Holding ministerial office or leading a public body involves challenges and duties that do not exist in the private sector. Using recent examples of high profile resignations by public office holders, former Commissioner for Public Appointments Peter Riddell argues that although it is rightly difficult to remove some public servants, it is also incumbent on them to know in what circumstances they should offer to resign. When they do not then do so, it should be difficult – but not impossible – for a minister to remove a person when confidence in their ability to fulfil their functions has been lost.

Chairing a public body involves very different pressures and responsibilities from chairing a private sector company. Ministers can be more demanding than shareholders. While a degree of independence is inherent in the creation of an arm’s-length body, that is heavily qualified by accountability to ministers, and the need to retain their confidence, as two leading chairs have recently discovered. But the contrasts in what happened are revealing about the different positions of regulators and their relations with ministers.

Two chairs step down

In mid-January Marcus Bokkerink resigned as chair of the Competition and Markets Authority halfway through his five-year term – effectively forced out by ministers because of their doubts in view of the shift in government strategy to make a priority of growth rather than regulation. He went when he saw that he had lost the confidence of ministers, though subsequent comments have questioned whether removing a non-executive chair is the right way to signal a shift of policy. There has been no criticism of his conduct or performance. Yet, whatever the rights and wrongs of the way the decision was communicated, ministers have the ultimate right to change a chair who no longer fits with their priorities in a central area of economic policy.

The issues are more complicated for constitutional/legal watchdogs where independence in overseeing the actions of others is central. That is what has made the resignation – in effect, the forced removal – of Helen Pitcher as chair of the Criminal Cases Review Commission (CCRC) so significant, and unusual. She was widely blamed for the public handling of the last stages of correcting the appalling miscarriage of justice of Andrew Malkinson, who was imprisoned for 17 years for a rape he was eventually found not to have committed.

Pitcher has said – notably in a podcast interview with legal commentator Joshua Rozenberg – that she is being treated as a scapegoat for earlier failings by the CCRC, while the Crown Prosecution Service and the Greater Manchester Police have escaped comparable criticism. The criminal justice system certainly failed Malkinson many times. She has also said that, as a non-executive chair, she is being unfairly blamed for operational decisions being taken by the executive, most of them before her time. Yet at times of crisis, the chairs of organisations, whether non-executive or not, need to lead and take full public responsibility for what has happened.

Prior to her eventual resignation, Pitcher lost the confidence of successive Lord Chancellors, Alex Chalk and Shabana Mahmood, with the latter stating that Pitcher was ‘unable to fulfil her duties’. Mahmood expressed this view after an independent report into the Malkinson case by Chris Henley KC was published in July. The Ministry of Justice later convened an independent panel, which decided by a two-to-one majority that Pitcher should be removed under ‘the protocol for termination’. She then resigned.

A separate question is whether she should serve out her remaining year as chair of the Judicial Appointments Commission. She has said that she intends to do so– despite calls from leading lawyers, politicians and the GMB union – which represents some judges – for her to step down now. Regardless of current criticisms it was a mistake to appoint the same person to both roles because of the potential for conflicts of interest.

In the balance between the operational independence of watchdogs and accountability to ministers it is right that, in certain, very rare circumstances, they can be forced to resign. Despite the loss of ministerial confidence, the formal procedures for removing the chair of the CCRC, a privy council appointment, are necessarily protracted. It should not be just a matter of ministerial whim, hence the importance of the further check of an independent panel making a recommendation on whether a chair should be removed.

The resignation of Tulip Siddiq

The other recent resignation, that of Tulip Siddiq as Economic Secretary to the Treasury, is very different, not least because it concerns a minister not a regulator or adviser. It was essentially a political decision in which the formal processes were advisory. There was no criticism of her performance as a minister. Rather, problems arose over her financial interests, and past, and current, properties, and links between her and the Awami League (a political party in Bangladesh), and her close relatives in the former ruling family.

This affair has highlighted the highly sensitive role of what is now known as the Independent Adviser on Ministerial Standards. The balance between offering advice and a decision by a Prime Minister is inevitably difficult: even more so when the Prime Minister disregards the advice and the conventions on standards as Boris Johnson did, leading to the departure of two successive advisers, Alex Allan and Lord (Christopher) Geidt. Laurie Magnus, the Adviser since December 2022, has been more fortunate in his Prime Ministers. But he has faced the same dilemmas of how far to take advice. His first big case, shortly after he took office, was relatively straightforward – that of then Conservative Party Chairman Nadhim Zahawi’s tax affairs when he was Chancellor – and was quickly resolved.

In Siddiq’s case, her family relationships raised several less straightforward questions. It was not a simple matter of whether or not she had broken the Ministerial Code, as Magnus argued in a skilfully worded conclusion to his letter to the Prime Minister:-

‘Given the nature of Ms Siddiq’s ministerial responsibilities, which include the promotion of the UK financial services sector and the inherent probity of its regulatory framework as a core component of the UK economy and its growth, it is regrettable that she was not more alert to the potential reputational risks – both to her and the Government – arising from her close family’s association with Bangladesh. I would not advise that this shortcoming should be taken as a breach of the Ministerial Code, but you will want to consider her ongoing responsibilities in the light of this’.

The implications were clear and Siddiq, a close ally and constituency neighbour of the Prime Minister, duly resigned. Magnus had been careful not to step over the line between analysis/advice and the Prime Minister’s prerogative to decide who is, and remains, a minister. That is exactly how the Independent Adviser should operate, establishing the facts and analysing the position but leaving the Prime Minister with the key political decision.

This is far better than the previous situation when civil servants, notably the Cabinet Secretary, investigated allegations against ministers and faced often tricky conflicts within the traditional civil servant/ministerial relationship.

Conclusion

As the earlier examples show, there needs to be mutual recognition between ministers and watchdogs of the balance between the latter’s operational independence and ministerial accountability and responsibility. But in the end, the need to maintain the confidence of ministers – and the Prime Minister – is inescapable, whatever the formal relationships. And that applies as much to ministers as to regulators and advisers.

The author

Sir Peter Riddell is an Honorary Professor at the Constitution Unit, UCL, and former director/chief executive of the Institute for Government and Commissioner for Public Appointments from 2016 until 2021.

Featured image: Tulip Siddiq MP (CC BY-NC-ND 2.0) by UK House of Commons.