Civil Service Impartiality

Lord Hennessy of Nympsfield Excerpts

Monday 5th February 2018 Lords Chamber

[Lord Young of Cookham]

I have not seen the documents that are the object of this exchange, but I understand that they were looking at a number of post-Brexit scenarios from an economic point of view. I also understand that the Prime Minister subsequently said that they were looking at off-the-shelf options, and she has made it clear that she is not looking at off-the-shelf options.

[Lord Hennessy of Nympsfield (CB)]

My Lords, nearly every political generation experiences a reprise of this question. In the early post-war Treasury, Hugh Dalton was given some unpalatable advice and denounced his officials as “congenital snag-hunters”, but surely that is what we pay them for. Does the Minister agree that it would be pointless to hire ciphers for the beauty of their political opinions because that would be the road to a politicised Civil Service which would be ruinous for this country?

[Lord Young of Cookham]

I agree. It is the job of civil servants to bring to Ministers’ attention the consequences of their policies and to argue forcefully against them if they believe they are misguided but, once the decision has been taken, to go out and deliver them as best they can. My experience with civil servants is that that is exactly what they do, and I agree with the noble Lord.

Cyberattack: UK Defences

Lord Hennessy of Nympsfield Excerpts

Monday 7th December 2015 Lords Chamber

[Lord Bridges of Headley]

The noble Lord speaks with immense experience in this area and I will write to him on the specific point. I cannot comment on the detail of the security arrangements for our nuclear deterrent but we can, and do, safeguard it from threats, including cyber.

[Lord Hennessy of Nympsfield (CB)]

My Lords, will the Minister update the figures on substantial attacks on British government institutions and businesses which last year were running at between 150 and 200 per month? Has that figure changed substantially and has there been the slightest indication that, since the Chinese leadership pledged to the Prime Minister that they would lay off, there has been an easing from that quarter?

[Lord Bridges of Headley]

I can give some figures. GCHQ typically responds to an average of 70 sophisticated attacks on government networks per quarter. In summer 2014, GCHQ responded to approximately 200 incidents and this figure doubled to nearly 400 during summer 2015.

Standards in Public Life

Lord Hennessy of Nympsfield Excerpts

Tuesday 4th February 2014 Lords Chamber

[Lord Hennessy of Nympsfield (CB)]

My Lords, the committee chaired with distinction by my noble friend Lord Bew is the guardian of the seven principles of public life first promulgated by the standards committee in the mid-1990s, under its founding chairman Lord Nolan, as my noble friend reminded us. The most cheering finding in the committee’s 2012 survey, which we are debating today, is that the public continue to support those principles to an overwhelming degree.

Should the British people become so jaundiced with those in public and political life that, when asked about the behavioural lapses on the part of their Ministers, officials and legislators, they shrug disdainfully and reply, “Well that’s the way they are; what can you expect?”, then we would be in deep trouble as a country and a polity. Mercifully, we are still shockable.

However, the standards committee report makes for truly depressing reading on the low levels of trust in politicians. But, in my judgment, it is the findings on political engagement which leap most dramatically out of its pages. It is the level of alienation from all parties, big and small, across the spectrum that is searing. Place this finding alongside the Hansard Society’s 2013 Audit of Political Engagement and the picture is truly grim. The Hansard Society found that, in terms of general elections:

“The number of young people (18-24 year olds) certain to vote has declined 10 percentage points in a year (22% to 12%)”.

The reasons for such indifference and alienation are multiple and have accumulated over a decade of historically low general election turnouts.

I will finish by mentioning but one aspect that has long worried me: the language in which we conduct our national political conversation. George Orwell argued, in his classic 1946 essay, Politics and the English Language, that if the main instrument of political exchange and argument—language—became stale, clichéd and debased, we would be seriously impoverished. Nearly 70 years on, in our deeply sound-bitten political culture, we have much more to worry about than did Orwell. Between now and the general election of May 2015, can our political class raise its game? Can our politicians find the tone, the pitch and the vocabulary to break through the indifference, especially of those 18 to 24-year-olds? I live in hope.

I have one final thought for the noble Lord, Lord Bew, and his committee, the work of which I have always admired. How about a review of the quality and clarity of language used in government White Papers? That is a question of standards, too. Doing an Orwell on White Papers would be a service to us all.

The Future of the Civil Service

Lord Hennessy of Nympsfield Excerpts

Thursday 16th January 2014 Lords Chamber

Moved by

[Lord Hennessy of Nympsfield]

That this House takes note of the future of the Civil Service.

[Lord Hennessy of Nympsfield (CB)]

My Lords, this may strike you as a genuinely perverse opening remark, but I truly regret the need for this morning’s debate. Why is this? It is because I wish we lived in a well managed state, praised for the quality and delivery of its public services, admired for its ability to complete grand projects on time and within budget, overseen by a Whitehall where—the odd emotional spasm apart—the crucial relationships between Ministers and officials were always and everywhere in good repair. I fear that these tests are not universally met.

However, there is no need to succumb to excessive pessimism nor to unleash a relentless cataract of anxiety or criticism. There is still a lustrous quality to our great tradition of non-politically partisan public service, transferable from one Government to the next along with its perpetual duty of speaking truth unto power; of telling Ministers what they need to know rather than what they wish to hear. As a country, we also possess a considerable, usable past in the history of our conduct of central government. Public service has always attracted capable and well motivated people and it still does. However, each generation has a duty to revisit the traditional verities afresh; to test old models and established practices against new needs and, quite rightly, ever more stretching delivery requirements, while facing up to examples where performance has not risen to the level of events.

It is a very long time—48 years—since a Government commissioned a wide-lens review of the Civil Service when Harold Wilson and his Chancellor, Jim Callaghan, set up the Fulton inquiry in 1966. The Fulton story is not an entirely happy one but it is not for reprising this morning, save to note a serious flaw in its remit when Mr Wilson steered the committee away from the crucial, central question of relationships between Ministers and civil servants. It is this terrain upon which I would like to descend first in today’s debate.

These relationships, which make up what I would call the governing marriage between temporary Ministers and permanent officials, depend upon confident Secretaries of State and confident civil servants in candid symbiosis, raising the quality of each others’ game. The relationship rests on a three-way deal. The deal is the product of two key enquiries—the Gladstone-commissioned Northcote-Trevelyan report of 1854 and the Lloyd George-commissioned Haldane report of 1918—plus a good deal of practical, everyday experience of working our constitution by Whitehall generations past. Deal one is non-political civil servants speaking truth unto power in private. Deal two is reciprocal: in return for such candour, Secretaries of State carry the can in public, even if things have gone wrong in places over which Ministers did not have direct control. Deal three is a valuable, high level of continuity within the state thanks to the career Civil Service transferring between Administrations without a clean sweep of top posts, as happens in the United States.

The triple deal has been under stress for a good while now due to a number of largely post-Fulton developments. The first has been the arrival of special advisers in some quantity. Although a valuable and vitalising factor in many ways, this has complicated the old-style governing marriage and, in some unfortunate instances, has injected poison into it. The second is the truly welcome development of departments shadowing House of Commons Select Committees since 1979, which has brought senior civil servants into a public and parliamentary limelight experienced previously only by accounting officers appearing before the Public Accounts Committee. This has altered for ever the old calculus of official accountability to Parliament.

As an outside observer, I am struck by the scratchiness in some, but by no means all, current Whitehall departments between the partners to the governing marriage to the point where there are suggestions that elements of the old deals are but Victorian relics that clutter up the path to more effective and efficient government. It is genuinely ironic that, with the ink scarcely dry on the sections of the Constitutional Reform and Governance Act 2010 enshrining at last the 1854 Northcote-Trevelyan tenets, one should hear whispers in Whitehall that if less dramatic reform measures fail, the 2010 Act should be amended to allow Secretaries of State to have the predominant say in who will be their Permanent Secretaries, a process known in the shorthand as ministerial choice.

Place the question of ministerial choice alongside the new development of extended ministerial offices—EMOs—a fusion of Whitehall private offices with a variant of the French Cabinet system announced last summer in the Cabinet Office document, Civil Service Reform Plan: One Year On Report, and you have what some would see as a combined move towards a real, if unacknowledged, politicisation of the senior Civil Service. Is this a creeping politicisation that dare not speak its name? Certainly, it is the coming of the EMO plus the question of ministerial choice that has proved to be the weathermaker within the wider debate about the coalition’s Civil Service Reform Plan.

I was fortunate to have an on-the-record interview with the Prime Minister last October about, among other things, the new extended ministerial offices and greater ministerial choice. Mr Cameron sought to reassure on both points. I asked him first if he sensed a whiff of danger of the politicisation of the Civil Service through the extended private office. “I don’t”, he said, continuing:

“I think that one of the things that makes the civil service great and makes civil servants proud to be civil servants is that they are not political … I think one of the most exciting things for a civil servant is the transition from one government to another; it’s a great test of professional people”.

The Prime Minister went on to explain that EMOs would allow Secretaries of State to have more back-up with, and I am quoting his words,

“some experts, a bit of implementation, some special advisers. That’s quite like what the Prime Minister has. It’s quite like what some Ministers have already put in place. I think it’s growing organically. I’m helping giving it a nudge along”—

there is the word “nudge” again. Mr Cameron also sought to reassure on ministerial choice in Permanent Secretary appointments. He believed that the process,

“has been constrained, I think, rather excessively in recent years so that there is one name and the Prime Minister either has to say ‘yes’ or ‘no’ … I don’t think we should have ended up in that position. I think it would have been better for one or two people to get over the line, as it were. Then the Prime Minister, in conversation with the Cabinet Secretary and perhaps the Secretary of State, to make the decision. I do not think that that’s politicisation. I think that’s just the ability of a government to make sure it’s got the right people in place to carry out the government’s policy”.

The Cabinet Office Minister with day-to-day responsibility for the Civil Service, Francis Maude, has given me similar reassurances that the coalition’s intention is not to politicise. Yet for all these reassurances, the Civil Service Commission, the instrument Mr Gladstone created to nurture and protect the Northcote-Trevelyan reforms, plainly remains concerned. The chairman of the commission, the former Home Office Permanent Secretary, Sir David Normington, has been engaged in what one might call a rolling conversation on these matters with Francis Maude.

So, where are we now? Mr Maude paused the question of more ministerial choice last year. The pause is due to end soon. On Monday, the Civil Service Commission launched a public consultation on its recruitment principles. The commission noted that the Government proposed in its 2012 Civil Service Reform Plan that Secretaries of State should be able to choose from a list of appointable candidates as assessed by an independent panel. In last year’s document, Civil Service Reform Plan: One Year On Report, the Government added a new proposal that it should be the Prime Minister, rather than the individual Secretary of State, who possessed the final choice.

In Monday’s consultation document, the Civil Service Commission declares:

“In our view—and that of our predecessor Commissions—merit is best assessed by a process which has independent oversight, is objective and evidence-based. The risk in the Government’s proposal is that it could lead to a Secretary of State substituting his or her personal view of merit for the outcome of an independent, objective assessment process. We doubt whether that is compatible with the legal requirement and it risks candidates being seen to be appointed on the basis of personal or political patronage”.

Those are strong words from the Civil Service Commission. It is striving to clarify and refine the appointments process while retaining the essential Northcote-Trevelyan principles. To this end, it is consulting on two future possibilities. The first would be to go with the new guidance on recruitment principles that the commission published a year ago in response to the Government’s Civil Service Reform Plan. This included, and these are the commission’s words,

“for the first time a provision enabling a panel to seek a Secretary of State’s view on candidates of equal merit after final interviews and before it reached a final decision on the recommended candidate”.

The second possibility canvassed in the commission’s consultative document is, and I am quoting,

“Where a panel assesses two or more candidates to be of equivalent merit … it may put those candidates to the Prime Minister for decision. He should then make the final decision, which must still be made on merit, in consultation with the Secretary of State and Head of the Civil Service”.

I have lingered on this terrain because it spans a first order question. I accept that the Prime Minister and Mr Maude do not intend to turn Whitehall into Washington, but I share the anxieties of the Civil Service Commission. To abandon the Northcote-Trevelyan principles would be a national own goal of considerable proportions.

The real test will come not when the first EMOs are set up this year, nor perhaps even when the next batch of Permanent Secretary appointments are made, though Parliament and its Select Committees will need to keep a careful eye on both. On the creation of EMOs, Civil Service Commission approval will be needed for outside recruits brought in for their specialist knowledge at Whitehall director level or above—a welcome safeguard. The true test will bite when a new Government of a different political colour takes office.

If greater ministerial choice of Permanent Secretaries has happened and several EMOs are in place—especially if they have morphed into central directorates, essentially departments within departments—might not the new Secretaries of State feel that they are inheriting a senior Civil Service that has, to quite a high degree, been politicised? True, these new Ministers will be able to create their own EMOs afresh, but is there not a risk of a future Government saying no doubt, with regret, we must replace the senior career officials too with bespoke civil servants of our own choice? Should that happen, the Northcote-Trevelyan principles would effectively have been abandoned and our Civil Service will have passed through a one-way valve.

It is my belief that our Civil Service does not belong to any single party or any single Government—rather, it is a national asset of central importance to Parliament and all our people. If its essential DNA is to be changed, it must be done so openly and on the basis of as high a level of consensus as possible. To achieve this, much care and forethought is required, which brings me to another question that has exercised Parliament over the past year: the need for a very substantial inquiry into the overall condition of the Civil Service as a central capability for the nation in the 21st century.

When I talk to younger officials, their eyes are not just on Northcote-Trevelyan—though they are—they are acutely sensitive to a whole range of pressing concerns that are already in play or may become so during their career lifetime. Such matters embrace the very configuration of the United Kingdom, with the possibility of independence for Scotland, of a UK intact or not, facing life in a cold economic climate outside the European Union in the 2020s—the size and scope of the state, including levels of public spending, the scale of our welfare state and the continuing affordability of our top flight defence capabilities. In my judgment, these factors powerfully reinforce the case for a broader gauge inquiry into the Civil Service.

Last week, the Government replied to the fine report Truth to Power, produced the Commons Public Administration Select Committee, led by Bernard Jenkin. I should declare that I gave evidence to PASC. To my regret, the coalition said that it does not accept the committee’s assessment that the evidence for a,

“comprehensive strategic review of the nature, role and purpose of the Civil Service is overwhelming”.

In my judgment, this reply is as misguided as it is disappointing. Last November, no fewer than 17 other Select Committee chairs, with no recorded dissenters, backed PASC’s call for a joint parliamentary commission on the Civil Service in the Liaison Committee’s report entitled Civil Service: Lacking Capacity. In our interview last October, the Prime Minister did not, however, close his mind to such a possibility when I raised it with him. He said:

“There’s nothing … to stop Parliament, if it wanted to, to set up its own Commission on Civil Service Reform, and it has now, it’s got a committee”—

he is referring to PASC—

“they’ve had an inquiry. They can go on having inquiries if they want. He”—

I think he means Bernard Jenkin—

“was asking me do I want to set up a Royal Commission. No I don’t at the moment. Maybe it would be a good idea in the future”.

I profoundly hope that the Prime Minister will reconsider. David Cameron has a shining opportunity to stimulate a modern Northcote-Trevelyan/Haldane equivalent, and something a bit more, either by encouraging a parliamentary commission or creating an inquiry on which non-parliamentarians could sit. It need not stymie, as some in the Cabinet argue, the Civil Service reforms that are under way—far from it. The Civil Service does not, and I am sure would not, sag back with relief if such an inquiry was established.

I am not a “golden ager” or a seeker after what the much missed Lord Dahrendorf once called “a better yesterday”—I think he was rather unkindly referring to the SDP. Can we see in the hand that history has dealt us—that extraordinary mixture of people and processes and that jumble of departments overseen by a centre which some say is too powerful and some say too weak—the ingredients of a highly functional, self-regenerating, top-flight system of government? We need the inquiry and we need it soon. David Cameron has the chance to do a Gladstone and a Lloyd George for the 21st century. I hope he seizes it.

--- Later in debate ---

[Lord Hennessy of Nympsfield]

My Lords, we have had a terrific debate. I am aware of the clock and I shall be brief.

First, I thank the noble Lord, Lord Wallace of Saltaire, for the care and thought of his reply. But I must express some disappointment about his views—reflecting the Prime Minister’s views, as he says—on the big inquiry, although I note what he says about little inquiries. No doubt we shall come back to that.

I thank, too, my stellar PhD student, the noble Baroness, Lady Hayter—terrific PhD student, like no other—for her and the Labour Party’s open-mindedness on the big inquiry. Above all, I thank all noble Lords who have contributed to the debate for their multiple wisdoms, the cornucopian wealth of their cumulated experience and their stimulating reflections. I think it is a record that we have had five former Cabinet Secretaries speaking—I do not think we have had five breathing at the same time before.

A final thought: the Hansard of today’s debate could serve as a very fine submission, a very good briefing paper for the inquiry, in whatever form it comes, whenever it comes. It is just a matter of time. Today’s Hansard will be up there, shimmering, ready. I beg to move.

Motion agreed.

Armed Force: Constitution Committee Report

Lord Hennessy of Nympsfield Excerpts

Thursday 28th November 2013 Lords Chamber

[Lord Hennessy of Nympsfield (CB)]

My Lords, I declare my membership of the Chief of the Defence Staff’s Strategic Advisory Panel, though I have not given my views on the matter before your Lordships’ House this evening during any of the panel’s deliberations.

It was the late Viscount Stansgate, father to Tony and David Benn, who said that the fundamental purpose of the House of Commons was to control the purse and the sword. It used to be thought that Parliament controlled the sword by controlling the purse; that kings, and later Prime Ministers and Cabinets, could wage war only if the House of Commons granted sufficient supply to pay for them. That changed in the era of “fight with what you have got” conflicts, such as the Falklands War, which came out of the blue in 1982, requiring the putting together of a task force without time to convert British defence industries to a war footing, although some crucial procurements were very swiftly stepped up.

Ours is also an era when wars are no longer declared, a point to which my noble and gallant friend Lord Guthrie alluded a moment ago. The last time the United Kingdom did so was, I think, against Siam in January 1942. A declaration of war against Argentina was considered over what one might call the “Falklands weekend” in the first days of April 1982 and the 1939 file on how to do it was sent for. It could not be found. A search was mounted in what was then a called the Public Record Office. Still no file was found. It turned up 12 years later in 1994. It was just two sides of paper, drawn up for the Foreign Secretary, Lord Halifax, by the Foreign Office’s legal adviser, Sir Gerald Fitzmaurice, on the day of the Molotov-Ribbentrop Pact, 23 August 1939. On 12 September 1939, it had been consigned to the FO’s registry in a collection known as “General and Miscellaneous” and therefore lost for 55 years.

A number of Select Committees in both Houses, as we have heard, have examined the shift of war-making from the ancient prerogatives of the Crown exercised by Ministers to the convention that, if time and circumstances permit, the House of Commons will have the ultimate say on peace and war in a substantive Motion. I welcome the latest of these examinations, the report from your Lordships’ Constitution Committee, which lays out the current position on future options clearly, concisely and persuasively—so persuasively that I have to confess that its report of July 2013 has changed my mind. I used to think it desirable that at least some of the war-making powers should morph from the back of an envelope not just into a convention, which is where we are now, but on to the face of a Bill, so profound, fundamental and laden with consequences, foreseeable and unforeseeable, is the question of peace and war. I shall return in a moment to my second thoughts.

There is a spectrum—a hierarchy of needs and contingencies—on this most sensitive of constitutional matters. Some threats by their very nature require the specific constitutional arrangements for tackling them to remain what one might call prerogative pure.

I shall give two examples. The first is the almost unthinkable contingency of a Prime Minister authorising nuclear retaliation after a nuclear assault on our islands. This responsibility falls to the Prime Minister and to usually two so-called nuclear deputies, lest the PM is wiped out straightaway by a bolt from the blue. If the alternates are killed as well, the Prime Minister’s instructions, to retaliate or not to retaliate, from beyond the grave are inside the inner safes in the control rooms of all four of the Royal Navy’s Trident missile-carrying Vanguard-class submarines. As we debate this evening, the boat carrying one of David Cameron’s so-called last resort letters is somewhere deep and undetectable in its patrol area beneath the swell of the north Atlantic.

A second example of prerogative pure decision-making is the, I regret to say, far more likely contingency of the Prime Minister and his three or four alternates having to make the decision—which they have all exercised—on whether to authorise RAF Typhoons to shoot down a civil aircraft which there is reason to believe is on a 9/11 mission against our country and is ignoring an array of indicators and instructions from the Typhoons and air traffic control to divert and land at Stansted.

The central question before us focuses, however, on the deployment and use of British Armed Forces beyond our territory in circumstances that allow for sufficient time for the question of peace and war to be placed before Parliament. Developments this century have created a near consensus not just on the desirability of the House of Commons voting on a substantive Motion, but on the Government providing ingredients for the debate that should be placed before the Chamber before the Division Bells sound.

They include a full opinion, not a shrivelled one, from the Attorney-General on the legality of the deployment proposed—an intelligence assessment containing as much as can be safely divulged about what is known to the Government through their mix of secret and open sources. Also desirable, though humility is needed here on the part of all Governments, is an assessment of the duration of operations and the eventual exit arrangements from foreign soil.

The question is whether the existing convention on consulting the House of Commons is all that is needed to ensure that future Governments in anxious and uncertain times retain a sense of due process and a duty of care and consultation to Parliament. I was pleased when the Foreign Secretary said on 21 March 2011 during the Commons debate on Libya that the coalition would,

“enshrine in law for the future the necessity of consulting Parliament on military action”.—[Official Report, Commons, 21/3/2011; col. 799.]

I understand, however, that real difficulties have been experienced in framing such a statute in a way that reflects the contingencies that our country might face. The noble and gallant Lord, Lord Guthrie, was very eloquent and persuasive on that. The report of your Lordships’ Constitution Committee makes plain how stretching such a task is, which is why I have changed my mind somewhat on the feasibility of a use of Armed Forces Act for the UK.

However, we need to buttress the existing convention with a House of Commons resolution. Conventions can be friable and fragile. They can crumble at the touch of a powerful, insensitive and determined Executive, especially in circumstances where one’s country and its allies are living and breathing in the shadow of potential armed conflict.

House of Commons resolutions, by contrast, are things of sinew and, one would wish, endurance. I hope that the noble Lord, Lord Wallace, when he winds up, will give a more detailed explanation of why the coalition has ruled out the framing of a “Use of Armed Forces” resolution in time for it to be put to the House of Commons before the end of this Parliament, although I recognise the force of what my noble and gallant friend Lord Guthrie was saying.

In the mean time, I thank the noble Baroness, Lady Jay, and her colleagues for the considerable service that their committee has provided for your Lordships’ House with this report on such a fundamental constitutional matter.

Accountability of Civil Servants: Constitution Committee Report

Lord Hennessy of Nympsfield Excerpts

Thursday 7th February 2013 Lords Chamber

[Lord Hennessy of Nympsfield]

My Lords, each generation needs to re-examine its notions of Crown service and the accountabilities that go with it. I add my thanks to the Constitution Committee, and its chair, the noble Baroness, Lady Jay, for their resonant report of last November. It covers a great many of the crucial ingredients of what one might call the governing marriage at the heart of the British system; a marriage which brings together transient if, in the end, dominant Ministers and permanent, career, non-political civil servants in a relationship that one hopes will be greater than the sum of its parts. However, there has existed over the past 40 years a third party to the classic governing marriage in the shape of temporary, politically appointed special advisers who can bring great benefits to the work of the established couple but occasionally can also produce bursts of friction that can induce a serious domestic.

I am pleased—even relieved—that in general terms the Constitution Committee’s report has endorsed the main elements of the standard model in which civil servants are required to provide what the committee calls “candid and fearless advice” to Ministers in return for their Secretaries of State remaining can-carriers-in-chief in Parliament, in an age in which, quite rightly, senior officials are expected to give evidence to Select Committees of both Houses and to be visible and vocal to a degree not experienced by their forebears before the House of Commons created its departmentally related Select Committees in 1979.

I am particularly pleased that the Constitution Committee has emphasised in clear and powerful terms the indispensability of sustaining the classic career Civil Service virtues of integrity, honesty, objectivity and impartiality as enshrined in statutory form for the first time, as other noble Lords have mentioned, in Part 1 of the Constitutional Reform and Governance Act 2010—a mere 157 years after the lustrous Northcote-Trevelyan report of 1853 declared that such essentials should enjoy the protection of statute.

It is this theme upon which I should like to concentrate today. Rightly or wrongly, there has been a whiff of potential politicisation of the very senior ranks of the Civil Service in the Whitehall air since last June when the coalition published its Civil Service Reform Plan. It is the so-called “Action 11” section of that plan that has simulated this tang of unease. Action 11 urges:

“Allowing Secretaries of State to have greater influence in the appointment of the departmental Permanent Secretary”—

as this—

“increases the chances of the relationship working successfully”.

Add to this the proposal for the appointment of,

“a very limited number of senior officials”,

from outside the career Civil Service,

“for time-limited executive/management roles”,

to fill gaps where,

“the expertise does not exist in the Department”,

and you may have created the possibility of seeping politicisation-by-stealth of the senior ranks.

I hope that the noble Lord, Lord Wallace of Saltaire, who is both a scholar of the workings of Whitehall—the Foreign and Commonwealth Office in particular—in his civilian life, if I can call it that, and a member of the new Civil Service Reform Board, established to implement the June 2012 reform plan, will be able to sing out a ringing declaration that this is not now and will not become the purpose and policy of the coalition as the promised review of Permanent Secretary appointments proceeds this year.

There have been rumours, mentioned by other noble Lords, that a Bill is being considered that would undo those parts of the Constitutional Reform and Governance Act 2010 that capture the prized principles of a politically impartial Civil Service recruited and promoted on the basis of merit and not on the political beauty of a candidate’s opinions.

These principles were one of the greatest gifts of the 19th century to the 20th in our country. If they foundered in the second decade of the 21st, it would be as tragic as it was ironic, as other noble Lords have mentioned, given that the country had waited a century and a half to have these precepts draped in the protective clothing of statute only to have them torn away a few years later because a set of Ministers had become irritated with their particular partners in the governing marriage.

I have attempted to discover if this is so. Mercifully, so far, I have found no trace of a “Stuff Northcote and Trevelyan” Bill, which I offer as a suggested title, in the minds of the current Whitehall guardians of the constitution. Yet I remain anxious. Why? Because Action 11 sounds to me, to be candid, like a hissy fit: an audible sign that all is not well in at least some of the relationships between Ministers and senior civil servants above and beyond the usual tensions that arise when Governments seethe through their mid-life crises, when it becomes quite plain that the great intractables of British society— economy and government —have become no more malleable because it is you and your colleagues in office rather than your rivals.

During such political rites of passage, it is tempting to blame the civil servants, the permanent fixtures in the choreography and geography of our governing institutions. Could it be that my traditionalist instincts have masked, for me, a set of new realities in the nature of government and politics that make the mid-Victorian nostrums of Sir Stafford Northcote and Sir Charles Trevelyan invalid at best, and positively harmful at worst?

It was the begetter of the Northcote-Trevelyan inquiry and the implementer of their report, Mr Gladstone, who wished, as his biographer Colin Matthew put it, that:

“A civil service appointed by patronage and influence would give way to a non-political administrative class”,

and that while the 17th century had been an age ruled by prerogative, and the 18th by patronage, the 19th would become one of rule by virtue. There was intense resistance to this notion of meritocracy. Queen Victoria hated it. The Foreign and Home Offices resisted for decades. However, it became the norm for the Home Civil and Diplomatic Services, the Armed Forces and the secret services. Its prime virtue is that Crown servants, in civvies or in uniform, should speak truth unto power: to tell Ministers what they need to know rather than what they wish to hear. Sir Charles Trevelyan had seen this approach first-hand at work in the Indian Civil Service. On his return to the UK, he made his case to the Commons Select Committee on Miscellaneous Expenditure in 1848 and then, as Permanent Secretary to the Treasury, to his new Chancellor, Mr Gladstone, in 1852.

How are the Trevelyans of our day operating his legacy? The Northcote-Trevelyan principles are holding. The Whitehall Senior Leadership Committee, with the involvement of the Civil Service Commission, spins off bespoke panels according to the nature and location of the Permanent Secretary vacancy. It receives direct input from the Secretary of State in the department possessing the vacancy about the qualities and capacities they, the Secretaries of State, are seeking. The leadership committee carries out the interviews and places a handful of candidates above the line, indicating that they are both capable of doing the job and in possession of the Northcote-Trevelyan non-partisan characteristics which would enable them to serve equally well a Secretary of State or Government of a different colour. After all, as other noble Lords have pointed out, we need permanent Permanent Secretaries, not temporary Permanent Secretaries who last for the duration of a single Secretary of State. As has been mentioned, there is already an alarmingly high rate of churn at Permanent Secretary level. The Secretary of State and, indeed, the Prime Minister can veto the outcome and the process starts again. However, the key safeguard is that if you do not meet the Northcote-Trevelyan requirement, you do not get above the line.

It is vital that these processes and the safeguards hold and are not contaminated by the virus of politicisation. Walter Bagehot, in an 1859 essay on Gladstone’s great rival Benjamin Disraeli, wrote how rare it was for a Minister to,

“engrave something new upon his age”.

That is exactly what Gladstone did in unleashing Northcote and Trevelyan in the 1850s, and striving to implement their reform as Prime Minister in the late 1860s and early 1870s. The mark of that engraving is still visible.

I hope that the noble Baroness, Lady Jay, and her committee will continue to watch like hawks for signs of slippage back into the—for some—tempting restoration of political patronage at the top of the Civil Service. As a seasoned public servant put it to me recently, we want neither sofa government nor sofa public servants to sit on it.

I find it hard to believe that Mr David Cameron or his Minister for the Civil Service, Mr Francis Maude, for whom I have a lot of admiration, wish to overturn the Gladstonian gold standard. As for Liberal Democrat Ministers in the coalition, such as the noble Lord, Lord Wallace of Saltaire, that would amount to parricide. As for Conservative Ministers, they have their talismanic figure, too. I am grateful to Mr Nicholas Soames for bringing his grandfather’s words to my attention. In praise of one of his former officials, Winston Churchill said that he was,

“this faithful servant of the Crown, self-effacing, but self-respecting, resolute, convinced, sure of himself, sure of his theme … Governments, Liberal or Tory, came and went. He served them all with equal fidelity”,

consigning his personal,

“sentiments as a purely private affair”.

That is the enduring gold standard.

Civil Service: Training and Development

Lord Hennessy of Nympsfield Excerpts

Monday 2nd July 2012 Lords Chamber

[Lord Wallace of Saltaire]

My Lords, I would have loved to have met the noble Lord when he was a special adviser to observe his skills. We are working with Ashridge, Roffey Park, Westminster Explained and a number of other providers. As we have been working with them, we do not see that this in any sense endangers the impartiality or quality of the Civil Service. Roffey Park, as noble Lords know, is a non-profit making organisation that provides top-class skills. We think that there are advantages in having central control of the Civil Service buy-in, which is Civil Service Learning, but with a variety of provision by a variety of providers.

[Lord Hennessy of Nympsfield]

Could the Minister explain to the House exactly what was wrong with the National School of Government?

[Lord Wallace of Saltaire]

My Lords, the National School of Government provided extensive residential accommodation for extensive residential courses. The Civil Service and other providers are moving away from extensive residential courses to shorter ones, very often for one day each. It is intended that the different mix will be better met and more efficiently provided by a range of different providers.

Constitutional Change: Constitution Committee Report

Lord Hennessy of Nympsfield Excerpts

Wednesday 7th December 2011 Grand Committee

[Lord Hennessy of Nympsfield]

My Lords, just over 51 years ago in the other place, the constitutional historian turned politician, Sir Kenneth Pickthorn, declared that,

“procedure is all the Constitution the poor Briton has”.—[Official Report, Commons, 8/2/60; col. 70.]

Sir Kenneth would have been wiser to have said “almost all the Constitution the poor Briton has”, but there was none the less a profound truth in his words. Over the ensuing half-century, Pickthorn’s constitutional dictum has been substantially and cumulatively modified by a steady flow of statutes and codes, especially over the past 25 years, yet the value and specialness of this report from your Lordships’ Select Committee on the Constitution is the way it bridges Pickthorn’s time and our own, for it reminds us in a powerful and timely fashion of just how vital good and consistently applied procedure is to the health of our everyday constitutional practices and the methods and timetables we use or should use when fashioning new constitutional instruments for the country.

Such questions, I regret to say, rarely excite the electorate. For most people, the workings of the constitution are far from compelling as a spectator sport when lawyer speaks unto academic and footnotes duel between historians and political scientists, but procedure matters, whatever the political weathermakers that drive such considerations away from the electorate’s immediate preoccupations.

In the 1870s, the best ever observer of our national governing ways, Walter Bagehot, declared that,

“our system, though curious and peculiar, may be worked safely; but if we wish so to work it, we must study it”.

Walter Bagehot was writing there of the money markets in his classic work, Lombard Street. How true it remains for the money markets—but it also happens to apply to the workings of the British constitution.

I particularly welcome the committee’s recommendation that Ministers henceforth should prepare what one might call “constitutional impact statements” whenever Parliament is presented with a measure containing a stiff dose of constitutional change lurking in its clauses. The norm ought to be that such Bills should nestle between prelegislative and post-legislative scrutiny, although I noted what the noble Baroness, Lady Taylor, said about the implicit futility of post-legislative scrutiny when a huge Bill has gone through.

Parliament must be the central player, in all its variable geometries on the Floors and in the committees. It should be its own permanent Royal Commission on the constitution. If Parliament is not to be the thinker about as well as the prime arbiter of constitutional measures, it will suffer from what the great Ernest Bevin called a “poverty of aspiration”.

I am not a written constitution man. Part of the constitutional flexibility that we prize comes from our possessing a Gilbert and Sullivan, wandering minstrel-style constitution, a thing of shreds and patches—a mix of custom and practice, precedent, code and statute. I declare an interest as a historian by profession. I naturally prefer what is known in the trade as a historic constitution. But the force of the report before us today is that it cuts with a historical grain. It also has the lesser, if noteworthy, benefit of not having any public expenditure implications that I can see. Virtue is rarely cost free, and we should seize it, cherish it and implement it when we find it.

There may be a problem—indeed, there is—in determining which measures deserve the appellation of a substantial constitutional Bill. Could they be certified as such, like money Bills, and who would so certify them? Governments cannot be the agents for this, because of the extra parliamentary time involved. There is always a certain meanness of spirit within a Cabinet’s future legislation committee and among the business managers on that front. Might the Select Committees have a role here, as the noble Lord, Lord Desai, suggested? But those difficulties are dwarfed by the duty of care that Parliament has when it comes to altering our constitutional practices or designing new ones. The duty of care is especially demanding in the United Kingdom, because of the degree to which our constitution is still unwritten. It has never been better put than by Mr Gladstone when he said that the British constitution,

“presumes more boldly than any other the good sense and good faith of those who work it”.

Notice that verb “work”, again. Far be it from me to sub-edit the grand old man, but he might with benefit have added, “and good procedure, too”.

This report is both Bagehotian and Gladstonian in its philosophy, and I congratulate its framers. I really wish that I could congratulate the Government on their response. I am glad that in their reply to the report they undertook to consider the desirability of a special ministerial statement on the impact of constitutional Bills, but as a whole the coalition’s reply was jaded and underwhelming. It was as if the bumping and grinding of all those huge constitutional Bills that they have sent us has depressed their appetite for still more constitutional change, even of the sensible and procedural kind proposed by the Select Committee. The Government’s response to the report that we have before us was as dreary as it was weary; its mood music was a long, withdrawing sigh. I hope that the Minister will bring a touch of pep and a dash of optimism when he replies to our debate today.

Transparency

Lord Hennessy of Nympsfield Excerpts

Thursday 10th November 2011 Lords Chamber

[Lord Hennessy of Nympsfield]

My Lords, I add my welcome for this morning’s debate, which is on a theme of daily importance to the relationship between the state and the citizen. I, too, keenly look forward to the maiden speech of the noble Lord, Lord Gold. I shall concentrate on a specific, though crucial, element of the question before us: access to public records—the paper exhaust trail left by successive Governments. I shall focus in particular on those contents of the state’s archives deemed too sensitive to be released until at least 30 years have elapsed since pens were put to paper, minutes taken, memoranda composed and the typewriters, in those days past, rattled into action.

I must first declare an interest, as president of the Friends of the National Archives and professor of contemporary British history at Queen Mary, University of London.

A key aspect of the coalition’s transparency agenda that deserves an unqualified welcome and the hosannas of a grateful historical profession is the announcement, on 7 January 2011 by the noble Lord, Lord McNally, that from January 2013 a 20-year rule for record release will replace the old 30-year rule created by the Public Records Act 1967 and brought into force in January 1972. The plan is that each year, starting January 2013, two years’ worth of archive will be opened at Kew until the 10-year gap between the old and the new rules has been closed. I am confident that this fresh documentary flow will fructify quickly in the form first of undergraduate, masters’ and PhD theses, and then in a fascinating new wave of well sourced books of contemporary British history which will swell through the bookshops.

Why am I so confident? Because this is exactly what has happened over the 19 years since the noble Lord, Lord Waldegrave of North Hill, then Minister for Open Government in the Cabinet Office, announced what contemporary British historians came to call the Waldegrave initiative. The noble Lord instructed departmental record offices across Whitehall to re-review those files of interest to scholars which had been held back longer than the 30-year norm to see if they could now be released. The staff of the Whitehall records community and the National Archives rose magnificently to the task. When counting the yield finished in 1998, 96,000 files had been re-reviewed and declassified. I am sure that the total now must be double that.

The Waldegrave product amounted to a new currency with which historians could trade. Much of it embraced once ultra-sensitive Cold War material dealing with nuclear weapons policies, programmes and release procedures, civil and home defence, intelligence and security and transition-to-war planning. To open the World War III war books that had been declassified was to peer into Armageddon.

A stream of richly documented theses and well sourced books has resulted from the Waldegrave initiative. Of course, the documents by themselves are not enough—they never are. Whatever the policy area that gave them birth, their contents must always be blended with the personalities and backgrounds of those who wrote and read them, and the context of the times in which those readers and writers lived and breathed. The files must be revisited, too, with a sympathetic awareness of the hopes that lit the minds of their creators and the fears that darkened them. The historian must always avoid what Edward Thompson once called the “enormous condescension of posterity”. One goes back to the archives to understand the minds behind those memoranda, not to sneer at them.

The old files are an indispensible part of national transparency—our theme this morning. They are a very special phenomenon, a kind of frozen history. The scholar needs to apply a touch of the cryogenicist’s craft to them: you warm up the cold papers a little bit until their limbs begin to twitch; the files then start to breathe a bit—then you can begin to talk to them, ask them questions, bring them to life for yourself and your readers.

The time may well have come, as Whitehall cranks itself up to implement the new 20-year rule, to set in train what might be called “Waldegrave II”—to set in motion another trawl for files, which it was felt in the 1990s were too hot to be released, to see if they can now be transferred to the National Archives for public inspection. If the Government in these times of fiscal constraint were to mount such an initiative, building on the great success story associated with the name of the noble Lord, Lord Waldegrave of North Hill, it would not only receive another loud hosanna of gratitude from the historical community but add lustre to the coalition’s transparency policy.

Still more might that policy be burnished if the Government accepted the Pilling report on official histories, which urged that new histories should be commissioned when funds allow, and the associated Hamilton report on the better marketing of official histories, once that is produced.

Catch-up history is a retrospective form of delayed freedom of information. A confident democracy such as ours should uncover its state paper trail as fully and swiftly as it can, warts and all. Such good practice is an antidote to conspiracy theory and the hijacking of our recent past for the purposes of crude political partisanship. The pursuit of such a policy of transparency is one of those rare activities that result in unalloyed benefit to scholars, the reading public and the quality and integrity of the state that enables it to happen.

--- Later in debate ---

[Lord Wills]

My Lords, it is a pleasure and a privilege to follow the noble Lord, Lord Gold, in his maiden speech. He comes to this House with a most distinguished career in the law and his speech today demonstrated to all noble Lords what an asset he will be to our debates. I understand that when he stepped down as senior partner at Herbert Smith, the law firm that he mentioned, a note was circulated to staff saying that,

“he has brought his own special type of magic to everything he has done since he walked through the doors of Herbert Smith”.

I am sure that all noble Lords who have heard his speech today will be looking forward to seeing more of that magic in this House.

I join previous speakers in congratulating the noble Lord, Lord Elton, on securing this debate on such an important issue. Transparency is crucial in the securing the accountability that is fundamental for the health of a democracy. I also congratulate the noble Lord on what to my ears sounded like a most cogent case for transparency. I declare my interest as a member of the advisory council of Transparency International UK.

I start my substantive remarks by congratulating the Government and the responsible Minister, Mr Francis Maude, on their commitment to transparency through the open data programme. That was started by the previous Government, and was a particular project of Prime Minister Gordon Brown. I am sorry that in an otherwise compelling speech the noble Lord, Lord Elton, did not acknowledge that fact. On this point, I was also sorry that such a distinguished historian as the noble Lord, Lord Hennessy, in congratulating the Government on bringing in the 20-year rule, somehow omitted to mention that that rule was legislated for by the previous Government. Airbrushing history in this way is the opposite of transparency.

[Lord Hennessy of Nympsfield]

My Lords, I take the noble Lord’s stricture on the chin. He is absolutely right, it was an omission, but it was inadvertence rather than malice.

[Lord Wills]

I am grateful to the noble Lord for setting the historical record straight.

I congratulate the Government on the way in which they have taken on the open data programme with real determination and vigour. I was going to rehearse some of the merits of it but the noble Lord, Lord Elton, did it far better than I could. This promises significant immediate constitutional benefits in transferring power to citizens and less immediate but potential longer-term benefits in improving value for money in delivering public services through greater engagement of users. It will also encourage innovative developments by not-for-profit organisations and businesses. Again, the noble Lord set out just how quickly people can take advantage of all the opportunities opened up by this programme. Confidence in the ability of the programme to deliver results must be increased by the setting up of the Public Sector Transparency Board and its distinguished and experienced membership, some of whom I had the privilege of working with when I was a Minister with an interest in this area in the previous Government.

While the Government should be given credit for their achievements in this area, elsewhere their commitment to transparency is not quite so clear. We have already heard from my noble friend Lord Prescott on one aspect of this, but I want to focus on the Freedom of Information Act. When I raised this issue in your Lordships’ House, the responsible Minister, the noble Lord, Lord McNally, responded to my criticism by accusing me of rewriting history because:

“There has been an absolute tsunami of transparency. My right honourable friend Francis Maude has been frightening the life out of Whitehall and his ministerial colleagues by the way he has been forcing through transparency”.—[Official Report, 10/10/11; col. 1455.]

That is perhaps not the most fortunate choice of image for those of us who believe in the benefits of transparency but, more importantly, his response wrongly conflates the work on open data and on freedom of information. They are not the same. There is one critical distinction between them: the open data initiative, for all its considerable merits, is a top-down programme. The Government decide what data sets to release. In contrast, the Freedom of Information Act allows the citizen to decide what information they want to have, and then there is an established process that decides what should be released and what withheld.

Those are twin approaches to securing greater transparency and they ought to be complementary. However, there is an asymmetry in the Government's approach, with enthusiastic progress being made on open data while freedom of information has more or less stood still so far—in fact, in some key areas it is actually going backwards. We are a year and a half into the lifetime of this Government and so far they have done virtually nothing to extend the scope of the Freedom of Information Act beyond the actions already set in train by the previous Government.

I have been criticising the Government about this for many months so, after all these criticisms, I was delighted to see just this week that an exchange in the other place suggested that the Government are at last consulting on extending the Freedom of Information Act to other organisations. I hope that those consultations will be followed by action in the near future, and another 18 months or so will not be allowed to pass before anything happens.

On its own this lack of progress to date would be disappointing, but what is worse is that two landmark Bills brought forward by this Government, both referred to by the noble Lord, Lord Elton, actively restrict the scope of the right of the citizen to secure information under the Freedom of Information Act. The Localism Bill envisages that a growing proportion of local authorities' functions will be carried out for them by other bodies under contract. As it stands, that will significantly weaken the right of the citizen to make freedom of information requests about those functions. I tried to help the Government to remedy what I hoped was an unintended consequence of their legislation by submitting amendments both in Committee and on Report, but all were rejected out of hand. As a result, far from increasing transparency as the coalition agreement promised, the Localism Bill decreases it.

That is not all. Under the Health and Social Care Bill, NHS work will be performed in future either by NHS bodies or by independent providers. Although the independent providers will not be directly subject to the Freedom of Information Act, they will be subject to a contractual obligation to co-operate with the commissioning bodies in answering freedom of information requests. So far, so good. However, the disclosure clause applies to information held on the commissioning body’s behalf,

“for the purposes of this Agreement”,

and the standard NHS contract goes nowhere near covering the full range of information currently available under the Freedom of Information Act from public authorities. It appears, for example, that any request for the provider’s correspondence with suppliers whose products have proved to be substandard are likely to be met with the response that this is held for the provider’s purposes, not the commissioning body’s, and therefore is not subject to disclosure.

It gets still worse. The shredding offence in Section 77 of the Freedom of Information Act applies when an authority or a member of the authority’s staff deliberately destroys, amends or conceals a record after it has been requested in order to prevent its disclosure, but if a contractor shreds a record in order to avoid having to pass it on to the commissioning body to answer an FOI request, the contractor commits no offence. Again, if a public authority claims that it does not hold requested information, the Information Commissioner can investigate whether this claim is true; but if a contractor claims that it does not hold particular information, there is no mechanism for validating that claim. The contractor would not be subject to the commissioner’s jurisdiction. In fairness to the Government, they have not ruled out addressing these issues; they have simply pushed them into the long grass, beyond post-legislative scrutiny of the Freedom of Information Act, and there is no guarantee at all that even then they will take action.

In the mean time, which may stretch on for years, citizens will be denied access to information that they currently have about areas of potentially great concern to them, covering all the range of local authority services and what could turn out to be matters of life and death in the NHS.

In conclusion, the report card on this Government’s commitment to transparency and information is mixed. Where they remain in control of the data released to the people they serve, the commitment should be applauded. However, where the citizen is more in control, then this Government have been pedalling backwards in crucial areas. Sadly and regrettably, this tarnishes their record.