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9.15 pm
The Minister has been asked repeatedly, even during the debates on the first three clauses, to explain what has changed between the time of the draft Civil Service Bill in 2004 and the Bill before us today. I must say that the explanations given by her advisers have not always been convincing. I hope that, on this occasion, we will at least get some sort of explanation of why a provision that was felt necessary in 2004 is not felt necessary in 2009. In the absence of such an explanation, it is hard to give any credibility to the clause.
Mrs. Laing: The hon. Member for Somerton and Frome (Mr. Heath) has got his priorities a bit mixed up. It is touching that he wishes to protect civil servants, but I believe that it is the duty of the House to require the accountability of civil servants. That accountability is derived through ministerial accountability to Parliament. There has to be a chain of accountability, therefore, from civil servant to Minister to Parliament. That is what the Conservative party, in other circumstances, has proposed. In so far as the clause brings that about, to a certain extent, we support it. I am disappointed to see the hon. Gentleman get his priorities so mixed up. I hope that the Minister has not got her priorities mixed up.
David Howarth: Is the hon. Lady saying that any Government of whom she might be a member would think it appropriate for Ministers to hire and fire individual civil servants?
Mrs. Laing: Of course not; that is already protected. The Liberal Democrats should not be quite so touchy; my criticism of them does not mean that I am saying that everything that they have said is wrong. They ought to calm down. I am merely saying that the real issue is accountability. It is a pity that clause 3 does not go further in respect of the accountability of civil servants and Ministers to the House, which is then accountable to the people. That should be the principle on which we work.
Angela E. Smith: I listened with interest to the hon. Member for Somerton and Frome (Mr. Heath) talking about why his new clause was not selected. I put it to him, however, that it might have had the advantage of topicality, but it had the disadvantage of not being relevant to the civil service-it was not about civil servants.
The Government made it clear in their response to the Joint Committee that the provisions in the Bill do not alter the current power to manage individual civil servants. That will, as now, continue to be delegated to the head of the civil service and to permanent heads of Departments.
David Howarth: Will the Minister give way?
Angela E. Smith: I will do so only if the hon. Gentleman promises to make a sensible point.
David Howarth: I am not sure whether the Minister's point was sensible. She said that independent scientific advisers are not civil servants. How does she know?
Angela E. Smith: Because they do not have a civil servant contract. They have not signed the terms and conditions of a civil servant. They have not signed up to the ministerial code. The case to which the hon. Member for Somerton and Frome referred did not involve a civil servant.
I understand the hon. Gentlemen's concerns, but the provisions in the Bill do not signal a change in ministerial involvement in individual appointments. The power to appoint is constrained by subsequent clauses that require recruitment to the civil service to be based on merit, following fair and open competition. That is regulated by independent civil service commissioners in accordance with recruitment principles. Civil servants are protected by statutory legal protection and employment laws. It is right that the power to manage remains with the Minister for the Civil Service and the Secretary of State, who are, as the hon. Member for Epping Forest (Mrs. Laing) made clear, ultimately accountable to Parliament for the management of the civil and diplomatic services respectively, including for the setting of terms and conditions overall.
The civil service code makes it clear that the civil service
"supports the Government of the day in developing and implementing its policies, and in delivering public services."
The code also makes the very point that I have just made, which is that civil servants
"are accountable to Ministers, who in turn are accountable to Parliament."
There appears to be some misunderstanding on the Liberal Democrat Benches about the approach of the Bill. The Bill has taken a principles-based approach. None of the principles has changed since 2004, and it has not been felt necessary to list specific activities or specific civil servants, as the hon. Member for Somerton and Frome would seek to do. With that explanation, I hope that the clause will stand part of the Bill.
Mr. Heath:
I have now heard two speakers, from the Conservative Front Bench and from the Government Front Bench, who are muddled in their thinking and completely misunderstand the basic process that the Bill is intended to elucidate. The hon. Member for Epping Forest (Mrs. Laing) went off on a mini-tirade about how we were completely wrong to question whether
Ministers should hire and fire civil servants. When my hon. Friend the Member for Cambridge (David Howarth) put it to her that she might support the hiring and firing of civil servants by Ministers, she said that of course she did not and that that was outrageous. We really do expect some coherence of thought and some logic in the contributions made in this Committee, especially from the Front Bench of a party that aspires to government.
Mrs. Laing: The hon. Gentleman has completely misrepresented what I said. He is so touchy that the slightest criticism appears to send him into a temper. I do not want to take any more of the Committee's time on this matter, but he must not misrepresent what I said.
Mr. Heath: I am indeed in a temper: a good temper, as I always am. When the Official Report is studied, it will be clear what the hon. Lady said and how little it resembles what she apparently means.
When it comes to the Minister, however, I shall ask the question again-obviously I am not going to get a response, so this is the last time that I will ask it. Why was something right just in 2004? It was not right because I tabled it as an amendment or because the Joint Committee said that it wanted it, but something that the Government put down as a crucial element, using the following words, which I have already quoted:
"Nothing in this section confers...power to recruit, appoint, discipline or dismiss civil servants".
One would have thought that that was a key protection, but now the Minister says, "It's completely unnecessary: it's understood; it's tacit. We no longer need to say that." What has changed?
Why was that necessary then, probably on the advice of some of the same civil servants who now advise her that it is not necessary? I do not think it unreasonable for the Committee to be given an explanation about that. Simply to assert that something that the Government said was necessary is now not necessary is an insufficient argument. It is very regrettable that we are proceeding with the Bill on the basis of assertion and counter-assertion, rather than explanation and consideration of the underlying principles.
Angela E. Smith: It is with some regret that I rise again to speak on this issue, but the hon. Gentleman misunderstands the whole basis of the Bill. He asks what has changed since 2004. In principle, nothing has changed. The points that he made are there: a principles-based approach is being taken. He says that there is nothing-
David Howarth: Will the Minister give way?
Angela E. Smith: If I may finish the point, it might help the hon. Gentleman to listen before jumping in.
The Joint Committee heard the same arguments. The provisions do not alter the current position that the power to manage individual civil servants can, as now, be delegated to the head of the civil service. That was good enough for the Joint Committee, which debated and engaged with Ministers on the issue, and which is content with the response. It is only the hon. Member for Somerton and Frome (Mr. Heath) who fails to understand the difference.
David Howarth: The Minister seems to be saying that this is now a principles-based Bill, as opposed to a rules-based Bill, but then the question is: what principle did the previous rule represent? The principle that the previous rule represented, it seems to me, was the principle that Ministers should respect the impartiality of the civil service. However, that principle is not in the Bill, and we have had to design a new clause to try to insert it. If that is not the principle that was involved, what principle was involved?
Angela E. Smith: I sometimes wonder whether the hon. Gentleman is serious about the points that he puts forward. The impartiality of civil servants is in the legislation; it is quite clear-
David Howarth: But not Ministers.
Angela E. Smith: Ministers' respecting that impartiality is implicit in the Bill. If Ministers are putting forward a Bill to the House and that Bill includes the impartiality of civil servants-
Angela E. Smith: I give way in exasperation to the right hon. Gentleman.
Mr. Maude: I am grateful to the Minister for confirming that the Bill intends to make no change to the current arrangements, which have persisted reasonably successfully for a long time without serious challenge. Will she also confirm that the protection for civil servants against ministerial political interference in recruitment, dismissal or promotion lies with the Civil Service Commission, as it has done for many years before this Bill eventually came along, and that that protection will be given greater entrenchment by the Bill?
Angela E. Smith: It does indeed; that is one aspect of it. It is also entrenched in the ministerial code, which ensures that Ministers should respect the impartiality of civil servants. I think that that is quite clear, but I suspect that the hon. Gentlemen on the Liberal Democrat Benches might wish to make that point, as they are not fully conversant with the legislation.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4 ordered to stand part of the Bill.
Question proposed, That the clause stand part of the Bill.
David Howarth: Clause 5 is about the civil service code, to which the Minister has just referred. She also claimed that the ministerial code was entrenched in the Bill. Will she explain which clause mentions it? It is not defined anywhere in the definitions section; I think that she must have misspoken.
Angela E. Smith: No, I did not say that the ministerial code was in the Bill. I said that the ministerial code enshrines the impartiality of civil servants, and that Ministers respected that impartiality.
David Howarth: I must therefore conclude that the ministerial code will not be statutory and will not have the same degree of protection that the civil service code will have, as it is the purpose of this clause to entrench that protection in law. The Minister must recognise that it is a deliberate policy decision by the Government not to give statutory force to the ministerial code because they do not want the courts to interfere with Ministers. That is fine, but I do not think she should pretend that the situation is otherwise.
Angela E. Smith: Any Minister who tried not to adhere to the principles of the ministerial code would find that they had to deal with the normal processes of government, and that they might not be a Minister for much longer.
Mrs. Laing: I would like to ask the Minister why it is deemed necessary to specify, in clause 5(2), that
"the Minister may publish separate codes of conduct covering civil servants who serve the Scottish Executive or the Welsh Assembly Government."
Given that codes of conduct are about matters of principle, why should those principles be different for civil servants who serve the Scottish Executive or the Welsh Assembly? I appreciate that the policies and procedures are different, as indeed they should be in a devolved situation, but why should the codes of conduct be different?
Angela E. Smith: The codes might not necessarily be different, but they may be different if, after consultation with the devolved Governments, different issues needed to be addressed. That is something that the Government would discuss with them. So they might address different circumstances from time to time, but they do not have to.
Clause 5 accordingly ordered to stand part of the Bill.
Clause 6 ordered to stand part of the Bill.
9.30 pm
Mr. Maude: I beg to move amendment 50, page 4, line 29, at end insert
'with a fiduciary responsibility to spend taxpayers' money responsibly.'.The civil service code and its entrenchment in statute is the central part of the civil service portion of the Bill. It is extremely important; we strongly support it. In a way, clause 7, which sets out some minimum requirements for that code, is the heart of this part of the Bill. We strongly support the values promoted here-integrity, honesty, objectivity and political impartiality. I am conscious that because the provision is so important, there is a danger of wanting constantly to add bells and whistles as if it were a Christmas tree, but we believe that a further minimum requirement should be added.
As the Conservative party outlined in a paper, "It's Your Money", published in February this year, a fiduciary responsibility should be placed on civil servants. The
term generally means that someone trusted with the assets, wealth or well-being of a third party has a responsibility to manage them in the best interests of that third party. We believe that that is essentially at the heart of much of what the civil service does, and we would like to see it enshrined in the code.
We believe that all employees in the public sector should abide by the principles of fiduciary responsibility, but the proposed code does not cover the full spectrum of people employed by the state. We discussed in the context of clause 1 the lack of a definition about who is covered. Many contract workers, agency temporary workers or employees of non-departmental public bodies are not covered by the civil service code. We propose that a separate code should be established for those employees, stressing the same fiduciary responsibility.
I stress that we do not propose this fiduciary responsibility in any hostile spirit to civil servants; rather, I would say, the reverse. I believe that this provision would provide protection for civil servants, especially if it were backed with the amendments and new clauses grouped together on clause 9, which would place an obligation on Ministers-building on a point made previously-to respect the civil service code. Of course, the ministerial code already does that, although it is not, as the hon. Member for Cambridge (David Howarth) rightly pointed out, entrenched in statute, but nor would the Bill achieve that.
Ministers have a duty to respect the civil service; they should respect not only its code of values, but its role in providing advice. Of course Ministers are not obliged to accept the advice of their civil servants, but they should surely always seek it, listen to it and make judgments after assessing it. When public money is spent badly or inefficiently, it is very often the consequence not of civil servants being lax, careless, inefficient or hopeless, but of them being forced to do things by unwise ministerial decision, often in the face of civil servants' advice.
I cited on Second Reading the example of the introduction of tax credits. It is now well attested that the then Chancellor, now the Prime Minister, was strongly advised by civil servants in both the Revenue and the Treasury that the way he proposed to proceed with tax credits would introduce serious risk of fraud and error, all of which came about. The advice was ignored and the result was a grave misuse of public money, not to mention the enormous human misery caused to hundreds of thousands of low-paid, hard-working people who found themselves required to pay back money that they had received in good faith. Those people thought that they were doing the right thing and obeying the law. The point about incorporating this fiduciary responsibility into the code of conduct is that if in those circumstances a Minister tells civil servants that they must go ahead and implement the policy regardless, against their own advice, there is at least some protection for those civil servants.
Mr. Gordon Prentice: Is that not already covered by the designation of permanent secretaries as accounting officers for the Departments for which they are responsible?
Mr. Maude: There is no harm in making that designation more explicit, and giving it some teeth by entrenching it in statute.
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