The Speaker speaks
On 30 September the Speaker made a formal statement excoriating the Government. He told the Commons that Ministers had shown “a total disregard” for the House when using their powers to make delegated legislation under the Coronavirus Act 2020. Having set out his reasons, he ended by saying that he looked “to the Government to rebuild the trust with this House and not treat it with the contempt that they have shown.” Boris Johnson had to sit through every cutting word because he was on the front bench waiting for the start of Prime Minister’s Questions. He already knew that the Government was in trouble with its MPs over this matter, and indeed concessions have been dragged out of it, including a promise from the Health Secretary to do better “where possible.” Whether Sir Lindsay Hoyle’s admonition has any wider effect on how the present Government regards what were taken as settled constitutional norms is, at best, uncertain. But Johnson’s majority of about 80 now looks strong only on paper: his MPs are growling more loudly, notably but not exclusively over Ministers’ handling of the Covid emergency, and about the proposed changes to planning laws.
In this post, I want to examine one area of the constitution over which the Government appears to have trampled, namely the doctrine of ministerial responsibility for their departments and personal conduct.
Exit six mandarins
By January next year six top civil servants will, at the present count, have left office under Johnson’s premiership. Last February Sir Philip Rutnam resigned as Permanent Under-Secretary of State (Permanent Secretary) at the Home Office. He claims that he had been the victim of a vicious and orchestrated campaign by Priti Patel while she was his ministerial chief. She denies that, and an employment tribunal is set to adjudicate on whether Rutnam was constructively dismissed. (Rutnam‘s complaints against Patel, and similar ones by other civil servants, were examined by Sir Alex Allan, the Prime Minister’s adviser on ministerial standards. His report has been on Johnson’s desk for months: it has not been published: a jury might make adverse inferences from that.)
Sir Simon McDonald left the post of Permanent Secretary at the Foreign Office in August at the direct request of the Prime Minister. While the unmitigated fiasco over A-level exams and results was going on during August, the Permanent Secretary at the Department for Education, Jonathan Slater, was told by Johnson that there was “a need for fresh official leadership in the department”, and he resigned within seven days. That was two days after Sally Collier, the head of the exams watchdog Ofqual, had quit. The Ministry of Justice had lost its Permanent Secretary, Sir Richard Heaton, in July at the conclusion of his five-year contract, which could have been extended but was not.
Early in September the Treasury Solicitor, Sir Jonathan Jones, resigned reportedly because he had advised the Government that its Internal Market Bill would breach both the Withdrawal Agreement with the EU, and international law. The Northern Ireland Secretary, Brandon Lewis, calmed such worries by confirming to the Commons that the law would, indeed, be broken by the Bill, but only in “a very specific and limited way”. (He is, by the by, a barrister.) That was good enough for, among others, the Lord Chancellor and the Attorney-General, who ought to have known better. Indeed, Robert Buckland QC was able to his own satisfaction to square this with the oath that he had taken on becoming Lord Chancellor to “respect the rule of law”. And the chief mandarin himself, the Cabinet Secretary, has just gone, Sir Mark Sedwill having agreed with Johnson in the summer that he would. To misquote Oscar Wilde, to lose one Permanent Secretary may be regarded as a misfortune, but to lose six smacks of a deliberate cull.
Ten Ministers have left Johnson’s Government so far because they could not accept the constraints of collective responsibility. One Cabinet Minister, Alun Cairns, resigned as Secretary of State for Wales in November 2019 – be it noted four months before the Cummings affair, on which more later. Cairns had personally endorsed one of his former aides for election to the Welsh Assembly despite knowing that he had played a part in the “sabotage” of a rape trial. But the consciences of no others have been sufficiently pricked by errors in their departments or personal misconduct to cause them to go. How unlike life in earlier constitutional times.
The golden age
In the golden age of ministerial responsibility each Minister was responsible, among other things, for what happened or ought to have happened in his or her department. The House of Commons, aided by an inquisitive and demanding media, policed the doctrine. When all went well a Minister’s stock rose. If, though, something went seriously wrong in a department the Minister might well resign, or at least would go to the House of Commons. There he or she would explain what had happened, set out what remedial steps were in hand, and accept the blame – regardless of whether the problem had resulted from a ministerial, or a civil service error, or a messy combination of the two. Ministers were the only public face of government. Officials knew that they wouldn’t meet public criticism if their Minister’s decisions turned out badly, any more than they would get any public credit for policy successes. As a result they gave full and frank advice privately to their ministerial masters, from which they could select the best, or the least bad, course of action. If a civil servant seriously erred then private action could be taken, of which the public would normally be unaware. We can all recall the names of Ministers who fell on their swords following serious departmental or personal errors. They range, for example, from Sir Thomas Dugdale in 1954 over Crichel Down, through to Lord Carrington and his junior Foreign Office Ministers over their department’s failure to foresee Argentina’s invasion of the Falkland Islands in 1982, to David Laws as the first casualty from the Coalition Cabinet in 2010 when he resigned over breaches of expenses rules – and so on.
As with most golden ages that one has just been viewed through rose-tinted spectacles. Of course the doctrine of ministerial responsibility didn’t always work in that inexorable way. A Minister who had blundered might be enveloped in the collective protection of his or her ministerial colleagues, fellow MPs, and the Prime Minister; the Government might then weather the storm of Opposition fury and media fun. Sometimes after the fuss had died down a reshuffle might see the failing Minister quietly moved to another post, or be dropped from the Government. Only very occasionally was fault publicly laid at the feet of named officials, and then usually only after a public inquiry, but that was exceptional. Anonymity of civil servants was a corner-stone of the doctrine of individual ministerial responsibility.
The Johnson-Cummings doctrine
Three Cabinet Ministers are still in office when in the earlier constitutional world they might have resigned. Robert Jenrick, the Housing, Communities and Local Government Secretary, resisted Opposition pressure to quit after he had personally approved a controversial housing development. That happened just in time so that, by pure coincidence, it saved a property developer millions of pounds. By chance that person happened to be a donor to the Conservative Party. Jenrick denies any wrongdoing. Now, we must all be very slow to chide anyone over the handling of Covid-19, which in scale and effect is the worst peacetime emergency in modern times. But Matt Hancock, the Health and Social Care Secretary, has been criticised not just by the usual suspects but by some in his own party. The eventual inquiry will establish who did what and when and to whom over Covid, but meanwhile Hancock remains. Perhaps to get some retaliation in first he scrapped Public Health England, and made the Conservative peer, Lady Harding, head of the new National Institute for Health Protection. Her record of running big organisations – including NHS Track and Trace – isn’t exactly one of unmitigated success.
But by far the most egregious case involves Gavin Williamson. Even some Conservative MPs wanted the Education Secretary to go after the exams mess which has caused unimaginable anguish to thousands of people. The potential problems which would be caused in schools and for universities by Covid-19 were obvious last spring, but what exactly he did about it until it was too late is obscure. Adopting what appears to be this Government’s first line of defence when in trouble – it was someone else’s fault, not ours – Williamson blamed Ofqual, whose head, as noted, resigned. True, he did say that he was “incredibly sorry for the distress” which this had caused. This was the man who, as Defence Secretary, had leaked information from the National Security Council, and had been sacked by Theresa May for it. He denied any wrongdoing. He went on to support Johnson’s campaign for the Conservative leadership, and loyalty must always be rewarded, in Williamson’s case with a return to the Cabinet.
A new constitutional template was set by Dominic Cummings after what is now the most famous car journey in history. Having driven from London to County Durham in late March during the national lockdown, the Chief Adviser to the Prime Minister denied that he had broken the Government’s own rules or the law in so doing. And it had been a sensible precaution while there to drive on a thirty-mile round trip to Barnard Castle and back to check that his eyesight was up to the return drive to London. In his world and in the Prime Minister’s words he had acted “responsibly, legally and with integrity”.
The convention of ministerial responsibility for departmental matters and personal conduct now rather looks like this. (i) A Minister (or a Chief Adviser to the Prime Minister) who is in trouble must not resign. (ii) There can be public apologies when something goes wrong, and reassurances can be given that things will be done to improve matters. (iii) Civil servants can be used as air-raid shelters to protect Ministers from flak, or (to change metaphors) can be thrown under a bus so that an embattled Minister can continue to walk down Whitehall with his or her red box.
A Cabinet reshuffle has been on the card for months. If it happens let’s see what, if anything, happens in relation to the Ministers I have picked out. If any of them is consigned to the backbenches the one thing that they needn’t worry about is a dramatic drop in income. Yet again Chris Grayling enters the narrative. Having been dropped by Johnson on entering Number 10, he recently secured employment with Hutchison Ports Europe. (I don’t know whether it actually has boats.) He is paid £100,000 a year for seven hours work a week. If Williamson finds himself out of a ministerial job, then within a year or so perhaps some educational outfit will want to pay for his talents.
Some of all that, especially the activities of Cummings, is beyond satire. But as the Speaker has shown it is not beyond criticism.
Rodney Brazier, Emeritus Professor of Constitutional Law, University of Manchester
(Suggested citation: R. Brazier, ‘Contempt for the Constitution?’, U.K. Const. L. Blog (6th Oct. 2020) (available at https://ukconstitutionallaw.org/))