Permanent Secretaries: Appointment and Removal (Constitution Committee Report)

Baroness Finn Excerpts

Thursday 9th May 2024 Grand Committee

[Baroness Finn (Con)]

My Lords, I welcome this debate on the appointment and dismissal of Permanent Secretaries and declare my interest as a member of the Constitution Committee and a former special adviser. I thank the clerks, my fellow committee members and especially the chair, the noble Baroness, Lady Drake, for their careful navigation of this sensitive terrain—and for putting up with me. I also thank the witnesses who appeared before us and helped illuminate such a nuanced subject.

The appointment and dismissal of Permanent Secretaries are two of the most important powers exercised by a Prime Minister. Although it was considered heretical 15 years ago, today a Prime Minister exercising choice in the selection of Permanent Secretaries is widely accepted and formally codified in the Civil Service recruitment principles. I pay tribute to my noble friend Lord Maude for his tenacity in ensuring that this happened.

The power to dismiss, however, has not enjoyed the same degree of acceptance, for entirely understandable reasons. We can, no doubt, all recall instances where the dismissal of a Permanent Secretary may or may not have been justified. Some have been retired early, having openly revealed their private opposition to government policy, while others have been summarily dismissed on the basis of ministerial aversion to their supposedly orthodox views. In each case, the dismissal has been heavily debated. It is to be regretted that the United Kingdom does not, as in other jurisdictions, have any clear policies setting out the role of Ministers in the potential dismissal of Permanent Secretaries.

The Civil Service has since 2010 been underpinned by the Constitutional Reform and Governance Act, or CRaG. It makes clear that all competitions for appointments to the Civil Service should be on the basis of merit, following a fair and open competition, and regulated by the independent Civil Service Commission. The Act, however, has its deficiencies. Although it formally provides for an independent commission, the commission is entirely dependent for its staffing, premises and budget on the Cabinet Office and its chief executive is line managed by the propriety and ethics directorate within the Cabinet Office, which in turn reports directly to the Cabinet Secretary.

The Act is also almost unique in the developed world in placing no direct controls on the promotion of existing civil servants through purely internal mechanisms. An internal exercise all but guarantees the selection of an existing civil servant and deprives, in most circumstances, the Civil Service Commission of its oversight function. I acknowledge the work of the Secretary of State at Defra, who, in his previous role as Chancellor of the Duchy of Lancaster, put in place a mechanism to ensure that all Civil Service vacancies had to be advertised externally by default, unless otherwise agreed by Ministers. It is telling that, according to the IfG report published today, only 22% of Permanent Secretaries have had experience in a leadership role outside government for more than three years.

To avoid the risk of the very highest positions being gifted through patronage, additional controls have been placed on the internal promotion of candidates to director-general and Permanent Secretary roles. This has been done through the statutory document known as the Civil Service Senior Appointments Protocol. It states that decisions on whether these posts will be advertised externally are reserved to a body called the Senior Leadership Committee and that all such vacancies shall be overseen by the Civil Service Commission, regardless of how they are advertised.

As we have heard, our committee found that the composition, role and influence of the Senior Leadership Committee were highly opaque matters. While the SLC includes the First Civil Service Commissioner and, I believe, the government lead non-executive director, its membership is still dominated by Permanent Secretaries. A more balanced composition, with clear ministerial accountability, would surely help ease some of the anxieties that exist around this committee.

Despite the protocol being a statutory policy issued under CRaG, we learned in evidence from the Cabinet Secretary that decisions on whether to advertise Permanent Secretary vacancies externally are apparently taken not by the Senior Leadership Committee but, in reality, bilaterally by the Cabinet Secretary and the First Civil Service Commissioner. That places us in the slightly anomalous position where law and administrative practice are at variance. The commitment from both the Cabinet Secretary and the First Civil Service Commissioner to update the senior appointments protocol is therefore welcome, although it is important to note that the power to vary that protocol is reserved by Section 17 of the Act to the Prime Minister, not the Cabinet Secretary.

I will end with a word about the role of special advisers in the appointments process. The Constitutional Reform and Governance Act expressly forbids special advisers authorising the expenditure of public money and exercising any management power in relation to the Civil Service. It does not, however, forbid their advising Ministers on either of those matters, which is an important distinction that, I think, our report fairly reflects.

There are many more points that I would like to make, but time does not allow. I therefore echo the noble Baroness, Lady Drake, in asking my noble friend the Minister when we can expect the updated protocol and the published terms and membership of the Senior Leadership Committee on GOV.UK.