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Concern was expressed about who would and would not be defined as a civil servant. The hon. Member for North-East Hertfordshire (Mr. Heald) said that it would be difficult for civil service commissioners to have to
decide, in each case, who was and who was not a civil servant. In all the years in which they have operated, they have never raised that concern; nor have they raised it in the context of the Bill. I understand and am grateful for the hon. Gentleman's concern on behalf of the commissioners, but they have expressed no such concern themselves.
I explained the exclusions in our debate on an earlier amendment. However, I can tell the hon. Gentleman again that the civil service, ministerial and non-ministerial Departments, executive agencies and non-civil servants are not covered. [Interruption.] I am trying to be helpful.
"civil service of the State".
I was surprised that the hon. Member for Hemel Hempstead (Mike Penning) was not embarrassed to ask his question. I assure him that it does not test our friendship, because, as always, I am happy to help. However, he admitted that, as a shadow Minister, he does not even know whether, were he ever to be a Minister, one of the bodies that would come under his responsibility would consist of civil servants. I can tell him that it would, and that I should be happy to help him in the future.
Mike Penning: What I was asking was whether that body fell within the scope of the Bill. I was not asking about its current status. The Bill refers to no organisation, so it is a question of interpretation.
The right hon. Member for Horsham (Mr. Maude) mentioned those employed by non-departmental public bodies. As he said, they are not part of the civil service. They have deliberately been placed at arm's length, and it has deliberately been ensured that they are not part of Government Departments.
Mr. Heald: The Minister may have just answered the question. A list was drawn up in 2004. Is she saying that all employees of the bodies that were on that list on 2004, on which there had been consultation, are civil servants, and that the only people who are not are those employed by the security services-as the Bill says-and by non-departmental public bodies?
Angela E. Smith: Everyone who is a civil servant is obviously included unless he or she is specifically excluded. Everyone who signs the civil service code is included unless he or she is specifically excluded.
New clause 33 would require the Minister for the Civil Service to publish an annual report giving details of the structure, cost and state of the civil service, and proposes that separate reports may also be published in respect of the devolved Administrations. Currently, each Department and agency, along with the devolved Administrations, publishes an annual report setting out in detail its work, performance, structure and financial position. The Office for National Statistics is responsible for publishing, each quarter, the number of civil servants employed by each Department and agency. The ONS also produces annual statistics that provide for more detailed information on the composition of the civil service. The detailed information, published by the ONS as "Civil Service Statistics", contains more than 40 different tables, and a range of demographic and other information.
Mr. Maude: Does the Minister not find it slightly embarrassing that the Cabinet Office, where she is Minister responsible for civil service matters, has shrugged off any knowledge of civil service numbers, and regards the information as something to be tracked randomly by the ONS? Is that information not central, and should not the centre of Government be in possession of it?
Angela E. Smith: Mr. Winterton-[Hon. Members: "Sir Nicholas."] I am sorry; Sir Nicholas. I should have thought that the ONS would be quite insulted-as I hope you are not by my mistake-by the word "randomly", and by being dismissed in such a way. I can think of no more authoritative body to provide statistics for the Government, the House and the wider public.
The civil service commissioners publish an annual report on their activities, which could include comments on the state of the civil service. I would argue that comprehensive information is already available. If new clause 33 were accepted, it would duplicate current practice. It would impose additional burdens and costs that would be disproportionate to any perceived benefit-which I cannot identify-and it is really not necessary.
David Howarth: This has been a very frustrating debate. Whenever the Minister has been asked whether a certain body is part of the civil service, she has asserted with absolute certainty that she knows the answer, and has given an answer. If the answer were as clear as that, the Government would surely be in a position to provide a definition, so why have they not done so?
The Minister has said that anyone appointed by the Queen is not a civil servant. That is a good start, but why? She has said, although I was not too sure about this, that everyone who is employed by a non-departmental public body is not a civil servant-or was it every member of one? Again, I was not too sure. Why? Perhaps the members are appointed by the Queen, but obviously the employees are not. I am not sure why that is so clearly the case. Either the Government have at the back of their mind a definition that they are not revealing to us, or they do not have one and are simply trying to look certain about something of which they are not really certain.
This has been an interesting debate. Many points were raised about the general principle of the Bill, which I support for the reasons given by the hon. Member for Chichester (Mr. Tyrie). The most important part of the debate on this amendment and new clause,
however, was initiated by the hon. Member for North-East Hertfordshire (Mr. Heald), who asked what would happen if it was not clear, in a particular case, whether the Civil Service Commission should act or not. If a person complained to the commission that activity within Government was in breach of the code, would the commission have jurisdiction or not? In the first instance, that is an important question for the commission, but what happens if the applicant disagrees with the commission's decision and goes to court? Are the Government saying that they are giving up on the question of what counts as a civil servant and that they will leave it up to the courts, and are doing so in circumstances where, if one were looking for parliamentary intention, it is not possible to tell what that is, because we in this Committee do not know what it is?
The hon. Member for Hemel Hempstead (Mike Penning) gave the example of the Food Standards Agency. The FSA was included in the 2004 draft Bill, but the other FSA-the Financial Services Authority-was not, so the question is this: which FSA are we talking about? The answer to that is unclear.
Mr. Tyrie: Does the hon. Gentleman agree that the courts will use Pepper v. Hart? They will look at what has been said here, and they will find what I think was the only clear definition, which is that anybody who has signed the civil service code is a member of the civil service. That seems to suggest that anybody who decides they want to sign it can then call themselves a civil servant.
David Howarth: I am glad the hon. Gentleman raised that point, because that appeared to be the import of what the Minister said. Since the civil service code is on the web, I presume anyone can print it off and sign it, and thereby define themselves as civil servants. This does not make any sense at all.
Mike Penning: As I understand it, a consultant working in a Department has to sign the civil service code, but they are a consultant rather than employed by the civil service. Will they fall inside or outside the definition?
David Howarth: That is a very good question. Judging by the Minister's account, it depends on whether the person wants to sign it, and if they do want to sign it, then they are a civil servant. This is not at all satisfactory. The problem in terms of the courts is that they will try to work out the intention of Parliament and we are trying to get the Minister to put on record what her intention is, but she seems entirely incapable of doing so. She gives the impression that she has some sort of definition to hand, but we cannot work out what it is. She gives examples, but if one attempts the normal case law technique of joining them together to produce a rule, one cannot work out what the rule is that lies behind those examples. This seems to me to be entirely the wrong approach, and if the Joint Committee supported that approach, it could not have been in a position to work out what it was doing.
Dr. Tony Wright: I have some sympathy with what has been said, but as someone who has sat through countless discussions of this issue over the years I have to say that the conclusion the Government have arrived at is the conclusion most people have arrived at: that this is the only simple way to deal with the matter.
David Howarth: If the distinguished Select Committee Chairman is saying that the only way to deal with this is to leave it to the courts, that is a counsel of despair, especially in circumstances such as these in which we are not offering the courts any guidance. The approach in the 2004 Bill seems to me to be better. If one cannot offer a coherent definition, the next best thing to do is not to do nothing, which is what the Government are doing, but to provide a list. The 2004 Bill did that, and amendment 10 would require the Government to go down that road. It would also give them the power to change the list from time to time.
I do not want the Committee to divide twice on the same issue, and I recognise that new clause 33 includes within it the same idea that the Government should be under an obligation effectively to tell us who they are counting as being in the civil service. New clause 33 would also goes further than amendment 10 by requiring important information about costs, and I fully support what was said about that. Therefore, if an opportunity arises to support new clause 33 in the Lobbies, I will urge my hon. Friends to do so, but I beg to ask leave to withdraw the amendment.
Following the tortuous nature of the previous discussion, I offer brevity and simplicity. I also rise to press the merits of an amendment that I assume the Government will have no difficulty in accepting. I simply want to remove the single phrase "in exceptional cases" from the reporting requirements being laid upon the Civil Service Commission, as I can see no reason why it should be included.
In the previous exchanges my right hon. Friend the Minister prayed in aid the commission and said it had raised no issues about the matter under discussion. It is fair to say, however, that it has expressed concerns about its ability to undertake investigations of code-related matters and of civil service-related matters when it thinks it is appropriate to do so and to report on those to the House.
"I think we agreed in the end that we might well be involved in an investigation if we saw a matter so serious or in fact so systematic, and I repeat that because, if what we were hearing from any source was that there was a systematic concern, then clearly that would be exactly the kind of issue that might cause the Commissioners to launch an investigation of their own to see just what was going on."
"Despite some concerns about the potential for politicisation and resource constraints, the commissioners recognised that there may be occasions where it would be right for the commission to carry out such an investigation if there were clear evidence of a
significant breach of the code. We would therefore support an approach which gave the commission in addition to the duty to consider a complaint from the civil servant-clause 9-the discretion to investigate matters at its own initiation. We would envisage that the commission would want to exercise this discretion only in cases where the burden of suspicion was substantial."
Therefore, we have the commissioners firmly saying that they do think it would be appropriate for them to have the ability to undertake investigations of civil service issues on their own initiative, and by extension to report on such matters under their reporting obligations. We have a similar arrangement with the parliamentary ombudsman, who is a servant of this House. We ask the ombudsman to produce reports on cases and to produce an annual report, but we explicitly give that office the ability to make special reports to the House where there are particular issues it wants to bring to the House's attention. It is entirely sensible and straightforward that we would give a similar provision to the commissioners. They want a provision of this kind and it seems sensible for them to have one, and I am sure the Government cannot think of any reason why they cannot have it. I am simply asking for these restrictive words to be removed from the Bill.
Mike Penning: I also rise to support the amendment tabled by the hon. Gentleman. When the Minister rises to say whether she supports this provision, can she say exactly what the "exceptional circumstances" are? "Exceptional circumstances" could mean something completely different to me, to the Minister, the courts, to the civil service or to the commission. What does "exceptional circumstances" mean? If the Minister can define that exactly in law, the judges will not necessarily have such a field day when this provision comes before them, which I am sure it will.
David Howarth: I was going to raise exactly the same point, and would simply add this. Who decides whether a case is "exceptional"? If the commissioners decide what is exceptional, the amendment of the hon. Member for Cannock Chase (Dr. Wright) does not achieve very much, because it is purely within the commission's discretion to decide. If Ministers are to decide, that would obviously be completely objectionable. Ministers should not be able to make such a decision; that would undermine the commission's independence. If the courts are to decide, that just adds to the complication of the situation without any obvious benefit.
The Minister's choices in replying to the debate appear to be these. She should either say that the commission itself gets to decide what the "exceptional circumstances" are-in which case, why is the phrase in the Bill at all?-or she should just give way to the amendment proposed by the hon. Gentleman.
Mr. David Heath (Somerton and Frome) (LD):
I am grateful to my hon. Friend for giving way; I just want us to proceed with this debate in good order. Several Members, including my hon. Friend, have used the
phrase "exceptional circumstances". Actually, the term in the Bill is "exceptional cases", which is slightly different. It is easier to define "exceptional circumstances" than it is the "exceptional cases" that must be brought to one's attention by the report. In fact, it is even more difficult for the Minister to defend that inclusion within the schedule.
David Howarth: I thank my hon. Friend, who is absolutely right: the phrase is "exceptional cases", which raises a further question about what kind of case is involved. Does this mean a case brought before the commission on a particular complaint? What other kind of case is it? [ Interruption. ]
Mike Penning: The Justice Minister is indicating from a sedentary position that Members of this House should not stand up and scrutinise the Bill, which gives us an indication of the way this Government are going.
Mike Penning: No, I am not going to give way. I absolutely agree with what the hon. Member for Cambridge (David Howarth) has just said. The phrase "exceptional cases"-I am sorry, Sir Nicholas, if I slightly misled the Committee when I used the phrase "exceptional circumstances"-makes it even more difficult for the commission to define what it should look at and what it should not. Surely the logical thing to do is to remove this phrase and let the commission decide, which is what it is there for.
Schedule 1 contains provisions relating to membership of the new Civil Service Commission; the appointment of the First Civil Service Commissioner and the commissioners, and their tenure of office; the status and powers of the commission; the regulation of its proceedings; the appointment of staff; arrangements for assistance; delegation and committees; financial provisions; accounts; publication of the commission's annual report; and transitional arrangements relating to the old Civil Service Commission.
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