Examination of Witnesses (Questions 140-159)
RT HON ED MILIBAND MP AND SIR GUS O'DONNELL KCB
29 APRIL 2008
Q140 Mr Prentice: It all sounds a bit arcane, does it not, but the point that was raised with Janet Paraskeva last week was whether the Civil Service Commissioners should have the power to initiate inquiries, and when I was reading the consultation to the document everyone was in favour of the Civil Service Commissioners having the power to initiate inquiries and yet you, the Government, has decided they are not going to have that power; why?
Sir Gus O'Donnell: That is a slightly different point. I am not sure that the Civil Service Commissioner herself is in favour of having the power to initiate inquiries.
Q141 Mr Prentice: Tony is going to come in and rescue me here I suppose, again, but I think she made the point that it could be opening the floodgates and that if you give the Civil Service Commissioner the powers to initiate investigations, then she is going to be completely overwhelmed. That is different from saying that she may not see a role for the Civil Service Commissioners.
Ed Miliband: One thing I referred to earlier which has changed since then, because I know at the Committee with Janet you referred to the responses to our consultation, is us recognising that civil servants will be able to take complaints to the Commissioner, so it is the case that civil servants who have a concern, a worry about what is happening, they can go to her and she will then investigate it. I suppose my perspective on this about this question of initiation of inquiries and whether Janet Paraskeva should initiate inquiries—and Gus will have his own perspective on this—is that we have got to be very careful not to politicise her post and other posts because we all know what happens when you put someone in this position, when she can initiate her own inquiries subject to views from anyone is that it immediately becomes a cottage industry of people seeing something in the newspapers and then writing to her and saying, "I demand that you investigate this." What I think is good about what we have done is we have said to civil servants who are worried about what is happening (and, after all, they are in quite a good position to know what is happening in the Civil Service) is they can go to her and say, "I have an anxiety, a worry about a particular situation; please will you investigate," and I think that is the right course of action and the right way of protecting the role of the Commissioner.
Sir Gus O'Donnell: And that is my impression of discussions that I have had with Janet. We do not have a difference of view about this. If a civil servant goes to Janet and Janet wants to investigate something, that is absolutely a good thing as far as I am concerned.
Q142 Chairman: This is quite an important point and one obviously we shall say something about when we report on this. I think what she actually said was that she thinks there is absolutely a need for someone to do this job, she was not sure that it was her, and it seemed to be largely a matter of resources for her, but she said if it was not us she could not think who else could properly do it. For example, a number of complaints come in—you get this with the Ombudsman—which often reveal some general issue and it is daft to be able to deal with individual complaints but then not to go and investigate the general issue.
Sir Gus O'Donnell: She can do all of that.
Ed Miliband: She can do that.
Q143 Chairman: It is not clear from the Bill that she can do that on her own initiative.
Sir Gus O'Donnell: No, but you talked about her getting five or six complaints. That is what the new version of the Civil Service Code says; that you can go to the Civil Service Commissioner. If she gets five or six complaints of a different form and then if she were to say to me, "Look, I am really worried about this specific area, I would like to look at it," I would be completely happy for her to do that.
Q144 Chairman: Yes, but she has to come and ask you and there has to be agreement and so on.
Sir Gus O'Donnell: I would not turn it down.
Q145 Chairman: If the Civil Service Commissioners are the guardians of the Code and if they are the guarantors of these values that are being adumbrated in the Bill, then surely it makes sense to give them whatever power they need to make sure that any worries about the operation of those values and the aspects of the Code can be investigated, not merely through hearing individual complaints?
Sir Gus O'Donnell: Which you would do by allowing her to take complaints from civil servants and follow them up, and I think that is precisely what she can do. I am not quite sure what more you need but if there is anything that you think could strengthen the values then again, like I say, I think that is quite important.
Q146 Kelvin Hopkins: Just to go back to appointments, and I do not expect really to get the answer I want and I expect I can anticipate the answer I will get, if we can use the example of Nigel Lawson when he was Chancellor, he wanted people in his private office who were simpatico of his view and before we went into the ERM (this is something that I think is public knowledge) and he surrounded himself with people in his private office who took a similar view to him rather than people who would say, "Actually, I am sorry, Minister, I do not think we should be entering the ERM at the present parity is a good idea," he had people around him who would say, "Yes Minister, I agree with what you are saying."
Sir Gus O'Donnell: This is in your golden age of the 1980s?
Q147 Kelvin Hopkins: Slightly after but nevertheless—
Sir Gus O'Donnell: No it was not, I was there.
Q148 Kelvin Hopkins: This is a real example and indeed I hope I am not treading on toes. This is an example of politicians insisting on civil servants being appointed with a particular view. Subsequent to that we have had a very strong Prime Minister who was, among other things, concerned to make sure that his people got safe parliamentary seats and had a range of special advisers making sure that ministers and civil servants indeed were in line. Are you suggesting to me that they were not equally concerned at making sure that their favourite civil servants got senior jobs during that time?
Sir Gus O'Donnell: I do not know what to make of this. Nigel Lawson appointed me as his press secretary, it was wonderfully successful in that within a couple of months he had resigned, so did that mean I was particularly favoured by him? I think Nigel Lawson, who I know, had a very strong regard for people who actually would stand up to him and would argue with him. He liked nothing better than an argument with economists about matters, and I can tell you I was involved in them, particularly when he came out to Washington, there were a number of times when he gave speeches there on the pros and cons of the ERM. There was a very strong debate within the Treasury about whether exchange rates and shadow exchange rate targeting were the right things to do. I can talk about it because some of the papers have been released now. There were a number of people who thought an independent central bank was the answer rather than exchange rate targeting. There was a very healthy debate. I think this is what strong ministers of all parties do: they value people strongly putting the counter argument because they know, when they come out of that policy, they are going to be in Parliament. There are going to be people opposing it and they would like to have heard those arguments. They may not agree with them, but I think good ministers of all persuasions value strong officials.
Ed Miliband: I agree.
Q149 Kelvin Hopkins: They still made the wrong decision in the end on the ERM but nevertheless perhaps Ed can tell me a little bit about the subsequent regime, the Blair regime. My impression is that it was much more controlled and centralised than any previous government had been.
Ed Miliband: There is a point of disagreement on this. I think your question is partly about special advisers and partly about other aspects of so called politicisation. I just do not believe that 70 special advisers or however many there are across government are somehow undermining the value of the Civil Service. I was a special adviser in the Treasury when Gus was the Permanent Secretary there. I think good special advisers—I am not necessarily putting myself in that category—prevent the politicisation of the Civil Service because they do the political thing that ministers want to have done and which would be inappropriate for civil servants to do. I go back to my opening remarks, without getting into the question of golden ageism or not. When I think about the big challenges the Civil Service faces going forward, I just do not recognise the description that one of the big challenges is whether it is going to become a politicised service. I have worked with many civil servants both at the Treasury and now at the Cabinet Office. I do not know their political views. I do not seek to know their political views. Obviously that would be the wrong thing to do. What I want is people who are effective and able. I meet lots of exceptionally able and bright civil servants who would serve any government, in my view, of any party.
Sir Gus O'Donnell: This point about good special advisers being good for the Civil Service is really important. I would worry and I worry most when you have an area where there is a weakness and a risk that you might get the civil servants trying to fill a vacuum where there is poor political advice because the special advisers are not providing it. That is why having the values in the Bill will be really important. Good special advisers that do that well are very good news for the Civil Service and keep us out of that territory.
Q150 Mr Walker: Sir Gus, how do you think the Freedom of Information Act has affected government and your relationship with ministers and special advisers, because there is concern out there that although it seemed like a good idea at the time you have civil servants running around saying, "For God's sake, do not write anything down", so you get more of this sort of sofa government as opposed to government where there are notes and a record taken of decision making.
Sir Gus O'Donnell: There are very many aspects of FOI that we should say are unambiguously good. Access to information for the public in all sorts of areas I think is hugely useful. It can take up quite a lot of senior time. Just referring to that last question, I remember spending a lot of time on FOI requests relating to papers going back to ERM entry, for example, which obviously you would not discuss with the current set of ministers. They do take a lot of senior Civil Service time and these papers would be released anyway in due course. It is very important for the Civil Service in terms of giving their honest, objective, impartial advice that we do write down that advice. It is very important that ministers carry on asking us for it. Freedom of Information has some exemptions in terms of advice to ministers. The one thing that I worry about is the uncertainty. You cannot quite tell in advance, because of the way the FOI Act is written in terms of that public interest test in each individual case, whether something is going to be subject to that overriding clause or not. That is the one area where I say I have some doubts but in general I keep telling everybody it is absolutely important that we write down all of our advice. We should be proud of our objective advice and it will in due course see the light of day. I think it is very important that we have that safe space to advise ministers and to speak the truth under power without knowing that it will be in the public domain very quickly because of an FOI request. I think there is an exemption there and it is important that it is upheld.
Q151 Mr Walker: You do not think it did contribute to this sofa style of government that The Daily Mail likes to write about?
Sir Gus O'Donnell: No.
Ed Miliband: I agree with Gus that there is a big culture change that FOI brings. I think that overall it is a positive culture change for government. In 20 years' time people will wonder what all the fuss was about probably because people will adapt. New people will come into the system that are used to it. At the moment of change it always has an impact. From the point of view of ministers, my only thought on this is what is unusual about government is that ministers individually can express their view but then they have a duty to go out collectively to defend the position of the Government, even if that is contrary to their view. I think ministers need to be able to do that in a way that is not going to then put them in a very awkward position very soon after, because that is one of the duties of being part of a collective. You go out and defend the position of the collective, but you need to be able to express your view. This is not a reference to any particular case but I think that would be my only—
Q152 Mr Walker: You do not want it to stifle debate amongst colleagues.
Ed Miliband: Exactly.
Q153 Mr Walker: On constitutional reform, when did it all go so terribly wrong that we needed constitutional reform? Maybe it has not gone wrong. Maybe it just part of the progression and growth of our democracy. Was there anything over the last five, ten, 15 or 20 years that stands out in your minds as something that needed to be addressed and will be addressed by this proposed legislation?
Ed Miliband: In a way, we are of the same generation coming into Parliament. I was reading over Easter—which makes me sound a bit sad—a biography of Disraeli and Gladstone. What was remarkable was the length of their speeches but I will leave that to one side. What was also remarkable, without sounding pompous about this, was the extent to which Parliament was the site of fevered, excited debate. It seemed like every night but I am sure that was not the case.
Q154 Chairman: That was before the Whips arrived.
Ed Miliband: That may or may not be true. For our generation, I feel that over the ten or 15 year view, Parliament needs to be strengthened because it is sad that Parliament has become less important in public debate. My impression would be that people of our generation see it as less important to speak in Parliament than to go on the BBC or Sky. I think that needs to change. For me, one of the important aspects of this constitutional renewal, quite apart from the need to hold the Executive to account which is always an issue—the power of the Executive waxes and wanes—is the need to strengthen Parliament and make it a site at which important debates and important things happen. That is why I think the legislation is important.
Sir Gus O'Donnell: I would just add that from the Civil Service point of view this is an opportunity. If you are having a Constitutional Renewal Bill you do not get these opportunities very often. Therefore, I would say let us make the most of it and use it to enshrine the values, but I do say with some slight trepidation that what might come out might not be as simple, clear and useful as what goes in.
Mr Walker: If we had a strong, self-confident Parliament we would be taking the lead on this and we would not need the Executive to take the lead. I think that is a sad reflection on our chamber. I hope, if we do bring this Bill forward, it is the last time the Executive will need to bring a Bill forward and Parliament, when it feels it is losing authority and power, will take actions from within itself to address the concerns of the public.
Q155 Mr Prentice: David Owen, when he was before us a few weeks ago, said that the Freedom of Information Act is just changing everything. Of course, Sir Gus, you turned down one of my requests under the Freedom of Information Act for information on Lord Ashcroft and the nature of the undertaking that he gave in March 2000 before he was ennobled, having been turned down twice for a peerage before then. I am taking it to the Information Commissioner. Is the Information Commissioner overturning an increasing number of decisions that the Civil Service is taking, you and after it has gone to appeal? Would you know?
Sir Gus O'Donnell: I could find out the exact numbers for you. My impression is that he is not but I do not have the actual numbers. Obviously, remember, with FOI requests, there was a vast number that happened at the start. Whatever statistics you get, you need to analyse them quite carefully. I stress what I said at first. The vast proportion of FOIs will relate to questions from the public so you might get a misleading number. They might all go through, so you might get a very small proportion that have gone to the tribunal. I think the class you are interested in is a slightly different class of FOI requests, is it not?
Q156 Mr Prentice: Richard Thomas may take a different view of what constitutes the public interest than you may. It was Richard Thomas who said MPs' expenses have to be published and it may be Richard Thomas, the Information Commissioner, who tells me what Michael Ashcroft said before he was ennobled. He may say that it is in the public interest for me to be told, although clearly you do not think so.
Sir Gus O'Donnell: Sometimes we do come to different views.
Q157 Mr Prentice: I understand that. It is not personal.
Sir Gus O'Donnell: I mean in other areas like what is value for money and what is sustainable, because we certainly would not have these in the Cabinet Office.
Q158 Mr Prentice: Can I just ask about special advisers? I do not want to misquote Janet Paraskeva again, if I misquoted her before, but she I think told us that the failure to put a limit on the number of special advisers could pose problems down the line. It could, she said, drive a coach and horses through the Civil Service. Sir Robin Mountfield said much the same thing. Is there a problem? May there be a problem down the road that the Government is not taking this opportunity to set down in statute the number of special advisers that can be appointed at any given time?
Sir Gus O'Donnell: Given the current sorts of numbers, 70 to 80 out of a Civil Service of half a million and a senior Civil Service of 4,000, that is why I do not worry about this argument about politicisation. With these sorts of numbers, it is not a problem at all. Indeed, good quality special advisers around the system, two per minister in general, work well.
Q159 Mr Prentice: Robin Mountfield, a former mandarin, a top man like you, said the draft Bill was grossly deficient when it comes to special advisers. The fact that we only have 70 or whatever it is that you have just mentioned does not mean to say that an administration in the future could not pump huge numbers of special advisers into the senior Civil Service and completely neuter it. It would be perfectly possible.
Ed Miliband: I think that is very unlikely to happen.
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