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.
... 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:
- Decision makers learn before forming any opinion that they will be accountable to an audience.
- The audience's views are unknown.
- The decision maker believes that the audience is well informed, and interested in both fairness and accuracy.
Civil servants are accountable for three things:-
1. Our stewardship of public funds etc. including:
- regularity which means the requirement for all expenditure and receipts to be dealt with in accordance with the legislation authorising them, any delegated authority and the rules of Government accounting
- propriety which is a further requirement that expenditure and receipts should be dealt with in accordance with Parliament's intentions and the principles of Parliamentary control, and in accordance with the values and behaviour appropriate to the public sector - see below.
- value for money (VFM), and
- effective management systems.
- with the law
- with Government policies and initiatives, and
- with public expectations of proper conduct:- see "the Seven Principles" listed below.
3. Our Performance, including
- against objectives and targets, and
- in delivering acceptable levels of service to the public.
Accountable to Whom?
Apart from their relationship with ministers, civil servants are
- primarily accountable to Parliament,
- more generally accountable through transparency and openness to stakeholders and to the public at large, and also
- accountable to the courts through Judicial Review (JR).
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:
- advice given to Ministers by officials;
- information about interdepartmental exchanges on policy issues, the level at which decisions were taken, or the manner in which Ministers consulted their colleagues;
- the private affairs of individuals, including constituents;
- sensitive commercial or economic information, and
- information about negotiations with other governments or bodies such as the European Commission.
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.
- This may change as senior officials have recently become entitled to refuse to sign off plans which they regard as unrealistic, and are held directly accountable for the successful delivery of those plans which they have signed off as realistic. Click here for further information.
The Armstrong Memorandum summarises the duties and responsibilities of civil servants. The most important parts read as follows:
- Civil servants are servants of the Crown. For all practical purposes the Crown in this context means and is represented by the Government of the day. ... The Civil Service as such has no constitutional personality or responsibility separate from the duly constituted Government of the day. It is there to provide the Government of the day with advice on the formulation of the policies of the Government, to assist in carrying out the decisions of the Government, and to manage and deliver the services for which the Government is responsible....
- The Civil Service serves the Government of the day as a whole, that is to say Her Majesty's Ministers collectively, and the Prime Minister is the Minister for the Civil Service. The duty of the individual civil servant is first and foremost to the Minister of the Crown who is in charge of the Department in which he or she is serving.
- Geoffrey Chipperfield stresses the first part of this part of the memorandum: '[It was] misleading in its emphasis that, for all practical purposes, the official's boss was his/her Secretary of State. While that was true generally, it downplayed the importance of consensual cabinet agreement and responsibility, and the need, in order to support this, for officials to work with their opposite numbers in other departments and share information. In particular it was important for officials to realize that instructions from their Minister not to consult or share information with other Departments was offending against cabinet government.'
- The basic principles of accountability of Ministers and civil servants are [as follows]:
- Each Minister is responsible to Parliament for the conduct of his Department, and for the actions carried out by his Department in pursuit of Government policies or in the discharge of responsibilities laid upon him as a Minister.
- A Minister is accountable to Parliament, in the sense that he has a duty to explain in Parliament the exercise of his powers and duties and to give an account to Parliament of what is done by him in his capacity as a Minister or by his Department.
- Civil servants are responsible to their Ministers for their actions and conduct.
- The British Civil Service is a non-political and professional career service subject to a code of rules and disciplines. Civil servants are required to serve the duly constituted Government of the day, of whatever political complexion. It is of the first importance that civil servants should conduct themselves in such a way as to deserve and retain the confidence of Ministers, and to be able to establish the same relationship with those whom they may be required to serve in some future Administration. That confidence is the indispensable foundation of a good relationship between Ministers and civil servants. The conduct of civil servants should at all times be such that Ministers and potential future Ministers can be sure that confidence can be freely given, and that the Civil Service will at all times conscientiously fulfil its duties and obligations to, and impartially assist, advise and carry out the policies of, the duly constituted Government of the day.
- The determination of policy is the responsibility of the Minister (within the convention of collective responsibility of the whole Government for the decisions and actions of every member of it). In the determination of policy the civil servant has no constitutional responsibility or role distinct from that of the Minister. ... It is the duty of the civil servant to make available to the Minister all the information and experience at his or her disposal which may have a bearing on the policy decisions to which the Minister is committed or which he is preparing to make, and to give to the Minister honest and impartial advice, without fear or favour, and whether the advice accords with the Minister's view or not. Civil servants are in breach of their duty, and damage their integrity as servants of the Crown, if they deliberately withhold relevant information from their Minister, or if they give their Minister other advice than the best they believe they can give, or if they seek to obstruct or delay a decision simply because they do not agree with it. When, having been given all the relevant information and advice, the Minister has taken a decision, it is the duty of civil servants loyally to carry out that decision with precisely the same energy and good will, whether they agree with it or not.
- Civil servants are under an obligation to keep the confidences to which they become privy in the course of their work; not only the maintenance of the trust between Ministers and civil servants but also the efficiency of government depend on their doing so.
- 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. It is not acceptable for a serving or former civil servant to seek to frustrate policies or decisions of Ministers by the disclosure outside the Government of information to which he or she has had access as a civil servant.
Permanent Secretary Martin Donnelly, in a speech at the Institute for Government in June 2014, defined political impartiality in this way: "[Civil Servants must] not do for one Minister what would not be done for another of a different party ... in the same situation. ... Providing a convincing defence of government policy should be a core Whitehall skill; rubbishing the Opposition is not the function of permanent officials.".
But - and it's a big 'But' - civil servants are not totally impartial when serving the Government of the day. Parties in government are always better served than parties out of government. The civil service advises Ministers on how best to present their policies, helps them avoid or respond to attacks, and (under the Osmotherly Rues - see further below) they can provide only selective information to Select Committees.
Almost inevitably, too, civil servants become reconciled to and often supportive of policies of Governments that are in power for several years. Privatisation might have been one such policy. It is nevertheless quite surprising how quickly officials can adapt to the quite different policies of an incoming Government, and then work very effectively to promote, defend and implement them.
There are pretty obvious signs, too, that certain departments develop long term policy preferences which are hard to shift. The Department of Transport tends to be pro-roads; the Home Office used to have a liberal culture - but that may have disappeared; the Foreign Office likes foreigners; the Ministry of Agriculture is pro-farmer; the Department for Industry/Business generally favours intervention and manufacturing; the Department for Trade favours free trade; and so on. These accusation may be unfair, but there is probably a kernel of truth in each of them. And incoming Ministers find that they, too, quickly become sympathetic to the claims and lobbying of the departments' client groups.
Practical advice on remaining impartial may be found here.
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:
- Selflessness:- Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their families or their friends.
- Integrity:- Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties.
- Objectivity:- In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards or benefits, holders of public office should make choices on merit.
- Accountability:- Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.
- Openness:- Holders of public office should be as open as possible about the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.
- Honesty:- Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.
- Leadership:- Holders of public office should promote and support these principles by leadership and example.
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:
- ‘integrity’ is putting the obligations of public service above your own personal interests;
- ‘honesty’ is being truthful and open;
- ‘objectivity’ is basing your advice and decisions on rigorous analysis of the evidence; and
- ‘impartiality’ is acting solely according to the merits of the case and serving equally well Governments of different political persuasions.
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:
- the Minister is ultimately responsible to Parliament for the decision of an authorised officer; and
- in modern government, Ministers have so many functions and powers that administrative necessity dictates that they act through duly authorised officers.
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.
- Don't bend or break the rules
- Put in place and follow clear procedures
- If approval is needed, get it first
- Don't allow a conflict of interest to appear to affect a decision
- Don't use public money for private benefit
- Be even-handed
- Record the reasons for decisions