Dear Mr Gauke. Sacking Independent Decision Makers Encourages Cowardice and Indecision

by ukcivilservant

All British governments from – and including – Mrs Thatcher’s have recognised that it makes sense to hand much tricky decision-making to independent bodies.

Lower energy prices are politically popular, but damage investment. Liberal prescribing of new expensive drugs is welcomed by patients, but unaffordable by the NHS. Parole cuts prison costs and is often humane, but carries risk of re-offending.  These judgment calls are best made by independent bodies, not least so that you – Minister – cannot be criticised. Their decisions can of course be challenged on appeal or by judicial review brought by those affected.

You absolutely do not want such regulators and other agencies to be scared of being challenged in court and/or upset by media criticism when they lose an appeal.  You want them to take difficult decisions involving fine judgments and to learn whenever they are over-ruled.   A regulator who always wins on appeal is a regulator who always shrinks from difficult decisions, and  who never takes on a big company with a large army of lawyers.

The problem in the UK is that (with some honourable exceptions) we have too often suffered from regulators and other decision makers who have been too scared of challenge and so too indecisive – remember Private Eye’s ‘Fundamentally Supine Authority‘ – and possible Ofgem’s previous management’s reluctance to tackle the big energy companies?

The courts found that the Parole Board had erred in the Warboys case because

  • The (criminal court) judge’s sentencing remarks were not in the Parole Board dossier (not their fault)
  • Information about the other 80 possible victims was also not in the dossier (not their fault)
  • In particular, the (civil court) judge’s decision was not in the dossier (not their fault). (He found Warboys to be ‘clinical and conniving’, and noted that the rape kit in Warboys’ car suggested there would have been other later victims.  But Warboys never accepted such responsibility.)
  • The Parole Board had not made detailed inquiries about the other possible offences.  This was their error albeit made to some extent on advice, fearing that it would be wrong to imply guilt for an offence for which he had not been charged.

None of these reasons suggest that the Parole Board was badly run or incompetent.  They made a close-call decision which was rightly challenged and overturned.   That is the way the system is supposed to work.  You should have supported the Board, not criticised nor sacked its highly respected Chair.

(Secret Barrister’s  very clear summary of, and comment on, the Warboys decision is here.)

Martin Stanley

Understanding Regulation