Memorandum from Sir Robin Mountfield
CONSTITUTIONAL RENEWAL BILL—CIVIL SERVICE CLAUSES
I have been an advocate of Civil Service legislation for a long time. I therefore welcome the publication of these draft clauses. They are, however, in my view, barebones clauses—too limited in definition and scope to achieve what should be their main objectives.
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 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. To cite just three:
(a) the increasing mobility of staff into, as well as out of, the Civil Service, reflecting both increased job mobility in the economy generally and the desirability of strengthening the skills and experience available to the Civil Service. This is greatly to be welcomed; but mid-career entrants to the Civil Service, sometimes for short tenure, have not necessarily absorbed an intuitive sense of the proper boundaries of involvement in partisan matters. Codification and clarity are therefore more necessary than before.
(b) Similarly, increased openness in government: this is desirable in itself; but it exposes civil servants much more than before to individual scrutiny and risks engaging them in advocacy or association with partisan policies. Again clarity is needed.
(c) The old monopoly of civil service advice to ministers is, rightly and inevitably, gone; the Civil Service operates in a more plural world of multiple sources and contestability of advice. But instead of civil service advice being one source of advice—central and important because impartial—it has in some cases come to be marginalised: by Special Advisers who have become principal advisers rather than an additional source, or by outsourcing to consultants thought to bring more expertise or independence. Clarity is needed about the role of civil service advice in this developing situation.
In my view there are six areas where the draft clauses deal inadequately with this need for clarity, and need to be developed, in ways which entrench key permanent principles and Parliamentary scrutiny without impeding managerial flexibility.
1. MINIMUM CONTENT OF THE CIVIL SERVICE CODE
The use of the Code as the principal mechanism is right. By using the device of the contract of employment, the Bill leaves civil servants within the ambit of general employment law, with its protections for employees and employers, instead of creating a special class of employee with attendant risks of privilege, detriment and ossification. However, the purpose of the Bill generally is to entrench principles and constrain the arbitrary use of the prerogative outside effective parliamentary scrutiny. So provisions which leave Ministers largely free to decide even the main principles of the Code do not meet the requirement. The present clause 32 contains only brief guidance, compared for example to clause 6 of the Select Committee's draft Bill, or to clause 5 of the Government's own draft Bill of 2004. The word "impartiality" serves as an example. The present Civil Service Code distinguishes helpfully between "impartiality" (paragraphs 11-12), for example between individual citizens to whom civil servants are providing services, as most of them do, and "political impartiality" (paragraphs 13-14) which is a core principle for senior officials in the policy advice field. A combination of the Select Committee and 2004 Draft Bill provisions would get much nearer to what is required, without impinging on matters where management flexibility is needed.
However I think it is highly desirable to include, as a specified feature of the Code, that civil servants must not only serve the elected administration of the day, but must also behave in such a way as to be able to secure the confidence of a future administration of a different political persuasion. That is in the Code (paragraph 13): and it is so central to the concept of a permanent and non-political civil service that it should be entrenched.
2. RECIPROCAL OBLIGATIONS ON MINISTERS
It is illogical, in legislation designed to entrench the key principles of political neutrality of the Civil Service, for there to be no obligation on ministers. Indeed 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. The Committee on Standards in Public Life and the First Civil Service Commissioner both take the view that the Bill should contain a direct obligation on ministers to uphold the political impartiality of the Civil Service. That is also my view: indeed I believe the substance of paragraphs 5.1 and 5.2 of the Ministerial Code (which has no statutory authority whatever, and is simply an emanation of the prerogative this Bill is intended to constrain) should be written into the Bill. This should cover not only respecting the political neutrality of the Civil Service (paragraph 5.1 of the Ministerial Code), but also the requirement to "give fair consideration to informed and impartial advice from civil servants, as well as to other considerations and advice, in reaching policy decisions" (paragraph 5.2). Given recent events such as the decisions about the Iraq war, and more generally increased marginalisation of civil service advice especially at the centre of government, I think the case for a legislative provision on these lines is very strong.
The Government's 2004 draft Bill (clause 5(10)) contained a provision that the "code must require Ministers not to impede civil servants in their compliance with the code". It is unclear how a Code binding on civil servants could obligate ministers; but in any case even this inadequate provision is missing from the present Bill.
3. STATUS OF THE CIVIL SERVICE CODE
The Bill requires merely that the Code should be laid before Parliament. It remains therefore largely a prerogative instrument. It should be subject to affirmative resolution procedure, giving Parliament both a direct role in its content and an increased incentive to scrutiny.
4. SPECIAL ADVISERS
The Bill contains neither any specification whatever for the Special Advisers Code (other than that there should be one) nor a limit on numbers. Minimalists will argue that the stated intention of ministers that should be no more than two per Cabinet Minister, plus more in Number 10 and the Treasury, and that they should not manage civil servants, is adequate protection. But the Bill should not legislate merely for fair weather. It may not now be in the contemplation of either main party, but in principle under the Bill as now drafted, 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. That should not be possible without serious Parliamentary scrutiny.
The 2004 draft Bill contained some provisions in this area, albeit inadequate. The Consultation Document at that time said (para 39) "the draft Bill provides that no special adviser can authorize expenditure, exercise line management supervision over permanent civil servants, or discharge any statutory function". Even this was qualified by the highly undesirable caveat, in a footnote, that they should be able to commission work from civil servants on behalf of ministers on the basis that this was not exercising a line management function—a caveat criticised by the Committee on Standards in Public Life. The 2004 draft Bill (clause 16(8)) however only said on this point that Special Advisers were not to exercise "any function relating to the appraisal, reward, promotion or disciplining of civil servants", which would allow Special Advisers considerable scope to give instructions to civil servants, and which therefore would not achieve what the Consultation Document claimed. In my view the present Bill should specify explicitly that Special Advisers cannot give or convey instructions to civil servants. If this provision were included, together with the requirement in Clause 39 for an annual report to Parliament on numbers and cost, I do not think it is essential to have a Parliamentary control of the actual numbers.
5. POWER FOR THE CIVIL SERVICE COMMISSION TO INITIATE INQUIRIES
I can see no plausible case for the Civil Service Commission to be constrained in initiating inquiries on Civil Service ethical matters. This may in practice not be a problem at present; but any regulator's powers influence not only the way it could behave, but the way in which it is regarded. Such a power would not require the Commission to respond to every irresponsible demand for an investigation; but it would confer an independence which, in this respect, it now lacks. The issue of resource constraint is clearly a factor: for the regulator's resources to be limited by the regulated is in principle wrong. 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.
6. OTHER MATTERS
There are three other matters I consider should be dealt with:
(i) External appointment to senior positions: present arrangements may in practice provide a workable compromise between ministers' understandable interest in top appointments and the need to avoid personal or political patronage. It would provide a much sounder basis, however, if the Civil Service Commission were required in the Bill to prevent ministers from exercising choice between candidates certified as "above the line".
(ii) Internal promotions: 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. The Civil Service Commission should have powers to monitor practice and to intervene in the most senior cases.
(iii) Dismissal: dismissal is another potentially powerful way of exercising ministerial power in a partisan way. The present Civil Service Management Code (para 11.1.1) says: "Because of the constitutional position of the Crown and the prerogative power to dismiss at will, civil servants cannot demand a period of notice as of right". The use of the very word "prerogative" indicates how inimical this is the purpose of the present Bill. Ministers should not have this unconstrained power.
(iv) Civil Service Commission requirements on political neutrality: the time-honoured principle is appointment on merit. That, alongside the traditional practice of permanent, and usually career-long, appointment carried with it the natural meaning that anyone appointed was judged capable of serving alternative administrations. Some recent appointments, however, have been made—on acknowledged personal merit—of people who could not plausibly work for an alternative administration. The Civil Service Commission should be required, in the Bill, to recommend appointment on merit only of those people judged able and willing to serve future administrations of a different political persuasion, or at least to observe the entrenched provisions of the Civil Service Code.
April 2008
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