Column: Ministers Responsibility, Accountability

[Opinion column written by Jason Hayward]

The events leading up to and following the release of the Commission of Inquiry Report have been highly upsetting and distasteful. The Bermuda Public Services Union is on record stating that we support the principles of accountability and transparency, and therefore, the Union had no objection to the mandate that the Commission of Inquiry [COI] had been charged to undertake.

However, the interview proceedings which commenced on Wednesday, September 28, 2016, did an injustice to the entire process. The proceedings can be described as nothing less than an outright prosecution and a vilification of public service employees.

In preparation for these hearings, public service employees, represented by the BPSU, worked diligently throughout late evenings and on weekends to provide comprehensive witness statements and answers to the many question posed to them by the Commission. However, it became evident almost as soon as the public hearings commenced that public servants were under attack.

It appeared as though the proceedings were intended to tarnish the reputation of public servants; the same public servants who have been compliant and forthright from the beginning of the inquiry. In the opinion of many that viewed the proceedings, public servants and their respective lawyers were treated with an outright lack of dignity and respect.

Public service employees should never have been badgered by the COI’s lawyers to accept responsibility or be held accountable for decisions made by Cabinet that they were not involved in. Public service employees merely carried out directives as instructed.

It appeared as if the Commission’s lawyers had reviewed evidence, arrived at a conclusion and were on a quest to deliberately lead witnesses though a line of questioning in support of that narrative.

Public service employees should have never been subjected to that behaviour but instead should have been supported by the current Government. The absence of their employer’s voice was deafening then and, after pictures of hard working public servants were draped across the front page of the media like mug shots, equally silent now.

The UK’s Constitutional Committee in its 6th Report titled ‘The Accountability of Civil Servants’, made clear the delineation between the accountability and responsibility held by Ministers and that of the civil service. Perhaps the best-known statements on the convention of ministerial responsibility for the civil service were made in the “Crichel Down” episode:

“The Minister of Agriculture, Sir Thomas Dugdale, resigned following an official inquiry about the approach of the Ministry of Agriculture in disposing of land no longer needed by the Air Ministry after the Second World War. In the Commons debate on the inquiry’s report the minister said—

“I, as Minister, must accept full responsibility to Parliament for any mistakes and inefficiency of officials in my Department, just as, when my officials bring off any successes on my behalf, I take full credit for them … any departure from this long-established rule is bound to bring the civil service right into the political arena, and that we should all, on both sides of the House, deprecate most vigorously”.

The Crichel Down episode is perhaps most useful in constitutional terms because of the four categories drawn up by the Home Secretary, Sir David Maxwell Fyfe, to distinguish the degree of accountability of ministers for their civil servants—

• [1] A minister must protect a civil servant who has carried out an explicit order by the minister.

• [2] A minister must protect and defend a civil servant who acts properly in accordance with the policy laid down by the minister.

• [3] Where an official makes a mistake or causes some delay, but not on an important issue of policy and not where a claim to individual rights is seriously involved, the minister acknowledges the mistake and accepts the responsibility, although he is not personally involved, and states that he will take appropriate corrective action in the department. The minister would not expose the official to public criticism.

• [4] Where action has been taken by a civil servant of which the minister disapproves and has no prior knowledge, and the conduct of the official is reprehensible, there is no obligation on the part of the minister to endorse what he believes is wrong or to defend what are clearly shown to be errors of his officials. But the minister remains constitutionally responsible to Parliament for the fact that something has gone wrong, and the minister alone can tell Parliament what has occurred.

Bermuda’s Ministerial Code of Conduct makes it clear that Ministers bear the responsibility and accountability.

The code states: “As the political head of a Ministry, the Minister is responsible for all of its acts and omissions, and must bear the consequences of any defect of administration or any aspect of policy which may be criticised in the Legislature [hereinafter “Parliament”], whether personally responsible or not.”

Additionally, the Ministerial Code of Conduct reiterates that “Ministers have a duty to Parliament to account for, and to be held accountable, for the policies, decisions and actions of their Ministries.

Given this, why were Bermuda’s public servants allowed to be vilified and, as a result, made to endure public shame and suffer reputational damage. It is wrong!

- Jason Hayward

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