Joint Committee on the Draft Constitutional Renewal Bill

Joint Committee on the Draft Constitutional Renewal Bill First Report

CHAPTER 6: THE CIVIL SERVICE

239._It is now 154 years since Northcote and Trevelyan called for a Civil Service Act of "a few clauses" to set in legislation the framework for the modern civil service. But the civil service continues to be managed under the royal prerogative. Much happened in the intervening years—in Parliament and outside—before the publication of the Constitutional Renewal Draft Bill and White Paper in March 2008. Table 1 provides a chronology of the major reports and events.

TABLE 1

Chronology of relevant reports and events

1854	Northcote-Trevelyan Report on The Organisation of the Permanent Civil Service
1928	Treasury circular setting out the general principles governing the obligations and standards of conduct of civil servants
December 1987	Memorandum of Guidance on the Duties and Responsibilities of Civil Servants in relation to Ministers, issued by the Head of the Civil Service
November 1994	Treasury and Civil Service Select Committee report on The Role of the Civil Service, which called for a deliberately limited piece of legislation[132]
January 1996	Civil Service Code introduced, setting out responsibilities and duties of civil servants
April 2003	Committee on Standards in Public Life report Defining the Boundaries within the Executive: Ministers, Special Advisers and the Permanent Civil Service[133]
December 2003	Lord Lester of Herne Hill introduces private member's bill Executive Powers and Civil Service Bill[134]
January 2004	House of Commons Public Administration Select Committee (PASC) report A Draft Civil Service Bill: Completing the Reform[135]
November 2004	Government White Paper A Draft Civil Service Bill: A Consultation Document[136], which the Lord Chancellor told the House of Lords Constitution Committee would form the template for the current legislation[137]
January 2006	Lord Lester of Herne Hill introduces private member's bill Constitutional Reform (Prerogative Powers and Civil Service etc.) Bill
June 2007	PASC report on Machinery of Government Changes[138]
June 2007	PASC report on The Business Appointment Rules[139]
July 2007	Government Green Paper The Governance of Britain[140] which committed the Government to bring forward "concise and focused" legislation on the civil service
March 2008	Government Constitutional Renewal White Paper and Draft Bill[141]
June 2008	PASC report Constitutional Renewal: Draft Bill and White Paper[142]

240._In 17 clauses, Part 5 of the Draft Bill puts a statutory framework around the civil service setting out its role, governance and values; puts the Civil Service Commissioners on a statutory footing; and sets out the historic principle of appointment on merit on the basis of fair and open competition. Overall, the civil service provisions in the Draft Bill have received overwhelming support. Like our witnesses, we welcome the Government's intention to put the civil service on a statutory footing. In this Chapter we comment in more detail on the individual clauses and recommend some improvements we would like to see made to the Draft Bill.

Definitions (clauses 25 and 41)

241._There is no outright definition of the civil service in the Draft Bill. Clause 25 states that Part 5 applies to "the civil service of the state" and lists those parts that are excluded from this general definition: the security and intelligence services (covered by a separate statutory framework); Government Communications Headquarters (GCHQ); and the Northern Ireland Civil and Court services. This approach contrasts with the Government's 2004 Draft Bill in two ways. First, it takes a general approach to defining the civil service, whereas Schedule 1 to the Government's 2004 draft bill set out each part of the civil service to which the Draft Bill applied, as well as those parts excluded from it. Second, it excludes GCHQ, which was included in the 2004 draft bill. We examine each in turn.

GENERAL APPROACH TO DEFINING THE CIVIL SERVICE

242._We heard a number of concerns about the Government's general approach. The First Division Association (FDA) argued that the Draft Bill "lacks clarity" about who is a civil servant. Both they, the Public and Commercial Services Union (PCS) and Prospect called for clarification of the terms 'Servant of the Crown', 'Crown Servant' and 'Crown Employee'—all used in the Draft Bill. (Ev21, para 10, Ev25, para 21) The Better Government Initiative questioned whether the lack of a precise definition in the Draft Bill was "because the meaning of the [civil service] is thought to be sufficiently clear in law or because there are underlying difficulties about defining what the Civil Service is for the purposes of the Bill." (Ev19) The unions also raised concerns that the Draft Bill did not "appear to guarantee the employment status of civil servants under law". PCS argued that the Draft Bill should be amended "to provide that those civil servants that fall within Part 5 should be deemed to have contract of employment within the meaning of ... the Employment Rights Act 1996." (Ev25, paras 17 and 21. See also Ev21, para 7)

243._We also heard evidence supporting the Government's approach. Sir Christopher Kelly, Chairman of the Committee on Standards in Public Life, told us that the approach "puts more focus on the exceptions", making them identifiable. (Q 408) The Cabinet Secretary was content with the clarity of definitions and said that "the alternative, which was put in the draft 2004 Bill, of listing the parts suffers from the problem that actually these things change quite rapidly as decisions are made". (Q 552)

244._Defining who is a civil servant is clearly not easy and has been a matter of debate for some time. We note that the PASC had "no objection to either way of defining the civil service, so long as it is clear which public servants are civil servants and which are not." Whilst we support the Government's approach to the definition of the civil service in the Draft Bill, we note concerns about the ambiguity of who is and who is not a civil servant. Before the Bill is introduced, the Government should provide greater clarity about who is a civil servant and address the unions' concerns about employment status.

EXCLUSION OF GCHQ

245._GCHQ is excluded from the definition of the civil service by clause 25(1)(c) of the Draft Bill. The consequence of this exclusion is that two statutory provisions would not apply to GCHQ: access to the Civil Service Commissioners; and the requirement to recruit staff on merit on the basis of fair and open competition.

246._Some witnesses were unhappy that GCHQ was excluded. PCS argued that the exclusion "may render the accountability process incomplete". (Ev25, para 4) The Committee on Standards in Public Life was "not clear" why GCHQ was now excluded. (Ev20, para 6. See also Ev50, para 5) The First Civil Service Commissioner was concerned "to make sure that the civil servants at GCHQ were not disadvantaged in any way either in relation to appointment on merit or indeed the requirement, or protection, of the Civil Service Code". (Q 559) However, we also heard significant support for the Government's treatment of GCHQ. The Cabinet Secretary, two former Cabinet Secretaries, Lord Wilson of Dinton and Lord Turnbull, Sir Richard Mottram and Professor Peter Hennessy, Attlee Professor of Contemporary British History, Queen Mary, University of London, supported treating GCHQ in the same way as the Security and Intelligence Agencies. (Q 407, 429, 431, 552)

247._As noted in paragraph 245, the Draft Bill contains no requirement for staff at GCHQ to be recruited on merit. Lord Wilson, Lord Turnbull and Sir Richard Mottram agreed that there should be a non-statutory obligation on Agencies to recruit on merit. (Q 407, 429, 431, 552) Sir Christopher Kelly supported this and agreed "the presumption is that is where you start and then you have to justify the exceptions." (Q 408) The Cabinet Secretary pointed out the practical limitation of an absolute requirement for appointment on merit: "I was thinking about precisely how you would, if you were an intelligence agency, meet the condition of fair and open competition when you were trying to recruit agents from another country, for example, and it strikes me that you would not put an advert in Pravda". (Q 552)

248._The Civil Service Commissioners were "not persuaded" of the decision not to include GCHQ in the statutory process of appeals to the Commissioners, a facility which is currently open to them. (Ev50, para 5) However, Lord Turnbull argued that GCHQ needed a separate confidential complaints procedure, "because there are a number of differences in the way those services operate." (QQ 429-431) Sir Richard Mottram argued it would be "undesirable" for legislation to place a statutory duty on GCHQ to open up its personnel files to scrutiny of the Commissioners. (Q 407)

249._We agree with the Government's approach to treating GCHQ in the same way as the other Security and Intelligence Agencies by excluding them from the definition of the civil service in the Draft Bill. But in taking this approach, the Government must ensure that GCHQ staff are given the same right of access to an independent complaints mechanism as the other Agencies. We also seek an assurance from the Government that, as a general rule, staff at GCHQ will be recruited on merit.

The Civil Service Commission (clause 26 and Schedule 4)

250._The Civil Service Commission is currently constituted on the basis of a prerogative Order in Council. Clause 26 of the Draft Bill puts the Civil Service Commission on a statutory footing as a non-departmental public body (NDPB). Schedule 4 sets out the main functions and terms of appointment of the Commissioners. We explore three issues arising from these provisions.

FINANCIAL AND OPERATIONAL INDEPENDENCE OF THE COMMISSION

251._Part 2 of Schedule 4 sets out how the Commission will operate, including provision in paragraph 16(2) that the Minister, in providing funds to the Commission, "may impose conditions about how some or all of the money is to be used". PASC expressed concern that it was "not appropriate for the Executive to have the power to control not only how much money is made available to the Commission, but also how that money should be spent". PASC invited us to consider further how complete financial and operational independence could be achieved.[143] The Civil Service Commissioners told us that this issue of independence was "crucial to how the Commission will in future be perceived". (Ev50, para 20)

252._Several witnesses argued that legislation in itself provided a degree of independence. (Ev36, para 4, Ev25, para 6) The First Commissioner was more ambivalent: "In some ways, I suppose, you could argue that we will have more independence once our remit is actually defined in statute". She argued for additional provision in the Draft Bill "to safeguard the Commission from government interference" in the exercise of its functions. (Q 562 and Ev50, para 20)

253._On the specific issue of funding, the Civil Service Commissioners argued that a key aspect of their independence was "sufficient funding to enable [the Commission] to meet its responsibilities effectively ... Undoubtedly, the First Commissioner will comment publicly if she thinks the Commission has not been given sufficient funding. However, it would help to emphasise the Commission's independence if the First Commissioner was required by the draft Bill to report annually on the adequacy of the funding." (Ev50, para 22) Lord Wilson told us that any Civil Service Commissioner "worth their salt would make a special report to Parliament" if they felt their funding was inadequate. (Q 439) Lord Turnbull argued that there were ways to "ring-fence" the Commission's budget and that "more can be done to give the Commission an assurance". (Q 439)

254._We share the concern expressed by the Public Administration Select Committee and many of our witnesses that the current provisions of the Draft Bill do not do enough to guarantee the financial and operational independence of the Civil Service Commission. The Government should look again at what amendments need to be made to safeguard the Commission's independence from Government. In particular, we recommend that the Draft Bill be amended to require the Commissioners to report annually to Parliament on the adequacy of their funding.

APPOINTMENT OF THE FIRST COMMISSIONER AND OTHER COMMISSIONERS

255._Paragraphs 2 and 3 of Schedule 4 of the Draft Bill make provision for the appointment of the First Commissioner and other Commissioners. The First Commissioner is appointed for a five-year, non-renewable term on the basis of a recommendation from the Minister for the Civil Service to Her Majesty. In making a recommendation, the Minister must consult the First Ministers for Scotland and Wales and the leaders of the main opposition parties. The other Commissioners are appointed for five-year, non-renewable terms on the basis of a recommendation from the Minister to Her Majesty. The Minister must have the agreement of the First Commissioner for the appointment of Commissioners unless he is satisfied it is appropriate to appoint without the First Commissioner's agreement.

256._Lord Turnbull told us that he would prefer the First Commissioner's term of office to be seven years, "which would also make it possible to promote an existing Commissioner to First Commissioner and still leave time for a viable term of office." (Ev59) The First Commissioner argued five years was "probably the right amount of time" to maintain distance between the regulator and departments. (QQ 563-564) We agree with the Government that a five-year term is appropriate for the First Civil Service Commissioner.

257._In its recent report, PASC recommended that the Minister should be required not just to consult the Leader of the Opposition about the appointment of the First Commissioner but also to seek their agreement. This was supported by the FDA. (Ev21, para 19) The Constitution Unit went further and suggested the Government should also be required to consult the Chairman of PASC. (Ev07, para 4.5) Lord Turnbull argued that "consult" (rather than having to seek agreement) was "the right word". (Q 439) We agree that the Minister for the Civil Service should be obliged to consult the First Ministers of Scotland and Wales and the leaders of the main opposition parties about the appointment of the First Civil Service Commissioner, but should not be obliged to seek their agreement.

258._The Commissioners made two additional suggestions for amending the Draft Bill. First, the Draft Bill should require Commissioners themselves to be selected on merit on the basis of fair and open competition, to "further underpin their independence". Second, the Draft Bill should make provision "for the payment of pensions and compensation for loss of office to all Commissioners and not just the First Commissioner." Although the Commissioners told us that currently it was not their intention to extend these provisions to the part-time Commissioners, such a provision would allow future flexibility "if the part-time nature of the Commissioners' roles become more full-time." (Ev50, paras 20-21, Q 562) We support both of these suggestions. We recommend two amendments to the Draft Bill in respect of the Commissioners. First, Schedule 4 should require the Commissioners to be appointed on merit on the basis of fair and open competition. Second, paragraph 6 of Schedule 4 (Compensation for loss of office of First Commissioner) should be extended to allow compensation for loss of office for all Commissioners.

FUNCTIONS OF THE CIVIL SERVICE COMMISSION (CLAUSES 32, 37 AND 40)

259._The Draft Bill gives the Commission a number of statutory functions. Clause 32 requires the Commission to investigate and consider a complaint made under the Civil Service Code, and make recommendations about how the complaint should be resolved. Under clause 37(1) the Commission must, if it thinks it necessary, carry out reviews of recruitment policies and practices to ensure that the requirement for appointment on merit on the basis of fair and open competition is met. In addition, clause 40 makes provision for the Commission to carry out additional functions, but only with the agreement of the Minister for the Civil Service. We asked witnesses whether these functions were sufficient, and specifically whether the Draft Bill should give the Commission the power to initiate investigations without a complaint having been made and without the approval of the Minister.

260._PCS expressed concern that if consent of the Minister were required to initiate an investigation, it "may bring about conflict of interest". (Ev25, para 6) Others argued that the role of the Commission should "not be circumscribed" or blocked by Government. (Ev04, para 16-17, Ev07, para 4.5, Ev36, Ev24, para 3) Sir Christopher Kelly told us he found it "a little difficult to understand why, if you are a regulator, you would not want to have this power". (Q 410) Sir Richard Mottram acknowledged that such a power might have resource implications for the Commission, but argued that resource constraint was not "an appropriate or decisive consideration." (Q 410)

261._However, the Cabinet Secretary told us he "would really worry about giving Commissioners that sort of discretion because, if someone wants to question that discretion as to why it was used in one case rather than another, then you get into some difficult territory." (Q 566) Other witnesses were more uncertain. The First Commissioner said "you will have seen me quoted as sitting on the fence, not a place I normally comfortably land myself, but I do find this a very difficult area ... Nonetheless, as an independent regulator, it is actually quite difficult to argue that we should not have this power". She suggested the power might be limited to "investigations where there was sufficient evidence". (Q 565) Jonathan Baume, General Secretary of the FDA, explained that the FDA had "been hesitating" on this issue but that "it seems to make sense that that provision is there for the Commission in certain special circumstances which only they can determine." (Q 386) In written evidence the Commissioners expressed concern that such a power might politicise the Commissioners' role. (Ev50, paras 11 and 14) Lord Turnbull agreed that it might "provoke attempts by third parties to pursue their grievances by trying to suck in the Commissioners". (Ev59) Lord Wilson agreed. (Ev60)

262._PASC suggested a compromise: the Commission should have the "power to conduct independent investigations into the operation of the Civil Service Codes, other than in response to specific complaints from civil servants, and without the need for Government consent."[144] The Commissioners agreed that this approach "might offer the right balance ... the Commission would want to exercise that discretion only in cases where the burden of suspicion was substantial." (Ev50, para 15) Lord Wilson agreed that the problem would be reduced if "the power was limited to matters relating to compliance with the Codes." (Ev60, see also Ev20, para 7, Ev19, Ev21, para 23)

263._We agree with the Public Administration Select Committee and the Civil Service Commissioners that the Draft Bill should be amended to give the Commissioners the right to carry out investigations into the operation of, or compliance with, the Civil Service Codes without a specific complaint having been made and without the consent of the Minister for the Civil Service being required. In order to avoid undue pressure on resources, or any risk of politicising the role of the Commissioners, the drafting of this provision should make clear that the use of this power should be limited to instances where the Commissioners consider there is sufficient evidence to warrant an investigation.

Ministerial power to manage the civil service (clause 27)

264._Clause 27 gives the Minister a statutory power "to manage the civil service", including "among other things, appointment and dismissal and the imposition of rules on civil servants". The power is given to the Secretary of State to manage the diplomatic service. This power is wider than that in the Government's 2004 draft bill which expressly excluded the "power to recruit, appoint, discipline or dismiss civil servants" and than the current power set out in the 1995 Civil Service Order in Council. PASC noted that the Government had changed its position "dramatically" and concluded that "giving Ministers the general power to appoint and dismiss civil servants does not seem in keeping with the Government's commitment to a civil service recruited on merit and able to serve administrations of different political persuasions."[145]

265._A number of witnesses shared PASC's concern. The FDA were worried that there was "no constraint" to prevent Ministers intervening in issues about the employment of individual civil servants. (Ev21, para 8) Jonathan Baume argued "it looks unusual that we will put into statute a power for a politician in effect to hire and fire civil servants" and called for this power to be vested in the Head of the Home Civil Service. (QQ 369-371) Lord Turnbull was adamant that "Ministers should not get within a million miles of appointment and dismissal of any particular civil servant ... This particular drafting gives the impression wrongly and it is not what is intended." (Q 423) The Civil Service Commissioners similarly assumed that the right of the Prime Minister to appoint and dismiss civil servants was "not the intention of the clause" and called for clarification. (Ev50, para 10)

266._We raised these concerns with the Lord Chancellor who explained that "it was originally proposed [in the 2004 draft bill] to retain under the prerogative powers of appointment and dismissal, and what we are seeking to do is to have the powers of appointment, et cetera, in a statutory framework ... there has to be a Minister responsible for the Civil Service to Parliament but in practice whose powers are very constrained". (Q 758) Lord Wilson told us that the current position was that a Minister could be called to account for the appointment or dismissal of individual civil servants. He reminded us of the dismissal in 1995 of Derek Lewis as Head of the Prison Service: "it was [Michael Howard, then Home Secretary,] who took the decision ... it was Mr Howard who accounted to Parliament for it ... That was formally the correct decision. I am not sure [clause 27] is doing more than a transposition of the position as it already is." (Q 425)

267._In principle, we support the approach in clause 27 of the Draft Bill that the Prime Minister should be responsible for the civil service, including ultimately for appointment and dismissal. However, while Ministers can legitimately be consulted about particular moves within the civil service, Ministers should not be involved in appointment or dismissal of individual civil servants without the express approval of the Prime Minister. We invite the Lord Chancellor to follow up on his offer to look again at the drafting of clause 27(3) to reflect this.

OTHER OBLIGATIONS ON THE MINISTER

268._We heard evidence suggesting that the Draft Bill should contain two obligations on the Minister currently set out in the Ministerial Code. First, an obligation "not to impede civil servants in their compliance with the Code". The Committee on Standards in Public Life argued that such a legislative statement would "go to the heart of securing the constitutional boundaries between Ministers, the Civil Service and special advisers". (Ev20, para 9) A number of other witnesses agreed. (QQ 399, 421, 422, Ev15, para i, Ev19, Ev21, para 27)

269._Second, a duty on Ministers "to give fair consideration and due weight to informed and impartial advice from civil servants". (Ev19, Ev21, para 27) Lord Turnbull explained that "the Civil Service has a duty to give impartial advice. In the Ministerial Code, but not anywhere in this Act, is a duty on Ministers to give proper weight to that. A very significant question is whether that should be made a symmetrical duty." (Q 421) Underlying this question was a concern that Ministers give less weight to civil service advice than previously, or even prevented civil servants from offering advice. For example, Sir Richard Mottram told us that "ministers give relatively less weight to the contribution of the Civil Service in the formulation of policy and in advising generally ... I think that is a pity." (Q 398) However, PASC took the view that "the question of whether a minister is failing to respect the political neutrality of the civil service is better addressed as a political issue than a legal issue".[146] We agree. Requirements on Ministers to give fair consideration and due weight to impartial advice from civil servants and not to impede civil servants in their compliance with the Civil Service Code are issues best dealt with in the Ministerial Code.

THE MINISTERIAL CODE

270._While clauses 30 to 33 make provision for codes for the civil service, diplomatic service and special advisers, there is no mention in the Draft Bill of the Ministerial Code. The Constitution Unit argued that the Ministerial Code "should be laid before Parliament and made subject to Parliamentary approval" as an important counterpart to the civil service codes. (Ev07, para 4.5) However, the Cabinet Secretary told us that "[i]t is laid before the House, there can be discussions about it, but I would not put it to Parliamentary approval, just as I would not with the Civil Service Code." (Q 530) There should be a statutory requirement upon the Government to lay the Ministerial Code before Parliament but it should not be subject to any formal Parliamentary approval mechanism.

TRANSFER OF PREROGATIVE POWER

271._Clause 27 is the only transfer of power from the prerogative to statute in the Draft Bill. We return to the wider issue of prerogative powers in Chapter 8, but in the meantime, we note that this transfer raises a question of what happens in the 'gap' where the prerogative power was formerly exercised: if clause 27 becomes law, would the Minister retain any prerogative power to manage the civil service? We have not heard evidence on this point, but we understand that it may be necessary to make consequential amendments to the Draft Bill to remove entirely the ability to exercise prerogative power in this area. It is not clear whether the text of clause 27 as drafted is sufficient to remove all prerogative powers surrounding the statutory power to manage the civil service. This should be clarified before the Bill is introduced.

Civil service codes (clauses 30 to 32)

PARLIAMENTARY SCRUTINY OF THE CODES

272._Clauses 30 and 31 of the Draft Bill make provision for civil service and diplomatic service codes, which must be laid before Parliament (but not subject to Parliamentary approval). Several witnesses suggested that the Draft Bill should be amended to provide for the codes to be subject to Parliamentary approval. (QQ 405, 426, Ev04, Ev07, para 4.5, para 17, Ev19) The Committee on Standards in Public Life recognised that Parliamentary approval would "reduce the flexibility with which the Codes could be changed" but that "the general argument in favour of certainty and Parliamentary accountability has been accepted in principle anyway by the Government in its acceptance of the need to move the management of the Civil Service from a prerogative to a statutory basis". (Ev20, para 10) Lord Turnbull suggested a negative approval procedure as "Parliament should [not] try to draft the Code for the Civil Service". (Q 426) PASC concluded it would "insist on Parliamentary approval … only if primary legislation failed to encapsulate these core values [of the civil service] adequately."[147]

273._The unions were wholly against any formal Parliamentary approval mechanism, but did acknowledge a role for Parliamentary scrutiny. Jonathan Baume told us "[t]he role ... of Parliament is an oversight but not a directive and final decision-taking oversight ... the fine print, if you want, are matters that should be left within the Civil Service after, of course, wide consultation, including with PASC or other select committees." (Q 375) Charles Cochrane, Secretary, Council of Civil Service Unions, and Director of Policy, Public and Commercial Services Union, agreed. (Q 373) The Cabinet Secretary told us "in the interests of transparency it is important ... select committees can cross-examine us on [the code], but I do not see the need for it to be put to Parliament." (Q 530) Graham Allen MP agreed "it would be a courtesy not least for the House of Commons to be involved in the process in some mutually acceptable way." (Q 701)

274._We are not persuaded of the case for formal Parliamentary approval of the civil service and diplomatic service codes. The most appropriate form of Parliamentary scrutiny of the codes is that undertaken by select committees, particularly the Public Administration Select Committee; and we welcome their intention to continue to examine closely any substantive revisions to the codes.

MINIMUM PROVISION OF THE CODES

275._Clause 32 sets out the minimum requirements of the civil service and diplomatic service codes, including setting out the core values of integrity, honesty, objectivity and impartiality (clause 32(4)) and the requirement for civil servants to carry out their duties "for the assistance of the administration … whatever its political complexion" (clause 32(2)).

276._There was broad support in evidence for setting out the core values of the civil service in legislation. However, several witnesses argued that clause 32(4) did not provide a necessary and clear distinction between "impartiality" and "political impartiality". (Ev20, para 8, Ev21, para 16) Lord Turnbull told us "[w]e really need two clauses here ... impartiality between Mr A and Mrs B in dealing with members of the public; and impartiality between parties." (Q 432) The Cabinet Secretary argued it was "important that [political impartiality] is spelled out and accurately in the legislation". (Q 540) PASC was "not convinced that the definition of "impartiality" is sufficiently clear on the face of the draft bill".[148]

277._Some witnesses suggested that the Draft Bill should be amended to include the corollary of clause 32(3)—a requirement to behave in such a way as to be able to secure the confidence of a future administration of a different political persuasion. (Ev04, para 17, Ev19, Q 432) The First Commissioner agreed that there was "nothing in the Bill at present to secure the ability of the Civil Service to actually serve successive administrations". (Q 535) The House of Lords Constitution Committee told us it was plain that "there are constitutionally significant gaps in what is proposed. For example, the constitutional requirement for a politically neutral civil service ought to be enacted in primary legislation". (Ev71, para 6) PASC recommended that "the need for civil servants to be able to work effectively for governments of different political persuasions should be set out explicitly in primary legislation."[149]

278._We have considered the views of the Public Administration Select Committee and witnesses, but we are not convinced that the Draft Bill requires amendment to clarify the requirement for civil servants to be impartial. The Civil Service Code makes expressly clear that impartiality includes political impartiality.

WIDER ACCOUNTABILITY OF THE CIVIL SERVICE TO PARLIAMENT

279._Alongside the requirement to serve the government of the day, we asked witnesses whether the Draft Bill should also place on civil servants a wider duty to Parliament. We heard views for and against this. Sir Richard Mottram was sceptical, telling us it was "very important in our constitution that civil servants ... are seen to account to Parliament through ministers and that Parliament holds ministers to account for the way in which the civil servant is being organised and managed". (QQ 405-406, Ev19) The Cabinet Secretary said that trying to define such a duty in legislation would "get you into some dangerous territory". He explained that civil servants were "there to help the Government of the day as represented by its ministers … that is where we have to come from and we cannot be in a situation where we are trying to advise MPs who may be on a different tack". (QQ 538, 548)

280._Jonathan Baume also told us that the civil service was "there to serve the government of the day; it is not a neutral body between government and opposition". But he acknowledged that the civil service had "an accountability and a responsibility, if you want, to Parliament over and above its day to day obligations to the government of the day, because the Civil Service is there not only to serve the government of the day but also to be in a fit state to serve future governments … Enshrining that in legislation is difficult but it is something that is I think very important." (QQ 374, 380, 397) We put this to the Lord Chancellor. He said he "would be very interested in the idea that lies behind what you say" and that he was "concerned to ensure that officials and many other people have a sense of rather broader responsibility, a recognition really of the centrality of Parliament in our constitutional arrangements ... I would be ready to look at the wording but we have to make sure it does not collide with, say, the day-to-day duty that officials owe directly to the government of the day." (Q 772)

281._We are encouraged by the Lord Chancellor's response about amending the Draft Bill to provide a wider duty on civil servants to Parliament alongside the duty to serve the government of the day. We recommend that the Government find a suitable form of words to achieve this.

Exceptions from appointment on merit (clause 34)

282._Clause 34 sets out the requirement for selection to be "on merit on the basis of fair and open competition". Subsection (3) contains a number of exceptions to that requirement. We examine three of the exceptions below.

APPOINTMENTS MADE DIRECTLY BY HER MAJESTY

283._Clause 34(3)(a) excepts appointments made directly by Her Majesty. As drafted, this would include appointments to the Royal Household as well as those made formally by Her Majesty on the recommendation of the Prime Minister. Jonathan Baume told us these appointments were "not something [the FDA] would want to intervene in." (Q 388) Lord Wilson told us this exception was "much too broad"—while it would be reasonable to except appointments to the Royal Household, appointments such as the head of HM Revenue and Customs "should be subject to the rules of the Civil Service Commissioners". (EV60) Lord Turnbull argued that merit should not be excluded from appointments made formally by Her Majesty on the Prime Minister's recommendation. (Ev59) PASC concluded that it was "wrong that the Commissioners for Revenue and Customs (to take one example) should be appointed other than on merit".[150] We agree with this. The Draft Bill should be amended to limit the exception in clause 34(3)(a) to members of the Royal Household (if indeed they are considered to fall within the definition of the civil service). Appointments to any other posts currently included in this exception should be on merit.

DIPLOMATIC APPOINTMENTS

284._Clause 34(3)(b) excepts appointments to the diplomatic service as head of mission or as a Governor of an overseas territory. The FDA were opposed to any exception from fair and open competition for the diplomatic service. (Q 338) The First Commissioner told us that the Commissioners could "see no reason ... why diplomats should not be appointed on merit; it does seem bizarre that you would not want to have your best people as your diplomats." (Q 567, Ev50, para 5) Lord Turnbull said the diplomatic exception had "been as abused as an old peoples' home for retiring politicians" and that any political appointment should be on merit. (Ev59) Lord Wilson agreed. (Ev60)

285._However, the Cabinet Secretary told us there were "some truly exceptional cases" where "the best person comes from outside the Diplomatic Service". (Q 569) The Lord Chancellor argued that there were good reasons for the Foreign Secretary, and in the case of some of the top-level appointments, the Prime Minister, to have discretion in a very limited number of cases. He said "there are some appointments which have always, frankly, been political." He gave the example of the appointment of Chris Patten as Governor of Hong Kong, which was not "unmeritorious" but "not exactly a competition that would be worthy of that name in a formal sense". (Q 761-762) While PASC did not understand "why it should ever be appropriate for the Government to make senior diplomatic appointments other than on merit following a fair and open competition", they conceded that "[a]t the very least, [the exception] needs to be drawn more tightly to ensure that it could be used only very rarely".[151]

286._We recommend that the exception in clause 34(3)(b) for senior diplomatic appointments should be limited to exceptional circumstances and should require the direct approval of the Prime Minister. If the Prime Minister wishes to make political appointments to senior diplomatic posts in exceptional cases, he should be able to do so, but he must be politically accountable for any such decisions.

APPOINTMENTS EXCEPTED UNDER THE RECRUITMENT PRINCIPLES

287._Clause 34(3)(d) covers appointments excepted under the recruitment principles. Under clause 35, the Commission must publish a set of recruitment principles, and clause 36 allows these principles to except appointments if "justified by the needs of the civil service". The FDA had "deep reservations" about the use of this exception (Ev21, para 24) Jonathan Baume told us that this provision was "very broadly drafted and the explanatory notes do not leave you much the wiser about what is in reality intended here". However, he acknowledged that there was "probably" a case for the exception. (Q 388) The Committee on Standards in Public Life argued for the test for justification to be "in the public interest" rather than "the needs of the civil service". (Ev20, para 12)

288._The Commissioners told us they were "taking the opportunity to review their approach to exceptions" under the Recruitment Principles. The areas in which they might allow exceptions were for "genuine short-term business needs", to allow secondments or to allow "measures to help the unemployed or those with disabilities". (Ev50, para 7) We welcome the Commissioners' review of their approach to exceptions under the Recruitment Principles and we are content that exceptions under clause 34(3)(d) could only be made if the Commissioners agree they meet the needs of the civil service.

Special advisers

289._Clauses 38 and 39 of the Draft Bill make provision about special advisers. Clause 38 defines special advisers as civil servants appointed directly by a Minister "to assist that Minister". Unlike the Government's 2004 draft bill which defined "restricted duties" (duties that special advisers could not carry out, including appraisal, reward, promotion or disciplining of civil servants), the current Draft Bill does not place any restrictions on the role of special advisers. Instead, the functions that special advisers may not carry out are set out in paragraph 7 of the Code of Conduct. Clause 39 requires the Minister to lay an annual report before Parliament containing information about the number and cost of special advisers. We share the widespread welcome from our witnesses for the role special advisers play in Government. Our objective has been to ensure that there is a clear framework within which civil servants and special advisers can operate effectively. In this respect, we agree with the First Commissioner that "good fences make good neighbours". (Q 573)

A CAP ON THE NUMBER OF SPECIAL ADVISERS?

290._There is a history of support for a cap on the number of special advisers.[152] Several witnesses argued that the Draft Bill should contain a cap on the number of special advisers or that it should make provision for Parliament to approve a cap. (Ev04, para 19, Ev07, para 4.5, Ev24, para 17, Ev36, para 5, Q 441) The Lord Chancellor acknowledged that "[t]here is a management issue if you have too many "irregulars" around the place". (Q 776) However, others argued that a cap would not in practice achieve its objective. The FDA argued that any attempt to define the number "might in practice simply lead to the establishing of a norm." (Ev25, para 21, Q 391) The Cabinet Secretary similarly worried about a cap "because, as soon as you announced a cap, I suspect that that would become a minimum, not a maximum". (Q 572, see also QQ 442, 574)

SPECIAL ADVISERS FINANCED BY AN EXTENSION OF "SHORT MONEY"?

291._An alternative proposal was put to us by Lord Butler of Brockwell. He argued for "[a] change in the status of political special advisers so that they are no longer civil servants but are financed by the extension of "Short money" to the Government party.[153] This would have the additional effect of limiting their number". (Ev15, para vi) His proposal received some support. Jonathan Baume agreed with "the sentiment of it". (Q 393) Sir Richard Mottram told us it was "quite an elegant and interesting idea". (Q 404) The Better Government Initiative supported the proposal that special advisers should have a "separate status from Civil Servants given the extent of the differences in the values they are expected to observe and their rules of appointment". (Ev19)

292._Others were more hesitant. Lord Wilson and Lord Turnbull acknowledged the attractions of the proposal but, "on balance" preferred to keep special advisers "within the corporate body of officials who support the Minister rather than outside it" as this "emphasised that they are part of a common enterprise and must adhere to the same standards of behaviour". (Ev59, Ev60) Democratic Audit acknowledged that "it may be advantageous to subject them to the discipline of being state officials." (Ev04, para 19) The Cabinet Secretary argued that it would make special advisers "something other than the team" and result in "an adversarial relationship internally, and I would really be very, very cautious about going down that route." (Q 576)

DEFINING THE FUNCTIONS OF SPECIAL ADVISERS

293._The Green Paper[154] stated that "legislation will clarify the legitimate and constructive role of Special Advisers within Government." (para 45) A number of witnesses argued that the Draft Bill should clarify what special advisers can and cannot do. (QQ 412, 442) For example, the First Commissioner told us "the most important point for us is that there is some absolute clarity about [special advisers'] role and the restrictions". (Q 573) For the FDA this was the "key issue" and the current wording was "inadequate". (Ev21, para 25, Q 390) The Committee on Standards in Public Life told us the "provisions fall short of the Ninth Report's clear recommendation" that legislation should list restrictions on special advisers' functions. (Ev20, para 13, Q 404)

294._On the specific restrictions witnesses wanted to see, Lord Wilson told us "If one had a choice of one thing which I would change in this [Draft] Bill it would be to add a provision to the effect that special advisers may not recruit, manage or direct civil servants." (Q 442) Lord Turnbull agreed. (Q 442, Ev59) The Better Government Initiative proposed a specific provision "preventing [special advisers] from commissioning work from civil servants". (Ev19) Others proposed a provision preventing special advisers exercising management functions over civil servants. (Ev04, para 20, Ev24, paras 13-15) The FDA welcomed PASC's recommendation that "[i]t needs to be absolutely clear in primary legislation that no special advisers should be able to authorise expenditure, or to exercise either management functions or statutory powers." (Ev21, paras 12-13) The Cabinet Secretary told us he could "certainly live with" clauses in the Draft Bill that made it clear that special advisers "do not order civil servants around, look after budgets and those sorts of things." (Q 572)

295._The Committee on Standards in Public Life argued that, in respect of special advisers, the Draft Bill did not justify the assertion in The Governance of Britain Green Paper that the revocation of Article 3(3) of the Civil Service Order in Council 1995 "will be made permanent in the forthcoming legislation." (Ev20, para 13, Q 404) However, the Lord Chancellor told us that "the possibility of making an Order in Council, which is essentially under prerogative powers, in respect of special advisers will not exist once the Civil Service, including the employment and conditions of special advisers, is placed on a statutory basis. So it goes. That would be the end of it. The only way of providing for that sort of power would be on the face of the Act." (Q 763)

296._We agree with the continued treatment of special advisers as temporary civil servants on the grounds that it is preferable for them to work within the same framework as other civil servants. For this reason, we reject the proposal that they be paid from "Short money", which would have the effect of removing them from the ambit of the Civil Service Code. We note the intention set out in the Green Paper to clarify the role of special advisers. On balance, we do not support calls for restrictions on advisers' functions to be put on the face of the Draft Bill. However, we recommend that paragraph 7 of the Code of Conduct for Special Advisers should be amended to make it explicit that special advisers may not authorise expenditure; recruit, manage or direct civil servants; or exercise statutory powers. We recommend that a procedure should be included in the appropriate Code for limiting the numbers of special advisers, preferably not by establishing a cap. We suggest this might be done by confining to Cabinet Ministers (or Ministers in charge of departments) the right to appoint special advisers and by limiting the number of special advisers that each Cabinet Minister should be able to appoint.

SPECIAL ADVISERS SPEAKING IN PUBLIC ON BEHALF OF MINISTERS

297._Another issue that arose in respect of special advisers was whether special advisers, as temporary civil servants, should be permitted to present and advocate government policy in public. Paragraph 3ix of the Code says that special advisers may "[represent] the views of their Minister to the media including a Party viewpoint, where they have been authorised by the Minister to do so".

298._Lord Turnbull told us he was in favour of this "provided that there is still an official spokesman ... If the only voice that is coming out is through a politically appointed special adviser then I think we have an unhealthy situation." (Q 446) Lord Wilson agreed. (Q 446) However, Professor Peter Hennessy argued that special advisers should not have this role "unless it is a press spokesman who also is a special adviser because they are temporary civil servants, they come under Civil Service discipline, and you cannot have sheep and goats in that area." (Q 446) When asked whether special advisers should have a role defending government policy in public meetings, the Lord Chancellor said "Not really, no". (Q 769) He went on to say he would "need to look at that part of the Ministerial Code which refers to special advisers, but the rule when I was a special adviser was basically that you had to keep your head down". (Q 770)

299._Special advisers are by the nature of their role involved in the formulation of the policy the Government is advocating but may in some contexts be well placed to justify its purpose and effectiveness. Where special advisers are used in such a role, it should be made clear that they are acting as special advisers and not as regular civil servants.

PARLIAMENTARY APPROVAL OF THE CODE OF CONDUCT FOR SPECIAL ADVISERS

300._Clause 33 makes statutory provision for the publication of the special advisers' code of conduct but does not make it subject to any Parliamentary approval procedure. As with the other codes (see paragraphs 272 and 273 above), some witnesses argued that the Code should be subject to Parliamentary approval. (Ev04, para 19, Ev17, para 12, Ev19, Ev36, para 5) The Committee on Standards in Public Life noted that, relying on the provision of the code rather than the Draft Bill to define special advisers' functions "calls into question the status of that code and the fact that neither it nor any changes to it will have direct Parliamentary oversight." (Ev20, para 13) We have recommended in paragraph 296 that the Code of Conduct for Special Advisers be amended to make explicit the functions that special advisers may not perform. As with the other codes, we are not persuaded by arguments for a formal Parliamentary approval mechanism. The most appropriate form of Parliamentary scrutiny of the code is that undertaken by select committees, particularly the Public Administration Select Committee.

Parliamentary scrutiny of machinery of government changes

301._An issue we explored in evidence was the level of Parliamentary scrutiny of machinery of government changes. In December 2007, PASC recommended that the Draft Bill should contain "measures to allow Parliament effective scrutiny of changes to the organisation of government itself". In its more recent report, PASC recommended that the Draft Bill "should include measures to change fundamentally the way that Government is structured, by giving statutory functions to Government Departments, rather than to interchangeable Secretaries of State" and invited us to support this position.[155] Democratic Audit supported PASC's recommendation. (Ev04, para 18)

302._Most witnesses we asked, however, took a different view. Lord Wilson told us that "the ability to organise or restructure government is inextricably linked up with the power of the Prime Minister to advise the Queen on the appointment of his Cabinet and his Government and the shape of the Government. If you imagine a minister coming in with a large majority for the first time bursting with new ideas, it is very hard to think that it would be acceptable for him or her to have to go through an elaborate process of Parliamentary sanction to get that first big burst of energy through and implemented." (Q 426) Jonathan Baume told us that the FDA was more interested in the way in which departments were reorganised than in Parliamentary scrutiny of them. (Q 377) Graham Allen MP argued for better scrutiny of reshuffles and ministerial reorganisations through a "more co-operative … arrangement between the legislature and the executive" rather than by "big show-stopping bits of legislation". (QQ 701-702)

303._The power to restructure the machinery of government should remain with the Prime Minister. We agree there should be better Parliamentary scrutiny of such changes but this is a matter for the appropriate select committees rather than through legislation. We encourage departmental select committees to take a more pro-active role in this area, and to summon Secretary of State at an early opportunity after their appointment to enable Members to examine their objectives and priorities.

Business appointment rules for former civil servants

304._The business appointment rules[156] set out the circumstances in which a former civil servant must obtain approval from the Advisory Committee on Business Appointments or the Cabinet Office before accepting an appointment within two years of leaving the civil service which could exploit their previous experience. PASC reported on the business appointment rules in June 2007.[157] We explored whether the Draft Bill should set out the principles on which these decisions are made. Jonathan Baume agreed with the need for "a rigorous system of the business appointment rules that do actually say there are certain roles that it is not appropriate for civil servants to go into", but argued that the system was already in place and did not need "to be picked up in the Bill itself". (Q 396) The Cabinet Secretary told us it was "important … that we have the Business Appointments Rules" and the Business Appointments Committee who can determine what is and is not an appropriate subsequent employment and can impose conditions. (Q 555) But he argued that "in practice it would be incredibly hard to draw those up in advance" and that "if we did set up a set of rules, I think it would take people about five minutes to find ways to get round them." (Q 557)

305._The Draft Bill should be amended to require a set of principles governing business appointments for former civil servants to be drawn up which, like the Civil Service Code, should be laid before Parliament and subject to scrutiny by the Public Administration Select Committee.

132 Fifth Report of Session 1993-94, paragraphs 116 and 117 Back

133 Ninth Report of the Committee on Standards in Public Life, Cm 5775 Back

134 Subsequently amended to become the Civil Service (No 2) Bill Back

135 First Report of Session 2003-04, HC 128-I Back

136 Cm 6373 Back

137 House of Lords Constitution Committee, Meeting with the Lord Chancellor, 23 October 2007, Q 47 Back

138 Seventh Report of 2006-07, HC 672 Back

139 Sixth Report of 2006-07, HC 651 Back

140 The Governance of Britain, Cm 7170, July 2007 Back

141 Cm 7342-I and II Back

142 Constitutional Renewal: Draft Bill and White Paper, House of Commons Public Administration Select Committee, Tenth Report 2007-08, HC 499 Back

143 Constitutional Renewal: Draft Bill and White Paper, House of Commons Public Administration Select Committee, Tenth Report 2007-08, HC 499, paragraph 54 Back