House of Lords - The accountability of civil servants

The accountability of civil servants - Constitution Committee Contents

CHAPTER 3: ACCOUNTABILITY OF CIVIL SERVANTS TO MINISTERS

18. The accountability of civil servants to ministers is an area which has generated controversy during the current Parliament. The Prime Minister has described "bureaucrats in government departments" as "enemies of enterprise".[23] Minister for the Cabinet Office and Paymaster General Francis Maude MP referred in evidence to us to ministers in the current and previous governments being enraged by civil servants not challenging a ministerial proposal but then not implementing it.[24] The permanent secretary of the Department for Transport said that the errors in the handling of the West Coast Main Line franchise bidding process "were clearly the responsibility of officials and not ministers", and suspended three of them.[25]

19. During our inquiry the Government produced their Civil Service Reform Plan, which proposes changes to the relationship between ministers and civil servants. These proposals have formed a significant part of our inquiry, and are examined in this chapter.[26]

Appointments of permanent secretaries

20. At present, when a secretary of state is first appointed to a new department, he or she is expected to work with the permanent secretary in post at the time.[27] When a vacancy arises at permanent secretary level, the current arrangements for appointment to the post were set out for us by the Civil Service Commission.[28] There are mechanisms to ensure that the incumbent minister's needs and priorities are reflected in the final choice of candidate. Ministers are able to agree the job description, the key skills required, and the terms of the advertisement, as well as the composition of the selection panel. Ministers can meet the shortlist of candidates, and can notify the panel of any concerns about the skills and experience of the candidates, which the panel can then explore with the candidates at interview. Finally, the minister has a veto over the panel's final recommendation, which ensures that he is not faced with the appointment of a permanent secretary with whom he feels unable to work.

THE GOVERNMENT'S PROPOSALS

21. The Civil Service Reform Plan indicates the Government's broad intention is to strengthen the role of ministers in the appointments process for departmental permanent secretaries.[29] The Government propose to consult the Civil Service Commission on the best way in which this strengthening could take place.[30]

22. This intention was clarified by Francis Maude MP in his evidence to us: "the process should be that a panel, properly constituted and invigilated by the Civil Service Commission, should put forward a choice of candidates, both of whom, or all of whom if it is more than two, are totally validated as not being political, not capable of being a political choice."[31] The minister concerned would then be entitled to choose which of the candidates should be appointed.

23. Mr Maude explained the rationale behind this revised process as being that, if the convention of individual ministerial responsibility to Parliament is to remain, then ministers must not be denied a choice over the principal civil servants who carry out their decisions.[32] This view was shared by Margaret Hodge MP: "If ministers were really accountable for everything their civil servants do, they ought to be able to hire and fire, and yet to maintain civil service independence, they cannot do so. To me that feels like an uncomfortable set of principles."[33] Peter Riddell, Director of the Institute for Government, also supported the proposal: he indicated that, as long as all of the candidates presented to the minister were "above the line", no real issue arises.[34] He told us that in practice secretaries of state were often in effect presented with a shortlist anyway.[35]

OBJECTIONS TO THE PROPOSED REFORM

24. Most of the criticisms of the Government's proposals focused on the risk of politicising the civil service. Dr Andrew Blick, Senior Research Fellow, Centre for Political and Constitutional Studies, King's College London, thought that—

"[politicisation] would be a very likely consequence [of the proposed reforms], because you would have people who were clearly handpicked by a particular minister as permanent secretary. What happens if there is a change at the top ... and a new Secretary of State comes in, and this person is seen as being very closely linked to the previous minister? … it can be a real problem if a permanent, supposedly impartial civil servant is seen as being a particular minister's woman or man, and I think that will happen now."[36]

25. The Civil Service Commission also had reservations about the degree of ministerial involvement—

"Handing over the final choice [of who to appoint] to one individual, whether a minister or a civil servant, is unlikely to further the merit principle and may lead to favouritism. Where the choice is put in the hands of a minister, there may be a perception—and sometimes the reality—of politicisation which could eventually undermine the ability of the civil service to serve successive administrations."[37]

26. Lord Turnbull expressed concern that ministers might seek to install as their permanent secretary individuals known to them from previous civil service posts or other contexts.[38] Under the Government's proposal this could happen if a minister insisted that a specific candidate be put on the shortlist.

27. Lord Wilson of Dinton, Cabinet Secretary from 1998 to 2002, told us that—

"Parliament, only two years ago, passed [the Constitutional Reform and Governance Act 2010] that finally implemented the Northcote-Trevelyan report. I think it would be odd to start trying to undo it. There has always been a tension in politics between patronage and merit; it is an old battle ... Merit ultimately won, but the patronage virus is never dead and constantly needs to be beaten back."[39]

THE PRINCIPLES THAT SHOULD UNDERLIE REFORM

28. We recognise the importance of an impartial, objective civil service, appointed on merit, and able to serve the government of the day whilst retaining the capacity to serve future governments of differing political complexions with equal commitment. The ability of the civil service to perform this function is one of the major strengths of the UK constitution, enabling the smooth transition from one government to another in accordance with the wishes of the electorate, whilst maintaining stability and continuity. The civil service attributes of integrity, honesty, objectivity and impartiality form the bedrock upon which the permanent civil service is built. Whilst these values were not enshrined in statute until the Constitutional Reform and Governance Act 2010, the civil service has been firmly based on them for at least the last 160 years, since the Northcote-Trevelyan report. We fully support these principles, both as constitutional norms and as statute law.

29. We acknowledge, however, that the civil service attributes are broadly based, and that it may be possible to alter aspects of the appointments process in accordance with the qualities which the 2010 Act now enshrines. We are also conscious that the Government's proposed reforms to the appointments process are in some respects the formalisation of practices which already occur. As such, the practical implications of the reforms may not be as significant as they appear to be in purely theoretical terms. However the existing appointments process for permanent secretaries may be modified, it must continue to conform fully with the constitutional principles of integrity, honesty, objectivity and impartiality. In particular, any modified process should protect the principle of appointment on merit, on the basis of fair and open competition.

Temporary appointments of senior civil servants

30. A further element of the Government's proposals to strengthen ministerial involvement in civil service appointments is that, in some circumstances, ministers should be empowered to ask their permanent secretaries to appoint named individuals to fixed-term civil service roles, without the requirement for an open recruitment process. The Civil Service Reform Plan sets out the proposal—

"Normally new appointments will be made from within the permanent Civil Service or by open recruitment. But, as now, where the expertise does not exist in the Department, and it is not practicable to run a full open competition, Ministers should be able to ask their Permanent Secretaries to appoint a very limited number of senior officials, for specified and time-limited executive/management roles. In such cases the Civil Service Commission's approval would be required and they would need to be satisfied that the individuals concerned have the appropriate skills and that they are appointed for their abilities and knowledge rather than for any party political background. These appointees would be subject to the Civil Service Code, and thus politically restricted."[40]

31. Witnesses who were opposed to the proposal were generally concerned about the potential for temporary appointments gradually to erode the impartiality and permanence of the senior civil service. Lord Hennessy of Nympsfield told us—

"I am worried about creeping politicisation … the danger will be those senior officials brought in on a temporary contract. That is where the temptation will lie. The great gift of the 19th century to the 20th, and it has survived into the 21st, is that we have a notion of career Crown service, so that you increase the chances of people speaking truth unto power, of telling Secretaries of State what they need to know rather than what they wish to hear. … I am worried about that bit in the civil service reform plan, because it could be the beginning of the gradual undoing of Northcote-Trevelyan."[41]

32. Professor Talbot shared Lord Hennessy's concern that the ability of civil servants to say, when necessary, "no minister" would be undermined if the civil servant in question was appointed by, and beholden to, the minister.[42]

33. Sir Bob Kerslake did not feel that there was a risk that temporary appointments would be used to create a class of "super-special advisers" within departments. He explained that: "it is clear … that for senior appointments coming through this route they will be approved by the Commission. I think there are very good safeguards that allow us to bring in people quickly when they are needed in expert areas—this already happens".[43]

34. We recognise the benefits that temporary appointments can bring to effective governance and executive project management, particularly when they are used a means of securing specialist expertise at short notice. However, we are concerned that temporary civil servants appointed in this manner may not feel able to speak truth unto power, particularly if there is an expectation that temporary appointments may be extended or made permanent at the conclusion of the fixed term. There is a risk that such appointments may be used as a means of increasing the political element of the civil service by the back door, or lead to cronyism. This is particularly so where the minister is able to specify the named individual to be appointed. We recognise the importance of due process in the making of appointments, both to guarantee appointment on merit and to protect against improper interference by ministers.

35. The Government should set out, in detail, the nature of the temporary appointments scheme they envisage. They should put in place safeguards to ensure that those civil servants on fixed-term contracts possess the civil service attributes set out in the Constitutional Reform and Governance Act 2010: integrity, honesty, objectivity and impartiality. Ministers should be limited to requesting the category of expertise which they consider is required; the decision on which individual to appoint should rest with the relevant departmental permanent secretary, with the approval of the Civil Service Commission.

Discipline, dismissal and appraisal of civil servants

36. At present, with the exception of some very narrowly defined cases, ministers are not formally involved in disciplinary matters for civil servants in their departments.[44] We heard, however, that ministers may exercise informal influence over such matters. David Blunkett MP told us: "Generally there should be very clear and open disciplinary procedures, and that should not, other than the permanent secretary and the principal private secretary, involve secretaries of state or ministers. However, in practice, if you thought that someone was useless, they usually got moved."[45] Lord Howard of Lympne agreed that ministers should not have a formal role.[46] He added that, whilst ministers could make representations to their permanent secretaries about disciplinary matters, the responsibility for making the decision itself should rest elsewhere.[47]

37. In addition to these informal roles, the Government intend to enable ministers to be formally involved in the appraisal of civil servants "whose work ministers see and the civil servants who are running the projects and programmes for which ministers are accountable".[48]

38. Amongst those witnesses who commented on ministerial involvement in the discipline and performance management of civil servants there was general agreement that the formal, final decision on such issues should not rest with the minister. Lord Fowler, a Cabinet minister from 1981 to 1990, was "extremely sceptical about the proposal that politicians should play any part in the discipline of the civil service. Frankly, I think that would begin to politicise it in a very difficult way."[49] He added: "I think it is extremely difficult to see how ministers with months of experience can get involved in disciplinary hearings and decisions when they are supposed to be judging a man who has been there for 10 or 20 years."[50]

39. It would be entirely inappropriate for ministers to be formally empowered to make disciplinary decisions about civil servants in their departments. We recognise, however, that ministers have an important and legitimate consultative role in the performance management of civil servants. Accordingly, we support the Government's proposal to allow ministers to contribute to the appraisal of certain civil servants.

Project management and long-term policy implementation

40. One of the most fraught aspects of civil service accountability arises in the context of long-term project management. Large government projects, including those in the fields of IT and procurement, often span several years. Problems with such projects may not emerge until the ministers and officials responsible for designing the project have moved on to other roles or retired. Some projects can begin under one administration and not conclude until another administration has entered office. The list of big government projects which have gone significantly over budget and over time is distressing. For example, the project to create regional control centres for fire and rescue services was abandoned in December 2010 at a cost of around £469 million, following serious deficiencies in the policy, design and implementation plans for the new centres. In the field of procurement, serious concerns have arisen over the NHS's IT database, the Ministry of Defence's procurement of aircraft carriers and the IT system for the Rural Payments Agency's Single Payment Scheme.

41. The ability of Parliament, and the public, to hold government accountable for long-term projects is especially challenging, yet such accountability is important for ensuring that the taxpayer receives value for money.

42. A number of our witnesses identified the high turnover of civil servants on project teams as a major cause of the accountability problem with such projects. Peter Riddell told us—

"The real frustrations for ministers are when you have a constant turnover of officials doing big projects, particularly when you are talking about big IT projects, which will on average last the time of three secretaries of state, and officials will often also change a lot ... If someone is clearly responsible for running a big project for several years, and the incentive structure is there and they do not always seek to get promoted out of the job, that is ... important".[51]

43. The Civil Service Reform Plan also recognised the problem: "Senior Responsible Officers often move too frequently, leaving mid-way through a project. Sometimes, this can enable skill sets to be aligned with project requirements but more frequently it causes delay and instability and disrupts effective implementation."[52] The obvious solution to the problem is greater continuity in the civil servants leading projects, though promotions, retirements and sideways moves etc. will mean that is not always possible.

44. We recommend that there should be a presumption that a single senior civil servant will lead the implementation of a major project from beginning to end. This will enhance the ability of Parliament, through its select committees, to hold the executive to account for the success or failure of such projects.

The civil service as a constitutional check

45. The civil service possesses a number of means by which it can help to ensure the constitutional propriety of government actions. Ministers cannot require civil servants to act in a manner which is illegal. Similarly, the Ministerial Code contains a requirement that ministers must not ask civil servants to act in any way which would conflict with the Civil Service Code or the requirements of the Constitutional Reform and Governance Act 2010.[53] The Ministerial Code places a duty on ministers to give fair consideration and due weight to informed and impartial advice from civil servants, and civil servants in turn are under an obligation to provide ministers with impartial, honest and objective advice, including on matters of constitutional propriety.[54]

46. Where a minister declines to follow civil service advice, and decides to proceed in an unconstitutional manner (which, under the UK's uncodified constitution, may not necessarily amount to an illegal manner), the position was set out by Lord Wilson of Dinton—

"If [civil servants] think the Minister is behaving in an unconstitutional manner, it is their job to make very clear what they believe the constitutional position is ... If ... they do not get an answer that they think is the proper answer or that is defensible, it is their job to go to the head of the civil service, who would take it up with the Prime Minister if necessary ... If a Minister, in the end, rejects the advice, and if the Prime Minister rejects the advice and insists on going ahead, then in grey areas it is the job of Ministers to decide where the line should be, and there is a limit to how far the civil service can enforce the constitution, except in the ultimate, nuclear deterrent of resigning."[55]

47. Therefore, under the current arrangement civil servants are ultimately unable to prevent ministers from breaching constitutional norms. Indeed, an attempt by civil servants to resist enacting a ministerial decision which they considered to be unconstitutional, but which was taken after following the correct process, would be a breach of the Civil Service Code.[56]

48. Some witnesses drew an analogy with the ability of civil servants to control the actions of ministers through the Accounting Officer role. In ministerial departments, the Accounting Officer is usually the department's permanent secretary. The roles and responsibilities of Accounting Officers are summarised in box 2.[57]

BOX 2

Roles and responsibilities of Accounting Officers

Accounting Officers are those civil servants whom Parliament holds directly to account for the stewardship of resources within his department's control. Accounting Officers are personally responsible for ensuring that their departments meet high ethical standards so as to achieve value for money. They are also expected to ensure that their departments meet certain standards of governance, decision making (including providing ministers with clear, well-reasoned, timely and impartial advice) and financial management.

Accounting Officers must personally sign off a number of official departmental documents, including its accounts, annual report and governance statement.

Accounting Officers are also personally responsible for—

The regularity and propriety of departmental expenditure
The appraisal of programmes and projects
Affordability and sustainability
Value for money
The management of opportunity and risk
Ensuring that departments learn from experience
Accounting accurately for the department's financial position and transactions.

If an Accounting Officer receives a ministerial proposal which conflicts with his duties, he must bring this to the minister's attention. If the minister wishes the Accounting Officer to proceed with the proposal nevertheless, the Accounting Officer should seek a formal, written direction from the minister. If such a written direction is given, the Accounting Officer must copy it to the Comptroller and Auditor General, who will usually forward it to the House of Commons Public Accounts Committee. The Accounting Officer must then follow the direction without further ado.

49. Ultimately, a minister can, by way of a ministerial direction, compel an Accounting Officer to act in a manner contrary to the Accounting Officer's personal responsibilities. However, the public nature of formal ministerial directions is in contrast to advice provided on constitutional propriety, which at present is provided to the minister confidentially. The power to seek a ministerial direction is therefore a significant one, and its very existence no doubt prevents impropriety in some cases.

SUGGESTED REFORM

50. A suggestion has been made for strengthening the ability of the civil service to act as a constitutional check upon ministers. This is that the role of the Accounting Officer could be extended into areas of constitutionality and ethics. This would mean that, where a permanent secretary believes a ministerial proposal does not conform to standards of constitutional propriety, the permanent secretary can require a formal ministerial direction, which would then have to be followed. If this proposal was implemented, arrangements could be put in place for publishing the ministerial direction and notifying Parliament of it, in a similar way to ministerial directions about financial proposals.[58]

51. Several of our witnesses were concerned, however, that a formalisation of the relationship between ministers and civil servants in this manner would lead to a breakdown in trust between ministers and civil servants. Lord Hennessy of Nympsfield told us—

"I am very reluctant, as Peter Riddell and your previous witnesses were, to over-codify these relationships. There is a school of thought among older civil servants ... that our need to write down so much … shows that it is too late. The relationship has already broken down to some extent if you have to write it down. If you over-codify it, it can produce all sorts of suspicions and tensions … these relationships are human ones, above all, and if they break down on a human level, there is no scrap of paper that can save them."[59]

52. A major difficulty with extending the Accounting Officer principle is that of definition. If such a reform was to take place, it would need to be within carefully defined areas, and the nature of the UK's constitution is such that no such clear definition is currently possible. There are unclear boundaries between what are constitutional laws, conventions, practices and norms. It is not certain that the civil service is better placed to rule definitively on these boundaries than anyone else.

53. Whilst we recognise that some benefits may flow from extending and strengthening the constitutional custodianship role of the civil service, such an extension would present serious challenges: the trust between the parties to the relationship may be eroded, definitional issues will arise, and the convention of individual ministerial responsibility contains no alternative mechanism for holding civil servants accountable for any powers they may exercise over ministers. Therefore, we do not recommend any additional powers for the civil service to act as a check on the constitutionality of ministerial actions. However, we would expect ministers to treat advice that they may be acting unconstitutionally with the utmost seriousness.

Ministerial responsibility for special advisers

54. Special advisers occupy an unusual place in the civil service. Technically they are temporary civil servants[60] who are exempt from the general requirement that civil servants are appointed on merit and behave with impartiality and objectivity so that they may retain the confidence of future governments of a different political complexion.[61] As such they are appointed to provide ministers with advice and support with regard to the political (including party political) aspects of government. Special advisers are appointed by the minister whom they serve, with the consent of the Prime Minister, and hold office until the end of the administration which they serve or the departure of their appointing minister. In general, Cabinet ministers may each appoint up to two special advisers. In addition to personally appointing their special advisers, ministers are also responsible for their management and conduct, including discipline.[62] Special advisers can be dismissed by the Prime Minister at any time.

55. Special advisers are subject to the Code of Conduct for Special Advisers.[63] This sets out the work special advisers may do and provides guidance on propriety and ethics. It also deals with relations with the permanent civil service, including a prohibition on special advisers authorising the expenditure of public funds, exercising any power over the management of the civil service or otherwise exercising any statutory or prerogative power.[64]

56. Recent high-profile developments have raised the issue of ministers' responsibility for their special advisers. There was debate about the extent to which the then Culture, Media and Sport Secretary, Jeremy Hunt MP, was responsible for the actions of his special adviser, Adam Smith, in corresponding with a representative of News Corporation when the latter's bid for BSkyB was being considered by the Secretary of State in a quasi-judicial process. Mr Smith resigned when the communications were revealed to the Leveson Inquiry in April 2012. Mr Hunt said that the "volume and tone" of Mr Smith's communications with News Corporation's "were clearly not appropriate".[65] Although he "did not know about or authorise that contact", he "accepted full responsibility for it by making a statement to the House the day after the contact became apparent."[66] In 2009 Prime Minister Gordon Brown's special adviser Damian McBride resigned after it was revealed that he had sent emails from his Downing Street email address to a political website making allegations about the personal lives of Conservative MPs and their spouses. The Prime Minister apologised personally to those against whom the accusations were made.[67]

57. Peter Riddell thought that special advisers operate in an "accountability limbo, in theory governed by their code but, in practice, by what their minister is willing to approve."[68] Dr Andrew Blick thought there may be slight confusion as to whether the minister or Prime Minister is responsible for special advisers.[69]

58. On the other hand, Unlock Democracy thought it appropriate for ministers to be directly accountable for the actions of their special advisers.[70] Charles Clarke, a Cabinet Minister from 2001 to 2006, told us that the special adviser is "the servant of, almost the slave of, the minister and Secretary of State" and that they "do not exist other than as the voice of their principal."[71] Therefore he thought the minister should be held accountable for what they do. The two former special advisers that we heard from agreed that they were clearly accountable to their secretary of state, and through him or her to Parliament.[72]

59. In our view, the constitutional position as regards special advisers is clear: ministers are responsible for the actions of their special advisers. Ministers have a duty to ensure their special advisers abide by the Code of Conduct for Special Advisers at all times.

23 Speech by the Prime Minister in Cardiff, 6 March 2011. Back

24 Q 344. Back

25 "Senior civil servant says sorry for franchise errors", The Times, 12 October 2012. Back

26 Oliver Letwin MP, Minister of State at the Cabinet Office, explained the thinking behind the Government's proposals at a lecture at the Institute for Government on 17 September 2012: http://www.instituteforgovernment.org.uk/events/why-mandarins-matter-keynote-speech-rt-hon-oliver-letwin-mp.
Since the plan was published the Government have commissioned the Institute for Public Policy Research to prepare a report on models of accountability for civil servants in other jurisdictions. See: http://www.cabinetoffice.gov.uk/news/government-first-use-contestable-policy-fund. Back

27 Q 30. Back

28 Civil Service Commission, para 9. Back

29 Civil Service Reform Plan, p 21. Back

30 ibid., p. 21. Back

31 Q 340. Back

32 Q 340. Back

33 Q 1. David Blunkett MP, a Cabinet minister from 1997 to 2005, also supported the proposal (Q 55). Back

34 Lord Turnbull, Cabinet Secretary from 2002 to 2005, made a similar point (Q 276). Back