House of Lords - The accountability of civil servants

The accountability of civil servants - Constitution Committee Contents

CHAPTER 4: ACCOUNTABILITY OF CIVIL SERVANTS TO PARLIAMENT

60. The principle that ministers are constitutionally responsible for their civil servants forms the primary mechanism by which civil servants are held to account. However, Parliament also scrutinises some civil servants directly. This helps to give effect to the constitutional principle of proper parliamentary scrutiny of the executive. The introduction of the system of House of Commons departmental select committees in 1979, and their growth in influence and public profile since then, has significantly changed the way in which Parliament performs this function. Select committees now regularly take evidence from civil servants. The House of Comments Public Accounts Committee has sought consistently to hold civil servants directly to account for administrative failures,[73] with their style of doing so attracting opposition from Lord O'Donnell, the former Cabinet Secretary.[74] These developments have brought a renewed focus on the accountability of civil servants to Parliament, which we explore in this chapter.[75]

The Osmotherly rules

61. The Government guidance Departmental evidence and response to select committees, widely known as the Osmotherly rules,[76] gives guidance to civil servants on the role of officials appearing before committees in both Houses. Various versions have existed since they were first drawn up in 1980. The current edition was issued in July 2005. In their written evidence the Government told us the Cabinet Office will shortly begin a review of the guidance.[77]

62. The section of the Osmotherly rules providing guidance on the provision of evidence by officials states: "The central principle to be followed is that it is the duty of officials to be as helpful as possible to select committees. Officials should be as forthcoming as they can in providing information, whether in writing or in oral evidence, to a select committee."[78]

63. The status of the rules is described as follows—

"In providing guidance, the memorandum attempts to summarise a number of longstanding conventions that have developed in the relationship between Parliament, in the form of its select committees, and successive governments. As a matter of practice, Parliament has generally recognised these conventions. It is important to note, however, that this memorandum is a Government document. Although select committees will be familiar with its contents, it has no formal parliamentary standing or approval, nor does it claim to have."[79]

64. Erskine May comments that although "select committees have from time to time commented on [the rules'] provisions, they have never formally agreed to them."[80] One reason for this is that by endorsing them select committees would be endorsing the limitations on what information may be provided to committees, and who they may call to give evidence. This might be seen as compromising the rights of committees to ask whatever questions they want of whomever they want, and to request whatever papers they want. These rights flow from the right of each House to determine its own proceedings (known as exclusive cognisance).

65. The more restrictive aspects of the Osmotherly rules have been said to be honoured more in the breach than the observance. In 1990 the House of Commons Procedure Committee said it was "conscious of the danger ... that a wholesale review [of the rules] at Parliament's behest could simply result in a new set of guidelines which, whilst superficially less restrictive, would then be applied rigorously and to the letter."[81]

66. Given the importance of the rules, several witnesses thought that Parliament should be involved in revising them or approving revisions. Unlock Democracy thought it "curious" that Parliament had never approved the rules and recommended that future editions should be considered in draft by Parliament, which would then decide whether or not to accept the finalised reissue.[82] David Penman thought that a wider review of the rules should incorporate the views of various interested parties; although it might be ambitious to seek agreement on them there should be some attempt "so that all sides feel some comfort in the rules of the game when giving evidence."[83]

67. Others were sceptical as to whether Parliament should have a formal role in future revisions. Bernard Jenkin MP, chair of the Public Administration Select Committee, thought Parliament should "ignore" them as they have no legal standing; instead Parliament should maintain its absolute discretion to summon persons and papers.[84]

68. Sir Jeremy Heywood suggested there would be a dialogue with parliamentarians on revisions of the rules, though there was no specific process in mind.[85] Francis Maude MP told us he was open to suggestions as to how Parliament could be involved in the review of the Osmotherly rules, remarking "It would be a rich irony if revisions to the rules on accountability to Parliament were to exclude Parliament from their consideration."[86]

69. The approach taken to consulting on the draft Cabinet Manual may be a useful template for future revisions of the Osmotherly rules. The Government's draft Cabinet Manual was published to enable a public consultation and for Parliament to comment on it. Three select committees scrutinised it; two of them were clear that, whilst Parliament may have a role in scrutinising the draft and future revisions, it should not formally endorse them—the document was for internal Government use and so should not have Parliament's imprimatur.[87]

70. The Osmotherly rules are an executive document offering guidance to civil servants—and no more. They in no way have the effect of imposing restrictions on the activities of select committees. It is for Parliament to determine how it scrutinises the executive.

71. However, in view of the importance of the Osmotherly rules in guiding civil servants in their dealings with select committees, we recommend that future revisions of the rules should be published in draft to enable scrutiny by Parliament and its select committees. Whatever the outcome of that scrutiny, the rules will remain an executive document and should not be taken to have the formal approval of Parliament.

72. The recommendation above relates to future revisions of the Osmotherly rules as a whole. The remainder of this chapter considers particular suggestions for altering the practice applying to civil servants giving evidence to select committees. If such changes in practice are agreed they would necessitate changes to the Osmotherly rules.

Which civil servants should give evidence to select committees?

73. Select committees in both Houses which take evidence are usually granted the power "to send for persons, papers and evidence". Although witnesses in person almost always give evidence in response to invitations, committees possess a formal power to summon individuals. That power is unqualified, save that a committee cannot usually itself summon a member of either House or someone who is overseas.[88] There is no formal restriction on select committees inviting, or in the last resort summoning, a named civil servant to give evidence.

74. The Osmotherly rules state that civil servants give evidence to select committees "on behalf of their ministers and under their directions".[89] They state that this is in keeping with the principle of ministerial responsibility to Parliament.

75. In seeking evidence from the Government select committees will usually approach the department or minister concerned. Erskine May describes it as "customary for Ministers to decide which official should represent them",[90] saying that the "usual practice [is] for a committee to invite witnesses from the department generally, rather than to name specific individuals."[91] Nonetheless, on occasion a select committee will want to question a particular civil servant, usually a senior civil servant. The Osmotherly rules say that where that is the case—

"the presumption should be that Ministers will agree to meet such a request. However, the final decision on who is best able to represent the Minister rests with the Minister concerned and it remains the right of a Minister to suggest an alternative civil servant to that named by the committee if he or she feels that the former is better placed to represent them. In the unlikely event of there being no agreement about which official should most appropriately give evidence, it is open to the Minister to offer to appear personally before the committee."[92]

76. The rules go on to acknowledge that a committee can summon a named civil servant contrary to the minister's wishes, but in such an event the individual would remain subject to ministerial instruction.[93]

77. Some witnesses thought that the rules on taking evidence from named civil servants should be reformed. Sir Alan Beith MP, chair of the House of Commons Justice and Liaison Committees, told us that the position as regards the ability of a minister to refuse the attendance of a named civil servant was unclear,[94] whilst Bernard Jenkin MP described the Osmotherly rules as "a fiction created by the executive to try to create excuses for not putting the right people in front of select committees."[95] He added that, "The idea that [civil servants] are unfortunate, beleaguered public servants who cannot speak for themselves is of an era that has passed. They are being held, certainly by the public, to be more directly accountable and it would seem odd if Parliament did not do the same."[96] Lord Fowler thought it should be made clear that select committees have the right to call named civil servants, though the power should be used cautiously and selectively.[97]

78. The formal power of select committees to summon witnesses is seldom exercised, and almost never in relation to civil servants. Select committees are usually prepared to accept the recommendation of a department as to which official is best placed to appear—after all, it is in the committee's interest to hear from the official who is best informed. It is common for senior civil servants to appear alongside ministers, a practice that has developed since the current select committee system was instituted 30 years ago, and which we welcome.[98] When there is disagreement between a minister and a committee on taking evidence from a particular individual an accommodation is usually reached. However, the evidence we received suggests that the balance might be tilted more in favour of the right of committees to request attendance of specific individuals.

79. We recommend that where a select committee requests evidence from a named senior civil servant the Government should accede to that request unless there are exceptional reasons not to do so. Taking evidence from civil servants is complementary to, not a replacement for, the accountability of ministers. We recommend that the revised Osmotherly rules incorporate this change in emphasis.

80. A related issue arises with the use of consultants by governments.[99] They are not employed as civil servants, and so are not accountable to ministers and Parliament in the way civil servants are, yet they can exercise significant influence over policy. It has been suggested that consultants should appear before select committees where they are relevant to scrutiny of a government project. There have also been concerns about consultants refusing to disclose information to Parliament on the ground of commercial confidentiality.[100] Although we did not examine these issues in detail there appears to be scope for further study of them.

Evidence from former office holders

81. Sometimes a select committee will want to take evidence from an individual who used to hold a particular post in the civil service, but who has since changed post or retired. An example is the Public Accounts Committee inviting Dame Helen Ghosh, a former DEFRA permanent secretary, to give evidence on the rural payments scheme even though she had since become permanent secretary at the Home Office.[101]

82. The Osmotherly rules state that "it is extremely rare, but not unprecedented, for committees to request evidence from officials who have retired." They go on to say that retired officials cannot be said to represent the minister and so cannot contribute to his or her accountability, and they may not have access to up-to-date information and thinking. For those reasons, "Ministers would expect evidence on Government matters to be given by themselves or by serving officials who report to them."[102]

83. The evidence we have received suggests that the position set out in the Osmotherly rules is too stark, and does not reflect current (or best) practice. Whilst officials currently in post are normally best placed to comment on their departments' business, in the case of past or long-term policies or projects previous office holders will often be well placed to give the full picture.[103] This is especially so if officials change jobs frequently, as is common in the senior civil service.

84. The Civil Service Reform Plan proposes that "former Accounting Officers will return to give evidence to select committees on major projects and policies where there is a clear rationale to do so, and within a reasonable time period."[104] The majority of our witnesses agreed with the proposal in the Government's paper,[105] with some suggesting that it should not be confined to former Accounting Officers.[106] Lord Turnbull, however, questioned the utility of taking evidence from former post holders, as it was often not possible to identify a single individual who was responsible for a long-standing project that has gone wrong.[107]

85. We agree with the proposal in the Civil Service Reform Plan to allow former Accounting Officers to give evidence to select committees on major projects and policies on which they had formerly worked. We recommend that this principle should be extended so that, where select committees request evidence from other former senior civil service post holders (whether or not they are still in the civil service) on policies or projects on which they used to work, the expectation is that such requests will be acceded to.

What should select committees ask civil servants?

86. The objective of select committees in inviting civil servants to give evidence is normally to seek factual information about government policies and administration, and sometimes to explore the rationale behind them. In general, policy advice given by civil servants to ministers is not disclosed to select committees or anyone else. This is said to be because disclosure would hinder the giving of free and frank advice in future. More importantly, it is in keeping with the general principle of ministerial responsibility. Civil servants give full and candid advice to ministers, but it is for ministers to follow or disregard that advice as they choose.However, different considerations may apply in respect of advice given by certain types of civil servant, such as lawyers (where legal professional privilege is also relevant) and scientists (where scientists have on occasion freely disclosed their scientific advice to select committees).

87. This position is reflected in the Osmotherly rules—

"Officials should as far as possible confine their evidence to questions of fact and explanation relating to government policies and actions. They should be ready to explain what those policies are; the justification and objectives of those policies as the Government sees them; the extent to which those objectives have been met; and also to explain how administrative factors may have affected both the choice of policy measures and the manner of their implementation. Any comment by officials on government policies and actions should always be consistent with the principle of civil service political impartiality. Officials should as far as possible avoid being drawn into discussion of the merits of alternative policies where this is politically contentious. If official witnesses are pressed by the committee to go beyond these limits, they should suggest that the questioning should be referred to Ministers."[108]

88. Under the Freedom of Information Act 2000 advice given by civil servants to ministers may be disclosed if (i) in all the circumstances, the public interest in disclosing the information is judged to outweigh the public interest in not disclosing it and (ii) its disclosure would not inhibit the provision of free and frank advice.[109] Therefore, if the Osmotherly rules are followed strictly, select committees may in some circumstances have weaker rights of access to civil service advice than members of the public submitting a freedom of information request.

89. Adherence to the Osmotherly rules may on occasion hinder select committees from being able fully to examine an issue. Some witnesses have therefore suggested that the rules could be developed to allow for disclosure of policy advice where the public interest clearly demands it. Bernard Jenkin MP told us that a civil servant's first duty is to his or her minister, but it is not the only duty; an expectation could be created of what select committees should be told.[110] Lord Butler of Brockwell told us that it would be "perfectly proper" to ask a minister to disclose what advice he or she received, but that the question should be put to the minister and not a civil servant.[111] He thought it reasonable for a civil servant to reply that the question should be asked of his or her minister.[112] Margaret Hodge MP agreed.[113]

90. Other witnesses, however, thought that policy advice should not be disclosed.[114] Lord Wilson of Dinton thought it "improper" for a select committee to ask civil servants what advice they gave.[115] He and Lord Turnbull told us that the confidentiality of policy advice to ministers was part of the fabric of the relationship between ministers, the civil service and Parliament, and that it was not possible to unpick parts of it without other parts being disturbed.[116] Lord Hennessy of Nympsfield thought it unrealistic that civil servants would reveal confidential advice.[117] Sir Bob Kerslake, Sir Jeremy Heywood and Francis Maude MP stressed the need for advice to remain confidential and thus not be disclosed to committees.[118] However, they favoured releasing more information and evidence on which policies are based.

91. There may be occasions when the advice given to ministers is factually wrong, and that has led to poor decision making.[119] On other occasions a minister might have received good advice from civil servants, but followed another course (for example by following conflicting advice from a special adviser), leading to bad policy. In such instances disclosure of advice may be necessary for a committee to be able to understand what went wrong. In many cases it may show that the advice was good and that the minister followed it—reflecting well on both. It can also be unclear where the boundary lies between advice and background or factual information.[120]

92. We do not think it satisfactory that select committees are deemed by the Osmotherly rules to have weaker rights of access to civil service policy advice than those making a request under the Freedom of Information Act 2000. We recommend that a select committee should be able to request access to relevant policy advice given by civil servants to ministers, on the rare occasions where it considers it essential to its examination of an issue. The decision on whether to disclose policy advice should be taken by a minister, consistent with the tests in the Freedom of Information Act 2000. The minister may decide to disclose a summary or relevant extracts rather than the whole of the advice. Select committees should be judicious in requesting such advice; in return, the Government should consider each request on its merits and not reject them out of hand.

93. For the avoidance of doubt, civil servants themselves should not, and should not be invited to, disclose the policy advice they give to ministers: it is for ministers, not civil servants, to waive the confidentiality of such advice.

What should select committees say about civil servants?

94. The process of holding the Government to account means that when there has been a failure in Government a select committee will seek to identify what went wrong, and sometimes who was to blame. Committees have occasionally reached conclusions about the conduct of particular individuals (inside or outside government),[121] though it is recognised that the findings of select committees are essentially political (rather than judicial), and there is no formal right of reply.

95. The Osmotherly rules provide that where select committee questioning is directed to the conduct of individual officials with the implication of allocating criticism or blame it is for the minister to look into the matter and if necessary institute a formal inquiry. Such an inquiry—

"is properly carried out within the department according to established procedures designed and agreed for the purpose, and with appropriate safeguards for the individual. It is then the Minister's responsibility to inform the committee of what has happened, and of what has been done to put the matter right and to prevent a recurrence."[122]

96. Select committees have agreed that it is not their task to act as disciplinary tribunals.[123] The Osmotherly rules state that if a committee discovers evidence that calls into question the conduct of an official they should be asked not to pursue their own investigation, but to take the matter up with the minister.[124]

97. David Penman strongly defended the position as set out in the Osmotherly rules. He referred to "a degree of concern about the operation of committees and the tone and nature of the scrutiny [civil servants] are under",[125] saying that the quest to pin blame on individuals "creates an atmosphere of defensiveness from civil servants."[126] He thought that public criticism by a committee might prejudice any disciplinary process, and that select committees may not have access to all relevant information. A civil servant has rights in a disciplinary process which they do not have vis-à-vis select committees[127]—in particular, there is no formal right of reply to the findings of a select committee.[128]

98. On the other hand, the Whitehall journalists we took evidence from thought that select committees should be able to criticise particular officials.[129] Lord Butler of Brockwell did not see a difficulty "provided that the committees go through a sufficiently rigorous process to ensure that the criticism is fair." He thought a committee could recommend that a civil servant be subject to disciplinary procedures, but that the procedures should be conducted by the official's employer.[130]

99. We are conscious that select committees are not disciplinary tribunals and do not contain the safeguards that employees are entitled to in a disciplinary process. However, when the evidence a committee receives leads it to conclude that a particular civil servant has been at fault, that committee should not be precluded from expressing criticism and, in extreme cases, recommending that the department consider appropriate disciplinary procedures.

100. Select committees should only take such action where there are strong grounds for doing so. The decision on all such disciplinary matters should remain within the relevant department.

73 See, for example, "Accountability in today's public services", speech to Policy Exchange by Margaret Hodge MP, 15 March 2012. Back

74 See, for example, "Public accounts committee 'theatrical exercise in public humiliation'", The Guardian, 9 March 2012. Back

75 Although the recommendations in this chapter apply to select committees of both Houses, we recognise that they may have more day-to-day relevance to the work of House of Commons select committees in scrutinising the work and expenditure of government departments. Back

76 The rules are named after Edward (later Sir Edward) Osmotherly, the civil servant in the Machinery of Government Division when the Cabinet Office first issued them (QQ 130-131). Back

77 Cabinet Office, para 9. Back

78 Departmental evidence and response to select committees, para 53. Back

79 ibid., para 3. Back

80 24th edition, p 822. Back

81 Session 1989-90, HC 19. Back

82 Unlock Democracy, para 38. Back

83 Q 215. Back

84 Q 9. Lord Butler of Brockwell, Cabinet Secretary from 1988 to 1998, made a similar point (Q 302). Back