It is non-governmental departmental bodies which pose the greatest threat to the traditional notion of accountability. The traditional line would, as above, hold the Minister accountable for almost any failure in his department. How, therefore, do Parliament identify a failure in the department? Parliamentary Select Committees exist to scrutinise the work of agencies. As a tool to be used on central government, select committees accord a greater level of scrutiny thanks to their specialist nature.
They are not suitable however for continuing scrutiny and audit, as is truly necessary for the monitoring of agencies. A select committee instead may carry out a detailed investigation to a reported failure. Success of an agency is measured according to a target set at the beginning of a period. These targets are the first major challenge to departmental accountability. The targets are set by the department itself; clearly a nervous agency could set itself low targets to avoid investigation and risk retribution.
Indeed as Carol Harlow quotes in her investigation in to the failure of the child support agency, the financial targets set were notional and "no better than an informed guess. "15 Is it true accountability when the agency itself determines success or failure? Understandably, no Minister will be too happy to hand in his resignation when he has not let the public down in any way. As Sir Robin Butler said of Lord Carrington's resignation, "You do not have to resign because you are criticised, you have to resign because you are at fault.
"16 It was this objection to taking unwarranted punishment that led Sir Butler (now Lord) to propose a distinction between accountable and responsible. Whilst a Minister is always accountable to Parliament, and must explain why a fault has occurred, the fourth of Maxwell-Fyfe's conditions has become a defence to departmental failure; the responsible party ought instead to suffer retribution.
This distinction has led to widespread confusion as to what the true procedure ought to be, with purists maintaining that as long as the Carltona Doctrine17 is valid, the Minister is responsible for all use of his powers. A more realistic view recognises that this approach simply cannot work on the scale adopted today, each department is further departmentalised, and the governing Minister's role is vastly separate from much of the department.
Harlow indeed describes the classic approach as "based on… twin fictions. "18 The first of these fictions is that the Carltona Doctrine holds today and the second; that the Minister is in fact in charge of his department. Whilst other reports have sought to play down the shift in placement of accountability, by suggesting that a Minister ought to "look into, question and even intervene in the operations of their agencies,"19 most recent examples would have us believe otherwise.
The question of accountability was posed following the escape of dangerous inmates from Whitemoor and Parkhurst prisons. A special inquiry was commissioned to investigate the cause of the escapes; to determine whether it was a question of policy (which would render the Michael Howard, the then Home Secretary responsible) or of operation (which would place responsibility on Derek Lewis, the chief executive of the Prisons Agency. ) Despite the findings of the report, which clearly implicated the Home Secretary, it was Mr.
Lewis who ultimately lost his job. When we consider also the increasing role of Civil Servants in accounting to Parliament for the work of their department (answering to Select Committees, and submitting written response to Parliamentary questions) I find little difficulty in suggesting that constitutional accountability with respect to government agencies is largely passed, and we have moved towards an era of Managerial Accountability.
Is this however something with which we ought to have a quarrel? Surely it makes sense that those who are truly at fault are the ones held accountable for errors. That said, when we consider that civil servants are not elected, must we not propose that the Carltona doctrine hold true, and only the Minister can dispense his power, through delegates perhaps, but ultimately he is responsible for any use of the powers bestowed on him?
I have little hesitation in the appropriation of blame to those responsible, but find that it is surely fundamental to democracy, that only the elected can dispense power, and that they ought to be held accountable for its use.
A. W. Bradley & K. D. Ewing, Constitutional and Administrative Law (14th Edition) (Pearson Education, 2007) Jeffrey Jowell & Dawn Oliver, The Changing Constitution (Sixth Edition) (Oxford University Press 2007) Adam Tomkins, Public Law (Clarendon Law Series, 2003)
Carol Harlow, Accountability, New Public Management, and the Problems of the Child Support Agency, Journal of Law and Society (Volume 26, Number 2, June 1999) Oonagh Gay & Thomas Powell, 'Individual ministerial responsibility – issues and examples', Research Paper 04/31 (2004) Sir Richard Scott, 'Ministerial Accountability', Public Law (P. L. 1996 410-426) Diana Woodhouse, 'The Reconstruction of Constitutional Accountability', Public Law (P. L. 73 -90, 2002) First Report of The Committee on Standards in Public Life (Cm 2850-1, 1995)