Joint Committee on the Draft Constitutional Renewal Bill Minutes of Evidence

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 fairly content.

  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 well.

  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 the case.

  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 could consider.

  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 suggest.

  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.

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