial Review, which no doubt contributes to the Government's irritation with the growing use of JR to scrutinise its decisions.

General accountability is achieved via annual reports, correspondence etc. with the public, and consultation etc. processes,.  We can also choose to be accountable via media of our choice, and we should for this purpose choose media that will not use their relationship with us merely for entertainment or to boost circulation. Again, all these routes fail to meet most if not all of the three key prerequisites of accountability listed above.

Judicial Review, however, offers a very effective way of holding officials and Ministers to account - as was evidenced during the West Coast Main Line shambles - a reason, no doubt, for JR's growing popularity. It is also no doubt one reason why Prime Minster David Cameron told business leaders in November 2012 that he intended to crack down on 'time-wasting' caused by the 'massive growth industry' in legal challenges to government policy. Judicial review applications would in future cost more, with less time put aside to apply and fewer chances to appeal.

Only Judicial Review meets all three of Jonathan Haidt's tests of effective accountability, summarised above.

The Osmotherly Rules and the Armstrong Memorandum

Civil servants who appear before Select Committees are required to follow the 'Osmotherly Rules'. Put shortly, officials may describe and explain the reasons which caused Ministers to adopt existing policies but they should not give information which undermines collective responsibility nor get into a discussion about alternative policies. In particular, they are not allowed to divulge:

When a civil servant gives evidence to a Select Committee on the policies or actions of his or her Department, he or she does so as the representative of the Minister in charge of the Department and subject to the Minister's instructions ... and is accountable to the Minister for the evidence which he or she gives. The ultimate responsibility lies with Ministers, and not with civil servants, to decide what information should be made available, and how and when it should be released, whether it is to Parliament, to Select Committees, to the media or to individuals.

The Armstrong Memorandum summarises the duties and responsibilities of civil servants. The most important parts read as follows:

The Seven Principles of Public Life

The following Seven Principles of Public Life were endorsed in the Nolan Report as encapsulating the values and behaviour appropriate to the public sector:

The Civil Service Code

The Civil Service Code provides a clear, helpful and commendably brief summary of the values that should be common to all civil servants of all grades, and the standards of behaviour that are expected of them.

The code also helpfully defines the civil servants' four core values in the following way:

You will find more detail here.

The Carltona Principle

This is the legal principle under which civil servants exercise power on behalf of Ministers.    Secretaries of State (etc.) are responsible for the way in which their decisions are exercised by their officials, but they are not required to have attended personally to every one of them.

The case most often cited as authority for the proposition that a person may authorise another to exercise a power for and on his or her behalf is Carltona Ltd v Commissioners of Works 1943. This was a wartime case dealing with the requisition by the Government of a factory which manufactured food products. In Carltona, the English Court of Appeal considered whether a Minister had to exercise personally a power to take possession of land, or whether the power could be exercised by one of the Minister’s departmental officials for and on behalf of the Minister. The court concluded that the power in question could be exercised by a departmental official for and on behalf of the Minister. The court’s reasoning indicates that there are two grounds which justify a Minister being able to authorise an officer to exercise a power vested in the Minister:

Note, however, that this principle was eroded somewhat by the 2020 decision that the imprisonment of former leader of Sinn Fein, Gerry Adams, had been unlawful because it had been approved by a junior Minister instead of by the Secretary of State in person.  The longer term consequences of this decision remain to be seen.

Note also that a person exercising a power for and on behalf of another does so as the ‘agent’ or ‘alter ego’ of the person in whom the power is vested.  The act of the authorised person is therefore, at law, the act of the person in whom the power is vested. This is fundamentally different to the act of a delegate which, at law, is the delegate’s and not the delegator’s act.

The Civil Service Commission's Recruitment Principles contain the latest interpretation of the basic principles that civil servants should be appointed on merit and through open competition.

In short ...

A useful short version of all the above is as follows.

 

Martin Stanley

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