Accountability of Civil Servants: Constitution Committee Report

Baroness Smith of Basildon Excerpts

Thursday 7th February 2013 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I thank the noble Baroness, Lady Jay of Paddington, and the committee for the work that they undertook. We owe them a debt of gratitude for being able to have this debate today. The opening speech by the noble Baroness set the tone for a very thoughtful, insightful debate which has drawn on considerable expertise in your Lordships’ House. It is a very timely debate because the Government’s proposals for reform have reignited interest in the role of civil servants, the wider relationship between Ministers and civil servants and the key issues of accountability and responsibility.

I also concur with the comments made by the noble Baroness, Lady Jay, and the noble Lord, Lord Lexden, on the timing of the Government’s response. As a former Cabinet Minister, I appreciate that people in glass houses should not throw stones. However, I was somewhat taken aback to find an e-mail in my inbox at 5.53 pm yesterday evening with the Government’s response. That is rather late in the day for a debate that is taking place in your Lordships’ House today.

The committee’s report identifies why it undertook this investigation. This includes the increasing complexity of government structures and functions, the Civil Service reform plan, and of course the previous report on ministerial responsibility following the introduction of the Health and Social Care Bill. For some Ministers, and indeed for some civil servants, that tension between ministerial and civil service responsibility proves difficult, and the noble Baroness, Lady Jay, highlighted some very pertinent examples of that. I will deal with that issue for a few moments. The committee’s report on the Health and Social Care Bill dealt with the specific issue of ministerial accountability, and the issue is again explored in this report in line with civil servants’ accountability. The committee has further considered that, and it has maintained its previous position when it says in the report:

“No distinction is to be drawn between ministerial responsibility, accountability and answerability … Likewise, ministerial responsibility to Parliament is not to be qualified. No distinction is to be drawn between ultimate and non-ultimate responsibility, or between direct and indirect responsibility”.

Most importantly, the report goes on to state that,

“no distinction is to be drawn between responsibility for policy on the one hand and responsibility for operational decisions on the other”.

In effect, it seems that the committee is saying that Ministers should not be able to abdicate or delegate their responsibilities, and that this is an essential part of holding ministerial office. Clearly, Ministers have to accept responsibility for the work of their department. That does not mean that they are responsible for every action or mistake; the example of the lost disc mentioned in the report is a good one. However, it means that they are answerable on operational matters as well as policy. These matters are not just for civil servants to deal with.

On answerability and accountability, the report refers to the “Today” programme test—that is, the political reality that the media and the public will seek answers from a Minister, not from a civil servant. Some Ministers find that difficult if they feel that they are not responsible and that it is a matter for which a civil servant should be held to account. I will suggest two other tests to your Lordships’ House. There is also what might be called the common-sense test. While some may bray for the head of a Minister in whose department someone has made a mistake, surely the test should be whether it was a simple and unintended mistake by a member of staff or whether there is a more systematic problem for which there must be ministerial accountability. My sense is that the difference is generally understood by Parliament, the press and the public, although it is not unheard of for someone to seek to make political capital out of such issues.

There is another test, and the noble and learned Lord, Lord Morris of Aberavon, touched on it. It is ministerial accountability to Parliament, and where Ministers and Parliament see the boundaries of that accountability. When issues of service provision are raised, Ministers in your Lordships’ House regularly state that these are not matters for them but are operational or local decisions. However, it is central government that dictates and decides the limits, including financial parameters, within which local services have to work. Although the scope for local decision-making is limited by Ministers, this should not prevent them from answering questions about the impact of their policies.

I will give an example. In your Lordships’ House I raised with the noble Lord, Lord Henley, the issue of police station closures. He replied:

“My Lords, that is obviously a matter for the authorities”.—[Official Report, 2/11/11; col. 1229.]

That was despite the fact that his Government had set the budget within which that decision had to be made. That was not an isolated case. Recently I asked the noble Earl, Lord Howe, about an example from my home area where, because of the Government’s NHS policies, pathology services are being moved from Southend and Basildon hospitals to Bedford Hospital. The noble Earl replied:

“Decisions about the local configuration of pathology services are for local National Health Service commissioners”.—[Official Report, 24/1/13; col. WA 247.]

It is difficult to judge the parameters accepted by Ministers on responsibility to your Lordships’ House, but the wider and more serious issue is the one touched on by the noble and learned Lord, Lord Morris. It would be very helpful to have the Minister’s observations on this.

The Government have said that they are seeking to privatise the probation service. The judgment of the Constitution Committee is that Ministers cannot delegate accountability. However, if Ministers, while retaining overall responsibility for the provision of probation services, allow a private company to provide all or part of those services, will the Government consider that Ministers should answer Questions on those operational matters, or would that be delegated to a civil servant or the head of the private company? If Ministers do not answer, the ability of Parliament and of individual parliamentarians to hold the Government to account for the services for which they are responsible will be severely restricted. Other than in Select Committees, parliamentarians cannot question civil servants or private service providers, and it would be wrong for them to do so. However, where the Government have ultimate responsibility, surely Ministers should answer. Will the Minister confirm that in such cases it is entirely appropriate for Ministers to answer from the Dispatch Box on operational matters, as recommended by the Constitution Committee?

In its report, the committee also looked at the issue of distancing Ministers from the decisions of arm’s-length bodies. However, I do not think that a privatised service comes under that remit, and there are constitutional issues of accountability and of whether the public will lose their rights to freedom of information in such instances. The committee was also right to highlight the complexities of government structure and organisation. If we as parliamentarians find it complex, it must be hugely difficult for an ordinary citizen to try to navigate their way around Parliament or government. Therefore, I strongly welcome the committee’s recommendation that a map or organisational chart should be produced. This point was made by the noble Lord, Lord Hennessy. I suspect that it might be slightly more complicated than the bus route map of London.

In the brief time available, I looked at the Government’s response to the point made by the committee. I had an opportunity to look at the websites that the Government say address the issue, and I have to say that I do not think they do. The Government’s response to the report does not address the need to have an organisational map showing how departments and arm’s-length bodies work together.

On the related issue of civil servants giving evidence to Select Committees, the committee struck absolutely the right balance in defining what is appropriate and how the process should be conducted. There is a question for the Minister around the issue of defining a civil servant, and who Ministers can and cannot ask and instruct to give evidence to a Select Committee. I recently asked a Question about Her Majesty’s Chief Inspector of Borders and Immigration. When I asked the Minister how often Ministers met him, the rather bizarre reply was that Ministers have internal meetings and talk to officials from time to time on matters of policy, and thus that it was an internal matter. I then obtained an entirely reasonable answer via a freedom of information request to the chief inspector’s office. Clearly, for Her Majesty’s Chief Inspector for Borders and Immigration to give evidence would not be in any way a replacement for the accountability of Ministers, but it would be of assistance to the committee in its scrutiny of ministerial decision-making. I would be grateful if the Minister would look at that point.

After reading various documents on the Government’s Civil Service reform plan, I have to say that when the Government deal with issues in the abstract, it is very hard to disagree, although sometimes there are strong echoes of an episode of “Yes Minister”. There are issues around strengths and weaknesses, better performance management, building on our strengths, reducing our weaknesses and so on. However, as noble Lords have illustrated today, it is when we get to the detail that alarm bells ring, particularly on the issue of the appointment of Permanent Secretaries.

Unfortunately, it appears from public comments and government leaks that the report was written against a backdrop of hostility to civil servants. The noble Lords, Lord Wilson and Lord Hennessy, expressed concern at the rapid departure of Permanent Secretaries under the coalition Government. The two may well not be connected, but it causes concern not to have that continuity in office. It is logical to have the involvement of a Secretary of State in the appointment of a Permanent Secretary. However, the fear is that the Government will stray over the red line that could lead to the greater politicisation of the Civil Service. The one thing we have to guard against is any suspicion or suggestion that the “Is he one of us?” culture could be used in the appointment of senior civil servants.

My noble friend Lady Donaghy spoke extremely well about the justification of why the British Civil Service is thought of as one of the best in the world, because of its professionalism and impartiality. That is not to pretend that on every occasion every civil servant is excellent at all times. All Ministers have accounts of the best and the worst civil servants with whom they have worked. What is so important is the principle of impartiality and accountability, and the relationship between the two. Clearly, a Secretary of State needs to have confidence in their Permanent Secretary. The working relationship has to be good, and has to be reinforced by each knowing and observing the extent and the boundaries of their respective roles and positions.

The current position seems to provide that, and I am not convinced that the Government have made a strong enough argument for change. I agree with the committee’s recommendation. I appreciate that the Government seek to give reassurance in their response, but if there is to be any change in the way in which Permanent Secretaries are to be appointed, and if the role of the Secretary of State is to be increased, this has to be based on evidence of what the problem is that the Government are seeking to resolve, and there must be broad consensus around any change that is brought forward so that there can be no substance to any accusations of politicisation. I appreciate that the Government seek to give reassurance in their response but I would like to see greater clarity, perhaps from the Minister today, about the problem that the Government are seeking to resolve.

I hope that the Minister has heard the concerns that have been raised about temporary appointments to the Civil Service. There is concern also about “secondments” being used to circumvent the provision of temporary appointees where the former are perhaps more in line with ministerial thinking. I am in the process of tabling some Written Questions for the Minister, so I do not expect him to answer my questions today, but if he is able to say something about the number of secondees coming into government, where they are coming from and the reasons for it, it would be helpful.

The report from the committee is extremely valuable. I hope that the Minister has taken note of the strong view expressed in the debate today that the way in which the Civil Service operates now works very well. No one is suggesting that there is no room for reform, for modernisation or for ensuring that the Civil Service keeps up with the times, but the Government need to guard against any increasing politicisation that would undermine the existing traditions or the principles of the Civil Service.

[Lord Wright of Richmond]

My Lords, the noble Baroness has quoted the question, “Is he or she one of us?”, allegedly asked by the noble Baroness, Lady Thatcher. I do not know whether she actually said it—a large number of quotations are wrongly attributed to people—but, if she did, it might be worth putting on the record that, in my five years as head of the Diplomatic Service, the noble Baroness, Lady Thatcher, never once queried a single appointment to a head of mission.

[Baroness Smith of Basildon]

My Lords, I appreciate the noble Lord’s intervention. I was tempted not to quote anyone but that quotation, attributed rightly or wrongly to the noble Baroness, Lady Thatcher, was trying to make the point that some people think it important to have a “one of us” culture, whereas I think that most of us in your Lordships’ House today would think that that was completely wrong with regard to Civil Service appointments.