Examination of Witnesses (Questions 80-92)
PROFESSOR ROBERT BLACKBURN, PROFESSOR PETER HENNESSY AND SIR ROBIN MOUNTFIELD
24 APRIL 2008
Q80 Chairman: That would not be as effective or as good as making sure we get the Attorney's advice.
Professor Hennessy: No, it would not, but if they will not listen to you, if you so recommend, why not propose that?
Chairman: That has been discussed, and we may return to it.
Q81 Kelvin Hopkins: On the last point, our Whips would like to say who is appointed, I am sure.
Professor Hennessy: Oh, you must not leave it to them. Absolutely not!
Q82 Kelvin Hopkins: As long as the Whips control who is appointed, then they would be happy about it! I agree with almost everything you have been saying, and it is very comforting, and I think we have made great progress, certainly on this Committee over a number of years now, but Peter laid great emphasis on the importance of Parliament challenging the Executive and being much more vibrant and strong, and certainly I think a number of us on this Committee have contributed to doing that—I think all Government members actually voted against the war, for example—but is it not putting too much on Parliament if you have a wilful Prime Minister who imposes his will over the Civil Service, tries to squeeze out opposition, implants special advisers with control over civil servants, tries to control the selection processes for his own party members in Parliament and then expects Parliament to press the nuclear button in a sense? If one constantly votes against the Government one is in trouble oneself but also one runs the risk—and the Whips always threaten this—of bringing the Government down. They say, "If you defeat the Government we will have a general election next week, you have a marginal seat, you will not be an MP any more"—they use that pressure constantly. They have been using it this week with certain members. They do not bother to talk to me but with others they do; I know, they tell me. Our draft Bill is better than the Government's version, but do we not really need to make the Civil Service stronger? Get it back, in a sense? Give it independence and strength? I am a bit of a golden-age person myself and I liked the Sir Humphrey model better than what we have now. Then they could speak truth unto power, and we would have people in the Civil Service who are not just businessmen slotted in at a high level to speak the language of Blair or Thatcher but are genuine servants of the State who see themselves as special and different from people from outside; they have a loyalty to the State, a loyalty to the citizenry, and are strong, independent and objective advisers to Governments. Do we not really want to work hard to build up the strength and independence of the Civil Service, rather than rely too much on Parliament?
Professor Hennessy: I am a great believer in that. It is not "any other job" being a Crown servant, and when you were talking to the First Commissioner about who owns the Civil Service, it is the Crown. The reason we can have a Civil Service that transfers almost exactly from one administration to another is the binding notion of the Crown. It may be a fiction in some people's eyes but it is the best way to do it. It links the police, the intelligence world—everybody who is a Crown servant—and I think being a Crown servant is different, not just because you get less pay than almost anybody except university professors but because it is a job that really is different and special. You must let elected ministers prevail, of course, in the end, because that is the deal, unless it is illegal or they are taking short cuts or indulging in deliberate deception. You have the Accounting Officer's note. If they are using money you voted for specific purposes in Parliament for something dodgy, the Accounting Officer has the duty to point it out to the Committee on Public Accounts. That is how we could have stopped a Watergate here, if we had had one. The Cabinet Secretary of the day as Accounting Officer for the secret vote, as it was then called, could have said: "This money has not been voted for you to bug the Opposition's campaign offices", if the Cabinet Secretary had been alerted. But I think it is a human factor, and you have put your finger on it. There is no point signing up for these special Crown service jobs unless you have a notion of their specialness, but a lot of people, if they are battered by special advisers or the Government has an overwhelming majority and the Cabinet are not exactly doing what they are required to do either, settle for a quiet life. As you know, you cannot dissent too often on too many things without being regarded as a bit of a fruitcake, you have to be discriminating, but peace and war? There is nothing higher. And Parliament is the last best hope. It has to be.
Q83 Mr Prentice: On this Accounting Officer question, we have this huge controversy at the moment over the 10 pence tax rate with five million people losing out, one in five households. Is there any obligation under the Accounting Officer rules for the Permanent Secretary of the Treasury to have perhaps entered—I do not know what it would be called—a note of dissent or a note of caution? Something like that?
Professor Hennessy: I do not think so. Robin is the man to ask.
Sir Robin Mountfield: Accounting Officer minutes are about legality and propriety and value for money.
Q84 Mr Prentice: Not in terms of policy cock-ups?
Sir Robin Mountfield: Very difficult. A point can be stretched occasionally—after all, Accounting Officer minutes are very rarely done in practice. Occasionally it is threatened. Indeed, I threatened it myself on more than one occasion.
Professor Hennessy: Give us an example!
Q85 Chairman: Yes. Give us, as it were, the circumstances in which one might do that.
Sir Robin Mountfield: It would be contrary to my professional obligations.
Q86 Chairman: You are a free man!
Sir Robin Mountfield: Not as regards my duty in the past. It is difficult. It is a nuclear option and it does not happen very often, but the nuclear power operates in effect as a deterrent; it does give the Accounting Officer some opportunity to warn ministers if they are getting near the edge. Just to make one point on Mr Hopkin's point about the Civil Service having some more entrenched protection. The problem seems to me to be that right through this whole set of issues is the tension between, on the one hand, the necessary pragmatism and flexibility and the fact that the Civil Service has to work for the Government of the day, and on the other hand the need to entrench certain key principles. Now, the trouble is that, of course, principles are never going to be justiciable in a court. All they can do is provide us with a trip wire for Parliament to have some opportunities to scrutinise, and I think that is really the objective of these provisions.
Q87 Kelvin Hopkins: Would the Bill that the Government is proposing be improved by having some of the components in our draft Bill, like the definition of the Civil Service and what civil servants are? I think the wording of the Civil Service Code, Part II about the ethics of the Civil Service, would make a real difference. We would retain flexibility and whatever but it would improve the Bill, but the Government seems to be slightly drawing back from some of the recommendations.
Sir Robin Mountfield: That is one of my main points, that the Bill needs to provide rather more of the detail of what should be in the Code, without limiting the Government's flexibility in a managerial sense which is very important. The world is changing. Somebody referred to the porosity of the Civil Service, the movement in and out—that is the reality, that is going to happen and is the world we live in. The rules have to provide for that but there are, nevertheless, underlying principles that need to be observed right through that, which are going to need to survive for a very long time.
Q88 Mr Prentice: The Government is proposing to transfer some prerogative powers to Parliament, and there is a reference in Volume I of this that the Government is conducting an internal scoping exercise on Executive prerogative powers. Is it not astonishing that there is no list of prerogative powers that we can look at?
Professor Hennessy: Yes.
Sir Robin Mountfield: I think the prerogative power in principle is everything except where elsewhere specified, is it not?
Professor Hennessy: Pretty well, and also in the 50s a very senior Permanent Secretary to his Private Secretary said: "The royal prerogative is what I say it is", and it is a wonderful portmanteau. This list you have is way ahead of anything we have ever had before. In fact, Walter Bagehot said famously, which Robert will remember because we had to read it when we were kids, that somebody should write them down; nobody knows which have lapsed. This is 1867 and is still in use. It is still a great mystery. The British constitution is a magical mystery tour.
Professor Blackburn: With all due respect, these you will find in any constitutional law text book, and they probably were taken from one, I would think. You need to understand about the prerogative, that it is, as one writer said, the residue of arbitrary authority that at any particular time is left in the hands of the Crown. The prerogative is just a fancy word, if you like, for a part of the common law which recognises and accepts that government has certain inherent powers which have existed since time immemorial to do whatever is necessary to govern the country, and those concern the fundamentals of any government such as defending the realm, keeping the peace, international relations, appointment of ministers. I am not sure that you can have an exhaustive list because the common law will accept that in certain circumstances government has got to do whatever is necessary in the circumstances. The prerogative in the common law is the other side of the coin for not having a written constitution, because the ultimate authority in the State with us is the Crown and what the common law allows the Crown to do.
Q89 Chairman: So we are trying to constitutionalise the prerogatives, at least those that seem to matter particularly.
Professor Blackburn: Yes. This is the way the Government is proceeding, and that is all that can be done at the moment.
Q90 Mr Prentice: Finally, we were talking in the earlier session about gaps in the proposals that are being presented to us. There is a big gap, is there not, in machinery of government changes? We have just produced a report on this. 11 Would you like to see the Bill amended to lay obligation on the government of the day to have the approval of Parliament before Whitehall, the departments, are reconfigured, or should we be bothered about that?
Professor Blackburn: My view is there should be an affirmative resolution before major structural changes are made. I think not every machinery of government change needs to go through a laborious process like that, but I think you could certainly describe in some provision the key machinery of government changes that should receive an affirmative resolution.
Professor Hennessy: I think, too, the last time I can remember that Parliament created a department was the Ministry of Defence Act 1946. It is the only Ministry I can think of that you cannot abolish without primary legislation and I should look at why that is the aberration. The Minister of Defence existed, Churchill was Minister of Defence during the war but he did not have a Ministry, and it was created to co-ordinate but Attlee made it into a statutory matter.
Sir Robin Mountfield: It had been the practice, I think, at one stage. The Ministry of Power, its predecessor the Ministry for Fuel and Power and, I think, maybe the Ministry of Agriculture had statutory powers at one stage.
Professor Blackburn: The Bill is a sort of ad hoc collection of five matters, so finding some common thread between them is a bit tenuous, though most of them have some prerogative aspect to them. The public order matter is out on a limb. It would make sense having machinery of government changes in the same Bill that deals with the Civil Service.
11 Public Administration Committee, Eigth Report of the Session 2007-08, Machinery of Government Changes: Further Report, HC 514
Q91 Mr Walker: Professor Hennessy, on patronage, you talked about supine ministers. How about this for an idea? All Members of Parliament, regardless of what they do, whether in the Executive or back benches, get paid the same money. You will end the spectacle of people clinging on for grim life for their additional £30-70,000. It used to be that when you got in the Cabinet and you left the Cabinet that was the end of your political career. We now have the spectacle of people sitting in the Cabinet, then taking junior ministerial jobs outside the Cabinet. It may not fly but it does seem that a lot of people, when there is thirty grand extra in the pay packet, forget their principles.
Professor Hennessy: I am not sure that will work because the Brits will always settle for status rather than reward, and we talked about that when I came to see you about the Honours system. People will do anything for a little ribbon and a dash of enamel, and I fear that is the reality.
Kelvin Hopkins: And a chauffeur driven car.
Q92 Chairman: And the twist in that is that, knowing that, you can so use the system to produce benevolent outcomes. That is, in a sense using the culture to produce outcomes that you would not otherwise use. Anyway, that is a different story. We have only scampered across some of the territory but we have taken on board some of the points you have given us about what is good here, and also what we need to focus on to improve. This is the only chance we are going to get for quite some time to get our hands on some of these issues, and we want, within limits, to make sure we get them right, so not just today, thank you, but if you want to tell us other things too as we go through this process we would be very grateful.
Professor Hennessy: The British Academy are going to have a crack at it in June, so I will make sure you are invited to that.
Chairman: Thank you very much indeed for this morning.
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