Accountability of Civil Servants: Constitution Committee Report

Lord Armstrong of Ilminster Excerpts

Thursday 7th February 2013 Lords Chamber

[Lord Armstrong of Ilminster]

My Lords, I add my voice to those which have congratulated and expressed thanks to the noble Baroness, Lady Jay, and to the Constitution Committee for their measured, balanced and authoritative report which brings the threads together and presents us with some very sensible and well considered conclusions. The committee has done the state some service in robustly and, in my view, correctly reasserting the Haldane convention that civil servants are accountable to Ministers and Ministers are accountable to Parliament—it would put Ministers and civil servants into an unworkable tangle and morass of divided, dual and sometimes conflicting accountability if it were otherwise.

I am not going to join in the discussion of whether there is a distinction between responsibility and accountability. I simply note that there is an important verbal point in the committee’s view that there is no difference. It says that,

“there is no constitutional difference”.

I think that I am prepared to accept that. In other respects there is a difference between responsibility and accountability but I will not waste your Lordships’ time by going into that.

The committee is also right in arguing that the growth in the size and complexity of the state since the Haldane convention was formulated, and the development of Select Committees since 1979, require that the practice in operating the convention should be kept under review. It would clearly be impossible for Ministers to give all the evidence required by parliamentary committees, so the convention must be applied with understanding and flexibility within the framework defined by Lord Haldane—but it must not be violated.

It is particularly in relation to the work and the demands of parliamentary select and other committees that the lines in the sand need to be kept under review and redrawn if need be. The principle must be that the civil servant is accountable to his Minister when he gives evidence on the Minister’s or the department’s behalf to a parliamentary committee, as he is in everything else that he does as a civil servant. Normally there will be no problem about this. The Minister—or the department on his behalf—will select, and the committee concerned will accept, the civil servants who are best qualified to answer the questions likely to be asked. Occasionally, as the Constitution Committee recognises, a parliamentary committee will wish to hear evidence from a particular civil servant. The Minister will consent to allow that civil servant to give evidence if the Minister is content that he should do so; but if the Minister is not content that he should do so, the Minister is entitled to withhold his consent.

I do not think that a Minister can be forced not to withhold consent. If he does withhold consent, then the committee will be within its rights if it summons the Minister himself to go and give evidence, or to make available another civil servant to do so if the committee is prepared to accept that other person. I was involved in one case where a Commons committee wanted to call two named civil servants to give evidence but the Minister, for valid reasons, refused to allow them to go and, with the committee’s grudging acceptance, sent me to give evidence on the Minister’s behalf. I still remember with a touch of pride, though it got me into some trouble at the time, the Guardian’s lobby correspondent’s verdict on that encounter: “Mandarin 3, Select Committee 0”.

There will be other cases where a civil servant called to give evidence will be instructed by his Minister not to answer a particular question or questions, or not to give certain information to the committee concerned, because the information is of especial secrecy or confidentiality. The civil servant must be free to say that the Minister, who is himself accountable to Parliament and on whose behalf he is giving evidence, has instructed him not to answer the question or give that information. In my view, the committee is bound to accept that position and to have recourse to the Minister himself if it wishes to press for an answer. The civil servant concerned should not be put under third-degree pressure by the chairman or members of the committee to answer the question when he has been instructed by his Minister or is bound not to do so.

The Constitution Committee discusses the question of the appointment of Permanent Secretaries. The problem question here is the role of a Minister in selecting a new Permanent Secretary. It was all so much easier in my day. When I was head of the Civil Service, I chaired a senior appointments selection committee whose task was to consider a shortlist of candidates for an appointment and give the guidance on whom I should recommend to the Prime Minister. Before preparing such a shortlist, I took great trouble to consult the Secretary of State concerned to try to make sure that any candidates whom he favoured were on the shortlist and that any candidates with whom he thought he could not work were not on the short list.

The Prime Minister I served was not very happy if I recommended only one name; she liked to have more than one name before her, with a statement of my reasons for the recommendation I made. She would sometimes discuss my recommendation with me, with her customary forensic skill, before approving an appointment. She wanted to make sure that the appointment would not just be Buggins’s turn, but I cannot remember that in the end, after the discussion, she ever approved the appointment of someone whom I had not recommended.

That was a less formal arrangement than the existing system but it did not work badly. It seems to me that the existing system, as described in the Constitution Committee’s report, provides a Secretary of State with sufficient involvement in the process to make sure that his views are known and taken into account and that he will not have thrust upon him a Permanent Secretary with whom he feels unable to work. I do not think it would be right to go further than that and give the Secretary of State or departmental Minister the final choice, for all the reasons set out in the evidence to the Constitution Committee and by the committee itself in its report.

It would clearly be undesirable for the Permanent Secretary to change every time there is a change of Secretary of State or departmental Minister. The turnover of departmental Ministers can be quite rapid. I served for four years in the Home Office: for two as a deputy secretary, then two as Permanent Secretary. During that time I served three Secretaries of State, two Labour and one Conservative, and got on happily and constructively with all three. It would have been intolerable, not only for me but also for the Secretaries of State and the department, if the Permanent Secretary had changed every time there was a new Secretary of State.

The Constitution Committee discusses the question whether Civil Service policy advice should ever be disclosed to parliamentary Select Committees. I agree with those who said in evidence that a civil servant should never be asked to disclose the advice he has given to his Minister; if anyone is to be asked to disclose that advice, it should be the Minister. The general rule should be that advice given by civil servants to Ministers should never be disclosed. If civil servants were to believe that their advice might subsequently be disclosed, there would be a real danger that that advice would be less full, candid and fearless than it should be. Exceptions to the general rule should be extremely rare, if not non-existent.

I could discuss many other points on the report but I agree with very much of it and will not add more, save this in conclusion. In all this, I am reminded once again of the charge that Queen Elizabeth I gave to Sir William Cecil in November 1558, when she appointed him to be her principal Secretary of State—in effect, her Cabinet Secretary and head of the Civil Service. She said:

“This judgment I have of you, that you will not be corrupted by any manner of gift; and that you will be faithful to the State; and that, without respect of my private will, you will give me that counsel you think best; and if you shall know anything … to be declared to me of secrecy, you shall show it to myself only”.

As a lapidary statement of the duties and responsibilities of civil servants in relation to Ministers, it is difficult to improve upon that.

However, it is worth also remembering the advice that Sir William Cecil gave to his son and successor about what happened when he and the Queen disagreed:

“As long as I may be allowed to give advice, I will not change my opinion by affirming the contrary, for that were to offend God, to whom I am sworn first; but as a servant I will obey Her Majesty’s commandment, and no wise contrary the same, presuming that she being God’s … minister here, it shall be God’s will to have her commandments obeyed”.

I might not have put it quite like that; I might have referred not only to her divine mandate, but to her to democratic mandate too. However, I recognised instantly that that was how I felt in my dealings with Mrs Thatcher when she was Prime Minister and I was her Cabinet Secretary. The two quotations taken together seem to quite neatly and pithily encapsulate the duties of civil servants to Ministers.