Examination of Witness (Questions 560-580)|
Ms Janet Paraskeva and Sir Gus O'Donnell
17 JUNE 2008
Q560 Chairman: You say you seek that
assurance, but what form does that assurance take? What are you
looking for specifically?
Ms Paraskeva: I think we are looking for an
explanation of how the Code, for example, particularly the requirement
to apply the Code and protection of it, will be there for the
employees of GCHQ and, if they are, for example, asked to behave
inappropriately, to whom do they take that complaint?
Q561 Lord Armstrong of Ilminster:
It was suggested to us in evidence that GCHQ and, I think, the
other agencies do at any rate, to a considerable extent, use the
Civil Service Commission for their selection.
Ms Paraskeva: They do indeed and I myself have
been involved in the appointments of the Head of MI5 and GCHQ
very recently as well as the Home Office appointments in security.
Q562 Lord Williamson of Horton: When
we declared our interests earlier, I made clear that, for what
seemed like years and years, I was a member of the Civil Service
and, incidentally, I was Private Secretary to two Labour ministers
and two Conservative ministers during that time, so what was said
earlier shows that the Civil Service was acting, if I may say
so, in a manner which I personally find very appealing. I wanted
just to turn now to the independence of the Civil Service commissioners,
and you will know that the Public Administration Select Committee
was a bit concerned about this point, and our indefatigable clerks
have quoted your evidence to the Public Administration Select
Committee, and also the Constitution Unit were much concerned
about it, so I do ask you whether you feel reasonably satisfied
that the draft Bill provides the Civil Service Commission with
an appropriate degree of independence from the Government? Secondly,
should the Commission have the right to initiate investigations
without receiving a complaint? It is my first question, the general
one, that I am mainly interested in.
Ms Paraskeva: In some ways, I suppose, you could
argue that we will have more independence once our remit is actually
defined in statute. We thought very long and hard with colleagues
from the Cabinet Office about what kind of model would enable
us, going forward, to secure that independence. Whilst we have
agreed with them that the executive NDPB, non-departmental public
body, is an appropriate mechanism, I think there may be one or
two areas for clarification when we establish that body. We would
like something, for example, to safeguard the Commission from
government interference and we think that it is not beyond us
to draft something that would enable that. We also think that
perhaps funding is a difficult issue if indeed the control of
your finances is by those whom you regulate and perhaps one way
through that would be to put a duty on us to report on the adequacy
of our funding rather than to set up some complicated mechanism
that would just be costly in itself. A further nuance is the provision
for all commissioners to be appointed on the basis of fair and
open competition in the same way as the First Commissioner is,
so I think, with some small, but important, amendments, we are
Q563 Lord Armstrong of Ilminster:
Are you content that your appointment is confined to five years
and cannot be renewed?
Ms Paraskeva: I think five years is probably
the right amount of time. My appointment was originally three
years, renewable by two, and it did seem to me, when it was suggested
as five years from the outset, that that is a much better length
of time to plan how you are actually going to use the job and
develop the role, and I think five years is just about long enough
to see through the kinds of changes or developments that you might
want in a job.
Q564 Lord Armstrong of Ilminster:
In other parts of the Bill for other commissions the term is five
years, but it is renewable or there is no provision which says
it is not renewable. In the case of the Chairman of the Civil
Service Commission, it is specific, one term only.
Ms Paraskeva: Indeed, as it is for the other
commissioners, and I actually think that is probably right. I
think it would be wrong for either the First Civil Service Commissioner
or the Commissioners to stay in those posts for a very long time.
There is the question, if you are the regulator, of your actually
trying to stay at some distance and over time one gets closer
and closer to the departments that one works with, and I think
there is a safety net in having a fixed term of office.
Q565 Chairman: Lord Williamson also
asked the question about the right to initiate investigations
without receiving a complaint from a civil servant. Do either
of you have a view on that?
Ms Paraskeva: Indeed 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. Clearly, we
have some nervousness about opening the floodgates and I think
we all know what that would do. Nonetheless, as an independent
regulator, it is actually quite difficult to argue that we should
not have this power, so we have been giving it some further thought
and we might suggest some careful wording, which would give us
a reserve right to carry out investigations where there was sufficient
evidence. As I say, we are nervous with the resource implications
of this and the fact that it would change the nature of our work
quite considerably, so we would not enter this area lightly. At
the present moment, I do investigate and I do this by writing
to the Head of the Home Civil Service and suggesting that he might
invite me to, and that has worked very well. Of course, what we
have to do is to legislate for the people that come after us,
not the people in the current roles and, therefore, I can see
that I might need to get off the fence.
Q566 Chairman: Sir Gus, on that very
specific point, do you have a view?
Sir Gus O'Donnell: Certainly. Remember that
at the moment civil servants can take complaints with the Code
directly to the Commissioner, so that, I think, is a really important
safeguard. What Janet has said about us working together on other
sorts of complaints has worked very well very informally. I 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 another, then you get into some
difficult territory as well, so personally I would not go there.
Q567 Lord Morgan: We considered the
question of posts in the Civil Service that were excepted from
the requirement of appointment on merit and they include, as you
will know, senior posts in the Diplomatic Service and also posts
under the Royal Prerogative. Do you see any difficulty with the
principle of having exceptions from appointments on merit and
do you think they can be justified and, if they are justified,
should any conditions, nevertheless, be attached to those appointments?
Ms Paraskeva: To be clear, because I think in
the past we have referred to them together, there are two kinds
of exceptions. There are the groups of people, as you say, those
appointed by Her Majesty, and there are special advisers and so
on, and then there are the exceptions that the Commissioners can
make themselves, the cases that I referred to earlier. On the
groups of civil servants, Gus, I am sure, will comment on those
appointed by Her Majesty, and we would of course assume that any
civil servant caught by that provision, for example, commissioners
at HMRC, would come within the ambit of the Bill. We can see no
reason either 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. The other named group of people of course
was special advisers and they are completely outwith our remit
and they are of course the personal appointment of ministers.
Q568 Lord Morgan: To take the diplomatic
appointments, this would cover the appointment of somebody on
merit who was not himself a member of the Diplomatic Service,
would it? I can think of cases where people who are not members
of the Diplomatic Service have been appointed to be ambassadors,
but on merit it was a very good appointment and it worked very
Ms Paraskeva: Indeed I would say that that was
on a par with a member of the public, who had not been a civil
servant, coming in to take a top job in the Civil Service for
the first time. They are, nonetheless, appointed on merit and
I think it is very difficult to argue that that should not be
Q569 Lord Tyler: We have not heard
from Sir Gus on this because I understand he takes a different
view from the Commission, that the general blanket exception for
the Diplomatic Service is justified, so I would be very interested
to hear why he thinks that.
Sir Gus O'Donnell: Well, in practice, over the
past 40 years I think something like one in 200 of these appointments
have been through different means. The example I gave when PASC
asked me was when I was very much involved when I was working
for John Major as Prime Minister, when Chris Patten did the job
in Hong Kong. I think there are cases where you might want to
have someone with a strong political background specifically for
specific cases, so I think there are some truly exceptional cases
where actually you might find that the best person comes from
outside the Diplomatic Service, but I would stress that I would
think they would be truly exceptional.
Q570 Lord Tyler: But that is not
a justification for the general exception, that is supporting
what the commissioners are saying, that one in 200, I think you
said just now, may be a very special case which the Commission
Sir Gus O'Donnell: That is why I would say that
the appropriate way to go about this is to have procedures which
would allow this to happen in exceptional cases, and that is what
happens at the minute.
Q571 Lord Tyler: But then it does
not need the general exception.
Sir Gus O'Donnell: Well, that is a question
with the general exception where we have used that general exception
to operate in a way where it has always been members of the Diplomatic
Service who have taken up these posts, unless there has been a
desire for a truly exceptional case.
Ms Paraskeva: We would argue in the opposite
direction, that, even without general exception there, we could,
nonetheless, exempt in any specific cases such as the one you
Q572 Sir George Young: Can we move
on finally to the question of special advisers where there are,
I think, three issues. One is their numbers, the second is their
functions and the third issue is how they are paid for. On function
and numbers, we have got Janet's views helpfully set out that,
in the way the Bill is drafted, you could run a coach and horses
through the entirety of the Civil Service. Sir Gus, do you agree
that there should be a limit on the numbers of special advisers
and also that on the face of the Bill there should be a restriction
on their functions?
Sir Gus O'Donnell: I am happy with the current
situation in the sense that I think it is very important that
we have transparency about numbers and cost, and I think it is
very important that we treat special advisers as temporary civil
servants, so we have a Special Advisers Code. I worry just about
the practicalities of having a cap on numbers because, as soon
as you announced a cap, I suspect that that would become a minimum,
not a maximum, and that people would just move to it straightaway.
I think it is important for the Civil Service to do the functions
of operating impartially, not getting involved in political partiality,
but that you actually have some groups there who can operate in
a partial way, so I think good special advisers are actually good
for impartiality in the Civil Service, so I am in favour of special
advisers to a limited extent. I thought the kinds of numbers we
have talked about have been fine. In terms of their functions,
I think it is important and actually I think this is where we
could clarify that it is clear that they do not order civil servants
around, look after budgets and those sorts of things.
Q573 Sir George Young: You would
like to see that in the Bill?
Sir Gus O'Donnell: I could certainly live with
clauses like that.
Ms Paraskeva: I think we would very much like
to see greater clarity in terms of the role of the special adviser.
There has been a suggestion, your suggestion, of "short money"
and maybe one would not need to cap the numbers, if indeed the
budget for advisers were arranged in that way. I think the most
important point for us is that there is some absolute clarity
about their role and the restrictions. I think it is the case
that "good fences make good neighbours" and, if civil
servants and special advisers understand each other's respective
and complementary roles, we might secure for the future what we
have now, I think, which is a really very workable arrangement.
Q574 Sir George Young: Can I just
press you a little bit on the number because I think in your evidence
you were more cautious than Sir Gus about the absence of any number.
Is there not a point where the terms of trade between the Minister
and the Civil Service might change and, if you get more than a
certain number of special advisers around that particular Minister
and interacting through him, is there not a downside if you do
not have any limit on the number of special advisers?
Ms Paraskeva: Certainly there is a difficulty
if you have too many advisers compared to the number of senior
civil servants who are actually working at the ministerial interface.
It is a question of whether a cap would actually secure what you
are looking for or whether there are other ways of dealing with
that, and I think Sir Gus makes the point that, if you have a
cap, it is almost inevitable that people will employ up to it,
which is why I did think it was an attractive proposition to see
the financial limitation of party monies being used, and of course
that would change the nature of the special adviser and lead one
to question whether in fact special advisers actually need to
be civil servants.
Q575 Sir George Young: Can we just
pursue that for a moment. What would be the impact if, for the
sake of argument, we did say that we were going to extend short
money to the Government and they would fund special advisers out
of short money rather than as they are funded at the moment? A
good thing or a bad thing?
Ms Paraskeva: I assume that, whenever there
is a financial cap, there is a real cap on the numbers of people
that one would employ, so that could be, I think, something that
was really worth looking at.
Q576 Lord Armstrong of Ilminster:
Would their status as temporary civil servants not be weakened
if they were paid in that way?
Ms Paraskeva: I think it does beg the question
of whether they would be civil servants at all.
Sir Gus O'Donnell: I would be very cautious
about this. You could put a monetary cap and then say, "That's
enough", and then we will find we have got lots and lots
of unpaid people around, so I would be very nervous about that.
The idea that we separate them out and put them in a different
class so that they are no longer subject to all the rules that
are in the Special Advisers Code now at the minute, I would be
very, very nervous about. It will make them, as it were, something
other than the team and actually I think it would drive them into
a different place and we will get an adversarial relationship
internally, and I would really be very, very cautious about going
down that route.
Q577 Sir George Young: Although Lord
Butler seemed to take a different view.
Sir Gus O'Donnell: Illustrious predecessors
will, I think, probably have a range of views on this matter.
Q578 Lord Armstrong of Ilminster:
Could one predecessor just say that in earlier evidence to this
Committee, it was suggested quite strongly, I think, that there
should be a change in the Bill, not just in any Code, but in the
Bill, which would add a provision to the effect that special advisers
may not recruit, manage or direct civil servants. Would you like
to see that in the Bill?
Sir Gus O'Donnell: As I said earlier, I think
there is scope for having more words in here which would better
specify the appropriate functions of special advisers. They are
specified in the Code, but actually having it in the Bill, I would
certainly have no objection to that.
Q579 Lord Maclennan of Rogart: Again
in answer to an earlier question, you pointed to the growing use
of people parachuted into the Civil Service from other areas of
expertise, businessmen and the like. I wonder what sort of special
procedures there are in place to ensure that such people do in
fact fulfil the criteria of merit and are not simply friends of
those in high places. It is a third category perhaps.
Sir Gus O'Donnell: You are absolutely right,
it is hugely important, and the reason we are bringing these people
in is because we have skills gaps in the Civil Service, possibly
temporarily. They are invariably done through open competition
with Janet alongside me and we are assessing them. What is the
principle of this legislation? That we get fair competition.
Q580 Lord Maclennan of Rogart: Can
we just get a note on what the procedure is and how it is handled
so that we can make a comparison with the normal methods of recruitment?
Sir Gus O'Donnell: The vast majority of them
come in through the normal methods of recruitment.
Ms Paraskeva: We regulate them in exactly the
same way as we regulate open competition, but we can indeed provide
you with some further information as to how it happens.
Chairman: Perhaps you would be good enough to do
that, and the final question I would ask, apart from thanking
you also for coming, is: do you think that this really should
be within the Constitutional Renewal Bill or, having waited 150
years, do you think it deserves a Bill of its own? You may like
to drop us a note on that, as you are not able to answer it now.
Thank you very much for coming.