The Leaseholder Cladding Scandal and When Ministers Direct

Chris Game

You probably caught at least something of the Commons ‘cladding’ debate last Monday (1st Feb), and almost certainly some of this week’s fallout.  Called by Labour on one of its designated ‘Opposition Days’, the debate sought “urgent” Government action to end the scandal of lease-holding flat owners, living in unsafe, unsaleable, uninsurable properties, being forced to pay unaffordable sums of money for the removal of flammable cladding.

And, if 43+ months after the Grenfell Tower tragedy qualifies as “urgent”, we finally got it this Wednesday, in the form of a statement from Robert Jenrick, Secretary of State for the whole thing – Housing, Communities and Local Government.

Important as that statement obviously is, neither its content nor even its questionable squareability with the PM’s most recent pledge that “no leaseholder should have to pay for the unaffordable costs of fixing safety defects that are no fault of their own” are the central concerns of this blog, which by comparison – Reader Alert! – are arcane verging on nerdy. For the record, however, Jenrick’s three key proposals are for:

  • a further £3.5bn of government grant to pay for the removal and replacement of dangerous cladding systems on buildings over 18 metres tall;
  • for buildings below 18 metres, a long-term “financing solution” of a government loan to the owner, repaid by leaseholders, with a payment cap of £50 per month;
  • a new levy for developers, to become applicable when planning permissions are submitted for high-rise developments.

Back, though, to last Monday. Labour’s motion, introduced by Shadow Housing Secretary, Thangam Debbonaire, called for the Government to establish a new, somewhat Starmer-sounding, cladding taskforce that would make buildings with dangerous materials safe and protect leaseholders from the costs. Initial respondent for the Government was, remarkably, the Minister of State for Europe and the Americas, Chris Pincher, not due formally to assume office as Minister of State for Housing for another 12 days. The so-called – and here so appropriately – wind-up was done by Eddie Hughes, Junior Minister for Rough Sleeping and Housing.   

As for the not generally publicity-shy Jenrick, he apparently “stayed away entirely”. Which inevitably reinforced the impression, conveyed by his being openly accused of “incompetence” in this matter by his own backbench ‘colleague’, that neither he nor the Government as a whole were any more bothered than they had appeared previously about even being seen to regard this scandal as a major priority.

For the record, Monday’s motion was passed by 263 votes to nil. The Ministers seemed unable to convince anyone that the Government was addressing the issues with anything like the requisite urgency. But Conservative backbenchers, increasing numbers of whom had already been seeking, without noticeable Labour support, to amend the Fire Safety Bill to avoid remediation costs being passed on to leaseholders, chose to abstain, rather than give HM Official Opposition unearned credit.  

At which point I must temporarily side-line cladding, while explaining how, almost by chance, I happened upon one of the latest updates in the Institute for Government (IfG)’s occasional series of ‘Explainers’ – on Ministerial Directions (MDs) – a topic about which previously, I confess, I’d bothered myself relatively little.  

Poor show perhaps, for someone actually endeavouring to teach students about British politics. My rationalisation would have been that, while broadly aware of what MDs were/are and their obvious importance, I sensed that their usage wasn’t that frequent, and that anyway, until “the rules” were changed and GOV.UK was launched in 2011/12, most such directions would indefinitely have remained state secrets.

Unwittingly, I was actually right about the numbers – as shown in one of the IfG’s several excellent graphics: an average of under two a year while I was teaching, compared to 31 in the past three years and 19 in 2020 alone. The explosion, and indeed MDs generally, seemed worth further inquiries.

min-explainers

First, then, what exactly are ‘Ministerial Directions’?  In this case, just what it says on the tin: formal directions from Ministers instructing their department to proceed with a spending proposal – and in so doing overriding the principled objection of the most senior civil servant: the Permanent Secretary (PS), who is also the ‘Accounting Officer’, accountable to Parliament for how the department spends its money.

And it’s not just a clash of wills, or opinions. There are specified criteria any spending proposal must meet: that it’s within both the department’s legal powers and agreed spending budget, meets “high standards of conduct”, constitutes value for money, and stands a feasible prospect of being implemented as specified within the intended timetable. If a PS has doubts about a proposal meeting any of these criteria, they must seek explicit direction from the Minister, who thereupon writes a ‘directing’ letter and takes accountability for the decision.  Interestingly, that’s often how it seems to work: less a Minister’s wanting to spend overriding the horrified protests of a cautious civil servant than the civil servant seeing or at least agreeing the need to spend but constitutionally requiring the Minister’s say-so.

British politics being conducted in the ‘civilised’/secretive way it generally is, even the traditionally rare occasions on which such clashes come to a head are rarely much publicised, but there are exceptions. Remember Joanna Lumley’s ‘Garden Bridge’ over the Thames – proposed as a largely privately-funded project, but taken up with characteristic enthusiasm by the then Mayor of London and given significant pre-construction funding by the Department for Transport?  At which point the Transport Secretary, Patrick McLoughlin, came back wanting more – arguing to the ‘Accounting Officer’ (the PS)  and in his Ministerial Statement that there were more than mere transport benefits to be considered and that the Department’s pre-construction commitment should be increased by up to £15 million.  It duly was, and of course the Garden Bridge is today the “iconic tourist attraction right in the heart of our capital city” that the Mayor and Minister predicted. Sorry, is it not?

A more specifically local governmenty Ministerial Direction was that the MHCLG should not recover from councils £36 million that, through an error in civil servants’ methodology, they had been overpaid for participating in 100% business rate retention pilots (2017/18). Nice one, Sajid Javid!

What had particularly caught my interest, though, was that noticeable rise in MDs over the past 2-3 years and the positive explosion under the Johnson Premiership, certainly since the arrival of Covid.  In fact, the IfG’s graph reminded me almost immediately of the well-known view of one of the ugliest buildings in London – the Vauxhall Tower overlooking St George Wharf – and, as it happens, just two bridges down-river from the IfG.

tower

There have already been 14 Covid-related Ministerial Directions – worth possibly a blog in their own right – but I’d gone in looking for cladding business, and there it was, in May 2019 – two months pre-Johnson. James Brokenshire, Jenrick’s predecessor as Housing and Communities Secretary, had made clear both his and PM Theresa May’s view that leaseholders should not have to pay – even assisted by the kind of loan scheme announced this week.

It’s worth reading the full exchange of letters between Secretary of State Brokenshire and the Permanent Secretary, but the following extract from Brokenshire’s will convey at least the flavour:

“I  understand  that,  in  making  these  choices,  the  taxpayer  will  pick  up  the  vast  majority  of remedial costs.  However, I have considered that against the safety implications for residents and the need for pace.  I consider those two factors to be more important.”

The only thing, however, seemingly throughout this whole wretched business, to have happened at any pace was Brokenshire’s own departure, like that of Theresa May herself, to the backbenches. A pity – somehow I don’t feel he would have taken last Monday afternoon off, or that nearly 20 months later there would still have been no Government policy.

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Chris Game is an INLOGOV Associate, and Visiting Professor at Kwansei Gakuin University, Osaka, Japan.  He is joint-author (with Professor David Wilson) of the successive editions of Local Government in the United Kingdom, and a regular columnist for The Birmingham Post.

Public Inquiries, Public Value?

Justine Rainbow

Public inquiries are a frequent element of democracy in the UK: yet the way that media and public view them can be contradictory.  For some, they are the pinnacle of independent investigations and calls for inquiries almost inevitably follow any tragedy or scandal.  For others, they represent an enormous drain on public funds whilst delivering little tangible benefit.

I recently completed research considering the value of public inquiries from the viewpoint of those running them, examining whether government control over nominally independent inquiries is too great, and assessing the effectiveness of inquiries through the lens of public value theory, championed by Mark Moore in his 1995 book on creating public value.  My research began with analysis of the literature, including earlier reviews of inquiries by – among others – the Institute for Government, the National Audit Office and a select committee investigation into the impact of the Inquiries Act.  Picking out a number of common themes, I tested their validity among a small group of interviewees including current and former inquiry secretaries and solicitors, panel members, and a handful of other senior staff.

My research identified two main areas in which inquiries delivered less value than they should: in the start-up phase, and in the implementation of their recommendations.  All my interviewees agreed that the first months of an inquiry are harder than they should be.  Government, perhaps keen to demonstrate non-interference, can be slow to provide support and guidance on how to run an inquiry.  Lessons learned reports – written by secretaries at the end of each inquiry – tend to be lost in government recordkeeping systems.  Despite persistent calls for a centralised support unit for inquiries, from inquiry insiders and outsiders alike, have been resisted by successive governments for two decades until last year when a small unit was finally established.

The other main area of limited effectiveness is at the other end of the inquiry’s lifespan, often once the inquiry itself has ceased to exist.  Recommendations are non-binding: both public and private organisations can reject or ignore recommendations; those that are accepted can be allowed to quietly fade away once public and media interest wanes. A lack of monitoring means that the impact of inquiries is invisible to most.  Non-implementation of recommendations is perhaps the main area of ineffectiveness and public value failure for too many inquiries.

Public value theory provided a framework for analysing the extent of government control over inquiries.  Its concept of the ‘strategic triangle’ – developed by Philip Heymann in the late 1980s and refined by Moore – suggests three elements that should make an effective organisation: mission, external support and operational capacity.  Criticism arises in the literature that government has too much control over the scope of inquiries (their mission) and can close an inquiry (withdraw their external support) at any time.  However, the officials I interviewed found neither of these to be a significant problem and therefore not a barrier to delivering effective public value. Scope is discussed and agreed with the independent chair, and a minister is highly unlikely to close an inquiry that they have established, particularly when support from victims and the wider public is high.

However, interviewees were concerned over implementation of recommendations, which can be rejected by public and private sector organisations alike, with little transparency of reasoning.  Some felt there should be a dedicated body or bodies responsible for monitoring implementation and enforcing transparency; others felt monitoring mechanisms already exist – Parliamentary Select Committees for example – but are poorly utilised.

Operational capacity also tends to rest – initially – with government.  Many inquiries are staffed by officials with no prior inquiry experience and my interviewees had generally found it difficult to work out ‘how to do it’.  Guidance issued by the Cabinet Office is out of date and provides limited assistance.  Commercial frameworks to assist inquiries with procuring their specific needs, such as hearing centres or evidence management systems, do not exist.  Ultimately, new inquiries have to rely on the willingness of other inquiries to help them get started; indeed my research found that inquiries could be much more proactive in disseminating guidance and helping new organisations establish themselves rapidly.

But on the subject of government control, public value theory argues that it is right for inquiries – with their typically high expenditure – to remain within the control of elected politicians, even if this blurs the lines of independence.  With the beginnings of a centralised support unit for inquiries and an evolving network of intra-inquiry knowledge transfer, the problems around start-up may diminish in the future.  Monitoring recommendations is a trickier subject – the main difficulties being the identification of an appropriate body with the authority to demand responses from both public and private sector organisations.

For those of us running inquiries, we naturally believe that they deliver value.  Most critically they provide a degree of catharsis for victims and their families.  The information made available by inquiries also allows the public to assess facts for themselves. But we also recognise that the early steps could be much more efficient and that recommendations don’t always make the impact we hope for.  The apparently simple steps needed to improve these two elements (more support from government and establishment of a monitoring body) are in fact complicated but I look forward to the future of inquiries with some confidence – things are improving and there is a drive in the inquiries community to lobby for and work towards better things.

 

References

Moore, M. (1995) Creating Public Value: Strategic Management in Government (Harvard University Press: Cambridge, Massachusetts).

National Audit Office (2018). Investigation into Government-Funded Inquiries (House of Commons: London).  Available at https://www.nao.org.uk/wp-content/uploads/2018/05/Investigation-into-government-funded-inquiries.pdf,

Norris, E & Shepheard, M. (2017) How Public Inquiries Can Lead to Change. Available at: https://www.instituteforgovernment.org.uk/sites/default/files/publications/Public%20Inquiries%20%28final%29.pdf

Parliament. (2014) House of Lords Select Committee on the Inquiries Act 2005 The Inquiries Act 2005: post-legislative scrutiny, London: The Stationery Office Ltd. Available at:  https://publications.parliament.uk/pa/ld201314/ldselect/ldinquiries/143/143.pdf

 

Justine Rainbow is Head of Information Management at the Independent Inquiry into Child Sexual Abuse.  Ten of her twenty years as a civil servant have involved working with or for public inquiries.  During her MPA with the University of Birmingham, her dissertation focused on the public value of inquiries.