PASC Conference Wicks

Note for remarks by the Chair of the Committee on
Standards in Public Life

WHY THE GOVERNMENT NEEDS TO DEFINE THE BOUNDARIES BETWEEN MINISTERS, CIVIL SERVANTS AND SPECIAL ADVISERS

What today's debate should be about…

1. Mr Attlee, after whom this room was named, once said:

I think that the British have the distinction above all other nations of being able to put new wine into old bottles without bursting them.

2. That sentence nicely sums up the challenge before this conference with its theme, "Reforming the Civil Service while Safeguarding its Values".

3. How can we renew the Civil Service, modernise it, make it fit for purpose, without bursting its core values, to act with integrity, propriety and impartiality, core values which I believe have served the British people well over the years?

4. Certainly, today's debate is not about the protection of civil servants from modernisation and the demands of the modern world through some sort of constitutional straight jacket.

5. Some may seek to characterise our debate as a conflict between one camp, obsessed with maintaining the trusted constitutional niceties - boundaries, roles, responsibility and accountability and all that - and another camp, charged with the imperative of public service delivery.

6. In fact, there is no conflict.

7. Those objectives are mutually supportive.  They are both about trust. 

8. Trust in the product of public services.   And trust in those ultimately responsible for ensuring the provision of those services - that is in the government of the day, the Executive.

9. So today's debate should be about securing both those objectives. Securing trust in the public sector brand, to use private sector terminology

The Ninth Report of the Committee on Standards in Public Life…

10. The Committee that I chair, the Committee on Standards in Public Life, set out last April an agenda for doing just that in our report on Defining Boundaries within the Executive. 

11. A key theme is that you cannot deliver trust unless there is clarity about accountability, about the roles of and the boundaries between the main players - in the case of the Executive that is Ministers, the permanent civil service and special advisers.

12. So let me turn to two important sets of recommendations in that report on the organisation of the Executive that go to the heart of today's debate. These concern two agents of the Executive, civil servants and special advisers.

13. I make no apology for concentrating today on these two agents.  Of course, others in the public service, in local authorities, the NHS, have important responsibilities and the civil service core values apply to them too.  But the agents of the Executive, civil servants and special advisers and Ministers for that matter, are special in their power and influence and therefore in their responsibility and accountability.  So they merit special attention.

The Civil Service should be established in statute…

14. Let me begin by setting out the case for our key recommendation

    The Civil Service should be established in statute.

15. Of course, the Executive, that is Government, should have a right to set out its own organisation.

16. That includes a right to organise and manage the civil service. 

17. But in a liberal parliamentary democracy, such as ours, that right to organise and manage the civil service should be a constrained right. 

18. The reason is clear.

19. The civil service is the principle instrument of central government for formulating and for ensuring the delivery of its programme.

20. Yet while the institution of the civil service is the property of government - "the transferable human technology" of government as it has been called - it is not the property of "the government" of the day. 

21. Of course, none of this means that the working methods, organisation or personnel of the civil service are frozen. 

22. They must be kept up to date, reformed, reinvigorated with new blood and new ideas.

23. But at a time when the civil service is, rightly, subject to especial change and reform, there is especial reason to have a guardian to ensure that the fundamental principles on which the civil service is established can only be changed after full debate and with democratic consent.  That guardian should be Parliament acting through a Civil Service Act. 

24. That is the case for doing away with the process, a hangover from the times when the civil service was a part of the Royal Household, whereby the government of the day regulates the civil service through unconstrained prerogative fiat law.  That is the case for establishing the civil service in statute and for the enactment of a Civil Service Act. 

25. Such an act need not be complex or long. 

26. It should do four things:

• It should formally establish the civil service;

• It should set out, in broad terms, the conditions on which the government of the day can maintain and use the civil service to formulate and implement its programme;

• It should provide for the maintenance of codes of conduct regulating the conduct of civil servants and special advisers

• It should establish an independent Civil Service Commission with powers to assure the effective implementation of the provisions of the legislation.

27. A Civil Service Act should enshrine the core values of the civil service, namely the obligation to act with integrity, propriety and impartiality.  And here impartiality signifies a requirement for civil servants to be impartial of political party and to give their loyalty and support to Ministers from whichever party holds government office.

28. A Civil Service Act would provide a platform for the government of the day to maintain the civil service as an effective instrument of the state, fit for the purpose of carrying forward the government's programme.

29. In short, a Civil Service Act would provide the crucible for Reforming the Civil Service while Safeguarding its Values.

Ministerial involvement in recruitment to the senior civil service…

30. Let me move now to the question of ministerial involvement in recruitment to the senior civil service.

31. This is an important issue. 

32. Because once the decision to appoint is moved from the present process of selection on merit by an independent body, and given to a Minister, then the potential for the politicisation, and certainly the perception of the politicisation, of the civil service is manifest.

33. My Committee recognised that there could, indeed should, be discussion with Ministers about an appointment.  But we were firm in our recommendation:

The Committee attaches particular importance to retaining the principle that Ministers do not participate in the selection process for individuals being recruited into the Civil Service. This principle is fundamental to the maintenance of a service which is, and is perceived to be, politically impartial. We recommend that the present practice should continue.

34. The Government in its reply to the Committee's report makes clear an intention to review the present practice and to consider an alternative process whereby Ministers are given a choice among candidates judged to be appointable. 

35. The Government's reasons for such a radical change are unconvincing.

• It is argued that since Ministers are given a choice of candidates when making appointments to public boards, the same procedure should apply when making appointments to the senior civil service. The Government comments in its reply "Some of these appointments are as important, if not more so, than some Senior Civil Service appointments, for example, the Head of the Financial Services Authority."

But the roles of the Chairman of the FSA and of a senior civil servant are totally different.  The Chairman is an independent officer established in statute, chairing an independent board, with powers and responsibilities set out in statute.  Indeed, the founding statute, the Financial Services and Markets Act 2000, stipulates that the Authority's members, officers and staff are not to be regarded as Crown servants and that the Authority is not to be regarded as acting on behalf of the Crown;

The civil servant works at the centre of government ready to serve whatever Minister, of whatever party is in office at any particular time.  It is right, therefore, that there should be different processes for recruitment;

• Nor is any evidence adduced that the present system results in unsuitable appointments.

• So if the system ain't broke, why fix it? 

• And especially, when fixing the system by giving Ministers final choice over who is recruited into the senior civil service would erode the civil service core value of an civil service independent of political party;

Because that is what it would do.  A civil servant personally chosen by a minister from a select list will inevitably lack the perception of independence and impartiality which comes from recruitment through a totally independent process, managed by the Civil Service Commission.

• And a new minister, perhaps from a new government, could legitimately disavow the choice of his or her predecessor and demanding a new competition out of which he or she would make their own political choice;

• Moreover, ministerial choice would inevitably expose ministers to the criticism of political favouritism, charges that they can now rebut - by replying that the decision is that of the independent Civil Service Commission.

36. So I very much hope that the outcome of the Government's forthcoming discussions with the Civil Service Commission will be the maintenance of present arrangements where recruits to the higher civil service are recruited on merit through a transparent and independent process.

The increasing role of Special Advisers…

37. Let me now turn to the role of special advisers.

38. The witnesses who gave evidence to the Committee for its last report were unanimous about the value which special advisers bring to our constitutional arrangements.  But there were significant concerns about their increasing role in government. 

39. A little history is in order here.

• In 1995, the Civil Service Order in Council  made legal provision for special advisers "for the purpose only of providing advice to Ministers";

• In 1997, the Order in Council was amended to allow the appointment of three special advisers with "executive powers" in the Prime Minister's Office;

• In 1997 the Model Contract for Special Advisers set out in an exhaustive list of what "…a Special Adviser may or may not do";

• In 2001, the Code of Conduct set out in a non-exhaustive list of "The sorts of work a special adviser may do…."

• In September 2003, in reply to the Committee's Ninth Report, the role of special advisers was further expanded so that they could

-- convey to officials Ministers' views, instructions and work priorities;

-- commission internal analyses and papers; and

-- hold meetings with officials to discuss the advice being put to Ministers.

40. This gradual accretion of special advisers' powers raises several issues.

41. Today, I want to concentrate on two, accountability and the proper role of Parliament in these matters.

Special Advisers and accountability…

42. It has been a long standing principle of good government in this country that civil servants are accountable to their minister and that the minister is accountable to Parliament.

43. The developing role of special advisers risks undermining that clear principle. 

44. There is a real risk that special advisers will begin to interpose a barrier between the civil servants and the ministers to whom they are accountable.  That will be a recipe for confusion and strife within a department. 

45. The additional roles given to special advisers in the Government's reply to the Committee's Ninth Report make that even more likely. 

46. How is the hard pressed middle ranking official in a department to know when a special adviser

-- convey(s) to officials Ministers' views, instructions and work priorities that these are indeed the Minister's own views, instructions and work priorities and not those of the special adviser. 

47. There is a very fine line indeed between conveying instructions and giving instructions, especially to the receiver of the instructions, namely the civil servant.

48. The establishment of special advisers with executive powers in the Prime Minister's office poses a further threat to the principle of accountability. 

49. Let me demonstrate that by quoting the statement of the Prime Minister's Official spokesman responding to the Ninth report on the day the report was published. 

50. The official spokesman said:

"….the PMOS said he did not think it was realistic to expect Mr Campbell to carry out his job effectively if he was not allowed to direct different parts of the Government machine. Of course this did not mean he had line management responsibility for different representatives of the Government Information Service for example. The point was that in dealing with a cross-departmental issue like Iraq, the need for co-ordination was absolutely essential - which meant Mr Campbell's directorial role and the necessity of issuing instructions were clearly important to the overall cohesion of the Government. It would be difficult to be the Director of Communications and Strategy for the Prime Minister if he was unable to issue instructions."

51. The government's response to the interim report of the Phillis Enquiry suggests that there have been some very welcome second thoughts about this approach.

Parliament should safeguard the boundaries…

52. I stress again that our report was supportive of the role and functioning of special advisers. 

53. Our intention was to ensure that there were adequate safeguards in place to delineate and to safeguard the boundaries between ministers, civil servants and special advisers so that both civil servants and special advisers could each make their contribution.

54. And I return again to the theme at the beginning of my remarks - the importance of Parliamentary oversight. Parliament should, in a statute, sets the boundaries, establishes the safeguards and provide for the specification of the respective roles of special advisers and civil servants.

Concluding remarks…

55. I conclude with a prediction.

56. I am reasonably confident that ten years down the track, the substance of the recommendations in our Ninth Report will have been accepted by whichever government is in office. 

57. There are two ways forward.

58. One is the way we recommended  - through an early Civil Service Act, following widespread debate and consultation.

59. The other way is for action to be driven by a series, of what has been termed in a parliamentary report, of "unfortunate events".

60. So I hope that government and Parliament will recognise that for the governance of the civil service, the Ninth Report's recommendations provide a golden opportunity both to enhance trust in the Executive and to build a robust platform for the delivery of the public service reform agenda.

61. Thank you.

Sir Nigel Wicks
Chairman, Committee on Standards in Public Life