Joint Committee on the Draft Constitutional Renewal Bill Minutes of Evidence

Examination of Witness (Questions 529-539)

Ms Janet Paraskeva and Sir Gus O'Donnell

17 JUNE 2008

  Q529  Chairman: Good afternoon, thank you for coming to assist our Committee. As you know we, as a joint committee, are considering the whole area of different aspects of constitutional renewal and some say oddly the issues of the Civil Service Bill has been contained within the area of consideration. Perhaps I could ask you both to begin with: the Ministerial Code currently places a duty on Ministers "to give consideration and due weight to informed and impartial advice from civil servants". Should this requirement in the Ministerial Code be made statutory in the Bill?

  Sir Gus O'Donnell: I am very glad to be here and delighted that you are doing this joint process. I think it is extremely good and I am very pleased that 150 years on from Northcote and Trevelyan that we are getting round to this. I hope very much that you will keep the legislation strategic and allow us to manage, as we need to do in the 21st century, so you will give us that flexibility as well. On your specific question about Ministers, I do not believe that we should put issues to do with Ministers in this legislation. I am very happy that we have a Ministerial Code and I think that is the right place for it in terms of accountability. I think Ministers have accountability to the Prime Minister, to Parliament and to the public and I think that is the right place for it.

  Ms Paraskeva: Like Gus, thank you very much for the invitation to be here this afternoon. We too hope that this legislation will be kept relatively light touch, but nonetheless hitting on the very important principles that certainly, as Civil Service Commissioners, we have argued for for many years. The Civil Service Code that we hold very dear gives of course the right to a civil servant to say no to a Minister and we think that this is probably the right place to contain that. That gives any civil servant then the opportunity to come to the Civil Service Commissioners and to raise any issue if a Minister has asked them to behave improperly and we would think that this was probably the most appropriate place for this to remain. We think to put it on the face of the legislation might actually be unnecessary following the statements that Sir Gus has made.

  Q530  Chairman: Should the Ministerial Code as a whole be subject to some form of parliamentary approval?

  Sir Gus O'Donnell: I do not think it needs to be. It 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. I think in the interests of transparency it is important we put it there, select committees can cross-examine us on it, but I do not see the need for it to be put to Parliament.

  Q531  Lord Norton of Louth: Sir Gus, you mentioned a few moments ago management of the Civil Service and there is a question as to who should head the management and be in charge. In the Draft Bill is a Minister. Some of the evidence we have heard suggested it really ought to be the Head of the Civil Service who is vested with that responsibility. Do you have a view on that?

  Sir Gus O'Donnell: What the Bill does remember is that because we are removing the Royal prerogative then there has to be the powers vested with someone and, you are absolutely right, this legislation vests the powers with the Minister for the Civil Service which is the Prime Minister, which is actually where it is now, so I am very content with that. I think that is the right place. In practice what happens is the Prime Minister delegates that authority down through Ministers to permanent secretaries. Dare I say it, but the person two to your left, the Armstrong principle makes it absolutely clear that the Civil Service, whilst it is right it is impartial, it is not independent. It is there to serve the interests of the duly elected Government and to my mind consistent with that it should be the Prime Minister who is there, not the Head of the Civil Service.

  Q532  Lord Norton of Louth: Given you accept that it should be legislating for what is the current situation, is the Bill as drafted adequate for that purpose? Does clause 27 define the Minister's powers sufficiently?

  Sir Gus O'Donnell: As far as I can see, yes. Obviously we would be happy to listen to what comes out of this process but I think it is perfectly okay as it stands.

  Q533  Lord Armstrong of Ilminster: It appeared to give the Minister power to regulate appointments and dismissals of civil servants. That was not in the 2004 proposals and I wondered whether that was what we really wanted.

  Sir Gus O'Donnell: We could certainly clarify the language there. As you will know, Lord Armstrong, that is the situation as is. In fact, Ministers do not get involved in those decisions and the Civil Service Commissioner can confirm that.

  Ms Paraskeva: It is not the intention of clause 27 to be read as a stand-alone clause and, like Sir Gus, we would agree that some clarification might help. It really needs to be read in conjunction with the rest of the Bill which requires fair and open competition and appointment on merit based on the Civil Service Commission's principles, and in those principles we actually define how Ministers can be involved in the process. If you do not clarify the actual clause of the Bill it could lead to confusion and could lead to a need on every senior appointment for us to re-explain the situation to a Minister, so therefore we would certainly seek, if possible, for some further explanation on the face of the Bill.

  Q534  Lord Armstrong of Ilminster: I think what most likely troubled me is if the Minister is given explicit power in the Bill for appointments and dismissals then, quite rightly, the Minister is accountable, but perhaps the Minister could be required to answer questions in Parliament about individual appointments and dismissals. I would have thought that we did not want to go that far, but I would welcome comments on that.

  Sir Gus O'Donnell: I would agree with you that the intention is to keep things as they are. Given that we are replacing the Royal prerogative, we need to have the powers vested somewhere. It is to my mind quite clear that what you would want is those delegated down to Permanent Secretaries.

  Q535  Baroness Gibson of Market Rasen: We have heard from different witnesses differing views about whether or not the Civil Service Code should be subject to Parliamentary approval and you have just said, Sir Gus, that you believe it should not. Are you in agreement on this or would you like to say anything more about this point?

  Sir Gus O'Donnell: If you look at the Code, this is a document about the management of the Civil Service. It incorporates the values and what to my mind is a great advantage of the legislation is that those values will be enshrined in legislation—that is tremendous—but it also covers areas other than the values and those are management areas to the Civil Service that at different times we might need to change. I think it needs to be a living document. We went through a very good process and I have to say that the Civil Service Commissioners were an important part of the process of amending the Code recently. Certainly we have turned it into much better English. I remember the first sentence used to be about a hundred words long and it had a footnote. I think you can read it and understand it much more clearly now and that to my mind is very important. We went through a detailed process together to revise it. I would not rule out the fact that we may need to revise it further. If technology changes the way we operate, for example, then you would want to keep this up to date so I would regard this as a living document that we put to Parliament and select committees can cross-examine both of us on it, but we both have quite a passion that this is something we need to get out and explain to civil servants so they understand it in their everyday occupations.

  Ms Paraskeva: I would support that but have one thing to add and that is that we do need to be absolutely clear that the values of honesty, integrity, impartiality and objectivity are defined and understood and that the meanings cannot be simply changed over time, and that is what we would need to see very clearly stated. It is interesting though, picking up a point that Sir Gus made earlier, that there is nothing in the Bill at present to secure the ability of the Civil Service to actually serve successive administrations and it is the point that Sir Gus was making about the Civil Service working to the Government of the day. We may revisit that when we talk about the importance of impartiality later on.

  Q536  Chairman: What if a political judgment was made by a government that, for example, membership of the BNP was incompatible with public service, how would that be dealt with? The suggestion you are making is that the Code would be subject to parliamentary consideration but would that be something which Ministers could properly impose in the Code or should that be for the Commissioners?

  Sir Gus O'Donnell: I think that is something where we have to interpret it. Your question is not entirely new in the sense of this has come up with regard to prison officers, as I am sure you know, so it has been a live issue for us for some time. It gets us into some legal issues about whether or not it is appropriate to proscribe institutions. There are some legal issues that are really quite complex in the issue of BNP, so in general I would again keep this out because you are thinking about what are the possible combinations of different political parties as we go forward and there is a whole array of possible new parties. I just want to say the way round this is to keep that really clear view about impartiality and values. I have very strong views about values and having a very diverse Civil Service and I am very passionate about that, but once you get into the area of saying actually if somebody represents a certain political party that gets you into some very dangerous territory where the lawyers—Janet is very good on these sorts of things—would tell you about the ECHR and the like, so it is quite complex territory.

  Ms Paraskeva: I would only add that it is the active participation of the civil servant in party political activity that one would be concerned about rather than de facto membership of any particular party.

  Q537  Lord Maclennan of Rogart: The issue of impartiality sometimes seems to arise when civil servants are called upon to make a judgment as to whether it is their duty to serve their ministers or, alternatively, to take a view that Parliament requires to be served, and these things are not always nicely aligned. For example, select committees may want to hear factual information from civil servants which have not necessarily been regarded as a matter of policy by the Minister, but the deferential attitude of the civil servant to the Minister sometimes seems almost to preclude the wider duty to Parliament. Would you not think that there would be some virtue in putting, on the face of a Civil Service Bill, the wider duty of civil servants to Parliament as well as to serving ministers?

  Sir Gus O'Donnell: I think this gets to the heart of what you mean by the word "impartial" and, remember, it is one of the four values, so honesty, objectivity, integrity and impartiality, all of those four values which will be in the Bill and, therefore, in legislation, should guide a civil servant in all of their actions and, I would say, that would include your action in terms of giving evidence to a Select Committee, so, if you are asked questions by a Select Committee, it is your duty, as the Prime Minister in line with those values, not to mislead the Committee and to give them as much information as they require and ask for, so I think that is important. That is your overriding duty, to live with these values and that is being impartial in its broadest sense, not just its political sense. Ministers of course may have a view about wanting a particular policy, but it is our job to explain and give factual information to select committees, so I do not think they would contradict each other.

  Q538  Lord Maclennan of Rogart: So you would have no particular objection to there being a reference on the face of the Bill to the obligation of the Civil Service to Parliament?

  Sir Gus O'Donnell: Well, I think that would get you into some dangerous territory as to what actually does that mean.

  Q539  Lord Maclennan of Rogart: So there is ambiguity about the values too, and what does that mean in practice?

  Sir Gus O'Donnell: I think the important thing is that that is what we should concentrate on, what are the appropriate values that we want and what do they mean. I think it is fairly clear, and the Code lays out, what they mean: the honesty; objectivity; integrity; and impartiality. They certainly would not be consistent with misleading Parliament, for example.

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