PASC PN.13

Session 2002-03

Press Notice No.13


PASC STARTS CONSULTATION ON CIVIL SERVICE BILL

Commons Committee breaks new ground by drafting its own Bill

PASC-the House of Commons Public Administration Select Committee-today sets out its ideas for a ground-breaking Civil Service Bill. The Bill would for the first time give Parliamentary support to the values of an impartial  Service at a time of root-and-branch reform in Whitehall.

The Government has long promised to produce such a Bill, but the Committee decided last year that it would be quicker to produce one itself-believed to be a first for a Commons select committee. PASC's "issues and questions paper", published for consultation today, contains  an outline of suggested clauses for a Bill. The Committee's full draft Bill is currently being drafted hand will be ready for publication later in the summer after the consultation has finished.

Commenting today, Committee Chairman Tony Wright said:

"There is a pressing need for Parliament to play a more active role in helping to maintain ethical standards in the public service. Reformers since Gladstone's day have advocated  a Civil Service Bill, which would give it the chance to do that, and I am glad that PASC is now able to show that it can be done. I hope the Government-which has long promised legislation-will use the opportunity to move quickly towards a Bill along the lines we set out.

"Legislation should not  restrict innovation or interfere in management decisions.  It must not act as a drag on reform. But a Bill would make sure that long-standing public service principles like impartiality and integrity were underpinned by proper Parliamentary debate and discussion, and that proposed changes had a full airing. I urge the Government to take an historic step and work with us to take forward this important piece of Parliamentary reform."     

A copy of the issues and questions follows.

CIVIL SERVICE LEGISLATION

An Issues and Questions Paper

This issues and questions paper invites views on a possible Civil Service Act, which the Committee is currently drafting. It is published for consultation by the House of Commons Public Administration Select Committee-PASC-to help guide PASC as it considers how to take forward its consideration of the case for an Act. The paper sets out some of the main questions for discussion and suggests some possible components of the legislation.

The Background to an Act-A Century and a Half of Debate

The debate about a Civil Service Act is exactly 150 years old. It was in April 1853 that the  then Chancellor of the Exchequer-William Gladstone-asked Sir Stafford Northcote and Sir Charles Trevelyan to review the Civil Service. In February 1854  they published their seminal report, which recommended, instead of the existing system of patronage,  appointment on merit for Civil Service posts "to obtain  full security for the public  that none but qualified persons will be appointed". To ensure that this happened, the report advocated the establishment of a Civil Service Commission which would be put on a statutory footing and would act as a guarantor of probity.

Northcote and Trevelyan expressed their 'conviction that if any change of the importance of those which we have recommended is carried into effect, it can only be  successfully done through the medium of an Act of Parliament', adding that 'a few clauses would accomplish all that is proposed'.

In the event, the Commission was set up-but by a Crown prerogative Order in Council rather than legislation. The regulation of the Civil Service continues to be carried out largely through this type of Order in Council, along with the Civil Service Code, the Civil Service Management Code, a Special Advisers' Code and parts of the Ministerial Code. The case for legislation to regulate the Service has been made increasingly in the last decade, with one of our predecessors, the Treasury and Civil Service Select Committee, recommending in 1993 (HC 27-1 of Session 1993-94 para 116  a statute "principally designed to provide statutory backing for the new mechanisms for maintaining the essential values of the Civil Service".  

The Government came into office having stated several times that it favoured such an Act and was committed to producing one. Ministers have regularly repeated their commitment in evidence to our Committee, most recently the Minister of State at the Cabinet Office, Mr Douglas Alexander in October 2002 (REF - Qn 1040) 

In responding in July 2000 to a report from the Committee on Standards in Public Life ,  Ministers also gave a commitment to include in a Civil Service Act an overall limit  on the number of politically-appointed special advisers to ministers (Cm 4817). In 12 May 2002, the Chairman of  this Committee said that the situation in the then DTLR (analysed in detail in  this Committee's Eighth Report of that Session, "'These Unfortunate Events': Lessons of Recent Events at the former DTLR" (HC 303)) "vividly demonstrates the need for a Civil Service Act" which would "provide a robust protection for those who feel under pressure to desert the core principles of public service, and … would give Parliament a real chance to scrutinise the workings of the Service" . In April 2003, the Committee on Standards in Public Life advocated in its Ninth Report (Cm 5775) "a short Act" to cover the Civil Service and special advisers. This paper details the main ingredients of such an Act and seeks public views on whether, and how,  one should now be  brought forward.

HOW TO RESPOND TO THIS PAPER

PASC would like to receive responses to any or all of the questions in this paper. Although some of the questions could theoretically be answered by a simple yes or no, the Committee would especially value extended memoranda with background evidence where appropriate.

SOME RESPONDENTS MAY WISH TO CONCENTRATE ON THOSE ISSUES IN WHICH THEY HAVE A SPECIAL INTEREST, RATHER THAN NECESSARILY ANSWERING ALL THE QUESTIONS

Memoranda will be treated as evidence to the Committee and may be published as part of a final Report. Memoranda submitted to the Committee should be kept confidential unless and until published by the Committee.

Memoranda should be submitted by 11 July 2003 as hard copy on A4 paper, but please send an electronic version also, on computer disk in Word, Rich Text Format, ASCII or WordPerfect 8 or email to [email protected] Hard copies should be sent to Philip Aylett, Clerk, Public Administration Select Committee, Committee Office, First Floor, Portcullis House, London, SW1A 2LW.

MAIN QUESTIONS   

1. Is a Civil Service Act necessary?

2. What would you see as the main function of a Civil Service Act?

3. Does this paper correctly identify the elements required in a Civil Service Act?

4. If not, what other elements should be included?

5. Should the Act make provision for dealing with the legal restrictions on the nationality of civil servants (para 25)?

6. Does the paper suggest the right balance between items to be placed on the face of the Act and those which may be left to secondary legislation?

7. Does the experience of civil service and similar legislation in other countries contain any lessons for the UK?

8. What account should a Civil Service Act take of the position of civil servants working in devolved institutions?

9. Should the unity of the Home Civil Service should be maintained in any legislation?

10. What is your view of the paper's approach to the appointment of the Civil Service Commissioners? Should the Act for instance contain a requirement that the First Civil Service Commissioner should be appointed following consultation with the main Opposition Party or parties?

11. Should the Civil Service Commissioners be given any new powers?

12. What is your view of this paper's suggested approach to the regulation of politically-appointed special advisers?

13.  What is your view of  the paper's suggested approach to Parliamentary scrutiny of the Civil Service?

14.  Should civil servants continue to be servants of the Crown, rather than being employed by individual ministers?

15. Should a Civil Service Act deal with issues of Civil Service management or matters concerning pay and conditions?

Possible Elements of a Civil Service Bill

Objectives

1.The Committee sees many advantages in making any  Civil Service Bill as short and self-contained as possible, with much of the organisational detail of running the civil service remitted to secondary legislation. In the interests of producing a manageable Bill, the substance of the present Civil Service Code need not be re-stated on the face of the Bill, but a power would be taken to make the Civil Service Code by Order in Council following approval in draft by both Houses. A similar power would be taken to make an Order in Council re-stating much (though not all) of the present  Civil Service Order in Council 1995.

2. The objective of such a Bill would be to give statutory underpinning to the values expressed in the Civil Service Code, and to involve Parliament in the formulation and approval of those values. The intention would be to help to prevent any inappropriate  politicisation of the civil service and preserve it as a resource for government of whatever persuasion. Quite how much of the basic civil service values (e.g. political impartiality, integrity etc.) should be stated on the face of the Bill is a matter more of political judgment  than of law. The advice given to the Committee so far has favoured putting as much as possible into the Codes, leaving the Bill essentially conferring powers to make the Codes.

3. The Bill should not alter the employment status of Crown or civil servants, and should not create any privileged status for them.  The Bill should also not alter the present position whereby civil servants are servants of the Crown, and are not employed by individual Ministers.

To whom should the Bill apply?

4. The question of 'what is a civil servant?' is complex. There are separate services constituted of those who serve the Crown in a civil capacity e.g. the Diplomatic Service, the Home Civil Service, the Northern Ireland Civil Service and some sui generis cases such as the Forestry Commission.

5. In statutory contexts, these have been referred to collectively as 'the civil service of the State' (see s.6 Aliens Restriction (Amendment) Act 1919, Schedule 5 to the Scotland Act 1998). There are statutory references to the Home Civil Service, but there is no statutory definition (see, for example, The Civil Service (Management Functions) Act 1992, s.51 Scotland Act 1998, s.34(2) Government of Wales Act 1998). These references seem, in turn, to depend on the reference to 'Her Majesty's Home Civil Service' in the Civil Service Order in Council. 

6. It is for consideration whether these difficulties of definition could be side-stepped by simply referring to the services by name. This is what has been done before, but this was always against the background of the Civil Service Order in Council 1995 which named the 'Home Civil Service' without defining it.

7. A further reason why it would not be necessary to embark on definitions of the terms 'civil servant', 'Home Civil Service', 'Diplomatic Service' etc. is that the Bill would not be concerning itself with the creation or constitution of these services, but only with the rules relating to the conduct of those services, and -to an extent- with recruitment.

8. It is worth recalling that the Crown does not require any statutory authority to enter into contractual relations with persons it employs to serve it. Historically, civil servants were members of the Royal household. Just as any natural person has the power to engage others under contracts of employment (and does not need specific statutory authority so to do), so the Sovereign had all the attributes of a natural person and could similarly engage staff . This probably explains why we have never developed any special body of law relating to the composition of the civil service or the status of its members (unlike, for example, France or Germany). There has not been a need to define the precise boundaries, and -as stated above- the various statutory references have relied on terms such 'civil service of the State' or 'Home Civil Service'.

9. A way of resolving the difficulties of definition might be for the power to make Codes to be expressed in the widest sense, leaving it to individual exercises of the power to draw such distinctions as may be needed between e.g. the Home Civil Service and the Diplomatic Service and staff of the Forestry Commission. For this purpose, the definition drawn up by the Fulton Committee, which reported on the Civil Service in 1968, may be helpful. The Fulton Committee defined the civil service as consisting of all those who are servants of the Crown 'other than holders of political or judicial office who are employed in a civil capacity and whose remuneration is paid wholly and directly out of moneys voted by Parliament'.

10. In any event, nothing should be done by the Bill which would undermine the arrangements under the Scotland Act 1998 to secure the unity of the Home Civil Service north and south of the border.

What could the Bill do?

11. The Bill could provide the necessary powers for the making of Orders in Council

(i) to regulate the conduct of  civil servants (i.e. all those serving the Crown in a civil capacity) and
(ii) to provide for the making of Orders in Council re-stating the substance of the Civil Service Order in Council 1995. 

12. Apart from the above order-making powers, it should (following the acceptance by the Government in 2000 of a recommendation of the Committee on Standards in Public Life)  provide (iii) for limiting the numbers of special advisers. It would also be desirable for the Bill to provide  (iv) for the appointment of the Civil Service Commissioners.

(i)  Conduct of civil servants-the Civil Service Code

13. The Bill should provide for the making of a Civil Service Code by Order in Council, following its approval in draft by both Houses. The Civil Service Code is presently made by the Minister for the Civil Service under the powers conferred  by Article 10 (b) of the Civil Service Order in Council 1995, but no Parliamentary procedure is provided for. An order-making power is all that is strictly necessary, but the Committee believe that there should be a  statement on the face of the Bill to describe the purpose and objectives of a Civil Service Code (e.g. to preserve and promote an impartial civil service, selected on the basis of fair and open competition).

14. It would be for the Code itself to specify its legal effect. The Committee suggests that  the obligations arising from the Code ought to be imposed directly on civil servants. Whether the duties are imposed on Ministers in addition or instead is a fundamental point which requires careful consideration. It is very important, in the Committee's view,  that  the Bill should not give the Civil Service  special status  as a separate estate. There is however a clear need to give civil servants some degree of protection by subjecting them to clear legal duties (with the consequence that the Crown-in the form of Ministers- cannot lawfully require or instruct a Crown servant to act in breach of the law). A Code made by Order in Council could impose such clear legal duties which would have a higher status than would be achieved merely by incorporation of the Civil Service Code into a civil servant's contract of employment. If the duties under the Code are expressed as propositions of law (albeit only applying to a particular class, rather than the general public) then it would become a duty incumbent on Ministers not to instruct civil servants to act in breach of that Code.

15. Policing of the Code would continue to be a matter on which applications could be made to the Civil Service Commissioners (see below). However, giving the Code the force of law would entail a number of legal consequences, including making a claim that the Code was not being observed a 'protected disclosure' for the purposes of the employment protection provisions of s.43 A-L Employment Rights Act 1996. 

16. On the assumption that special advisers (i.e. persons referred to under Article 3(2) of the Civil Service Order in Council 1995) are to remain members of the Home Civil Service, the power to make a Civil Service Code could be wide enough to permit the making of an Order specifically regulating their conduct. (If special advisers are not to be civil servants but e.g. advisers paid from a political fund, as the First Civil Service Commissioner has recommended, then the Bill need not deal with them).

17. The only essential difference between a civil servant and a special adviser in relation to the Civil Service Code is the duty to act impartially. All the other duties, to act with integrity and honesty, to comply with the law, not to deceive or knowingly mislead apply with equal force to a special adviser . One way of addressing any concerns over the conduct of special advisers, would be to put it beyond doubt that the Code applies to them, subject to a special interpretation of the duty to act impartially. This would best be done by the Code itself, rather than by anything on the face of the Bill.  The Committee would also welcome views on the role, in this context,  of the Code which specifically applies to special advisers.

(ii) Organisation of the Home Civil Service: re-stating the Civil Service Order in Council 1995

18. The Bill does not need to deal with issues now covered in the Civil Service Management Code or issues such as pay and conditions of service. These are determined under the Civil Service Order in Council 1995. The only change would be to provide for the statutory Order replacing the 1995 Order to be made following approval in draft by both Houses. Provided the Order-making power is wide enough, there would be no need to alter much of the substance of the existing Order in Council. As with the power to make the Civil Service Code, it would be desirable for the purposes and objectives of the power to be set out. (This could, for example, be the right place to give statutory expression to the principle of selection on merit on the basis of fair and open competition cf. Article 4 of the Civil Service Order in Council 1995.  Northcote and Trevelyan pressed for this when they produced their seminal report on the Civil Service in the 1850s, but it has never been done).

 (iii) Limiting the numbers of special advisers

19. Assuming that special advisers are to continue to be members of the Home Civil Service, the question of limiting their role (i.e. to giving advice to the or any Minister) will be one for the Order made to replace the Civil Service Order in Council 1995. The new Order in Council could, for example, remove the special treatment for the recruitment of up to three persons in the Prime Minister's Office (Article 3(3)) which allows them to be recruited without selection on merit on the basis of fair and open competition and does not limit their role to that of giving advice. (They can, for example, give instructions to other civil servants and assume management responsibility for them). There is a serious question as to whether the restriction relating to recruitment is sufficiently effective to restrict the functions of a special adviser once  appointed, but this again could be resolved in the new statutory Order in Council replacing the existing 1995 Order. (At present, the question of permissible functions is also dealt with in the model contract for special advisers, but this seems a rather inadequate defence against abuse, since a third party cannot readily enforce the terms of a contract to which he is not a party).

20. The next question is that of limiting the numbers of special advisers. Limits are imposed by the Order in Council on the Scottish Executive (12) and on the National Assembly for Wales (6), but not on Ministers of the UK Government . A suggested way of getting round arguments about numbers would be for a total to be approved at the beginning of each Parliament , so that the Bill would merely set out the mechanism for approval. Given the sensitivity of the numbers issue, any approval ought to require an affirmative resolution in each House. (There is something of a parallel in s.1B Ministerial and other Salaries Act 1975 which permits amendments to be made by Order in Council following an affirmative resolution in both Houses. This method is available to change the limits on numbers of salaries in paragraph 2 of Part V of Schedule 1 to the 1975 Act).

(iv) Appointment and role of the Civil Service Commissioners

21. As for appointments of the Civil Service Commissioners, it is for discussion whether  these should be put on a statutory basis; at present the appointments are made by Her Majesty the Queen by Order in Council.  Given the need for the widest possible support for the work of the Commissioners in upholding the principles of public service, the Committee would like to consider whether the First Commissioner should be appointed following consultation with the main Opposition party or parties.

22. The First Civil Service Commissioner has advocated the case for the Commissioners to be able to conduct their own investigations into compliance with the Code, reasoning that complaints by civil servants are likely to be few. The existing functions of the Commissioners are set out in Article 4 of the Civil Service Order in Council 1995. This is a somewhat eclectic collection which has built up over time, and not all of it may be sufficiently important to feature on the face of the Bill. The duties in Article 4(1) and (2) do seem sufficiently important, and the point made by the First Civil Service Commissioner could be met by expanding the scope of the existing Article 4(5).

Role of the Minister for the Civil Service

23. One possible criticism of the above scheme for a Bill is that it seems to downgrade the role of the Minister for the Civil Service. This is more apparent than real, since the new statutory Order in Council replacing the Civil Service Order in Council would still need to provide for functions of the Minister for the Civil Service along the lines of the existing Article 10. (It is, of course, on this Article that the present Civil Service Management Code and the Civil Service Code are based).

24. It would, of course, be necessary to distinguish the power to make the Civil Service Code for approval in draft by Parliament from the power, presently under Article 10b of the Civil Service Order in Council, to make regulations and to give instructions for controlling the conduct of the Civil Service. It may well be appropriate for this latter power to be maintained to deal with the various issues arising from the detailed management of so large a body as the Home Civil Service, but any such regulations or instructions would have to be subordinate to the principles of the Civil Service Code.

The Aliens question

25. The Bill might provide  an opportunity to deal with the problems caused by the Aliens Restriction (Employment) Act 1919 . This makes it a criminal offence to employ an 'alien' (i.e. a person who is not British, Irish or a Commonwealth national) in the 'civil service of the State'. Exceptions have been made to cover the case of EU nationals, but the exception depends in turn on the interpretation the European Court of Justice gives to the term 'employment in the public service' under Article 39(4).  The problem is addressed in the Crown Employment (Nationality) Bill introduced by Mr Andrew Dismore MP and explained in the Explanatory Notes to that Bill. If the Bill is not enacted, the substance of it might be taken up in a Civil Service Bill. The Committee wishes to consider whether this might be done, or whether doing so would unduly complicate passage of a Civil Service Bill.  

Possible outline arrangement of clauses

26. As an aid to the drafting of the Bill, the Committee sets out here one possible arrangement of clauses to summarise the above.  However, the Committee would welcome suggestions for any other approach, although it would in any case strongly favour a short Bill. 

Clause 1-Power for the Minister for the Civil Service to make a Civil Service Code by Order in Council. [Purpose and objectives for making a Code-core values?]

Clause 2-Power to make Order in Council for regulating recruitment, organisation etc. of  Home Civil Service and other parts of civil service. [Purpose and objective-preserve recruitment by selection on merit on the basis of fair and open competition.]

Clause 3-Appointment and role of Civil Service Commissioners.

Clause 4-mechanism for approval of numbers of special advisers.

Clauses 5 and 6-the aliens question (IF INCLUDED).

27. This is no more than an attempt to summarise the various themes. It would equally be possible to start the Bill with recruitment and the roles of the Civil Service Commissioners, before going on to special advisers and the Order-making powers.
28. This Committee paper was prepared with considerable assistance from Michael Carpenter of the Legal Services Office, House of Commons.

3 June 2003