The UK needs a functioning system of arm’s-length governance, not a flock of handy scapegoats

The flailing coronavirus response has so far caused the resignation of the chief regulator of qualifications, Sally Collier, and the abolition of Public Health England (PHE). The UK’s baffling array of arm’s-length bodies (ALBs) are providing plenty of hiding places for ministers keen to pass on responsibility.

The immediate outcome is more piecemeal reform and personnel changes – the long-term response should be a proper reset of the whole landscape.

Public Health England was always under ministerial control

PHE is to be reshaped into a pandemic-response organisation, we assume directly answerable to ministers, with a new chair and chief executive. It seems to have taken legal advice for the prime minister's chief adviser, Dominic Cummings, to understand that Public Health England (PHE) was an ’executive agency’, part of the Department of Health and Social Care (DHSC) and so under the control of the health secretary. It is not certain that the health secretary himself understood this either.

While the functions and focus may shift around, it is far from clear that the new arrangements will make any difference to the degree of control ministers have. But PHE’s apparent separation from its parent department made it an easy target for dissatisfied ministers looking for somewhere to shift blame. 

Meanwhile the education secretary, Gavin Williamson, has seen his reputation dented by the activities of a so-called ‘non-ministerial department’. The Treasury and the Cabinet Office now advise against the creation of such departments: the 2019 version of Managing Public Money, the Treasury’s official guidance on public spending, points out the problem: “ALBs cannot be given authority to make decisions proper to ministers, nor to perform functions proper to sponsor departments. Only rarely is a non-ministerial department the right choice as NMDs have limited accountability to parliament.” Ofqual slipped under the wire before this advice was given.

Ofqual’s ‘non-ministerial status’ should not absolve Gavin Williamson from responsibility

Ofqual was set up in 2010 with a mission to preserve the integrity of exam qualifications, but with no remit to ensure fairness. It was established as a direct response to the perception that its predecessor, the Qualifications and Curriculum Authority, was too prone to interference by the Department for Education (DfE) and that this undermined public confidence in the qualifications system.

But although Ofqual was made as independent of ministers as it is possible to be in the UK system, it must, under the Apprenticeships, Skills, Children and Learning Act 2009, “have regard to such aspects of government policy as the Secretary of State directs”. But Williamson used those powers to direct Ofqual to set out in detail how it should manage the consequences of the decision the government had taken to cancel the summer exam season. They were to: “ensure, as far as is possible, that qualification standards are maintained and the distribution of grades follows a similar profile to that in previous years”. This chimed with Ofqual’s statutory purpose and was what it did. What it did not seem to do is anticipate the political fallout from that approach.

What is far from clear is how the department and the regulator managed the process: whether the department was consulted or given a chance to comment on Ofqual’s secretive approach; the extent to which it debated how to handle the fallout from individual grades; whether it thought through the timing issues and what that meant for university admissions.

We may begin to find out these answers on 2 September when the Education Select Committee grill the Ofqual chair, Roger Taylor; Williamson is due to appear later that month. What we should also find out is whether there is any clarity on who is responsible for what in a system that was created to oversee exam qualifications in a year with no exams.

Ministers, officials, MPs, ALBs – and the public – would all be better served by a more comprehensible system of arm’s-length governance

Although many ALBs were created long in the past and their origins are obscure, both PHE and Ofqual are relatively new creations. Yet it is far from clear that their political masters understood their status or how to manage relations with them.   

But unpacking the precise relationship means understanding individual governance frameworks. This is not straightforward. PHE looks a bit more independent than the average executive agency, with  ‘operational autonomy’ and an ability to give independent advice, but does not explain how this will be achieved. Ofqual’s governance framework makes no provision for the sort of exceptional circumstances we have seen this year.

‘Arm’s length’ too often means out of sight – an issue is taken off a minister’s desk and made someone else’s responsibility. That is why it is important that ministers and ALBs work hard to establish good working relationships. Transparency and early warning should not prejudice independence – but should allow both sides to be ready to confront joint problems. That means openness and regular discussions between the minister and the chair. Too often these are seen as optional extras – and ministers duck meetings even with the most important of their ALBs. That means that when a crisis hits, the relationships are not in place to manage it.

It is not just Dominic Cummings who is baffled by the UK’s system of arm’s-length governance. So are MPs and ministers. Officials aren’t sure where to draw the line between control and autonomy. Understanding isn’t helped by the perpetuation of oxymorons like ‘non-ministerial department’ (whose top team are all selected by ministers) and ‘executive non-departmental public body’ (which usually get their money from departmental budgets, and receive strategic direction from departments who ‘sponsor’ them).

Ten years ago we pointed out that the government’s approach to arms-length bodies was an incomprehensible mess that blurred accountability. The confused response to the coronavirus pandemic has highlighted the consequences of that lack of clarity. Maybe it can also act finally as a catalyst for reform.