House of Commons - Public Administration

Select Committee on Public Administration Third Report

Report

1. In November 2004 the Government published a draft Civil Service Bill, and a related consultation document.[1] This implemented the recommendation of the Committee in its First Report of the 2003-04 Session, which contained our own draft Bill. This Report sets out the Committee's response to the Government's consultation.[2]

The UK Civil Service: a tradition of merit

2. The United Kingdom Civil Service is highly unusual in being composed almost entirely of people recruited on the principle of merit. In many democracies, political appointment without competition is relatively common, and often reaches the highest ranks of the public service. In this country, government work is generally carried out by officials who are in the Service because they have been recruited through open competition. We believe that this tradition, begun in the 1850s when William Gladstone asked Stafford Northcote and C E Trevelyan to consider the future of the Civil Service, leading to reforms which replaced patronage with merit, is one of the most important features of the constitution. It needs to be preserved and strengthened. This is not in any way to suggest that the Service must be regarded as unchangeable; like all public services, it must strive to meet the most exacting standards of performance and be subject to radical reform when necessary.

A draft Bill to be welcomed

3. Northcote and Trevelyan considered that legislation was needed to give their reforms a firm constitutional anchor. In this context we believe that many features of the Government's draft Bill are to be welcomed. Most important, it carries forward the process of putting the Civil Service on a statutory footing. The consultation exercise will allow for the draft Bill to be refined so that it can reflect the emerging consensus about the future of the Civil Service.

4. The consultation document sets out the five principles which the Government would wish to see applied when Civil Service legislation is being considered. These principles include the need for such legislation to command cross-party support and the importance of avoiding anything which would hamper the Civil Service's flexibility and responsiveness. These are principles which can be agreed by all concerned with the future of the Service. The draft Bill sets out the minimum content of the Civil Service Code, closely following the wording recommended by the Committee. We are glad that the Government accepts that the Crown employment nationality provisions contained in the Committee's draft Bill need to be enacted, although the current Government draft does not include them. This is because there is an existing private member's bill which contains identical provisions. We recommend that should the current private member's bill fail to become law, these provisions should be included in any Civil Service Act.

The need for legislation

5. However, the consultation document seems to doubt the value of legislating to regulate the Service. It applauds the non-statutory approach which has "stood the test of time" since the mid-1850s:

"In fact, the Northcote Trevelyan principles have survived and prospered even though neither Gladstone nor any of his successors thought it a priority to give them legislative force. Over the past 150 years, Ministers have managed the Civil Service under the executive authority of the royal prerogative without being subject to statute law or parliamentary approval. But Parliament's general authority as the ultimate sovereign body and source of the Government's right to govern has ensured that over this entire period successive governments have taken seriously Parliament's concerns about the organisation, management and culture of the Civil Service".[3]

6. The Government's document then goes on to say that "The period has been marked by a solid and largely uncontested political consensus on the benefits of an impartial and politically neutral permanent Civil Service recruited and promoted on the basis of merit." The Government suggests here that there is a general consensus that regulation of the Service by means of Parliament's "general authority as the ultimate sovereign body and source of the Government's right to govern" continues to be adequate.[4] It is unusual, even bizarre, for a government to publish a draft Bill as a clear prelude to legislation, while still seeming to suggest that legislation is not necessary or desirable.

7. It is indeed clear that the old political consensus on the special values of the Civil Service has recently been complemented by a new consensus. This sees the need for early legislation to give those values greater force, as part of a growing perception that the Service's values are under threat. Sir Robin Mountfield, formerly Permanent Secretary at the Cabinet Office, told the Government in response to its consultation that Civil Service principles "have been under increasing pressure for some years" from governments of both main parties. He gives a number of examples, including allegations that in the early 1990s there was Ministerial influence on senior Home Office appointments, and says that there are "strong and disturbing signs" that "civil servants are increasingly excluded by Ministers and special advisers from the crucial stages of the policy formulation process" which reduces "the extent to which policy proposals are subjected to rigorous analysis and impartial challenge". According to Sir Robin, the conclusions of the Butler Inquiry show that civil servants were drawn into "prejudicial relationships with Ministers and political advisers" in the months before the war with Iraq.[5]

8. This sense of a set of values under pressure accords well with the views of other witnesses who gave evidence to us during our original inquiry into Civil Service legislation. These included Lord Wilson of Dinton, a former Cabinet Secretary, who said that "if major changes are to be made, they should be the subject of political debate and Parliament should have oversight of the basic framework within which the Service operates. I think that gives Parliament and the public confidence that, at a time of considerable change, the basics of the Civil Service are being observed".[6] Lord Lipsey judged that an Act would be "highly desirable, in order to entrench the virtues of the evolving British civil service in something more solid than custom, practice and whim".[7]

9. The political parties appear increasingly to be agreed on the need for an Act. Apart from the Government's often-stated intention to legislate, the two main opposition parties are in favour of a statute, and the Conservatives last year introduced a Civil Service Bill in identical terms to the one proposed by the Committee, a move which was supported in the House by the Liberal Democrats.[8] The Government notes that the Committee on Standards in Public Life has joined our Committee in arguing for early legislation.

10. Other parts of the consultation document itself demonstrate clearly why legislation is necessary. In several important passages, the document sets out the arguments for statutory underpinning of the neutrality of the Civil Service. The document says that:

"the codification in the 1990s of the constitutional and practical role of civil servants and special advisers marked an important step in clarifying and publicising the values that govern the conduct of government business and the administration of public services in this country. The next logical step in entrenching these values and protecting against the risk of some future Government departing from them arbitrarily would be to provide for the Codes to be made under a statutory power and to be subject to parliamentary scrutiny".[9]

11. As if to remove any doubt as to the value of legislation, the document continues:

"A key policy purpose of the Bill is to ensure that whichever Government happens to be exercising stewardship over the Civil Service at a particular time can have complete confidence that it has its loyal and professionally committed support. But at the same time, that Government of the day must recognise that the same support will in due course be extended to another Government of a different political persuasion … The Government believes that it is most important that the politicians should uphold their side of this bargain, and will abide by the current position that Ministers and their special advisers should "uphold the political impartiality of the Civil Service and not ask civil servants to act in any way which would conflict with the Civil Service Code".[10]

12. The logic of the Government's position is clear: that politicians can only "uphold their side of the bargain" with civil servants if there is a Bill whose "key policy purpose" is to secure cross-party agreement on the principles of the Service.[11] To make this a reality, the Government proposes a Bill which would "facilitate good working relations [between Ministers, career civil servants and special advisers] by seeking to maintain and improve the clarity and precision of the limits within which special advisers work".[12] To this end, the Bill "would clarify what special advisers can do" and "it would also clarify what special advisers cannot do".[13] We welcome this restatement of the need for clear and statutorily-set boundaries for the work of those small numbers of civil servants who are not appointed on merit by fair and open competition.

13. The argument for legislation is also well made in the document's discussion of the need to support the central role played by the Civil Service Commissioners in upholding the principle of merit in appointments. The Government's draft Bill provides for the establishment of a Civil Service Commission as an independent statutory body "whose primary responsibility will be to uphold the principle of selection on the basis of fair and open competition".[14] The document continues, in a significant passage:

"Putting the Commission on this statutory basis would remove the possibility of any government being able, without reference to Parliament, to dilute or even overturn the merit principle … In view of the Commission's central role in upholding this core principle, its independence must be beyond dispute across the political spectrum. This means that there must be complete confidence in the person appointed as First Civil Service Commissioner. The First Commissioner will be appointed by Her Majesty upon the recommendation of the Minister for the Civil Service following statutory consultation with the leaders of the main Opposition parties and the leaders of the devolved Administrations …".[15]

14. We note that here the Government makes the essential case for statutory means to uphold the Commission's independence, which "must be beyond dispute across the political spectrum".[16] The logic of this passage—and it is one with which we, and most of the political parties, agree—is that only statutory provision will suffice to ensure that all parties will maintain the consensus.

15. There are those, including Sir Robin Mountfield, who advocate the placing on Ministers of statutory obligations to act with propriety towards civil servants and to take proper account of their advice. This would give statutory support to the stipulations of paragraph 58 of the Ministerial Code, which states that "Ministers have a duty to give fair consideration and due weight to informed and impartial advice from civil servants, as well as to other considerations and advice, in reaching policy decisions; a duty to uphold the political impartiality of the Civil Service, and not to ask civil servants to act in any way which would conflict with the Civil Service Code".[17]

16. We are not minded to recommend that statutory form needs to be given to the obligations of Ministers towards their civil servants. It is right that the Prime Minister should continue to be the final judge of Ministers' compliance with the Code. Yet the question of the effectiveness and enforcement of the Code is a real one, and we will continue to keep it under active review.

Unintended consequences?

17. More widely, the Government harbours doubts about the possible "unintended consequences" of enacting Civil Service legislation, and in particular the potential loss of the "welcome flexibility" offered by the present non-statutory arrangements in respect to the management of the Service.[18] The suggestion is that it would be difficult in any Act to avoid trammelling the freedom of Ministers to reform and adapt the Civil Service to the changing demands and expectations of the public.

18. Yet this apprehension is shown to be unfounded by the appearance of the Government's own draft Bill. The Government expresses complete confidence that the Bill is workable in the sense that it is limited in effect and contains nothing which would damage the flexibility of the Civil Service: "[the Government] shares with the current advocates of legislation the consensus that any such legislation must not inhibit the Civil Service's continuing evolution, development and reform. Certainly, the draft Bill that the Government is bringing forward for consultation is confined to securing the non-partisan status of the permanent Civil Service … ".[19]

Areas of divergence

19. Although we offer it a general welcome, the Government's approach differs in a number of ways from that taken by the Committee, and raises a number of other concerns. These include:

i. The powers of the Civil Service Commission

The Government does not believe that the Civil Service Commission should have the right, recommended by the Committee, to undertake inquiries into the operation of the Civil Service Code and the Code of Conduct for Special Advisers. The Government's argument is that "it must ultimately be for management in Departments to ensure the effective application and operation of these Codes". The Government continues "Management cannot abdicate such central responsibilities to outsiders." Where it is necessary to inquire into the operation of the Codes, the inquiry should be undertaken instead by the Cabinet Secretary, who would "report the outcome to the Minister for the Civil Service and other Ministers as appropriate".[20] We disagree with the Government on this point and maintain our view that the Civil Service Commission should be given the power to undertake such inquiries. The Government's argument against the involvement of "outsiders" in such staff matters would also be an argument against the long-established involvement of the Civil Service Commissioners in the recruitment and promotion of civil servants. The power to undertake such inquiries would be an entirely logical and modest extension of the powers already successfully exercised by the Commission, and we are surprised at the Government's opposition to this proposal.

ii. Role of special advisers

We believe that there should be further clarification of the references to the work of special advisers in the footnote to paragraph 39. The paragraph says that the Government's draft Bill would provide that "no special adviser can authorise expenditure, exercise line management supervision over permanent civil servants or discharge any statutory power".[21] However, the footnote to this passage appears to blur the line: "The Government believes that in order to do their jobs effectively special advisers need to be able, on behalf of their appointing Minister, to commission work from civil servants. It does not believe that this amounts to exercising a line management function especially as such commissions must reflect departmental priorities and the impact on the workload of the department."[22] We believe that the distinction between "line management" and "commissioning work" would be much easier to sustain in principle than in practice. What, for instance, if a permanent civil servant judges that work commissioned from him or her by a special adviser is unduly burdensome, or would interfere unreasonably with other work for which he or she is responsible? Sir Robin Mountfield fears that the commissioning of work would lead to special advisers "acting as conduits for instructions from ministers". This would imply that special advisers "would replace permanent civil servants in the private secretary role" and "confuse lines of accountability". We described in "These Unfortunate Events" the dilemmas that can from time to time arise when a special adviser exerts or tries to exert effective executive power over permanent civil servants.[23] We believe that the Government must clarify this issue during the passage of the Bill.

iii. Number of special advisers

The Government does not believe that an upper limit should be placed on the overall number of special advisers. This differs from our view that although an arbitrary cap is not desirable, a mechanism should be established for the approval by each House of Parliament of a maximum number of special adviser appointments. The Government doubts that "the important constitutional and management issues raised by the emergence of special advisers are somehow susceptible to resolution or control by the imposition of an upper limit on their numbers".[24] Instead, the Government proposes that an annual report should be prepared for Parliament, detailing the "names, responsibilities, activities and cost" of special advisers.[25] Consistently with this approach, the Government envisages that the Bill would remove the current cap on the number of special advisers for ministers in the Welsh Assembly and the Scottish Parliament.[26] We acknowledge the force of the Government's argument that the nature of the functions and responsibilities of special advisers is far more important than their overall numbers. We do not accept the case for an arbitrary cap on numbers, but maintain our support for parliamentary approval of the total number. Our recommendation would, we believe, increase transparency and help to maintain public confidence, without in any way drawing Parliament into detailed management questions.

iv. Role of Parliament in approving the Civil Service Code

The Government considers that the role of Parliament in overseeing the regulation of the Civil Service should be restricted. The Government's draft Bill (Clause 5(3)) contains a provision that the Minister for the Civil Service (the Prime Minister) should "lay the Civil Service Code before each House of Parliament". This low-key scrutiny (via the negative resolution procedure) is significantly less powerful than that proposed by us, which recommended that a draft of the Code should be laid before each House "and if either House of Parliament passes a resolution requiring the Code or any alteration in it to be withdrawn the Minister for the Civil Service shall withdraw the code or alteration and, where he withdraws the code, shall prepare a Code in substitution for the one which is withdrawn".[27] We continue to believe that it would be entirely appropriate for Parliament to debate and have the opportunity to amend the Code. This is at the heart of the role we envisage for Parliament as guarantor of the values of the Civil Service. At a time of radical change in public services, such a role is even more important, and Parliament needs to be able to discharge it properly. We maintain our belief that our approach is the only one that would be effective.

v. Informing Parliament about the Service

The Government disagrees with our recommendation that Civil Service management orders should be made by statutory instrument. The Government argues that this would "interpose a third party in matters that are properly handled as part of the employer-employee relationship".[28] This treats the running of the Civil Service as if it were wholly a matter of private law between the Crown and its servants, with Parliament seen as a third party. We continue to believe that our recommendation of a statutory instrument procedure has merit. The parliamentary procedure we propose is not elaborate and would not involve any debate; it is simply a way of ensuring that both Houses are properly informed about the operation of a Service for which they vote the funds. It is hardly an accurate reflection of the case to suggest that the operations of the country's Civil Service, in which the public has such a strong interest, are equivalent to a normal "employer-employee relationship".

Definition of a civil servant

20. The issue of the definition of a civil servant is an important one in the context of the draft Bill. The Government addresses it indirectly, by proposing a comprehensive listing of every part of the Civil Service to which the Bill should apply. This list is contained in a Schedule to the Bill. The Consultation Document sets out the Government's conviction that, because of the particular nature of their work, the Secret Intelligence Service and the Security Service should not be covered by any of the proposed Codes. On the other hand, the staff of GCHQ would be covered by the provisions of the Bill, "because there is no operational impediment" to their inclusion.[29] We accept the logic of that decision.

From a draft to a Bill

21. We believe that the momentum towards legislation must be maintained. The next step is for the Government to consider the results of the consultation and then submit a further draft Bill to Parliament. Early scrutiny by a joint committee of both Houses might then be most appropriate, although the exact mechanism is less important than the political will to see the legislation through and to achieve a cross-party consensus. We hope that a Civil Service Bill will be enacted early in the next Parliament.

Conclusion

22. There is wide support for a Civil Service Bill. It has had a protracted genesis; but there is now no reason why there should be delay in converting draft into actual Bill. This Committee demonstrated in its own draft Bill that it was perfectly possible to give legislative protection to certain key constitutional relationships without impeding change and development in the Civil Service. We welcome the fact that the Government has now accepted this in bringing forward its own draft Bill. Although we believe that it is capable of improvement in the ways we suggest, its implementation will represent a significant constitutional moment. We would expect this moment to come in the first session of the next Parliament.

1 Cabinet Office, A Draft Civil Service Bill, Cm 6373, November 2004 Back

2 First Report of Session 2003-04, A Draft Civil Service Bill: Completing the Reform, HC 128-I Back

3 Cm 6373, para 13, p 5 Back

4 Ibid Back

5 Sir Robin Mountfield, response to the Cabinet Office consultation Back

6 HC ( 2002-03) 837-i, Q23 Back