Permanent Secretaries: Appointment and Removal (Constitution Committee Report)

Baroness Drake Excerpts

Thursday 9th May 2024 Grand Committee

Moved by

[Baroness Drake]

To move that this House takes note of the Report from the Constitution Committee Permanent Secretaries: their appointment and removal (17th Report, Session 2022-23, HL Paper 258).

[Baroness Drake (Lab)]

My Lords, between 2013 and 2020, the number of Permanent Secretaries leaving averaged 5.7 a year. In 2020, 12 Permanent Secretaries or equivalents left their posts, including the Cabinet Secretary. In September 2022, the Treasury Permanent Secretary, Sir Tom Scholar, left his post on the day the right honourable Elizabeth Truss MP became Prime Minister. This was widely reported as a sacking, in order to move economic policy away from “Treasury orthodoxy”. Simon Case confirmed that there was no question of underperformance by Sir Tom Scholar. On the same day, Sir Stephen Lovegrove was moved from the role of National Security Adviser, a move that the noble Lord, Lord Sedwill, described as being “without merit”.

Since the Constitution Committee’s 2012 report, The Accountability of Civil Servants, the relationship between Ministers and civil servants had become more exposed and controversial. Recent departures raised questions about the nature of ministerial involvement in appointments and departures, and the possible desire to appoint politically sympathetic candidates. The committee decided to inquire into safeguarding the constitutional balance required on the appointment and removal of Permanent Secretaries.

The Civil Service Code sets out the role of the Civil Service as

“an integral and key part of the government of the UK”

that

“supports the government of the day in developing and implementing its policies”,

carrying this out with dedication to the core values of integrity, honesty, objectivity and impartiality. The code was put on a statutory basis by the Constitutional Reform and Governance Act 2010—CRaG—and those values are reflected in the Act’s minimum requirements that civil servants

“carry out their duties for the assistance of the administration as it is duly constituted for the time being, whatever its political complexion”.

The committee concluded that the impartiality and perceived impartiality of the Civil Service is a central tenet of our constitution and not seriously challenged. It recommended that any fundamental challenges must be made consciously and openly, with careful scrutiny and cross-party agreement. Under no circumstances should significant changes to the constitutional balance of the appointment and departure process for senior civil servants take place through unscrutinised evolution of practice. Can the Minister unequivocally confirm that the Government agree with those conclusions?

The CRaG Act placed the Civil Service Commission and the principles of recruitment on a statutory basis, embedding appointment on merit and after fair and open competition, and granting the Prime Minister power to manage the Civil Service. A memorandum of understanding agreed in 2010 set out the respective responsibilities of the Government and the commission, which,

“in discharging its functions, is independent of the Government and the Civil Service”.

Simon Case, the Cabinet Secretary, told us that the memorandum “requires updating”, and that a new framework was expected to be finalised in the coming months. When can we expect the new framework agreement to be published? Will it make clear that the CRaG Act allows the commission to assert greater independence, should it wish to, as the committee was advised by the Cabinet Secretary?

The recruitment principles published by the commission provide for ministerial involvement. In summary, Ministers can input into the job description, the person specification and the composition of the panel, and they can meet candidates. That provision is to operate in a manner that preserves the principle of merit and prevents engineering in favour of a preferred candidate. The first commissioner said:

“We give permission to appoint. It is not a duty to appoint”.


The committee concluded that that provision strikes an appropriate balance.

It was apparent, however, that Ministers were not sufficiently aware of the extent of their influence over appointments, or the limits on it. As noble Lord, Lord Maude, observed, Ministers already had

“a high degree of involvement in the appointment of permanent secretaries and directors general”,

but there was a case for more transparency. This echoed the concerns of the First Civil Service Commissioner.

It is incumbent upon Permanent Secretaries to brief incoming Ministers on how they can be involved in the appointment of civil servants, which should help to avoid some tensions. For very senior appointments, the Civil Service Senior Appointments Protocol applies. It provides for the selection route—an external or internal competition or a managed move—to be decided by the Senior Leadership Committee. The First Civil Service Commissioner and the Cabinet Secretary appeared to have different nuances as to who decides on the selection route. The Cabinet Secretary agreed to revise the protocol to reflect current working practices—in which, in our understanding, the Cabinet Secretary and the Prime Minister decide.

We found the Senior Leadership Committee to be an opaque body; its role was described in apparently contradictory terms. We recommended that its considerations should be as transparent as possible, providing the commission with an annual account of its activities. We found the governance concerning selection routes for very senior appointments to be convoluted and unclear. The Civil Service Senior Appointments Protocol and the Recruitment Principles should both be updated to provide the necessary clarity. The Cabinet Secretary, consulting the First Civil Service Commissioner, committed to ensure that this will be done. Will the Minister update the Committee on when we can expect to see an updated protocol? What processes have been put in place to give greater transparency to the work of the Senior Leadership Committee?

Simon Case told us that discussions had taken place through the Senior Leadership Committee, the Civil Service Commission and ACOBA—the Advisory Committee on Business Appointments—on how to make external by default recruitment work, and that proposals were imminent. We look forward to seeing the forthcoming work on the rules concerning business appointments.

The noble Lord, Lord Pickles, chair of ACOBA, wrote to the committee, welcoming our work on safeguarding the constitutional balance and advising that,

“ACOBA has long argued that”

the business appointment rules

“are not fit for purpose”.

Will the Minister update the Committee on the Government’s implementation of their proposals on reforming the business appointment rules, changes to Civil Service contracts and a ministerial deed to make the business appointment rules more enforceable?

The Recruitment Principles do not apply to the Cabinet Secretary, who is appointed by the Prime Minister on the advice of the retiring Cabinet Secretary and the First Civil Service Commissioner. The committee recommended that, given the importance of that role, including as head of the Civil Service, the appointment process should be made more open and transparent while maintaining that the Prime Minister make the final choice. The current and previous first commissioners share that view. It would also have the merit of strengthening Permanent Secretaries’ confidence in the management of the Civil Service.

Speculation about the role of special advisers in the appointment of senior civil servants has also impacted confidence. Alex Thomas from the Institute for Government captured the problem in his expression of concern at the idea that a special adviser such as Mr Cummings might purport to have recruited or dismissed officials. He said:

“We only have his tweets and evidence to go on … but I think that Dominic Cummings’s sense of, ‘I appointed so-and-so’, or ‘I dismissed so-and-so’, is deeply unhealthy. It obviously formally comes back to the Prime Minister and is done in the name of the Prime Minister. A reinforcement and underpinning of that important principle would not go amiss”.


The noble Baroness, Lady Stuart, the First Civil Service Commissioner, expressed her view that:

“The two absolute red lines … are, first, that Ministers cannot see candidates without the presence of a commissioner or representative of the commission; and, secondly, that special advisers must play no role in the … process … They cannot be in the room”.


The committee concluded that, although discussions between Ministers and special advisers are impossible to regulate, the decision with respect to appointments must be that of the Minister. Special advisers must not be formally involved or make public statements. What further measures are being taken to ensure that Ministers and special advisers understand that?

In the rare circumstances a Permanent Secretary is dismissed on performance or misconduct grounds, this is a human resources matter, which should follow the process of performance and misconduct management outlined by the Cabinet Office. Problems arise if ministerial conduct appears to undermine that due process. Confidence in the departure process requires careful scrutiny. The committee recommended that the Civil Service Commission should play a role in the dismissal or departure of senior civil servants on performance or conduct grounds by ensuring that due process is followed.

Recent removals on what appear to be political or ideological grounds might indicate insufficient procedural safeguards around departures. We recognise that a Permanent Secretary has to foster a positive relationship with the Secretary of State. However, forming a positive relationship is a two-way process. Incoming Ministers should allow Permanent Secretaries time to establish a productive relationship before seeking their removal.

The committee concluded that there is a case for formalising the departure process in situations where there is no issue of performance or misconduct. It recommended that the process should be set out in writing, requiring Ministers and the Prime Minister to explain to the Civil Service Commission—in private if necessary—their decision to remove a senior civil servant. A written record of the decision and the reasons for it should be kept. These processes would need to be sufficiently flexible to allow a Minister to replace at short notice where a working relationship has broken down.

The critical point about the departures of Sir Tom Scholar and Sir Stephen Lovegrove was the extremely short timeframe in which the decisions were enacted. It conveys that no meaningful process could have possibly been followed. Some recent high-profile removals have been conducted in the public eye and might be seen to reflect a desire on the part of Ministers to personalise appointments and assert their authority.

Some witnesses were of the view that in recent years Ministers have been more willing to make a public statement by dispensing with the services of a civil servant. Such behaviour risks senior Civil Service turnover coinciding with ministerial churn, reinforcing the perception of politicisation, damaging institutional knowledge—we probably saw this acutely in the case of Sir Tom Scholar—and weakening the governance of the country. What steps are the Government taking to mitigate the potentially chilling effects on civil servants of the perception that recent high-profile removals of Permanent Secretaries lacked merit or due process, or were driven by personalisation or political grounds?

There was also concern that high-profile removals of senior civil servants could lead to officials hedging their advice. This is particularly pertinent to Permanent Secretaries’ role as accounting officers, with a duty to

“assure Parliament and the public of high standards of probity in the management of public funds”.

They routinely scrutinise proposed government policy against the criteria of probity, propriety, value for money and feasibility. The accounting officer function is a valuable aspect of the constitution, relying on speaking truth to power. A shift towards ministerial patronage risks a chilling effect, to the detriment of the public interest.

I turn to the issue of devolved Administrations. For Permanent Secretaries and their equivalents who are accountable to the Scottish or Welsh Government but who belong to the UK Civil Service organisation, there is potential for confusion about the boundary between devolved competence and reserved matters. The most pertinent recent example was the First Minister of Scotland’s decision in March 2023 to appoint a Minister for Independence. Simon Case agreed that

“it would be ‘unusual and a bit worrying’ if civil servants in Scotland were supporting an effort to ‘break up the United Kingdom’ and provided assurances that he was examining this issue to determine whether ‘further guidance and clarification’ should be issued to civil servants ‘about what is and is not appropriate spending’”.

The committee was concerned about this point—indeed, it still is. It concluded that

“it is important that the principle of a single civil service across England, Wales and Scotland is maintained”.

It said that the Cabinet Secretary must

“manage challenges as they arise”

and provide clarity that senior

“civil servants … should work and spend public funds exclusively on matters within devolved competence”.

When will further guidance and clarification be issued to senior civil servants in Scotland and Wales? What guidance is given to Permanent Secretaries in Scotland and Wales on seeking a written direction from the relevant devolved Minister?

I conclude where I opened, with the committee’s conclusion:

“Under no circumstances should significant changes to the constitutional balance of the appointment and departure processes for civil servants take place through unscrutinised evolution of practice”.


I beg to move.

--- Later in debate ---

[Baroness Drake (Lab)]

My Lords, I thank the Minister and everyone who has participated in this debate. It has been hugely important for me because I am always reading and thinking about these issues, and I have learned a lot for when I go back to the committee. Even if I do not agree, it is important to understand what people think because you cannot solve a problem without understanding what all the parties to an issue feel.

I shall start with the Minister’s response and then pick up one or two points that came up in the debate. I thank the Minister for many of the positives in her response. I note that things are moving apace on the framework agreement, the protocols, the Senior Leadership Team, the business appointment rules and the guidance for civil servants in Scotland and Wales. One of the problems is that it is the consistent experience of the Constitution Committee that we get letters assuring us that work is moving at pace and is in progress and that we will get revised editions shortly, but they do not materialise. That is a pattern that is building up. I hope that it does not happen in this case and that we see the product and do not end up with another Constitution Committee report in three years’ time saying, “We put all this and there were all these promises, but they didn’t materialise”. I urge the Minister to stay on the case so that we see the revised documents.

Regarding the involvement of the Civil Service Commission in departures, we did not argue that it had anything at all to do with the merits of the case. That was not part of what we said. It was that due process was followed, which is about raising confidence in the integrity of the governance structure. Not much process is set down about departures that are not based on misconduct or performance, for which there is standard Cabinet Office guidance; it is about those other areas. There is no due process, and no one has oversight of that. It was not about the merits; the report did not say that the Civil Service Commission is put in a difficult position when appointing people but asked that some process be laid out and that the commission monitors that that process has been followed in those circumstances.

The noble Lord, Lord Maude, mentioned merit and said that there is no objective test. That is true; it is the rules not of science but of judgment that come into play here. In a sense, the operationalising of how you apply that judgment is set out in the Recruitment Principles, which says that merit means,

“the appointment of the best available person judged against the published criteria for the role”.

Ministers can get involved, as the First Civil Service Commissioner pointed out, by iteratively engaging with the Civil Service Commission on the features of the job description so that their priorities are reflected in it and pursued at interview. It is quite an iterative process for Ministers in that situation. You could also try to define it by negatives: it is not done by patronage or by allowing preferred candidates because the qualifications of a Minister’s preferred candidates are not necessarily those with merit, as defined in CRaG, for the qualities of a senior civil servant.

Our key point on special advisers was that Ministers must own this decision. Special advisers will be partial—that is not a bad thing; Ministers want them to be partial—but in the recruitment of civil servants their partiality may not align with the merit that we have just been through. That is the fundamental contradiction. The noble Lord, Lord Maude, complimented the noble Baroness, Lady Stuart, on having the experience of both sides having been in the Civil Service Commission and a Minister. That is true, and it means that her red lines, which included special advisers, warrant merit because she has seen it from both sides. Special advisers can influence in a partial way something that should be decided on a more dispassionate system of judgment.

As ever, the noble Lord, Lord Young, demonstrated that it is not necessary to be directly involved in appointments or departures to care about and want to pursue improving the quality of governance and government in our democracy. It should not be reserved for privileged participants because if you have a weakness in group thinking, you will never break out of it if a closed user group are the only people who express opinions.

I accept the point about trend. On the one hand, the Government welcome that we did not see a trend while, on the other, the noble Lord, Lord Young, said, “I hope you are right”. I think you have to see it in the context of our report. He makes a legitimate point that there is a case for a deeper dive over a longer timeline into how this has evolved. We did not do that in our terms of reference and neither, strictly speaking, did we have the capacity to do so. We saw a trigger to look at this again because of what has happened since 2020, in particular, but on the evidence we had over a much shorter time period, we did not have the evidential base to say that there was a trend. If someone wants to look at it over a 20-year timescale, that would be a different issue. So, I can neither agree nor disagree because we never went there; we went for a much narrower look at things.

On the point made by the noble Lord, Lord Butler, about departures and dismissals and who can or cannot dismiss, we seized that point quite early. This is why we used the word “departures” all the way through because we did not want to go into that territory, although we knew it was difficult, for exactly the reasons the noble Lord set out, and because we have a duty of care to the senior civil servants impacted and there is a confidentiality wrap around individual cases. We therefore talked about “departures” rather than pointing to specific individuals or categories. However, early on we interrogated the issue of exactly who has the right to dismiss and what is the status of senior civil servants. That is captured in the report.

Finally, on the point made by the noble Lord, Lord Wallace, we all want the best people to lead the Civil Service for the public good and wider strategic outcomes, not just for the efficiency of Ministers. He raised the capability of senior civil servants to support a Government of whatever political complexion. There will be details of policy about how you raise the standard and skill set, but we do not go into details of policy because we are trying to capture the essential constitutional implications.

I have really enjoyed this debate and learned a lot from it. We felt strongly about this, but our remit is always to keep an eye on the constitution. I have to keep saying to my committee: “It doesn’t matter how passionate or unpassionate you feel about a given government policy. Our job is to identify its constitutional implications and calmly lay them out. It’s then for the Government and the House to respond to what we say”.

Motion agreed.