Evidence of the Civil Service Commissioners
(Ev 50)
1. On 25 March 2008 the Government launched
the White Paper The Governance of BritainConstitutional
Renewal, accompanied by the draft Constitutional Renewal Bill
and the Analysis of Consultations (on previous consultation exercises
about the proposals for constitutional change which form the White
Paper). The Government invited Parliament and others to consider
and comment on the draft Bill, as well as the other proposals
in the White Paper. This is the response of the Civil Service
Commissioners to the proposals on the Civil Service.
SUPPORT FOR
THE DRAFT
BILL
2. The Commissioners have supported recent
calls for a Civil Service Act, for example when giving evidence
to the Committee on Standards in Public Life in May 2002 and to
the Public Administration Select Committee in July 2003, and in
February 2005 in response to the Government's consultation exercise
on its draft Bill of November 2004. We believed, and continue
to believe, that the constitutional position of the Civil Service
and the core values which underpin its work are too important
to be left to a Civil Service Order in Council and a Civil Service
Code, both of which could be easily changed by a future Government
without prior Parliamentary debate and scrutiny. Although the
Civil Service exists to serve the Government of the day, it also
exists to service successive administrations with equal commitment.
To do this effectively, the Civil Service needs to be underpinned
by a set of enduring valueshonesty, impartiality, integrity,
objectivity and selection on meritand there should be no
capability to change those values without the consent of Parliament.
We therefore welcome the Government's renewed commitment, as set
out in the White Paper, to those values and to setting them in
statute. We hope that the draft Bill can be introduced as part
of the legislative programme as soon as practicable.
3. In responding to the earlier proposals
for a Civil Service Bill, the Commissioners took the view, as
did Northcote and Trevelyan in 1854, that a short Bill should
be sufficient to secure the core values. We believe Part 5 of
the draft Bill meets this requirement. The Bill would:
enshrine the core values of the Civil
Service and selection on merit on the basis of fair and open competition;
require the Minister for the Civil
Service to publish a Civil Service Code;
set up the Civil Service Commission:
(a) to regulate recruitment to the Civil
Service; including, through the publication of the Recruitment
Principles, the Commission's determination of what selection
on merit on the basis of fair and open competition means and when
exceptions to the principle may be allowed; and
(b) to hear appeals under the Civil Service
Code.
create the Commission as a corporate
body so as to reinforce its independence from the government of
the day;
provide for the Minister for the
Civil Service and the Commission to agree to the Commission's
taking on new roles; and
formalise the current arrangement
for Special Advisers.
4. We recognise that a balance has to be
struck between setting the key principles and values on the face
of the Bill and introducing too much detail (which might need
to be changed as circumstances change) and that getting the balance
right will be key to the success of the Act when it is implemented.
We believe the draft Bill broadly strikes the right balance between
principle and detail. For example, it enshrines the key principle
that there should be a Civil Service Code based on the four core
values, but does not put the Code itself on the face of the Bill.
This provides flexibility to change the layout and detail of the
Code in the light of experience, as the Government did in 2006
following a review of the 1996 Code by a joint working group of
Permanent Secretaries and Commissioners. This revision has met
with overwhelming approval, but if the Code had been on the face
of an Act it might have been difficult to find Parliamentary time
to make such changes.
SCOPE OF
THE BILL
5. There are, though, a number of gaps in
the coverage of the bill. These are:
Promotion on merit. It is a generally
accepted principle that civil servants are not only appointed
on merit but also are promoted on merit. Indeed, the Civil Service
Management Code says "department and agencies must ensure
that all promotions and lateral transfers follow from considered
decisions as to the fitness of individuals, on merit, to undertake
the duties concerned". However, there is no external regulation
of how the principle is applied in practice. We think an opportunity
would be missed if the principle of promotion on merit and its
regulation were not included in the Bill. We are not so concerned
about the need to regulate individual lateral transfers, which
are often used to broaden a civil servant's experience at the
same level. The focus for regulation must be on entry to the Civil
Service and promotion within it, particularly to senior posts
where appointees have substantial influence.
The removal of GCHQ. This will mean
that the principle of selection on merit and the core values of
the Civil Service need not necessarily apply to the department
and that civil servants working at GCHQ will no longer be able
to raise concerns with the Commission. The Government's draft
Bill of 2004 included GCHQ because the Government saw no "operational
impediment to [its] inclusion". We do not know what has changed
in the four years since then. The Commissioners have chaired a
number of senior recruitment competitions at GCHQ and we monitor
their compliance with the Commissioners' Recruitment Code for
more junior appointments. Although the Commissioners have not
heard any appeals from staff at GCHQ since the Civil Service Code
was introduced, the facility exists for staff to raise matters
with us. As this overall approach has worked well, we are not
persuaded by the reasons for changing it. We recognise the wish
to bring the security and intelligence services closer together.
In our response to the 2004 draft we offered no views on whether
or not the Security Service and the Secret Intelligence Service
should be included within the scope of the Bill. We did, though,
suggest that the Government should consider making both organisations
subject to independent regulation. This remains our view.
Appointments to the senior levels
of the Diplomatic Service. These appointments are excluded from
the requirement to select on merit on the basis of fair and open
competition, and we note that on occasion former politicians have
taken up such appointments. It is not clear to us why these appointments
to the Civil Service are treated in a different way.
THE ROLE
OF THE
COMMISSION
6. The powers of the Commission in the draft
Bill are based on, and are similar to, those which the Commissioners
currently hold under the Civil Service Order in Council 1995 (as
amended). In respect of recruitment, these are the powers to interpret
through a recruitment code what selection on merit on the basis
of fair and open competition means, to permit exceptions to this
principle within the framework set by the Order in Council, to
audit departments and agencies' recruitment policies and practices
to ensure compliance with the recruitment code. The Commissioners
also have the authority to approve certain appointments before
they are made, which they do for the most part by chairing the
recruitment competition for them. In terms of the Civil Service
Code, the Commissioners have the power to hear and determine appeals
under the Code. The Commissioners are also required to issue an
annual report accounting for their work in the previous year.
7. The draft Bill will give the Commission
similar powers. The variations, which the Commissioners support,
are:
The Recruitment Principlesthe
Recruitment Principles will replace the Recruitment Code. The
intention of both documents is the same, to publish a set of principles
to be applied for the purposes of meeting the requirement of selection
on merit on the basis of fair and open competition. However, the
Commissioners are taking the opportunity of drawing up a set of
Recruitment Principles to revise the Recruitment Code in order
to adopt a more concise approach. This is work in progress.
The use of exceptionsunder
the Order in Council the Commissioners have the authority to permit
the use of exceptions provided they fall within the framework
set in the Order. Under the draft Bill the Commission will have
more flexibility to determine the use of exceptions provided they
meet the needs of the Civil Service. The Commissioners are taking
the opportunity to review their approach to exceptions and their
new thinking will be set out in the Recruitment Principles. The
Commissioners would also like the Bill to confirm that they have
the power to allow exceptions if they are necessary to enable
the Civil Service to meet its obligations as a major employer
in the United Kingdom.
It may be worth addressing the question: why
should there be any exceptions to the principle of selection on
merit on the basis of fair and open competition? The vast majority
of appointments to the Civil Service are made on merit following
fair and open competition. The Commissioners allow exceptions
to meet genuine short-term business needs eg a short-term project
of several months where the time and costs involved in an open
competition can not be justified as they could if the appointment
was permanent. We also allow individuals to join the Civil Service
on secondment for up to two years on the understanding that they
will return to their employer afterwards. And, recognising the
Civil Service's responsibilities as a leading employer in the
United Kingdom, we allow measures to help the unemployed or those
with disabilities. As part of our compliance monitoring of departments
and agencies, we ask them about the use of exceptions and who
approves them, and in this way audit their use.
Additional powersthe Government
has asked the Commissioners on occasion to take on additional
tasks. The draft Bill provides for the Minister of the Civil Service
and the Commission to agree that the Commission shall take on
additional functions. This will provide flexibility to meet changing
circumstances without the need to amend the Bill itself. The Commissioners
would expect the Minister to agree that the Commission should
continue to undertake the additional tasks which currently fall
to the Commissioners. These are:
advising departments on the promotion
of the Civil Service Code and monitoring appeals within departments;
and
approving all appointments at Permanent
Secretary or Director General level (the so called "Top 200"
appointments) whether they are made following open competition,
internal competition or a managed move.
8. It is also worth noting that the Commissioners
believe the opportunity should be taken in the draft Bill to give
the Commission specific power to hear complaints that there has
been a breach of the principle of selection on merit on the basis
of fair and open competition or of the Recruitment Principles.
The Commissioners currently hear complaints that there has been
a breach of the Recruitment Code even though this is not specifically
mentioned in the Civil Service Order in Council.
9. We also think it would be helpful if
the Bill were to place the Commission's specific duties in relation
to appointments within the broader context of upholding or maintaining
the principle of selection on merit. The current Order in Council
does this. It would enable the Commission to continue to be able
to comment on matters related to but not necessarily directly
covered by their statutory duties.
10. The draft Bill does however appear to
introduce the potential for confusion in Clause 27. Notwithstanding
the provisions on appointments elsewhere in the Bill aimed at
ensuring an impartial Civil Service able to serve successive administrations,
this clause appears to give the Prime Minister (and the Foreign
Secretary in relation to the diplomatic service) the right to
appoint and dismiss civil servants. We assume this is not the
intention of the clause but would welcome clarification about
its purpose and likely effect.
THE RIGHT
TO INITIATE
AND CARRY
OUT INVESTIGATIONS
UNDER THE
CIVIL SERVICE
CODE
11. There is one issue on which the Commissioners
have yet to reach a firm view: the right of the Commissioners
to initiate and carry out investigations under the Civil Service
Code without first receiving an appeal from a civil servant. We
argued for this in response to the 2004 Bill. We did so because
we felt too few civil servants were aware of the Code and the
implications for their work. We were also concerned that civil
servants might be constrained from pursuing issues for fear of
the impact on their careers. We therefore had limited confidence
in a mechanism which relied on individual civil servants taking
the initiative.
12. We have reflected on this for the following
reasons:
following the re-launch of the Code
in 2006, civil servants are undoubtedly now more aware of the
core values of the Civil Service and the Code's provisions for
raising issues under it;
we have worked with departments and
agencies on the promotion of the Code, though there is clearly
more to be done; and
we will be working with departments
and agencies to ensure that the processes they have in place for
handling appeals are user-friendly.
13. Taking these factors into account, we
expect the number of appeals to go up, and we have seen early
signs that this is happening. We take the view that it must be
better if civil servants feel able to raise issues in departments
and with us, which should help to prevent things going wrong in
the first place, than for us to look at problems afterwards.
14. We also remain concernedas we
were in 2004that if the Commissioners had the formal power
to initiate inquiries under the Code, we would be swamped by disgruntled
customers of the departments and agencies, members of the public
or the media asking for investigations, many of which would turn
out not to be Code matters. There would be a risk that the Commission
would be diverted from its core tasks. We also note and have sympathy
with the view expressed by the Rt Hon Ed Miliband MP, when giving
evidence to the Public Administration Select Committee (PASC)
on 29 April 2008, that this "cottage industry" might
lead to the politicisation of the Commissioners' role. The resource
implications would also be significant.
15. We do, though, recognise there will
be occasions in which it would be right for the Commission to
carry out an investigation, if there were prima facie evidence
of a significant breach of the Code. We, therefore, think that
the approach suggested by the PASC in their report on the draft
Bill that, in addition to the duty to consider complaints from
civil servants, the Commission should have the discretion to investigate
matters in other circumstances, might offer the right balance.
We envisage that the Commission would want to exercise that discretion
only in cases where the burden of suspicion was substantial.
SPECIAL ADVISERS
16. The draft Bill reflects the current
approach towards Special Advisers. It:
excepts Special Advisers from the
principle of selection on merit on the grounds that they are personal
appointees of Ministers and in view of the personal and temporary
nature of their work;
excepts them from the provisions
of impartiality and objectivity, thus recognising their allegiance
to the Governing party and that they are not expected to retain
the confidence of future governments of a different political
complexion; and
confirms that no Special Adviser
will have executive powers over civil servants.
17. The Commission supports this approach.
We agree in particular that Special Advisers should not be selected
on merit on the basis of fair and open competition given the nature
of their personal relationship with the appointing Minister and
the fact that their appointment lasts only as long as the appointment
of the Minister.
18. We have argued since 1997, when the
provision was introduced, that no Special Adviser should have
executive powers. We therefore welcome the confirmation provided
by the draft Bill that the Prime Minister's decision in 2007 to
remove such powers will be enshrined in statute. We further argued
in relation to the 2004 draft Bill that Special Advisers should
not be able to commission work from civil servants. We continue
to take that view. Allowing Special Advisers to commission work
from civil servants confuses the line of accountability: Special
Advisers are there to add political comment, not to run the department.
Any commissioning of work should be done by the Minister's private
office. We therefore support the proposal by PASC that that the
role of Special Advisers could be clarified still further in the
legislation by making it clear that they should not be able to
authorise expenditure, nor exercise either management functions
or statutory powers.
19. In line with the Government's thinking
over the last few years, the Bill does not propose a cap on the
number of Special Advisers. The Commissioners have supported this
approach and continue to do so, believing it to be more important
that the boundary between the work of civil servants and that
of Special Advisers is clear. To this end, we have supported the
changes the Government has made to the model contract for Special
Advisers and their Code. It is why we believe the removal of executive
powers to be so important. We also recognise the temptations provided
by a cap: it would have to be higher than the current number of
Special Advisers to allow for some flexibility; and there would
be pressure to appoint Special Advisers up to the number allowed
by the cap. We do, though, acknowledge a lacuna: a future government
would be free to appoint as many Special Advisers as it wished,
subject only to Parliamentary and public concerns. We also recognise
that in terms of the influence a Special Adviser can exert, a
more apposite comparison in purely numerical terms is not necessarily
between 70 or so Special Advisers and the 4,000 or so members
of the Senior Civil Service but between the 70 or so Special Advisers
and the Top 200 or, possibly, Top 600 civil servants. We do not
propose an answer, though we note the suggestion from others that,
at the start of an Administration, Parliament should agree the
number of Special Advisers that can be appointed.
SETTING UP
THE COMMISSION
20. The draft Bill proposes setting up the
Commission as a corporate body so as to demonstrate its independence
from the government of the day. We understand the Commission will
take the form of an executive Non Departmental Public Body sponsored
by the Cabinet Office. We recognise that there is no such thing
as complete independence and generally support the Government's
proposals. However the issue of independence is crucial to how
the Commission will in future be perceived, and are attracted
to the approach which PASC has mentioned in their report of a
specific legislative provision to safeguard the Commission from
Government interference in the exercise of its functions. We are
content with the proposals for the appointment of the First and
other Commissioners on single terms of up to five years, though
we would like the schedule to state explicitly that Commissioners
are selected on merit on the basis of fair and open competition,
which would further underpin their independence, and to recognise
that the First Commissioner currently has a much greater role
in the appointment of the other Commissioners than is allowed
for in the draft Bill.
21. We would also like the draft Bill to
make provision for the payment of pensions and compensation for
loss of office to all Commissioners and not just the First Commissioner.
Although we have no intention of asking the Minister for the Civil
Service to extend these provisions to the current Commissioners
who are part-time, paid on a fee basis and have a portfolio of
other interests, it is possible that the nature of the Commissioners
may change over time, and we should allow for such flexibility
now. If, for example, we were to move to having fewer Commissioners
who worked on a more full-time basis than now, it would seem equitable
to change their terms and conditions of service to reflect this.
22. A key aspect of the Commission's independence
will be the provision of sufficient funding to enable it to meet
its responsibilities effectively. The draft Bill provides for
the Minister of the Civil Service to pay to the Commission the
sums he determines as appropriate to enable it to carry out its
functions. 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.
23. The Commissioners are currently discussing
these matters with the Cabinet Office.
CONCLUSION
24. The Commissioners welcome the publication
of the draft Bill and the scrutiny provided by both PASC and the
Joint Committee. We support the provisions in the draft Bill which
affect the Civil Service and look forward to its early introduction
into Parliament. We do, however, believe there are ways in which
the draft can be improved and the opportunity should be taken
to do this. We stand ready to discuss our views further with the
Government and with Parliament.
June 2008
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