Joint Committee on the Draft Constitutional Renewal Bill Minutes of Evidence

Examination of Witness (Questions 540-559)

Ms Janet Paraskeva and Sir Gus O'Donnell

17 JUNE 2008

  Q540  Lord Armstrong of Ilminster: It may be over-simplifying it, but I have, generally speaking, taken the view that civil servants are accountable to ministers and ministers are accountable to Parliament and, when civil servants give evidence to parliamentary committees, they are doing so with the agreement, and approval, of their ministers and subject to any directions that ministers may give as to what they should, or should not, say, so there might be circumstances in which a civil servant would say, "I think you must ask the Minister that question, not me". As to the matter of impartiality, the Code is pretty clear: impartiality is acting solely according to the merits of the case and serving equally well governments of different political persuasions. I think it is a question of whether we want, or need, to go further and try to insert that on the face of the Bill, and I would welcome your comments on that.

  Sir Gus O'Donnell: I would agree with all of that, and particularly that description, which is actually what I tell civil servants before they go before select committees, is precisely right as to how they should behave, and ministers could, and indeed I have had this in the past, say that actually that is an issue that they will want to cover themselves, in which case they do. Your point about impartiality, absolutely, and we have got various definitions of "impartiality" in the Code and we have split out political impartiality. I think it is important that it is spelled out and accurately in the legislation, and we could take in the wording that you have suggested certainly.

  Q541  Chairman: You were saying that the obligation is to ministers obviously, but ought it not also be to parliamentarians as well as to Parliament itself, and let me tell you what I mean by that. If you are in local government, as many of us have been, and the Chief Officer has an issue in your area, he will talk to the Member as well as to the Chair of Committees. Civil servants almost refuse to talk to parliamentarians about areas that are wholly consistent with their need to know relating to their areas because they have this stop at the point of the ministerial responsibility. Do you think that that should change or, if not, how can democracy be better improved by individual Members having the opportunity to know what is going on beyond the barrier of the ministerial ranks?

  Sir Gus O'Donnell: Well, we have a duty, not just to MPs, but to the public as well to inform, so I think that is important, but I would go with Lord Armstrong, that this is through ministers, so, if MPs, for example, for a particular area wanted briefings on a subject, I would seek ministerial guidance. If the Minister has said, "Yes, go ahead, do that", then you would do it, so I think there is the opportunity for that to happen, but I would just make sure, because we are serving ministers, that we have cover from ministers for that.

  Q542  Mr Tyrie: Do you think that parliamentary select committees should have the power to call specific civil servants before them or do you think that the opportunity for the Civil Service to put somebody else up should be retained?

  Sir Gus O'Donnell: Well, I think it is actually ministers that usually decide who are the best civil servants to appear on particular subjects before a Select Committee.

  Q543  Mr Tyrie: I can recall occasions when we have wanted to speak to a particular senior Minister and, hey presto, we found ourselves with the Cabinet Secretary because this all looked far too interesting to cross-examine the slightly more junior person about.

  Sir Gus O'Donnell: I am sure we would want to give the Select Committee the best and most experienced person to answer the questions on every occasion.

  Q544  Mr Tyrie: Yes, okay, I think there is a serious question here. If we put the Civil Service on a statutory footing with accountability to Parliament, are we not then also not saying that Parliament can have before it whomever it wants to have before it? This is half-way to the "people and papers" point which of course distinguishes us from the United States' form of executive scrutiny.

  Sir Gus O'Donnell: Well, again I would say it is ministers who are responsible to Parliament, it is the Armstrong Doctrine, and then it is for ministers to decide which civil servant should appear, assuming that they are competent to cover the areas required by the Select Committee.

  Q545  Mr Tyrie: So you think that, even after we have got this legislation on the statute book, ministers should be able to indefinitely prevent civil servants from giving evidence?

  Sir Gus O'Donnell: Well, in general, I would say ministers have always been quite happy to co-operate with select committees about who would appear, so, if it is a particular agency, the Chief Executive of the agency, so I do not think there has been a big issue here, but again ultimately I think it must be for ministers to say who is going to speak on their behalf.

  Q546  Lord Maclennan of Rogart: Sir Gus, you are enunciating what has been the practice, and we are bound to consider what might be, or should be. A lot of the evidence that we have received has suggested that ministers are listening much less to civil servants than they used to, and it occurs to some of us to enquire why that might be because it seems highly desirable that they should. One thought has occurred in the context of the questions we have just had which is that we have had two long periods of government, in which first we had the Conservative Party, a series of ministers, and then we have had a long period of Labour ministers, as a result of which the civil servants have been, in the public mind and perhaps in the mind of Parliament and perhaps in the minds of political parties, very closely identified with their ministers. Indeed, phrases like "not one of us" have been heard to be mentioned. Is it not partly because of this, through ministers to Parliament, that civil servants are being so closely identified with the governments and would it not be much healthier for civil servants and for the perception of their independence if they were in fact accountable, not solely through ministers, but as individuals, particularly when they have a clear responsibility and particularly when they are dealing with facts?

  Sir Gus O'Donnell: Well, on the last point, let me be clear. As accounting officers, we all have individual responsibility, so we appear before the PAC, for example, in our individual role of accountability. It is an interesting point that you make and I think this is a change from the past in that, if you look back to a civil servant like me who joined in 1979, I have seen one change of administration in 1997, whereas Lord Armstrong, for example, would have seen many more changes of administration over an equivalent period through the 1960s and 1970s; it works both ways. The fact that I am here as a Cabinet Secretary, having been selected by Labour Prime Ministers and yet having served a Conservative Prime Minister, I think, shows you that actually the Civil Service is doing rather a good job and ministers in general are looking for the best people in the posts, and I am not saying, "Oh well, you worked with them, so you must be ... " I did not get the impression in 1997 that the incoming Labour Government said, "Well, you're all Tories", and I wonder if, when we change, they will all say the opposite. I actually think that they, and there are people on this Committee that I have worked with, respect the fact that we operate to the best principles of the Civil Service and we operate with whoever is elected. The fact that there are long strings, I think, works in different ways as well. I think it is certainly the case that, when a party has been in opposition for a long time, when they come in, their special advisers may be rather influential for a while, but the most influential of those special advisers go on to become MPs and ministers and actually the power of the Civil Service as they go on longer, to my mind, gets stronger relative to the special advisers as you go further through a Parliament because the ones they have known best have actually left them and gone off and become ministers, so I do think that this idea of the influence of the Civil Service reducing is not one I would accept. I think we live in a world now, which I think is a very good thing, where, if you take the question of where does a minister get expert advice on a specific subject, back 20 years ago, it would have been your civil servants and then you would have looked at what is the outside world telling you about this. Actually, now we are in a situation where there are lots more think-tanks and we have access, at the push of a button, to all the information on the Internet, so actually the civil servants can provide that, but it is certainly true that they are providing information from a much vaster store of experience, so we are looking at international evidence and we are looking at what works in a whole range of different places, so I think ministers are getting much better advice and it is coming through the Civil Service, but it is not necessarily advice that has merely come from a monopoly called "civil servants".

  Q547  Martin Linton: It could be said, could it not, that you are trying to have your cake and eat it? After 150 years, the Civil Service wants statutory approval from Parliament, yet you do not want accountability to Parliament.

  Sir Gus O'Donnell: What I would like, which is what Northcote and Trevelyan wanted, was to get those core values incorporated so that they will be there through changes of administration. I think that is what I would love you to provide for me, yes. On your point about accountability, I think we are very accountable. I have appeared before lots of select committees, before the Public Administration Select Committee, before PAC, I have appeared before other select committees, and it does not feel that I am short of accountability.

  Q548  Martin Linton: Let me make the point that the Chairman made that, when a local councillor phones up a council officer and asks for some information, that council officer is legally obliged because that council officer is employed by the council and that person is a member of the council. If I phoned a civil servant, they may be very co-operative, but they may just refuse to talk to me because they work for the Government and I am a Member of Parliament, so I have absolutely no call on a civil servant's time, unless they feel inclined to help, so that, at a small level, is an illustration of the fact that you have to decide really, if you are a creature of government, then why is it that you want the statutory approval of Parliament and, if you want the statutory approval of Parliament, why is it that you do not think civil servants should act with any sense of accountability to Parliament, as such?

  Sir Gus O'Donnell: I think because it does go back to the Armstrong principle, that we are there to help the Government of the day as represented by its ministers. MPs may be pursuing an agenda which is a very different agenda, but it is our job to pursue the agenda set by Cabinet, so 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, I am afraid.

  Q549  Martin Linton: I did not say "advise", I just said "information".

  Sir Gus O'Donnell: Well, I would hope that we make information available as much as we can on the website, through government offices, through ministers of the regions, all of those sorts of things.

  Q550  Chairman: I think that what has been asked of you is: are MPs not special? I think really that is the point. I know that, whenever there is a sort of consultation or something like that, it always seems that MPs are just another member of the public. Maybe that is the case, but is that how the civil servants see it?

  Sir Gus O'Donnell: No, Parliament is very special. Because of the fact that we are here, the fact that we lay all of our codes and we are ready to be scrutinised by select committees on all of these subjects, Parliament is certainly incredibly special.

  Q551  Lord Tyler: The logical conclusion of your emphasis on the secretaries of state and ministers being responsible to Parliament and that is the line of accountability is surely that the secretaries of state should be subject to confirmatory hearings by the appropriate Select Committee?

  Sir Gus O'Donnell: No, I think that is for the Prime Minister. It has to be the Prime Minister's responsibility to select his ministers and then the ministers are certainly accountable to Parliament and appear before Parliament regularly, but I think it is the Prime Minister's job to select his ministers.

  Q552  Lord Armstrong of Ilminster: We have all tried to define the Civil Service and have all found that very difficult. Are you content with the definition of the Civil Service in the draft Bill in the sense that the definition, by exclusion, provides you with sufficient clarity, and are you happy with the exclusion of GCHQ specifically, with the security and intelligence agencies, from that definition for the purposes of the Bill?

  Sir Gus O'Donnell: Yes, I am happy with the clarity that is there. I think 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 possibly to privatise an area or change its status or create new agencies, so that would change and you would be talking about having to change primary legislation all the time, which I think would not be a good idea, so I am happy with the clarity. In terms of the exceptions, yes, I think it makes a lot more sense to treat GCHQ in the same way as we treat the other intelligence agencies. They have very special considerations, they are different, and I think it is really important that we lump the group together. It may be flippant, but 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; that might not work.

  Q553  Lord Campbell of Alloway: On a change of government, and I have seen this happen when the Conservatives went down and Labour came in, the civil servants came here and were taught everything that they could be taught to pick up for the purpose of helping the Labour Government. Now, is there really any need for any further machinery, as seems to be suggested by Ed Miliband, the Minister for the Civil Service, because, somehow or other, the Prime Minister could not do this in advance? You probably know the quotation. Do you see any need for any form of change as regards the conduct of the Civil Service on a change of government?

  Sir Gus O'Donnell: No, the one thing I would say is that we need to be more careful this time for the reason that, I think, was brought out by Lord Maclennan, that actually the experience within the Civil Service of changes of administration is actually very limited. There are lots of people who are civil servants now who have never seen a change of administration, so it is important that we remind them of the rules, we remind them of the conventions, and I send out advice about what should happen around general elections, so I think there is a need, as we move to this situation where actually changes of administration have occurred more rarely, to actually remind civil servants of the rules. I think the reference you are talking to may have related as well to training for new ministers and I think that was an issue that the Minister was talking about as well.

  Q554  Lord Campbell of Alloway: Well, actually, as I say, if you go back, we had been in government for about ten years and it was remarkable to see how the civil servants, who were at that disadvantage, came and were taught by civil servants here and by our own ministers how to deal with the new Government, so, as I saw it going on, if that is how it goes on, it will go on again and I see no need for change. Do you?

  Sir Gus O'Donnell: No, I think the Civil Service is absolutely ready to live the values that are there about serving a government of any administration, and I think it is my job to make sure that they are ready, if ever there is a change of administration, to do that in the light of our best values.

  Q555  Lord Maclennan of Rogart: Sir Gus, in answer to an earlier question from me, you spoke of the greater resources of advice and information that are now available. One of the ways in which that is tapped in government now is by the secondment of people from outside the Civil Service into the Civil Service and there is a much greater fluidity between the Civil Service and the private sector, and that is being positively encouraged. Does that not raise issues that we need to consider, when we are thinking about putting the Civil Service on a statutory basis, about these people and indeed about civil servants who are going into the private sector perhaps quite early in their working lives? Should there not be some statutory provision imposing an obligation on civil servants not to accept subsequent employment or remuneration which exploits inappropriately their employment in the Civil Service?

  Sir Gus O'Donnell: On your first point, yes, indeed we are encouraging people to move in and out of the Civil Service, we do have secondments, that is absolutely right, and we find ourselves at times with certain skills gaps that we need to improve. The Gershon Report, for example, recommended that we have professionally qualified finance directors in all departments, but you cannot grow them overnight, so we got a lot in from the private sector, some on secondment, and we are growing the next generation internally, so we will in time, as what the Civil Service needs to do changes over time, need to use secondments. I think it is important now, when it comes to the question of when they come in and go out again and what are they covered by, that we have the Business Appointments Rules and, absolutely, when somebody leaves, particularly of a senior grade, goes to the Business Appointments Committee who will say, "Actually, given what this person was involved in, we think they should have nothing to do with, say, company X" or a contract in a certain area, and they will impose conditions, for example, that you cannot be involved in lobbying the UK Government for any period, three months, six months, a year, so those sorts of conditions are there at the moment.

  Q556  Lord Maclennan of Rogart: I have to declare an interest in belonging to that particular Committee.

  Sir Gus O'Donnell: Indeed.

  Q557  Lord Maclennan of Rogart: I am actually asking a slightly wider question, whether, because of the importance of this issue and the growing number of certain cases in which such moves both ways take place, it would not be appropriate to have statutory provision, when one is defining the Civil Service and all that, which makes it plain that certain jobs would be inappropriate and that there is a contractual obligation upon those who are entering the Civil Service to recognise a constraint on what they do subsequently, as perhaps is not entirely unknown in other spheres, such as non-compete clauses, for example?

  Sir Gus O'Donnell: To be honest, I think in practice it would be incredibly hard to draw those up in advance in ways which would meet the requirements that I think you are after and, 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.

  Q558  Lord Maclennan of Rogart: It was not a rule I was thinking of, it was a principle and that is the principle of appropriateness. You talked earlier about the values. Should there not be a similar sort of recognition that this is a modern problem?

  Ms Paraskeva: If I could say something about entry to the Civil Service. Certainly it is for the Commissioners to approve many secondments or short-term contracts from the private sector, for example, and we do this where there is a business need, the kind of need that Sir Gus has just outlined in relation to finance staff, sometimes IT or HR professionals where the Civil Service needed that, or where there is literally a short-term business need for a department to have expert advice. All of these people come into the Civil Service subject to the Civil Service Code and values and those values absolutely apply in exactly the same way as they do to any other civil servant, and it is one of the questions that we always make sure that we ask, when we are chairing competitions, of people who are joining the Civil Service perhaps later in their career, that they understand that, in becoming a civil servant, they adopt these values which are then effectively part of their contract of employment. So on the inward side certainly I think we make every effort to make sure that people understand that they are signing up to those Civil Service values.

  Q559  Chairman: I think Lord Williamson has got some questions to ask particularly of Janet Paraskeva, but can I ask one question first, and it is this: within the reference to the GCHQ being excluded from the definitions, do you, Janet, have a particular view about that because in consequence they are also excluded from the Civil Service Commission?

  Ms Paraskeva: I think our point here was 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, and I think that is the assurance that we are seeking. Because GCHQ, as part of the Home Civil Service, have been, as it were, within our remit and then suddenly to see a change, as you rightly say, from the draft 2004 legislation, we wanted to ask that question and make sure that we had a satisfactory answer.

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