Two stories this week have raised, in different ways, issues of Ministerial accountability.
Donelan’s libel
The first story is about a seriously embarrassing apology issued by Michelle Donelan, the Secretary of State for Science. The apology concerned a letter she had written to UKRI, a statutory body responsible for making scientific research grants. That letter – which she decided to publish from her personal e-mail account – attacked two academics, who had been appointed by UKRI onto one of its committees, for alleged extremism, and instructed UKRI to investigate. It turned out that those allegations were wrong: and it appears that Donelan made the basic error of believing, without fact-checking, a press release by Policy Exchange, the right-wing think tank, in which those allegations had originally been made.
Donelan’s error had significant costs, both in damages and in legal bills (both on her side and on the academics’ side). It turned out that those costs are being paid by her department (that is to say, by us).
That fact raises a broader question about Ministerial accountability: when should Ministers be personally liable for costs and damages caused by their decisions?
It is tempting to say that they should be, particularly in the case of an egregious error or one that appears to have been taken for base political reasons. But there are some important factors pointing the other way.
Was the Minister doing her job?
The first distinction that needs to be drawn is between cases where Ministers are doing their job – exercising a function as a Minister – and cases where, for example, they are sued for libelling a political opponent at a party fundraiser, or incur costs in getting an embarrassing tenant out of a flat that they own, there should be no question of their legal costs or any damages being paid by the taxpayer: these are personal matters.
However, although that distinction is right, it can be hard to draw it in some cases: and Donelan’s case may be one such. On the one hand, as Science Secretary, she was responsible for supervising UKRI, whose board she appoints and whose members she can dismiss: and she is responsible to Parliament for UKRI. It was clearly part of her functions to express concern about UKRI senior appointments: you can test that by asking what you would have done as Science Secretary of you had found out, for example, that UKRI had appointed a notorious Covid conspiracist or national security risk to a key committee.
But, on the other hand, as David Allen Green explained, the reason she got into trouble wasn’t because she expressed concerns (if done privately, there would have been good defences) but because she published her concerns, in a situation where there was no requirement on her to do so. Does that mean that she was not exercising her functions?
Again, you have to be careful here: even where there is no express requirement to publish, the courts will typically say that whether publication or wider circulation is a Ministerial function is very fact and context dependant[1]. And the fact that the line can be hard to draw, with cases going up to the Supreme Court, is a reason for not relying on it too hard here.
Was the Minister incompetent?
In any event, it is, I think, easier to see this case not so much as an example of a Minister asking the taxpayer to protect them for doing something in a purely personal or political capacity, but an example of a Minister asking the taxpayer to protect them from the consequences of doing their job very badly, or for improper motives. In other words, the core problem here wasn’t that she was incompetent in the technical legal sense of it not being part of her Ministerial functions to do what she did: it was that she was incompetent in the everyday sense of doing it very badly.
But, you may say, shouldn’t Ministers pay personally when their bad judgement, even when they are definitely acting as Ministers, incurs legal costs and damages?
I would urge caution here, for two main reasons.
First, good government sometimes requires Ministers to take legal risks, and even very serious legal risks. Your least favourite multinational or billionaire may bring a tax refund claim for millions of pounds against the government which lawyers say is 80% certain to win and will be expensive to fight. If a Minister decides to have a go at resisting it, should she be personally liable for the costs of resisting the claim when it eventually succeeds? In the particular area of publishing concerns that the Minister may have about individuals or companies, Ministers may have very good reason to publish such concerns at the investigative stage, either to warn the public or simply because there is a general interest in the public knowing what they are doing – and when they do so they will, not least because honesty and carefulness aren’t always good defences to libel, sometimes get into trouble where those concerns turn out to be wrong. (See, for an example of where a non-political body got into exactly that difficulty, the case of the Office of Fair Trading and Morrisons Supermarkets.) Should Ministers be personally liable when, as will happen on some occasions, and even after sensible checks, those statements turn out to be false? Legally risk-averse government is not necessarily good government, so proposals that are likely to make Ministers very risk-averse need to be thought about very carefully.
Second, we do want good people, who aren’t married to billionaires’ daughters and don’t have their own personal fortune, to become Ministers – and that is going to be harder if we expose them to real risks of bankruptcy if they make a mistake (and in the rush and pressure of office, Ministers are bound to make mistakes).
That said, there are extreme cases where, in my view, the taxpayer should decline to protect Ministers. One type of case is the misuse of public powers for wholly improper purposes, such as Lady Porter’s use of her power over housing in the City of Westminster to gerrymander the electorate in her party’s favour. Another might be reckless disregard for public money (which may be the case here if the legal advice that we are told that Donelan received before publication warned her in clear terms about the risks, or advised her to make checks that she then failed to make). Because it could fall into one of those cases, the Donelan case calls out for independent investigation (though it does not look at the moment as if it is going to get it). But, generally, making Ministers pay personally for the costly consequences of decisions they make as Ministers out of their own pocket seems to me to be a bad form of accountability: when Minister make poor judgments that cost money, their accountability should generally be political, not financial.
The OBR and the Budget
The other story of the week that raises the issue of Ministerial accountability is the budget, or, rather, the persistent drum-beat accompaniment to the budget from some Tory backbenchers and right-wing journalists such as Harry Cole that the real budget decisions were being made by the Office for Budget Responsibility (OBR).
The specific problem with the drum beat is that, as Ben Chu explains, the OBR’s role is (essentially) to publish forecasts of taxation and spending: the government remains entirely free to disagree with those forecasts in making its budget decisions and, more importantly, to choose the path of taxation and spending that it wants to in the light of those forecasts. If the government chooses – as the present one has – to impose tight fiscal rules on itself, then it will have correspondingly limited room for manoeuvre: but that is a choice of the government, not the OBR. Similarly, Liz Truss’s claim that the OBR is part of a “deep state” that prematurely terminated her hapless and fleeting term of office suffers from the problem that the calamitous effects of her policies on the markets - the effects that made it politically impossible for her to continue - were a result of her decisions, not the OBR’s (in particular, not to get OBR forecasts before the “fiscal event” that caused the crash, and to give every appearance, in her and her Chancellor’s statements, of disregarding good fiscal management).
But there is a more general problem, both with the criticism of OBR I’ve been discussing and with the broadly similar complaint that you will find in a recent Policy Exchange/Judicial Power Project paper, by Dr Yuan Yi Zhu, in which he criticises, on the ground that they are said to weaken political and democratic accountability, proposals to make enforcers of political standards, such as the Prime Minister’s Adviser on the Ministerial Code, more independent and more able to investigate and report on their own initiative. See also, along the same lines, though more overwrought in tone, an article (£) by Matthew Goodwin, the former academic expert on far-right politics, in his Roderick Spode-themed Substack: Goodwin proclaims that such proposals are a Labour plot to “upend democracy” by preventing the appointment of any populist-minded ministers[2].
However, the OBR example shows the flaws in that framing. In each case, the independent body (the OBR/the standards body) is producing and publishing information (evidence surrounding forecasts/the facts surrounding an alleged breach of the Ministerial Code). It is true that in each case the body may also make what can be highly contentious judgments (the economic forecasts themselves/whether there was a breach of the Code). But actual decisions on what happens – what taxes and spending should be/whether a Minister should be sacked – are made by politicians accountable to the House of Commons, and those decisions will be sustained if the House of Commons is behind them. And both Ministers and the House of Commons remain entirely free to disagree either with the factual conclusions of those bodies or with their (contentious) exercises of judgement.
Of course, politically, it may be hard for politicians to do that: but that is because the fact of having such reports out there makes it much trickier to indulge in the various devices that are often used to delay or frustrate political accountability: lack of transparency; obfuscating answers to questions; or hiding key material in the middle of mind-numbing detail in the hope no-one notices.
To adopt, for a moment, Benjamin Constant’s famous comparison of a representative system of government to a rich man engaging a steward who looks after his affairs, a prudent rich man will not rely on what his steward chooses to tell him or even on the steward’s answers to his questions: he will make sure that his steward is properly audited by an independent auditor who reports back to him. Far from weakening the steward’s accountability to him, such an audit enhances it (remembering, in particular, that the steward is still able to explain why any criticism or finding in the audit is wrong).
Similarly, far from leading to a reduction of political accountability of Ministers to Parliament and ultimately to voters, structures of the OBR kind, and the kind proposed in relation to investigation of breaches of the Ministerial Code, actually enhance it. Indeed, that may be the underlying reason why opponents of such structures dislike them: for some, particularly on the right and far right, effective political and democratic accountability is often much more popular in theory than in practice.
[1] See, for an example, R(Privacy International) v HMRC [2014] EWHC 1475 (Admin) (in which I acted for HMRC), where the High Court held that HMRC could at least in some circumstances provide information to a complainant about action that they were taking in an investigation, despite a strong statutory prohibition against disclosure of information except in the course of HMRC’s functions. On the other hand, in Ingenious Media v HMRC [2016] UKSC 54, the Supreme Court dismissed the idea that, in the same statutory context, fostering good relations with the media or publicising HMRC’s views about elaborate tax avoidance schemes could make it a statutory function of HMRC to talk to journalists about tax avoidance schemes (described by the relevant official as “scams for scumbags”).
[2] Goodwin also complains, somewhat peculiarly, that Brown Commission proposals to devolve power to elected local government and the elected governments and parliaments of the devolved nations, and to replace the appointed House of Lords with an elected Assembly with some limited powers of veto and delay, is also a plan to “upend democracy”.
Thanks David.
Thank you for this fascinating and informative post, and for linking to my post.
On "Should Ministers be personally liable when, as will happen on some occasions, and even after sensible checks, those statements turn out to be false? Legally risk-averse government is not necessarily good government, so proposals that are likely to make Ministers very risk-averse need to be thought about very carefully."
Your duly diligent minister would have the benefit of the public interest defence (as well as the benefit of decent drafting by competent lawyers, used to framing such allegations safely). If there is a genuine public interest in publishing a thing to the world, that usually can be done.