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
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 legislationthat
is tremendousbut 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
lawyersJanet is very good on these sorts of thingswould
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
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
Sir Gus O'Donnell: Well, I think that would
get you into some dangerous territory as to what actually does
Q539 Lord Maclennan of Rogart: So
there is ambiguity about the values too, and what does that mean
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.