Report 4 - Access to Information Review Task Force

MINISTERIAL RESPONSIBILITY : INTERPRETATIONS, IMPLICATIONS AND INFORMATION ACCESS

Published: August 2001

Ken Kernaghan

Table of Contents

Introduction
Interpretations and Applications
Ministerial responsibility has both collective and individual dimensions
Pressures on Ministerial Responsibility
The Systemic Impact of the Three Conventions
The Concern That Nobody is Accountable
Direct Public Service Accountability
Understanding Ministerial Responsibility
Access to Information

Introduction

Two frequent assertions about the doctrine of individual ministerial responsibility are

1) that it is the cornerstone of Canada's parliamentary democracy, and

2) that it is a myth.

In this paper, it is argued that the doctrine is a central feature of Canada's Cabinet-parliamentary system. Its primary purpose is to ensure that someone in government - a Cabinet minister - is ultimately answerable for each government decision, even if it is not possible to single out the person(s) within the government who actually made the decision. While asserting the fundamental constitutional and practical significance of the concept of ministerial responsibility, it is important to recognize that the concept is a complex one that is widely misinterpreted, both unintentionally and deliberately. Much of the criticism of the concept arises from disagreement over its meaning and, therefore, over its proper application. As noted below, there are several additional factors that help to explain the criticism to which the doctrine is often subjected, including the factor of creative interpretation for partisan political purposes.

This paper begins by explaining the meaning and application of the doctrine of individual ministerial responsibility and its relationship to other constitutional conventions. The second section examines the pressures to modify the doctrine's meaning and application, including the proposal for direct public service accountability. The third section sets out the considerations that need to be taken into account for a full understanding of the doctrine and the final section examines the implications of ministerial responsibility and related conventions for access to information. The traditional term ministerial "responsibility" is used throughout the paper rather than the term ministerial "accountability" which in recent years has come into increasingly common use.

Interpretations and Applications

Ministerial responsibility is a constitutional convention. Thus, it is an important part of the constitution even though it is not spelled out in written form in the law.¹ Moreover, its meaning and application are not rigid or immutable; they can change gradually over time without formal legislative action.

Ministerial responsibility has both collective and individual dimensions.

Collective ministerial responsibility (sometimes referred to as Cabinet responsibility) means that ministers, in their role as Cabinet members, are responsible to Parliament for the policies and administration of the government as a whole. According to this convention, the government must resign if it loses in Parliament a vote of non-confidence. Another requirement is that individual ministers must resign if they cannot ensure at least the appearance of Cabinet solidarity by supporting Cabinet decisions in public.

Individual ministerial responsibility has two components - a resignation component and answerability one. It is extremely important to distinguish between these two components because emphasis on the first component to the total or relative neglect of the second explains in large part the view that the doctrine of individual ministerial responsibility is dead or at least severely weakened. (Unless otherwise specified, subsequent references to ministerial responsibility are to individual ministerial responsibility.)

The resignation component requires that each minister answer to Parliament, in the form of resignation, for serious policy or administrative mistakes made by the minister personally or by his or her public servants. Ministers bear a "vicarious" responsibility for all of the acts of their department, even if they have no personal knowledge of these acts. For many critics of the doctrine of ministerial responsibility, this resignation requirement constitutes the whole of the doctrine. They then argue that ministerial responsibility is a myth because in practice ministers do not resign to atone for the errors of public servants.

The answerability component of the doctrine requires that each minister answer to Parliament, in the form of explanation or defence, for all the actions of his or her department. Thus, when public servants make an error, the minister is expected to explain to Parliament what went wrong; to promise that the error will be remedied and that measures will be taken to prevent its repetition; and to impose appropriate sanctions within the department on the public servant(s) who committed the error. In practice, this answerability component is generally respected, even though ministers often do not provide answers that are complete and unambiguous.

The extent to which the relative importance of the answerability component has increased can be seen in the conclusion of an exhaustive examination of ministerial responsibility in the UK provided by the Scott Inquiry into arms sales to Iraq. Judge Richard Scott, the head of the inquiry, declared that "[t]he obligation of ministers to give information about the activities of their departments and to give information and explanations for the actions and omissions of their civil servants lies at the heart of ministerial accountability."²

He explained later that when he began the inquiry he "would have associated ministerial responsibility with a need for the minister to resign if serious errors had been committed in the department... But concentration on that existing aspect of ministerial responsibility has, to my mind, distracted attention from more important although less dramatic aspects of this constitutional principle."³

While ministers do not accept vicarious responsibility for the errors of public servants, they are frequently required to resign if they have personally done wrong (e.g. by violating the law), or if they have specifically ordered public servants to act in a manner that results in a serious error. Evidence that this aspect of the resignation component is still alive in the UK can be seen in the criticism of Judge Scott for reducing "real constitutional responsibility almost to the vanishing point"⁴ by letting offending ministers off "Scott free."

In addition to the requirements of the answerability component set out above, there are three other important requirements. First, in recognition of the need to ensure that someone in government is answerable for each government decision, ministers are required to answer to Parliament, by way of explanation, for departmental actions taken during their predecessors' term in office. Secondly, ministers, not public servants, answer to parliamentary committees for policy decisions and politically contentious matters. Thirdly, ministers answer to Parliament - and to the public - in a manner that safeguards the political neutrality and anonymity of public servants.

The latter two points demonstrate the close relationship between ministerial responsibility and the constitutional conventions of political neutrality and public service anonymity. These three conventions, taken together, provide a framework for understanding and explaining relationships among politicians, public servants and members of the public. Political neutrality requires that public servants avoid activities that harm - or seem to harm - their impartiality or the impartiality of the public service (e.g. criticizing their minister in public). Public service anonymity requires that public servants provide advice to ministers in confidence and avoid activities that involve them in public debate or political controversy.

Pressures on Ministerial Responsibility

The Systemic Impact of the Three Conventions

The interdependent relationship among the three tightly linked constitutional conventions means that a significant change in the meaning or application of one of them is likely to have important implications for the others.

Over the past fifteen to twenty years the political neutrality of public servants has been diminished to some extent by such developments as the expansion of the right of public servants to engage in partisan politics and to make critical public comments on public policies and programs. The major change during this period, however, has been in the sphere of public service anonymity. Public servants have gradually become much more visible to the public. They appear more frequently before parliamentary committees and in other public forums to describe and explain departmental policies and management; they are often identified by name and connected with particular policies by the news media; and they are in more direct contact with citizens as a result of such factors as the increased focus on citizen-centred service delivery and on an open, participative political culture. If each of these developments is considered in isolation from the others, the impact on ministerial responsibility may appear modest. If, however, the developments are taken together they threaten to erode the authority and accountability of ministers.

One response to this concern has been increased vigilance to preserve the integrity of the doctrine of ministerial responsibility. For example, the Tait report concluded that political neutrality and non-partisanship need to be reasserted as fundamental public service values. However, the report acknowledged that some diminution of anonymity would not do serious harm to ministerial responsibility.⁵ A different response to the threatened erosion of ministerial responsibility has been to argue that if the doctrine is weakening anyway or that it is a myth to start with, holding public servants directly accountable to parliamentary committees shouldn't be a significant concern.

Some proponents of direct public service accountability argue that ministerial responsibility is dead because public servants are now accountable to the public. This argument reflects the current practice of interpreting the concept of public service accountability in an unduly broad and often careless fashion. The argument fails to recognize a critical constitutional distinction between the direct and indirect accountability of public servants. In Canada's Cabinet-parliamentary system, public servants are directly accountable to ministers but they are only indirectly accountable to the public. Citizens can impose no direct rewards or sanctions on public servants.

The Concern That Nobody Is Accountable

The doctrine of ministerial responsibility cannot satisfy fully all of the demands placed on it by various political actors, in large part because these demands are often in tension with one another. Consider, for example, the desire to have public servants who are both politically neutral and directly accountable to parliamentary committees for a broad range of matters.

The challenge of resolving or reconciling such tensions is complicated by questionable claims about the "real" purposes of ministerial responsibility - that it is, for example, designed to protect public servants from being held accountable for their decisions. Ministerial responsibility is actually designed to protect the authority and accountability of ministers (that is, democratically elected politicians) for government decisions. Public servants are expected to serve this objective by providing full, frank and impartial advice to ministers in private and in confidence, regardless of whether this advice is in tune with the ministers' own views. If this advice was made public, opposition parties and the media would exploit those instances in which ministers acted against the advice of public servants and, indeed, those instances in which ministers appeared unduly influenced by public servants' advice. Among the likely adverse consequences would be less candid advice to ministers, less harmonious relations between ministers and public servants, greater politicization of the public service, and reduced public service anonymity.

It is understandable, however, that the actual purposes of ministerial responsibility should be misunderstood or obscured when citizens perceive that neither ministers nor public servants are held accountable for certain decisions. Ministers routinely refuse to resign for mistakes made by public servants, but they also often "tough it out" in the face of widespread belief or evidence that they have personally made serious errors. It is here that the relationship between collective and individual ministerial responsibility comes into play. If the government is strong politically and the offending minister is influential and popular, he or she will frequently be protected from resignation by the support of the Cabinet as a whole. Discussions of ministerial responsibility in Parliament are usually highly-charged events involving calls for a minister's resignation. The public's knowledge of the meaning and application of ministerial responsibility is based largely on these fierce political battles. There is little or no recognition of ministerial responsibility's far-reaching impact as it serves every day in many ways as the framework and foundation for innumerable interactions between politicians, public servants the public. Ministerial responsibility "involves the daily provision of information and explanations, to Parliament and the public, about the activities of the minister's department, and conversely a daily sensitization of the department to the views and concerns of Parliament and the people."

It is notable that some citizens are not satisfied by ministers' promises that disciplinary action will be taken against public servants within the department. These citizens want the assurance that comes from a "public hanging". Fairness suggests that public servants should not be treated differently than their private sector counterparts by being required to suffer sanctions twice - first within the department and then in public. Nevertheless, the concern that on occasion nobody in government is - or appears to be - held accountable for mistakes weakens public confidence in the vitality of ministerial responsibility and strengthens calls for direct public service accountability.⁶

Direct Public Service Accountability

For more than two decades, there have been vigorous calls for public servants to be held directly accountable to Parliament (i.e. to parliamentary committees) for their decisions. Proponents of this approach differ considerably as to the scope and nature of the decisions for which public servants should account. The possible range of matters runs from narrowly specified administrative matters all the way to policy advice. To avoid clashes between ministers and public servants, a clear distinction would have to be made between the matters for which ministers are accountable and those for which public servants should account. It is widely acknowledged that in practice it is often difficult to distinguish policy matters from administrative matters. Another practical problem would be deciding whether, in a regime of so-called direct public service "accountability," public servants are really to be held "accountable" to parliamentary committees or simply "answerable." Accountability involves the possibility of sanctions and it is not clear how a parliamentary committee that is displeased with public servants could impose sanctions on them. Parliamentary committees could of course do damage to a public servant's reputation, but discipline would, in the end, be within the discretion of the minister.

It is often argued that public servants could be held directly accountable for certain clearly designated administrative responsibilities without doing undue injury to ministerial responsibility. Public servants already appear regularly before parliamentary committees to explain (but not defend) departmental policies and administration. There have, however, been some incidents in recent years where public servants have been improperly treated when testifying before parliamentary committees.⁷

Moreover, the partisan milieu of parliamentary committees can quickly transform seemingly harmless administrative matters into politically controversial ones. This can have serious repercussions for ministerial responsibility, political neutrality and public service anonymity. If public servants rather than ministers are held publicly accountable for alleged departmental errors, some public servants will feel obliged to defend their decisions in the public arena, sometimes in conflict with their ministers. This will tend to diminish public servants' actual and perceived political impartiality, their anonymity, and their tenure in office.

If the advice of public servants on policy matters was disclosed to Parliament, the public and the media, the consequences for the conventions could be the following:

Relations between ministers and public servants would be complicated by the difficulty of distinguishing their respective contributions to the development of specific policies. The answerability of public servants to Parliament would compete with their accountability and loyalty to their minister. The remaining healthy component of ministerial responsibility - the answerability of ministers - would be severely weakened. There would be a dramatic decline in public service anonymity and the senior echelons of the public service would be politicized. Officials would become personally associated with particular policies and would, therefore, become involved in political controversy. Security of tenure for senior officials would be replaced by a system of political appointments and a consequent turnover of public servants with a change in government.⁸

Understanding Ministerial Responsibility

There are several considerations affecting ministerial responsibility that should be taken into account when examining the implications for the doctrine of public service reforms, including reform in the area of access to information. These considerations are:

1. The doctrine of ministerial responsibility is the cornerstone of democratic governance. It is intended to protect the authority and accountability of ministers for government decisions.

2. The doctrine is a positive and pervasive force for accountability in the myriad day-to-day operations of government.

3. The meaning and application of the doctrine are often distorted by undue emphasis on ministerial blame and resignation. While ministers are responsible for answering to the legislature for the errors of administrative subordinates, they do not thereby accept personal blame for these errors.

4. Similarly, while ministers are responsible for answering to the legislature for errors committed during the tenure of their predecessors, they do not thereby accept personal blame for these errors.

5. It is generally recognized that it is unreasonable to hold a minister personally responsible in the form of resignation for the errors of administrative subordinates.

6. Ministers usually resign in the event of serious personal misconduct or in cases where they have directed public servants to take a specific action which turns out to be a serious mistake.

7. On behalf of their ministers, public servants answer to legislative committees for administrative matters, but not for policy or politically controversial matters; this answerability takes the form of explanation, not defence, of departmental actions.

8. Ministers are responsible for answering to the legislature for policy directives given to non-departmental bodies (e.g., Crown corporations, regulatory agencies) but not for the day-to-day administration of these bodies.

9. Ministers have a commitment to protect the conventions of political neutrality and public service anonymity.

Access to Information

Not only the convention of ministerial responsibility but also the related conventions of political neutrality and public service anonymity have important implications for the design and operation of an access to information regime. These implications were taken into account in the drafting of the current federal Access to Information Act which represents the balance struck in the early 1980s between the desire for improved public access to information and the desire to preserve the integrity of the conventions. The importance of the conventions is demonstrated by Section 21 of the Act which provides that the head of a government institution may refuse to disclose, for up to 20 years, any record that contains advice or recommendations developed by or for a government institution or a minister; an account of consultations and deliberations involving officers or employees of a government institution, a minister or a minister's staff; positions or plans developed for the purpose of negotiations; and plans relating to personnel management or administration of a government institution that have not yet been put into operation. This section makes clear the authority of the minister in respect to the disclosure of records and indicates the need to keep confidential certain records, including those containing public servants' advice to ministers.

Since the Access to Information Act came into effect in 1983 there has been some weakening of the three conventions. For example, ministerial responsibility has been eroded by ministers who have named and blamed public servants in public; political neutrality has been diminished by the expansion of political rights for public servants; and the anonymity of public servants has been reduced by greater media coverage of their activities. Advocates of direct public service accountability argue that the integrity of the conventions has not been severely undermined by these changes. Thus, they contend, the conventions are likely to withstand a regime where public servants account publicly for their decisions, including their advice to ministers. Others argue that this direct accountability approach would significantly harm the conventions for the reasons explained earlier in this paper and that the focus should be on strengthening the conventions rather than weakening them further. Those commentators who suggest that deputy ministers, rather than ministers, should exercise the final authority as to what records should be released to the public do not have sufficient understanding of the principles and realities of Canada's parliamentary democracy.

The foregoing analysis has focused on the implications for access to information of the doctrine of individual ministerial responsibility. It is essential to note also, however, the important implications of the doctrine of collective ministerial responsibility, which was explained earlier in this paper. In Canada's cabinet-parliamentary system, it is critical for full and frank discussion of policy options and for cabinet solidarity that cabinet ministers be able to deliberate in private and in confidence. It is from this consideration that the Access to Information Act's protection of Cabinet confidences is derived.

Proponents of enhanced public access to information argue that there is a "culture of secrecy" in the public service or at least that public servants are excessively secretive. Many commentators had anticipated that experience with the Access to Information Act would gradually foster a culture of greater openness in government. Progress in this direction has been much slower than expected.

Part of the motivation for secrecy is fear of political or personal embarrassment for ministers and public servants. There is, therefore, understandable tension - and sometimes strong antagonism - between government officials and access to information advocates. However, Canada's Minister of National Defence has sought to strike an appropriate balance by advising his deputy minister that "to meet the requirements of the Access to Information Act, a high priority must be assigned to responding to requests from Canadians in a timely manner. I expect that impending releases of sensitive information will be brought to my attention in a timely manner so that I may respond to questions. This requirement should not in any way contribute to delays in responding to access requests."⁹ Tension over the proper extent of access to information exists in all governments. In New Zealand, for example, guidance provided in 1995 on the 1982 Official Information Act noted that the Act "is still understood imperfectly by some public servants" and "the impulse to shelter behind secrecy has not entirely disappeared." Public servants were reminded also that valid reasons for withholding information do not include considerations that release "would be inconvenient to the Minister (or the department), might show the department in a bad light, or "might embarrass the Minister politically."

The extent to which public servants, whether in Canada, New Zealand or elsewhere, are likely to follow such advice will depend in large measure on the attitude and behaviour of ministers. If political leaders declare and model their support for access to information and their intention to ensure compliance with the letter and spirit of access rules, public servants are likely to respond positively. Strong support for open government has been manifested in Canada by such political leaders as the premier of the Province of Alberta. If other political leaders followed this example, it is likely that the public service culture would gradually but significantly shift towards greater openness. However, political leadership will not be enough. Public service leaders, deputy ministers in particular, will have to send a clear message by serving as exemplary role models. Canada's Access to Information Commissioner has argued that senior public servants need to realize that their attitude "towards access rages like a grassfire through a department. If employees feel that compliance is not a priority for the leaders" and if "they do not foster a culture of openness in general - their employees get the message loud and clear."¹⁰

The disclosure of records revealing public servants' decisions and advice is unlikely to be an effective remedy for lack of political and public service leadership in promoting improved access to information. In particular, it is unlikely that the positive effect of such disclosure would be significant enough to offset the adverse implications for ministerial responsibility.

¹ Geoffrey Marshall defines constitutional conventions as "rules that define major non-legal rights, power and obligations of office-holders in the three branches of government, or the relations between governments or organs of government." Constitutional Conventions (Oxford: Oxford University Press, 1984), p.210

² United Kingdom, Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions, Chapter 8, p.2

³ Sir Richard Scott, "Ministerial Responsibility", Public Law, 1996, p.410

⁴ Vernon Bogdanor, "Ministerial Accountability, " Parliamentary Afairs, vol. 50, no .1 (January 1997), p.77.

⁵ Canadian Centre for Management Development, A Strong Foundation: Report of the Task Force on Public Service Values and Ethics (Ottawa: Canadian Centre for Management Development, 1996, reprinted 2000), p. 10.

⁶ Ibid., p. 11.

⁷ Examples include the Al-Mashat Affair and the testimony of a former deputy minister of Employment and Immigration to a parliamentary committee.

⁸ Kenneth Kernaghan, "Power, Politics and Public Servants: Ministerial Responsibility Revisited", Canadian Public Policy, vol. 3, Summer 1979, p. 394.

⁹ Letter dated April 6, 1999, from Arthur C. Eggleton, Minister of National Defence, to Jim Judd, Deputy Minister of National Defence

¹⁰ Canada, Information Commissioner of Canada, Annual Report: Information Commissioner, 2000-2001 (Ottawa: Public Works and Government Services, 2001), p. 22.