House of Lords - Public Service

Select Committee on Public Service Report

PART 5: SUMMARY OF GENERAL EVIDENCE ON THE PUBLIC SERVICE AND THE COMMITTEE'S CONCLUSIONS AND RECOMMENDATIONS (continued)

Answering Parliamentary Questions: the Constitutional Identity of the Civil Servant

350. Allocation of accountability between Ministers and Chief Executives rests on the assumption that Chief Executives can properly be held accountable in some cases. This assumption has obfuscated the traditional view that Ministers remain accountable for everything that happens in their department, and Civil Servants act and speak only on behalf of the Minister. In practical terms, the debate about accountability can often be boiled down to the question of who answers Parliamentary questions. The views of our witnesses were divided about this. Some thought that the role of chief executives was no different from the role of Permanent Secretaries. Others thought that the position of chief executives was already unlike the position of other Civil Servants, and that chief executives ought to be given yet more scope to answer questions for themselves rather than for Ministers. Others of our witnesses simply thought the current position was confused.

351. Dr O'Toole questioned (Special Report, pp 266 to 267) whether officials could in any proper sense be described as 'accountable'. "The claim of Ministers is that the increasing transparency of decision making which is implicit in the devolution of administrative powers to the agencies has meant that public officials are more accountable now than ever before. In particular, they point to the Citizen's Charter, the proliferation and publication of performance criteria, and the decreasing anonymity of Civil Servants as evidence for this. Indeed these are all facts. However, they do not necessarily add up to an improvement in responsibility and accountability. The reason is simple: it is Ministers and Ministers alone who answer to Parliament for the whole range of Government activity; and it is Parliament, through elections to the House of Commons, which answers to the public. Agency chief executives and other officials may well appear before select committees or in the media; but they are not directly answerable to the electorate through Parliament."

352. Sir Richard Wilson (Q 957) explained the position thus: "a civil servant appearing before a Select Committee ... appears to represent the Government's views, to assist the Committee in answering whatever it needs to know from the executive. It is not for the official to give their own views on any issue, it is for the official to explain as best they can what the Government's position is. That applies whether they are a Permanent Secretary or chief executive of an agency or any other official of any kind. Their job is to come and to help the Committee to the best of their ability, but, subject to the instructions of their Ministers, to help the Committee understand what the Government's position is on a particular issue." He added (Q 959) "If you believe in a neutral, impartial Civil Service which does not have a political allegiance, it is important that the rules about appearances before Select Committees reflect that and respect that status".

353. That position was endorsed by the then Government in its response to the House of Commons Public Service Committee's Second Report for the Session 1995-96, Ministerial Accountability and Responsibility, and of course all the Civil Servants who gave evidence to the Committee were bound by that. This was reflected when, for example, Ms Ann Chant was asked (QQ 531 to 533) to give a personal view on whether she agreed with Lord Nolan's recommendation that agency chief executives should be more directly accountable to Parliament. Her response was "I think I can only say I would be happy to do whatever Ministers and Parliament called upon me to do. Clearly either pattern would work".

354. Sir Richard Wilson (Q 947) said "Delegation of authority within a department internally is a management matter, it is not a constitutional matter, it is a matter of management and it happens at all levels, and it does not conflict in any way with the accountability of Ministers to Parliament as a constitutional doctrine. Of course, Ministers cannot do everything, they cannot know everything, there have to be arrangements whereby officials take on their job. The Carltona doctrine [see paragraph 358 below] ... is one which operates across every department, and in practice the responsibility of a Minister for what actually happens is still now as it was set out by Sir David Maxwell-Fyfe in the Crichel Down case".

355. The Committee asked Mr Richard Tilt (Q 1471) about the present Home Secretary's decision that all Parliamentary Questions relating to the Prison Service would now be answered by a Minister rather than by the chief executive. Mr Tilt replied, "My view is that Ministers always were, and continue to be, accountable for the Prison Service, and rightly so. I think the present Home Secretary felt very strongly that, presentationally, one ought to have Parliamentary Questions answered by Ministers. I welcome that because it demonstrates his ability, or his wish, to associate himself closely with the Prison Service, and that is good for us. It does not make a great deal of difference in terms of how one dealt with the machinery of answering Parliamentary Questions; the Home Secretary, when he made that announcement, at the same time took the opportunity to say that it had no significance for the role of the Director General or, indeed, for agency status."

356. Sir Richard Wilson also felt that Ministers had always remained accountable. He said (Q 964) "the fact is that when things go wrong in prisons there is huge public interest in them, and if you look at what actually happens Ministers do come to Parliament to give an account, whether or not these were policy or operations or whatever, because they are matters of grave public and parliamentary concern. In practice ... the handcuffing of women in labour was a matter of public concern and it came before Parliament, and there is a whole string of similar examples which one could give where the public have been concerned, Ministers have responded and agency status has not got in the way. So I agree about the importance of making sure agencies do not become a barrier between the concerns of the public and the ability of Parliament to require an account, but I do not know there is any evidence it has become a barrier."

357. When asked whether chief executives should answer Parliamentary Questions, Sir Terence Burns said (Q 1409) "I think in the end this has to be a question of the preferences of the Minister concerned. I think it is a question of whether they feel comfortable with having questions answered by the Head of the agency or not. I think there is a lot to be said for having the routine questions which do not require any real political input being handled by the people who are running the agencies and then reserving for the Minister the questions which have got a political input. The problem, of course, is that some questions which may one week appear to be a simple statistical question the next week turn out to have a political input to them. My approach to this is really to make sure that the Minister to whom the agencies report is comfortable with the arrangements." Agreeing that it was important to ensure that neither Minister nor chief executive could avoid answering, Sir Terence said (Q 1412), "it is the most important principle of all of any delegation that you should always know who has got the baton and whose name is on it and who would be called to account."

358. On a more theoretical level, Professor Bogdanor questioned (Special Report, p 37) whether Civil Servants (when acting other than as accounting officers) can ever act other than on behalf of their Ministers. To say that they can goes against the conventional idea of the civil servant as the alter ego of the Minister. This was the convention underlying the Armstrong Code (see paragraph 405 below) and which was embodied in the Carltona doctrine. Mr Justice Sedley (Administrative Law and Government Action, Oxford University Press, 1994) described the doctrine thus: "...Ministers have historically relied on their Civil Servants to do most of their work and much of their thinking for them. By the 1940s this was well established, but no statute or doctrine of common law had ever sanctioned it, and executive and prerogative powers were always (as they still are) vested by law in Ministers alone. Intra-departmental delegation, theoretically underpinned by Ministerial responsibility, was an accepted convention, but when in 1943 its lawfulness was challenged (Carltona Ltd v Commissioners of Works [1943] 2 All ER 560) the Court of Appeal found itself compelled to elevate departmental practice into a doctrine of law. Since the whole immunity of the state from tort actions rested on the theory that Civil Servants were the servants not of their Ministers but of the Crown, so that the Minister was legally no more than first among equals, an entirely heterodox concept of the civil servant as the Minister's alter ego was enunciated. It violated all the common law rules against unauthorised delegation, but it perfectly adequately described what went on and could not be stopped, and it has done service ever since as a principle of constitutional law."

359. Sir Robin Butler said (Q 2136) that the Carltona principle was "absolutely unaffected" by changes in the Civil Service. He explained (Q 2138) "It is precisely in order to keep the importance of the Carltona principle that we have always argued against heads of agencies being given some direct line of accountability to select committees and to Parliament separate from the Minister. They must be there in order to maintain the Carltona principle as the personification of the Minister. That is not to say that I have got the slightest objection to heads of agencies appearing before select committees. I think they ought to and I think select committees ought to question them all they want to because that is the horse's mouth from which they get the information about the existence of these agencies. But I really do think it would be a constitutional change if the heads of the agencies or anybody else was giving some direct accountability to Parliament which bypassed the Minister. That would undermine the Carltona principle".

360. Thus Sir Robin saw no distinction between the position of a chief executive and the position of a Permanent Secretary. He said (Q 2084) "They are both arms of the Minister". He described the position thus (Q 2085): "I absolutely feel that in all respects about an agency, Ministers can be questioned about the operations of an agency. That is what distinguishes them from a quango. Where some confusion may have arisen is that in order to emphasise that the chief executive has got certain management roles delegated to him or her by the Minister, we have had this arrangement that the chief executive often answers MPs' letters or questions. This is to emphasise that this role is delegated. But this is the essential point, any MP who is not satisfied with the chief executive's answer has a complete right to take that up with the Minister. The Minister is entirely accountable for what goes on in the agency".

361. Professor Bogdanor (Special Report, p 37) and QQ 137 and 163) questioned the traditional position, saying that he thought the Civil Service had a duty to the constitution and a unique role in maintaining the unwritten constitution, which in turn raised the question whether if an official saw a Minister acting in a way which was unconstitutional, misleading Parliament or seeking to avoid the principle of Ministerial accountability, he had a right, and perhaps a duty, to do something about it.

362. Lord Nolan drew a distinction between the position of a chief executive of an agency and the position of a Permanent Secretary in relation to accountability. In Lord Nolan's view (Q 1803) "the chief executive is there primarily as a business executive, and is often...brought in from the business world to carry out his functions. He is not a traditional civil servant". Lord Nolan took the view (Q 1806) that there might well be things that the chief executive is better placed to answer that than the Minister, and in that case the chief executive should be called upon to give the answers. "In other words" said Lord Nolan "the Permanent Secretary should be protected from the parliamentary committees but the chief executive should not".

363. Mr Derek Lewis took this view even further (Special Report, p 261). He wrote "The chief executive and board of an agency must be free to make public their views on the operational implications of the policies that they are required to implement. If this is not permitted the principle of Ministerial responsibility is seriously distorted. Ministers would be free to impose half-baked impractical policies or to set wholly unrealistic performance targets, and then simply load the blame onto those running the agency for any failure to implement or achieve, as a mere operational matter. The public needs to know the views of the professionals in charge of its major public services on significant policy issues. If the public knows only the views of politicians, it cannot form balanced judgments about the policy decisions being taken by its elected representatives."

364. The Committee asked Dr Clark for his view as to how accountability might work in the case where one person is responsible for policy and another for operations. He said (Q 1848), "I do not think I have a definitive answer to that". He maintained the view that (Q 1846) "at one level the Minister is accountable for what goes on within his agency", but admitted that (Q 1848) "it was to the advantage of the Minister to encourage his chief executive to appear before the Select Committees". At the same time, he conceded that Members of Parliament were not always satisfied with answers given by Chief Executives (Q 1846). He considered the present arrangement to be unsatisfactory, and suggested that the Government needed to address the problem. "We are operating under variable geometry at the moment" he said "while we are waiting for the outcome of the Better Government White Paper".

The Committee's Conclusions

365. An agency's activities are very clearly circumscribed, and their successful performance is the responsibility of the chief executive. These two facts taken together explain why it is for the first time possible to suggest that an official rather than a Minister should be accountable for a particular area of activity. Very quickly it has become an established convention that chief executives of Next Steps agencies provide the substance of written answers to parliamentary questions and are held to be responsible for operational matters within the agency they run. The Minister's reply in Hansard consists of a covering letter signed by the Minister, accompanying a substantive answer signed by the chief executive. Rather than answering questions about agencies themselves, Ministers now often refer queries to chief executives instead. This seems very different from the previous understanding, which was that Ministers were accountable for everything that went on in their department, and Civil Servants spoke only on behalf of the Minister.

366. However, devolution of accountability raises both practical and theoretical issues. On a theoretical level, the question arises whether any attempt by Ministers to distinguish between responsibility for policy and responsibility for operations is consistent either with the Armstrong Code or with the Carltona doctrine. If that doctrine holds good, then whatever might be said in an executive agency's framework document, its chief executive is in all things acting as his Minister's alter ego. In terms of the Armstrong Code, the chief executive has no constitutional personality or responsibility separate from that of the Government. If it is claimed that in operational matters a chief executive (but not the Minister) is personally responsible because the Minister has delegated that responsibility to him, then the chief executive's position is radically different from that of the Permanent Secretary, except perhaps, when the latter acts as an accounting officer. Such an interpretation would have far-reaching implications for the current status of both Civil Servants and Ministers as servants of the Crown-and, indeed, for Crown immunity. The Committee considers that the precise relationship between Ministers and Civil Servants is now subject to a variety of interpretations, and that there is now a need for this relationship to be clearly defined, taking into account the Carltona doctrine, the Armstrong Code, the Civil Service Code and the new position of Chief Executives. It is a matter for reflection as to whether the Carltona doctrine is really relevant, or indeed in operation, in the changed circumstances of today, or whether the Civil Service should not be regarded as in some respects a separate organ of the constitution distinct from the Ministers of the Government. A Civil Service Act might be the means by which to clarify this. The idea of a Civil Service Act is discussed more fully in paragraphs 403ff below.

367. On a more practical level, the Committee considers that it is unrealistic to imagine that Ministers will not become involved when an operational matter suddenly raises a policy issue. That being so, it is impossible to devolve absolute accountability to chief executives so as to allow them to answer questions on their own behalf. Any such devolution would lead to an unworkable system where there were dual lines of accountability to the chief executive and to the Minister. The Committee recommends that in clarifying the relationship between Civil Servants and Ministers, the Government should affirm that the position of agency chief executives is no different from the position of any other civil servant; that when chief executives provide the substance of written answers to parliamentary questions or appear before select committees they do so on behalf of the Minister; and that Ministers are accountable for whatever goes on in their agencies just as they are accountable for whatever goes on in the rest of their departments. The Committee hopes that such an affirmation would prevent it being thought that Ministers could pass responsibility for operational matters to chief executives.

PERFORMANCE LEVELS IN THE CIVIL SERVICE

368. Many of our witnesses who were themselves working in executive agencies told the Committee of the improvements which had been achieved in the delivery of public services. Dr Clark told the Committee (Q 1844) that his party had never been opposed to the creation of Agencies because "we wanted to focus on how we could deliver an improved service to our citizens".

369. Sir Christopher Foster and Mr Francis Plowden (see Special Report, p 14) argued that the recent structural changes to the Civil Service "have permitted, and usually have resulted in, a higher standard of service to the public through greater attention to customer service, greater efficiency, better management and more diversity of provision". The new entities "have, in different ways and to a varying extent, not only increased their effectiveness and efficiency, but economised on public expenditure by comparison with what otherwise would have to be paid for these services". In addition, Professor Hennessy said (Q 1887), "The management of people and money is really quite good now and that is a definite plus. It was very primitive before 1979".

370. Sir William Reid (Q 546) cited the Passport Agency as an organisation where change had been beneficial: "that now does an absolutely splendid job in a way that it did not do in the time of some of my predecessors. I know my predecessor but two had to spend a great deal of time looking into complaints about the inefficiencies of the Passport Office. That has not been my experience at all. Indeed, I remember telling the Permanent Secretary in the Home Office that he ought to be very proud of the fact that the Passport Agency had been turned around and was producing such a very improved standard of service".

371. Mr Robin Mountfield said that although productivity in the Civil Service was difficult to measure, there was evidence that it was rising. He said (Q 1977) "the effect of the agency movement over the last eight or nine years has been highly beneficial in terms of providing a structure within which management change and improvement...in productivity and efficiency and in quality of service has taken place. There have been very marked improvements. I believe that there is reasonable evidence that productivity in...agencies has been rising by about three per cent over the last...four or five years, which is considerably more than the rate of growth in the private sector".

372. The Director General of the Prison Service Agency said (Q 1461) that while he did not wish to oversell the advantages of agency status, "I think the advantages have been on focusing on performance, corporate identity and the position of the Director General, but I am not saying for a moment that we could not have achieved the improvements which we have achieved if we had not been an agency. I think it actually helped and probably speeded up the focus on performance." He added (Q 1463), "The results which we have achieved since we became an agency demonstrate that for us it has been effective in terms of improving our performance, which is after all pretty important."

373. Mr Turnbull echoed this (QQ 2182 to 2184). He said that agency status had been accompanied by "some very significant improvements", but accepted that the improvements could have been made without the agency structure. "But" he added, "I am not sure I am really worried about that. We have hit upon a formula which has done it. There may have been other ways of doing it. This formula has been successful".

374. Sir Terence Burns said (Q 1439) "The process of decentralisation itself brings greater scrutiny upon the process that is going on than is often ever given to what is the core that is going on. One of the reasons that first really attracted me to the power of the executive agency regime was to watch the way in which the forging and production of a framework document forced questions to be asked about the way that things were being done, and why things were being done, which were simply not being asked within the existing framework that you had."