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Copyright © 1995 Brian Thompson. First published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
The Government has issued a White Paper on the Civil Service which is, in part, a response to a report of the Sub-Committee of the House of Commons Treasury and Civil Service Select Committee. The White Paper is significant in that the Government has abandoned its opposition to some of the Sub-Committee's recommendations, in particular a new Code of Conduct for the Civil Service which includes an independent appeal procedure.
In the early period of the Thatcher Government the Civil Service was implicitly (and sometimes explicitly) criticised by the praise heaped upon the private sector and the policy objective of rolling back the frontiers of the state. Industrial relations were poor and the Head of the Home Civil Service (Lord Bancroft) took early retirement, partly because he did not share the Prime Minister's vision of the Civil Service.
Radical change began with the seemingly modest Financial Management Initiative (FMI) (Cmnd. 8616) which sought to obtain a better use of resources by stating objectives more clearly, identifying cost centres and delegating responsibility to the managers of those units. The FMI was then superseded by the programme to create executive agencies. This programme was proposed in the report Improving Management in Government: The Next Steps (Efficiency Unit, 1988). The central idea of the report was the separation of delivery of services or executive functions from policy advice and ministerial support work. Executive Agencies would be headed by Chief Executives who would have their responsibilities and targets set out for them in Framework Documents and annual performance agreements. As of January 1995 this has led to the creation of 102 Agencies, and with the analogous reorganisation of the Inland Revenue and HM Customs and Excise, some 62% of civil servants are employed in these Agencies.
In Competing for Quality (Cm. 1730, 1991) the Government continued with its search for greater efficiency by questioning the need for functions to be in the public sector. Market-testing could see the cost of services reduced by contracting out to the private sector or by tendering in which in-house bids would sometimes be eligible and sometimes excluded.
Given this background of change the Sub-Committee of the Treasury and Civil Service Select Committee (TCSC) decided that it would conduct an investigation into the role of the civil service. It produced an interim report in 1993 (HC 390 of 1992-93). Subsequently the significance of this topic was increased by the export of arms to Iraq which is being investigated by Scott LJ and the Government's own proposals for the Civil Service (Cm 2627, 1994) on which the TCSC was invited to give its views. The TCSC's report (HC 27 of 1993-94) was followed two months later by a White Paper (Cm. 2748, 1995) which puts forward the Government's views on taking forward its 1994 White Paper and its response to the TCSC.
In this article it is proposed to consider some of the points in the dialogue between the Government and the TCSC. In its report the TCSC identified three broad areas dealing with (a) a framework for underpinning the values of the Civil Service, (b) organising for effectiveness and efficiency, and (c) human resources in the Civil Service of the future. I propose to deal mainly with points in (a) and, to some extent, (b).
The Government and the TCSC were agreed about the values which should underpin the Civil Service: impartiality, integrity, objectivity, selection and promotion on merit and accountability. For the TCSC these values were felt to be capable of acting as a unifying force in a less homogeneous Civil Service (HC 27-i of 1993-94, para 72). An increasing amount of public administration was being conducted outside the Civil Service due to privatisation and contracting out, and a significant number of the Chief Executives of the Next Steps Agencies, had been recruited from the private sector. The TCSC took the view that the documents which communicated the values of the Civil Service, the Armstrong Memorandum, the Civil Service Management Code and Questions of Procedure for Ministers, were directed to different audiences and dealt with different points. The Armstrong Memorandum (HC 92-II of 1985-86, pp 7-9), issued by the then Head of the Home Civil Service in the wake of the trial of Clive Ponting, dealt with "The Duties and Responsibilities of Civil Servants in Relation to Ministers. The Memorandum was originally directed at senior civil servants and covered certain aspects of their relationship with Ministers (see Thompson, 1987). The Civil Service Management Code, issued in 1993, is the latest in a series of codes which have included general advice on the conduct and standards required of the Civil Service. One of the reasons for the production of this code "was the need to provide a concise and accurate statement of the centrally issued terms and conditions which must be applied by management to all civil servants regardless of the department or agency within which they work" (HC 27-I of 1993-94, para 91).
Questions of Procedure for Ministers was published for the first time in 1992. In its guidance for Ministers, paragraph 55 states that Ministers have a duty to give fair consideration to impartial advice from civil servants, as well as to other considerations in reaching policy decisions; a duty to refrain from asking or instructing civil servants to do things which they should not do; a duty to ensure that appointments are not made for partisan purposes; a duty to act as a good employer with regard to the terms and conditions of employment of those who serve them. The paragraph continues: "Civil servants should not be asked to engage in activities likely to call into question their political impartiality, or give rise to the criticism that people paid from public funds are being used for Party political purposes".
The TCSC found in the evidence submitted to it that there was a commitment to internal resolution of any ethical issues which a civil servant might have. The expectation was that the troubled civil servant would raise the issue with line management and then there could be further reference upwards. Formal procedures exist in two particular areas. The first concerns Accounting Officers (the Permanent Head of Department or Agency Chief Executive). They set out in writing an objection to proposed action by a Minister which the Accounting Officer considers would infringe the requirements of propriety or regularity. If the Minister wishes to persist then the Accounting Officer seeks a written instruction to that effect. Such an instruction is expected to be followed but the Accounting Officer informs the Treasury and passes the papers to the Comptroller and Auditor General. Following the examination by the Public Accounts Committee of the Pergau Hydro-Electric Project the Government has agreed that the Comptroller and Auditor General should also receive papers where the Accounting Officer has raised concerns in writing about prudent and economical administration, efficiency and effectiveness of action and the Minister has issued a direction to proceed (HC 155 of 1993-94, paras 46-47; Cm 2602, 1994, para 13).
Formal procedures are also provided for in the Armstrong Memorandum. These were revised after consideration by the TCSC (HC 92 of 1985-86). First, where a civil servant "considers that he or she is being asked to act in a manner which appears to him or her to be improper, unethical, or in breach of constitutional conventions, or to involve possible maladministration or to be otherwise inconsistent with the standards of conduct prescribed in this Memorandum and in the relevant Civil Service codes and guides" should report the matter to a senior officer and if appropriate to the Permanent Head of the Department. Secondly, a "civil servant who feels that to act or to abstain from acting in a particular way, or to acquiesce in a particular decision or course of action, would raise for him or her a fundamental issue of conscience" should consult a senior officer, may take the matter up with the Permanent Head of Department and "also has a right, in the last resort, to have the matter referred to the Head of the Home Civil Service through the Permanent Head of Department" (HC 27-I of 1993-94, para 97). The TCSC was told that the Armstrong Memorandum procedures had only been used once in relation to conscientious objections about a Government Department's approach to theoretical research. This case was heard by Sir Robin Butler, the Head of the Home Civil Service, but did not involve a Minister. Thus the procedures had not been used to refer a case involving propriety to the top of the hierarchy. This was felt by Sir Robin to reflect informal resolution of matters rather than the inadequacy of the formal procedures.
The TCSC did not share the somewhat sanguine view of Sir Robin Butler. Evidence from the First Division Association indicated concern that those who used the procedure might subsequently suffer adverse consequences, and that the procedure required one to go up the chain of command down which the original instruction giving rise to concern had come (HC 27-I of 1993-94, para 98).
The conclusion which the TCSC came to was that the current framework of documents did not state the essential values of the Civil Service with sufficient clarity and that their procedures of upward referral on issues of propriety and illegality was necessary but not sufficient and appeared not to command the confidence of all civil servants (HC 27 of 193-94, paras 101-2). Accordingly the TCSC was convinced of the case for a new Civil Service Code. It would enable civil servants, Ministers and the public to know what was expected of the Civil Service and assist those who sought to defend essential values in the face of perceived threats to those values. In their recommendation for a new code the TCSC wished it to be a condition of employment that all civil servants read the Code and conduct themselves in accordance with its provisions and that it would apply to staff in agencies and departments (HC 27-I of 1993-94, para 105).
As the TCSC had stated that there was strong evidence that the upward referral procedures did not enjoy the confidence of civil servants, it was not surprising that they recommended the establishment of an independent appeals procedure "to consider actions or decisions in Government in breach of the new Civil Service Code which are not considered capable of resolution within Government" (HC 27-I of 1993-94, para 110). The TCSC recommended that the appeals be taken to the Civil Service Commissioners (HC 27-I of 1993-94, para 112).
The Government had argued against such a proposal. Sir Robin Butler thought that it would disrupt the relationship between Ministers and civil servants, destroying the confidence between them. It was also contended that a new structure would be unlikely to be used and failure to use it would lead to further pressure for change. It was denied that the appointment of the staff counsellor for the security service was a precedent because there were no trade unions in that sphere, the nature of the security service was special, and the procedure was intended to relate to matters of general anxiety rather than specific instructions. It was also stated that there were no comparable procedures in other countries with governments of the Westminster type (HC 27-I of 1993-94, para 109). These arguments were not felt to be convincing especially when weighed against the need for Parliamentary and public confidence in the system of government.
Perhaps it should not be too surprising that the Government did not amend the TCSC draft as its provisions were predominantly drawn from the existing documents. In paragraph 1 the Code deals with the constitutional and practical role of the Civil Service which is, to assist the duly elected Government in policy formulation and implementation, and in administering public services for which the Government is responsible, and to do this with integrity, honesty, impartiality and objectivity.
Civil servants owe loyalty to the Government. As paragraph 2 makes clear this is because civil servants are the servants of the Crown and the Crown acts on the advice of Ministers. This loyalty is not unconditional as the text states that it is subject to the provisions of the Code. This formulation meets the concern that loyalty to Ministers, whilst important, does not place Ministers above the law. It is, however, odd (and peculiarly British?) that the absence of both a codified constitution and a developed notion of the state independent of the Government, mean that a Code is the superior set of values which may override loyalty to the duly elected Government.
Some of these values are stated in paragraph 3. Here some of the duties and responsibilities of Ministers stated in Questions of Procedure for Ministers are mentioned as the context of the Code. These matters are accountability to Parliament; the duty to provide as full information as possible to Parliament about Government policies and actions and not to deceive or knowingly mislead Parliament and the public; the duty to give fair consideration to impartial advice from civil servants, the duty to comply with the law including international law and treaty obligation; plus the duty to familiarise themselves with the Code and not to ask civil servants to act in breach of it.
The Government have reversed paragraphs 3 and 4 of the TCSC draft. This is because the Government's view is that it is more logical to explain the framework of ministerial duties within which the Code operates before detailing the duties of civil servants. In paragraph 4 civil servants are to serve the Government in accordance with the principles in the Code recognising the accountability of civil servants to Ministers, the duty of public officers to discharge their duties reasonably and in accordance with the law; the duty to uphold the law, including international law and treaty obligations; ethical standards governing particular professions. It would seem that the points in paragraph 4 are superior to the other provisions of the Code.
Paragraph 5 requires civil servants to act with integrity, impartiality and honesty in their dealings with Ministers, Parliament and the public and that they should give honest and impartial advice to Ministers without fear or favour. This paragraph mirrors paragraph 3 and reinforces the political impartiality of the Civil Service, which some feared had been undermined by a long period with the same party in government.
Civil servants, according to paragraphs 6-8, are to deal with the affairs of the public sympathetically, efficiently, promptly and without maladministration; endeavour to ensure the proper, effective and efficient use of public money within their control; and should not act corruptly in their own or others' interests, or have dealings with third parties which might reasonably be seen to compromise their personal judgement or integrity.
The political impartiality of the Civil Service is the concern of paragraph 9. Here civil servants are to conduct themselves so as to deserve and retain the confidence of current and future Ministers. The Government added to the TCSC draft the requirement that civil servants should comply with restrictions on their political activities.
The confidentiality of official information is safeguarded by paragraph 10. Civil servants are not to disclose information without authorisation, nor to seek to frustrate Government policy or actions by unauthorised, improper or premature disclosure of information outside Government to which they had access as civil servants.
The procedures which are to be followed where a civil servant is concerned about the legality or propriety of instructions are detailed in paragraphs 11-12. This is a two stage procedure. At first if a civil servant feels that he or she is required to act in a way which is "illegal, improper, unethical, or in breach of constitutional convention, which may involve possible maladministration, or which is otherwise inconsistent with the Code or raises a fundamental issue of conscience, then he or she should report the matter in accordance with procedures laid down in departmental guidance or rules of conduct."
Where this has been done and the civil servant believes that the response does not represent a reasonable response to the grounds of his or her concern, he or she may report the matter in writing to the Civil Service Commissioners. While the Code does make it clear that both matters of conscience and legality and impropriety may be appealed to the Commissioners, the first stage is not spelt out. Presumably this will involve upward reference up to the Permanent Head of Department. Will the Head of the Home Civil Service be involved in this first stage? One rather suspects that even if formally the matter stops at the Permanent Head of Department, this official will informally consult the Head of the Home Civil Service.
In paragraph 13 civil servants are required not to seek to frustrate policies, decisions, or actions by declining to take or abstaining from actions which flow from ministerial decisions. If the matter cannot be resolved in accordance with paragraphs 11 and 12 to that civil servant's satisfaction, then the alternatives are that the ministerial instruction is to be carried out or the civil servant should resign from the service. In the latter event, the Government added the following requirement to the draft Code, that the civil servant must continue to observe duties of confidentiality after leaving Crown employment.
It is claimed by the Government that this distinction is supported by practice, that Ministers do not, and are not required to resign for administrative failures in which they were not directly involved. The TCSC contend that if the Government is right then there has been a change in the doctrine of Ministerial responsibility for there does appear to have been a time when Ministers were responsible for all of the actions of their officials.
The TCSC suggest that the effective application of the doctrine of ministerial accountability depends upon the honesty and integrity of Ministers and civil servants in accounting to Parliament and the powers and effectiveness of Parliament, and in particular the Select Committees of the House of Commons in holding the executive to account. (HC 27-I of 1993-94, para 123). In discussing the honesty and integrity of Ministers the TCSC spent some time on the issue of Parliamentary answers which, while not comprehensive, did not seek to mislead. A difficulty which confronts Select Committees is the Osmotherly Rules which regulate the evidence given to them by civil servants. These rules have no Parliamentary status and have not been endorsed by Select Committees, but, in effect, they have acquiesced to their use by the Government.
The TCSC, in concluding their general discussion of Parliamentary accountability, rejected the Government's sharp distinction between accountability and responsibility, claiming that the implication of it was that Ministers retain ultimate responsibility for controlling the system through which information about the allocation of responsibility on a particular matter is made available to Parliament (HC 27-I of 1993-94, para 132). They recommended that a Minister who was found knowingly to have mislead Parliament should resign.
In its response to these points (Cm 2748, pp 28-29) the Government maintained its view on accountability/ responsibility, citing the statement in the House of Commons by Sir David Maxwell-Fyfe during the debate on the Crichel Down affair as a precedent (HC Debs, Vol 530, cols 1285-88, 10 July 1954), and agreed that Ministers must not knowingly mislead Parliament unless there are exceptional circumstances such as a devaluation, time of war, or other danger to national security.
Although the TCSC report was published before the escape from Parkhurst Prison in December 1994, which focused attention on the relationship between the Home Secretary and the Prison Service, the TCSC had been concerned about how the Next Steps programme affected accountability and responsibility. The TCSC has for some time recognised that the Next Steps programme represents a fundamental change in government. If there has been delegation of responsibilities to Agencies then it is logical to require the Chief Executive to account to Select Committees in relation to their annual performance agreements. Ministers would remain accountable for the overall policy - the framework document, and for their part in negotiating annual performance agreement and for any instructions issued subsequent to the annual performance agreement (HC 27-I of 1993-94, para 171). The Government did not accept this recommendation restating the view that the Chief Executive accounts to the Minister from whom his or her authority is derived, and the Minister accounts to Parliament (Cm. 2748, p.31).
It is suggested that the Government's insistence on Ministerial accountability to Parliament is actually hindering the ability of Parliament to hold the executive to account. If the Chief Executive has been delegated responsibility then he or she will know more about operational matters and it is therefore appropriate that there should be a direct relationship with select committees. This is because the machinery of government has changed and therefore the traditional theory no longer fits. Accordingly the theory should now adapt to the new circumstances otherwise there exists a "bureaucratic Bermuda triangle in which accountability disappears" (HC 27-III of 1993-94, p 49).
It is argued that the creation of the Next Steps Agencies should lead to greater transparency and facilitate the allocation of responsibility. This supposes that the split between policy and implementation is unproblematic. The division is not clear in practice. As the Parkhurst Prison escape showed there are difficulties such as, for example, if a prison governor complains about perimeter security, is that a policy or an operational matter? Is the governor expected to cope with the budget allocated to the prison, or can it be said that it is a policy failure if the budget does not permit proper security?
Cmnd 8616, Prime Minister and Minister for the Civil Service Efficiency and Effectiveness in the Civil Service: Government Observations on the Third Report from the Treasury and Civil Service Select Committee Session 1981-82.
Cm 1730. Competing for Quality: Buying Better Public Services.
Cm 2602, Treasury Minute on the Seventeenth to Twenty-first Reports from the Committee of Public Accounts 1993-94.
Cm 2627, The Civil Service: Continuity and Change.
Cm 2748, The Civil Service: Taking Forward Continuity and Change.
HC 92-II of 1985-86 Seventh Report from the Treasury and Civil Service Committee, Civil Servants and Ministers: Duties and Responsibilities.
HC 390 of 1992-93, Sixth Report from the Treasury and Civil Service Committee, The Role of the Civil Service: Interim Report.
HC 27 of 1993-94, Fifth Report of the Treasury and Civil Service Committee, The Role of the Civil Service.
HC 154 of 1993-94, Eighth Report from the Committee of Public Accounts, The Proper Conduct of Public Business.
HC 155 of 1993-94, Seventeenth Report from the Committee of Public Accounts, Pergau Hydro- Electric Project.
Thompson, B (1987), "Ministers and Mandarins and Select Committees" 50 Modern Law Review 492.
