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, with their
style of doing so attracting opposition from Lord O'Donnell, the
former Cabinet Secretary.
These developments have brought a renewed focus on the accountability
of civil servants to Parliament, which we explore in this chapter.
The Osmotherly rules
61. The Government guidance Departmental evidence
and response to select committees, widely known as the Osmotherly
rules, 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.
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."
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."
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."
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
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."
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.
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."
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.
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.
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."
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
themthe document was for internal Government use and so
should not have Parliament's imprimatur.
70. The Osmotherly rules are an executive
document offering guidance to civil servantsand 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.
There is no formal restriction on select committees inviting,
or in the last resort summoning, a named civil servant to give
74. The Osmotherly rules state that civil servants
give evidence to select committees "on behalf of their ministers
and under their directions".
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",
saying that the "usual practice [is] for a committee to invite
witnesses from the department generally, rather than to name specific
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."
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
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,
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."
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."
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.
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 appearafter 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.
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
80. A related issue arises with the use of consultants
by governments. 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.
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.
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."
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.
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."
The majority of our witnesses agreed with the proposal in the
with some suggesting that it should not be confined to former
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.
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
"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."
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.
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.
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.
He thought it reasonable for a civil servant to reply that the
question should be asked of his or her minister.
Margaret Hodge MP agreed.
90. Other witnesses, however, thought that policy
advice should not be disclosed.
Lord Wilson of Dinton thought it "improper" for a select
committee to ask civil servants what advice they gave.
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
Lord Hennessy of Nympsfield thought it unrealistic that civil
servants would reveal confidential advice.
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.
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. 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
itreflecting well on both. It can also be unclear where
the boundary lies between advice and background or factual information.
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),
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."
96. Select committees have agreed that it is
not their task to act as disciplinary tribunals.
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.
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",
saying that the quest to pin blame on individuals "creates
an atmosphere of defensiveness from civil servants."
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
particular, there is no formal right of reply to the findings
of a select committee.
98. On the other hand, the Whitehall journalists
we took evidence from thought that select committees should be
able to criticise particular officials.
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
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
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
73 See, for example, "Accountability in today's
public services", speech to Policy Exchange by Margaret Hodge MP,
15 March 2012. Back
See, for example, "Public accounts committee 'theatrical
exercise in public humiliation'", The Guardian, 9
March 2012. Back
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
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
Cabinet Office, para 9. Back
Departmental evidence and response to select committees,
para 53. Back
ibid., para 3. Back
24th edition, p 822. Back
Session 1989-90, HC 19. Back
Unlock Democracy, para 38. Back
Q 215. Back
Q 9. Lord Butler of Brockwell, Cabinet Secretary from 1988 to
1998, made a similar point (Q 302). Back
Q 323. Back
Q 352. Back
See Constitution Committee, 12th report (2010-12): The Cabinet
Manual (HL Paper 107), paras 8 and 40; and Public Administration
Select Committee, 8th report (2010-12): Cabinet Manual (HC
900), paras 53 and 54. The Political and Constitutional Reform
Committee thought that the decision on whether the Cabinet Manual
should be open to amendment and endorsement by Parliament would
depend on how the status of it evolves. See 6th report (2010-12):
Constitutional implications of the Cabinet Manual (HC 734),
paras 40 and 41. Back
See Erskine May, 24th edition, pp 820, 824-825 and 896. Back
op. cit., para 40. Back
24th edition, p 822. Back
ibid., p 896. Back
op. cit., para 44. Back
op. cit., para 47. Back
Q 8. Back
Q 9. Back
Q 11. Back
QQ 66-67. Back
Q 123. Back
QQ 284, 334-335 and 346. Back
"Ministers hide behind civil servants who cannot be called
to account. This must change", article by Margaret Hodge MP
in The Times, 9 October 2012. Back
Q 9. Back
op. cit., para 48. Back
Q 20. Back
op. cit., p 21. Back
For example, QQ 157 and 297. Back
Q 52; Unlock Democracy para 33. Back
Q 265. Back
op. cit., para 55. Back
See sections 2, 35 and 36. These provisions were analysed recently
by the House of Commons Justice Committee: 1st report (2010-12):
Post-legislative scrutiny of the Freedom of Information Act
2000 (HC 96), paras 141 to 201. Back
Q 20. Back
Q 299. Back
Q 305. Back
Q 16. Back
Q 137. Back
Q 252. Back
QQ 254 and 268. Back
Q 139. Back
QQ 315-319 and 341-342. Back
Q 139. Back
This was at the heart of the debate over the release of the risk
register on the Health and Social Care Bill: see HL Deb, 19 March
2012, cols 634-57; and HL Deb, 10 May 2012, cols 62-74. Back
See, for example, the conclusions about Rupert Murdoch and others
in the Culture, Media and Sport Committee's report on phone hacking:
11th report (2010-12): News International and Phone-hacking
(HC 903). Back
op. cit., para 74. Back
Erskine May, 24th edition, p 822. Back
op. cit., para 76. Back
Q 213. Back
Q 219. Back
QQ 223-234 and 244-247. Back
House of Lords select committees are encouraged actively to consider
on a case-by-case basis whether it would be desirable to give
notice to an individual if the committee is minded to make criticisms
of them of a personal nature. See Procedure Committee, 4th
report (2010-12, HL Paper 127). Back
QQ 167-168. Back
Q 296. Back