2 Serving two masters: a unified Civil
Service
Background
8. The devolution settlement enacted in 1998 was
couched as "a process not an event", implying that the
1998 arrangements did not represent an end state but would continue
to evolve.[3] The Civil
Service in the devolved administrations adapted, within the continuing
legal concept of a unified Civil Service. However, in the period
since 1998, little attention has been paid to the impact of the
new divided political leadership under which the UK Civil Service
now operates. The referendum campaign has exposed the practical
reality for the Civil Service under Scottish devolution. For example,
enforcement of the Civil Service Code in Scotland, which constitutionally
should be UK-wide, has been devolved to the Scottish Government's
Permanent Secretary, Sir Peter Housden.
HISTORY
9. Devolution in the UK is asymmetrical: there are
fundamental differences between each devolution settlement. The
arrangements for Scotland and Northern Ireland resemble each other
to some extent, but this resemblance is limited. Both administrations
have a devolved legislature and an executive. Both the Scottish
Parliament and Northern Ireland Assembly have primary legislative
powers, on all matters not reserved to the UK Parliament.
10. A separate Northern Ireland Civil Service was
established under the Government of Ireland Act 1920, which continues
to operate in Northern Ireland today.[4]
The devolution legislation passed in 1998 adopted a different
concept for Scotland and Wales.
11. There was no requirement to legislate for a specific
Scottish Civil Service. Until 2010 the UK Civil Service was constituted
by means of an Order in Council. The Scotland Act 1998 reserved
the Civil Service to Westminster.[5]
There had been a separate Scottish Office since 1885, which already
operated administrative devolution. Following devolution only
certain Scottish civil servants working in devolved subject areas
would report directly to the new Scottish Executive, whereas UK-wide
departments, such as the Department for Work and Pensions, would
continue to report to the UK Government.
12. Written evidence from Richard Parry, a University
of Edinburgh academic, argued that, although the Civil Service
of the Scottish Government "has various managerial relationships
with departments of the UK government as part of the unified Home
Civil Service, this does not compromise its exclusive political
accountability to Scottish ministers, and so talk of a 'dual obligation'
is somewhat misplaced."[6]
Devolved Government, unified Civil
Service
13. Professor Jim Gallagher of the University of
Oxford raised the "interesting general question of how the
civil servants operating for governments that are of different
political complexions should work together."[7]
This underlined the conclusion of our 2013 Report Truth to
Power that "the impact of devolution and decentralisation
on one of our central institutions of state [the Civil Service]
has hardly been given any external consideration, and yet the
consequences are potentially very significant and underappreciated."[8]
14. In Scotland and Wales the Civil Service remains
a UK matter in law.[9]
In practice, however, the Scottish Government and Welsh Government
have autonomy over staffing, promotions and grading, and pay settlements.[10]
The single UK framework tends only to apply to the highest reaches
of the Home Civil Service-the Senior Civil Service.[11]
15. Civil servants in the Scottish and Welsh Governments
are accountable to ministers in their respective Governments in
the same way Civil Servants in UK departments are accountable
to their respective ministers.[12]
The Scottish Government's 2013 written evidence to us for our
earlier inquiry on the future of the Civil Service cited its two-fold
responsibilities:
To deliver the policies of the elected Government
of Scotland, which includes delivering the current Scottish Government's
purpose of creating a more successful country by increasing sustainable
economic growth with an opportunity for all of Scotland to flourish;
and to act with integrity, impartiality, objectivity and honesty.[13]
16. A Memorandum of Understanding between the UK
Government and devolved administrations sets out the expectations
for interactions between the administrations as well as situations
where information may not be shared.[14]
Is the Civil Service still unified?
17. Professor James Mitchell, Professor of Public
Policy and International Relations at the University of Edinburgh,
suggested that there had never been a unified civil service:
We can overstate the extent to which devolution
has affected things. That said, yes, I think things have progressed
further and, informally, there is a distinct Scottish Civil Service.
There always has been, but it is more distinct now than it was
in the past.[15]
18. Akash Paun, Fellow at the Institute for Government,
told us that:
There was a reasonable rationale for maintaining
the unified Home Civil Service at the outset of devolution […]
The perception was that it facilitated a more informal form of
intergovernmental relations that enabled differences to be resolved
without escalating to more formal dispute mechanisms. […]
Over time, however, what we have seen is, first of all, that political
diversion since 2007 has pulled things apart and, also, the gradual
evolutionary change of Civil Services in the respective capitals
becoming more systems unto themselves.[16]
19. The Rt Hon Peter Riddell, Director of the Institute
for Government, suggested that the traditional model of the Civil
Service had adapted to address different governments with different
views and said "it is evident already that, in practice,
Scotland and Wales are at least more distinct Civil Services"
that have, for example, different pay scales.[17]
Of the Scottish Government's Civil Service he said:
Scotland has its own reform plan; it is not the
same as the one that applies here. The Civil Service has changed
an awful lot in Scotland. It is much more outcomedirected.
There have been a lot of reforms. They, of course, have an integrated
rather than departmental Government structure in Scotland. It
has changed a lot, but not in the same ways as in England.[18]
20. Akash Paun argued that it was "more and
more of a constitutional fiction that there is a single unified
Civil Service anymore".[19]
Professor Jim Gallagher pointed out that in practice, the operation,
administration, and pay and rations of the Civil Service in the
devolved administration were a matter of devolved responsibility. "The
only things that are required to be the same are the code and
values, and the peer and grading structure of the most senior
staff."[20]
21. The Rt Hon Peter Riddell told us that, regardless
of the referendum outcome, there would be "an increasing
recognition that there are separate Civil Services within that
umbrella".[21] He
suggested that after the referendum, it would be important to
return to the issue of the future of intergovernmental relations
across the country:
We would argue that all parties need to reassess—it
would probably be after the general election, in practice—and
recognise that there are separate structures […][22]
22. Professor Michael Keating of the University of
Aberdeen was in favour of having a Scottish public service separate
from the UK Civil Service, in order to provide "greater flexibility
for changing the structure of the Civil Service in Scotland".[23]
He noted that the need for this had been somewhat lessened by
the organisation of the Scottish Government, which has changed
considerably "from the Whitehall model".[24]
23. The Scottish independence referendum raised the
broad question of how the civil servants serving governments of
different political complexions should work together, and the
impact for a unified Civil Service regardless of referendum outcome.
Professor James Mitchell told us that "informally, there
is a distinct Scottish Civil Service. There always has been, but
it is more distinct now than it was in the past".[25]
24. In practice
the single unified Civil Service has become something of a constitutional
fiction, since civil servants in Scotland are expected to serve
the Scottish Government in the same way as civil servants in Whitehall
departments serve the UK Government. However, the advantages that
flow from having a single Home Civil Service justify the retention
of a single UK Civil Service.
3 National Assembly for Wales,
The history of Welsh devolution, undated Back
4
nidirect, The Northern Ireland Civil Service, undated, and Section
8 of the Government of Ireland Act 1920 Back
5
Schedule 5,
Scotland Act 1998 Back
6
Richard Parry [SIR7] Back
7
Q 14 Back
8
Public Administration Select Committee, Eighth Report of Session
2013-14, Truth to power: how Civil Service reform can succeed,
HC 74 [incorporating HC 664-i-x, Session 2012-13], September 2013,
paragraph 169 Back
9
Scotland Act 1998, section 51 and Schedule 5, paragraph
8; Government of Wales Act 1998, section 34 Back
10
House of Lords, Select Committee on the Constitution, Devolution: Inter-Institutional Relations in the United Kingdom,
Second Report of Session 2002-03, HL 28, paragraph 151 Back
11
As above Back
12
Derek Jones, Permanent Secretary, Welsh Government, Future of the Civil Service written evidence,
May 2013 Back
13
Scottish Government, Future of the Civil Service written evidence,
May 2013 Back
14
Cabinet Office, Devolution: memorandum of understanding and supplementary agreement,
March 2010 Back
15
Q 382 Back
16
Q 442 Back
17
Q 455 Back
18
As above Back
19
Q 445 Back
20
Q 9 Back
21
Q 442 Back
22
Q 442 Back
23
Q 9 Back
24
As above Back
25
Q 382 Back
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