Accountability of Civil Servants: Constitution Committee Report
(11 years, 9 months ago)
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Baroness Jay of Paddington
That this House takes note of the Report of the Constitution Committee on The Accountability of Civil Servants (6th Report, HL Paper 61).
Baroness Jay of Paddington
My Lords, I welcome the opportunity to open this debate on behalf of your Lordships’ Constitution Committee. I am glad that we are able to debate our report reasonably soon after its publication as this is undoubtedly a fast-moving area. Since our report was published last autumn, the fallout from the cancellation of the west coast main line contract has continued. The Government have begun implementing some of the proposals of The Civil Service Reform Plan which was published in June last year, and other proposals remain the subject of considerable debate—often played out through briefings to the newspapers, which have usually given a rather negative view of the Civil Service.
The committee conducted its inquiry over several months last year and I am very grateful to the large number of distinguished witnesses, some of whom I am pleased to say are speaking this afternoon, who gave written and oral evidence. As always, the Committee was extremely well served by its official staff and by its legal advisers, Professor Richard Rawlings and Professor Adam Tomkins, who acted as special advisers for this inquiry. I thank them and other members of the committee for their hard work on this report.
As I said, the report was published in the autumn, in mid November, and I am very disappointed that only yesterday evening I received the Government’s formal response. Your Lordships will know that it is established practice that the Government respond to reports of this kind within two months of publication. In this case, that would have been by 20 January. I regard it as discourteous both to the committee and to the House that we have heard so very late from the Cabinet Office. This must mean that the committee has obviously been unable to consider the Government’s response and it is therefore impossible for me to respond to the Government’s reply, particularly on some of the points on which the committee and the Government seem to disagree. I look forward to the Minister giving us an extensive explanation of the Government’s position when he replies to the debate.
Coming to the substance of our report I should first make clear that this was not a general inquiry into the present state of the Civil Service. Our focus was specifically on accountability. We wanted to examine how well civil servants who play very significant permanent roles in our system of government are held to account. The increase in the size, functions and complexity of the state makes it important, of course, that all those who carry out responsible work on behalf of the public are properly accountable. One of the developing ways in which civil servants are held directly to account is through parliamentary Select Committees in both Houses, perhaps most prominently by the House of Commons Public Accounts Committee which, as the House will be aware, has been recently involved in controversial dealings with senior officials.
The Constitution Committee started from the simple but indispensable point of principle: Ministers are responsible to Parliament for all of their department’s business. This means that, in addition to being responsible for the policies they devise, Ministers are also responsible for the actions and inactions of their civil servants, and for the administration of their departments. Accountability must extend to cover those arm’s-length bodies which report to a department and the committee is also clear that Ministers are personally responsible for their political special advisers, including ensuring that those advisers follow their own code of conduct. In our report, the committee concludes that this overall responsibility must be essential if Parliament is to be able properly to hold the Government to account. Your Lordships may remember that the Constitution Committee affirmed this principle very strongly during the passage of Health and Social Care Act during the previous Session. It insisted that the Secretary of State for Health must remain fully responsible for the health service, regardless of the changes that were proposed in the Bill. Section 1 of the Bill was amended in your Lordships’ House so that that the principle is now in statute.
The corollary of ministerial responsibility to Parliament is that civil servants must be fully accountable to Ministers. It is in this area that there has been much recent debate. Relations between the Civil Service and Ministers are said to be at an all-time low. The Prime Minister has referred to “bureaucrats in government departments” as the “enemies of enterprise”. The Minister for the Cabinet Office, Francis Maude MP, has said that civil servants need to focus more on Ministers’ priorities. Blame for errors in handling the west coast main line bidding process was pinned firmly on civil servants in the Department for Transport, resulting in three of them being suspended. Recently, one former Minister, Mr Nick Herbert, said that he had been better supported in opposition than by the Civil Service in government.
It is perhaps not surprising, therefore, that The Civil Service Reform Plan contains proposals to alter the relationship between civil servants and Ministers. One of its aims is to improve civil servants’ accountability. Perhaps the most high profile of these proposals is to give Ministers a greater role in the appointment of their departmental Permanent Secretaries. As noble Lords will be aware, particularly those who have themselves been Ministers, Ministers are already closely involved in the process as they agree the job description and the composition of the selection panel; they can meet the shortlisted candidates and then provide their views on the candidates and the selection panel. The Prime Minister retains a power of veto over the candidate proposed by the Civil Service Commission—a veto that he apparently and reportedly exercised late last year in respect of the nominated candidate for Permanent Secretary of the Department of Energy and Climate Change. However, what Ministers do not do—and have not done up to now—is decide from a list of names put forward by a selection panel who should hold the top job.
The Civil Service reform plan indicated the Government’s broad intention to strengthen Ministers’ roles in the recruitment process for Permanent Secretaries. It did not specify how, but said that the Government would consult with the Civil Service Commission. However, since then, both the Prime Minister and the Minister for the Cabinet Office, Mr Maude, have made it clear that they prefer Ministers to be given the power to select from a shortlist of names when recruiting a new Permanent Secretary. Mr Maude has indeed indicated that he has not ruled out legislating to achieve this. The Government argue that such a change is important for ensuring that the Civil Service is working to the Government’s priorities. If Ministers are fully accountable for all the actions and omissions of their civil servants, the argument goes, Ministers should be given the choice over the principal civil servants who carry out their decisions. Interestingly, in evidence to us, the Government’s proposal was also supported by, among others, the right honourable David Blunkett MP, a senior Cabinet Minister in the previous Labour Government.
On the other hand, others who gave evidence to us, including the Civil Service Commission, objected to giving Ministers the final say over the choice of Permanent Secretaries. They argue that it will lead to Permanent Secretaries being seen as the creatures of Ministers and will undermine Civil Service impartiality and the principle of appointment on merit. The temptations of cronyism and favouritism might, it was thought, prove too great for some Ministers. Others questioned what will happen in departments where Ministers are moved frequently. Will each change of Secretary of State result in a new Permanent Secretary? If so, the word “permanent” in the job title rings somewhat hollow.
The committee heard evidence suggesting that the position may not be as stark and as black and white as is sometimes suggested. We heard, for example, from the former Labour Home Secretary, Charles Clarke, that when a relationship between a Secretary of State and a Permanent Secretary breaks down the official may just be quietly moved on. Another Conservative ex-Cabinet member, the noble Lord, Lord Fowler, said that Ministers are often already given a strong informal say in the appointment process, including expressing a preference.
One thing we should remember is that it was only three years ago that Parliament passed the Constitutional Reform and Governance Act which enshrines in law the attributes of the Civil Service—integrity, honesty, objectivity and impartiality. The principle of appointment on merit clearly flows from these attributes. However, the Constitution Committee concluded that however the Government wish to modify the existing process for appointing Permanent Secretaries, they must continue to conform fully with those constitutional principles. We thought it would be odd if, having waited 160 years for the Northcote-Trevelyan principles and proposals to be put into statute, they were discarded so quickly.
We concluded that the same principles ought to apply to the Government’s proposal for so-called direct appointments. The Civil Service reform plan proposes that where a department lacks a particular expertise, a Minister should be able to make direct appointments into specific, fixed-term posts. On this occasion we heard concerns that such appointments might be used to create a new class of special advisers. We concluded that Ministers should be limited to requesting the category of expertise that they require. Permanent Secretaries should continue to make the individual appointments subject to the approval of the Civil Service Commission.
One member of the Constitution Committee, the noble Lord, Lord Powell of Bayswater, who of course has had a long and distinguished career in Whitehall, has expressed this succinctly. Unfortunately, he is unable to speak today. He has said that bringing in expertise from outside for specific jobs or to carry through new initiatives is eminently desirable—Ministers are fully entitled to ask for that. He believes, however, that they should ask for expertise—for example, “Go out and get me a really good tax specialist”—and that they should not ask for individuals whom they just happen to know. Least of all, he believes, we do not need a new breed of callow special advisers—seasoned experts are required for these sorts of jobs.
None the less, in the area of long-term project management, the Constitution Committee was concerned about the Civil Service’s record of delivery. The list of big government projects which have overrun and cost vastly more than was budgeted is depressing. It is not easy to identify solutions to these difficulties; one common problem seems to be the high turnover of officials working on such projects. High staff turnover is a widespread criticism of the modern Civil Service. We recommend that there should be a presumption that a single, senior civil servant will lead major projects from start to finish. This should improve the ability to hold the Executive, and specifically one official in the Executive, a civil servant, to account for such projects.
The Constitution Committee also examined not merely the accountability of civil servants to Ministers but also the direct accountability of civil servants to Parliament. As the House knows, it is now commonplace for civil servants to appear before Select Committees, sometimes alongside Ministers and sometimes on their own. Such direct accountability is undoubtedly welcome. Select Committees benefit considerably from being able to hear civil servants in this way. Constitutionally and importantly, however, the appearance of civil servants before Select Committees is a supplement to Ministers’ responsibility to Parliament, not a replacement for it. Only Ministers can participate fully in the proceedings of Parliament—answering Parliamentary Questions and responding to debates. For this reason Parliament cannot hold a civil servant properly to account in the place of a Minister.
The Cabinet Office has developed guidance for civil servants who give evidence to Select Committees. The guidance is widely known as the Osmotherly rules—called after Sir Edward Osmotherly the marvellously Trollopeanly named official who originally devised them. The rules offer guidance on what civil servants should and should not say to committees and when it is appropriate for a Minister to appear rather than officials. The committee’s view is that the Osmotherly rules are simply Civil Service guidance and nothing more. They should not be given any greater political or constitutional weight. The Osmotherly rules have not been endorsed by Parliament and do not bind Select Committees in any way.
We recommend that any future revisions of the rules should be published in draft to enable Parliament and its Select Committees to scrutinise proposed changes. In his evidence to us the Minister, Mr Maude, indicated that he would support such parliamentary scrutiny— perhaps the noble Lord, Lord Wallace, can comment on this proposal in his reply.
Although civil servants frequently give evidence to committees, as I have said, they do so on behalf of their Ministers. For this reason, committees usually accept whichever official or officials a department recommends are best placed to give evidence on any given topic. Sometimes, however, committees will want to question a named civil servant—for example, the official in charge of a particular project or policy. The Osmotherly rules include a “presumption” that Ministers will meet such a request. We think this should be strengthened so that a call for a specific individual should be refused only in exceptional cases.
Accountability would also be strengthened if committees were able to question someone who had left the Civil Service or moved to another post. This practice should apply not just to former accounting officers—as suggested in the Government’s Civil Service reform plan—but to other former senior civil servants. Sometimes it is only by taking evidence from former office holders that a committee can get to the bottom of an issue and we do not think the Osmotherly rules should stand in the way of this practice.
As your Lordships are aware, successive Governments have maintained the principle that advice given by civil servants to Ministers should not be disclosed to Select Committees or to anyone else. This of course maintains the principle of ministerial responsibility—civil servants giving full and candid advice but Ministers taking the decisions. The committee did not seek to undo this principle, but thought that the practice set out in the Osmotherly rules needed revision. For example, under the Freedom of Information Act 2000 it is possible to access Civil Service advice if certain conditions are met. The Osmotherly rules suggest that in no circumstances would such advice be disclosed to a committee. Therefore, if the rules are followed strictly, Select Committees may paradoxically have weaker rights of access than someone submitting a freedom of information request. This seemed to us obviously unsatisfactory and so we recommend that on rare occasions when committees need sight of such advice, they should be able to request it.
Our final recommendation concerns situations where the evidence taken by a committee points to an individual civil servant being at fault. The Osmotherly rules suggest that in such circumstances it is for the Minister to examine the matter and take any further action. We were conscious that Select Committees are not disciplinary tribunals. However, if evidence leads a committee to conclude that a particular civil servant has been at fault, we think the committee should be able to express personal criticism and, in extreme cases, suggest that the department concerned considers disciplinary procedures.
In summary, the Constitution Committee’s report underlines the pre-eminence of ministerial accountability to Parliament and civil servants’ accountability to Ministers. We make clear that any plans to reform the Civil Service must not undermine the accepted principles of accountability or Civil Service impartiality. The report also concludes that parliamentary Select Committees should have greater access to individual civil servants and that the informal rules governing their appearances before committees should be revised and scrutinised by Parliament. I look forward to what I know will be an interesting and authoritative debate. I beg to move.
Baroness Donaghy
My Lords, I congratulate my noble friend Lady Jay on her presentation of this important report. We were both members of the Committee on Standards in Public Life and our tenure overlapped for a short while. I much admired her commitment and objectivity on the subjects covered in this report and I continue to admire her contributions in the House.
I was a member of the committee from 2001 to 2007, when it was chaired by Sir Nigel Wicks and Sir Alistair Graham, in two very different styles. I was also acting chair of the committee during most of 2007, pending the appointment of Sir Alistair’s successor, Sir Christopher Kelly. The committee covered all the subject areas in this report and I draw attention to its ninth report, Defining the Boundaries Within the Executive: Ministers, Special Advisers and the Permanent Civil Service.
One of the important jobs of the committee, particularly for the chair and secretariat, was meeting delegations from other countries that aspired to the principle of political impartiality: a Civil Service able to transfer its loyalty from one elected Government to the next, and upholding integrity and appointment on merit. Many of those countries were in a pre-Northcote-Trevelyan state, where patronage led to the appointment of,
“men of very slender ability, and perhaps questionable character, to situations of considerable emolument”,
in the Civil Service. Other countries aspire to our system. There is a very thin line—one that newly elected Governments do not always appreciate—between our system and the return to patronage and corruption. I particularly like the quotation in the report by the noble Lord, Lord Wilson of Dinton, who, in a plea to allow the Constitutional Reform and Governance Act 2010 to settle in, said:
“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”.
It is particularly on the appointment of senior civil servants that this pressure is felt. I am concerned at the continuing rumours that the Cabinet Office Minister is seriously considering legislation to give Ministers greater powers of appointment. Francis Maude has said that,
“It would be perfectly possible under the legislation passed by Parliament in 2010 for the Civil Service Commission to provide ministers with a choice between appointable candidates. I am sorry the commission has decided not to support this”.
The Committee on Standards in Public Life often met organisations covering similar areas, including the Civil Service Commission and the Office of the Commissioner for Public Appointments. I presume that that still happens. We were aware then of pressures on the Civil Service Commission to change its criteria. I imagine that the same is happening now. I hope very much that the Civil Service Commission will stand firm on this issue of further ministerial involvement in senior appointments.
The report holds the line to a large extent, for which I am grateful. However, I cannot resist commenting on the recommendation that Ministers contribute to the appraisal of certain civil servants. When I was chair of ACAS, I was asked to participate in a Civil Service appraisal exercise to ensure fairness between departments. I freely admit that I was overwhelmed by paperwork, with a lever-arch file for everyone under consideration: a veritable mountain of information. How this involvement in appraisals will work needs careful thought. With the greatest respect to Ministers, some will be better able or prepared than others to enter this arena.
I welcome the fact that the committee does not recommend that accountability and responsibility are seen as two separate elements. That way confusion lies. Yes, I checked the Oxford English Dictionary this morning. “Accountable” is defined as,
“Bound to give account, responsible”,
and “responsible” is defined as,
“liable to be called to account”.
I also welcome the recommendation in paragraph 53 concerning the Civil Service as a constitutional check. Civil servants who are accounting officers take their role very seriously and it is a real check on ministerial nonchalance. I know of at least one example where a formal, written direction from the Minister was sought. To add any additional powers or be overprescriptive would act as a barrier to the working relationship of a Minister and his or her senior civil servant.
The committee is absolutely correct in paragraph 59 that,
“ministers are responsible for the actions of their special advisers”.
However, in practice it is all too easy for a Minister to distance himself from the rogue activities of a special adviser, and too little is known about the day-to-day working relationship of more junior civil servants and special advisers. Ministers have been known to encircle themselves with their special advisers—if it is possible to encircle with two people—who then act as a barrier to the extent that a special adviser starts to look very much like a manager. A civil servant wishing to do well and mindful of their future career is unlikely to complain to their senior about this. Of course, there are also examples of the relationship working well. I am simply saying that too little is known about the day-to-day practicalities.
On the issue of project management, I believe that this subject deserves a whole separate debate. There are huge timing problems on large projects, largely because of delays in releasing money, interdepartmental differences in priorities, constant revision of the details of projects and the appointment of consultants who charge the right price but are not up to the job. I am sure we could all write a book about that. The committee’s recommendation that,
“there should be a presumption that a single senior civil servant will lead the implementation of a major project from beginning to end”,
sounds good but will probably not work in practice unless the responsibility rests with a single department and no one has the right of veto. Peter Riddell referred to the fact that some projects lasted,
“the time of three Secretaries of State”.
That can be a very short space of time in some departments. At a more junior ministerial level, the Minister in charge of construction averaged eight months in the last Government.
My biggest concern about the report is in the area of accountability of civil servants to Parliament. I understand that there is probably huge pressure to change the rules and that the committee wants to tilt the balance,
“more in favour of the right of committees to request attendance of specific individuals”.
This is on the back of what is seen as a resurgence in the activities of Select Committees. It is not the first time and will not be the last; Select Committees rise and fall depending on the personality of the chair and the issues under consideration. I attended a number of Select Committees in the distant past, and received absolute courtesy from some and absolute rudeness from others. The big difference between my appearances—on dull and worthy subjects, it has to be said—and those of civil servants was that I could answer back. Civil servants should continue to give evidence to Select Committees,
“on behalf of their Ministers and under their directions”,
as stated in the Osmotherly rules. No one is trying to say that civil servants are,
“unfortunate, beleaguered public servants who cannot speak for themselves”.
I agree with Sir Alan Beith on that, but I do not agree with his conclusions. Of course Select Committees have the right to ask questions and elicit the truth, but care should be taken about the atmosphere surrounding such questioning. If I was a civil servant listening to the radio announcement that my head was going to be put on a spike by the chair of a Select Committee later that morning, I do not think it would encourage a free and frank exchange.
I hesitated about mentioning the name David Kelly as I feel sure his family do not want what happened to be resurrected and would want to live in peace. However, I was in a building with a number of senior civil servants when the news broke about his death. What was significant was not that they were terribly upset—of course they were—but they felt that their reputation had been impugned. It was an era when civil servants were being encouraged to be bold and imaginative and to take the initiative, and the encouragement of outside appointments was the order of the day. No one was going to be bold and imaginative after that day. So the context in which a civil servant is questioned, the tone adopted and the recognition that the quality of a policy is not for comment by that civil servant are extremely important.
Finally, with my ACAS hat on, I would advise caution about Select Committees recommending, even in extreme cases, that a,
“department consider appropriate disciplinary procedures . . . where there are strong grounds for doing so”.
What would the strong grounds be? If any Permanent Secretary found himself or herself in such a position, I would be very happy to represent them.
In conclusion, I am grateful for the opportunity to comment on this very measured and balanced report. The relationship between politicians and civil servants is endlessly fascinating, and we must not forget that the eyes of the world are on us whenever we make changes.
Lord Rodgers of Quarry Bank
My Lords, I was a member of the Constitution Committee when it thought about examining the accountability of civil servants but I am no longer a member and I played no part in the inquiry.
I am grateful to the noble Baroness, Lady Jay, for being responsible for this valuable report, although I was a little confused by both her summary at the beginning of the report and the summary of the recommendations in Chapter 6. The two lists do not match in any clear sequence. However, on the substance, I largely agree with the report’s conclusions.
It is perhaps appropriate to mention that I was a Minister for 11 years in six different departments at different levels of seniority. That was a long time ago but today’s arguments about the relationship between civil servants and Ministers and Members of Parliament echo down the years.
More than that, they are resonant with Herbert Morrison’s book Government and Parliament: A Survey from the Inside, published in 1954—long before the noble Lord, Lord Hennessy, brilliantly prised open Whitehall. Morrison says:
“It is my general experience that if the Minister in charge knows what he wants and is intelligent in going about it, he can command the understanding, co-operation and support of his civil servants”.
He goes on:
“The Minister should not be an isolated autocrat, giving orders without hearing or considering arguments for alternative courses”—
from civil servants. He then says:
“What the reader can be sure of is that the British Civil Service is loyal to the Government of the day. The worst that can be said of them is that sometimes”—
and this is familiar—
“they are not quick enough in accustoming themselves to new ideas, but then it is up to the Minister to educate them”.
Herbert Morrison had been at the centre of government in war and in peace for more than a decade. The book remains a very useful historic text on which a new or restless Minister might reflect. However, Morrison had little to contribute on the paragraphs of the report on Select Committees as his book was published long before the present system of Select Committees began to take shape. I remember in the 1970s that members of the Expenditure Committee questioned civil servants about the costs of Concorde but we had an unsatisfactory response as they often claimed commercial confidentiality. I broadly agree with the recommendations on Select Committees but Members of Parliament should not show off to or bully civil servant witnesses, and junior civil servants should not be put on the spot.
Among the eclectic issues that the Times is currently pursuing is the Civil Service and it has been running a special investigation. Splashed across the front page on 14 January there was the headline:
“No, Minister: Whitehall in ‘worst crisis’”.
There was, it said,
“an increasingly bitter power struggle between ministers and mandarins”.
Then on 28 January the Times had a headline:
“Ministers renew battle to control top Civil Service jobs”.
Caroline Spelman, who was sacked from the Cabinet last year, said that although she had been “supported brilliantly” by her civil servants, she could not understand why a Minister could not choose or—by implication—get rid of his or her Permanent Secretary. We have to read between the lines in the report as there is no real flavour of these apparent turbulent events.
There are good reasons for stability at the top of departments. Civil servants should not be sacked or moved elsewhere because of the colour of their eyes, their cautious language or implied political leanings. However it has always been possible for Cabinet Ministers—with determination and the agreement of the Prime Minister—to dispose of a very difficult or unsuitable Permanent Secretary.
It is fully on the record the way in which Roy Jenkins, on his appointment as Home Secretary in 1965, got rid of the formidable Sir Charles Cunningham, even if it took some weeks to achieve. On the matter of choice, when I was appointed Secretary of State for Transport, the head of the Civil Service asked me to choose a candidate for my Permanent Secretary from two senior civil servants, and to find another if I did not like either of them. I am sure there have been many similar occasions under different Governments over the years.
The Government require a dialogue between Ministers and civil servants but there is sometimes a serious dispute. When I was a junior Minister a civil servant might challenge my view and remain persistent. I would say, “All right, talk to the Permanent Secretary and if he agrees with you, he will talk with the Secretary of State”. As the report says, a civil servant has to be “candid and fearless”. In turn a Minister has to be responsive and fair. These are entirely routine matters. Good sense and tolerance, as Herbert Morrison might have put it, are the essence of successful government.
On major projects, in paragraphs 40 to 44, I am not entirely convinced. I cannot see how a single senior civil servant can see through a long project in terms of his or her maturing career. Apart from the lengthy procurement of defence equipment—and not just aircraft carriers—even a major road may take a dozen years from a ministerial decision to completion.
A fortnight ago, the Department for Transport launched HS2—high-speed trains planned to be in service by 2026. I find it unrealistic and against a civil servant’s interest for a single individual to guide the project from the beginning to the end. It is ironic that we will have six, seven or eight different Secretaries of State during that period.
The senior part of the Civil Service has—excellent as it was—changed for the better, as far as I observe it. Sixty years ago, my contemporaries joined the administrative class in the Civil Service mainly from Oxford and Cambridge or the LSE before the age of 25 or 26 and rose steadily towards the top. The current head of the Civil Service, Sir Bob Kerslake—Warwick University—joined the Greater London Council and became chief executive of Hounslow and then Sheffield. The noble Lord, Lord Bichard—Manchester—rose to become a Permanent Secretary after being chief executive of Brent and then Gloucestershire.
If Ministers were impatient in Herbert Morrison’s time, today’s Ministers are impatient about a new kind of civil servant with a different background and much wider training and experience. In reverse, it can be said that today’s Ministers now have less experience of running a large company or institution than 60 years ago. Of the 18 Secretaries of State and heads of department who gathered round the Cabinet table in May 2010, a couple of them had a substantial business career, and others had some commercial, financial or marketing experience. Half of the Cabinet were unfamiliar with a big organisation, which a government department is.
I welcome the report. I agree with the noble Baroness, Lady Jay: it is unreasonable that the Government have not responded to the report. I very much regret that. The report points in the right direction: to maintain and improve one aspect of our parliamentary process.
Lord Wilson of Dinton
My Lords, I welcome the report, which charts a careful and thoughtful path through complex constitutional issues which it would be easy to get wrong. There is much in it with which I agree and which I welcome. For instance, I welcome the endorsement of the principle of ministerial accountability to Parliament. As the Government recognised in their belated response, civil servants are accountable to Ministers and Ministers are accountable to Parliament. That is fundamental, and it is good to see it endorsed by the committee.
I also welcome the endorsement of what I think of as the Northcote-Trevelyan principle of recruitment on merit on the basis of fair and open competition. Those things may seem obvious, but they are bedrock to how we run our government, and it is important that they are understood, because we have no written constitution to which we can refer.
That said, inevitably, there are a number of points in the report which I would like to add to, retract or disagree with. The principle that Ministers account and that civil servants appear before Parliament on behalf of their Ministers is important to defend and understand. I note that it was asserted in evidence to the committee that the idea that civil servants are unfortunate, beleaguered public servants who cannot speak for themselves is from a past era. That I disagree with. You have only to watch some poor beleaguered civil servants still appearing before Select Committees to know that that is untrue. Civil servants go before Select Committees to explain the Government’s policy—they are not there in their own right. That has a consequence: it is necessary, if Ministers are going to have civil servants appear before Parliament to explain their position, that the Minister should be able to choose who does that.
If a Select Committee wants to summon a named official, it can of course do so, but there will inevitably be occasions when the Minister wants to choose who responds on their behalf. When I appeared before the Public Administration Committee as the Cabinet Secretary, the chairman complained after a while that, whoever he asked to appear, he always seemed to get me. I can understand the frustration that that caused, but it was the fact that the Prime Minister wanted me to explain the Government’s policy, the facts and, in the end, I think that the Government will hold to that position.
It is also the case that civil servants should in no way be disciplined by a Select Committee. Select Committees are not equipped to carry out that task. In many ways, they are arenas that can be very unfair and they are in no way equipped or trained to carry out the kind of fair processes that disciplinary arrangements require. I agree very much with the excellent speech of the noble Baroness, who I thought got it absolutely right. I agreed with pretty much everything that she said on that subject.
Similarly, I note and understand the view that retired civil servants should be able to be summoned before Select Committees. I argue only that there should be some form of statute of limitation. There must come some point when people are spared that recall. I remember one sad occasion in the 1990s, which people may not remember, where a former civil servant was summoned to account for something that had happened. He was not well—the Select Committee did not know that—and the whole thing covered everyone with a certain embarrassment. It is important that this should be done with some sense of proportion and appropriateness, but, in the end, Select Committees probably should be able to call back the only people who can explain what happened.
Other things in the report raised a wry smile. I noted the proposal that Ministers should be able to contribute to the appraisal of selected civil servants. This is not new. There was a process introduced in the 1990s that Ministers should be asked to comment on the performance of their Permanent Secretaries. I remember it. The Minister concerned will remain nameless—there could be more than one. I kept reminding him that he had not yet said anything for my appraisal. In the end, I went to see him to ask him to do it because we were way beyond the timetable and he said, “Will you draft me something?”, so there is a theory here which may not entirely conform with the facts. I do not ask the Minister to comment on that.
As to staying in the job, again, it is a noble ideal but it may not be so easily implemented in practice. When I proposed to Mr Blair as Prime Minister the setting up of the Delivery Unit, the concept was that the Government should select two or three topics in particular areas to which the Civil Service would pay close attention and devote its very best resources to achieve results over a given period, and that named officials should be assigned to those projects and remain with them until the end, accountable for whatever was required to happen. I do not think that it proved practicable. The world moves on; Ministers change; circumstances change; things happen to the people concerned. It is a highly desirable objective, but in practice it has to be tempered realistically with the way the world is.
I want to say two important things. First, I do not agree with the committee that accountability and responsibility are the same. The distinction between accountability and responsibility is useful. I think Ministers are accountable to Parliament in the sense of being liable to give an account, but I do not think that they carry responsibility for everything that they are accounting for. The air is thick these days with people demanding accountability and in the same breath demanding sacking. We need to be absolutely clear that the people who give an account are not necessarily the people who should be held responsible. I would wish to stick to this distinction, which originates with my noble friend Lord Armstrong from the Armstrong memorandum, if I remember correctly.
The other point I want to make is the importance of having the right people of the right quality in government. These proposals in the Constitution Committee’s report need to be seen in the context of the challenge that the Civil Service faces at the moment. The scale of reduction in the size of the service is astonishing. The reduction in size is bigger than the entire worldwide workforce of a company such BP. That is a challenge which no private sector company, other than one going bankrupt, has to face. It has been done at the same time as pay and pensions are under pressure, which is bound to affect morale. The Government are asking the Civil Service to implement major radical changes across a great broad front such as health, education, defence, Europe and welfare. All these things are demanding. It will require enormous skill and ability to implement those challenges, at a time when there is great churn. The choice of people for these jobs is crucial. It concerns me very much that so many people at the top of the Civil Service are leaving. I believe that only two out of 16 key Permanent Secretaries are still in post over the past two or three years. That is a big worry.
The last thing that the Civil Service needs at the moment is a demand for constitutional change. The Government’s best chance of achieving the scale of change that they are seeking is if they work closely in unity on a basis of trust with the Civil Service within a constitutional framework that is understood and accepted by everyone, without attempts to challenge what are bedrock principles.
Permanent Secretaries are in the public eye. If Ministers choose them, they will be perceived as people who are—I try to avoid the word “cronies”—the chosen people of that Minister. That could lead to very unfortunate consequences. If a Minister chooses a civil servant, that may not be the Permanent Secretary who his or her successor needs. Permanent Secretaries need to be people who can serve the current Minister, the next Minister and possibly a Minister from another Government. It is crucial that they are people who can serve Governments of any political complexion. If one Minister chooses them, that is something which is likely to lead to subsequent Ministers saying, “I want my person. If my predecessor had their person, I want the person who is my own choice”. The perception outside that it has become politicised is a real one. It is not theoretical—it is real.
However reasonable it sounds, there is a thin red line which the First Civil Service Commissioner is entirely right to defend. It is of fundamental importance. Noble Lords who have been Ministers will forgive me, but there is no evidence that the people who Ministers would choose would do the job better than the people who are chosen by the First Civil Service Commission. The importance of holding to the position which the First Civil Service Commissioner has outlined is fundamental. I would be very concerned indeed if there were to be any concessions on that.
Noble Lords will understand that there is much more that I wish to say. There needs to be a general acceptance of the constitutional deal that underlies the Civil Service. Governments who wish to achieve big change need to work within the constitution. It does not help to attack any of the principles that are bedrock to the way the Civil Service works.
Lord Hennessy of Nympsfield
My Lords, each generation needs to re-examine its notions of Crown service and the accountabilities that go with it. I add my thanks to the Constitution Committee, and its chair, the noble Baroness, Lady Jay, for their resonant report of last November. It covers a great many of the crucial ingredients of what one might call the governing marriage at the heart of the British system; a marriage which brings together transient if, in the end, dominant Ministers and permanent, career, non-political civil servants in a relationship that one hopes will be greater than the sum of its parts. However, there has existed over the past 40 years a third party to the classic governing marriage in the shape of temporary, politically appointed special advisers who can bring great benefits to the work of the established couple but occasionally can also produce bursts of friction that can induce a serious domestic.
I am pleased—even relieved—that in general terms the Constitution Committee’s report has endorsed the main elements of the standard model in which civil servants are required to provide what the committee calls “candid and fearless advice” to Ministers in return for their Secretaries of State remaining can-carriers-in-chief in Parliament, in an age in which, quite rightly, senior officials are expected to give evidence to Select Committees of both Houses and to be visible and vocal to a degree not experienced by their forebears before the House of Commons created its departmentally related Select Committees in 1979.
I am particularly pleased that the Constitution Committee has emphasised in clear and powerful terms the indispensability of sustaining the classic career Civil Service virtues of integrity, honesty, objectivity and impartiality as enshrined in statutory form for the first time, as other noble Lords have mentioned, in Part 1 of the Constitutional Reform and Governance Act 2010—a mere 157 years after the lustrous Northcote-Trevelyan report of 1853 declared that such essentials should enjoy the protection of statute.
It is this theme upon which I should like to concentrate today. Rightly or wrongly, there has been a whiff of potential politicisation of the very senior ranks of the Civil Service in the Whitehall air since last June when the coalition published its Civil Service Reform Plan. It is the so-called “Action 11” section of that plan that has simulated this tang of unease. Action 11 urges:
“Allowing Secretaries of State to have greater influence in the appointment of the departmental Permanent Secretary”—
as this—
“increases the chances of the relationship working successfully”.
Add to this the proposal for the appointment of,
“a very limited number of senior officials”,
from outside the career Civil Service,
“for time-limited executive/management roles”,
to fill gaps where,
“the expertise does not exist in the Department”,
and you may have created the possibility of seeping politicisation-by-stealth of the senior ranks.
I hope that the noble Lord, Lord Wallace of Saltaire, who is both a scholar of the workings of Whitehall—the Foreign and Commonwealth Office in particular—in his civilian life, if I can call it that, and a member of the new Civil Service Reform Board, established to implement the June 2012 reform plan, will be able to sing out a ringing declaration that this is not now and will not become the purpose and policy of the coalition as the promised review of Permanent Secretary appointments proceeds this year.
There have been rumours, mentioned by other noble Lords, that a Bill is being considered that would undo those parts of the Constitutional Reform and Governance Act 2010 that capture the prized principles of a politically impartial Civil Service recruited and promoted on the basis of merit and not on the political beauty of a candidate’s opinions.
These principles were one of the greatest gifts of the 19th century to the 20th in our country. If they foundered in the second decade of the 21st, it would be as tragic as it was ironic, as other noble Lords have mentioned, given that the country had waited a century and a half to have these precepts draped in the protective clothing of statute only to have them torn away a few years later because a set of Ministers had become irritated with their particular partners in the governing marriage.
I have attempted to discover if this is so. Mercifully, so far, I have found no trace of a “Stuff Northcote and Trevelyan” Bill, which I offer as a suggested title, in the minds of the current Whitehall guardians of the constitution. Yet I remain anxious. Why? Because Action 11 sounds to me, to be candid, like a hissy fit: an audible sign that all is not well in at least some of the relationships between Ministers and senior civil servants above and beyond the usual tensions that arise when Governments seethe through their mid-life crises, when it becomes quite plain that the great intractables of British society— economy and government —have become no more malleable because it is you and your colleagues in office rather than your rivals.
During such political rites of passage, it is tempting to blame the civil servants, the permanent fixtures in the choreography and geography of our governing institutions. Could it be that my traditionalist instincts have masked, for me, a set of new realities in the nature of government and politics that make the mid-Victorian nostrums of Sir Stafford Northcote and Sir Charles Trevelyan invalid at best, and positively harmful at worst?
It was the begetter of the Northcote-Trevelyan inquiry and the implementer of their report, Mr Gladstone, who wished, as his biographer Colin Matthew put it, that:
“A civil service appointed by patronage and influence would give way to a non-political administrative class”,
and that while the 17th century had been an age ruled by prerogative, and the 18th by patronage, the 19th would become one of rule by virtue. There was intense resistance to this notion of meritocracy. Queen Victoria hated it. The Foreign and Home Offices resisted for decades. However, it became the norm for the Home Civil and Diplomatic Services, the Armed Forces and the secret services. Its prime virtue is that Crown servants, in civvies or in uniform, should speak truth unto power: to tell Ministers what they need to know rather than what they wish to hear. Sir Charles Trevelyan had seen this approach first-hand at work in the Indian Civil Service. On his return to the UK, he made his case to the Commons Select Committee on Miscellaneous Expenditure in 1848 and then, as Permanent Secretary to the Treasury, to his new Chancellor, Mr Gladstone, in 1852.
How are the Trevelyans of our day operating his legacy? The Northcote-Trevelyan principles are holding. The Whitehall Senior Leadership Committee, with the involvement of the Civil Service Commission, spins off bespoke panels according to the nature and location of the Permanent Secretary vacancy. It receives direct input from the Secretary of State in the department possessing the vacancy about the qualities and capacities they, the Secretaries of State, are seeking. The leadership committee carries out the interviews and places a handful of candidates above the line, indicating that they are both capable of doing the job and in possession of the Northcote-Trevelyan non-partisan characteristics which would enable them to serve equally well a Secretary of State or Government of a different colour. After all, as other noble Lords have pointed out, we need permanent Permanent Secretaries, not temporary Permanent Secretaries who last for the duration of a single Secretary of State. As has been mentioned, there is already an alarmingly high rate of churn at Permanent Secretary level. The Secretary of State and, indeed, the Prime Minister can veto the outcome and the process starts again. However, the key safeguard is that if you do not meet the Northcote-Trevelyan requirement, you do not get above the line.
It is vital that these processes and the safeguards hold and are not contaminated by the virus of politicisation. Walter Bagehot, in an 1859 essay on Gladstone’s great rival Benjamin Disraeli, wrote how rare it was for a Minister to,
“engrave something new upon his age”.
That is exactly what Gladstone did in unleashing Northcote and Trevelyan in the 1850s, and striving to implement their reform as Prime Minister in the late 1860s and early 1870s. The mark of that engraving is still visible.
I hope that the noble Baroness, Lady Jay, and her committee will continue to watch like hawks for signs of slippage back into the—for some—tempting restoration of political patronage at the top of the Civil Service. As a seasoned public servant put it to me recently, we want neither sofa government nor sofa public servants to sit on it.
I find it hard to believe that Mr David Cameron or his Minister for the Civil Service, Mr Francis Maude, for whom I have a lot of admiration, wish to overturn the Gladstonian gold standard. As for Liberal Democrat Ministers in the coalition, such as the noble Lord, Lord Wallace of Saltaire, that would amount to parricide. As for Conservative Ministers, they have their talismanic figure, too. I am grateful to Mr Nicholas Soames for bringing his grandfather’s words to my attention. In praise of one of his former officials, Winston Churchill said that he was,
“this faithful servant of the Crown, self-effacing, but self-respecting, resolute, convinced, sure of himself, sure of his theme … Governments, Liberal or Tory, came and went. He served them all with equal fidelity”,
consigning his personal,
“sentiments as a purely private affair”.
That is the enduring gold standard.
Lord Morris of Aberavon
My Lords, I congratulate the Select Committee on its report under the chairmanship of my noble friend. It is both an illuminating report and enjoyable to read. However, I also share her regret about the extreme lateness of the Government’s response.
My experience of civil servants arises from having been a Minister for a very long time in five government departments. There is no issue with the integrity and dedication of civil servants. The real issue is whether they are organised in the best way to serve the state. The highest point for me, as a very young Minister in 1964—well before the Ark—was to be told by the person who was in effect running the Ministry of Power, Matthew Stevenson, that he had everything in place to implement the Government’s plans to bring the steel industry into public ownership, for which I had been given a small responsibility. In Stevenson’s words, by my recollection: “When I was a young man at the Ministry, I helped to nationalise steel. When I was older, now at the Treasury, I helped to denationalise it. Now that I am older still, I can assure you that I have the plans and staff to nationalise it once again”. That great civil servant was as true as his word, and put flesh on the bones of our shoulders, which had been pretty bare and innocent of too much detail. The low point for me was the Cabinet Office’s procedures for handling the memoirs I was obliged to submit to it as an ex-Cabinet Minister. All I would say is that I warn future writers to be wary.
A report not available to the committee was that of the Comptroller and Auditor-General. Had it been available, the committee might have pondered on its words:
“The Civil Service is badly managed, lacks vision … and fails to ensure value for money”.
It points to “fundamental management weaknesses” and recalls nine major attempts to reform Whitehall in the past 40 years: challenging words, to say the least.
I turn to some of the committee’s conclusions. First, it says:
“We maintain our view that there is no constitutional difference between the terms responsibility and accountability”.
I am not sure. The Government’s response points out an important distinction between them. The consequences can be different, so far as blame is concerned. Crichel Down is said to be the high point of accepting responsibility. Since then, a much more complex system of government has evolved, with the development of arm’s-length bodies. The growth of the modern state has led inevitably to the diminution of direct parliamentary accountability. Indeed, as a young man I was able to put a question to the Postmaster-General, asking why a letter to one of my constituents had been delivered late—another age.
Fortunately, the growth of Select Committees in the House of Commons, and the flexing of their muscles in demanding more evidence, is helping to fill the vacuum. I suspect that our committees still have some way to go to be as strong as the committees of the American Senate. That leads me to my second point: endorsing the committee’s recommendation that the right of access by committees to civil policy should not be weaker than those making a request under the Freedom of Information Act. The committee has struck the right balance in underlining protection for civil servants under the decision-making wing of the Minister. The Government’s response seems to accept that.
Thirdly, I turn to some interesting paragraphs, which have been touched on already, on the appointment of Permanent Secretaries. The committee rightly maintains that appointment should be on merit. I believe that Ministers are entitled to, and should get, the men and women they want as Permanent Secretaries. In a recent letter to the Times, the noble Lord, Lord Jenkin of Roding, pointed out his experience on that score. The noble Lord, Lord Rodgers, in his contribution seemed to endorse that.
In 1974, when I became the Welsh Secretary I got my man, albeit in slightly different circumstances. For six years, I was served by the man in whom I had confidence and whom I wanted. The committee concedes that the Government’s proposals are in some respects the formalisation of practices that already occur. I agree with that too. I have considered the Government’s response, which underlines the involvement of the Secretary of State at each and every level. That must be so, and I accept and agree with it. I hope that the review being conducted will not ignore the reality of what happened certainly in my experience and in that of the noble Lords, Lord Jenkin and Lord Rodgers.
The bottom line is that a Cabinet Minister must have confidence that his Permanent Secretary will organise the department in such a way that it can deliver his policies. When, in 1966, I went with Barbara Castle to the Ministry of Transport, it was a failed department. The Minister was in the wrong job and he was sacked. He had failed to produce a transport policy. It was widely understood that the Permanent Secretary would not be sacked. He was sidelined and Barbara brought in a distinguished academic, Christopher Foster, an expert in transport, who distinguished himself as an adviser to many Governments to run the policy side of the department.
Fourthly, the Select Committee is nervous about having temporary civil servants on fixed-term contracts. Provided they have the vital qualities for a most senior civil servant, the appointment should be for the Minister to make and not have to be the Permanent Secretary, who may well have failed. The Government’s response seems to be the right one, which I warmly welcome.
Fifthly, the committee recommends the presumption that a single senior civil servant will lead the implementation of a major project from beginning to end. The Auditor-General welcomes the creation of the Major Projects Authority in 2010. Despite the difficulties that we have heard, I agree 100% with that laudable aim. An official should have a personal promotion, if necessary, in order to maintain continuity in the department. These projects are complex, and it is very important that a person should maintain their responsibility. I hope that the Browne review, to which reference has been made, will certainly ensure that there is an improvement on that score.
As well as persons in charge of projects, Permanent Secretaries come and go far too frequently, as do Ministers. Procurement Ministers should be in post for much longer. Over the years, the history of defence procurement is an indication of the lack of continuity of proper ministerial control. I am proud to have been a Minister of Defence for Equipment, although, fortunately or unfortunately as the case may be, the electorate sacked the Government. I would have regretted very much not being able to continue with some of those projects, which have the gestation period of an elephant. The most effective Minister under whom I have served was the noble Lord, Lord Healey, who was Defence Minister for six years. He knew the beginning and the end of all projects in that time.
I could not help smiling when I read about a departing woman Permanent Secretary of great distinction complaining about the lack, perhaps rightly, of women Permanent Secretaries when she was moving on to other pastures. That seemed to me to be a very odd comment to make. The committee might have spent a little time scrutinising the length of tenure of Permanent Secretaries in one post. It is a great worry that they seem to go from one department to another incredibly quickly.
Finally, when I had been Attorney-General for only a few months, I was asked to approve the bonus of a distinguished government lawyer. It was the first time I had heard of bonuses. I thought that the rate for the job had been negotiated. How could I as a Minister of only a few months’ standing in a matter of months decide on the exceptional performance and worthiness of this distinguished senior lawyer? Past Governments have gone down the wrong road with bonuses. I welcome the recent Parliamentary Answer that the number receiving awards has been reduced since 2010 from the astonishing figure of 65% to 25% of civil servants.
I am proud to have worked with a large number of dedicated civil servants, but I will not enlarge on that. I hope that what I have said is sufficient. All I will say is that I had no more suspicion of any diminution in quality when I last took office in 1997 than when I first became a Minister of the Crown in 1964—a span of more than 30 years.
Baroness Tyler of Enfield
My Lords, I welcome today’s debate on this very important issue, and start by paying tribute to the work led by the noble Baroness, Lady Jay, and the members of the Constitution Committee for their excellent job. The committee’s strong endorsement of the basic principles of accountability in our parliamentary system and the convention of ministerial responsibility is very much to be welcomed.
My reason for speaking in this debate is to offer the perspective of someone who was a career civil servant for 19 years in six departments. You could say that it is the viewpoint of someone at the other end of the telescope from Ministers and Parliament. I should start by saying that I firmly believe in the principles that underpin an impartial British Civil Service. These principles go back to the Northcote-Trevelyan report and still hold firm today. I wish to continue to see a Civil Service that is appointed on merit and that people who advance in it do so on the basis of merit. I feel sure that the whole House would wish to see a Civil Service that is impartial, objective and honest, and that acts at all time with integrity. These are the watchwords of the modern Civil Service.
None of the above should prevent any of the welcome changes of recent years in the Civil Service, nor should they prevent it learning from elsewhere, be it from the private sector or elsewhere in international public administration. Indeed, I read with interest what is happening in New Zealand to sharpen accountability for senior civil servants and in Australia where there is a very different system for appointing and dismissing their equivalent of Permanent Secretaries. A greater level of exchange with other sectors, a greater level of professionalism in the Civil Service, particularly in relation to procurement and project management, and a greater awareness of the challenges of modern information systems and the rise of the 24/7 world of communications will all help to enhance the effectiveness of our modern Civil Service.
Indeed, the Civil Service reform plan has already made a start in setting out the type of changes needed to deliver a 21st century Civil Service. I welcome the commitment in that document, for example, to a greater focus on learning and development in the Civil Service, from talent spotting and developing a fast stream right up to addressing the training needs of Permanent Secretaries.
That said, I am concerned that some of the values of the Civil Service are being undermined by some of the current developments in parts of the Civil Service reform programme. I share the concerns that have already been voiced in this debate about the negative way in which the Civil Service is being portrayed by some Ministers, particularly when there is no right of reply and, as other noble Lords have said, at the same time as major cuts in staffing levels are being made throughout the Civil Service, with the impact that that is having on morale.
I have four key points to make on the potential risks of undermining the values that I have set out, values which I believe are fundamental to our democracy. First, a worrying trend is developing—we have heard about it already in this debate—of too much political interference in the appointment of Permanent Secretaries. There has been much discussion recently in the media and elsewhere about this issue, and the noble Lord, Lord Hennessy, has already spoken most eloquently on this matter. In addition, the First Civil Service Commissioner has made very clear in his interventions that there is, in any case, always ample opportunity for a Secretary of State to make his or her views clear on the quality of the candidates being considered as Permanent Secretaries.
In a letter to the Times last year, Sir David Normington warned of the dangers of a more politicised appointments process, particularly if a civil servant becomes viewed as the personal appointment of a particular Minister rather than someone able and ready to work for a new Minister or a new Government. We all know how quickly the reshuffle merry-go-round takes place.
In my view, Ministers should not be able to overrule the decision of the Civil Service Commission. Some recent examples, such as the overturning of the commission’s recommendation for the post of Permanent Secretary at the Department of Energy and Climate Change, run the risk of undermining the principle of fair and open competition based on merit. I make no criticism whatever of the candidate eventually chosen in that department who, I know, is a highly regarded civil servant. However, the original candidate selected, and agreed by the Secretary of State, was, as I understand it and as was reported, subsequently overruled by Downing Street. If that was the case, then it was wrong.
Secondly, the proposal as part of the reform plan to contract out core policy functions and test the market in certain circumstances has real flaws and has not been properly thought through. If you are seeking impartial policy advice delivered to Ministers without fear or favour; if you are seeking people who can speak truth unto power it is best if those people do not have a financial interest in the advice they give. This is especially important when looking at long-term policy implementation, rightly one of the concerns of the Constitution Committee.
Of course Ministers will wish to have, and should have, access to a wide a range of advice from think tanks, other pressure groups, academics, management consultants with specific expertise and others. Of course, the Civil Service must not claim a monopoly of advice; it does not have it. However, there is always the risk that a private sector organisation, a think tank or any other organisation providing advice under contract to a Minister may be tempted to provide the advice that they think the Minister wishes to hear rather than what the Minister ought to hear, particularly if a future contract for that policy advice is in the offing. It is the role of senior civil servants to weigh up those at times conflicting opinions and give fair and impartial balanced advice to Ministers without any axe to grind or any personal or financial benefit to accrue to them or their department. I do not think there has been nearly enough attention or debate on this development and its serious implications for Civil Service accountability.
Thirdly, I wish to nail the accusation that the Civil Service is inherently risk-averse and that somehow this is an inbuilt weakness of the system and the way it is held accountable. Under successive Governments, but particularly recently, as we have already heard in today’s debate, the cry has gone up from Ministers that civil servants need to be more entrepreneurial and more willing to take measured risks. I wish to challenge that accusation. The work of the Civil Service is not capable of such a precise parallel with the role of the private sector. In the latter case, entrepreneurs take risks with other people’s money or with private money in the hope that they will generate more money and profits. Sometime they do and sometime they do not. On occasions, the businesses involved will lose money if the risk does not come off and the investors have to carry that loss.
In the public sector, and particularly in the Civil Service, it is not private money that is being invested. Rather, the Government are investing taxpayers’ money in public services. Civil servants, and at the top of each department accounting officers, have a constitutional duty, as the report of the Constitution Committee makes clear, to ensure due propriety in the spending of that money. Permanent Secretaries and heads of department are responsible to Parliament for the proper stewardship of expenditure. The Public Accounts Committee exists precisely for the purpose of scrutinising and challenging accounting officers on their management of public money. It would simply not be acceptable for civil servants to say, “I took a risk with public money and that risk didn’t come off. I’m sorry”. As a society, we rightly expect more of public money and public servants. Of course, civil servants must understand risk and be explicit in their advice to Ministers on the risks involved in pursuing particular policies. The idea, though, that civil servants across the board should be less risk-averse—the flipside of that is, as a result, more entrepreneurial—does not stand up to detailed scrutiny.
Finally, I think we need to look again at the relationship between Ministers and civil servants—something that I fear is currently at something of a low ebb, with a real impact on morale. We also need to look at the three-way relationship between Ministers, the permanent Civil Service and special advisers, and the benefits that that can bring to the system. The best special advisers—and I have worked constructively with many in the past—add value and protect that vital frontier between politics and the non-party political role of an impartial civil servant. I am very pleased that the committee reaffirmed the clear principle that Ministers are responsible for the actions of their special advisers.
The Minister-civil servant relationship needs to be strong and constructive, recognising the mutually beneficial role that each can play. In my experience—and in present company, I am going to try to put this as delicately as I possibly can—there are on occasion Ministers who are sometimes too quick to blame their civil servants when they would do well, initially perhaps, to consider their own effectiveness in particular circumstances. The best Ministers, and the ones who command the most respect from their departments, regardless of party, are those who set out a strong strategic vision, take decisions quickly, explain those decisions, recognise where the boundaries lie between their respective roles and, when things go wrong, accept personal responsibility, even when they have not been personally involved in the decision. In that sense, the spirit of Crichel Down lives on today, and that is why I agree with the committee’s conclusion on the convention on ministerial responsibility.
This is an important report and I very much welcomed the chance to take part in this debate today. I believe strongly in the values of the modern British Civil Service and, at the same time, support the need for it to change in order to preserve and support those values I have described.
I conclude with a quote from another report:
“the Government of the country could not be carried on without the aid of”,
a Civil Service,
“directly responsible to the Crown and to Parliament, yet possessing sufficient independence, character, ability and experience to advise, assist and, to some extent, influence, those who are from time to time set over them”.
I agree. These are not my words but those of Northcote-Trevelyan back in 1854. They are as true today as they were then.
Lord Armstrong of Ilminster
My Lords, I add my voice to those which have congratulated and expressed thanks to the noble Baroness, Lady Jay, and to the Constitution Committee for their measured, balanced and authoritative report which brings the threads together and presents us with some very sensible and well considered conclusions. The committee has done the state some service in robustly and, in my view, correctly reasserting the Haldane convention that civil servants are accountable to Ministers and Ministers are accountable to Parliament—it would put Ministers and civil servants into an unworkable tangle and morass of divided, dual and sometimes conflicting accountability if it were otherwise.
I am not going to join in the discussion of whether there is a distinction between responsibility and accountability. I simply note that there is an important verbal point in the committee’s view that there is no difference. It says that,
“there is no constitutional difference”.
I think that I am prepared to accept that. In other respects there is a difference between responsibility and accountability but I will not waste your Lordships’ time by going into that.
The committee is also right in arguing that the growth in the size and complexity of the state since the Haldane convention was formulated, and the development of Select Committees since 1979, require that the practice in operating the convention should be kept under review. It would clearly be impossible for Ministers to give all the evidence required by parliamentary committees, so the convention must be applied with understanding and flexibility within the framework defined by Lord Haldane—but it must not be violated.
It is particularly in relation to the work and the demands of parliamentary select and other committees that the lines in the sand need to be kept under review and redrawn if need be. The principle must be that the civil servant is accountable to his Minister when he gives evidence on the Minister’s or the department’s behalf to a parliamentary committee, as he is in everything else that he does as a civil servant. Normally there will be no problem about this. The Minister—or the department on his behalf—will select, and the committee concerned will accept, the civil servants who are best qualified to answer the questions likely to be asked. Occasionally, as the Constitution Committee recognises, a parliamentary committee will wish to hear evidence from a particular civil servant. The Minister will consent to allow that civil servant to give evidence if the Minister is content that he should do so; but if the Minister is not content that he should do so, the Minister is entitled to withhold his consent.
I do not think that a Minister can be forced not to withhold consent. If he does withhold consent, then the committee will be within its rights if it summons the Minister himself to go and give evidence, or to make available another civil servant to do so if the committee is prepared to accept that other person. I was involved in one case where a Commons committee wanted to call two named civil servants to give evidence but the Minister, for valid reasons, refused to allow them to go and, with the committee’s grudging acceptance, sent me to give evidence on the Minister’s behalf. I still remember with a touch of pride, though it got me into some trouble at the time, the Guardian’s lobby correspondent’s verdict on that encounter: “Mandarin 3, Select Committee 0”.
There will be other cases where a civil servant called to give evidence will be instructed by his Minister not to answer a particular question or questions, or not to give certain information to the committee concerned, because the information is of especial secrecy or confidentiality. The civil servant must be free to say that the Minister, who is himself accountable to Parliament and on whose behalf he is giving evidence, has instructed him not to answer the question or give that information. In my view, the committee is bound to accept that position and to have recourse to the Minister himself if it wishes to press for an answer. The civil servant concerned should not be put under third-degree pressure by the chairman or members of the committee to answer the question when he has been instructed by his Minister or is bound not to do so.
The Constitution Committee discusses the question of the appointment of Permanent Secretaries. The problem question here is the role of a Minister in selecting a new Permanent Secretary. It was all so much easier in my day. When I was head of the Civil Service, I chaired a senior appointments selection committee whose task was to consider a shortlist of candidates for an appointment and give the guidance on whom I should recommend to the Prime Minister. Before preparing such a shortlist, I took great trouble to consult the Secretary of State concerned to try to make sure that any candidates whom he favoured were on the shortlist and that any candidates with whom he thought he could not work were not on the short list.
The Prime Minister I served was not very happy if I recommended only one name; she liked to have more than one name before her, with a statement of my reasons for the recommendation I made. She would sometimes discuss my recommendation with me, with her customary forensic skill, before approving an appointment. She wanted to make sure that the appointment would not just be Buggins’s turn, but I cannot remember that in the end, after the discussion, she ever approved the appointment of someone whom I had not recommended.
That was a less formal arrangement than the existing system but it did not work badly. It seems to me that the existing system, as described in the Constitution Committee’s report, provides a Secretary of State with sufficient involvement in the process to make sure that his views are known and taken into account and that he will not have thrust upon him a Permanent Secretary with whom he feels unable to work. I do not think it would be right to go further than that and give the Secretary of State or departmental Minister the final choice, for all the reasons set out in the evidence to the Constitution Committee and by the committee itself in its report.
It would clearly be undesirable for the Permanent Secretary to change every time there is a change of Secretary of State or departmental Minister. The turnover of departmental Ministers can be quite rapid. I served for four years in the Home Office: for two as a deputy secretary, then two as Permanent Secretary. During that time I served three Secretaries of State, two Labour and one Conservative, and got on happily and constructively with all three. It would have been intolerable, not only for me but also for the Secretaries of State and the department, if the Permanent Secretary had changed every time there was a new Secretary of State.
The Constitution Committee discusses the question whether Civil Service policy advice should ever be disclosed to parliamentary Select Committees. I agree with those who said in evidence that a civil servant should never be asked to disclose the advice he has given to his Minister; if anyone is to be asked to disclose that advice, it should be the Minister. The general rule should be that advice given by civil servants to Ministers should never be disclosed. If civil servants were to believe that their advice might subsequently be disclosed, there would be a real danger that that advice would be less full, candid and fearless than it should be. Exceptions to the general rule should be extremely rare, if not non-existent.
I could discuss many other points on the report but I agree with very much of it and will not add more, save this in conclusion. In all this, I am reminded once again of the charge that Queen Elizabeth I gave to Sir William Cecil in November 1558, when she appointed him to be her principal Secretary of State—in effect, her Cabinet Secretary and head of the Civil Service. She said:
“This judgment I have of you, that you will not be corrupted by any manner of gift; and that you will be faithful to the State; and that, without respect of my private will, you will give me that counsel you think best; and if you shall know anything … to be declared to me of secrecy, you shall show it to myself only”.
As a lapidary statement of the duties and responsibilities of civil servants in relation to Ministers, it is difficult to improve upon that.
However, it is worth also remembering the advice that Sir William Cecil gave to his son and successor about what happened when he and the Queen disagreed:
“As long as I may be allowed to give advice, I will not change my opinion by affirming the contrary, for that were to offend God, to whom I am sworn first; but as a servant I will obey Her Majesty’s commandment, and no wise contrary the same, presuming that she being God’s … minister here, it shall be God’s will to have her commandments obeyed”.
I might not have put it quite like that; I might have referred not only to her divine mandate, but to her to democratic mandate too. However, I recognised instantly that that was how I felt in my dealings with Mrs Thatcher when she was Prime Minister and I was her Cabinet Secretary. The two quotations taken together seem to quite neatly and pithily encapsulate the duties of civil servants to Ministers.
Lord Wright of Richmond
My Lords, how can I follow that? I shall speak very briefly on three points. The first is to draw your Lordships’ attention to a remarkable speech made by the father of the noble Baroness, Lady Jay, Lord Callaghan of Cardiff, in a debate on the Recruitment and Assessment Services in 1996. Although I commend the whole of that speech to the House, I shall only quote two sentences which state that,
“the Civil Service is not the private property of temporary, fleeting Ministers to trifle with as they please. It is the property of us all, and Parliament has always accepted that”.—[Official Report, 8/3/96; col. 546.]
My second point is relevant to the use by the Lord Callaghan of the words “temporary” and “fleeting”. The report which we are debating refers only to the high turnover of senior responsible officials. Given the frequency with which Ministers, and even Secretaries of State, have been moved from one job to another, or to none, under successive Administrations, would it really be a sensible way to run the public service if all of them were allowed to dismiss and appoint their Permanent Secretaries?
My third point is somewhat outside the scope of the committee’s report. I make it not only as a former head of Her Majesty's Diplomatic Service but as a seconded civil servant for the two and a half years when I worked for two successive Prime Ministers in the 1970s. Having earlier in my career been Private Secretary to Sir David Ormsby-Gore in Washington, I understand as well as anyone the very special contribution which a political head of mission can make to a bilateral relationship. But here again, let us be very careful not to follow the American precedent whereby some 30% of senior diplomatic posts are filled with friends and donors of the party in power. It is said that for every top position in the American Foreign Service, a donation of up to $2.3 million is now required. Let us never forget, as the noble Lord, Lord Hennessy, reminded us, that a key objective of the Northcote-Trevelyan reforms was to abolish patronage of that sort.
Lord Lexden
My Lords, I am very grateful to be allowed to fill the gap between the powerful contributions that have been made to this debate and the Minister’s speech. A small, narrow gap is perhaps the appropriate place for one of the newest and most junior members of your Lordships’ House’s Select Committee on the Constitution.
I was roused from my natural indolence by the arrival late yesterday afternoon of the Government’s response to our report—a report which had been in the Government’s hands for well over two months, as the committee chairman, the noble Baroness, Lady Jay, made clear. One of the most telling features of the response is that it deals at length with only one element of the report: namely, the appointment of Permanent Secretaries. To that it devotes six paragraphs, while no other recommendation in the report receives more than two paragraphs by way of reply. On the appointment of Permanent Secretaries, the Government state that they believe that it would be perfectly possible under the legislation passed by Parliament in 2010 to have an appointment panel which sifts through the candidates and ensures that they are above the line for appointment, and for the Civil Service Commission then to provide Ministers with a choice between those appointable candidates: an appointment panel to appoint this panel. Is the Civil Service Commission not the panel to which we naturally look?
No previous Government have sought to exert such firm control over the processes by which Permanent Secretaries are appointed, and I share the fears expressed many times during this debate that the Government’s proposals create dangers for the great principles of impartiality, merit and competition on which appointment has always rested, hinting at the patronage from which the Civil Service escaped as a result of the Northcote-Trevelyan reforms. I am not normally drawn greatly to the career and achievements of Mr Gladstone—Disraeli is more in my line—but on this, I am entirely with him for all the reasons so eloquently expressed by my noble friend Lord Hennessy.
It is important to remember that we already have a not inconsiderable element of ministerial patronage in the system, supplied by the existence of special advisers over whom Ministers have complete control. It is not clear that Ministers always make the most effective use of this power of patronage at the moment. Should not the emphasis today be on securing for government departments truly first-rate special advisers, providing well informed, political advice to complement the well informed, impartial advice available from career civil servants?
Thirty years ago, the following words were published:
“This country is fortunate to have a Civil Service with high standards of administration and integrity. The Civil Service has loyally and effectively helped to carry through the far-reaching changes we have made to secure greater economy, efficiency, and better management in Government itself”.
Those words appeared in the Conservative Party’s manifesto for the 1983 election. If Margaret Thatcher’s radical Government were able to work successfully with the top echelons of our country’s Civil Service, why are this coalition Government—dedicated also to radical change—finding it so difficult?
Lord Mackay of Clashfern
My Lords, I wish to welcome briefly this report, and to mention the special position of accounting officers in relation to the Public Accounts Committee. They are not required to act under the authority of a Minister, and of course there are a number of accounting officers who are not responsible to Ministers; for example, the accounting officer of the Supreme Court.
Baroness Smith of Basildon
My Lords, I thank the noble Baroness, Lady Jay of Paddington, and the committee for the work that they undertook. We owe them a debt of gratitude for being able to have this debate today. The opening speech by the noble Baroness set the tone for a very thoughtful, insightful debate which has drawn on considerable expertise in your Lordships’ House. It is a very timely debate because the Government’s proposals for reform have reignited interest in the role of civil servants, the wider relationship between Ministers and civil servants and the key issues of accountability and responsibility.
I also concur with the comments made by the noble Baroness, Lady Jay, and the noble Lord, Lord Lexden, on the timing of the Government’s response. As a former Cabinet Minister, I appreciate that people in glass houses should not throw stones. However, I was somewhat taken aback to find an e-mail in my inbox at 5.53 pm yesterday evening with the Government’s response. That is rather late in the day for a debate that is taking place in your Lordships’ House today.
The committee’s report identifies why it undertook this investigation. This includes the increasing complexity of government structures and functions, the Civil Service reform plan, and of course the previous report on ministerial responsibility following the introduction of the Health and Social Care Bill. For some Ministers, and indeed for some civil servants, that tension between ministerial and civil service responsibility proves difficult, and the noble Baroness, Lady Jay, highlighted some very pertinent examples of that. I will deal with that issue for a few moments. The committee’s report on the Health and Social Care Bill dealt with the specific issue of ministerial accountability, and the issue is again explored in this report in line with civil servants’ accountability. The committee has further considered that, and it has maintained its previous position when it says in the report:
“No distinction is to be drawn between ministerial responsibility, accountability and answerability … Likewise, ministerial responsibility to Parliament is not to be qualified. No distinction is to be drawn between ultimate and non-ultimate responsibility, or between direct and indirect responsibility”.
Most importantly, the report goes on to state that,
“no distinction is to be drawn between responsibility for policy on the one hand and responsibility for operational decisions on the other”.
In effect, it seems that the committee is saying that Ministers should not be able to abdicate or delegate their responsibilities, and that this is an essential part of holding ministerial office. Clearly, Ministers have to accept responsibility for the work of their department. That does not mean that they are responsible for every action or mistake; the example of the lost disc mentioned in the report is a good one. However, it means that they are answerable on operational matters as well as policy. These matters are not just for civil servants to deal with.
On answerability and accountability, the report refers to the “Today” programme test—that is, the political reality that the media and the public will seek answers from a Minister, not from a civil servant. Some Ministers find that difficult if they feel that they are not responsible and that it is a matter for which a civil servant should be held to account. I will suggest two other tests to your Lordships’ House. There is also what might be called the common-sense test. While some may bray for the head of a Minister in whose department someone has made a mistake, surely the test should be whether it was a simple and unintended mistake by a member of staff or whether there is a more systematic problem for which there must be ministerial accountability. My sense is that the difference is generally understood by Parliament, the press and the public, although it is not unheard of for someone to seek to make political capital out of such issues.
There is another test, and the noble and learned Lord, Lord Morris of Aberavon, touched on it. It is ministerial accountability to Parliament, and where Ministers and Parliament see the boundaries of that accountability. When issues of service provision are raised, Ministers in your Lordships’ House regularly state that these are not matters for them but are operational or local decisions. However, it is central government that dictates and decides the limits, including financial parameters, within which local services have to work. Although the scope for local decision-making is limited by Ministers, this should not prevent them from answering questions about the impact of their policies.
I will give an example. In your Lordships’ House I raised with the noble Lord, Lord Henley, the issue of police station closures. He replied:
“My Lords, that is obviously a matter for the authorities”.—[Official Report, 2/11/11; col. 1229.]
That was despite the fact that his Government had set the budget within which that decision had to be made. That was not an isolated case. Recently I asked the noble Earl, Lord Howe, about an example from my home area where, because of the Government’s NHS policies, pathology services are being moved from Southend and Basildon hospitals to Bedford Hospital. The noble Earl replied:
“Decisions about the local configuration of pathology services are for local National Health Service commissioners”.—[Official Report, 24/1/13; col. WA 247.]
It is difficult to judge the parameters accepted by Ministers on responsibility to your Lordships’ House, but the wider and more serious issue is the one touched on by the noble and learned Lord, Lord Morris. It would be very helpful to have the Minister’s observations on this.
The Government have said that they are seeking to privatise the probation service. The judgment of the Constitution Committee is that Ministers cannot delegate accountability. However, if Ministers, while retaining overall responsibility for the provision of probation services, allow a private company to provide all or part of those services, will the Government consider that Ministers should answer Questions on those operational matters, or would that be delegated to a civil servant or the head of the private company? If Ministers do not answer, the ability of Parliament and of individual parliamentarians to hold the Government to account for the services for which they are responsible will be severely restricted. Other than in Select Committees, parliamentarians cannot question civil servants or private service providers, and it would be wrong for them to do so. However, where the Government have ultimate responsibility, surely Ministers should answer. Will the Minister confirm that in such cases it is entirely appropriate for Ministers to answer from the Dispatch Box on operational matters, as recommended by the Constitution Committee?
In its report, the committee also looked at the issue of distancing Ministers from the decisions of arm’s-length bodies. However, I do not think that a privatised service comes under that remit, and there are constitutional issues of accountability and of whether the public will lose their rights to freedom of information in such instances. The committee was also right to highlight the complexities of government structure and organisation. If we as parliamentarians find it complex, it must be hugely difficult for an ordinary citizen to try to navigate their way around Parliament or government. Therefore, I strongly welcome the committee’s recommendation that a map or organisational chart should be produced. This point was made by the noble Lord, Lord Hennessy. I suspect that it might be slightly more complicated than the bus route map of London.
In the brief time available, I looked at the Government’s response to the point made by the committee. I had an opportunity to look at the websites that the Government say address the issue, and I have to say that I do not think they do. The Government’s response to the report does not address the need to have an organisational map showing how departments and arm’s-length bodies work together.
On the related issue of civil servants giving evidence to Select Committees, the committee struck absolutely the right balance in defining what is appropriate and how the process should be conducted. There is a question for the Minister around the issue of defining a civil servant, and who Ministers can and cannot ask and instruct to give evidence to a Select Committee. I recently asked a Question about Her Majesty’s Chief Inspector of Borders and Immigration. When I asked the Minister how often Ministers met him, the rather bizarre reply was that Ministers have internal meetings and talk to officials from time to time on matters of policy, and thus that it was an internal matter. I then obtained an entirely reasonable answer via a freedom of information request to the chief inspector’s office. Clearly, for Her Majesty’s Chief Inspector for Borders and Immigration to give evidence would not be in any way a replacement for the accountability of Ministers, but it would be of assistance to the committee in its scrutiny of ministerial decision-making. I would be grateful if the Minister would look at that point.
After reading various documents on the Government’s Civil Service reform plan, I have to say that when the Government deal with issues in the abstract, it is very hard to disagree, although sometimes there are strong echoes of an episode of “Yes Minister”. There are issues around strengths and weaknesses, better performance management, building on our strengths, reducing our weaknesses and so on. However, as noble Lords have illustrated today, it is when we get to the detail that alarm bells ring, particularly on the issue of the appointment of Permanent Secretaries.
Unfortunately, it appears from public comments and government leaks that the report was written against a backdrop of hostility to civil servants. The noble Lords, Lord Wilson and Lord Hennessy, expressed concern at the rapid departure of Permanent Secretaries under the coalition Government. The two may well not be connected, but it causes concern not to have that continuity in office. It is logical to have the involvement of a Secretary of State in the appointment of a Permanent Secretary. However, the fear is that the Government will stray over the red line that could lead to the greater politicisation of the Civil Service. The one thing we have to guard against is any suspicion or suggestion that the “Is he one of us?” culture could be used in the appointment of senior civil servants.
My noble friend Lady Donaghy spoke extremely well about the justification of why the British Civil Service is thought of as one of the best in the world, because of its professionalism and impartiality. That is not to pretend that on every occasion every civil servant is excellent at all times. All Ministers have accounts of the best and the worst civil servants with whom they have worked. What is so important is the principle of impartiality and accountability, and the relationship between the two. Clearly, a Secretary of State needs to have confidence in their Permanent Secretary. The working relationship has to be good, and has to be reinforced by each knowing and observing the extent and the boundaries of their respective roles and positions.
The current position seems to provide that, and I am not convinced that the Government have made a strong enough argument for change. I agree with the committee’s recommendation. I appreciate that the Government seek to give reassurance in their response, but if there is to be any change in the way in which Permanent Secretaries are to be appointed, and if the role of the Secretary of State is to be increased, this has to be based on evidence of what the problem is that the Government are seeking to resolve, and there must be broad consensus around any change that is brought forward so that there can be no substance to any accusations of politicisation. I appreciate that the Government seek to give reassurance in their response but I would like to see greater clarity, perhaps from the Minister today, about the problem that the Government are seeking to resolve.
I hope that the Minister has heard the concerns that have been raised about temporary appointments to the Civil Service. There is concern also about “secondments” being used to circumvent the provision of temporary appointees where the former are perhaps more in line with ministerial thinking. I am in the process of tabling some Written Questions for the Minister, so I do not expect him to answer my questions today, but if he is able to say something about the number of secondees coming into government, where they are coming from and the reasons for it, it would be helpful.
The report from the committee is extremely valuable. I hope that the Minister has taken note of the strong view expressed in the debate today that the way in which the Civil Service operates now works very well. No one is suggesting that there is no room for reform, for modernisation or for ensuring that the Civil Service keeps up with the times, but the Government need to guard against any increasing politicisation that would undermine the existing traditions or the principles of the Civil Service.
Lord Wright of Richmond
My Lords, the noble Baroness has quoted the question, “Is he or she one of us?”, allegedly asked by the noble Baroness, Lady Thatcher. I do not know whether she actually said it—a large number of quotations are wrongly attributed to people—but, if she did, it might be worth putting on the record that, in my five years as head of the Diplomatic Service, the noble Baroness, Lady Thatcher, never once queried a single appointment to a head of mission.
Baroness Smith of Basildon
My Lords, I appreciate the noble Lord’s intervention. I was tempted not to quote anyone but that quotation, attributed rightly or wrongly to the noble Baroness, Lady Thatcher, was trying to make the point that some people think it important to have a “one of us” culture, whereas I think that most of us in your Lordships’ House today would think that that was completely wrong with regard to Civil Service appointments.
Lord Wallace of Saltaire
My Lords, I declare a professional and personal interest: I am, as the noble Lord, Lord Hennessy, remarked, a member of the Civil Service reform board; my wife is a former civil servant; and I have a family member who is a current civil servant.
The Government welcome this report. We apologise profusely for the late completion of the response. We were keen to ensure that the committee received a carefully considered and positive response to the report and were hoping to include some of the ongoing work on accountability and Civil Service reform. That resulted in a delayed response, but I appreciate that it was a lack of courtesy to the committee to leave it quite so late. We look forward to the committee’s further work on this theme. The report is a contribution to a continuing discussion about our state, our constitution and the relationship between the Executive and Parliament.
We should not exaggerate the degree of current disagreement or discontent, or the supposed threat to the principles of Northcote-Trevelyan. It is clear that recruitment is still by merit, and I am happy that recruitment is going extremely well. The Diplomatic Service and the domestic Civil Service attract intense competition from graduates. Promotion is also by talent, although I have noticed during the past 30 or 40 years that ministerial favour has rarely hurt the careers of particular civil servants under different Governments. There are some queries about retention, particularly in the Treasury, where I think churn is one-sixth of staff a year. I am still puzzled as to why the Treasury should pay much less than some other departments in Whitehall. Those are the sort of things which some of us are querying inside government.
We still have the principle of a permanent Civil Service, although I think that it would be fair to say—and the noble Lord, Lord Hennessy, will certainly remember—that when we had a large number of temporary civil servants in World War II, many of them turned out to be the great civil servants of the following generation. The idea that one has a permanent Civil Service in which there should be no movement in and out is one with which I think none of us entirely agrees.
There is of course a necessary and continuing constructive tension between Ministers and officials, and between government and Parliament. When I first came into this area as a graduate student studying under Max Beloff at the University of Oxford, the new Labour Government were then deeply suspicious of the conservatism of the Civil Service after 13 years of Conservative Government. Again, in 1974, a Labour Government came in who were suspicious of the conservatism of the Civil Service. When the Conservatives came in from 1979, there was, as the noble Baroness, Lady Smith, remarked, a mood of “Is he one of us? Are they too close to Labour?”. When new Labour came in again in 1997, there was some suspicion that many senior civil servants were too close to the Conservatives. We have now had a coalition from 2010, and some people have natural suspicions that people are too close to the previous regime.
The development of the role of special advisers during the past 25 to 30 years has, in my opinion, helped the relationship between Ministers and officials, although, of course, there are always exceptions to every case. The transformation of government during the past three generations has also changed the challenges posed to Whitehall. We have moved from policy to management, to a very large welfare state and thus to a much greater concentration on delivery, and from local delivery to central control. I note the argument as to how far the Secretary of State for Health should continue to be personally responsible and accountable for actions within the National Health Service across the whole of England. That is an interesting question. If one adopted the principles set out in the very interesting new report by the noble Lord, Lord Heseltine, which proposes a substantial decentralisation of delivery, it would mean that Ministers would be less responsible for delivery on the ground. However, 50 years ago, delivery on the ground was the responsibility mainly of local authorities and not of central government. That is an issue which we will no doubt also continue to discuss.
The sharpness of financial constraints under which the Government are now operating, and they exist not just in the United Kingdom, pose real challenges for all departments of government. Major shifts in skills are needed. Permanent under-secretaries two or three generations ago did not think that they needed strong managerial skills. It is clear that in what we now call “the delivery departments” managerial skills are extremely important. Management of major projects, which the Civil Service reform plan is much concerned with, requires skills which are not always easily available within the Civil Service. We have just set up a major project academy and are well aware of the managerial failures during the previous Government and before in the management of major innovatory projects. Digitisation—which is just beginning to hit the Civil Service—might lead to a total revolution in the entire relationship between the state and the citizen, in which the state moves from paper to a much greater reliance on electronic exchanges, enabling us to have a smaller central state.
There is also the move to formal coalition, in which civil servants have to balance between two parties in government, although that is not entirely novel either. I cherish the senior official who said to me a year ago that this coalition was in many ways working much better than its predecessor because it was a formal coalition, meaning that we had to have argument in the open and in committees, unlike in the coalition between Brownites and the Blairites which had plotted behind closed doors.
There has been a comparable shift in the relationship between the Executive and Parliament: the rise of Select Committees, a far greater seriousness of parliamentary scrutiny and the development of committees in the Lords. As I sit in the Cabinet Office, I hear people talking about “the three key committees” to which the public service now relates; that is, the Public Accounts Committee, the Public Administration Select Committee and the Lords Constitution Committee. That relationship did not concern civil servants very much in the 1970s. I cherish a comment that I came across, on the recommendation of the author of the volume, a couple a weeks ago. It was made by a senior official during an off-the-record conference on open government in the late 1970s. The civil servant said to the journalist concerned that he had a “nightmare” of being subject not just to Parliamentary Questions but to Select Committee inquiries, investigation by the ombudsman, the Equal Opportunities Commission, the Community Relations Commission and an appeal to the European Court of Human Rights. “And now”, he said, “you’re trying to impose freedom of information on us”. He said it was a totally different landscape from that which he had to steer policy through than the terrain he had entered as a young assistant principal in the 1950s. I thank the noble Lord, Lord Hennessy, for that quotation.
We have moved a great deal, without, of course, resolving some of the central tensions within our informal constitution between executive sovereignty or parliamentary sovereignty. All Governments tend to favour executive sovereignty and all Oppositions tend to favour parliamentary sovereignty. I hope that the noble Lord, Lord Hennessy, has taken note and will use in his next volume the wonderful quotation by the noble Lord, Lord Armstrong, that the lines in the sand need to be kept under review. That is as good a definition of our unwritten constitution as one could possibly hope for. It recognises that much of our constitution works on trust. We only go into demands for detailed writing down of rules when trust has broken down.
The Northcote-Trevelyan principles have been retained, but have to be reinterpreted for changing circumstances. I am not involved in great, grand parricide; we are involved in adaptation.
Civil Service morale is not as bad as the FDA report suggests. The Civil Service annual survey provides a much more confident interpretation of the way in which the Civil Service currently sees its role than that which the FDA itself has provided. My own informal conversations with my former students across the Civil Service suggest that morale is still good, although, of course, there are concerns about the rapid changes which are under way.
There is not an atmosphere of hostility to the Civil Service within the current Government. There were one or two temporary officials when the Government came in, but the leading force of hostility has departed to California.
The transformation of Government over the past three generations has taken us a very long way. The Prime Minister in his statement to the Liaison Committee said very clearly:
“I do not want us fundamentally to change the system from ministerial accountability with a permanent civil service”.
But there is scope to consider how we can sharpen accountability and make it more transparent in some areas. The distinction which is made and much contested between accountability and responsibility is part of trying to ensure that Parliament is able to get at a much more complex government machine.
There is a quotation in the report which remarks:
“When Haldane established the constitutional convention that Ministers are accountable to Parliament and civil servants are accountable to Ministers, there were 28 civil servants in the Home Office”.
Today, when one is dealing with a much more complex department, in particular the Home Office, with a number of executive agencies and arm’s-length bodies, Ministers have to retain responsibility and accountability, but, of course, Parliament is entitled to ask some of the heads of those arm’s-length bodies as well to come in and give evidence.
The noble Lord, Lord Armstrong, suggested that Mrs Thatcher had never actually changed the order of the recommendations that were given to her. I can remember, and I will tell him afterwards, at least one occasion on which she did indeed change the order of the recommendations given to her.
I regret that on Action 11 of The Civil Service Reform Plan we have had such a battle in the press about one of the less fundamental issues in Civil Service reform. I do not want us to go back to the situation in which Richard Crossman as Secretary of State and Evelyn Sharp as his Permanent Secretary hated each other and went on nevertheless living with each other. There has to be a relationship between the Secretary of State and the Permanent Secretary which is one of trust and it depends on both of them maintaining that level of trust.
Ministerial turnover has been much reduced since 2010. Permanent Secretary turnover has indeed been higher, although I am informed that one reason for that is that a number of Permanent Secretaries were asked to stay on longer than their original term of office in order to ease the transition between one Government and another. That I believe was passed by the noble Lord, Lord O’Donnell. The Government believe that there has been far too much rapid turnover in the management of major projects. We wish to insist as far as possible that people appointed to manage major projects will spend longer in post. The degree of official churn from one job to another is a matter of concern to many of us. Civil servants move very rapidly from one job to another just at the point when skills have begun to be really well established in that particular post.
On the question of short-term contracts, I do not recognise some of what the press has been saying about this. Let me give one example of a temporary contract with which I am familiar. The Government digital service is concerned to lead on moving towards digital by default. The head of the Government digital service is on a temporary contract. It might be said that he had an unfortunate political background; he was previously developing the Guardian online, but that is not something that can be held against this Government as a political bias. The people I have met from the Government digital service are incredibly good and incredibly professional and have skills which are not easily available within the existing Civil Service. That is exactly the point that we are looking at.
On special advisers, I think that is more a matter to discuss another day. I hope noble Lords are familiar with the Commons Select Committee report on special advisers. Lines of accountability for special advisers are clearly set out in the Ministerial Code and in the code of conduct for special advisers.
On the question of appraisal, again, I compare what I see inside with what I hear from the outside. I have been asked to write appraisals, both on civil servants with whom I have worked particularly closely and on special advisers. I have not yet been asked to write an appraisal on a Minister, but I look forward to that with hope.
The noble Baroness, Lady Tyler, asked about contracting outside advice. This is not entirely novel. The Government have contracted for outside advice over a long period. From the 1980s, when I was director of studies at Chatham House, we had a particular study contracted by the then Department of Trade and Industry, on which we got into a sharp argument between the officials who were trade negotiators and the departmental economists over which of them approved and disapproved of the tenor of our report, which ended up in discussions with the departmental solicitor over whether we were allowed to publish it. Government benefits from outside advice and it is cheaper to ask academics and think tanks than to employ large numbers of outside consultants to provide it.
On the Osmotherly Rules, the Cabinet Office has begun a review of the guidance given to civil servants on providing evidence to Select Committees and it will be liaising with the House of Commons Liaison Committee as part of the review and also with the Lords Constitution Committee. It would not expect there to be any change in the current position, which is that the document is a Government publication and has no formal Parliament standing or approval.
On the question of interviewing named civil servants for evidence for Committees, the presumption again is that Ministers will agree to meet such a request but that civil servants are doing so to contribute to the process of ministerial accountability to Parliament and on behalf of their Ministers.
On the question of responsibilities to Parliament, let me also underline that Parliament itself has some responsibility in return. The noble Baroness, Lady Donaghy, and the noble Lord, Lord Rodgers, talked about the bullying of civil servants by parliamentary committees. That is something which those committees have to take on board very fully. The case of Dr David Kelly is one from which we have all learnt a number of bitter lessons.
The noble Baroness, Lady Smith of Basildon, asked about Ministers answering to Select Committees and I hope I have given her reassurance on that. The Ministers will continue to answer to Select Committees and to be responsible to them. They will also answer for arm’s-length bodies, although others will be allowed to answer as well.
I noted the comments she made about the transparency of the structure of the Civil Service and will take back concerns about the transparency of the website. I do not have an answer on the number of secondments at present but will write to her on that.
Finally, I say to the noble Lord, Lord Hennessy, that rumours of an amendment to the Constitutional Reform and Governance Act 2010 are much exaggerated and that no such rumour has reached my ears. On Action 11, I do not detect the whiff of politicisation that a number of noble Lords have suggested is there. I am reassured to hear that the informal arrangements which have operated across several previous Administrations are not too dissimilar from where we are now and reiterate that this coalition Government retain a high level of confidence in our Civil Service. We are committed to the future of a politically impartial and independent Civil Service and intend to maintain the principles of Northcote-Trevelyan, although necessarily and unavoidably adapted to the present day. I still have confidence in William E Gladstone and the legacy which he left us 160 years ago.
Baroness Jay of Paddington
My Lords, I am grateful to the Minister for his comprehensive and thoughtful reply to the debate and for giving us a somewhat reassuring update on both the atmosphere in Whitehall and the state of the Government’s Civil Service reform plan. I am also very grateful for the erudition and experience demonstrated by every speaker who has taken part in the debate this afternoon. We have heard a wide range of views from relevant, authoritative perspectives and I am pleased that those have, on the whole, generally welcomed the Constitution Committee report and, indeed, shared some of the concerns which we expressed in that report.
Among a very wide variety of fascinating historical quotations that we heard all around the House this afternoon, the noble Lord, Lord Wright of Richmond, very kindly quoted the important speech of my father Lord Callaghan. As a dutiful daughter, I am obviously duty-bound to agree with every word of that speech. However, very seriously, I urge the Government to reflect on the quotation highlighted by the noble Lord, Lord Wright, and on the opinions of a contemporary kind which have been expressed this afternoon. I think the House is agreed that the government of this country will lose very much more than it gains if the fundamental principles underlying our Civil Service are challenged, either today or in the future.