PART 6: CONCLUSIONS AND RECOMMENDATIONS
(continued)
PUBLIC
SERVICE ETHOS
(289-298)
442. The evidence
we received testified to the high standards of efficiency, integrity,
impartiality and intellectual rigour which continue to characterise
the Civil Service. We pay tribute to the Civil Service for maintaining
these qualities so well. However, the evidence we received-and
which, indeed, the House of Commons Treasury and Civil Service
Committee received in connection with its 1994 Report on the Role
of the Civil Service-leaves us in no doubt not only of the great
importance of the Civil Service ethos but also of its vulnerability.
443. Perhaps the
single most important factor leading to the preservation or alternatively
the erosion of the public service ethos is the esteem in which
it is held. Maintaining it can be demanding and often difficult.
If its value is doubted or if it is ignored, people are less likely
to be committed to upholding and preserving it. It needs to be
consciously fostered. We received evidence that Civil Servants
find a dignity of purpose in working for the public sector, but
also evidence that some Ministers have tended to regard the private
sector as having superior qualities. The extent to which many
of the changes in the public sector have involved transferring
work from it to the private sector will have reinforced the feeling
amongst Civil Servants that in relation to those areas of work
their political masters regarded their role as unnecessary or
inappropriate.
444. The attitude
of Ministers towards Civil Servants is crucially important. As
Lord Armstrong of Ilminster said (Special Report, p 2), "it
is not enough to pay lip service to the public service ethos or
to take it for granted as something that will survive anything
that is thrown at it". We believe that Ministers have a particular
responsibility to affirm the value of the public service ethos
in maintaining standards of conduct and service in the public
interest.
445. The Committee
attaches particular importance to the role of the Civil Service
in offering frank advice to Ministers. Sir William Reid said (Q
593) "for those who are in the public service there should
be an understanding that it is an essential, not just an option,
to inform Ministers of unpalatable or unwelcome consequences of
their intended decisions". Sir Brian Barder described it
(Special Report, p 215) as a "willingness to offer frank
and if need be unwelcome advice without regard to personal consequences".
It takes personal courage for a civil servant to perform this
important public duty; he or she can only be sustained in it by
colleagues who share the same strong public service ethos.
446. The importance
which the Committee attaches to this role lies behind the Committee's
concern at the evidence given by Sir Christopher Foster and Mr
Francis Plowden (Special Report p 17) about the distancing of
Ministers from Civil Servants and the tendency of Ministers to
take more decisions on their own or with external advice. The
Committee considers that such tendencies are capable of undermining
the safeguards of the public service ethos.
447. Some of the
changes made in the structure of the Civil Service might also
reasonably be supposed to reduce the willingness of Civil Servants
to offer Ministers unwelcome advice. Senior Civil Servants employed
on personal contracts to meet specified measurable targets and
with performance related pay could, at the very least, be tempted
to look no wider than their responsibilities to deliver those
targets. The only yardstick may be seen as efficiency, and there
is a risk that such persons might feel that it would count against
their own personal and professional interests to draw Ministers'
attention to matters affecting the wider public interest which
might adversely affect their ability to meet their targets. A
public servant who is required to compete with the private sector
for the performance of his function can be forgiven for assuming
that Ministers do not see the public service ethos, including
the duty to proffer unwelcome or unpalatable advice, as important
to his tasks.
448. The Committee
welcomes the statement in the Ministerial Code (Cabinet Office,
July 1997, paragraph 56) that "Ministers have a duty to give
fair consideration and due weight to informed and impartial advice
from Civil Servants". The consultation process is no less
important.
449. Difficult
though it is to define the public service ethos, there was a broad
measure of agreement among our witnesses about its constituent
elements. These include factors, such as the importance of an
esprit de corps, which go a good deal wider than any characteristics
one might reasonably expect to be mentioned in any Civil Service
code. It is these other factors which are likely to be particularly
vulnerable to the kinds of change in the public service which
have taken place over the last thirty years. The role of the Civil
Service is not governed by rules. Its advice on constitutional
propriety, for example, is often based on experience and tradition
as much as on law. The traditions and collective memory of the
senior grades in the Civil Service are therefore very important
and depend crucially on its unity, continuity and collegiality.
These, in the view of the Committee, could easily be damaged by
the structural division of the Civil Service if they were not
specifically and consciously safeguarded.
450. The role
of the Civil Service is so important that both ethos and morale
must be monitored carefully. This is no doubt the function in
the first place of senior managers within departments and ultimately,
for the Civil Service as a whole, the Permanent Secretaries and
the Head of the Civil Service. We believe that they have done
well to uphold the ethos of the service throughout a period of
considerable organisational turbulence.
451. At the Ministerial
level, the overall responsibility for protecting ethos and morale
lies in the first place with the Minister for the Civil Service
(i.e. the Prime Minister) and under him the Chancellor of the
Duchy of Lancaster as Head of the Office of Public Service. But
we stress strongly that this should not be left solely for Ministers
with designated responsibility for the Civil Service. All Ministers
as guardians of the public service should bear the responsibility,
whatever departmental portfolio they hold, to uphold and sustain
the traditions and the ethos of an impartial, dedicated, non-political
Civil Service. In order to safeguard the future, this responsibility
should be spelled out in the Ministerial Code. Consideration should
also be given to including it expressly in the Civil Service Act.
ACCOUNTABILITY
The Cost of
Accountability (308-310)
452. Sir Robin
Butler's wish to retain the present tradition of accountability
must be read together with his view that the trend towards privatisation
in recent years is in part due to the restraints which accountability
imposes. There are some activities which can generally best be
left to a body not subject to daily political control. That body
should be allowed to get on with its tasks. But it is not justified
to transfer a function to a quango or to the private sector solely
or principally so that Ministers can avoid being accountable.
453. The Committee
notes that, in the majority of cases, the transfer of functions
has been done with the acquiescence of Parliament, and indeed
in most cases legislation has been required to effect the transfer.
In the case of the Recruitment and Assessment Services, however,
the offer for sale of RAS to the private sector was made using
the Government's prerogative powers and the decision to do so
was simply announced by means of a written answer to a Parliamentary
Question in the House of Commons. In our First Report on RAS we
drew attention (paragraph 87) to the strong criticisms made of
the Government's handling of the matter. Lord Beloff (Special
Report, page 221) wrote that recent developments and discussion
have called into question the classical theory of the Constitution,
citing the most recent development as "the decision to privatise
the Recruitment and Assessment Services despite the objections
raised by the Committee. And this decision was taken as the Committee
will recall despite a strongly negative vote in the House of Lords
and strong criticism in the House of Commons." This observation
brings us back to the concern raised earlier in this report (see
paragraph 153) that changes were made with little public debate
and without cross-party consensus.
454. The Committee
is aware of the danger of imposing so heavy a burden of accountability
on Ministers as to encourage them to transfer functions to other
bodies. However, the Committee does not consider that that danger
warrants a reduction in levels of accountability in the public
service. Public bodies such as executive agencies should be able
and required to demonstrate to Parliament and the courts that
their business is discharged in a rational, fair and reasonable
way and that full account can be given of the way in which public
money is spent. The inspiration, risk-taking, impulse and flair
which can so often be the key to success (or failure) in private
business cannot be applied in the same way by public servants
dealing with public resources. Many of these considerations apply
as much to NDPBs and private companies involved in the delivery
of public services as they do to the core Civil Service and to
executive agencies. The Committee therefore rejects the idea that
it would be beneficial to reduce the meticulous record-keeping
which is an essential feature of the public service at present,
and recommends instead that the Office of Public Service carry
out a review of accountability arrangements in relation to NDPBs
and private companies involved in public service delivery.
Policy, Operations
and Agency Status (346-349)
455. It appears
to the Committee that within the agency structure there will always
be cases where the dividing line between policy and operations
is blurred. An operation may fail because the policy behind it
was bad: yet as Professor Bogdanor told us (see paragraph 318
above) "it can never be policy that something goes wrong".
Operational matters enter the political domain when they go wrong.
456. The Committee
has heard that matters which have a high operational content are
suitable to be dealt with by agencies, whilst matters with a high
policy content should remain in the core. However, the Committee
has seen no guidelines specifying which activities are considered
to be matters of policy, and which operational. Nor is the Committee
convinced that precise guidance as to this distinction could be
produced. Any operation can involve a question of policy-even
the issue of driving licences-if circumstances are right. It is
therefore not surprising that such precise guidance does not exist.
Decisions as to whether an activity should be undertaken by an
agency or by the core department appear to have been taken on
an ad hoc basis within departments. In general this is unobjectionable
but, even though allocation of activities to core departments
or to agencies cannot be made simply on a clear-cut policy/operations
distinction, general criteria should be defined to indicate what
should or what should not be transferred to an executive agency
and what should be retained within a core department. In any event,
when a decision has been made to transfer a given set of activities
to an Agency, it should be standard practice to carry out a pilot
test before the decision is implemented fully. In this way the
problems which beset the Child Support Agency and the Benefits
Agency at the outset might have been avoided.
457. The Committee
also questions the opinion that it is desirable to separate policy
from operations. The focus on operations in agencies may have
raised standards of service (see paragraph 368ff); but those who
point out the benefits of isolating operations from policy equally
protest that agency staff are deeply involved in policy decisions.
An acknowledgement that policy and operations must inform each
other in a continuous loop can not be accompanied by a dogmatic
assertion that it is best to separate them. The Committee has
heard no serious argument for the separation of policy from operations
other than the opportunity it affords to improve standards of
service. The Committee considers that standards might have been
improved within the existing, unaltered Civil Service. The Committee
does not accept the view that it is possible effectively to separate
policy from operations, or the view that such a separation is
desirable.
458. By devolving
some activities of a Government department to an executive agency,
there is a risk-and perhaps it is inevitable-that no-one will
remain in the core department who is able to brief and advise
the Minister on those aspects of the department's work which have
been devolved to the agency. It is obviously important that a
Minister should be able to obtain such briefing, which formerly
would have been given by an official working in a core department.
It is essential therefore to ensure that Ministers are and continue
to be able to obtain the necessary briefing and policy advice
from senior officials in the executive agencies if it is not available
in the core departments.
Answering
Parliamentary Questions (365-367)
459. 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 is 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.
460. 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.
461. 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 (382)
462. The bulk
of the evidence which the Committee received on standards of service
related to the Department of Social Security. It was overwhelmingly
positive. A number of members of the Committee visited the Benefits
Agency in Leeds, and a local benefits office, also in Leeds. They
were very favourably impressed by what they saw. The staff were
well motivated, courteous to applicants, efficient and anxious
to be giving and to be seen to be giving highly satisfactory service
in difficult circumstances. The little evidence we received about
standards more generally across the Civil Service since the introduction
of agencies backed this up. The Committee therefore concludes
that the introduction of agencies has improved standards of service
delivery in the Civil Service. However, the Committee notes the
concerns of witnesses that those standards will fall if agencies
are subject to severe financial cuts. The Committee also shares
Lord Nolan's concern about the "organisation and traditions
and standards of the Civil Service". Performance standards
are important: but they are not everything. The possible detrimental
effect of agencies on accountability and ethos are discussed elsewhere
in this Report.
GRIEVANCE
AND REDRESS
(392)
463. 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 (402)
464. 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
(415-418)
465. On balance,
the Committee favours the introduction of a Civil Service Act.
It 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.
466. 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.
467. 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.
468. 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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