"It was not an accident": The Crisis of Accountability in Public Authorities

“One of the operating principles of authorities is that the possibility of error is simply not taken into account." Franz Kafka

Sir Brian Langstaff’s inquiry into the use of infected blood in UK medical settings reports on a terrible scandal that, as Sir Brian concludes, “was not an accident”. This report has brought into focus the manner in which the first instinct of public authorities faced with a clear failure is a combination of hiding, denial and cover-up. And that it takes such a long time between the realisation of scandal and any light being shone onto the problem. The Infected Blood Inquiry concerns itself with events from the 1970s to the 1990s and it is approaching 30 years since the practice ended in the NHS. This would seem terrible were it not that, when inquiries are instituted - unless there is some low political motive for having them -  is always following a long and drawn out campaign by the victims or relatives of victims. My wife’s uncle, along with many others, recently received the Nuclear Test Medal given to British servicemen and women who were exposed to dangerous levels of radiation during 1950s nuclear bomb tests in the South Pacific.

Public authorities seem to adhere to the principle that they are incapable of error. A principle, first identified by Franz Kafka in his cynical satire of bureaucracy, The Castle:

“One of the operating principles of authorities is that the possibility of error is simply not taken into account. This principle is justified by the excellence of the entire organisation and is also necessary if matters are to be discharged with the utmost rapidity”

There is no error and, even if there were error, focusing on this rather than on the conclusion of the case would only delay matters intolerable. At best we can expect the public authority in question to quietly put the error right but it is just as common for that authority to continue making the error because it refused to admit that it was doing anything wrong in the first place. So the infected blood scandal parades from “we didn’t know we were doing it” through “we know we are doing it but it isn’t really a problem” to “yes we did it but it was all someone else’s fault long ago”. As a result the Prime Minister Rishi Sunak, who wasn’t even born when the misuse of infected blood began, stands blinking before the cameras giving a sincere apology and promising compensation.

Sam Freedman, a former special advisor in government and a fellow of Britain’s Institute of Government wrote recently about the “Anatomy of Policy Scandals” (noting in doing so that policy scandals and political scandals are not the same) where he points to several possible - likely - policy scandals. Freedman describes circumstances where public authorities know of the problem but are sort of hoping it goes away such as school and hospital buildings beyond their lifetime and featuring crumbling concrete. We don’t, Freedman observes, know the full scale of the risks in these cases but we do know that, for example, there is a real (if unquantifiable) risk of a school building collapsing onto some children.

Just as was the case with council housing in the 1960s and 1970s, we built schools and hospitals without recognising that buildings have a lifetime and will need renewing or replacing. The error was that the public authorities in question (and anyone who has paid attention while they were a school governor will know this) did not put in place the means to fund that necessary renewal or replacement. Cullingworth Village Hall, in contrast, budgets to have, at the end of the hall’s expected lifetime, a fund sufficient to pay the cost of renewal and replacement. 

The problem, however, is not simply about physical infrastructure but rather about how specific attitudes and assumptions about the victims colour the response from public authorities. In the case of Hillsborough, the presumption was that football fans were a problem and that the disaster could be safely paid at the door of fan behaviour rather than bad policing. Similarly, the grooming and exploitation of working class girls in places like Keighley, Bradford and Rotherham, was blamed on the girls. They were “streetwise”, “knew what they were doing”, and as the Guardian reported in 2004:

"In the case of alleged sexual exploitation of young women in Keighley, social services and the police have been conducting extensive enquiries for the last two years. A number of girls have been interviewed, aged mainly between 13 and 16. We have found no evidence of systematic exploitation. Some of the girls admitted having relationships with older men but they described them as their boyfriends and did not feel they were being exploited."

We now know because of multiple court cases that there was what could only be called ‘systematic exploitation’ and that the police, social services and education were aware of the problem. Being picked up, plied with drugs and rink then repeated raped by, on occasion, dozens of strangers is an odd sort of ‘having an older boyfriend’. We have had a series of local investigations - Manchester, Telford and Rotherham - that all point to systematic failures by public authorities but, as yet, no real admission by those public authorities of serious, egregious error.

We could play a game of finding other possible scandals - council housing, adult social care and the NHS are all ripe with such possibilities. And we could follow Freedman’s lead by pointing to the decline in investigative reporting and other challenges to power. But there is still the terrible truth that bureaucracies will always deny, hide or deflect when faced with a challenge to failures of policy. And that these reactions lead inevitably to obfuscation and cover-up. The Post Office Horizon scandal wending its way through a long enquiry at the moment illustrates all of these problems. The Post office denied there was a problem, it hid evidence that there might be a problem and people involved deflect accountability.

It is this last problem, the deflection, denial and avoidance of accountability, that represents the biggest problem. I’ve written before about how public officials, whether elected or appointed, seem dedicated to avoiding responsibility for matters nominally under their purview. Modern governments (in the UK and elsewhere) also have a bewildering web of boards, panels, and agencies to manage services overseen by an equally bewildering collection of regulatory agencies, scrutiny processes and review bodies designed to provide a semblance of accountability. Rather like the surveyor in Kafka’s Castle, the result isn’t honest responsibility but an endless process of buck passing while officials hope those asking questions go away.

“The result of this complicated set of accountability mechanisms is that objective failures by state agencies do not result in any holding to account, let alone any change in direction or leadership. We have seen plenty of services failings, from the worst such as the Mid-Staffordshire Hospitals scandal or the Croydon tram crash, to repeated failures such as water pollution and social housing conditions. At a local level we see the disasters of local energy companies like Robin Hood Energy and the forced takeover of children’s services in places like Bradford. Despite institutional admissions of failure, there is in all this precious little to suggest that the people responsible, the leaders of these public agencies, are held to account.”

In theory the buck stops with the politician in charge but has any politician since Lord Carrington done the honourable thing faced with abject failures within their portfolio? Given that the media gives airtime on the infected blood scandal to former Secretary of State for Health, Andy Burnham, here are the conclusions of the Francis Inquiry into the Mid Staffordshire regarding matters when he was a health minister:

“Between 2005 and 2008 conditions of appalling care were able to flourish in the main hospital serving the people of Stafford and its surrounding area. During this period this hospital was managed by a Board which succeeded in leading its Trust (the Mid Staffordshire General Hospital NHS Trust) to foundation trust (FT) status. The Board was one which had largely replaced its predecessor because of concerns about the then NHS Trust’s performance. In preparation for its application for FT status, the Trust had been scrutinised by the local Strategic Health Authority (SHA) and the Department of Health (DH). Monitor (the independent regulator of NHS foundation trusts) had subjected it to assessment. It appeared largely compliant with the then applicable standards regulated by the Healthcare Commission (HCC). It had been rated by the NHS Litigation Authority (NHSLA) for its risk management. Local scrutiny committees and public involvement groups detected no systemic failings. In the end, the truth was uncovered in part by attention being paid to the true implications of its mortality rates, but mainly because of the persistent complaints made by a very determined group of patients and those close to them. This group wanted to know why they and their loved ones had been failed so badly.”

What we saw was evidence, not merely of “appalling care”, but of the comprehensive inability of the NHS and government more generally to identify poor quality of care. All these systems of accountability exist but, for some reason, completely failed to identify any problems during an extended period of examination. The cynic, of course, would say that they weren’t intended to provide any actual accountability but to give the impression that people are held to account while providing those people with plausible deniability at all times. The process described in the Francis Report is simply that, a process designed to give the impression that ‘Foundation Trust’ status was a special status only granted to the best trusts rather than the central element of the then government’s policy for NHS reorganisation.

The central failure of our polity isn’t that the media lacks power or has power but exercises it badly but that we have too few politicians that take their role seriously enough to scrutinise those planning, directing and delivering public services. We witnessed recently, for example, senior politicians cross-examining the head of the civil service where their primary focus was to quiz him about his membership of a private club that didn’t admit women. Of all the things that MPs needed to quiz Simon Case about, the Garrick Club should not have featured. Yet this sort of questioning is more common than any kind of forensic probe into the direction and management of public services.

Worse, when politicians do take up shocking cases of public sector failure, they are often treated badly by colleagues who see them as rocking the boat. This is illustrated by the wholly negative response within the Labour Party to Sarah Champion raising the problems of street grooming in Rotherham or to Rosie Duffield questioning the giving of puberty blockers to children. The career of David Davies has been interrupted by his insistence on asking challenging questions of public authority leaders about civil liberties. Politicians are seen as part of the awkward squad if they push too hard at issues cutting close to possible or actual failures in public administration. And you have to wonder if we’d have gained a great deal if MPs and the media, instead of investigating Boris Johnson’s cake consumption had, instead asked difficult questions about the social cost of lockdown, the efficacy of mask mandates and the impact of our financial response to Covid 19 on the economy.

There is a malaise in our public services and it is hard to see how this might be rectified. To do so would require more than the high level risk analysis Sam Freedman suggests, it would require the dismantling of the structures we use to deliver public services so as to allow for better scrutiny and improved accountability. It would probably require fewer regulatory agencies and inspectorates with what remains much closer to and directed by elected people. Above all it would need the new scrutiny bodies to be better resourced and to have more power to direct action. At present the minister or council leader in receipt of a critical report can, legitimately, smile, say thank you and put the report in the circular filing cabinet beside his or her desk.