SHOULD THE HOME AFFAIRS MINISTER GO?

Jul 29, 2012 Features / Columnists, Peeping Tom

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The motion tabled and presently being debated before the National Assembly, calling for no-confidence in the Minister of Home Affairs, is ill-conceived and misguided.
The opposition parties that put forward this motion should have it withdrawn immediately before they hold themselves and the parliament up to further ridicule.
The motion follows closely on the heels of calls by the Alliance for Change (AFC) for the resignation of the Minister of Home Affairs. When the Minister sought to explain that he did not give any instructions that led to the shooting of the Linden protesters, it was said by the AFC that the Minister did not have an understanding of the concept of ministerial responsibility.
As will be explained here, it is the AFC and APNU who need to enlighten themselves on this concept, so as to avoid them continuing to delude themselves into believing that through a motion in parliament they can force the minister to resign. They further need to disabuse themselves of the idea that the concept of ministerial responsibility is a democratic concept intended to promote greater accountability of public officials and ministers to parliament. Nothing could be further from the truth.
Ministerial responsibility has two parts. The first is collective responsibility, which aims at having the government speaking with one, unified voice. Thus, a minister is required to support decisions of his government, even if he is not in agreement.
If the minister disagrees, he is required to stifle his disagreement. If the decision is of such that it affects his conscience, the minister may resign as an act of conscience, but once he is part of the government he is obligated to uphold the principle of collective responsibility.
The concept of collective responsibility also holds that if parliament expresses a motion of no-confidence in the government, then the government has to resign. This is a parliamentary convention which has now been enshrined in our own written constitutional provisions. The government has to resign en bloc if there is a no-confidence motion against the government.
When it comes to individual ministerial responsibility – which is the second part of ministerial responsibility – a minister cannot be compelled to resign because of a motion of no-confidence by parliament.
If that were the case, then parliament would hold a Sword of Damocles over the entire executive, in that it could virtually cause the entire Cabinet to resign, one by one, because of criticisms and no- confidence motions.
The concept of individual responsibility in theory holds that ministers may resign because of the policies and actions of their departments. In practice, however, this is a myth, because the minister cannot be held responsible for the operational and administrative actions of his subordinates, especially these days when government departments are complex organizations comprising hundreds of individuals.
Surely by no stretch of the imagination can the Minister of Home Affairs be expected to be held culpable for the actions of every person in his department. If this were the case, it would mean that every time the police make a mistake or omit to do something, the minister has to resign.
There have been cases where ministers have resigned due to policy failures, but it is hard to find a single case in Westminster jurisdictions where a minister resigned because of operational or administrative mistakes.
Lord Carrington, the head of Britain’s Foreign Office, resigned in 1982 because he failed to predict the Argentinean invasion of the Falklands. This was a failure of policy prediction, and Lord Carrington resigned.
When it comes to the mistakes of persons within his departments, the minister cannot be held culpable. As was noted in ‘Constitutional and Administrative Law, 4th Edition’ by David Pollard, Neil Parpworth and David Hughes, it is impossible to argue that a minister is completely responsible, in the sense of culpability, for everything done by every official within the departments that fall under him.
Quoting Brazier, the authors noted that “ the further the minister was geographically or hierarchically, from the people or events complained of, the less he will be generally be expected to take blame for mistakes and resign.”
Patrick Weller, writing in Cabinet Government in Australia 1901-2006, noted that in practice the convention of individual responsibility never meant that ministers should resign if departments fail in some respect or the other. Ministerial responsibility means the minister answers questions (to parliament) about his department and take remedial action to correct any deficiencies.
Weller also pointed to a former Attorney General of New Zealand who addressed this issue of cases where the minister is not personally involved. He argues that the minister is:
“Responsible yes, in the sense that he may have to answer and explain to parliament, but not absolutely responsible for (that is liable to censure) everything done under his administration… There is no absolute vicarious liability on the part of the minister for the ‘sins’ of his subordinates. If the Minister is free of personal, fault and could not by reasonable diligence in controlling his department have prevented the mistake, there is no compulsion to resign.”

Stuart Weir and David Beetham in Political Power and Democratic Control in Britain pointed out that in Britain no minister in that country was forced to resign because of mistakes and misconduct of their officials.
Parliament cannot compel a minister to go. In their book ‘Parliament, Policy and Representation’, Harold Clarke, Colin Campbell and Arthur Goddard, argue that a minister goes because of the judgment of the prime minister who has to weigh the cost of letting the minister go as against the cost of keeping him.
Hilaire Barnett writing in ‘Constitutional and Administrative Law 8th Edition’ goes much further. He argues that the acceptance of responsibility does not lead to the resignation of a minister for failures of his department. He contends that there are no hard and fast rules as to whether and when a minister should resign, and accordingly it cannot be said that resignations form part of the convention of individual ministerial responsibility itself. He further says that the decision on resignation depends on the minister, his Prime Minister and his party.
APNU and the AFC are therefore engaged in an exercise in futility and as they continue it will bring our parliament into disrespect, because the present motion before the House is based on a false understanding of the concept of ministerial responsibility.
The real debate as to whether the Minister of Home Affairs should resign should really be taking place within the conscience of the Minister, at Robb Street or in New Garden Street. Not in parliament.

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