House of Commons - Public Administration

Select Committee on Public Administration Tenth Report

2 Civil service provisions

8. There is much to welcome in the Government's proposals for the civil service. The First Civil Service Commissioner told us that she welcomed the publication of the Bill and "agree[d] with the broad thrust of the provisions".[6] In Peter Hennessy's view, "the current Prime Minister deserves an enormous amount of credit for bringing this forward";[7] while Robert Blackburn wanted "to congratulate the Government on actually grasping this nettle and bringing forward constitutional reform in this area".[8]

9. It might be argued that, as an impartial professional civil service has now survived for 150 years on a non-statutory basis, Northcote and Trevelyan have been proved wrong in their view that without legislation their recommendations "would be imperceptibly, or perhaps avowedly, abandoned by their successors, if they were not even allowed to fall into disuse by the very Government which had originated them". Why then bother placing civil service values on a statutory footing? The First Civil Service Commissioner explained to us why she viewed the Government's proposals as more than a symbolic gesture:

The fact that, for example, the Commission would not be able to be wiped out at the stroke of a pen through an Order of Council is very important. If we had a regime which decided that, let us say, the Civil Service should become a political body, then not to have the core values of the Civil Service in relation to impartiality and objectivity on the face of the Bill would just allow that to take place. It is much more than symbolic and is actually very important in relation to the constitution of this country.[9]

10. The values of the civil service have survived for 150 years without legislation because the civil service they have created has served this country well, and this has been understood by Governments of all political persuasions. But, as Sir Robin Mountfield told us: "this is not a fair-weather Bill but meant to lay down the limits on what could happen if things went badly wrong".[10]

11. The purpose of putting the civil service on a statutory footing is to provide the service with some protection against the kind of government that might seek to undermine its core values. It is this kind of government that we have in mind when seeking to improve the draft bill. It is not enough to rely on the understandings that might exist now between civil servants, Ministers and the Civil Service Commissioners; it is important to envisage a situation in which those understandings may have broken down. This in our view is the whole purpose of civil service legislation, and the reason that it is required at all.

12. While the broad purpose remains the same, the detail of the Government's proposals for the civil service has altered to some extent since 2004. A summary of the differences can be found in the annex to this Report, and are discussed where relevant below.

13. We agree with the First Civil Service Commissioner that "there are some ways in which it [the draft bill] could still be improved".[11] We will suggest in this part of the Report how this might be achieved, considering one by one those sections of the draft bill relating to the civil service which have given us or our witnesses some cause for concern.

'A few clauses'

14. A point that applies across the board relates to Northcote and Trevelyan's belief that their recommendations could best be implemented through "a few clauses". The Cabinet Secretary has used this statement to counter suggestions that additional detail should be placed on the face of the bill:[12]

The challenge for Parliament is to stick by what Northcote-Trevelyan said so that we keep it very focused and allow the Civil Service the flexibility to meet what will be the challenges, most of which I do not know, going forward over the next 150 years.[13]

15. We appreciate the spirit of the Cabinet Secretary's remarks, but also see the need to ensure that a bill is not so pared down that it fails to protect the essential values of the British civil service. Sir Robin Mountfield has commented insightfully on what he describes as "barebones clauses":

The principal dilemma is how to resolve the tension between entrenching key permanent principles and maintaining management flexibility. It is important not to impede the ability of the Civil Service, and the political process, to evolve rather than to ossify in a changing environment. Yet some of the recent and current changes in that environment are precisely those that make it more desirable than previously to entrench key principles.[14]

We support the Government's intention to keep new civil service legislation focussed and limited to 'a few clauses'. As will become clear, however, our view is that a few clauses more are required to give adequate protection to the core values of the civil service.

Definition of a civil servant (clause 25)

16. Unlike the draft bill of 2004, which set out those bodies to which it would apply, this draft bill defines its coverage by seeking to set out those parts of the civil service to which it does not apply. We think that the Cabinet Secretary was mistaken when he told us that if the draft bill of 2004 had become law, "we would already be having to try and amend it in primary legislation" - secondary legislation would have sufficed to change the list - but we have no objection to either way of defining the civil service, so long as it is clear which public servants are civil servants and which are not.

17. The main practical difference between the two draft bills is that while the 2004 version covered the Government Communications Headquarters (GCHQ) "because there [was] no operational impediment to their inclusion", GCHQ is explicitly excluded from the latest draft bill, because it "operates within a separate statutory framework which provides structures for Parliamentary oversight and for the investigation of complaints while leaving [it] the operational freedom [it] need[s] to carry out [its] duties".[15] The Cabinet Secretary expanded to us on this point: "We have decided to treat all of the three agencies in the same way because all of the agencies are covered by separate legislation already so you want them to be together."[16] Staff of the intelligence agencies are the only civil servants not to be covered by the draft bill (other than the separate Northern Ireland civil and court services).

18. It is true that, unlike most of the rest of the civil service, GCHQ and the other Agencies are already established in statute, and also true that they have to operate under particular conditions that do not apply to most of the rest of the civil service. The legislation covering the Agencies sets out to ensure that their activities remain within set purposes, and it establishes complaints mechanisms for the public if they are concerned about these activities. There is, however, no statutory provision that staff at GCHQ should be recruited on merit; nor do they have statutory access to the Civil Service Commissioners or any other external complaints handler.

19. The First Civil Service Commissioner was concerned that under the draft bill, staff at GCHQ and the other Agencies would no longer be able to bring their concerns to her.[17] The Joint Committee may wish to explore further if the draft bill would have the effect of restricting access to the Civil Service Commissioners by staff of the intelligence agencies, and if so, whether this restriction is appropriate. The Committee may also wish to explore if there is a good reason for excluding the intelligence agencies from the statutory requirement that their staff should normally be recruited on merit.

Management of the civil service (clause 27)

20. The Prime Minister and Foreign Secretary currently have extensive powers to manage the civil service and diplomatic service, under Orders in Council made under the royal prerogative. In 2004 the Government set out on the face of its draft bill a list of these powers.[18] These were intended to be used to make rules and set levels (for example, of salaries) applying to sections of the civil service. They were not intended to allow Ministers to manage individual civil servants. This was made explicit in a sub-clause:

Nothing in this section confers—

(a) power to recruit, appoint, discipline or dismiss civil servants, or

(b) any other power for the day to day management of civil servants.[19]

21. The draft Constitutional Renewal Bill would also provide these same Ministers with the power to manage the civil and diplomatic services. However, these powers are not set out individually. There is simply a sentence stating that this would "cover, among other things, appointment and dismissal and the imposition of rules on civil servants".[20]

22. We have not been able to explore why the Government has changed its position so dramatically. Ministers need the ability to appoint and dismiss Special Advisers, but giving Ministers the general power to appoint and dismiss civil servants does not seem in keeping with the Government's commitment to a civil service recruited on merit and able to serve administrations of different political persuasions. This is a matter that the Joint Committee may wish to investigate further.

The Civil Service Codes (clauses 30-33)

23. Our draft bill would have provided in statute for the Civil Service Code to include the following duties:

a) a duty to serve the duly constituted Government with integrity, honesty and political impartiality;

b) a duty to discharge public functions reasonably and according to law;

c) a duty to deal with the affairs of the public sympathetically, efficiently, promptly and without bias or maladministration; and

d) a duty to act without fear or favour and with political impartiality in the provision of advice and the performance of public functions.

24. The Government's own draft bill in 2004 would have required civil servants "to carry out their duties for the assistance of the Government, Executive or Assembly as it is duly constituted for the time being, whatever its political complexion", and would have required the code to include the requirements that civil servants should carry out their duties:

a) efficiently;

b) with integrity and honesty;

c) with objectivity and impartiality;

d) reasonably;

e) without maladministration;

f) according to law.

25. The Government's latest draft bill is much less prescriptive in this area, and would provide only for the Code (together with the Diplomatic Service Code) to require civil servants to carry out their duties:

a) with integrity and honesty, and

b) with objectivity and impartiality.

26. Sir Robin Mountfield has suggested that a combination of these provisions "would get much nearer to what is required, without impinging on matters where management flexibility is needed". He has shown concern that the Government's provisions would "leave Ministers largely free to decide even the main principles of the Code" and fails to distinguish between "impartiality" in the treatment of citizens and "political impartiality". In his view, the draft bill has failed to capture an idea "central to the concept of a permanent and non-political civil service", namely that "civil servants must behave in such a way as to be able to secure the confidence of a future administration of a different political persuasion".[21]

27. Sir Robin has also suggested that the Code should be subject to debate and vote in Parliament. The Government's draft bill provides only that the Civil Service Code, along with the Diplomatic Service Code and Special Advisers Code, should be laid before Parliament. In contrast, our draft bill of 2004 would have provided for the prospect of a binding parliamentary vote against the Civil Service Code.

28. Any code which failed to uphold the core values of the civil service as set out in the draft bill would be open to legal challenge. We would therefore insist on providing for parliamentary approval of the Civil Service Codes only if primary legislation failed to encapsulate these core values adequately. There is one area in which the draft bill is at best ambiguous in this respect. We are not convinced that the definition of "impartiality" is sufficiently clear on the face of the draft bill. We recommend that the need for civil servants to be able to work effectively for governments of different political persuasions should be set out explicitly in primary legislation. These provisions would obviously not apply to special advisers; nor should they necessarily apply to civil servants appointed on short-term contracts under one of the exceptions from the requirement for selection on merit.

29. The Civil Service Codes set out the detailed ground rules under which civil servants must operate. We intend to continue to examine closely any substantive revisions to the codes, whatever the parliamentary procedure to which they may become subject.

Exceptions from appointment on merit (clause 34)

30. The draft bill would allow certain appointments to the civil service to be made other than on merit following a fair and open competition. The categories of these excepted appointments are:

a) appointments to be made directly by Her Majesty,

b) appointments to the diplomatic service as head of mission or as Governor of an overseas territory,

c) appointments of special advisers, and

d) appointments excepted by the recruitment principles.[22]

The issues around special advisers are well-rehearsed and rather different from the other categories; we deal separately with their appointment and role.[23] We consider below each of the other three excepted categories. Appointment on merit is central to ensuring an impartial and capable civil service. Any exceptions from this principle need to have an unimpeachable justification.

Appointments to be made directly by the Crown

31. This is a provision taken directly from the current Civil Service Order in Council. However, it seems there is some confusion as to which posts would be affected. The Cabinet Secretary told us that it referred to "Royal Household appointments".[24] Yet the Royal Household is not normally considered to be within the civil service, and is unlikely to fall within the scope of the draft bill. Civil service appointments which are made by the Crown include:

the Head of the Home Civil Service,[25]

ambassadorial appointments and governorships of Overseas Territories,[26]

certain statutory appointments, such as HM Commissioners of Revenue and Customs, the Forestry Commissioners and the Crown Estate Commissioners.

32. In most cases, it is unlikely that Her Majesty plays more than a constitutional role in the appointments process. Whoever is formally responsible for making civil service appointments, it strikes us as wrong that the Commissioners for Revenue and Customs (to take one example) should be appointed other than on merit. We invite the Joint Committee to explore this issue in more depth.

Senior diplomatic appointments

33. The First Civil Service Commissioner also drew our attention to the fact that the draft bill would exclude senior diplomatic posts from the principle of appointment on merit. We, like her, "would like to ask why".[27] The Cabinet Secretary's answer concentrated on a single case of unusual political sensitivity:

I think something like 99 and a half per cent of all diplomatic posts are done by fair and open competition and the exemptions are very, very rare. The one that I guess I was most involved in was when I was working for Prime Minister John Major when he appointed Chris Patten to Hong Kong. I think there were very specific political reasons why he felt that was the appropriate appointment at that time. So I am with you, I would want these things to be incredibly rare, very exceptional, and for specific political reasons.

He omitted to mention a number of other recent cases, generally involving the appointment of former Members of Parliament as high commissioners in countries including Australia, South Africa, and, most recently, Malawi. In none of these other instances has it been clear why a former politician was the most appropriate candidate for the post, which would normally have been given to a career diplomat. While the Cabinet Secretary has said that he "would want these things to be incredibly rare, very exceptional, and for specific political reasons",[28] nothing in the draft bill would provide this safeguard.

34. As the First Civil Service Commissioner put it, an appointment should be made "not ... as a prize but because they are the best person for the job".[29] There may well be occasions when the most suitable candidate for a diplomatic post might be someone from outside the diplomatic service, quite possibly a politician. This would not be contrary to the principle of appointment on merit. What people find objectionable is that the Prime Minister or Foreign Secretary should hand out diplomatic posts as a form of patronage.

35. In our recent Report on pre-appointment hearings, we suggested that there was "a strong argument for requiring a pre-appointment hearing—even a binding hearing" where Ministers intend to make public appointments "without following the usual processes, where normal practice and the public expectation are that these appointments will be made on merit".[30] The Government's response was to state that it did "not consider it appropriate for Parliament to be involved in these appointments", without providing any further rationale for its position.[31] We do not understand why it should ever be appropriate for the Government to make senior diplomatic appointments other than on merit following a fair and open competition. We call on the Government to make the public interest case for this form of patronage—if there is a case to be made—and we encourage the Joint Committee to consider whether this provision should remain in the draft bill. At the very least, it needs to be drawn more tightly to ensure that it could be used only very rarely.

Appointments excepted by the recruitment principles

36. The draft bill would allow the Civil Service Commissioners to "except" (exempt) certain appointments from the merit and fair and open competition requirements. The First Civil Service Commissioner explained how she expected this provision to be used:

What we see is there are sometimes short-term business needs, short-term projects of several months for example, sometimes secondments of up to two years, and we do also have to have measures in place to help the long-term unemployed or those with disabilities. We have a responsibility as an employer to make sure that we do not put in place procedures that are so rigid that we cannot allow, from time to time, appropriate alternatives. It is something we monitor quite carefully through our auditing departments, through our compliance monitoring regime, and one of the things that departments have to report to us is how they have used exceptions in the more junior posts.[32]

We can see merit in the provisions in the draft bill allowing the Civil Service Commissioners to exempt certain recruitments from the requirement for selection on merit on the basis of fair and open competition. We expect that they will be used sparingly. It is entirely appropriate that decisions of this kind should be taken by the Commissioners, rather than by the Government.

Special advisers (clauses 38 and 39)

37. Special Advisers have been a recurring theme of interest to us. As we have commented ourselves, "rarely can such a small group, fewer than ninety, even if the Chancellor's Council of Economic Advisers is included, have received such disproportionate attention".[33] We agree with the Government's contention that Special Advisers "have a valuable role to play in advising and assisting Ministers on Government policy" by adding "an important dimension to the advice and assistance available to Ministers while reinforcing the political impartiality of the permanent Civil Service".[34]

38. Our draft bill of 2004 would have provided for the total number of special advisers appointed by Ministers of the Crown to be subject to the approval of both Houses of Parliament. We also set out what we saw as the appropriate role of Special Advisers: that they should be appointed only "for the purpose of assisting the Minister, member of the Scottish Executive or Assembly Secretary who made the appointment", and not "for a period which extends beyond his term of office". We also made clear that Special Advisers should not be allowed to "(a) authorise any expenditure of public funds; (b) exercise any management function in respect of the civil service; or (c) exercise any statutory power".[35]

39. The Government's draft bill would not set a limit on the number of special advisers, but would require the Government to publish an annual report containing information about the number and cost of the special advisers appointed by Ministers of the Crown. As for Special Advisers' powers, the draft bill states that Special Advisers are appointed to "assist" a specific minister and provides that the appointment must end when the appointing Minister leaves office. There are, however, no other explicit limits in the draft bill to the powers of Special Advisers.

40. The Minister for the Cabinet Office told us that it would be "arbitrary" to attempt to set a limit to the number of Special Advisers, and that it would inhibit flexibility:

It is not my job to put a question to you but where would you draw that line? It goes back to Gus's [the Cabinet Secretary's] point about flexibility. The system needs to have flexibility to adapt to needs. ... In the end, a prime minister would have to answer to the court of public opinion on this question.[36]

41. Our other witnesses expressed concern that the combination of not enforcing a limit on numbers of Special Advisers and not clearly defining their powers risked undermining the other protections afforded to the civil service in the draft bill. The First Civil Service Commissioner suggested that ...

The way it is written at the moment actually you could run a coach and horses through the entirety of the Civil Service[37]

... while Sir Robin Mountfield has written that

the Bill should not legislate merely for fair weather. It may not now be the contemplation of either main party, but in principle it would be possible for a future government to sideline the Civil Service altogether and appoint large numbers of Special Advisers to run the administrative functions of government as well as the advice function.[38]

42. The Minister for the Cabinet Office reminded us that the terminology used in the Government's draft bill, which describes Special Advisers as appointed "to assist" their minister derives from our own draft bill.[39] This takes the phrase out of context, however, as our draft bill also set out clearly those functions that Special Advisers should not be allowed to carry out.[40] In 2004 the Government also saw a need to limit the powers of Special Advisers explicitly, mirroring the language we had used.[41]

43. The Government now apparently intends to rely on the terms of the Special Advisers code—amendable by Ministers without reference to Parliament—to define what assisting a Minister would mean.[42] This risks undermining the otherwise laudable decision of the Prime Minister that no special advisers should be allowed to exercise management functions, authorise expenditure or exercise statutory powers. (Previously two of the Prime Minister's own advisers had been allowed to do these things.)

44. It needs to be absolutely clear in primary legislation that no special advisers should be able to authorise expenditure, or to exercise either management functions or statutory powers. With this added protection, there would be no need for Parliament to control the number of Special Adviser appointments.

45. There may also be an argument, as Sir Robin Mountfield has suggested,[43] for legislating to require Ministers to consider the advice given to them by civil servants (whether or not they choose to follow this advice).

Status and powers of the Civil Service Commissioners

46. The Civil Service Commissioners are in effect the guarantors of the impartiality of the civil service by overseeing the system of appointments to the civil service and by considering complaints under the Civil Service Codes of conduct. For the First Civil Service Commissioner, "demonstrating our independence as a Commission is going to be key and we want to make sure that we have the relationship right between government and the Commission".[44] It is therefore crucial that any legislation should guarantee the independence of the Commissioners from the Executive.

47. There are three separate concerns in this respect about the provisions of the draft bill:

i. Would the process for appointing the Civil Service Commissioners ensure their personal independence from the Executive?

ii. Would the Civil Service Commission as a body have sufficient administrative and financial independence from the Executive?

iii. Should the Civil Service Commission have the power to undertake investigations into the application of the Civil Service Code other than on the basis of a complaint from a civil servant?

Appointment of the Civil Service Commissioners (Schedule 4, Part 1)

48. The draft bill provides that the First Civil Service Commissioner would be appointed on the recommendation of the Minister for the Civil Service, following consultation with the First Ministers for Scotland and Wales and with the registered leaders of the two opposition parties receiving the highest proportion of the national vote at the previous general election. This would not prevent the appointment of a candidate against the wishes of the statutory consultees. Our draft bill proposed a procedure designed to ensure that there could not be a partisan appointment. This would have involved the agreement of the Leader of the Opposition and a parliamentary resolution, in line with the appointment procedure for the Comptroller and Auditor General.[45] We are not convinced that consultation is an adequate safeguard to the independence of the First Civil Service Commissioner, and recommend that any appointment should also require the agreement of the Leader of the Opposition.

49. The other Civil Service Commissioners would also be appointed on the recommendation of the Minister for the Civil Service, but under the terms of the draft bill "the Minister must not make a recommendation without the agreement of the First Commissioner, unless the Minister is satisfied that it is appropriate to do so". The draft bill provides a strong protection (the agreement of the First Civil Service Commissioner) which is immediately breached by a massive loophole ("unless the Minister is satisfied that it is appropriate"). We suggest that the Joint Committee may wish to explore with the Government the circumstances under which it might be considered "appropriate" to make an appointment to the Civil Service Commission without the agreement of the First Civil Service Commissioner. Unless there is a strong justification for maintaining an exemption clause, we recommend that the draft bill should be clear that appointments of Civil Service Commissioners may only ever be made with the agreement of the First Civil Service Commissioner.

50. The Government has provided in the draft bill that the Civil Service Commissioners should be appointed on five-year non-renewable terms, in line with a recent recommendation of ours.[46] The Government's previous proposals would have provided for renewable three-year appointments. Appointment to longer, non-renewable terms of office will strengthen the independence of the Commissioners, and we welcome this provision wholeheartedly.

Administrative and financial independence (Schedule 4, Part 2)

51. This was one of the main concerns raised with us by the First Civil Service Commissioner:

Are we truly able to challenge, to take decisions, to be in control of our own budget, the staff we believe we need to appoint to the jobs that we know need to be done or indeed would there be undue interference from the Cabinet Office? If we have a senior staffing matter then we believe it is for the Commission to decide the level and appropriateness of the staff we need to appoint and not for that decision to be taken elsewhere.[47]

52. There are no obvious 'off-the-shelf' structures suitable for the Civil Service Commission. Non-ministerial government departments have many of the features needed to secure independence from ministerial interference, and a number of regulators have this status, but their staff are civil servants—which would be odd given the Commission's role in relation to the civil service. Under the draft bill, the Commission would be established as an Executive Non-Departmental Public Body (NDPB). Although this would give it a significant degree of operational independence, and would allow it to employ its own staff, it is left to the Government to determine "the sums ... appropriate for ... the carrying out of the Commission's functions". Moreover, when releasing this money, the Government would be able to "impose conditions ... about how some or all of the money is to be used". This is rather as if the water and sewerage companies were given control over the budget of the Office of the Water Regulator (OFWAT) and were able to impose conditions on OFWAT as to how this money should be spent.

53. It is worth noting that the costs of the Commissioners are extremely modest in central government terms, at around �1.2 million in 2007-08.

54. The First Civil Service Commissioner expressed some qualified concerns about the NDPB model.[48] Our concerns are less qualified. Sir Robin Mountfield has put it well: "for the regulator's resources to be limited by the regulated is in principle wrong".[49] The Civil Service Commission's job is to regulate the Executive. It is therefore not appropriate for the Executive to have the power to control not only how much money is made available to the Commission, but also how that money should be spent. Like the UK Statistics Authority, the Commission's budget should be set outside the normal spending review process. We note that the Charity Commission is expressly protected from becoming "subject to the direction or control of any Minister of the Crown or other government department" in the exercise of its functions.[50] A similar provision would be entirely appropriate for the Civil Service Commission. In our report on Ethics and Standards, we recommended that the budget for the Civil Service Commissioners should be made available in the same way as the budget of the National Audit Office—through Parliament, rather than through the Executive.[51] Sir Robin Mountfield agrees:

Direct Parliamentary provision, as with the NAO, seems the appropriate way forward given that, as with the NAO, it is precisely the Government which is being audited.[52]

Our concern is to ensure that, whatever model is used, and however that model might need to be modified, the Civil Service Commission should have complete financial and operational independence from the Government. We invite the Joint Committee to consider further how this independence might best be achieved.

Investigations into the application of the Civil Service Code (clause 32)

55. Although the Commission would have the power to conduct investigations into complaints made to it by civil servants, we have heard some concern that it should also have the power to investigate issues brought to its attention by other means. At present it requires the Government's approval, on the advice of the Cabinet Secretary. Indeed, this is a concern we have expressed ourselves on a number of occasions, most recently when responding to the Government's consultation in 2004-05.[53] Others who shared our view were former Cabinet Secretary Lord Wilson of Dinton, the Council of Civil Service Unions and the Civil Service Commissioners themselves:

No-one is suggesting that [Government Departments] should 'abdicate ... central responsibilities'. The suggestion is that there should be some form of external audit or inquiry where things may have gone wrong. This is quite a different matter. Enforcement of the Code must primarily be the responsibility of Parliament, and should be supported by the Commission with a power to make independent inquiry. (Lord Wilson of Dinton)

It is precisely in circumstances where departments may have failed to undertake their responsibility effectively that the Commission may well have a role in taking the initiative to conduct its own investigation. (Council of Civil Service Unions)

We continue to have concerns that individuals may be constrained from pursuing appeals for fear of the impact on their careers ... we have limited confidence in a mechanism which relies on civil servants taking the initiative. (Civil Service Commissioners)[54]

To the best of our knowledge, none of the responses to the Government's consultation revealed concerns about giving the Commission this independent investigatory power.

56. The current First Civil Service Commissioner told us that she is "on the fence" on this issue, her main concern being that:

unless that power had some proper limits to it, in terms of the inquiries that we could and should look at, the floodgates would simply open and that we would be asked, because of incidents reported in the media for example, by the public and by MPs to investigate all sorts of issues many of which would have nothing at all to do with the Code. I guess our nervousness is about the resourcing of that.[55]

57. She was certainly not as opposed to the power as was suggested to us by the Cabinet Secretary.[56] She remained worried that civil servants might be dissuaded from raising concerns "of any significance" through concern that it would affect their "career chances".[57] She also recognised that, despite her good working relationship with the current Cabinet Secretary:

Clearly regimes change, people change, and that is why we need to explore this matter at some length so we put something in place that is not so draconian to be unworkable but at the same time offers some proper protection.[58]

58. We remain convinced that the Civil Service Commission should have the power to conduct independent investigations into the operation of the Civil Service Codes, other than in response to specific complaints from civil servants, and without the need for Government consent. The draft bill currently requires the Commission to consider a complaint properly made by a civil servant.[59] This would not be appropriate for other kinds of complaint, as it would indeed 'open the floodgates' and overwhelm the Commissioners by forcing them to "respond to every irresponsible demand for an investigation".[60] It should, however, be possible to give the Commission discretion to investigate matters. As Sir Robin Mountfield has suggested, this would "confer an independence" on the Commission which it currently lacks.[61] It would then be for the Commission to decide whether to consult with the Government before beginning such an investigation. We invite the Joint Committee to consider further how the Civil Service Commission might be enabled to conduct independent investigations at its discretion, both in terms of the draft legislation and of any additional resources that the Commission might require.

Provisions not included in the draft bill

Promotion on merit

59. One of the main concerns raised with us by the First Civil Service Commissioner was that the draft bill failed to enshrine the principle of promotion on merit as well as appointment on merit:

This is one of the issues that civil servants talk to us about quite often. The Civil Service Management Code is quite clear: it says that departments and agencies must ensure that "all promotions and lateral transfers follow from a considered decision as to the fitness of individuals, on merit, to undertake the duties concerned". An opportunity will be missed, we think, if the principle of promotion on merit and its regulation were not included in the Bill.[62]

The risk to be avoided is that promotion comes to depend on contacts or political persuasion rather than on ability. Sir Robin Mountfield has claimed that "in practice influence over promotions is one of the main ways in which patronage is now exercised; there is effectively no constraint on it at present".[63]

60. In his evidence to us, the Cabinet Secretary's answers in this area were not wholly satisfactory. He pointed to the need to have "managed moves" below the senior civil service, and suggested (rightly, we suspect) that the Civil Service Commissioners would not want to be directly involved in promotions below the top 200 posts which they currently cover.[64] However, to establish a statutory principle of promotion on merit would not prevent 'managed moves' on level transfer; nor would it require direct input from the Commissioners in individual promotions.

61. Sir Gus also pointed out that the civil service already operates a system of promotion on merit: "for the whole of the half million Civil Service that is what we do".[65] This is precisely the kind of established custom that is worthy of protection in statute. The fact that the civil service also already operates a system of recruitment on merit has not prevented the Government from proposing to put it into legislation. The principle of promotion on merit which already exists within the civil service deserves to be placed on a statutory footing as much as the principle of appointment on merit. This need not prevent ministerial involvement in helping to define the relevant qualities for a post, nor in helping to identify the best candidate to fill it.

Ministerial obligations

62. The Government's draft bill in 2004 would have required the Civil Service Code to include a provision requiring ministers "not to impede civil servants in their compliance with the code". There is no equivalent requirement on ministers in the latest version of the draft bill.

63. Sir Robin Mountfield has described this as "illogical", pointing out that "many of the pressures on political neutrality come not from civil servants wanting to act in a partisan way, but from Ministers wanting them to do so". He has proposed that legislation should entrench two of the provisions in the Ministerial Code, namely the requirement that Ministers should respect the political neutrality of the civil service; and the requirement that they should "give fair consideration to informed and impartial advice from civil servants, as well as to other considerations and advice, in reaching policy decisions".[66]

64. The Minister for the Cabinet Office disagreed:

There would be two implications of doing what Sir Robin recommended in his testimony to you. One would be to put into statute ministers' obligations, and one might think that was a good thing, but the other implication of it would be to make justiciable the question of compliance with the Ministerial Code, in other words put into the courts potentially the question of whether ministers were or were not complying with the Code. I think ministers should be held to account by Parliament. Ultimately, as we know, it is for the Prime Minister to choose who is and who is not in government, but ministers are held to account by Parliament and in the court of public opinion. To open up the question of whether a minister complied with the Ministerial Code into judicial review does not seem to me to strike the right balance between the proper functions of the Executive, Parliament and the courts in this country. Personally, I do not think that would be the right way to go.[67]

I think any prime minister who came along and said, "I am going to change the Ministerial Code and ministers no longer have to uphold the political impartiality of the Civil Service and ask the Civil Service to act in a way which conflicts with the Civil Service Code", that prime minister would be held to account in the court of public opinion, as I say.[68]

65. We suspect it would be possible, despite what the Minister of the Cabinet Office told us, to impose a legal obligation on Ministers without making any of the Ministerial Code justiciable. However, it is certainly arguable that civil servants could use a legal requirement to act impartially as a shield against any requests from ministers that they should act otherwise (so long as this requirement is adequately defined). We agree with the Government that the question of whether a minister is failing to respect the political neutrality of the civil service is better addressed as a political issue than a legal issue. However, this is an issue the Joint Committee may wish to consider further.

Machinery of Government changes

66. We are in a continuing conversation with the Government on the way in which significant changes are made to the structure of the civil service.[69] There is currently next to no parliamentary oversight of proposed changes to the machinery of government, which can be disruptive and costly, yet which Prime Ministers can and do make without any form of parliamentary check. Recent examples have included the creation of the Ministry of Justice, taking on responsibilities from the Home Office, and the reallocation of the responsibilities of the Department for Education and Skills between a new Department for Children, Schools and Families and a Department for Innovation, Universities and Skills. We note Sir John Bourn's recent remarks:

The machinery of government is in constant turmoil—new departments and authorities being set up and older ones shut down or amalgamated. Such churning costs millions of pounds and is largely irrelevant to the programmes and projects that have to be implemented. It should be stopped.[70]

67. In the second of the three Reports we have published recently on this subject, we recommended that the Government should bring forward "measures to allow Parliament effective scrutiny of changes to the organisation of government itself" as part of the draft Constitutional Renewal Bill.[71] The Government's argument for not doing so has been that Government Departments have no legal existence other than through their Secretary of State. Thus to constrain the Prime Minister's ability to organise Departments would effectively constrain his ability to reorganise his Cabinet.[72] We have since described this long-standing situation as "putting the cart before the horse".[73] We recommend again that the draft Constitutional Renewal Bill should include measures to change fundamentally the way that Government is structured, by giving statutory functions to Government Departments, rather than to interchangeable Secretaries of State. We invite the Joint Committee to support our position.

Civil service: conclusion

68. In this part of the Report, we have made a number of suggestions for improvements to the draft bill. It is fair to say, however, that, even as it stands, were the draft bill to become law, it would be a welcome improvement on the current situation, which affords no statutory protection whatsoever to the core values of the civil service. The Government has produced two draft civil service bills in the last four years. We trust that our recommendations will receive due consideration; but it is now time to move from consultation to legislation. We welcome the announcement that a bill is expected to be in the Queen's Speech this autumn.

6 Q 2 Back

7 Q 49 Back

8 Q 49 Back

9 Q 3 Back

10 Q 49 Back

11 Q 2 Back

12 Qq 95, 118 Back

13 Q 95 Back

14 Ev 11 Back

15 Cm 7342-I, para 175 Back

16 Q 136 Back

17 Q 27 Back