Power without responsibility

Does being a minister mean never having to say you're sorry? Nick Cohen reports; 'The devastating performance by Howard has not resolved the issue of how the prisons are run' the prisons is not regarded as being closed by Michael Howard devastating performance has little to worry about. The prisons boss may not speak his mind' Mr Howard has little to worry about as he accumulates power.

THE Home Secretary, Michael Howard, came under attack last week from a man who had seemed a model member of the Conservatives' new establishment. Derek Lewis did not become director-general of the Prison Service because he knew about jails - the only jail he had visited before 1993 was on a Monopoly board. He got the job because he had the background ministers now consider vital in running public services: he was a businessman.

Once installed (at a salary double his predecessor's), he set to work with the familiar, bright-eyed conviction that he was "invigorating" an under-performing monopoly. In particular, he began implementing the Government's controversial policy of privatising jails.

And, despite predictions of disaster, he enjoyed some success. Under his workaholic direction, the prison service saw not a single serious riot, while the number of escapes dropped like a stone. The Government, it seemed, had every right to be pleased.

But on Monday, when he was fired after the damning Learmont report on the Parkhurst prison breakout, Mr Lewis revealed another side of business culture. Instead of fuming in private, he hired a public relations firm to put his case. Instead of keeping his head down and hoping his silence would be rewarded with another top civil service job, he fired off a writ for damages against Mr Howard which read like a charge sheet.

It accused Mr Howard of daily political interference, "extreme and unjustified" pressures and delays in making important decisions. Though they came from a most unexpected quarter, these charges went straight to the heart of a problem that is causing growing concern: ministers' responsibility to Parliament and the public for what goes on in their departments, and above all for what happens in the new "agencies" springing up everywhere in Whitehall.

Are ministers, as they insist, only accountable for "policy" and not "operational" failures? If so, does that mean they now wield power without responsibility?

IT IS no accident that this issue came to a head in the Home Office, even if Mr Lewis is an unlikely cause celebre, for Mr Howard's power is growing almost by the day.

Performance indicators set by his department will soon be used to determine police priorities across the country, giving him greater control over what used to be semi-autonomous police forces than any home secretary before him. At the same time, the extension of mandatory life sentences which he has ordered will erode the independent power of the judiciary. In such cases the Home Secretary decides when prisoners are to be released, so in effect he is fixing the true length of sentences, and not the judges.

And in the prison service, which has never enjoyed much freedom, Mr Howard and his ministers are still intimately involved in decision-making.

His power is increasing; what about responsibility? For some time he has been doing his best to restrain or silence the few independent bodies whose task is to monitor his department.

For example the efforts of the ombudsman, Sir Peter Woodhead, to ensure that prisoners are treated fairly and consistently have not brought him thanks. Last month Mr Howard "gave him a rocket", according to Home Office sources, saying he would not tolerate Sir Peter becoming a commentator on penal affairs.

Judge Stephen Tumim, whose elegant and occasionally caustic reports made him a national figure, retires as Chief Inspector of Prisons next month. He was, in effect, fired. His friends said he would have stayed on if Mr Howard had offered to extend his contract, but Mr Howard was only too happy to see him go.

Meanwhile boards of visitors, which inspect jails and issue public reports on their conditions, are being brought under strict Home Office control. Their scope for presenting the public with criticisms about a jail will be drastically cut.

So what happens when something goes wrong - or when everything goes wrong, as Sir John Learmont found everything had at Parkhurst in January? His critics say that the omnipotent Mr Howard - the Mr Howard who constantly wants to tell the police, the judges and the prison governors what to do - simply disappears. In his place, they say, there appears a more ethereal figure responsible only for high political theory, not the low business of implementation.

When last week he was asked if he should not resign, Mr Howard replied: "Sir John has not found that any policy decision of mine directly or indirectly caused the escape." The failings were operational failings and not policy failings, so they were nothing to do with him.

Last Thursday's events in the House of Commons appeared to vindicate him. All who watched agreed that Mr Howard knocked Jack Straw, Labour's home affairs spokesman, all over the chamber. The charges from Mr Lewis were "the spleen of a bitter man", the Home Secretary said, and Labour had shown itself unfit for government by repeating them. Tory backbenchers roared, Mr Howard's career was saved and Labour, from Tony Blair down, was left wondering what had hit them.

To some, however, the events at Westminster were a gaudy, noisy irrelevance. Liz Symons, general secretary of the Association of First Division Civil Servants, which represents Mr Lewis, said the Commons may have been good theatre, but it had not examined the evidence.

Few civil servants accept the view that Mr Lewis is merely a bad loser. A measure of their feeling is to be seen in their response to his sacking. Even though he is scarcely one of their own, not only has the union taken up his case, but he has received dozens of letters of support from mandarins. Even Joe Pilling, the career civil servant who had been expected to get the top prisons job in 1993, wrote to express his sympathy.

The Prison Board, which manages the service, was also appalled. Two non- executive directors who, like Mr Lewis, are from the private sector and not the Home Office's "liberal establishment", resigned. A third, Sir Duncan Nichol, former chief executive of the NHS, is expected to have harsh words to say when he returns from holiday in Spain. Before he left he warned that it would be severely damaging if Mr Lewis were fired as a result of the Learmont report.

Such people do not regard the matter as closed by Mr Howard's devastating performance in the Commons. They believe that the issues raised by the Learmont report, the sacking of Mr Lewis and his subsequent writ, need to be addressed urgently.

As one of the 100 or so "Next Steps" agencies, the Prison Service is supposed to have been distanced from politics. Its managers are meant to be left with as much freedom as possible, the better to promote efficiency in a businesslike environment. Mr Lewis, with his belief in the importance of modern management techniques, was a keen supporter of this principle. In practice, however, he soon found that he could not keep politics out of jails.

Kenneth Clarke, the previous Home Secretary, who appointed him, was easy to deal with, he said last week. "He wasn't very interested in detail and if something went wrong he was more than likely to admit it up front and tell the public he would sort out the problem."

Mr Howard was very different. As Labour and the Conservatives battled for the title of "party of law and order", what happened to prisoners came to preoccupy the Government. Mr Lewis found that meetings with ministers dominated his diary and "stopped me from going round the country and seeing what was happening in the service". The Learmont report endorses this: even on the day Mr Lewis had set aside to give evidence to the inquiry, he was constantly called away to give advice to ministers.

On average he was in the Home Office to see Mr Howard, his junior ministers or the permanent secretary once a day - scarcely consistent with independence from political interference. In the Commons last week, however, Mr Howard cleverly side-stepped this point by forgetting about the director general's meetings with junior ministers and the permanent secretary. This allowed him to assert he had met Mr Lewis only once a week. No MP challenged him on this.

Yet there remains no doubt that the director general was under intense political pressure. Mr Howard insisted he had every right to be consulted on operational matters. For example, although Mr Lewis was supposed to run his own staff and budget, the Home Secretary admitted he had blocked the appointment of a personnel director because the proposed pounds 100,000 salary was too high. "I thought that was excessive and I make no apology for getting involved in proposals like that," he said.

The Learmont inquiry found that in 83 working days last autumn, the Prison Service had sent the Home Office more than1,000 documents detailing everything from the preparation of "defensive briefings" which told ministers the "line to take" with the media to reports on individual prisoners. Officials felt that the number of stories in the press about prisons had become an "informal performance indicator" in the eyes of ministers - the fewer stories that appeared, the better they were seen to be doing. The Learmont report concluded that the Prison Service needed far greater operational independence from the Home Secretary.

And it is not only Learmont that shows the Home Office bearing down on the Service. The Prison Governors' Association said that after Fred West committed suicide in January, ministers drew up a list of prisoners whom they could not afford to lose. It included Rosemary West and Myra Hindley. They recommended that their cell doors be left open so that officers could rush in if suicide were attempted. Only when governors pointed out that open doors sometimes led to prisoners escaping was the plan dropped.

But isn't it the job of ministers to get involved in this way? Aren't they supposed to be running the country? And is it not right that civil servants should answer to them? Most of us would say yes. The problem arises when we try to reconcile this with the freedom to manage that Next Steps agency status is supposed to confer. Mr Howard's answer is that the agency runs operations and he makes policy, but as Mr Lewis and Sir John Learmont found, this distinction is not easy to draw.

If, for example, Mr Howard's policies send thousands more people to jail, which they will, and if prisoners in overcrowded prisons riot, which they may well do, who is to blame?

Judge Tumim said last week that the distinction merely meant "the Home Secretary is not responsible for anything at all". Mr Lewis reflected: "The problem with the Prison Service as an agency is that it is neither fish nor fowl. Crime has become such a hot potato that any attempt to pretend that neat distinctions between policy and operations can be preserved in the present system is a myth."

The practical implications can touch us all. The chief executives of agencies like the Prison Service have taken over many of the functions of ministers, who are ultimately answerable to the electorate.

If, for example, your MP had taken up the case of a prisoner in your constituency, Mr Lewis would have given him a written answer, not Mr Howard. In effect Mr Lewis was the voice of the Government dealing with MPs' queries and answering criticisms. But he was not personally answerable to Parliament.

THE chief executives of many agencies are starting to worry about where they fit into the constitution. In private, many confess that they haven't got the faintest idea where their responsibility to MPs ends and that of the minister who gave them the job begins.

The confusion could be seen in the welter of accusations of lies and undue political pressure which surround the removal of John Marriott, the governor of Parkhurst, the issue on Thursday.

Mr Lewis says that after the two murderers and a bomber had broken out, he came under intense pressure from Mr Howard to suspend Mr Marriott immediately, whereas he wanted merely to move him to other duties as soon as a replacement could be put in. At first Mr Lewis rebelled, saying this was an operational matter, but ultimately he gave in. Mr Howard says he discussed the moving of Mr Marriott with Mr Lewis but gave no instructions.

It has proved impossible to find the truth. When Mr Lewis was questioned by the Commons Home Affairs committee, earlier this year, he evaded (to put it mildly) telling MPs about the pressure he now says Mr Howard put on him. Some say his statements then and now contradict each other.

Surprisingly, Mr Lewis's union insists that under the present rules he was quite right not to tell the whole truth to the committee. It quoted Cabinet Office regulations stating that civil servants "give evidence on behalf of the minister to whom they are accountable and are subject to that minister's instructions". In other words civil servants should not exactly lie (that is against the rules), but they should not tell the whole truth if it is in the interests of ministers to cover something up.

What this means is that the chiefs of Next Steps agencies need not and sometimes must not account for themselves in full to MPs on select committees specifically charged with oversight; their responsibility to their minister comes first.

Caroline Ellis, from the constitutional reform group Charter 88, which is preparing a report on MPs' powers, said that it was essential that Commons committees were given the right to force witnesses to tell the truth. But MPs themselves seem in no hurry to press this. Last week, for example, Mr Lewis offered to go back before the committee and explain what had happened. The Conservative majority on the committee rejected his offer with Sir Ivan Lawrence, the chairman, using his casting vote to ensure that MPs heard no more.

Mr Howard, as last week's events demonstrated, has little to worry about as he accumulates power. The Prison Service is under his daily control. Its independent monitors are being tamed. Its boss answers to him and may not speak his mind even to MPs. And when something goes wrong, unless there is cast-iron proof in the public domain tracing a specific decision back to him in person, he bears no responsibility.

It is the civil servants who are worrying. "You've got to understand that this is not just about Lewis," said one senior figure. "Political interference is so great that everyone is frightened of saying or doing anything that may be seen to be out of line."

The civil servant was close to despair. "The politicians are scared of the press and will do anything to avoid bad headlines and we're scared of the politicians and want to keep our heads down. Everyone is second- guessing everyone else. No one wants to say anything out of line. The present atmosphere is corrupting the service."

Alan Watkins, page 19

Leading article, page 20