Ministerial ‘Non-Responsibility’

Ministerial ‘Non-Responsibility’ 

M Jashim Ali Chowdhury 

Assistant Professor of Law, University of Chittagong & 

PhD Researcher (Parliament Studies), King’s College London 

Published in the Daily New Age, Editorial, May 31, 2019

Link: http://www.newagebd.net/article/74004/ministerial-non-responsibility?fbclid=IwAR2gb4G-Ifz3ei2lVac0siBF3I94CWyMn0s4lrj57IuZQdoQtuZqlKIQWwk

Also published in the Daily Observer, Law and Justice, July 27, 2019 under the title:

Can our parliament enforce ministerial responsibility?

Ministerial Responsibility In The UK And Bangladesh

Ministerial Responsibility in its Westminster sense presents a curious blend of individual, departmental and institutional chain of accountability. Civil servants are responsible to the minister concerned. Minister in his turn accounts to the Prime Minister. Prime Minister and the Cabinet again collectively answers the people - the Parliament. Individual ministers are said to be answerable to parliament. We see them answering the parliament orally or in written for policies and actions of their department. What remains beyond the sight is how the individual ministers answer the Prime Minister. Prime Minister binds and shields them. 

Within this bondage of shield and sword, ministers owe their allegiance to the government and prime minister. Ministers would defend the government through their votes in parliament and speeches in public until the disagreement reaches to such a point that minister concerned decides to resign. In return, the Prime Minister and Cabinet would defend an individual minister facing a difficult charge in the floor of the House (A. W. Bradley and K. D. Ewing, Constitutional and Administrative Law, 2002, 13th ed., Longman). If this mutual give and take between a minister and his cabinet colleagues is the hallmark of a Westminster notion of Collective Ministerial Responsibility, it is more of a consolidating tool for the government rather than be a destabilising tool for the parliament. Government would collectively fail only when the Prime Minister loses confidence of the majority in the floor. Until the parliament reaches such an exceptionally odd with the government, individual ministers usually feel safe and hence ‘not-responsible’. 

An addition to the ministers’ advantages is the Westminster notion of ‘Next Step Agencies’. Next step agencies are the bodies entrusted and delegated with operational responsibilities accruing under the broader principles framed under the dictates of ministers. It has been held that ministers are responsible for broader principles and executive heads in the next step agencies are accountable for the failure of operational rules. The problem with this distinction is that ministers can rely on this to deflect responsibility entirely. 

Yet another advantage to the ministers is the emergence of so-called Osmotherly Rules in the UK. Named after E.B.C. Osmotherly, a civil servant who first drew up the rules in 1980, the rules would allow the executive heads answer questions asked by MPs to the minister. Should the member of parliament feel that the answer is insufficient, and the minister be required to answer the question, minister would step in. Agency heads would also answer the select committees ‘on behalf and with approval’ of the ministers. The UK Government Resource and Accounts Act 2000, Osmotherly Rules of 2009 and Ministerial Code of 2010 combined have secured parliamentary approval for this practice. It appears that the Osmotherly Rules would camouflage the actual role played and intervention done by the ministers in operational process. As a commentator argued, “it perpetuates the belief that the convention is simply a facade behind which the government can hide” (Diana Woodhouse, Ministerial Responsibility: Something Old, Something New, 1997, Public Law, p 262). Given the context, individual ministerial responsibility in the UK Parliament is now effectively limited to a minister’s responsibility not to mislead it by supplying inaccurate and untrue information (The UK Ministerial Code 2010, Para 1:2). A minister misleading the parliament should resign. 

Principle of collective ministerial responsibility is reflected in article 55(3) and 57(2) of the Constitution of Bangladesh. Prime Minister and Cabinet would fall if it loses the confidence of the parliament. Though the party discipline in Westminster system prevents fall of the Cabinet as whole through a motion of no confidence, history of the UK is not scarce in party backbenchers revolting and posing leadership challenge to the premier. In comparison, the floor crossing bar and polarised party system of ours would effectively preclude a leadership challenge from the backbench. 

We don’t have any express constitutional provision on individual ministerial responsibility either. Nor do we have any Ministerial Code of Conduct in the way the UK and other Westminster democracies have. Article 58(2) of the Constitution scantily talks about individual ministerial responsibility of a Minister to the Prime Minister. Parliament cannot enforce his resignation until and unless the Prime Minister him/herself so wishes or it passes a motion of non-confidence which shall mean the fall of the whole cabinet. 

Parliamentary involvement in the individual responsibility process is seriously weakened by procedural technicalities as well. Ministerial accountability tools at the disposal of parliament include parliamentary questions, scheduled and unscheduled debate and motion of no confidence. Of all these, parliamentary questions and call attention notices are more frequent. Unfortunately, the lion’s share of questions asked by members omits accountability issue. MPs frequently seek benefits for their constituency and remedial actions over administrative complexities. Questions are followed by call attention notices and adjournment motions. With the Speaker’s partisan tendencies, most of the adjournment and call attention motion raised by the opposition members are most likely not to be allowed (Nizam Ahmed, Development and working of parliaments in South Asia, 9:1 (2001) Asian Journal of Political Science, pp. 18-48 at p 29). 

Added to the procedural weaknesses is the emergence of the so-called ministers beyond the cabinet (M. Jashim Ali Chowdhury, 'Ministers' beyond the Cabinet: Accountability concerns, The Daily Star, Law and Our Rights, May 1, 2010). Known as Advisers to the Prime Minister, these ministers-in-fact do not sit in parliament nor do they answer the parliamentary committees. While even the technocrat ministers are offered seats in parliament and committees to ensure their accountability, the advisers in Bangladesh may simply ignore the parliament. 

While the Westminster parliament is concerned with its individual ministers’ responsibility, Bangladesh’s concerns appear more fundamental. Leadership challenge or no confidence in the Cabinet kept at bay, the burning question here is whether our parliament could enforce ministerial responsibility in its absolute minimum at least. May the parliament ask and enforce the publication of whole truth by the ministers in the floor? The answer is perhaps NO.