‘A Level’ Lessons for the Cabinet
The Cabinet did not deserve a long summer holiday, after flunking ‘A levels’, it should have been back in the classroom. “The Need for Independence” was the main failure followed by “How not to Lose to Judges” but we can consider the second another time. Part 1 of the former paper dealt with civil servants, part 2 with what the Cabinet Office is pleased to call “arm’s length bodies”.
We all know that civil servants are part of government but should be independent of political party. Policy intentions of ministers should be challenged, the classic introduction being “yes minister, but…”. Of course, once the ministerial decision is made and recorded, the civil servant’s role changes from devil’s advocate to implementation but the nature, course and timetable for that implementation should have been recorded as part of the decision. If the policy turns out to be wrong, either the civil servant or the minister or both should take the blame according to whether the civil servant’s “yes but” advice was correct. If the civil servant failed to predict the adverse outcome, he or she was incompetent. If the minister failed to heed the warning, the buck should stop there. Nobody should be sacked for being right however irritating that may be.
The head boy of this Cabinet may be giving too much credence to the head boy of the junior school, “Dom Major”. According to The Times, the junior school, meeting in “mission control” i.e. Room 38, 70 Whitehall, will determine all policies and prepare the announcements, leaving departments to catch up as best they can. “Also in the room is the prime minister’s implementation unit and the No 10 legislation team.” If this report is correct, the junior school would make all decisions without independent challenge or advice from those expected to implement the policies. This would be folie de grandeur.
Moving to part 2, arm’s length bodies can be divided into three categories: executive agencies, which are part of government, public corporations and regulators which are supposedly independent of government and non departmental public bodies (quangos) which are both independent of government, and not independent, at the same time. Executive agencies, such as the Rural Payments Agency, were invented by Sir Robin Ibbs, in 1988, to handle the implementation of departmental policies. [1] Public corporations, such as the BBC, are owned by the state, financed by government authority but operationally independent, as should be the case with regulators, such as Ofcom, which is answerable to parliament, not government.
The ambiguous status of quangos has long been criticised, notably by the House of Commons Public Administration Select Committee “There is insufficient understanding across Government about how arms-length Government should work” and the National Audit Office: “the arm’s-length bodies sector remains confused and incoherent.” Cabinet needs to determine, for each one, whether its main role is to implement policy, and should be an executive agency, or its independence is more important, in which case it should not be part of government.
The ‘A level’ fiasco this summer illustrates the confusion. Ofqual, according to its website, is “independent of government and report[s] directly to Parliament”. As the regulator, it should not have been offering advice to the minister; that is the role of his civil servants. Ofqual should either have made the decision, as the independent body it is supposed to be, or concluded that the matter was not within its competence and stepped away. We now know that Ofqual’s preference was for 2020 ‘A level’ exams to go ahead. To prevent cheating, exam desks are well distanced, masks would have been easy and there was plenty of empty local spaces, churches in particular. That was the right decision and administrative confusion blocked it.
One question remains open. In all, there are about 85 public corporations, i.e. arm’s length bodies, which are not governing us, and not regulators, ombudsmen or part of the judiciary. They are owned by, and part of, the state but operationally independent of government which is itself only one branch of the state. Most of these bodies are museums, libraries, property and parks which pretty much take care of themselves apart from finance and the appointment of top directors. If they are not part of government, to whom should they be answerable?
We need to remember that we, the people, are the state and the fulcrum of our democracy is parliament, not the government. The Queen only appoints the prime minister if he or she can form a government supported by the House of Commons. Some public bodies, such as the National Audit Office and the regulators, are answerable to parliament, not government, and are no less democratic for that – probably more. Regulators and ombudsmen should be answerable to the relevant select committees, if they are not already, but they might not welcome having the 85+ public corporations dumped in their laps as well.
That is the conundrum: government needs to be streamlined in order to focus on governing, especially this government. So who will supervise the public corporations that are supposed to be independent and not part of government? One possibility is to create a supervisory group within parliament itself, replacing the supervision now provided by the executive. It would simply be the shareholders, i.e. very little supervision, beyond inspecting their annual reports, would be required. And most of these bodies’ annual reports already go to parliament. However the legislature is no more suited to safeguarding these public assets than the executive. The alternative is to have another branch of state, accountable to parliament as is government, with each focused on its own role.
The performance of all human activity benefits from clear boundaries. Be it neuroscience, banking or tennis, professionalism requires the participants to know whether the ball, so to speak, is in or out. So it is with governing: the Cabinet should be crystal clear about what should fall within its remit and what should be independent.
[1] Sir Robin Ibbs, (1988) Improving Management in Government. The Next Steps. February, HMSO.