Select Committee on Public Service Report

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

GRIEVANCE AND REDRESS

  383.    The Committee considered whether the increasing complexity and fragmentation of the Civil Service has had an effect on the ability of those affected by its actions to pursue a grievance or to seek redress.

  384.    Asked (Q 1964) what effect the changes in the Civil Service had had on avenues of redress, Professor Hennessy said "At the lower level...customer care has improved dramatically in the agencies of the State which deal with the public; much, much better. The incorporation of the European Convention will, I think, be a hugely beneficial step potentially here. The traditional routes through Members of Parliament certainly have their uses and occasionally it is a very swift and effective mechanism... The Ombudsmen, though we take that as routine now, had had a salutary effect over the years, and that was a considerable reform".

  385.    Professor Bogdanor pointed out in written evidence (Special Report, p 36), "In the commercial world, market principles obtain. But that cannot be the case with many Government services. Indeed, the reason why some functions are located in the public sector is precisely because principles of commercial accountability cannot apply. The clients of, for example, the Benefits Agency, which services around 20 million people, are not in a position to switch their custom as the customers of Marks and Spencer or B and Q are if they are dissatisfied with what they are getting. Clients of the Benefits Agency cannot use market mechanisms to demand better standards of service, nor can they secure increased expenditure on benefits in any way other than through the ballot box".

  386.    Mr Peter Adeane of NACAB said (Q 763) of the complaints procedure at the Benefits Agency "They have a very good model here, the Good Practice Guide, which has been introduced concurrently with the formation of the Benefits Agency. There really was no public guide like that". His colleague Ms Nicola Simpson said (Q 764) that of the various procedures of redress "We very much like the adjudicator model used by the Inland Revenue and the Contributions Agency. That has brought forward complaints and ensured they are dealt with in a quicker way and also fed back into improving the system. That is the sort of model out of the current models that we would favour".

  387.    Miss West of Age Concern England said (Q 340) "I am not sure that there have been huge changes with the introduction of the Benefits Agency on redress", and added (Q 343), "Nobody wants a compensation payment for a late benefit, they actually want their benefit on time". Not all complaints were handled to the satisfaction of our witnesses. Mrs McEwen, also of Age Concern England, drew attention (Q 343) to the fact that the Benefits Agency had failed to respond to the sustained pressure on them from Age Concern England to tackle known fraud in the claiming of benefits on behalf of mentally incapacitated elderly claimants: "We have been asking for many, many years for the Department to investigate this procedure because there is a good deal of abuse".

  388.    Sir William Reid (Q 565) said there was a "need to ensure that the creation of multiple agencies does not break down the consistency of redress for the citizens if something goes wrong". He said (Q 563) that the creation of executive agencies had made "some difference but it has not been a real stumbling block to getting redress. When agencies were first set up I thought it important for me to talk to Permanent Secretaries generally about how I would operate [as Ombudsman] in relation to the agencies. It seemed to me reasonable that I could do most of my work with the agencies rather than with the parent department, though for technical and legal reasons I have to deal with the Permanent Secretary. I found no problems at all in eventually getting redress from an agency".

  389.    Sir Christopher Foster drew the Committee's attention (Q 92) to this area. "If it is accepted that there may be public bodies who in many or all of their activities or operations are not the responsibility of Ministers then one needs to be absolutely clear whose responsibility they are, it is because we do not have that clarity there is such great difficulty over the concept of Ministerial responsibility." He referred (Q 93) to the "patchwork quilt of different arrangements for dealing with grievances and complaints. Some are vastly improved from the old days. There are Ombudsmen, consumer committees-there are many different arrangements. Many are better than they used to be, but there are others where they remain difficult. The response of Ministers to the Inspector General of the Prison Service is notorious, when he tried to argue he had a duty to act for prisoners in their grievances only to be told he had not. Generally there are many discrepancies in the arrangements." Sir Christopher added "I do believe this Committee will perform an enormous service if you can derive some principles to help standardise the grievance and complaint procedures across the public sector."

  390.    Sir William Reid noted (Q 566) some recent Government improvements, such as increasing compensation so as to put the citizen back in the position he would have been in had maladministration not occurred, but added (Q 567) "But I do notice that judicial review continues apace and I do not think my successor is out of a job yet, but it does seem sensible to try to maintain some kind of coherent consistency in the way in which public bodies, which are all part of the same Government entity, behave in relation to their dealings with the citizen". Sir William said (Q 568) "I think there is some way to go. There has been some progress. As part of the charters, departments have set up internal complaints handlers, but some of them have some learning process to go through still, otherwise matters would not still come to the Ombudsman, but I think it is encouraging that they are now much more user-friendly and that the public as a whole is more devoted to consumerism and, therefore, will not take no for an answer as they might have 40 years ago. I think the Code of Openness in relation to the Government, just as much as the Code of Openness in relation to the National Health Service, ought to help quite a lot in that direction".

  391.    Mr Hammond, the Treasury Solicitor, said (Q 1167) that between 1988 and 1996 the number of applications for leave to seek judicial review had roughly trebled. He observed, however: "I would not, myself, subscribe to the view that Government departments do not, as a general rule, welcome these developments. My own view is that it has led to an improvement in the standard of administration, because I think that departments are much more alive to the risks that are attendant upon judicial review if they do not approach decision making in the right way."

The Committee's Conclusions

  392.    The Committee had evidence to suggest that the introduction of agencies has in some cases improved arrangements for grievance and redress. The main complaint now seems to be a lack of consistency across the public service with regard to complaints procedures. Different departments now have different types of grievance procedure. Tribunals are constituted differently for different tasks. The appellate procedure is different and in some cases elaborate. It may be inevitable that structural differences should exist for tribunals and other bodies to deal with different grievances. It is, however, desirable in the view of the Committee that as far as possible standard principles and guidelines in relation to the handling of grievances and to the provision of redress should be available across the public service. It may well be that the process of standardisation so far as is possible would also lead to the simplification of procedures. It is plainly important that citizens should know how their grievances are dealt with if a department or an agency or any other public body fails to give the service which it is expected to give.

THE IMPACT OF THE EUROPEAN UNION ON THE CIVIL SERVICE

  393.    Two of the major changes to have occurred in the administration of the country in the last 30 years were the accession of the United Kingdom to the European Communities on 1st January 1973 and subsequently its membership of the European Union. The Committee asked witnesses what effect that change had had on the way in which Civil Servants carried out their tasks, and on their relationships with Ministers.

  394.    Mr Michael Scholar said (Q 1608) that the work of his Department had been very considerably affected by the United Kingdom's membership of the European Union. "We have a very extensive involvement in the work of the European Union. Many of the statutes under which we work are statutes which arise from European Directives or have had to be made consistent with European law. Civil Servants are constantly travelling to and from Brussels attending meetings which discuss new directives or changes which need to be made to the existing framework of law. I would say that European work is found throughout the Department in depth".

  395.    Similarly, Mr Turnbull testified to the big effect which membership of the European Community had had on the DETR. Speaking about the environment group and the health and safety group within his Department he said (Q 2227) "a large part of their agenda is dictated by Europe. On road safety, building regulations and planning there are some important links. One of the key features is most of this work is settled in Europe by qualified majority voting and that means that to be effective you have got to be able to negotiate and collaborate. We have gone to some trouble to make sure that the people in the department are good at this".

  396.    Professor Hennessy paid tribute to the ability of the British Civil Service to act in a communautaire fashion when abroad, and then to revert to the command model of executive dominance when they returned home (Q 1971). He said (Q 1966), "Where the British Civil Service is brilliant is in the Community context of practising brokerage politics. It has to. It has to talk to people and other players in a way that it does not in domestic politics. If we ever become a proportional representation state at the centre the Civil Service will adapt wonderfully quickly because that is what it does in Brussels all the time. Increasing numbers of them have got experience of that. It is a kind of institutional schizophrenia in that you behave differently if you are a British civil servant abroad".

  397.    Mr Scholar was asked (Q 1609) if in his relationship with Ministers he had found a conflict between the Community rules and domestic law and domestic policy. He replied "there can be occasions when Ministers as a matter of policy dislike the direction in which European arrangements or European law propels them and one has seen cases of that kind. I see nothing unique about that. I have seen cases where sometimes Ministers are unhappy with the direction in which United Kingdom law which is not derived from European law propels the Department".

  398.    Mr Hammond said (Q 1255) that the one area of law which had affected Whitehall lawyers most was the obligations which had been assumed towards the European Community. "Virtually every lawyer in Whitehall now has to have a background in Community law because it permeates so much of the activity of Government. My own European Division's function is to advise the Cabinet Office, who have their own Secretariat dealing with European Community issues and to act as a co-ordinating mechanism to ensure that the Government has a coherent policy on all the important Community issues which arise and to be responsible for conducting litigation before the European Court of Justice." He pointed out (Q 1265) that because of the supremacy of Community law over domestic law, it was a matter over which Ministers had no direct control. "If it is a matter of domestic law there is always the option of legislating at Westminster, but that option is not always available."

  399.    Mr Hammond also pointed out (QQ 1267 and 1268) that although the European Convention on Human Rights had not been formally incorporated into our domestic law, "Strasbourg has become increasingly important in the way that lawyers operate in Whitehall. It has become more pervasive as the Strasbourg organs have gradually extended their jurisdiction. Every lawyer in Whitehall has to be aware of the rights conferred by the European Convention and the way it operates in relation to the areas in which they advise."

  400.    On the other hand, Dame Ann Bowtell said that European legislation had had comparatively little direct influence on the work of the Department of Social Security because (Q 492) "social security is not one of the areas where the European Union has competence, except in so far as you look at provisions for the movement of workers and for equal treatment where it makes a difference". She went on (Q 493) "The thing which has made a great difference is the equal treatment provisions. That has been the big influence in social security. Because of the way that has worked, that has actually influenced a great deal in pension provision and many other areas. That has affected the structure of the benefits system. But in so far as the 90,000 staff are concerned, I would not have said that it did affect their day-to-day operation very much, except in so far as we are affected by European Directives like purchasing or health and safety".

  401.    Professor Hennessy offered two reasons why he thought there had been no cross-fertilisation of ideas from other Member States to produce different working methods in the Civil Service here. The first (Q 1966) was because of the very different working practices under the British "command model of domestic politics: Green Paper, White Paper, Bill, let us get on with it, we have got a majority". The second reason (Q 1971) was that the British Civil Service had little to learn from any European (or indeed other) country: "if you take my key definitions ... about what is required for a clean and decent Civil Service in an open society you will see we are the only one that has been preserved pretty well intact in the Northcote-Trevelyan nostrums... We are not just the world leader, we are the only citadel and that is the rock on which the Civil Service should stand. That is the bit where they can actually legitimately say, 'The rest of the world is an object lesson in how not to do it. Push off'."

The Committee's Conclusions

  402.    The Committee concludes that membership of the European Union has changed the content of Civil Servants' work, but not its nature. The constraints imposed by Europe are not so very different from the constraints imposed by domestic policy in the past. The Committee is impressed with the way in which the Civil Service has adapted itself to cope with the changing demands of the United Kingdom's membership of the European Union, and in particular the Committee applauds the European Fast Stream programme for sending British Civil Servants into European institutions. The Committee attaches importance to the fact that discussions about the public service take place between officials in this country and those in European Community institutions, and, no less important, with officials of other Member States. It seems to the Committee that even allowing for structural and policy distinctions between the Civil Service in this country and that in other countries there is much to be gained from a study of what happens in other Member States. It is obvious that this is already happening and that the Civil Service here is also very conscious of changes which are taking place in other Commonwealth countries, such as New Zealand, Australia and Canada.

A CIVIL SERVICE ACT

  403.    The Civil Service Management Code is issued under the authority of the Civil Service Order in Council 1995 under which the Minister for the Civil Service has the power to make regulations and give instructions for the management of the Home Civil Service, including the power to prescribe the conditions of service of Civil Servants. Section 4.1 of the Civil Service Management Code deals with general principles and rules relating to the conduct of Civil Servants and contains, as an Annex, the Civil Service Code which departments and agencies must incorporate in the conditions of service of their staff.

  404.    The Civil Service Code states "The constitutional and practical role of the Civil Service is, with integrity, honesty, impartiality and objectivity, to assist the duly constituted Government, of whatever political complexion, in formulating policies of the Government, carrying out decisions of the Government and in administering public services for which the Government is responsible". The new version of the corresponding but non-statutory Ministerial Code issued in July 1997 states (paragraph 56) "Ministers have a duty to give fair consideration and due weight to informed and impartial advice from Civil Servants, as well as to other considerations and advice, in reaching policy decisions; a duty to uphold the political impartiality of the Civil Service, and not to ask Civil Servants to act in any way which would conflict with the Civil Service Code; a duty to ensure that influence over appointments is not abused for partisan purposes; and a duty to observe the obligations of a good employer with regard to terms and conditions of those who serve them. Civil Servants should not be asked to engage in activities likely to call in question their political impartiality, or to give rise to the criticism that people paid from public funds are being used for Party political purposes".

  405.    The Armstrong Memorandum, a note issued in 1985 by the then Head of the Civil Service, declared that "Civil Servants are servants of the Crown. For all practical purposes the Crown in this context means and is represented by the Government of the day. ... The Civil Service as such has no constitutional personality or responsibility separate from the duly constituted Government of the day ...". That description of the constitutional position was criticised by the Treasury and Civil Service Select Committee (Fifth Report, HC 27, 1993-94). The revised Civil Service Code issued in April 1996 now expresses it thus: "Civil Servants are servants of the Crown. Constitutionally the Crown acts on the advice of Ministers and, subject to the provisions of this Code, Civil Servants owe their loyalty to the duly constituted Government".

  406.    The Committee regards the formulation in the 1996 Code as much more satisfactory. The Civil Service may have no specific legal status but its distinctive responsibilities and the manner in which they are carried out play a significant part in our constitutional arrangements. A definable body of people which owes a loyalty to, and has certain duties in relation to, the duly constituted Government undeniably has a personality and responsibility of its own, and attempts to define the public service ethos are attempts to describe the attributes of that personality and the nature of the body's responsibilities in relation to the Government.

  407.    The Committee agrees with Mr David Faulkner's description (Evidence volume, p 219) of the functions of the Civil Service as including "identifying and explaining the public interest". The Committee further agrees that "it is not for Civil Servants to be arbiters of the public interest, but nor is it a matter only for Ministers. It is also a matter for Parliament and the courts. All these, together with the Civil Service, have to operate in a constitutional framework in which all the institutions of the state can be seen as accountable and legitimate". It can be argued that within that constitutional framework the position of Ministers, Parliament and the courts is acknowledged, assured and understood; but the same cannot be said of the Civil Service. If Ministers were to decide that Civil Servants had no role in identifying and explaining the public interest, that would be that. The Civil Service would, in effect, become a private service for Ministers and neither the Civil Service, Parliament nor the courts would be in any position to do anything about it.

  408.    It may be argued that the Civil Service has survived for centuries without a Civil Service Act; that much of our constitution is unwritten; and that the safeguards of history, tradition and convention are sufficient to secure the future of the Civil Service. Further, it may be argued that a Civil Service Act would unnecessarily restrict the ability of the Civil Service to respond to change, and to adapt to changing circumstances with the flexibility which it now enjoys. The Committee received evidence supporting both sides of this argument.

  409.    Asked about a Civil Service Act, Sir Robin Butler said (Q 2145) "I think flexibility is the worry. It could be done in various ways. One of the ways suggested is that you have a statute that provides that there will be a code and the code can be altered by statutory instrument. That would provide a good deal of flexibility. I think there should be flexibility because, for example, you get recommendations by Lord Nolan which you want to incorporate which sets new standards and you do not want to have to pass an Act of Parliament every time there is some development of that sort".

  410.    Lord Nolan himself did not favour a Civil Service Act, but took the view that (Q 1814) "we have quite enough Acts", and that "good standards come from within" rather than from primary legislation. He drew attention to the difficulties of drafting an Act which had to encapsulate the relationships between Ministers and Civil Servants, saying (Q 1815) "my mind boggles at the enormous difficulties involved". He also suggested that primary legislation (Q 1814) "takes time and tends to produce inflexibility".

411.  Other witnesses favoured the introduction of a Civil Service Act. Professor Hennessy (QQ 1956 to 1961) thought the new Civil Service Code was "as good as you could have made it" and that it should be put into statutory form. It was still too easy for a Prime Minister to politicise the Civil Service "around the edges" because changes to Orders in Council were easily made and seldom noticed, but "if it is in the form of primary legislation and you do want to make a change you have to be honest about it because only primary legislation can override primary legislation".

  412.    The Committee notes the Government's intention to put the Civil Service Code on a statutory basis (Q 1875).

  413.    Mr Faulkner (Evidence volume, p 221) set out the case for a legislative framework for the Civil Service which would include a Public Service Act specifying the responsibilities and duties of public servants and the mechanisms for their accountability, not only to Ministers, but also to the public; and an independent, statutory Public Service Commission to oversee matters of appointment and professional conduct. "The process of constructing this legislative framework would resolve, or more probably provide the means for resolving, any distinctions which need to be made between 'policy' and 'operations', between matters which are political and those which are administrative, or between functions which should be retained in Government departments and those which can be contracted out or privatised".

  414.    Mr Robin Mountfield said (Q 2042) that the argument against a Civil Service Act was "little more than a question of whether it would add anything to the authority of the Code. I think that the argument in favour is that it might tend to entrench even more than at present the expectation that the Civil Service will continue unpolitical. I think that is quite a difficult balance to draw and the Government intend to introduce legislation to do two things, fundamentally. One is to put into parliamentary Act form powers to employ staff which currently derive from the Orders in Council. The second is to give some statutory backing to the Civil Service Code. The Civil Service Code in a sense already has a degree of statutory backing in this respect: that Civil Servants have to be employed by authority of the Order in Council and part of the rules that we lay down under the Order in Council require the Code to be incorporated in the terms and conditions [of employment of Civil Servants], so in effect there is a chain that goes back to the Order in Council".

The Committee's Conclusions

  415.     On balance, the Committee favours the introduction of a Civil Service Act. The Act should provide for sufficient flexibility to allow the Service to adapt readily to changes. It should specify which public bodies come within its ambit. It would in effect define the Civil Service.

  416.    If adopted, the Civil Service Act should give statutory force to a Civil Service Code of the kind which was promulgated in 1996. It should clarify whether Civil Servants have any duties over and above their duties to Ministers and whether they owe independent duties as an organ of the constitution. It should also set out the duties of Ministers in relation to Civil Servants.

  417.    The Civil Service Act should replace the Civil Service (Management Functions) Act 1992 and give uniform and clear guidelines on the recruitment and management of Civil Servants as servants of the Crown. It should also replace the Deregulation and Contracting-Out Act 1994 and define what changes to the ambit of the Civil Service could be effected only by primary legislation.

  418.    The Act should specify a mechanism by which Civil Servants could in the public interest report breaches of the provisions of the Act, which they might otherwise be prevented from doing by their obligations of obedience and confidentiality. The Act should also indicate the grounds upon which application may be made by those seeking judicial review of the action of Civil Servants or Ministers.

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