affiliated to the International Association of Constitutional Law
Does the Chris Huhne affair have constitutional implications? In one sense, the answer to this question might be a rather obvious one. From a constitutional perspective – although certainly not from a political perspective – the case seems relatively uncontroversial.
Huhne resigned from his post as Secretary of State for Energy and Climate Change on 3rd February 2012, initially to defend himself against a criminal charge of perverting the course of justice. Huhne, it was alleged, had passed penalty points for a speeding offence to his ex-wife, Vicky Pryce, to avoid a driving ban in 2003. This allegation was denied by Huhne until 4th February 2013, when the former Minister entered a plea of guilty on the first day of his trial for this offence. Huhne subsequently resigned as MP for Eastleigh, and after Pryce was also convicted of perverting the course of justice for her part in the affair, both were sentenced to eight months imprisonment on 11th March 2013.
There can be little doubt that it was necessary for Huhne to resign as Energy Secretary, especially since he has now admitted perverting the course of justice, a matter which was denied at the time of his resignation from the Cabinet. The critical tenets of the convention of individual ministerial responsibility are well established, and can be readily applied to this case. Adopting Brazier’s definition, a Minister is individually responsible for ‘(a) his private conduct, (b) his general conduct of his department, and (c) acts (or things left undone) by civil servants in his department’ (Constitutional Practice, 3rd ed. (1999), 150).
That a Minister must, among other things, accept responsibility for his or her personal conduct is also made abundantly clear in the current iteration of the Ministerial Code (2010). By clause 1.1, ‘Ministers of the Crown are expected to behave in a way that upholds the highest standards of propriety’. By clause 1.2, Ministers must ‘protect the integrity of public life’ and ‘observe the Seven Principles of Public Life’, among which are ‘selflessness’, ‘integrity’, ‘openness’, ‘honesty’ and ‘leadership’. By clause 1.2(d), ‘Ministers should be as open as possible with Parliament and the public’. Indeed, the need for current Ministers to maintain the highest standards of conduct is made clear in the Prime Minister’s foreword, which poses a stark challenge for the coalition: ‘Our new government has a particular and historic responsibility: to rebuild confidence in our political system’.
In misleading the authorities about the identity of the driver who had committed the speeding offence in 2003, Huhne’s personal conduct fell below the standard which could be expected of a Minister. Whatever view is taken about the utility and proportionality of Huhne and Pryce’s subsequent conviction and jail sentences, Huhne had violated his constitutional obligations as a Minister, and it was right that he resigned from public office.
The Huhne affair might then be seen to raise few difficulties for constitutional lawyers. However, if we try to look at the underlying state of individual ministerial responsibility, as revealed by considering the Huhne case in its broader political-constitutional context, it may be seen as indicative of a wider trend. Or, put another way, perhaps the Huhne affair is of interest from a constitutional perspective because of what it was not about, rather than what it was.
Simon Jenkins, reacting to this case in an article in The Guardian, argues that Huhne and Pryce have been punished and condemned severely for their personal conduct because of a broader inability to hold those in public office to account for their official conduct. This is, Jenkins maintains, a manifestation of ‘a public craving for revenge on those in any sort of power’: ‘[t]he truth is that we have so few ways of making power answer for its misdeeds that we grab hold of any stick that will do. There is virtually no accountability for incompetence in office beyond the ballot’.
An assessment of the accuracy of Jenkins’ frank analysis of the relationship between the public’s reaction to poor personal conduct, and their inability to hold those wielding public power to account for poor official performance is, of course, well beyond the scope of this post. Nevertheless, it does provide a provocative vantage point from which to examine the extent to which the Huhne affair may be one in a line of such incidents.
If we look at the circumstances in which other senior Ministers have been forced to resign in the present Parliament, all seem to relate crucially to their personal conduct, as opposed to departmental failings. David Laws resigned as Chief Secretary to the Treasury in May 2010 as a result of his excessive expenses claims (although Laws is now back in government). Liam Fox resigned as Defence Secretary in October 2011 due to what Sir Gus O’Donnell’s report called a ‘blurring of lines’ between his private and official responsibilities, related to the position of his friend and ‘adviser’ Adam Werritty. And most recently, in October 2012 Andrew Mitchell resigned as Chief Whip as a result of allegations – consistently denied by Mitchell, and now the subject of a police investigation into whether he was the victim of a conspiracy – that he called a police officer a ‘pleb’.
And this cannot simply be because no departmental or official failings have occurred. While the selection of instances of government ‘errors’ may understandably be regarded as subjective, a number of examples might be identified, even though doubtlessly contestable – the ‘pausing’ of NHS reform; reversal of policy on the sale of forests; Jeremy Hunt’s handling of the News Corp bid for BSkyB; and the West Coast Mainline ‘fiasco’.
This may seem an unscientific approach to ministerial responsibility. It focuses only on one term of one government, and that of an exceptional coalition government at that. Yet it is unclear that coalition government would in principle provide vastly different challenges for individual ministerial responsibility as compared to those that would be experienced in single party government (in contrast with collective ministerial responsibility, which must be approached differently in a period of coalition).
Moreover, it might instinctively be thought that this trend is not new, and its emergence may be traced back through the New Labour years, the Conservative era before that, and even beyond (although Woodhouse indicates that only three out of ten resignations due to individual ministerial responsibility in the period 1982-1992 were the result of ‘private indiscretion’, in contrast with the period 1972-1982, in which the two senior ministerial resignations which occurred were both a result of private conduct; Ministers and Parliament (1994), 174). To try to sustain such a proposition would require testing in a much more substantial manner than is possible in a short blog post; yet even if a pattern was shown only to have developed or been amplified recently, the implications could still be usefully explored.
A further objection might be that political accountability is about much more than resignations, or the lack thereof. And indeed, this challenge has much force – resignation from ministerial office may be the ultimate sanction for poor conduct, but it is not the only one. Minsters may also be subsequently demoted to a more junior post, or removed from government entirely at a Cabinet reshuffle; be required to apologise to Parliament and/or members of the public; perhaps even the embarrassment suffered as a result of being criticised by the opposition or the press could be considered a ‘sanction’ of sorts (it is certainly an incentive to avoid poor performance).
Resignation is, however, the sanction which is most visible to citizens, and most straightforward to quantify. While this certainly cannot be considered to represent the entire spectrum of political accountability, nor can it be seen as the only measure of the effectiveness of such accountability, the frequency with which and circumstances in which resignations occur are still worthy of consideration in their own right.
As a result – and the tentative nature of the following comments is worth emphasising – if this brief survey does provisionally suggest the existence of a pattern, the Huhne affair may have constitutional implications after all. That is, it may be indicative of a trend that a Minister’s responsibility for his or her personal conduct is given greater emphasis than their responsibility for the actions of their department and/or civil servants. Or (and with apologies to George Orwell), while all varieties of individual ministerial responsibility are equal, some are more equal than others.
If this is the case, what are the consequences? Two key, interrelated questions seem to emerge: (1) is this a satisfactory position?; and (2) does our traditional conception of individual ministerial responsibility need to be revised? Those who believe that mechanisms and principles of political accountability are of critical importance in a constitutional order may find this position to be inadequate. An emphasis on personal conduct might be seen to distract attention from the crucial matter – holding those who exercise public power to account for the unacceptable performance of their official duties.
Yet the answers to these questions would be complex, and could raise issues relating to the essential nature of constitutional conventions. Are conventions simply descriptive of practice (representing what Marshall called a ‘positive morality’ of the constitution) or normative, in that they represent a vision of what the constitution ought to be (for Marshall, a ‘critical morality’; Constitutional Conventions (1984), 11-12)? If conventions are descriptive, perhaps the way we explain and understand individual ministerial responsibility does need to be revisited and/or augmented. If normative, however, perhaps to do so would seemingly endorse the trend, and thereby undermine political accountability.
Perhaps, however, the fundamental tenets of individual responsibility do not need to be reassessed, and the trend identified is simply a short-term function of the political character of the convention. As Finer famously argued, resignations only result ‘if the minister is yielding, his Prime Minister unbending, and his party is out for blood’ (‘The Individual Responsibility of Ministers’ (1956) Public Administration 377-396, 383). These conditions (which would also need to be supplemented in the modern era, in particular to take account of the role of the media) might be thought more likely to obtain in relation to personal conduct, which is inherently attributable to the Minister in question, than departmental failings, which are difficult both to establish and to associate definitively with a particular individual.
Or, alternatively, might these developments best be analysed in light of the purpose, or more accurately purposes, of individual ministerial responsibility? On the one hand, the convention serves to secure accountable government (at least in part) for citizens via Parliament. On the other hand, the convention serves to secure effective government (at least in part) for the Prime Minister, who can remove Ministers whose performance has been deficient. The potential tension between these purposes might remind us that different constitutional actors will have different objectives when individual responsibility is invoked, and that this convention alone, no matter how well defined, will therefore never be sufficient to achieve effective political accountability in a constitution.
Perhaps such change (if indeed this is change) in individual ministerial responsibility is to be expected. Or perhaps it is merely a symptom of a more fundamental set of issues relating to the state of political accountability in the UK. Whatever the case may be, if nothing else this post has aimed to demonstrate that the Huhne affair raises a range of questions about political accountability that merit further consideration. And given the attention of public lawyers seems to have been diverted from ministerial responsibility in recent years, renewed engagement with this crucial constitutional convention could prove to be of value.
Dr Mike Gordon is a Lecturer in Public Law at Liverpool Law School, University of Liverpool.
Suggested citation: M. Gordon, ‘ Ministerial Responsibility After Huhne’ UK Const. L. Blog (25th March 2013) (available at http://ukconstitutionallaw.org)