Civil Service: Politicisation

Lord Thomas of Cwmgiedd Excerpts

Thursday 28th November 2024 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I too join in thanking the noble Lord, Lord Butler, for securing this debate, in which I wish to concentrate on one point: the role of His Majesty’s Civil Service in the relationship between the branches of our constitution, in which it has played an indispensable role, in my experience.

Under the last Labour Government, there was a profound change to the relationship between the branches of government through two means. One was the Human Rights Act 1998, and the second was the reform to the office of Lord Chancellor. Prior to that time, the Lord Chancellor had operated as the linchpin of the constitution, enabling the judicial, executive and parliamentary branches of government to function smoothly and generally harmoniously.

The question then arose of how that relationship was to be managed without the Lord Chancellor. Here it is important to see what role an independent and impartial Civil Service has played in enabling our constitutional relationships to function properly, for I believe that without an impartial and independent Civil Service, the relationship could not function as it is now functioning.

I will take three examples, drawn from my own experience. The first is the position of the Permanent Secretary to the Secretary of State for Justice. I will use modern terminology, because it has all changed so much over the years. Taking that position, when one looks at what was put in place in 2003, many aspects of the relationship between the Secretary of State for Justice and the Lord Chief Justice required a working partnership. In my experience, having worked with Permanent Secretaries in the department since 2003, it would have been impossible to make that partnership work without an impartial and independent Civil Service. There are obvious tensions, and they have to be managed.

The second is the position of the Government Legal Department. I sometimes feel that it is possibly the least appreciated, but most vital, part of the functioning of our constitution. Its head and the legal directors in the various departments must be able to give impartial advice, uninfluenced by politics and with a clear understanding of constitutional convention, in the certain knowledge that the advice they give will at times be most unwelcome. They must not suffer the fate of lawyers elsewhere who give unwelcome advice. From my experiences, although time does not permit me to detail them, I am convinced that, without that independence and impartiality, we would have had a number of very serious problems that would have interrupted the smooth running of our constitution.

I will say a brief word about the Cabinet Secretary. I believe that it was the late Lord Jeremy Heywood who instituted regular meetings between the Lord Chief Justice and the Cabinet Secretary. Those were indispensable to ironing out bumps in the road that resulted from the tensions inherent in the relationship. Without someone who is impartial, apolitical and absolutely committed to understanding the constitution, such meetings would have been impossible. You can test the efficacy of this by looking at the emergency brakes on the relationship: the ability of the Lord Chief to speak in Parliament and the very elaborate appeal system if money is not provided.

We should be profoundly grateful and not change the position of His Majesty’s Civil Service in these respects without a very clear understanding of what it has achieved and must continue to achieve. I welcome His Majesty’s Civil Service as playing a vital role in our constitution for the future.