Permanent Secretaries: Appointment and Removal (Constitution Committee Report)
(7 months, 2 weeks ago)
Grand CommitteeRead Hansard Text Read Debate Ministerial Extracts
Baroness Drake
To move that this House takes note of the Report from the Constitution Committee Permanent Secretaries: their appointment and removal (17th Report, Session 2022-23, HL Paper 258).
Baroness Drake (Lab)
My Lords, between 2013 and 2020, the number of Permanent Secretaries leaving averaged 5.7 a year. In 2020, 12 Permanent Secretaries or equivalents left their posts, including the Cabinet Secretary. In September 2022, the Treasury Permanent Secretary, Sir Tom Scholar, left his post on the day the right honourable Elizabeth Truss MP became Prime Minister. This was widely reported as a sacking, in order to move economic policy away from “Treasury orthodoxy”. Simon Case confirmed that there was no question of underperformance by Sir Tom Scholar. On the same day, Sir Stephen Lovegrove was moved from the role of National Security Adviser, a move that the noble Lord, Lord Sedwill, described as being “without merit”.
Since the Constitution Committee’s 2012 report, The Accountability of Civil Servants, the relationship between Ministers and civil servants had become more exposed and controversial. Recent departures raised questions about the nature of ministerial involvement in appointments and departures, and the possible desire to appoint politically sympathetic candidates. The committee decided to inquire into safeguarding the constitutional balance required on the appointment and removal of Permanent Secretaries.
The Civil Service Code sets out the role of the Civil Service as
“an integral and key part of the government of the UK”
that
“supports the government of the day in developing and implementing its policies”,
carrying this out with dedication to the core values of integrity, honesty, objectivity and impartiality. The code was put on a statutory basis by the Constitutional Reform and Governance Act 2010—CRaG—and those values are reflected in the Act’s minimum requirements that civil servants
“carry out their duties for the assistance of the administration as it is duly constituted for the time being, whatever its political complexion”.
The committee concluded that the impartiality and perceived impartiality of the Civil Service is a central tenet of our constitution and not seriously challenged. It recommended that any fundamental challenges must be made consciously and openly, with careful scrutiny and cross-party agreement. Under no circumstances should significant changes to the constitutional balance of the appointment and departure process for senior civil servants take place through unscrutinised evolution of practice. Can the Minister unequivocally confirm that the Government agree with those conclusions?
The CRaG Act placed the Civil Service Commission and the principles of recruitment on a statutory basis, embedding appointment on merit and after fair and open competition, and granting the Prime Minister power to manage the Civil Service. A memorandum of understanding agreed in 2010 set out the respective responsibilities of the Government and the commission, which,
“in discharging its functions, is independent of the Government and the Civil Service”.
Simon Case, the Cabinet Secretary, told us that the memorandum “requires updating”, and that a new framework was expected to be finalised in the coming months. When can we expect the new framework agreement to be published? Will it make clear that the CRaG Act allows the commission to assert greater independence, should it wish to, as the committee was advised by the Cabinet Secretary?
The recruitment principles published by the commission provide for ministerial involvement. In summary, Ministers can input into the job description, the person specification and the composition of the panel, and they can meet candidates. That provision is to operate in a manner that preserves the principle of merit and prevents engineering in favour of a preferred candidate. The first commissioner said:
“We give permission to appoint. It is not a duty to appoint”.
The committee concluded that that provision strikes an appropriate balance.
It was apparent, however, that Ministers were not sufficiently aware of the extent of their influence over appointments, or the limits on it. As noble Lord, Lord Maude, observed, Ministers already had
“a high degree of involvement in the appointment of permanent secretaries and directors general”,
but there was a case for more transparency. This echoed the concerns of the First Civil Service Commissioner.
It is incumbent upon Permanent Secretaries to brief incoming Ministers on how they can be involved in the appointment of civil servants, which should help to avoid some tensions. For very senior appointments, the Civil Service Senior Appointments Protocol applies. It provides for the selection route—an external or internal competition or a managed move—to be decided by the Senior Leadership Committee. The First Civil Service Commissioner and the Cabinet Secretary appeared to have different nuances as to who decides on the selection route. The Cabinet Secretary agreed to revise the protocol to reflect current working practices—in which, in our understanding, the Cabinet Secretary and the Prime Minister decide.
We found the Senior Leadership Committee to be an opaque body; its role was described in apparently contradictory terms. We recommended that its considerations should be as transparent as possible, providing the commission with an annual account of its activities. We found the governance concerning selection routes for very senior appointments to be convoluted and unclear. The Civil Service Senior Appointments Protocol and the Recruitment Principles should both be updated to provide the necessary clarity. The Cabinet Secretary, consulting the First Civil Service Commissioner, committed to ensure that this will be done. Will the Minister update the Committee on when we can expect to see an updated protocol? What processes have been put in place to give greater transparency to the work of the Senior Leadership Committee?
Simon Case told us that discussions had taken place through the Senior Leadership Committee, the Civil Service Commission and ACOBA—the Advisory Committee on Business Appointments—on how to make external by default recruitment work, and that proposals were imminent. We look forward to seeing the forthcoming work on the rules concerning business appointments.
The noble Lord, Lord Pickles, chair of ACOBA, wrote to the committee, welcoming our work on safeguarding the constitutional balance and advising that,
“ACOBA has long argued that”
the business appointment rules
“are not fit for purpose”.
Will the Minister update the Committee on the Government’s implementation of their proposals on reforming the business appointment rules, changes to Civil Service contracts and a ministerial deed to make the business appointment rules more enforceable?
The Recruitment Principles do not apply to the Cabinet Secretary, who is appointed by the Prime Minister on the advice of the retiring Cabinet Secretary and the First Civil Service Commissioner. The committee recommended that, given the importance of that role, including as head of the Civil Service, the appointment process should be made more open and transparent while maintaining that the Prime Minister make the final choice. The current and previous first commissioners share that view. It would also have the merit of strengthening Permanent Secretaries’ confidence in the management of the Civil Service.
Speculation about the role of special advisers in the appointment of senior civil servants has also impacted confidence. Alex Thomas from the Institute for Government captured the problem in his expression of concern at the idea that a special adviser such as Mr Cummings might purport to have recruited or dismissed officials. He said:
“We only have his tweets and evidence to go on … but I think that Dominic Cummings’s sense of, ‘I appointed so-and-so’, or ‘I dismissed so-and-so’, is deeply unhealthy. It obviously formally comes back to the Prime Minister and is done in the name of the Prime Minister. A reinforcement and underpinning of that important principle would not go amiss”.
The noble Baroness, Lady Stuart, the First Civil Service Commissioner, expressed her view that:
“The two absolute red lines … are, first, that Ministers cannot see candidates without the presence of a commissioner or representative of the commission; and, secondly, that special advisers must play no role in the … process … They cannot be in the room”.
The committee concluded that, although discussions between Ministers and special advisers are impossible to regulate, the decision with respect to appointments must be that of the Minister. Special advisers must not be formally involved or make public statements. What further measures are being taken to ensure that Ministers and special advisers understand that?
In the rare circumstances a Permanent Secretary is dismissed on performance or misconduct grounds, this is a human resources matter, which should follow the process of performance and misconduct management outlined by the Cabinet Office. Problems arise if ministerial conduct appears to undermine that due process. Confidence in the departure process requires careful scrutiny. The committee recommended that the Civil Service Commission should play a role in the dismissal or departure of senior civil servants on performance or conduct grounds by ensuring that due process is followed.
Recent removals on what appear to be political or ideological grounds might indicate insufficient procedural safeguards around departures. We recognise that a Permanent Secretary has to foster a positive relationship with the Secretary of State. However, forming a positive relationship is a two-way process. Incoming Ministers should allow Permanent Secretaries time to establish a productive relationship before seeking their removal.
The committee concluded that there is a case for formalising the departure process in situations where there is no issue of performance or misconduct. It recommended that the process should be set out in writing, requiring Ministers and the Prime Minister to explain to the Civil Service Commission—in private if necessary—their decision to remove a senior civil servant. A written record of the decision and the reasons for it should be kept. These processes would need to be sufficiently flexible to allow a Minister to replace at short notice where a working relationship has broken down.
The critical point about the departures of Sir Tom Scholar and Sir Stephen Lovegrove was the extremely short timeframe in which the decisions were enacted. It conveys that no meaningful process could have possibly been followed. Some recent high-profile removals have been conducted in the public eye and might be seen to reflect a desire on the part of Ministers to personalise appointments and assert their authority.
Some witnesses were of the view that in recent years Ministers have been more willing to make a public statement by dispensing with the services of a civil servant. Such behaviour risks senior Civil Service turnover coinciding with ministerial churn, reinforcing the perception of politicisation, damaging institutional knowledge—we probably saw this acutely in the case of Sir Tom Scholar—and weakening the governance of the country. What steps are the Government taking to mitigate the potentially chilling effects on civil servants of the perception that recent high-profile removals of Permanent Secretaries lacked merit or due process, or were driven by personalisation or political grounds?
There was also concern that high-profile removals of senior civil servants could lead to officials hedging their advice. This is particularly pertinent to Permanent Secretaries’ role as accounting officers, with a duty to
“assure Parliament and the public of high standards of probity in the management of public funds”.
They routinely scrutinise proposed government policy against the criteria of probity, propriety, value for money and feasibility. The accounting officer function is a valuable aspect of the constitution, relying on speaking truth to power. A shift towards ministerial patronage risks a chilling effect, to the detriment of the public interest.
I turn to the issue of devolved Administrations. For Permanent Secretaries and their equivalents who are accountable to the Scottish or Welsh Government but who belong to the UK Civil Service organisation, there is potential for confusion about the boundary between devolved competence and reserved matters. The most pertinent recent example was the First Minister of Scotland’s decision in March 2023 to appoint a Minister for Independence. Simon Case agreed that
“it would be ‘unusual and a bit worrying’ if civil servants in Scotland were supporting an effort to ‘break up the United Kingdom’ and provided assurances that he was examining this issue to determine whether ‘further guidance and clarification’ should be issued to civil servants ‘about what is and is not appropriate spending’”.
The committee was concerned about this point—indeed, it still is. It concluded that
“it is important that the principle of a single civil service across England, Wales and Scotland is maintained”.
It said that the Cabinet Secretary must
“manage challenges as they arise”
and provide clarity that senior
“civil servants … should work and spend public funds exclusively on matters within devolved competence”.
When will further guidance and clarification be issued to senior civil servants in Scotland and Wales? What guidance is given to Permanent Secretaries in Scotland and Wales on seeking a written direction from the relevant devolved Minister?
I conclude where I opened, with the committee’s conclusion:
“Under no circumstances should significant changes to the constitutional balance of the appointment and departure processes for civil servants take place through unscrutinised evolution of practice”.
I beg to move.
Lord Maude of Horsham (Con)
My Lords, not that many people are deeply interested in this subject—in essence, we are all in the Room—but, for some of us, this is a subject of deep concern and is hugely important. I very much welcome the Constitution Committee’s thorough, balanced and thoughtful report.
This subject is gaining more interest outside. It is interesting that today the Institute for Government has published yet another report that bears strongly on this subject. It is robust and pretty punchy and it supports a lot of concerns that many of us have felt for a little time. It was a pleasure to be invited to give evidence to the Constitution Committee; it was yet another stage in my therapy and I am grateful for that opportunity.
I want to make some general points. First, I pick up the point made by the noble Baroness, Lady Drake, about opacity—that is, the opaqueness of this process— and the lack of scrutiny over internal appointments in the Civil Service. This is a matter of deep frustration for Ministers, who often see appointments being made for posts that are very important for the work that they are charged with delivering yet they have little visibility, let alone influence, on how the appointment is made. When I was doing my review, which I found a fascinating process, I discovered, buried deep in the Civil Service Management Code, these words:
“Ministers … will have a legitimate interest in a small number of posts”.
I found that extraordinary. As a Minister, I felt that I had a legitimate interest in every single post in the department for which I was responsible. I might want to exercise that interest and influence over only a relatively small number, but the idea that Ministers have a legitimate interest in only a small number is quite offensive. That needs to be revised.
There is no effective scrutiny from outside of internal appointments. That is needed. A body that has already been set up is capable of being developed into such a body: the Civil Service Commission, whose role can be expanded by agreement with the Prime Minister and the Civil Service Commissioner. At the moment, it is not set up to do that. As the report makes clear, its independence is somewhat truncated because all its staff are themselves civil servants.
I pay huge tribute to what the noble Baroness, Lady Stuart, has done as the First Civil Service Commissioner. It is interesting that she is the first former Minister to sit as a Civil Service Commissioner, yet that ministerial perspective is important when you are looking at the appointment of very senior civil servants. In my recommendation, there should always be two former Ministers, one from each of the major parties, on the Civil Service Commission—partly to ensure that there is no politicisation, in the sense of people who would not be acceptable to an incoming Government of a different colour being appointed to key posts, but also to bring that ministerial perspective to judgments. Reference has been made to the strange and uncertain role of the Senior Leadership Committee, which needs to be brought into the daylight.
Then there is this question of merit. I have no problem with appointments being made on merit. Why would any Minister want a key official who is charged with delivering their agenda not to be of high merit? But who is to be the judge of merit? There is no objective test for it; these are human judgments being made by human beings about other human beings. There is absolutely no reason why Ministers should not be able to be part of judging the merit of particular appointments, as they already are for Permanent Secretaries and directors-general, and to be given a choice of appointable candidates of sufficient merit for roles that they consider critical for the discharge of their responsibilities. If this were to happen, it would likely reduce the amount of blame that tends to get attached; if Ministers have more involvement in the appointment of civil servants, they will have less justification for criticising them when things go wrong.
One reason why things sometimes go wrong is that civil servants in very senior roles, including Permanent Secretaries in charge of big delivery departments— the IfG’s report today makes this clear—are predominantly drawn from the policy side of the Civil Service and are, frankly, woefully underprepared for taking on these huge responsibilities. My hopeful attempts to introduce a much higher degree of training for these big roles ran into the sand. For reasons which no one has ever explained, what we agreed should be done—putting Permanent Secretaries and aspirant Permanent Secretaries through top leadership courses in top business schools—just did not happen.
Ministers need to be able to be more involved in more appointments and should have more visibility. I do not understand why it is said that there cannot be a role for special advisers in observing the selection process—not being involved in it or influencing it, as the law is quite clear that they must not be involved in management. Them having some ability to see what is happening, and to throw some light on these very mysterious and opaque processes, would be very valuable. Nothing in law or good practice prevents that.
The IfG report makes the point that the pay of senior civil servants has fallen. It should be higher and we should have a smaller Civil Service with better pay, particularly for senior officials and Ministers—I can say this because my ministerial career is now, happily, well behind me. It is not appropriate that Ministers, who carry all the responsibility and accountability for what is done by their department, are served by officials who in many cases are paid more than them. It is very difficult, but it should be dealt with. Ministerial pay has fallen far further behind than civil servants’ pay.
There have always been Permanent Secretaries being removed. Fixed terms have not particularly increased this, as they can be extended—and generally should be—for less than the five years. When civil servants leave because there has been a failure in the relationship, we should be unequivocal and unembarrassed about paying up. When there is a failure, it is often not a personal failure of the individual—maybe it was the wrong appointment or, as I have said, they were insufficiently prepared. We should take responsibility for that and ensure that they are properly paid. The idea that you cannot reward failure is pandering to media concerns. We should be much more grown-up about this and accept that sometimes these things happen. There should be proper process. It should be unusual, but when it happens you should pay up and accept that there is a general responsibility for it having happened.
I strongly commend the report of the Constitution Committee, which is a very worthwhile piece of work.
Lord Thomas of Gresford (LD)
My Lords, I have the privilege of serving on the Constitution Committee under the excellent and careful chairmanship of the noble Baroness, Lady Drake, and I commend her on what she has said. It is a privilege also to follow the noble Lord, Lord Maude, with his great experience, which I am afraid I do not have.
In April 2022, Sir Matthew Rycroft, the Permanent Secretary at the Home Office, wrote a letter to the then Home Secretary requesting a ministerial direction in relation to the Government’s Rwanda policy. He said that although he was satisfied that it was regular, proper and feasible for the policy to proceed, he could not quantify its effectiveness as a deterrent to the small boats phenomenon with sufficient certainty to provide him with the necessary level of assurance over value for money. As we know, the ministerial direction was given and the policy proceeded. The responsibility for ensuing expenditure rests firmly with the Government and cannot be blamed on civil servants. I always take comfort from my Welsh family motto, which the noble Baroness, Lady Finn, will appreciate, “Ar bwy mae’r bae?”—“Who can we blame?”
That episode was an example of a Permanent Secretary doing his job. His message was no doubt unwelcome to his political mistress in a very sensitive area of government policy, but Sir Matthew is still in his job. By contrast, Sir Tom Scholar was removed from his position as Permanent Secretary in the Treasury in September 2022 by Liz Truss and Kwasi Kwarteng, not for anything that he had done but because he represented “Treasury orthodoxy”. That was a highly political decision. I do not think we realised at the time that there was a “deep state” bent on ruining the ministry of Liz Truss in her short-lived tenancy of No. 10.
That was not the only threat to stability. We had observed under Boris Johnson the rule of the spad, Dominic Cummings, who claimed that he had appointed personally the Cabinet Secretary. As for another senior civil servant in the Cabinet Office, he wrote in an email:
“I will personally handcuff her and escort her from the building. I don’t care how it is done, but that woman must be out of our hair”—
I shall leave out the embellishments that he gave to that message.
It is clear that, in recent times, successive Governments have pushed the fuzzy boundaries of our unwritten constitution. The ballot box does not convey unbridled power to election winners. The sovereignty of Parliament, important as it is as a principle, is subject, as Winston Churchill wrote in his A History of the English-Speaking Peoples, to the rule of law. That includes international law. The judiciary is independent. Another principle of our constitution over the years is an apolitical Civil Service which does not
depend on political patronage. We can see the origins of this in Samuel Pepys’s time, the 17th century. It was written of him by a contemporary that he introduced
“The principal rules and establishments in present use”
in the offices of the Admiralty, and that he demanded
“Sobriety, diligence, capacity, loyalty, and subjection to command”.
Where any of those virtues were found wanting,
“no interest or authority was capable of moving him in favour of the highest pretender”.
The Northcote-Trevelyan report of 1854 enshrines, as our colleague, the noble Lord, Lord Hennessy, put it in 1999 in his Founder’s Day address at Hawarden Castle, the home of Mr Gladstone, the
“core values of integrity, propriety, objectivity and appointment on merit, able to transfer … loyalty and expertise from one elected government to the next”.
Those are the core principles.
Recent shenanigans seem to be a threat and an affront to these principles. The essential challenge with which the Constitution Committee sought to grapple was whether in the modern era Ministers should be able to choose their own teams of civil servants, those with whom they felt comfortable. I detected some of that wish in the speech of the noble Lord, Lord Maude. In America, the spoils system of patronage in relation to the civil service was abolished in the 19th century, but since Secretaries of State are appointed directly by the President and do not have to be Members of Congress, their immediate executive staff are deemed to be outside the American civil service, and they of course change with the Administration.
The Constitution Committee in this report reaffirmed that the current recruitment principles strike the correct balance in maintaining an objective, merit-based approach to recruitment, particularly for Permanent Secretaries. Any move towards greater ministerial involvement would risk upsetting that balance. We held that it is unhelpful for Ministers to seek to personalise appointments and assert their authority because, among other things, it risks Civil Service turnover coinciding with ministerial churn. It creates a perception of politicisation of appointments and damages institutional knowledge. Political alignment should never be a factor. We also called for departure processes to be formalised to guard against the improper removal of civil servants. In particular, we urged that Ministers should be required to explain any decision to replace a senior civil servant to the Civil Service Commission, and called for more transparency about the role of the Senior Leadership Committee, which we termed an opaque body—a word that the noble Lord, Lord Maude, has taken up.
In their response, the Government said that they shared the committee’s belief that the impartiality and perceived impartiality of the Civil Service is a central tenet of our constitution. The Government also accepted that broad political alignment should not be a relevant consideration in the appointment of civil servants. The one area which was disappointing in their response was the Government’s reaction to our desire to ensure due process when senior civil servants are dismissed on conduct or performance criteria. We called for the intervention of the Civil Service Commissioner, but the Government’s view was that formal human resources processes already exist around performance management, conduct and discipline issues.
I am hopeful that the rot has been stopped. The continuance of Sir Matthew Rycroft in office, despite his warnings over the Rwanda policy, is encouraging. Ahead of us, we have the prospect of a change of Government, and we shall follow with interest how well the loyalty and expertise of the Civil Service, and particularly its Permanent Secretaries, translate into a new environment.
Baroness Stuart of Edgbaston (CB)
My Lords, I am very grateful for this thoughtful report. I am grateful to the committee for having asked the Civil Service Commission to give evidence to it. As the First Civil Service Commissioner, I lead the statutory independent commission that provides assurance that appointment into the Civil Service is on merit, after fair and open competition. I take on board the comments from the noble Lord, Lord Maude, about how we define merit. The commission regulates recruitment into the Civil Service and hears appeals from civil servants under the Civil Service Code. We play a unique role in the recruitment landscape and bring external expertise, acting as one of the checks and balances to the Government. We also provide confidence that recruitment is driven by candidates’ ability to do the job, wherever they may come from.
In my role as the First Civil Service Commissioner, I chair the recruitment panels for the appointment of Permanent Secretaries. The unique arrangements for this are set out in our Recruitment Principles. Throughout the appointments process, we attach great importance to Ministers being involved at the outset and through the various stages. Ministers must give their views on the job specification and person specification, and agree on the panel. They can meet all the shortlisted candidates, with the commission present, to give their views. However, the decision on which candidates meet the criteria rests with the independent panel, and the final choice of whom to appoint as a Permanent Secretary is for the Prime Minister. It is worth noting that, for other competitions for lower senior Civil Service grades, the panel not only arrives at a conclusion as to who is appointable but produces a merit order of those appointable candidates.
We agree with the committee that this balance of involvement is about right but that more must be done to make sure Ministers are aware of the ways in which they can be appropriately and rightly involved in these appointments. These are the most important public service leadership roles in the country. As a result of appearing before the committee and the concerns raised, the Deputy Prime Minister and I wrote to all Permanent Secretaries and ministerial offices in April this year outlining the existing process, and as a reminder that there is clarity on where Ministers could and should be appropriately involved.
We are proud of our permanent Civil Service in this country, which exists to serve the Government of the day. I like to think that what we have is an impartial Civil Service. I have my doubts whether such a thing as it being non-political—with a small “p”—is possible, but it is impartiality and a commitment to the Government of the day which are important.
An effective Civil Service must continue to develop its own people, as well as recruit new talent from outside to bring in new skills. The commission plays a significant part here. We regulate external appointments into the Civil Service and, by virtue of the senior appointments protocol, recruitment at director-general level, which is the level below Permanent Secretary. I welcome the Minister’s commitment to publication of a revised Civil Servants Senior Appointments Protocol in the near future. The independence of the commission is a critical part of how the most senior roles in the Civil Service are recruited on merit, following that open and fair competition.
I also sit on the Senior Leadership Committee in my role as the First Civil Service Commissioner. I agree with the committee that it is important to codify and clarify the remit of the SLC and the first commissioner’s role on it. I am pleased that this work is under way, and look forward to its publication shortly. I also believe that the SLC membership should always include the Government lead NED as a further source of external cross-government expertise.
We believe that there are major benefits to external recruitment, testing the market for the skills the Civil Service needs and refreshing the talent available to serve the country. The commission itself has seen the benefits of recruiting externally by default, but some departments would benefit from embracing “external by default” a bit more enthusiastically.
I share with the Committee that the commission will be carrying out a thematic review into the rigour with which the external by default policy is applied, and we are doing this with the agreement of the Minister for the Cabinet Office. This will be a root-and-branch review, intended to look at the premise of external by default, how it is currently delivered and where there are still opportunities to be realised by recruiting people from outside into the Civil Service. We will be working closely with the Government People Group, which is responsible for Civil Service HR. I believe this is an excellent way to use the unique regulatory perspective of the commission and our 14 commissioners, who come from a wide range of professional backgrounds, including the private sector and the wider public sector.
The commission is currently responsible for entry into the Civil Service. Under the existing arrangements, we play no part in exit. I am pleased that our secretariat also serves the Advisory Committee on Business Appointments, which is chaired by the noble Lord, Lord Pickles. The commission welcomes the work under way by the Government and the noble Lord on reforms to the business appointment rules. If there are implications for the commission’s own regulatory work, we will respond to those.
The commission is the appellate body for complaints from civil servants under the Civil Service Code. The code itself is owned by the Cabinet Office. We take this role seriously. Now that the full results of the people survey are available to us, we have written to all Permanent Secretaries in Scotland, Wales and England in order to engage in outreach with their departments over the coming year. We will ask each department for a list of the department’s nominated officers, details on the number of code complaints that the department has received, and the number of code complaints that have been upheld by the department. We are keen to ensure that civil servants understand the provisions of the code and are aware of the ways in which they can make a complaint, and that adequate processes are in place within departments.
I wish to take this moment to place on record my thanks to the hard-working commissioners and staff of the commission, who have in the past year regulated more than 90,000 appointments into the Civil Service and chaired 229 senior Civil Service competitions. I thank the committee for having been the spark for two useful commission initiatives and for giving us the impetus to do them in a timely manner.
Lord Young of Cookham (Con)
My Lords, it is a pleasure to follow the noble Baroness, Lady Stuart, who brings a unique perspective on this subject. I am grateful to the committee for its report and to the noble Baroness, Lady Drake, for her thoughtful introduction to the debate.
Despite what my noble friend Lord Maude said, I hesitated before putting my name down for this debate—because I was not on the committee, I am not a former Cabinet Secretary, I am not the First Civil Service Commissioner, I am not a Front-Bench spokesman, I have never been involved with Civil Service reform and I am not a professor of government. However, during a career with a number of discontinuities, I served with 12 different Permanent Secretaries, all of whom were of the highest calibre. In a sense, that should not be a matter of good fortune, because you do not become a Permanent Secretary unless on the way up you have had good working relationships with a range of Ministers and other colleagues. I had much more trouble with spads than with Permanent Secretaries.
What concerns me is the trend over the last 30 years increasingly to politicise the Civil Service and to compromise its independence. Both parties—indeed, all three of the main parties—have been complicit in this. That should not be confused with attempts to modernise the Civil Service or strengthen it by bringing in people from outside to reinforce subjects where it may lack the necessary skills. I hope that, at some point, we might debate my noble friend Lord Maude’s excellent Independent Review of Governance and Accountability in the Civil Service, which aims to remove some of the tensions in the system that we have been talking about and to improve the outcomes.
What prompted this inquiry was the dismissal of Sir Tom Scholar from the Treasury, but this was the culmination of a trend that has been going on for some time under both Governments. I go back to 1997, when for the first time Orders in Council gave political aides powers to direct civil servants—powers normally reserved to Ministers. More information on what happened in the Blair Government can be found in Ian Beesley’s book, The Official History of the Cabinet Secretaries. For example, he tells us that Wilson—then Sir Richard, now the noble Lord, Lord Wilson—wrote to Blair:
“Do not try to use the policy unit to run the government; do not attempt to divorce permanent secretaries from their Cabinet ministers; do not be tempted by Napoleonic models, shifting resources ... from the Cabinet Office to No 10”.
Robert Armstrong was quoted in the Spectator in February 2002 as having said this:
“I am worried about the politicisation of the civil service. It is a particular problem in Downing Street”.
Dominic Lawson, perhaps a more partial commentator, wrote in February 2006:
“So the heads of our Civil Service departments do nothing to restrain Mr Blair and his colleagues from one hare-brained ‘eye-catching initiative’ after another. They have become merely a conveyor belt for political whims, having ceased to be public servants in the truest sense”.
We also saw the use of the government information service as a political weapon, a practice followed by the coalition and Conservative Governments, who gave sympathetic newspapers exclusive previews, frequently sidelining the clear guidance in the Cabinet Manual that:
“When Parliament is in session the most important announcements of government policy should, in the first instance, be made to Parliament”.
More recently, this Government have not had an unblemished record, with the controversial departures of Jonathan Slater at the DfE, Philip Rutnam at the Home Office, and the noble Lord, Lord Sedwill. As the noble Baroness, Lady Drake, mentioned, the arrival of Dominic Cummings poisoned this particular well; he made it clear that he had no time for Permanent Secretaries, and civil servants will remember his “hard rain” speech.
However, to my mind, the summary dismissal of Tom Scholar was an infringement of a totally different order: a direct challenge to the independence of the Civil Service and to the principle that Ministers cannot sack civil servants—we are not their employer. No specific reason was ever given for his departure. As the noble Baroness, Lady Drake, said, we know from the Cabinet Secretary that there was no question of poor performance, and we know from the noble Lord, Lord Macpherson, that it was not about political views. He said:
“I have worked with Tom for about 25 years, and to this day I have no idea what his political views are”.
The statement by the then Chancellor sheds no light at all. His bland statement ended,
“he leaves the Civil Service with the highest distinction”.
Tom Scholar himself said:
“The Chancellor decided it was time for new leadership at the Treasury, and so I will be leaving with immediate effect”.
But the new leadership at the Treasury was Kwasi Kwarteng. If he wanted to change the direction of economic policy, that is the one thing at which the Civil Service excels—and on which it may shortly be tested again if it has to alter policy to reflect a new Administration.
When questions were asked as to what had happened, the then Exchequer Secretary said in an Answer to a PQ:
“It is long-standing Government policy not to comment on individual personnel matters”.
There may have been good reasons why the committee did not get oral or written evidence from either Tom Scholar or indeed the then Chancellor, so we may never know what happened.
The Times came to its own conclusion, publishing on 14 September 2022 a letter that read:
“The sad fact is that in sacking Sir Tom Scholar, one of the ablest civil servants of his generation, the prime minister and chancellor have sent a clear message to the civil service that they are not interested in impartial advice and intend to surround themselves with ‘yes’ men and women. That is a sure route to bad decision-making and weak government. It is also another small step on the road to politicising the civil service”.
The Financial Times went a bit further. It said:
“Truss had pledged war against so-called Treasury orthodoxy and ‘abacus economics’, of which Scholar was a totem after six years at the head of the department”.
Against that background, I wonder whether the conclusions of the committee were robust enough. In paragraph 131 it concluded:
“Under no circumstances should civil servants be dismissed on purely political or ideological grounds”.
But that is exactly what happened. On page 5 it concluded:
“We do not consider the small number of recent high-profile removals of senior civil servants on what appeared to be political or ideological grounds to amount to a trend”.
I hope that it is right, but we need to build in better safeguards than we have at the moment, as the committee recognised.
In conclusion, I am always interested in what my noble friend the Minister has to say, but at this point in the electoral cycle, I will also pay particular attention to what the Opposition spokesperson says.
Baroness Finn (Con)
My Lords, I welcome this debate on the appointment and dismissal of Permanent Secretaries and declare my interest as a member of the Constitution Committee and a former special adviser. I thank the clerks, my fellow committee members and especially the chair, the noble Baroness, Lady Drake, for their careful navigation of this sensitive terrain—and for putting up with me. I also thank the witnesses who appeared before us and helped illuminate such a nuanced subject.
The appointment and dismissal of Permanent Secretaries are two of the most important powers exercised by a Prime Minister. Although it was considered heretical 15 years ago, today a Prime Minister exercising choice in the selection of Permanent Secretaries is widely accepted and formally codified in the Civil Service recruitment principles. I pay tribute to my noble friend Lord Maude for his tenacity in ensuring that this happened.
The power to dismiss, however, has not enjoyed the same degree of acceptance, for entirely understandable reasons. We can, no doubt, all recall instances where the dismissal of a Permanent Secretary may or may not have been justified. Some have been retired early, having openly revealed their private opposition to government policy, while others have been summarily dismissed on the basis of ministerial aversion to their supposedly orthodox views. In each case, the dismissal has been heavily debated. It is to be regretted that the United Kingdom does not, as in other jurisdictions, have any clear policies setting out the role of Ministers in the potential dismissal of Permanent Secretaries.
The Civil Service has since 2010 been underpinned by the Constitutional Reform and Governance Act, or CRaG. It makes clear that all competitions for appointments to the Civil Service should be on the basis of merit, following a fair and open competition, and regulated by the independent Civil Service Commission. The Act, however, has its deficiencies. Although it formally provides for an independent commission, the commission is entirely dependent for its staffing, premises and budget on the Cabinet Office and its chief executive is line managed by the propriety and ethics directorate within the Cabinet Office, which in turn reports directly to the Cabinet Secretary.
The Act is also almost unique in the developed world in placing no direct controls on the promotion of existing civil servants through purely internal mechanisms. An internal exercise all but guarantees the selection of an existing civil servant and deprives, in most circumstances, the Civil Service Commission of its oversight function. I acknowledge the work of the Secretary of State at Defra, who, in his previous role as Chancellor of the Duchy of Lancaster, put in place a mechanism to ensure that all Civil Service vacancies had to be advertised externally by default, unless otherwise agreed by Ministers. It is telling that, according to the IfG report published today, only 22% of Permanent Secretaries have had experience in a leadership role outside government for more than three years.
To avoid the risk of the very highest positions being gifted through patronage, additional controls have been placed on the internal promotion of candidates to director-general and Permanent Secretary roles. This has been done through the statutory document known as the Civil Service Senior Appointments Protocol. It states that decisions on whether these posts will be advertised externally are reserved to a body called the Senior Leadership Committee and that all such vacancies shall be overseen by the Civil Service Commission, regardless of how they are advertised.
As we have heard, our committee found that the composition, role and influence of the Senior Leadership Committee were highly opaque matters. While the SLC includes the First Civil Service Commissioner and, I believe, the government lead non-executive director, its membership is still dominated by Permanent Secretaries. A more balanced composition, with clear ministerial accountability, would surely help ease some of the anxieties that exist around this committee.
Despite the protocol being a statutory policy issued under CRaG, we learned in evidence from the Cabinet Secretary that decisions on whether to advertise Permanent Secretary vacancies externally are apparently taken not by the Senior Leadership Committee but, in reality, bilaterally by the Cabinet Secretary and the First Civil Service Commissioner. That places us in the slightly anomalous position where law and administrative practice are at variance. The commitment from both the Cabinet Secretary and the First Civil Service Commissioner to update the senior appointments protocol is therefore welcome, although it is important to note that the power to vary that protocol is reserved by Section 17 of the Act to the Prime Minister, not the Cabinet Secretary.
I will end with a word about the role of special advisers in the appointments process. The Constitutional Reform and Governance Act expressly forbids special advisers authorising the expenditure of public money and exercising any management power in relation to the Civil Service. It does not, however, forbid their advising Ministers on either of those matters, which is an important distinction that, I think, our report fairly reflects.
There are many more points that I would like to make, but time does not allow. I therefore echo the noble Baroness, Lady Drake, in asking my noble friend the Minister when we can expect the updated protocol and the published terms and membership of the Senior Leadership Committee on GOV.UK.
Lord Butler of Brockwell (CB)
My Lords, today’s debate has been given a new topicality by two reports. One was the report of the Institute for Government, which has been referred to, and the other, which has not been referred to, is a report in the Times of a speech by Mr John Glen, a Cabinet Office Minister, in which he is reported as saying that the Government are to introduce new rules for managers to deal with underperforming staff. It is now 25 years since I retired from the Civil Service, so I am not competent to give an informed commentary on the performance of today’s service. I want to concentrate my remarks on the constitutional implications of Mr Glen’s reported remarks on today’s subject of the appointment and dismissal of Permanent Secretaries.
We must start by recognising that, like the armed services and judges, the Civil Service and elected politicians are separate professions, both serving the Crown. Civil servants and Ministers should form a unity in working for the country under the leadership of Ministers, who have earned that right to lead by virtue of their election. However, the two professions are separate, and the obligations that they have differ in some respects. On the one hand, Ministers have a right to be served by people in whom they have confidence and they have a right, therefore, to have a strong voice in appointment, but the head of the Civil Service also has a responsibility to build for the future an impartial Civil Service competent to serve Governments of different colours, and my noble friend the First Civil Service Commissioner has a duty to preside over a process that reconciles these two obligations. I was pleased to see that the Constitution Committee concludes that the recruitment principles formulated by the Civil Service Commission strike a good balance in reconciling these two sets of interests.
I now turn to the removal of Permanent Secretaries. Although a Minister has a right to be served by a Permanent Secretary in whom he has confidence, he does not have the right to dismiss a Permanent Secretary. That is why Kwasi Kwarteng’s dismissal of Sir Tom Scholar was constitutionally wrong. If Mr Kwarteng and the Prime Minister wanted to remove Sir Tom Scholar, it was a matter for the head of the Civil Service. He should have handled it, not politicians. A Permanent Secretary, or indeed any official, is an employee of the Crown, not of the party in power.
It is timely to be discussing this now as we approach a general election. I remember that when senior appointments had to be made during a period leading up to an election, I, as head of the Civil Service, was authorised by the Prime Minister to sound out the leader of the Opposition, not to give him a veto but to ensure that the planned appointee would be acceptable if there was a change of Government. I never encountered any difficulty about this, and I hope that, if necessary, that is happening today.
We can take some encouragement from the fact that, under Mr Sunak’s regime, the instability among Permanent Secretaries appears to have diminished and from the fact that the Government have accepted all the main recommendations of the Constitution Committee. Like others, I warmly congratulate the committee on its report. We can also be, at this moment, further encouraged by both the leader of the Opposition and his chief of staff knowing the Civil Service from the inside. I therefore have confidence that the conclusions and recommendations of the Constitution Committee in support of an impartial and politically independent Civil Service will be respected by any new Administration. I want to see deficiencies in the performance of the Civil Service put right but, in my view, this can be done only by good and respectful leadership on the part of the Civil Service and Ministers, not by imposed regulation of the sort threatened by Mr Glen.
Lord Norton of Louth (Con)
My Lords, like others, I very much welcome this report from the Constitution Committee and the generally positive response it received from the Government. My purpose in speaking is, essentially, to add to what the committee recommends. There are three points I wish to make, picking up in part on what has been said by my noble friend Lord Maude and the noble Lord, Lord Butler of Brockwell.
My first point addresses what is implicit in the report but not dealt with in a dedicated section. It is the bit in the middle between recruitment and removal—that is, retention. The report recognises that, for the purpose of having a well-functioning department, it is necessary that highly qualified individuals are recruited on merit as Permanent Secretaries. It is necessary but not sufficient. The value is lost if there is a significant turnover in senior civil servants.
The report notes the churn in Permanent Secretaries in the period from 2019 to 2023. To refer to them as “permanent” appears a misnomer. Even before that, the length of service was not substantial. The extent of turnover is also shown in the report Who Runs Whitehall?, published today by the Institute for Government, to which reference has already been made. This turnover is not conducive to good government. Ministers are generalists, but so too are most senior civil servants. The value added by having Permanent Secretaries who know their department and have an institutional memory is lost if their tenure is not much greater, or indeed shorter, than that of Ministers. As the IfG report argues:
“Senior officials should be better incentivised to stay in post longer”.
To my mind, that entails not only the conditions of service but a culture of appreciating the work that they do. Good government relies on Ministers who can take decisions but respect the role of the senior civil servants, and civil servants who can, in the words of my noble friend, Lord Maude, in his independent review,
“give honest, questioning and challenging advice to ministers”,
ultimately accepting the outcome once a Minister has taken a view.
When I did research in the 1990s on the relationship between Ministers and civil servants, I found that senior Ministers viewed their officials in a positive light. There was a culture of mutual respect, which, as this report recognises, has in recent years been eroded. We need to bolster that culture. As is clear from the committee’s report, it is a question of attitudes, not formal relationships and processes. Too often, Ministers are critical of officials, often, it appears, because the Ministers lack confidence—in one or two cases it is the opposite, and they display overweening self-confidence—and have no ingrained understanding of the role of the senior Civil Service.
How, then, do we encourage mutual respect and trust, derived from a mature understanding of the respective roles of Ministers and Permanent Secretaries? The answer is, at least in part, to be found in my second point, which is the need, already touched on today by my noble friend Lord Maude, for Ministers, Permanent Secretaries and other senior civil servants, to be trained in key leadership skills.
As my noble friend Lord Maude said in his review:
“The organisational health of the Civil Service is overwhelmingly dependent on its people: who they are, and how they are appointed and managed”.
Permanent Secretaries need to be leaders and not just managers. The same applies to Ministers. Leadership encompasses taking people with you and ensuring that they feel part of a team, rather than employees who are told what to do. Yet, as the IfG report shows, and as has been mentioned, few senior officials have prior experience in a leadership role.
I initiated a debate in the House in 2021 making the case for training. In it, my noble friend Lady Neville-Rolfe, drawing on her experience in business, endorsed the argument, noting that training helps senior managers get the best out of their staff. She also agreed that training should be provided to those who need it and not simply to those who want it. Training is essential to ensure that we get the best out of Permanent Secretaries and that Permanent Secretaries get the best out of those who serve in their departments. The same applies to Ministers, so perhaps my noble friend can update us on progress.
Thirdly and related—a point I have pursued on a number of occasions, including in the 2021 debate—civil servants need to appreciate the significance of Parliament. The report refers to Section 3 of the Constitutional Reform and Governance Act but makes no mention of subsection (6), which requires the Minister for the Civil Service to
“have regard to the need to ensure that civil servants who advise Ministers are aware of the constitutional significance of Parliament and of the conventions governing the relationship between Parliament and … Government”.
It is crucial that Permanent Secretaries—and Ministers —do not see Parliament as either irrelevant or an unfortunate irritant. Good government needs an effective Parliament. Although the provision in subsection (6) forms part of the Civil Service Code, it is by no means clear to what extent it is applied in practice. In the context of the committee’s report, it would be valuable if those considered for appointment as Permanent Secretaries had to demonstrate not only their awareness of the provision but what they had done in their previous posts to ensure that it had been applied. I do not expect my noble friend Lady Neville-Rolfe to be able to address the point in detail this afternoon, but it would be good to hear from her in writing what progress has been made in ensuring the clear and measurable application of the provision.
We need to ensure that Ministers and Permanent Secretaries know how to work together to lead cohesive and goal-oriented departments. This report is an important contribution to ensuring that we get the most out of those who head government departments. Its success will be demonstrated if the recommendation at paragraph 131 is implemented but never required.
Lord Wallace of Saltaire (LD)
My Lords, this small gathering of experts interested in this subject brings back for me happy memories of standing in the office of Mr Maude, as he then was, with his special adviser, as she then was, arguing about the future of the Civil Service and waiting for Permanent Secretaries to come in and argue with us, in what, the current Prime Minister tells us, was the chaotic situation of the coalition Government—which has been succeeded since then by the sound, single-party Government that we now have.
Of course, we are talking about the exceptional circumstances of the past five to seven years, with the astonishing turnover of Prime Ministers—two of whom, Boris Johnson and Liz Truss, behaved in an extraordinary way—and part of our question is how far we can regard that, in retrospect, as an exceptional circumstance that will not recur or as something which we have to respond to and build future defences against. The noble Lord, Lord Young, reminded us that sofa government under the Blair Administration had some characteristics that were not dissimilar; some of us go back as far as Margaret Thatcher’s constant questioning—“Is he one of us?”—in relation to civil servants as well as others. So this is not entirely new and I am not sure that we want to go all the way back to the period when Crossman, as some will remember, had a Permanent Secretary with whom he absolutely could not get on but with whom he was stuck and who was a powerful personality herself. We have to adapt to change to some circumstances.
Clearly, the situation under Liz Truss and Boris Johnson was exceptional. The war on experts, or “the blob”—Michael Gove clearly regarded most of the Civil Service, as well as the BBC, universities, journalism and various other things as part of the dreadful blob to be killed—biased the debate about the role of the Civil Service.
I note that, in paragraph 124 of the report, the noble Lord, Lord Macpherson, is quoted as saying that, under the Truss Government,
“you had to tell them what they wanted to hear”.
I recall a civil servant telling me that, when Liz Truss was the head of his department, you were told that you were supposed to give her only the good news when you went into a ministerial meeting. They said that senior civil servants who might be responsible for what was being discussed were excluded if they provided opinions on what was being said that were too critical. Clearly, that is also exceptional.
We know that Dominic Cummings behaved as no special adviser should ever behave. I have been told that, on occasion, he would summon senior civil servants from other departments to see him, without informing their Secretary of State or their private office.
We have to hope that all of that exceptional behaviour is now in the past, but we must recognise that we face longer-term problems of constant short-term policy-making, failure to sustain major projects over a long period, and failures of strategic planning or foresight. We also have to recognise that those come, perhaps, from deeper and shared weaknesses among the Civil Service, Ministers and Parliament. In that case, we would have a much broader agenda for constitutional reform, which we cannot debate now.
We have to recognise that the rate of ministerial churn has been as much of a problem as that of Civil Service churn. I recall another civil servant telling me that, in three years in one post, she had four Secretaries of State and three Ministers of State. That makes constant changes of policy rather difficult to cope with. The relationship between Ministers and the Civil Service has to be based on respect for evidence and on the constructive tension that follows from those who talk about the evidence and the problems of implementation and those who talk about their preferences and their desirability to change the way in which things are done.
This raises questions about the role of Ministers—again, they are perhaps questions for another Constitution Committee inquiry—and whether Ministers also need rather more training than they receive, and whether changes of government ought to take place not over three days but over at least two weeks, to give some chance for parliamentarians, who in many cases have no previous ministerial experience, to learn a bit about what they are taking on, how to treat the Civil Service, how to run Whitehall and so on.
I should say this about ministerial roles. I used to work at Chatham House, in the 1980s, and therefore worked closely with the Foreign Office. I recall the devotion with which senior and junior officials in the Foreign Office talked about their Secretary of State, Geoffrey Howe, and the sheer sadness that so many of them expressed when he left. Relations between Ministers and officials can be close and can be very much a matter of mutual respect. We have lost that in too many cases recently; that is as much a matter of the deterioration of our politics as of our Administration, I am afraid.
If we want to get really good Permanent Secretaries and maintain them, we have to recognise that, as the report suggests, the complexities of Permanent Secretaries’ roles make previous experience of the Civil Service highly desirable. That also suggests that, if you want a broader range of experience, career paths that go in and out of the Civil Service are highly desirable. I like the suggestion that there should be a stronger alumni network for those who have Civil Service experience and have gone out; I think that that is mentioned in the Institute for Government’s report, which a number of us have clearly already read.
We certainly need to do more training for senior officials. I used to teach the top management course—which I suspect the noble Lord, Lord Maude, abolished, although I am not sure about that. I recall meeting civil servants who had been sent to INSEAD, and I think the idea of sending civil servants off to courses such as that is highly desirable. Those are all things which we hope a new Government will wish to take on board.
We have to take salaries on board as well, and we also need to recognise the sheer complexities of being a civil servant. Sir John Kingman is quoted in the Institute for Government’s report as saying that what you need is
“sufficiently dispassionate—and resigned”
attitudes
“to accept and adapt to the changing whims of successive ministers”.
That is a bit hard, but I understand what he means.
I recall a good friend in the Foreign Office who resigned and became headmaster of a public school. I asked him why on earth he had done so, and he said, “Well, I found when I was going to the cinema, William, I was crying too often. I was just having to suppress too many of my own preferences and emotions in order to sustain the neutrality of a civil servant”.
The final thing I want to refer to is the Institute for Government’s suggestion that fostering
“a national culture of contributing to government”
is a way to rebuild respect for the Civil Service and the morale of the Civil Service. If we want to maintain a competent Civil Service, with people coming through to the top who are of the top quality, we have got to shift away from the position in which the mainstream media, and too often politicians on all sides, blame the Civil Service. We should ask for that to stop and for the Civil Service to be valued properly. That is perhaps as hopeless as asking for the second Chamber, the House of Lords in its current composition, to be valued properly as well.
Baroness Chapman of Darlington (Lab)
My Lords, it is a pleasure to take part in this debate, and particularly to follow the noble Lord, Lord Wallace. He is someone who I am learning is always worth listening to. I may never have been a Minister or a civil servant, but I have been an Opposition spokesperson long enough to know not to respond to his question about whether we ought to move to a two-week transition for a change of Government.
We agree completely with the idea of an impartial, permanent, competent, cohesive and goal-oriented Civil Service; that is what we in His Majesty’s Opposition hope to sustain, and perhaps inherit one day. I start by congratulating the committee, and in particular my noble friend Lady Drake, on producing this report. It is pleasing to see that the Government agree broadly with many of the recommendations that it makes. The question of who appoints and removes Permanent Secretaries is a serious issue that, if we are not careful, as my noble friend Lady Drake warns us, becomes slowly and unthinkingly altered amid a rapidly evolving political process.
The impartiality and perceived impartiality of civil servants is to be respected and protected. The political desire that we have seen on occasions to tear up the status quo, rail against the Treasury orthodoxy, or indeed undermine other institutions, be that the BBC, the judiciary or the Civil Service itself, has become—extraordinarily, I find—a prominent, perhaps recent and perhaps now diminishing, strand of Conservative thinking; or rather, to quote Tom Scholar’s predecessor, who was quoting Gordon Brown, evidence that they are “not thinking”.
Liz Truss and Kwasi Kwarteng certainly were not thinking properly when they announced their plans on taxation and sacked the most senior Treasury official, in anticipation, we expect, of his disagreement with their plans. We agree with the noble Lord, Lord Butler, that Tom Scholar should have been treated as a servant of the Crown and not of a political party.
The observations from the noble Baroness, Lady Stuart, and the noble Lord, Lord Maude, that Ministers have far greater influence over appointments than they often realise is useful. We support the recommendations around clarifying this and would like the Minister to please tell us when this will be done.
My noble friend Lady Drake put it very well when she told us that the relationship between Ministers and civil servants has become more exposed and controversial in recent years. She reminded us—I accept that this is an extreme circumstance and am mindful of what the noble Lord, Lord Young, said about the long history of change in relationships between civil servants and Ministers—that Dominic Cummings claimed to have appointed and sacked senior staff members. I expect we would all agree that Mr Cummings is not someone to undersell his influence on any event that he is involved in, but, accurate or not, his claims reveal at least a desire to be seen to have this level of control.
The warnings of the noble Lord, Lord Young, about politicisation are instructive. All noble Lords who have spoken agreed that guarding against politicisation should not paralyse or get in the way of progress or modernisation. The fact that Liz Truss saw this and decided to raise Dominic Cummings by sacking Tom Scholar, with such disastrous consequences, makes us pause and question whether we have seen a change that has happened without thought, debate or active decision-making.
The remarks of the noble Baroness, Lady Stuart, about the SLC are welcome, as are her observations about external recruitment. We thank her and her fellow commissioners for their work on this. A politically impartial Civil Service is part of our system of government, and any change to it needs to be thoroughly considered and entered into knowingly, rather than gradually evolving, especially when the motivation is to make a big political splash rather than appoint the most capable individual for a job.
We agree with the comments from the noble Baroness, Lady Stuart, and the committee that spads should not be involved, and we would be interested to hear the Minister’s comments on that. Indeed, the committee rejected the idea that there needs to be broad political alignment between Ministers and civil servants. It is the job of the Civil Service to provide objective, well-informed advice to Ministers, and it is for Ministers to decide and for civil servants to implement that decision.
Clearly, life is never that simple. I enjoyed the false modesty of the noble Lord, Lord Young, when he said that he was the least-qualified person present today to make a contribution; I am proving him wrong in that, because I have never held any of the positions that he has. We understand that there are ambiguities, grey areas, judgment calls and compromises at every corner—that is the reality of government—and therefore that a good working relationship between politicians and their civil servants becomes even more essential. Where this breaks down, it is only right that there is a process for resolving the issue and, ultimately, making sure that Ministers and their top civil servants have a relationship that functions.
Sometimes, that might mean departures, but it should not be a one-day or swift summary decision. A formalised, meaningful process for this is needed, to guard against the risk of civil servants “hedging” their advice to Ministers, as the report put it. Will the Minister please comment on that proposal? I am sure she will say that she has enjoyed and received excellent advice in various government departments over the years, and that she would not want to see that jeopardised and government weakened as a consequence.
The comments of the noble Lord, Lord Maude, about improvements to training are well made. We are interested in hearing the Minister’s view on that and what progress is being made. I echo those who said that the training needs to be for not just civil servants but Ministers too. I am always keen to hear her views on Ministers’ pay.
We on these Benches are mindful of the immense importance of building trust between Ministers and civil servants from the start. We regret that there are some recent examples where Ministers appear to have gone out of their way to do the opposite.
I finish by saying that this has been one of the most well-informed and interesting discussions that I have taken part in since coming to this House, and it has done great credit to your Lordships’ House.
The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)
My Lords, this is essentially a debate about Permanent Secretaries, and especially their appointments and what happens when they leave office. I am well acquainted with the species, having been married to a former Permanent Secretary for over 40 years. Noble Lords might agree that our four sons are evidence of a close and indeed intimate knowledge of the subject.
The Government are grateful to the Constitution Committee for its report. I thank the noble Baroness, Lady Drake, for her clear summary and her questions, which I will try to answer in context. I thank the noble Baroness, Lady Stuart of Edgbaston, for her tireless work on the commission, relating to some of the most important roles in the country, as she said.
We are dealing today with one of the most delicate parts of the UK constitution. In this country, we have a system, supported by the report, that the Civil Service should be impartial and able to serve any Administration. They do it differently in the US and in France, for example, but our system has been successful, by and large, for 150 years. Impartiality is one important factor. Another is that the relationship between Ministers and civil servants, especially very senior ones, is crucial to government performance, and there is always a personal element too. Good relations are very important, as the noble Baroness, Lady Chapman, said, as is the ability of civil servants to speak truth to power.
The conventions have to be able to function satisfactorily, not just day to day but when there is a major challenge such as Covid-19. They also have to be able to operate well in the presence of powerful and unusual personalities. I have witnessed this in several departments, as a member of the SCS, as a Minister and from the perspective of private industry.
By and large, I agree with the committee and the noble Baroness, Lady Drake, that the system is worth preserving. In particular, I agree that the impartiality and perceived impartiality of the Civil Service is a central tenet of our constitution, which, as the noble Lord, Lord Butler, observed, is an important principle in the appointment of civil servants. As he said, from a constitutional perspective, the arrangements provide a good balance.
Ministerial involvement in the appointment process for Permanent Secretaries has to strike a balance. It allows input into the job description, the person specification and the composition of the panel, while preserving the important principle of appointment on merit. The report said that some Ministers were not aware of this. The Deputy Prime Minister and the First Civil Service Commissioner, as we have heard from her, wrote to government Ministers on 8 April to set this out and encourage them to take up opportunities to engage in the process.
The noble Baroness, Lady Chapman, asked about special advisers. They have no role in the appointment of civil servants. The Constitutional Reform and Governance Act 2010 states clearly that special advisers
“may not … exercise any power in relation to the management of any part of the civil service”.
It refers to the Code of Conduct for Special Advisers. It in turn specifically states that this includes the recruitment of civil servants, and this is reiterated in the Recruitment Principles.
The close working relationship between the Cabinet Secretary and the Prime Minister necessitates the Prime Minister’s close involvement with the appointment of a new Cabinet Secretary. The Civil Service Commission’s recruitment principles do not need to include specific provisions for this appointment. Any process should remain sufficiently flexible to enable the Prime Minister of the day to refine the selection approach as they wish, with the benefit of Civil Service advice. In practice, as has happened in most cases, candidates have submitted an application and have been interviewed for the role.
I also agree with the committee that external appointments to the Civil Service can fill skills gaps and refresh organisational culture. Moves in and out of the Civil Service may benefit the career development of individuals and bring new insights and recipes for success into government. I very much welcome my noble friend Lord Maude’s work to bring much-needed professional skills, such as commercial, digital and programme management, into the Civil Service, which I found on my return to office, while of course understanding his frustrations at that time.
My noble friend may be interested to look at the Minister for the Cabinet Office’s speech to Reform today. In it, the Minister described how we can improve the Civil Service by encouraging “excellent performance”, by improving its attractiveness to outsiders and “specialist talent”, and by improving skills and management training —one of my noble friend’s own preoccupations. I am confident that these changes will help provide the focus on management and leadership training that the noble Lord, Lord Norton, and I agreed on. I also agree that expressing appreciation for talent and performance can be a powerful and positive driver as part of performance management. I am sure that we will discuss Mr Glen’s proposals further.
I will not comment on pay today, although I think it is a pity that some of the Ministers in this House are unpaid. This discourages some from joining the Front Bench.
The external by default approach to senior appointments is an important step. Data is collected regularly and guidance in the revised Civil Service recruitment framework reinforces this commitment; this includes recording how many permanent recruitment campaigns are advertised externally and where there is a need for a senior Civil Service role on a short-term, temporary basis. As the noble Baroness, Lady Stuart, mentioned, the Minister for the Cabinet Office said today that the Civil Service Commission will review the rigour with which the external by default policy is applied. The noble Baroness also said, I think, that the commission will commence a root-and-branch review of the policy, working closely with the Government. More movement in and out of the Civil Service could be valuable, as the noble Lord, Lord Wallace of Saltaire, said.
During the evidence-gathering stage of the inquiry, there was a lot of focus on the role of the Senior Leadership Committee. The Cabinet Secretary provided the committee with details of the SLC’s membership and its terms of reference; indeed, his letter of 30 August was published on the committee’s inquiry page. However, given the interest and the committee’s request today, I can assure the Committee that the SLC’s details will also be added to GOV.UK; I undertake to do that by next week.
The Cabinet Secretary and the First Civil Service Commissioner agree that the senior appointments protocol needs to be updated to reflect current practice; that work is due to be completed shortly. The Civil Service Commission will consider reviewing the Recruitment Principles, particularly in the light of any implications that the updated senior appointments protocol may have for them.
The Cabinet Office, as the sponsor of the Civil Service Commission, is working closely with the commission and the First Civil Service Commissioner to update its existing MoU. I must tell the noble Baroness, Lady Drake, that that dates back to 2010, I am afraid, not 2020. However, work on a new framework document is well advanced to replace the MoU, in line with the Treasury’s practice for arm’s-length bodies. The Civil Service Commission is of course an independent statutory body. It performs important regulatory functions under the CRaG Act, within an accountability framework to Ministers and to Parliament. The upcoming framework document/agreement will set out the commission’s operational independence and codify and clarify its relationship with the Cabinet Office as its sponsor safeguarding its operational independence. I am well aware of the need to resource this area appropriately.
My noble friend Lady Finn commented on this. I can assure her that the CEO of the commission is line-managed by the commission’s senior sponsor in the Cabinet Office. However, the work of the commission’s CEO and staff is directed by the First Civil Service Commissioner.
On business appointment rules, in a statement in July 2023, the Government announced their response to the report from the Committee on Standards in Public Life, the Nigel Boardman review and PACAC’s work. A number of those reforms, including reforms to the Governance Code on Public Appointments and transparency declarations, have already been implemented. The response outlined plans to reform the business appointment rules, including changes to Civil Service contracts, and, as has been said, the development of a ministerial deed. The Government recognise that any such changes should not deter people from entering public service—we do not want to have a chilling effect. Similarly, it is in the public interest that people with experience of public administration move into other sectors. We intend to keep this proportionate approach, but, to answer the noble Baroness, Lady Drake, this far from simple work is progressing at pace and an announcement will be made in due course.
The Government agree with the committee that HR processes for the performance and misconduct management of Permanent Secretaries are fit for purpose. However, we do not agree with its view that there is scope for the Civil Service Commission to play a role in the dismissal of senior civil servants—we made that clear in our response. Formal HR processes, which sit alongside an individual’s core employment rights, are a matter for the employer. However, Permanent Secretaries should not be removed from their posts without due process, as the Government made clear in our response.
I shall not comment on recent individual exits, as we do not routinely comment on individual HR matters, but these are not decisions which are taken lightly. If the relationship between Ministers and their officials breaks down, swift action must be taken to resolve the situation, stabilise the leadership of the organisation and maintain focus on delivery. Such exits happen from time to time, as we have heard, but they are rare and should be an action of last resort. Since the high-profile exits of 2022, we have in James Bowler a new and experienced Permanent Secretary leading the Treasury and, as was announced recently, General Gwyn Jenkins will become the new National Security Adviser in the summer—we very much look forward to working with them.
A strong relationship between Ministers and civil servants is crucial to ensuring that government functions and delivers effectively. To competently advise the Government of the day and maintain impartiality, civil servants must provide objective, evidence-based advice and take decisions on their merits. We have appointed 11 Permanent Secretaries since the beginning of 2023—that includes specialist Permanent Secretaries—and there has been no difficulty in attracting candidates and no shortage of applicants.
I was pleased to see the report’s conclusion, therefore, that there is no evidence of a trend for the removal of civil servants on political or ideological grounds. However, introducing a criterion of broad political alignment between the Secretary of State and Permanent Secretary, as some have suggested, would complicate the existing duty to serve the Government of the day to the best of their ability regardless of their own political beliefs and would risk undermining their ability to establish the confidence of future Secretaries of State and Governments of different dispositions—I think that there is a lot of support for that view today.
On accounting officers, it is long-standing constitutional practice that each accounting officer is personally and directly responsible to Parliament for the stewardship of resources, against the criteria of regularity, propriety, value for money and feasibility, as the report notes. Their ability to carry out these essential responsibilities effectively must be maintained, and relies both on the impartiality of Permanent Secretaries and on their ability to speak truth to power. A shift towards greater ministerial influence would risk undermining this, but a ministerial direction can be requested on the rare occasions it is required.
The principle of a single Civil Service across England, Wales and Scotland is important, and we have discussed it at a number of Question Times. We acknowledge the arrangement whereby senior civil servants in Scotland and Wales are accountable to the Scottish or Welsh Government but are managed by their Permanent Secretary, who reports to the Head of the Civil Service. It can be tricky to navigate. However, Permanent Secretaries who are accounting officers are subject to HM Treasury rules set out in Managing Public Money, which can include asking for a ministerial direction on the rare occasion one is needed. In addition, the Civil Service Code, which is adopted and adapted in devolved Governments, sets out clearly the expectations for civil servants. Where Permanent Secretaries are asked to work on and spend public funds on matters outwith devolved competence, the Permanent Secretary should raise this with the Cabinet Secretary.
The Government agree with the committee that the principle of a single Civil Service must be maintained. Both sides benefit from interchange. We recognise the strength of the argument that further guidance to tighten up best practice may be due, and it is in the process of being considered. How all our current guidance supports civil servants working in the devolved Administrations on areas that may relate to reserved matters is a key priority, not least to help ensure that the Civil Service Code is maintained.
This has been an interesting debate. We are honoured to have so many experts on this area gathered together in this beautiful Room. I conclude by thanking the noble Baroness, Lady Drake, the members of her committee, the clerk—who is always so important—and all who have spoken in today’s interesting debate. The report was timely, quick, thoughtful and crisp, and we agree with the majority of its findings. The Government agree with the committee that we should not expand the role that Ministers already play in the appointment of senior civil servants, and we welcome its acknowledgement that existing policies for managing the performance and conduct of Permanent Secretaries are generally fit for purpose.
Baroness Drake (Lab)
My Lords, I thank the Minister and everyone who has participated in this debate. It has been hugely important for me because I am always reading and thinking about these issues, and I have learned a lot for when I go back to the committee. Even if I do not agree, it is important to understand what people think because you cannot solve a problem without understanding what all the parties to an issue feel.
I shall start with the Minister’s response and then pick up one or two points that came up in the debate. I thank the Minister for many of the positives in her response. I note that things are moving apace on the framework agreement, the protocols, the Senior Leadership Team, the business appointment rules and the guidance for civil servants in Scotland and Wales. One of the problems is that it is the consistent experience of the Constitution Committee that we get letters assuring us that work is moving at pace and is in progress and that we will get revised editions shortly, but they do not materialise. That is a pattern that is building up. I hope that it does not happen in this case and that we see the product and do not end up with another Constitution Committee report in three years’ time saying, “We put all this and there were all these promises, but they didn’t materialise”. I urge the Minister to stay on the case so that we see the revised documents.
Regarding the involvement of the Civil Service Commission in departures, we did not argue that it had anything at all to do with the merits of the case. That was not part of what we said. It was that due process was followed, which is about raising confidence in the integrity of the governance structure. Not much process is set down about departures that are not based on misconduct or performance, for which there is standard Cabinet Office guidance; it is about those other areas. There is no due process, and no one has oversight of that. It was not about the merits; the report did not say that the Civil Service Commission is put in a difficult position when appointing people but asked that some process be laid out and that the commission monitors that that process has been followed in those circumstances.
The noble Lord, Lord Maude, mentioned merit and said that there is no objective test. That is true; it is the rules not of science but of judgment that come into play here. In a sense, the operationalising of how you apply that judgment is set out in the Recruitment Principles, which says that merit means,
“the appointment of the best available person judged against the published criteria for the role”.
Ministers can get involved, as the First Civil Service Commissioner pointed out, by iteratively engaging with the Civil Service Commission on the features of the job description so that their priorities are reflected in it and pursued at interview. It is quite an iterative process for Ministers in that situation. You could also try to define it by negatives: it is not done by patronage or by allowing preferred candidates because the qualifications of a Minister’s preferred candidates are not necessarily those with merit, as defined in CRaG, for the qualities of a senior civil servant.
Our key point on special advisers was that Ministers must own this decision. Special advisers will be partial—that is not a bad thing; Ministers want them to be partial—but in the recruitment of civil servants their partiality may not align with the merit that we have just been through. That is the fundamental contradiction. The noble Lord, Lord Maude, complimented the noble Baroness, Lady Stuart, on having the experience of both sides having been in the Civil Service Commission and a Minister. That is true, and it means that her red lines, which included special advisers, warrant merit because she has seen it from both sides. Special advisers can influence in a partial way something that should be decided on a more dispassionate system of judgment.
As ever, the noble Lord, Lord Young, demonstrated that it is not necessary to be directly involved in appointments or departures to care about and want to pursue improving the quality of governance and government in our democracy. It should not be reserved for privileged participants because if you have a weakness in group thinking, you will never break out of it if a closed user group are the only people who express opinions.
I accept the point about trend. On the one hand, the Government welcome that we did not see a trend while, on the other, the noble Lord, Lord Young, said, “I hope you are right”. I think you have to see it in the context of our report. He makes a legitimate point that there is a case for a deeper dive over a longer timeline into how this has evolved. We did not do that in our terms of reference and neither, strictly speaking, did we have the capacity to do so. We saw a trigger to look at this again because of what has happened since 2020, in particular, but on the evidence we had over a much shorter time period, we did not have the evidential base to say that there was a trend. If someone wants to look at it over a 20-year timescale, that would be a different issue. So, I can neither agree nor disagree because we never went there; we went for a much narrower look at things.
On the point made by the noble Lord, Lord Butler, about departures and dismissals and who can or cannot dismiss, we seized that point quite early. This is why we used the word “departures” all the way through because we did not want to go into that territory, although we knew it was difficult, for exactly the reasons the noble Lord set out, and because we have a duty of care to the senior civil servants impacted and there is a confidentiality wrap around individual cases. We therefore talked about “departures” rather than pointing to specific individuals or categories. However, early on we interrogated the issue of exactly who has the right to dismiss and what is the status of senior civil servants. That is captured in the report.
Finally, on the point made by the noble Lord, Lord Wallace, we all want the best people to lead the Civil Service for the public good and wider strategic outcomes, not just for the efficiency of Ministers. He raised the capability of senior civil servants to support a Government of whatever political complexion. There will be details of policy about how you raise the standard and skill set, but we do not go into details of policy because we are trying to capture the essential constitutional implications.
I have really enjoyed this debate and learned a lot from it. We felt strongly about this, but our remit is always to keep an eye on the constitution. I have to keep saying to my committee: “It doesn’t matter how passionate or unpassionate you feel about a given government policy. Our job is to identify its constitutional implications and calmly lay them out. It’s then for the Government and the House to respond to what we say”.