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When Lord Falconer described the Bill in his evidence to the Joint Committee not as a constitutional reform or renewal Bill, but as a "Constitutional Retreat Bill", he was basically correct. The radicalism of the early prime ministerial statement in 2007 has been virtually
entirely lost in this legislation. The removal of the clauses on the Attorney-General, among many other things that have been referred to today, is a reflection of that.
However, Lord Falconer was wrong about one thing: civil service reform, as embodied in clause 1. The clause applies part 1 of the Bill to the civil service of the state, on which new clause 33 would give us an annual report. Clause 1 is radical, but in a curious way: it is a triumph for the status quo. Indeed, in places it even offers the possibility of restoring the status quo ante for the civil service. The clause entrenches the principle of an independent, impartial and permanent civil service recruited on merit. In doing that, we need to recognise that, by comparison with the civil services of many other major democracies, we are at one extreme in our levels of impartiality and impermanence. It is on such issues that I am at my most conservative, and I welcome this triumph of the status quo.
We have had-and to a large degree we still have-a civil service that works. The history books suggest that since Northcote-Trevelyan dealt a blow to patronage, we have been well served by the people who have come into the civil service, and we are still well served. Anybody who has worked there will know the sense of duty, commitment and loyalty that the civil service can show to the Government of the day. There is still such a thing in this country as a public service ethos, and the best of them in Whitehall have it in bucketfuls. If clause 1 makes a contribution to reaffirming that ethos, the Bill will have been worth while. The civil service is an important pillar of our constitution. This legislation will strengthen that pillar, if only a little.
In this triumph of what I have described as the status quo, we need to realise that we are setting aside many other approaches to the relationship between elected Ministers and, on the one hand, Parliament and, on the other, the appointed civil service. One of those approaches, which has often been discussed, would be to make the civil service more directly accountable to Parliament, as the Institute for Public Policy Research has suggested. Another approach, favoured by the think-tank Reform, would be to give Ministers more say over the direction of the permanent civil service establishment. That would take us in the direction of the United States. A third approach would be to keep most of the civil service as it is, but to superimpose at the top a cabinet system in each Department.
I will not linger on those approaches, except perhaps briefly on the third one. My guess is that one reason that support for civil service legislation has gathered pace in many quarters, especially in Whitehall itself, is that we have, de facto, tried the cabinet system over the past decade and, having tried it, found it wanting. I wonder whether that is why Lord Butler, among others, changed sides on this issue. He was a former opponent of a civil service Bill; now he is a supporter.
When people refer to the growth of presidentialism under Tony Blair, what they mean is the growth of a cabinet of advisers, largely temporary and party political, right at the heart of No. 10 and No. 11. Their position was reinforced by Orders in Council in 1997, giving advisers direct authority over civil servants. That was a profound mistake that has rightly been reversed. Cabinets should not be allowed to become part of our political culture. The bypassing of the civil service that came with that, and the impact of sofa government, were both disastrous for us. Clause 1 and its companions do
not guarantee that that will not happen again, but they send a clear legislative signal that that is not how our civil service should operate. That is why I said earlier that this chapter of the Bill will entrench not only the status quo but, to some degree, a status quo ante.
When I was in Whitehall, I was not a supporter of proposals for a civil service Bill. I thought that such legislation would be a waste of parliamentary time. However, I then sat on these Benches in the early years of the Blair Administration watching the new Labour Government bypassing officials and prejudicing the ability of the civil service to offer impartial advice to the Government, and that led me to conclude that we might need legislation to protect the civil service from the new culture of advisers and to signal Parliament's support for the ethos of public service set out in the civil service code of conduct, which had recently been improved prior to the arrival of the Blair Administration.
This part of the Bill lays the ground on which a proper relationship between the civil service and politicians can be maintained for the future. That relationship requires Ministers to provide strategic direction to the civil service. It also requires the civil service, led by permanent secretaries, to implement that direction, having warned Ministers-and having been given a reasonable opportunity to be heard by Ministers, a point that Robin Mountfield has made on numerous occasions-if those officials think that the direction of a policy is deeply flawed or would result in a failure of delivery.
I do not pretend that the lack of leadership that we have seen from time to time recently is a uniquely Labour disease. It has afflicted previous Governments as well. It is, however, reasonable to ask how things have operated recently. For example, how much strategic direction can have come from the merry-go-round of ministerial reshuffles that we have had? I think that we have had four Secretaries of State for Transport in three years, four Defence Secretaries in four years, and four Home Secretaries in five years. The right hon. Member for Airdrie and Shotts (John Reid) takes the record, having held seven Cabinet posts in eight years. He described the Home Office as "not fit for purpose", but it was ministerial leadership, not the civil service, that was not fit for purpose.
From what I have seen, the civil service aches for good leadership. It wants to implement the plans of elected Governments, not to thwart them. It is when politicians fail it-and only then-that some civil servants are transmogrified into a caricature of Sir Humphrey. This is not just about a failure of strategic leadership, however. Ministers have also used the civil service in ways that they should not have. The Neill Committee warned, as early as 2000, that Ministers were pushing senior civil servants to the margin in the provision of advice, while interposing their own advisers. The role of the adviser was being transformed into that of a spin doctor, a fact reflected most notoriously in the Jo Moore affair at the Department for Transport, Local Government and the Regions. Imagine the state of morale when the permanent secretary in that Department was quoted as saying-I shall not use his exact language; I shall just use the first letter of some of his words-the following:
"We're all f***ed. I'm f***ed. You're f***ed. The whole department is f***ed. It's the biggest cock-up ever. We're all completely f***ed."
Morale must have reached a terribly low level for that exchange to have taken place, and that applied right across Whitehall, not just in that Department.
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The Better Government Initiative-a group of Britain's most senior civil servants-stated in a recent report, which is available on the web:
"Providing candid advice has always been a difficult and potentially risky task for the civil service. There are suggestions"-
that phrase is typical mandarinese-
"of a loss of confidence amongst civil servants that this is a part of their job."
We need this legislation. It was envisaged in the 1850s, and it is typically British that it should have taken us 150 years or so finally to get round to it. There have been several periods in which having the civil service on a statutory footing might have helped it, including periods during the past decade. Let us now get the job done.
Mike Penning: I can say that the Minister of State, Cabinet Office, the right hon. Member for Basildon (Angela E. Smith) is a friend of mine, as I have known her for many years, but by the time we get to the end of this part of the Committee stage, I might be stretching that friendship an awfully long way. I shall be doing that not out of spite, however, but because I want the Bill to be successful. It is an enormously important Bill, and we have waited an awfully long time for it. That is why I rise to support amendment 10 and new clause 33. I accept the point made by the hon. Member for Southampton, Test (Dr. Whitehead) that, on their own, neither does everything that he and I are looking for, but together they are a damned sight better than what is in the Bill at the moment.
I am very suspicious of why the Government have not defined what they mean by the civil service, and perhaps the Minister will explain that to me when she responds to the debate. We have heard that earlier legislation specified all the way through which organisations were part of the civil service. That was excellent for Parliament, as well as for the employees of those agencies and Departments, who knew exactly where they stood. On the day before an important report is due to be published on MPs' expenses, the need for trust in this Chamber and in the Government is paramount. So why on earth have the Government not set out in the Bill what a civil servant is, and what the civil service is?
An organisation that comes under my shadow remit is the Food Standards Agency. I do not know whether it is part of the civil service or not. It rightly tells me that it is an arm's length organisation set up by Parliament, with a chair, and that it is an independent advisory body. As far as I understand it, however, its employees are civil servants. We would never know such things from looking at the Bill.
I am suspicious about where all the civil servants might have gone. My shadow responsibilities involve the Department of Health, and if I am lucky enough to become a Minister of the Crown in that Department, I shall want to know how many civil servants I am responsible for, where the money is going and what departments within that structure are accountable. The Bill, as it is structured, gives me absolutely no idea. I have asked people who come to visit us from the various
agencies whether they are civil servants. Some say yes, and some say no. The public, and the civil service, want these arm's length organisations to be set out in the Bill, right at the start, so that we know where we are.
My right hon. Friend the Member for Horsham (Mr. Maude) spoke earlier about the size of the civil service. Under Gershon, the civil service should have shrunk; actually, however, we find that it has not. Perhaps the Government are worried that if they build the numbers into the Bill, we would all know just how big the Government payroll is within the civil service.
We know that there has been a huge increase in the number of consultants in the civil service and Departments. Do they fall under the remit of the Bill? Do they have its protection? Some of them have very senior roles in Departments. Senior consultants are working in the Department of Health, for instance, with civil servants working below them. Such people do not have civil service contracts; they are consultants in a Department. Are they covered by the Bill? If they are not, how do the civil servants working below them know where they stand?
I suspect that there has been some smoke and mirrors in the civil service, so that numbers have been lost from the payroll but people have come back in through another door as consultants. There is some evidence of that. We need to know the exact costs involved in the civil service-new clause 33(3)(b) would make the Government come forward each year with those exact costs-but how can we calculate them if we have no idea which Departments, which quangos, which arm's length organisations are part of the civil service?
It is important that both amendment 10 and new clause 33 are agreed to in order to take the Bill forward. They are not perfect-I accept what the hon. Member for Southampton, Test said-but they are a lot better than what we have now and we might be able to build on them as the Bill goes through the House.
Mr. Heald: I want to follow the remarks of my hon. Friend the Member for Chichester (Mr. Tyrie) in saying how welcome it is that chapter 1 applies to the civil service of the state and that there is protection for the impartiality and objectivity of our civil service, which I believe to be precious. During the early years of the Labour Government, that was damaged by a change in the way in which the Government did their business. Some of the traditional, formal methods by which we had ensured good government came to be damaged during that period. It is right to say that there is a different climate for the civil service generally today, with more people entering it at a later stage rather than trained civil servants moving up the grades. That also impacts on why it is necessary to have a civil service Act.
There is a long history to this issue-my right hon. Friend the Member for Horsham (Mr. Maude) went back 150 years-but as recently as 1996 the Liberal Democrats and the Labour party had a joint commission and pledged themselves to a civil service Act. The commission said in clear terms before the 1997 general election that a civil service Act should
"give legal force to the Code"-
"which should be tightened up to underline the political neutrality of the Civil Service"
"clarify lines of Civil Service and ministerial accountability and responsibility."
Soon after the election, in July 1998, in response to a House of Lords report, that commitment was confirmed.
In 2000, the Committee on Standards in Public Life, on which I sit-albeit not on the current Kelly inquiry into Members' expenses-produced its sixth report and called for a timetable for a civil service Bill. In their response in July 2000, the Government confirmed their commitment to a civil service Act. In 2001, the Committee on Standards in Public Life asked whether the Government were going to go ahead, and Sir Richard Wilson, giving evidence, said yes. Ministers again provided the commitment.
In 2002, the right hon. Member for Kingston upon Hull, East (Mr. Prescott), then deputy leader of the Labour party and the Deputy Prime Minister, said that the Government would "produce the Bill". Needless to say, nothing happened. The Public Administration Committee produced its excellent report towards the end of 2002 or early in 2003 and subsequently a draft Bill, but again nothing happened. In fact, I promoted the Bill and presented it to the House. We had a debate on 21 January 2004, in which the Government again said that they had given a commitment and would produce their own Bill-the Chairman of the Committee may well remember this-before the end of the Session. They did, but we were not given the parliamentary time.
It is somewhat surprising that it has taken these 13 long years to get to the point where we are now. The issue of who is a civil servant and how the problem should be dealt with was raised in a debate on 21 January 2004 by the then Member for Milton Keynes, North-West. The hon. Member for Southampton, Test (Dr. Whitehead) might well have been involved in that debate. The point has been made repeatedly since, so it seems extraordinary that when a Bill is before us, we find no full definition of civil servants of the state. The Minister may well tell us that it will be left for the Civil Service Commission to decide in every case whether a person who is making a complaint is a civil servant, although it may be that the Government are expecting the courts to sort it out. That is clearly unsatisfactory after this long period of gestation.
Mike Penning: My hon. Friend's point about the courts is an important one. As I understand it-I am not a learned gentleman-the courts look at Parliament's intent when an Act is brought into being, but we do not know what Parliament's intent is because it is not built into the Bill. How, then, will the courts be able to judge it, when we do not know the Government's exact intentions?
Mr. Heald: My hon. Friend makes the point exactly-what are the courts to make of it? That is worrying if we look at the problems of recent years, which my hon. Friend the Member for Chichester mentioned. Let us take the concern that Alastair Campbell and Jonathan Powell had executive authority over civil servants, were more powerful than the Cabinet and were able to tell civil servants right across Whitehall what to do-the key concern that they had executive powers. The concern about the inquiry into Dr. David Kelly is another example, as Lord Hutton found it difficult to piece together exactly what had happened because there were no records or minutes kept of meetings with civil servants, as they had been conducted in "sofa government" ways.
That had an effect on the formal, traditional ways of doing things. Certainly when I was a Minister, the idea that a civil servant would fail to make a note of a meeting, or even of a ministerial telephone call, did not occur; civil servants would listen in and make notes of the discussions. A record was kept and everyone was protected by it. By the time we get to the Hutton report-this is also true of the Butler report into the war in Iraq-there had been a breakdown in those traditional ways of doing things, which had previously safeguarded the impartiality and objectivity of the civil service, while also being for very good for Ministers, because they provided some formal structure and pattern to the way in which they carried out their work.
It is the breakdown in standards, together with some further changes in the civil service, that led senior former civil servants to say that some form of legislation must be enacted. It is welcome that the Bill is where it is, but it is sad that we have not been able to find in it a definition of a civil servant that is capable of holding water. We want to see protections enshrined in statute partly because, as I alluded to earlier, the nature of the civil service is changing.
There was a time when there was a very standard entry procedure and individuals would move up through the grades, being educated as public servants as they went. In a world where many people are now rightly coming into the civil service without that background, it is important to have more structure than we had before. Over the years, it has been said that we need a provision that clearly defines the role of Ministers' special advisers and the formal civil service. I am glad that the Bill does that, but I also want a proper definition of what a civil servant is, so that we do not end up with a lot of court cases and a mess instead of what should be a major reform.
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Angela E. Smith: I thank hon. Members for their thoughtful contributions and I hope to deal with the points that they have raised.
Most of the debate seems to have revolved around amendment 10, but clause 1 lists the parts of the civil service to which the Bill will not apply. That approach was supported by the Joint Committee that considered the draft Constitutional Renewal Bill. Hon. Members have suggested that the approach in our 2004 draft Civil Service Bill was to define the parts of the civil service to which the Bill applied by providing general descriptions and then listing particular inclusions as well as exclusions.
My hon. Friend the Member for Southampton, Test (Dr. Whitehead) asked whether the Government would continue to try to find the best way of dealing with the matter. The Government have done that on numerous occasions since 2004, which is why we are in our current position. After consideration, it was felt that more frequent amendment of primary legislation would be required if we were to ensure the maintenance of an accurate list. The Bill therefore lists the parts of the civil service to which the provisions do not apply, a move that was supported by the Joint Committee.
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