Part 6 Background - Courts and Tribunals

55.     Part 6 of the Bill provides for the protection of the salaries of various members of tribunals. The current position is that members of tribunals do not have salary protection but certain judicial office holders in the courts’ system do have salary protection. Effect is also given to Schedule 5 to the Bill.

56.     Schedule 5 makes adjustment to the existing functions of the executive and judiciary in relation to judicial appointments and other judiciary related matters in the context of the Government’s wider programme, The Governance of Britain. The Government published The Governance of Britain - Judicial Appointments (Cm 7210) on 25 October 2007. This document can be found at:

57.     A detailed analysis of the consultation responses can be found in The Governance of Britain - Analysis of Consultations (Cm 7342-3).

58.     The proposals remaining in the Bill have been pared down from those outlined in the publications above but continue to address the functions of the executive and judiciary in relation to judicial appointments.

59.     The provisions also remove the Prime Minister from the process of appointments of the President, Deputy President and judges of the Supreme Court.

Part 7 Background - National Audit

60.     The office of Comptroller and Auditor General (“C&AG”) was created in 1866 when the role of the Comptroller of the Exchequer was combined with that of the Commissioners for Audit. The C&AG is still appointed under the Exchequer and Audit Departments Act 1866 (“the 1866 Act”). The National Audit Act 1983 (the 1983 Act) built on that framework and provided for the C&AG to be head of the National Audit Office (“NAO”), an office which consists of the C&AG and the staff appointed by the C&AG. The C&AG audits the accounts of government departments and a wide range of other public bodies under a number of statutory powers. Under the 1983 Act, the C&AG carries out “value for money” examinations of the way in which departments and other public bodies have used their resources. In addition, the C&AG audits certain public funds and has rights of inspection and examination over other bodies which receive public money.

61.     Under the 1983 Act, a committee of Members of Parliament, the Public Accounts Commission (“the Commission”), was set up to oversee the activities of the C&AG and the NAO. Its functions include agreeing the voted resources of the NAO. In July 2007, the Commission initiated a review of the corporate governance arrangements of the NAO to ensure that they conformed to best practice. The Commission’s Report was published as HC 402 on 6 March 2008. That document is available here:

62.     The Commission recommended that the NAO should remain the Government’s auditor, independent of Government and answerable directly to Parliament through the Commission. Its audit reports, both financial and value for money, should continue to be laid in Parliament and the Committee of Public Accounts (PAC) would continue to hold scrutiny hearings on some of them. As chief executive of the NAO, the C&AG should continue to lead its audit work and to make professional judgements on its audit reports.

63.     However, the Commission said that the NAO should also have a board with a majority of non-executives, including a non-executive chair. The board would be charged with setting the strategic direction for the NAO and supporting the C&AG. The C&AG would have a fixed term of ten years instead of the current unlimited term. Former C&AGs would not be able to work for bodies that are subject to NAO’s audit or inspection for two years after they leave office.

64.     The Government accepted the Commission’s recommendations and agreed to implement them through the Constitutional Reform and Governance Bill. When the Commission met on 16 December 2008, it published the Government’s draft clauses and (subject to a recommendation that the C&AG’s pay should be linked to that of the Lord Chief Justice and that the employment restrictions for former C&AGs should last for five years) said it was content with the draft clauses. Its recommendations are available here:

Part 8 Background - Transparency of Government financial reporting to Parliament

65.     There are a number of different systems for presenting Government expenditure. These include budgets, Supply Estimates presented to Parliament for approval and resource accounts prepared by departments at the end of each financial year.

66.     These different systems mean that there is significant misalignment between the different bases on which financial information is presented to Parliament and the public. Government financial documents are published in different formats, and on a number of different occasions during the year. This makes it difficult to understand the links and inter-relationships between them.

67.     The Government announced in The Governance of Britain Green Paper in July 2007 a Clear Line of Sight (Alignment) Project to simplify its financial reporting to Parliament by better aligning budgets, Estimates and resource accounts. The Treasury submitted detailed proposals for better alignment to Parliament in a Memorandum in March 2009 (Cm 7567). The Liaison Committee of the House of Commons responded to the Government's proposals in its report Financial Scrutiny: Parliamentary Control over Government’s Budgets (HC 804), published on 3 July 2009. The report accepts, on behalf of the relevant House of Commons Select Committees, all of the Government's proposals for a better aligned public spending framework as set out in Cm 7567.

68.     Part 8 deals with one aspect of the work of that Project. At present, the spending of Non-Departmental Public Bodies and other central government bodies falls within the budget of the parent department (the government department with policy responsibility for that activity) but falls outside the departmental boundary for Supply Estimates (departmental spending plans approved by Parliament) and resource accounts. Clause 51 amends the Government Resources and Accounts Act 2000 in order to allow the Treasury to issue directions about the way departments prepare Supply Estimates and to direct that such Estimates are to include information relating to “designated bodies”. It also includes provision preventing the designation of a body if it is funded solely from the Scottish Consolidated Fund, the Consolidated Fund of Northern Ireland or the Welsh Consolidated Fund and makes consequential amendments to the GRAA 2000.

69.     Clause 52 amends part 5 of the Government of Wales Act 2006 (“GOWA 2006”). The changes are intended to simplify the arrangements for financial reporting and accountability to the National Assembly for Wales (the “Assembly”). This will be achieved by better aligning the contents of the annual budget motion with the use of the resources set out in the resource accounts produced by Ministers and other persons to whom the Assembly votes resources.

70.     There are a number of Assembly Government Sponsored Public Bodies (“AGSBs”) and other organisations in Wales that are classified as central government bodies and are funded, wholly or to a significant degree, by Welsh Ministers. At present, the Assembly is not asked to authorise the use of resources by AGSBs and other central government bodies operating in Wales, and it is therefore more difficult for Ministers to align the resources included within the annual budget motion with those included in the Welsh Ministers’ resource accounts.

71.     As referred to above, the Assembly votes resources to some persons other than the Welsh Ministers. These persons are described as “relevant persons” in section 124(3) of the GOWA 2006. They are: the National Assembly for Wales Commission, the Auditor General for Wales and the Public Services Ombudsman for Wales. These other “relevant persons” could also fund bodies in Wales that would be classified as belonging to central government. Therefore, the changes to the GOWA 2006 made by clause 52 apply to those “relevant persons”, as well as to the Welsh Ministers.

72.     Clause 52 amends the GOWA 2006 in order to give Welsh Ministers the power to designate bodies for the purpose of enabling a budget motion to include information relating to the resources expected to be used by that body. It also includes provision that requires the Welsh Ministers to obtain the consent of the Treasury before designating any body that receives funding from the UK Consolidated Fund or a devolved Consolidated Fund other than the Welsh Consolidated Fund. This is intended to avoid duplicate or erroneous designations, and the accounting problems that would ensue.

TERRITORIAL EXTENT

73.     The provisions of the Bill extend to England and Wales while certain provisions also extend to Scotland and Northern Ireland. The Bill largely addresses reserved and excepted matters although there are some provisions that affect the functions of the Devolved Administrations.

74.     At introduction this Bill contains provisions that trigger the Sewel Convention in relation to Scotland. The provisions relate to the Civil Service clauses and are outlined below:

• Civil Service Codes - clause 5 requires the First Minister of Scotland to lay before the Scottish Parliament any separate Civil Service code that applies to civil servants serving the Scottish Executive.

• Special Advisers Code - clause 8 requires the First Minister of Scotland to lay the special advisers code before the Scottish Parliament.

• Special Advisers - clause 15 prescribes requirements that the First Minister for Scotland must apply when appointing Special Advisers to assist members of the Scottish Executive.

• Special Advisers Report - clause 16 requires the First Minister of Scotland to prepare an annual report about special advisers appointed to assist members of the Scottish Executive and to lay this before the Scottish Parliament.

• Civil Service Commission’s Report - Schedule 1, paragraph 17(5) requires the First Minister of Scotland to lay the Civil Service Commission’s report before the Scottish Parliament.

• Requirements to provide information - clauses 9(6), 13(4), 14(2) and 17(3) impose requirements to provide information to the Civil Service Commission. Those requirements can apply to parts of the Scottish Administration.

75.     The Sewel Convention provides that the UK Parliament will not normally legislate with regard to devolved matters in Scotland, or alter the executive competence of Scottish Ministers, without the consent of the Scottish Parliament. If there are any amendments to the Bill during its passage which trigger the Convention, the consent of the Scottish Parliament will also be sought for those amendments.

76.     The Bill contains provisions which confer functions on Welsh Ministers and affect their responsibilities:

• These include provisions in Part 1 requiring that they are consulted about the Civil Service and special advisers code and requiring them to lay the codes and the Commission’s reports before the Assembly.

• In Part 5 creating a time limit for human rights claims brought against them under the Government of Wales Act 2006.

• In Part 8 giving them the power to designate bodies that must be included in Assembly budget motions.

77.     The Bill also contains other provisions that do not require a Legislative Consent Motion but which make incidental changes to Scots law and the law in Northern Ireland.

COMMENTARY ON CLAUSES

PART 1: THE CIVIL SERVICE

CHAPTER 1

Clause 1: Application of Chapter

78.     Clause 1 applies Part 1 of the Bill to the Civil Service of the State, subject to the exclusions listed in subsections (2) and (3). The terms Civil Service and civil servant throughout this Part are therefore to be read as excluding those parts of the Civil Service listed in subsections (2) and (3) and the civil servants in those parts of the Civil Service.

Clause 2: Establishment of the Civil Service Commission

79.     Subsection (1) establishes the Civil Service Commission as a body corporate with legal personality.

80.     Subsections (3) and (4) set out the main function of the Commission. This concerns recruitment to the Civil Service, covered in clauses 11 to 14. Reference is also made to the Commission’s other functions concerning complaints to the Commission under the Civil Service and Diplomatic Service codes of conduct (clause 9).

Clause 3: Management of the Civil Service

81.     Clause 3 provides a power for the Minister for the Civil Service to manage the Civil Service and a parallel power for the Secretary of State in relation to the Diplomatic Service. The power to manage includes the power to appoint and dismiss. The general power to manage the Civil Service, including the power of appointment and dismissal, set out in the Bill must be read in conjunction with other clauses in the Bill, in particular provisions about the Civil Service Commission and requirements about fair and open competition. The power to appoint and dismiss individual civil servants will, as now, continue to be delegated to the Head of the Civil Service and the permanent Heads of Departments provided for under existing statutory powers in the Civil Service (Management Functions) Act 1992.

82.     Subsection (4) expressly excludes national security vetting from the power to manage the Civil Service and the Diplomatic Service. This confirms that national security vetting will continue to be carried out under existing prerogative powers.

83.     Subsection (5) requires the Secretary of State to seek the agreement of the Minister for the Civil Service in relation to remuneration and retirement conditions for civil servants in the diplomatic service.

Clause 4: Other statutory management powers

84.     Subsections (1), (2) and (3) provide that statutory powers of management of the Civil Service (whether before or after the Act comes into force) are subject to the powers to manage the Civil Service in clause 3.

85.     Subsection (5) expressly excludes the statutory management powers set out in the Superannuation Acts from the general power to manage by the Minister for the Civil Service provided in clause 3.

Clause 5: Civil service code

86.     Clause 5 makes provision for codes of conduct for the Civil Service (with the exception of the diplomatic service). Clause 5 enables the Minister to publish separate codes of conduct for civil servants in the Scottish Executive or the Welsh Assembly Government after first consulting the First Ministers for Scotland and Wales on the content of the code relevant to their respective administrations. The codes published under this clause will be along the lines of the existing Civil Service codes, covering civil servants in the UK Departments in the Civil Service, the Scottish Executive and the Welsh Assembly Government respectively. Copies of the existing codes can be viewed at the following websites:

87.     There is no Parliamentary procedure attached to the obligation in subsection (5) for the Minister of the Civil Service to lay the Code before Parliament. The First Ministers for Scotland and Wales are also required to lay the code relevant to their administration before the Scottish Parliament and Welsh Assembly respectively. Under subsection (8) the applicable code or codes form part of a civil servant’s terms and conditions.

Clause 6: Diplomatic service code

88.     Clause 6 makes provision for a code of conduct for the diplomatic service which will be along the lines of the existing code for the diplomatic service, the Diplomatic Service Code of Ethics. The code reflects the core principles of the Civil Service code of conduct. This code must be laid before Parliament, but there is no Parliamentray procedure. Under sub-section (4) the code forms part of the terms and conditions for civil servants in the diplomatic service.

Clause 7: Minimum requirements for Civil Service and diplomatic service codes

89.     Clause 7 sets out the minimum requirements for the Civil Service and diplomatic service codes of conduct. Subsections (2) and (3) require civil servants in the UK, Scotland or Wales, to serve the administration of the day, whatever its political complexion. By subsection (4) the code must contain an obligation on civil servants to carry out their duties in accordance with the core Civil Service values of integrity, honesty, objectivity and impartiality. Subsection (5) concerns the provisions of the codes as they apply to special advisers. Clause 8 makes separate provision for the special advisers code.

Clause 8: Special advisers code

90.     Clause 8 makes provision for a code of conduct for special advisers. The code published under this clause will be along the lines of the existing special advisers’ code, which can be viewed at the following website:

91.     The Minister for the Civil Service must consult the First Ministers for Scotland and Wales on the content of the code before publishing the code. The First Ministers are required to lay the code before the Scottish Parliament and Welsh Assembly respectively.

92.     There is no parliamentary procedure attached to the obligation in subsection (4) for the Minister for the Civil Service to lay the code before Parliament.

93.     Under subsection (7), the code forms part of a special adviser’s terms and conditions.

Clause 9: Conduct that conflicts with a code of conduct: complaints by civil servants

94.     Clause 9 makes provision for civil servants to complain to the Civil Service Commission about alleged breaches of the Civil Service and diplomatic codes.

95.     Subsection (4) provides for the codes to include information on the steps a civil servant must take before making a complaint. It is expected that these will reflect the procedures already set out in the existing code.

96.     Subsection (5) requires the Civil Service Commission to establish procedures for complaints under subsection (2). It requires the Civil Service Commission to consider complaints in accordance with the procedures established by the Commission and allows for the Commission to make recommendations to resolve the complaint.

97.     Subsection (6) provides that the Commission can require information from the Civil Service management authority, the civil servant who brought the complaint and any other civil servant whose conduct is involved in the complaint where that is reasonably required to enable the Commission to investigate the complaint.

Clause 10: Selections for appointments to the Civil Service

98.     Clause 10 requires that people can only be appointed into the Civil Service if they have been selected on merit on the basis of fair and open competition. The exceptions to this requirement are set out in subsection (3)(a) to (c).

99.     Further provision on special adviser appointments and appointments excepted by the recruitment principles are set out in clauses 15 and 12 respectively.

100.     Subsection (4) provides that those appointed under subsection (3)(a) to (c) (Heads of Mission or Governors of overseas territories in the diplomatic service, special advisers and appointments excepted in the Commission’s Recruitment Principles) are excepted from the requirement for selection on merit on the basis of fair and open competition only for the duration of that particular appointment. The persons holding such appointments would therefore be subject to the requirements of clause 10 (in particular, the requirement of selection on merit on the basis of fair and open competition) in relation to any further appointments to the Civil Service unless specified to the contrary in the Commission’s Recruitment Principles.

Clause 11: Recruitment principles

101.     Clause 11 requires the Commission to publish principles on the application of the requirement in clause 10 of selection on merit on the basis of fair and open competition. These are referred to as “the recruitment principles”. The Commission must consult the Minister for the Civil Service before publishing the recruitment principles.

102.     Subsection (4) requires Civil Service management authorities to comply with the recruitment principles. Civil service management authorities are any body or person with the power to make appointments in the Civil Service.

Clause 12: Approvals for selections and exceptions

103.     Subsection (1)(a) enables the recruitment principles to specify those appointments (which are subject to the requirement in clause 10 of selection on merit on the basis of fair and open competition) that require the approval of the Commission before they can be made. Subsections (2) and (3) enable the Commission to participate in the selection process for any such appointments as they see fit.

104.     Subsection (1)(b) and subsection (4) enable the recruitment principles to set out exceptions to the requirement of selection on merit on the basis of fair and open competition where justified by the needs of the Civil Service or in the interests of enabling the Civil Service to participate in Government employment initiatives, such as initiatives to relieve unemployment.

105.     Subsection (6) make provision for the recruitment principles to specify the procedures and the terms and conditions for appointments made under the exceptions contained in the recruitment principles under subsections (3)(c) of clause 10. Subsection (7) allows the recruitment principles to give the Commission or Civil Service Management Authorities discretion in applying aspects of the recruitment principles.

Clause 13: Complaints about competitions

106.     Clause 13 allows people to complain to the Commission about selections to the Civil Service if that person has reason to believe the selection was made in breach of the requirement in clause 10.

107.     Subsection (3) requires the Civil Service Commission to establish procedures for complaints under subsection (1). It requires the Civil Service Commission to consider complaints in accordance with the procedures established by the Commission and allows for the Commission to make recommendations to resolve the complaint. The Commission can require information from Civil Service management authorities and the complainant where that information is reasonably required for the purpose of considering the complaint.

Clause 14: Monitoring by the Commission

108.     Clause 14 requires the Commission where it considers necessary, to review departments’ recruitment policies and practices, to establish whether the requirement in clause 10 and the recruitment principles are being complied with and are not being undermined. For these purposes the Commission may require a Civil Service management authority to provide it with information if the Commission reasonably requires that information.

Clause 15: Definition of “special adviser”

109.     Clause 15 makes provision about the appointment of special advisers and their terms and conditions of appointment. Special adviser appointments by a Minister of the Crown are approved by the Prime Minister. Special advisers appointed to assist Scottish or Welsh Ministers must be selected for appointment by the First Minister for Scotland or Wales as appropriate.

110.     The terms and conditions of all special advisers are approved by the Minister for the Civil Service. Appointments of special advisers are exempt from the requirement in clause 10 of selection on merit on the basis of fair and open competition.

111.     In each administration, a special adviser appointment ends when the appointing Minister’s term of office ends. In the United Kingdom, this is the earlier of either the date on which the Minister ceases to hold office or the end of the day after the relevant election day. In Scotland and Wales, this is when the First Minister’s term of office ends or, under sub-section (2), where the First Minister’s functions are performed by a temporary First Minister under the terms of the Scotland Act 1998 or the Government of Wales Act 2006.