Accountability of Civil Servants: Constitution Committee Report

Baroness Donaghy Excerpts

Thursday 7th February 2013 Lords Chamber

[Baroness Donaghy]

My Lords, I congratulate my noble friend Lady Jay on her presentation of this important report. We were both members of the Committee on Standards in Public Life and our tenure overlapped for a short while. I much admired her commitment and objectivity on the subjects covered in this report and I continue to admire her contributions in the House.

I was a member of the committee from 2001 to 2007, when it was chaired by Sir Nigel Wicks and Sir Alistair Graham, in two very different styles. I was also acting chair of the committee during most of 2007, pending the appointment of Sir Alistair’s successor, Sir Christopher Kelly. The committee covered all the subject areas in this report and I draw attention to its ninth report, Defining the Boundaries Within the Executive: Ministers, Special Advisers and the Permanent Civil Service.

One of the important jobs of the committee, particularly for the chair and secretariat, was meeting delegations from other countries that aspired to the principle of political impartiality: a Civil Service able to transfer its loyalty from one elected Government to the next, and upholding integrity and appointment on merit. Many of those countries were in a pre-Northcote-Trevelyan state, where patronage led to the appointment of,

“men of very slender ability, and perhaps questionable character, to situations of considerable emolument”,

in the Civil Service. Other countries aspire to our system. There is a very thin line—one that newly elected Governments do not always appreciate—between our system and the return to patronage and corruption. I particularly like the quotation in the report by the noble Lord, Lord Wilson of Dinton, who, in a plea to allow the Constitutional Reform and Governance Act 2010 to settle in, said:

“There has always been a tension in politics between patronage and merit; it is an old battle ... Merit ultimately won, but the patronage virus is never dead and constantly needs to be beaten back”.

It is particularly on the appointment of senior civil servants that this pressure is felt. I am concerned at the continuing rumours that the Cabinet Office Minister is seriously considering legislation to give Ministers greater powers of appointment. Francis Maude has said that,

“It would be perfectly possible under the legislation passed by Parliament in 2010 for the Civil Service Commission to provide ministers with a choice between appointable candidates. I am sorry the commission has decided not to support this”.

The Committee on Standards in Public Life often met organisations covering similar areas, including the Civil Service Commission and the Office of the Commissioner for Public Appointments. I presume that that still happens. We were aware then of pressures on the Civil Service Commission to change its criteria. I imagine that the same is happening now. I hope very much that the Civil Service Commission will stand firm on this issue of further ministerial involvement in senior appointments.

The report holds the line to a large extent, for which I am grateful. However, I cannot resist commenting on the recommendation that Ministers contribute to the appraisal of certain civil servants. When I was chair of ACAS, I was asked to participate in a Civil Service appraisal exercise to ensure fairness between departments. I freely admit that I was overwhelmed by paperwork, with a lever-arch file for everyone under consideration: a veritable mountain of information. How this involvement in appraisals will work needs careful thought. With the greatest respect to Ministers, some will be better able or prepared than others to enter this arena.

I welcome the fact that the committee does not recommend that accountability and responsibility are seen as two separate elements. That way confusion lies. Yes, I checked the Oxford English Dictionary this morning. “Accountable” is defined as,

“Bound to give account, responsible”,

and “responsible” is defined as,

“liable to be called to account”.

I also welcome the recommendation in paragraph 53 concerning the Civil Service as a constitutional check. Civil servants who are accounting officers take their role very seriously and it is a real check on ministerial nonchalance. I know of at least one example where a formal, written direction from the Minister was sought. To add any additional powers or be overprescriptive would act as a barrier to the working relationship of a Minister and his or her senior civil servant.

The committee is absolutely correct in paragraph 59 that,

“ministers are responsible for the actions of their special advisers”.

However, in practice it is all too easy for a Minister to distance himself from the rogue activities of a special adviser, and too little is known about the day-to-day working relationship of more junior civil servants and special advisers. Ministers have been known to encircle themselves with their special advisers—if it is possible to encircle with two people—who then act as a barrier to the extent that a special adviser starts to look very much like a manager. A civil servant wishing to do well and mindful of their future career is unlikely to complain to their senior about this. Of course, there are also examples of the relationship working well. I am simply saying that too little is known about the day-to-day practicalities.

On the issue of project management, I believe that this subject deserves a whole separate debate. There are huge timing problems on large projects, largely because of delays in releasing money, interdepartmental differences in priorities, constant revision of the details of projects and the appointment of consultants who charge the right price but are not up to the job. I am sure we could all write a book about that. The committee’s recommendation that,

“there should be a presumption that a single senior civil servant will lead the implementation of a major project from beginning to end”,

sounds good but will probably not work in practice unless the responsibility rests with a single department and no one has the right of veto. Peter Riddell referred to the fact that some projects lasted,

“the time of three Secretaries of State”.

That can be a very short space of time in some departments. At a more junior ministerial level, the Minister in charge of construction averaged eight months in the last Government.

My biggest concern about the report is in the area of accountability of civil servants to Parliament. I understand that there is probably huge pressure to change the rules and that the committee wants to tilt the balance,

“more in favour of the right of committees to request attendance of specific individuals”.

This is on the back of what is seen as a resurgence in the activities of Select Committees. It is not the first time and will not be the last; Select Committees rise and fall depending on the personality of the chair and the issues under consideration. I attended a number of Select Committees in the distant past, and received absolute courtesy from some and absolute rudeness from others. The big difference between my appearances—on dull and worthy subjects, it has to be said—and those of civil servants was that I could answer back. Civil servants should continue to give evidence to Select Committees,

“on behalf of their Ministers and under their directions”,

as stated in the Osmotherly rules. No one is trying to say that civil servants are,

“unfortunate, beleaguered public servants who cannot speak for themselves”.

I agree with Sir Alan Beith on that, but I do not agree with his conclusions. Of course Select Committees have the right to ask questions and elicit the truth, but care should be taken about the atmosphere surrounding such questioning. If I was a civil servant listening to the radio announcement that my head was going to be put on a spike by the chair of a Select Committee later that morning, I do not think it would encourage a free and frank exchange.

I hesitated about mentioning the name David Kelly as I feel sure his family do not want what happened to be resurrected and would want to live in peace. However, I was in a building with a number of senior civil servants when the news broke about his death. What was significant was not that they were terribly upset—of course they were—but they felt that their reputation had been impugned. It was an era when civil servants were being encouraged to be bold and imaginative and to take the initiative, and the encouragement of outside appointments was the order of the day. No one was going to be bold and imaginative after that day. So the context in which a civil servant is questioned, the tone adopted and the recognition that the quality of a policy is not for comment by that civil servant are extremely important.

Finally, with my ACAS hat on, I would advise caution about Select Committees recommending, even in extreme cases, that a,

“department consider appropriate disciplinary procedures . . . where there are strong grounds for doing so”.

What would the strong grounds be? If any Permanent Secretary found himself or herself in such a position, I would be very happy to represent them.

In conclusion, I am grateful for the opportunity to comment on this very measured and balanced report. The relationship between politicians and civil servants is endlessly fascinating, and we must not forget that the eyes of the world are on us whenever we make changes.