Accountability of Civil Servants: Constitution Committee Report

Baroness Jay of Paddington Excerpts

Thursday 7th February 2013 Lords Chamber

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[Baroness Jay of Paddington]

That this House takes note of the Report of the Constitution Committee on The Accountability of Civil Servants (6th Report, HL Paper 61).

[Baroness Jay of Paddington]

My Lords, I welcome the opportunity to open this debate on behalf of your Lordships’ Constitution Committee. I am glad that we are able to debate our report reasonably soon after its publication as this is undoubtedly a fast-moving area. Since our report was published last autumn, the fallout from the cancellation of the west coast main line contract has continued. The Government have begun implementing some of the proposals of The Civil Service Reform Plan which was published in June last year, and other proposals remain the subject of considerable debate—often played out through briefings to the newspapers, which have usually given a rather negative view of the Civil Service.

The committee conducted its inquiry over several months last year and I am very grateful to the large number of distinguished witnesses, some of whom I am pleased to say are speaking this afternoon, who gave written and oral evidence. As always, the Committee was extremely well served by its official staff and by its legal advisers, Professor Richard Rawlings and Professor Adam Tomkins, who acted as special advisers for this inquiry. I thank them and other members of the committee for their hard work on this report.

As I said, the report was published in the autumn, in mid November, and I am very disappointed that only yesterday evening I received the Government’s formal response. Your Lordships will know that it is established practice that the Government respond to reports of this kind within two months of publication. In this case, that would have been by 20 January. I regard it as discourteous both to the committee and to the House that we have heard so very late from the Cabinet Office. This must mean that the committee has obviously been unable to consider the Government’s response and it is therefore impossible for me to respond to the Government’s reply, particularly on some of the points on which the committee and the Government seem to disagree. I look forward to the Minister giving us an extensive explanation of the Government’s position when he replies to the debate.

Coming to the substance of our report I should first make clear that this was not a general inquiry into the present state of the Civil Service. Our focus was specifically on accountability. We wanted to examine how well civil servants who play very significant permanent roles in our system of government are held to account. The increase in the size, functions and complexity of the state makes it important, of course, that all those who carry out responsible work on behalf of the public are properly accountable. One of the developing ways in which civil servants are held directly to account is through parliamentary Select Committees in both Houses, perhaps most prominently by the House of Commons Public Accounts Committee which, as the House will be aware, has been recently involved in controversial dealings with senior officials.

The Constitution Committee started from the simple but indispensable point of principle: Ministers are responsible to Parliament for all of their department’s business. This means that, in addition to being responsible for the policies they devise, Ministers are also responsible for the actions and inactions of their civil servants, and for the administration of their departments. Accountability must extend to cover those arm’s-length bodies which report to a department and the committee is also clear that Ministers are personally responsible for their political special advisers, including ensuring that those advisers follow their own code of conduct. In our report, the committee concludes that this overall responsibility must be essential if Parliament is to be able properly to hold the Government to account. Your Lordships may remember that the Constitution Committee affirmed this principle very strongly during the passage of Health and Social Care Act during the previous Session. It insisted that the Secretary of State for Health must remain fully responsible for the health service, regardless of the changes that were proposed in the Bill. Section 1 of the Bill was amended in your Lordships’ House so that that the principle is now in statute.

The corollary of ministerial responsibility to Parliament is that civil servants must be fully accountable to Ministers. It is in this area that there has been much recent debate. Relations between the Civil Service and Ministers are said to be at an all-time low. The Prime Minister has referred to “bureaucrats in government departments” as the “enemies of enterprise”. The Minister for the Cabinet Office, Francis Maude MP, has said that civil servants need to focus more on Ministers’ priorities. Blame for errors in handling the west coast main line bidding process was pinned firmly on civil servants in the Department for Transport, resulting in three of them being suspended. Recently, one former Minister, Mr Nick Herbert, said that he had been better supported in opposition than by the Civil Service in government.

It is perhaps not surprising, therefore, that The Civil Service Reform Plan contains proposals to alter the relationship between civil servants and Ministers. One of its aims is to improve civil servants’ accountability. Perhaps the most high profile of these proposals is to give Ministers a greater role in the appointment of their departmental Permanent Secretaries. As noble Lords will be aware, particularly those who have themselves been Ministers, Ministers are already closely involved in the process as they agree the job description and the composition of the selection panel; they can meet the shortlisted candidates and then provide their views on the candidates and the selection panel. The Prime Minister retains a power of veto over the candidate proposed by the Civil Service Commission—a veto that he apparently and reportedly exercised late last year in respect of the nominated candidate for Permanent Secretary of the Department of Energy and Climate Change. However, what Ministers do not do—and have not done up to now—is decide from a list of names put forward by a selection panel who should hold the top job.

The Civil Service reform plan indicated the Government’s broad intention to strengthen Ministers’ roles in the recruitment process for Permanent Secretaries. It did not specify how, but said that the Government would consult with the Civil Service Commission. However, since then, both the Prime Minister and the Minister for the Cabinet Office, Mr Maude, have made it clear that they prefer Ministers to be given the power to select from a shortlist of names when recruiting a new Permanent Secretary. Mr Maude has indeed indicated that he has not ruled out legislating to achieve this. The Government argue that such a change is important for ensuring that the Civil Service is working to the Government’s priorities. If Ministers are fully accountable for all the actions and omissions of their civil servants, the argument goes, Ministers should be given the choice over the principal civil servants who carry out their decisions. Interestingly, in evidence to us, the Government’s proposal was also supported by, among others, the right honourable David Blunkett MP, a senior Cabinet Minister in the previous Labour Government.

On the other hand, others who gave evidence to us, including the Civil Service Commission, objected to giving Ministers the final say over the choice of Permanent Secretaries. They argue that it will lead to Permanent Secretaries being seen as the creatures of Ministers and will undermine Civil Service impartiality and the principle of appointment on merit. The temptations of cronyism and favouritism might, it was thought, prove too great for some Ministers. Others questioned what will happen in departments where Ministers are moved frequently. Will each change of Secretary of State result in a new Permanent Secretary? If so, the word “permanent” in the job title rings somewhat hollow.

The committee heard evidence suggesting that the position may not be as stark and as black and white as is sometimes suggested. We heard, for example, from the former Labour Home Secretary, Charles Clarke, that when a relationship between a Secretary of State and a Permanent Secretary breaks down the official may just be quietly moved on. Another Conservative ex-Cabinet member, the noble Lord, Lord Fowler, said that Ministers are often already given a strong informal say in the appointment process, including expressing a preference.

One thing we should remember is that it was only three years ago that Parliament passed the Constitutional Reform and Governance Act which enshrines in law the attributes of the Civil Service—integrity, honesty, objectivity and impartiality. The principle of appointment on merit clearly flows from these attributes. However, the Constitution Committee concluded that however the Government wish to modify the existing process for appointing Permanent Secretaries, they must continue to conform fully with those constitutional principles. We thought it would be odd if, having waited 160 years for the Northcote-Trevelyan principles and proposals to be put into statute, they were discarded so quickly.

We concluded that the same principles ought to apply to the Government’s proposal for so-called direct appointments. The Civil Service reform plan proposes that where a department lacks a particular expertise, a Minister should be able to make direct appointments into specific, fixed-term posts. On this occasion we heard concerns that such appointments might be used to create a new class of special advisers. We concluded that Ministers should be limited to requesting the category of expertise that they require. Permanent Secretaries should continue to make the individual appointments subject to the approval of the Civil Service Commission.

One member of the Constitution Committee, the noble Lord, Lord Powell of Bayswater, who of course has had a long and distinguished career in Whitehall, has expressed this succinctly. Unfortunately, he is unable to speak today. He has said that bringing in expertise from outside for specific jobs or to carry through new initiatives is eminently desirable—Ministers are fully entitled to ask for that. He believes, however, that they should ask for expertise—for example, “Go out and get me a really good tax specialist”—and that they should not ask for individuals whom they just happen to know. Least of all, he believes, we do not need a new breed of callow special advisers—seasoned experts are required for these sorts of jobs.

None the less, in the area of long-term project management, the Constitution Committee was concerned about the Civil Service’s record of delivery. The list of big government projects which have overrun and cost vastly more than was budgeted is depressing. It is not easy to identify solutions to these difficulties; one common problem seems to be the high turnover of officials working on such projects. High staff turnover is a widespread criticism of the modern Civil Service. We recommend that there should be a presumption that a single, senior civil servant will lead major projects from start to finish. This should improve the ability to hold the Executive, and specifically one official in the Executive, a civil servant, to account for such projects.

The Constitution Committee also examined not merely the accountability of civil servants to Ministers but also the direct accountability of civil servants to Parliament. As the House knows, it is now commonplace for civil servants to appear before Select Committees, sometimes alongside Ministers and sometimes on their own. Such direct accountability is undoubtedly welcome. Select Committees benefit considerably from being able to hear civil servants in this way. Constitutionally and importantly, however, the appearance of civil servants before Select Committees is a supplement to Ministers’ responsibility to Parliament, not a replacement for it. Only Ministers can participate fully in the proceedings of Parliament—answering Parliamentary Questions and responding to debates. For this reason Parliament cannot hold a civil servant properly to account in the place of a Minister.

The Cabinet Office has developed guidance for civil servants who give evidence to Select Committees. The guidance is widely known as the Osmotherly rules—called after Sir Edward Osmotherly the marvellously Trollopeanly named official who originally devised them. The rules offer guidance on what civil servants should and should not say to committees and when it is appropriate for a Minister to appear rather than officials. The committee’s view is that the Osmotherly rules are simply Civil Service guidance and nothing more. They should not be given any greater political or constitutional weight. The Osmotherly rules have not been endorsed by Parliament and do not bind Select Committees in any way.

We recommend that any future revisions of the rules should be published in draft to enable Parliament and its Select Committees to scrutinise proposed changes. In his evidence to us the Minister, Mr Maude, indicated that he would support such parliamentary scrutiny— perhaps the noble Lord, Lord Wallace, can comment on this proposal in his reply.

Although civil servants frequently give evidence to committees, as I have said, they do so on behalf of their Ministers. For this reason, committees usually accept whichever official or officials a department recommends are best placed to give evidence on any given topic. Sometimes, however, committees will want to question a named civil servant—for example, the official in charge of a particular project or policy. The Osmotherly rules include a “presumption” that Ministers will meet such a request. We think this should be strengthened so that a call for a specific individual should be refused only in exceptional cases.

Accountability would also be strengthened if committees were able to question someone who had left the Civil Service or moved to another post. This practice should apply not just to former accounting officers—as suggested in the Government’s Civil Service reform plan—but to other former senior civil servants. Sometimes it is only by taking evidence from former office holders that a committee can get to the bottom of an issue and we do not think the Osmotherly rules should stand in the way of this practice.

As your Lordships are aware, successive Governments have maintained the principle that advice given by civil servants to Ministers should not be disclosed to Select Committees or to anyone else. This of course maintains the principle of ministerial responsibility—civil servants giving full and candid advice but Ministers taking the decisions. The committee did not seek to undo this principle, but thought that the practice set out in the Osmotherly rules needed revision. For example, under the Freedom of Information Act 2000 it is possible to access Civil Service advice if certain conditions are met. The Osmotherly rules suggest that in no circumstances would such advice be disclosed to a committee. Therefore, if the rules are followed strictly, Select Committees may paradoxically have weaker rights of access than someone submitting a freedom of information request. This seemed to us obviously unsatisfactory and so we recommend that on rare occasions when committees need sight of such advice, they should be able to request it.

Our final recommendation concerns situations where the evidence taken by a committee points to an individual civil servant being at fault. The Osmotherly rules suggest that in such circumstances it is for the Minister to examine the matter and take any further action. We were conscious that Select Committees are not disciplinary tribunals. However, if evidence leads a committee to conclude that a particular civil servant has been at fault, we think the committee should be able to express personal criticism and, in extreme cases, suggest that the department concerned considers disciplinary procedures.

In summary, the Constitution Committee’s report underlines the pre-eminence of ministerial accountability to Parliament and civil servants’ accountability to Ministers. We make clear that any plans to reform the Civil Service must not undermine the accepted principles of accountability or Civil Service impartiality. The report also concludes that parliamentary Select Committees should have greater access to individual civil servants and that the informal rules governing their appearances before committees should be revised and scrutinised by Parliament. I look forward to what I know will be an interesting and authoritative debate. I beg to move.

--- Later in debate ---

[Baroness Jay of Paddington]

My Lords, I am grateful to the Minister for his comprehensive and thoughtful reply to the debate and for giving us a somewhat reassuring update on both the atmosphere in Whitehall and the state of the Government’s Civil Service reform plan. I am also very grateful for the erudition and experience demonstrated by every speaker who has taken part in the debate this afternoon. We have heard a wide range of views from relevant, authoritative perspectives and I am pleased that those have, on the whole, generally welcomed the Constitution Committee report and, indeed, shared some of the concerns which we expressed in that report.

Among a very wide variety of fascinating historical quotations that we heard all around the House this afternoon, the noble Lord, Lord Wright of Richmond, very kindly quoted the important speech of my father Lord Callaghan. As a dutiful daughter, I am obviously duty-bound to agree with every word of that speech. However, very seriously, I urge the Government to reflect on the quotation highlighted by the noble Lord, Lord Wright, and on the opinions of a contemporary kind which have been expressed this afternoon. I think the House is agreed that the government of this country will lose very much more than it gains if the fundamental principles underlying our Civil Service are challenged, either today or in the future.

Motion agreed.