Examination of Witnesses (Questions 93-99)
RT HON ED MILIBAND MP AND SIR GUS O'DONNELL KCB
29 APRIL 2008
Q93 Chairman: I am delighted to welcome Ed Miliband, Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster, and Gus O'Donnell, Secretary of the Cabinet and head of the Home Civil Service, who have come to help us with our look at the Government's draft Constitutional Renewal Bill, particularly those parts of it which have interested this Committee and on which we shall report to the House. Thank you very much for coming along and talking to us about it. Do either or both of you want to say anything by way of introduction?
Ed Miliband: Very briefly, if possible, Chairman. Can I start by thanking you for the invitation to come to this Committee. Could I also put on the record our thanks to this Committee for all the work that they have done over a number of years in the whole area of constitutional renewal. You described in a recent debate in the House of Commons us having looked at your back catalogue in order to inform the Constitutional Renewal Bill, and I think that is an absolutely fair comment. I wanted to start by saying I think your work has been extremely useful to us. Let me make three specific points about our session today before handing over to Gus. The first is that the Civil Service aspects of the Constitutional Renewal Bill which we are going to be discussing today are very much a part of an overall approach to constitutional renewal which recognises that Parliament does need to be strengthened in relation to the Executive. That was very much the thrust of the statement that the Prime Minister made when he took office last summer. In a way, putting the overall operation of the Civil Service on statute and taking it away from being part of the prerogative is a recognition of that. Secondly, on the Bill itself, I think this is consistent with our approach over a number of years in relation to the Civil Service. The first act of the new Prime Minister, I believe, was to remove the Orders in Council which gave an executive role to special advisers. You have seen in recent years the publication of a new Civil Service Code, updated Codes of Conduct for ministers and, indeed, for special advisers and, of course, in a way the Bill is the most important development so far, putting the values of the Civil Service and its operation into legislation. The third and final point I would make, Chairman, is it is very important that this Bill does not simply try and preserve the Civil Service in aspic because I do think that the Civil Service, and in a way Gus has led the way on this, has shown that it needs to evolve in relation to the diversity of its numbers, the way it understands delivery of public services, the way it brings in outside expertise. Very much our intention in framing the Bill was to provide sufficient flexibility for the Civil Service to adapt and respond to the big challenges that it and the country faces. In a way, I think that is the biggest challenge facing the Civil Service and, indeed, the Government over the coming years. The final thing I would say before handing over to Gus is this is a draft set of clauses that we have published and we very much welcome your input before we come up with the final product.
Q94 Chairman: That is interesting. Just on the last point you made, and it is something I was going to ask you about, you are really quite open to taking even substantial amendments, are you, to the draft Bill?
Ed Miliband: Definitely we are very interested in what you and others have to say about the Bill.
Q95 Chairman: Thank you very much for that.
Sir Gus O'Donnell: Could I just endorse what my Minister said about the role of this Committee in this Bill. I think this is a really significant moment and I feel very pleased to be here answering questions on Civil Service legislation. If you think of it, 1854, Northcote-Trevelyan came up with this set of values and they have endured. I think there is a lesson there. Despite the fact that the labour market and the Civil Service are fundamentally different from what they were in 1854 these values have persisted. The Civil Service is changing, as Ed said, and the challenges we are facing are very different. If you think of the numbers of the Civil Service alone, in the last 13 quarters they have been reducing every quarter and, if we carry on with current trends, in the next year or two we will be at the smallest size since the Second World War. We are delivering more with less. We are working more across departments. We are meeting our efficiency targets. For me, the value of this legislation will be does it help the Civil Service perform for the 21st Century and to do that there is just one thing I would stress more than any other: let us keep it simple. Northcote-Trevelyan endured because it concentrated on the values. When they finished their report they recommended that this be carried forward in a few clauses. 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.
Q96 Chairman: Thank you for that. I have lost track now of the number of Cabinet Secretaries that I have asked these sorts of questions to about Civil Service legislation and the contrary views that we have heard expressed over the years. I forget what I have asked you about this. Have you always been in favour of a Civil Service Bill?
Sir Gus O'Donnell: I have been in favour of a Civil Service Bill as long as it can be very principled and values-focused, and this Bill I am in favour of absolutely.
Q97 Chairman: What do you say to those people who say, "We have managed for 150 years quite happily without all this being written down"? Are we in some kind of difficulty now that makes us have to do this? Are these values under threat?
Sir Gus O'Donnell: No, I do not think so. All I am saying is here is an opportunity to put them in statute and they are there forever, so if there were a threat in the future, but actually no. If anything, partly with your help, the Civil Service Code has embodied these values, it is in the document that civil servants read and the Civil Service Commissioner helps us go and sell that. We did it recently at the Civil Service Live event with a question time chaired by Janet Paraskeva. I think we are getting the message across to people and the new Code puts it in very simple language. If anything, I think we are in a strong position now to guide against whatever uncertainties there might be over the next 150 years. If it is an opportunity to put them in statute and it is kept focused and allows the Civil Service to be flexible enough to meet the needs, whatever they are, over the next century and a half then that will be a very big positive.
Q98 Chairman: I am sure we shall come back to aspects of this shortly. Could I ask you a couple of other things to start with. One of the virtues of getting you here periodically, Gus, is we get replies to our reports. They arrive as if by magic after we have waited for several months. We invite you to come along and the day before you come we get these reports. We have had two, one on our report on machinery of government changes, which is to do with the ability of governments, prime ministers, to reorganise the machinery of departments basically without going through any defined process, and the second one on public appointments where you have given us a very detailed and helpful reply. Could I just ask about both of those. On the machinery of government changes we made an argument that essentially said if government was going to reorganise any other bit of the state it would go through quite an elaborate process to do it, it would issue consultation papers and there would be a whole great palaver about it but governments can reorganise themselves even on a huge scale by a prime ministerial pen. We thought we can do better than that. You have told us in your report, "Oh no, we must stick with the existing system" otherwise it would basically dent the prerogative powers of the Prime Minister. The question I have for you is surely the whole point about this Constitutional Renewal Bill is to dent the prerogative powers of the Prime Minister, that is the underlying rationale. Why in this area are you using that as a defence against our report?
Sir Gus O'Donnell: I think that is because the Prime Minister takes the view that he needs to have the ability to shuffle around with his Cabinet, shuffle around with the posts, shuffle around with the responsibilities, as he did when he came into office with the creation of the Department for Children, Schools and Families and DIUS.[1] He takes the view that this is his job and he could not do that in advance and put consultation down, he needs to get on with it and have Cabinet ministers in post. It is a political decision very clearly by the Prime Minister that that is what he thinks is the right thing to do.
Q99 Chairman: But in relation to going to war he is saying that used to be the position but, in fact, we need to involve Parliament now. I cannot understand why, when we are making very significant changes to how government is organised, we cannot have some sort of similar procedure involving Parliament.
Ed Miliband: I am very sympathetic to the two reports you have issued on this. Let me explain the dilemma in this way and the reasoning behind our response. When it comes up to a General Election, for example, a new government coming in might well want to reorganise government. I do not think it would be right to say to a new government, "I am sorry, you will have to wait for a number of months in order to do that reorganisation". That is one aspect of it. Think of a government that is in power, as ours has been. Are we genuinely saying that we will consult in advance on a reorganisation of portfolios? Where would that leave ministers who were about to leave and lose half their portfolio or possibly all of their portfolio in the interim? I am sympathetic to this, but I cannot see how it is easy to do this in advance of any changes because a particular personality, an individual in our system, is intimately linked to the particular department and the configuration of that department for which they are responsible. You then come to the question of could we do it post any change that has been made. You suggested doing it by having these Transfer of Functions Orders done by affirmative resolution. Currently they can be prayed against and they can be debated on the floor of the House. My answer to that, Chairman, and again we did think about this quite hard, is you would then be saying to Parliament, "Have a debate on something which has already happened". I think the point of this Constitutional Renewal Bill is to give Parliament a say over things over which they genuinely can have a chance to make amends. Realistically, you are going to have a government that has already made a change putting it before Parliament to be rejected. Of course, there is a strong feeling then that a Transfer of Function Order can be prayed against and government can think about how it handles that. I am sympathetic to the fact that reorganisations of government should be kept to a minimum. I think that is right, they should not be done for the sake of them, and I am sympathetic to the points and comparisons you make with other prerogative powers that have been put onto statute, but I cannot see a way of resolving the two problems that I have just identified.
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