The Constitutional Position of UK Civil Servants

How to be a Civil Servant

The Constitutional Position of UK Civil Servants

The UK Civil Service has no "constitutional personality" or responsibility separate from the Government of the day. It is there to provide the Government of the day with advice on the formulation of the policies, to assist in carrying out the Government's decisions, and to manage and deliver Government services. Civil servants therefore ... :

... cannot express their own opinions, even in court or in front of a Parliamentary committee,
... must loyally carry out Ministers' decisions with precisely the same energy and good will, whether they agree with them or not, and
... must demonstrate four core values:
- Integrity
- Honesty
- Objectivity and
- Impartiality – including political impartiality.

A separate note summarises the thinking, reports and recommendations which helped create the modern Britsih civil service. The rest of this note summarises the key rules and legislation which currently govern civil servants' behaviour and flesh out the above principles.

Key documents

Civil servants are employed by the Crown under the Royal Prerogative and with powers delegated to them under various Acts, regulations, instructions etc. The most important of these are:

the Civil Service Order in Council 1991,
the Civil Service (Management Functions) Act 1992,
the Civil Service Order in Council 1995,
the Civil Service Management Code (which includes the Civil Service Code),
the Carltona Principle,
the Armstrong Memorandum, and
the Osmotherly Rules.

The following notes provide further information about the Civil Service Code, the Carltona Principle, the Armstrong Memorandum and the Osmotherly Rules. Further information about the Orders in Council etc. may be obtained from the Government's official civil service website.

The Civil Service Code

This document provides a clear, helpful and commendably brief summary of the values that should be common to all civil servants of all grades, and the standards of behaviour that are expected of them.

The first version of this Code of Practice was put in place in January 1996 at the suggestion of the then Treasury and Civil Service Select Committee, and was revised in May 1999 to take account of devolution to Scotland and Wales. A new edition was published in June 2006. It differs from the old one in two main ways:

If a civil servant believes that that he/she is being asked to behave in a way which conflicts with the code, he/she may now report the matter direct to the Civil Service Commissioners.

It is now clearly specified that the code is part of the contractual relationship between the civil servant and his/her employer.

The code defines the civil servants' four core values in the following way:

‘integrity’ is putting the obligations of public service above your own personal interests;
‘honesty’ is being truthful and open;
‘objectivity’ is basing your advice and decisions on rigorous analysis of the evidence; and
‘impartiality’ is acting solely according to the merits of the case and serving equally well Governments of different political persuasions.

The Armstrong Memorandum

This document summarises the duties and responsibilities of civil servants. The most important parts read as follows:

Civil servants are servants of the Crown. For all practical purposes the Crown in this context means and is represented by the Government of the day. ... The Civil Service as such has no constitutional personality or responsibility separate from the duly constituted Government of the day. It is there to provide the Government of the day with advice on the formulation of the policies of the Government, to assist in carrying out the decisions of the Government, and to manage and deliver the services for which the Government is responsible....

Each Minister is responsible to Parliament for the conduct of his Department, and for the actions carried out by his Department in pursuit of Government policies or in the discharge of responsibilities laid upon him as a Minister.
A Minister is accountable to Parliament, in the sense that he has a duty to explain in Parliament the exercise of his powers and duties and to give an account to Parliament of what is done by him in his capacity as a Minister or by his Department.
Civil servants are responsible to their Ministers for their actions and conduct.

The British Civil Service is a non-political and professional career service subject to a code of rules and disciplines. Civil servants are required to serve the duly constituted Government of the day, of whatever political complexion. It is of the first importance that civil servants should conduct themselves in such a way as to deserve and retain the confidence of Ministers, and to be able to establish the same relationship with those whom they may be required to serve in some future Administration. That confidence is the indispensable foundation of a good relationship between Ministers and civil servants. The conduct of civil servants should at all times be such that Ministers and potential future Ministers can be sure that confidence can be freely given, and that the Civil Service will at all times conscientiously fulfil its duties and obligations to, and impartially assist, advise and carry out the policies of, the duly constituted Government of the day.

The determination of policy is the responsibility of the Minister (within the convention of collective responsibility of the whole Government for the decisions and actions of every member of it). In the determination of policy the civil servant has no constitutional responsibility or role distinct from that of the Minister. ... It is the duty of the civil servant to make available to the Minister all the information and experience at his or her disposal which may have a bearing on the policy decisions to which the Minister is committed or which he is preparing to make, and to give to the Minister honest and impartial advice, without fear or favour, and whether the advice accords with the Minister's view or not. Civil servants are in breach of their duty, and damage their integrity as servants of the Crown, if they deliberately withhold relevant information from their Minister, or if they give their Minister other advice than the best they believe they can give, or if they seek to obstruct or delay a decision simply because they do not agree with it. When, having been given all the relevant information and advice, the Minister has taken a decision, it is the duty of civil servants loyally to carry out that decision with precisely the same energy and good will, whether they agree with it or not.

Civil servants are under an obligation to keep the confidences to which they become privy in the course of their work; not only the maintenance of the trust between Ministers and civil servants but also the efficiency of government depend on their doing so.

When a civil servant gives evidence to a Select Committee on the policies or actions of his or her Department, he or she does so as the representative of the Minister in charge of the Department and subject to the Minister's instructions ... and is accountable to the Minister for the evidence which he or she gives. The ultimate responsibility lies with Ministers, and not with civil servants, to decide what information should be made available, and how and when it should be released, whether it is to Parliament, to Select Committees, to the media or to individuals. It is not acceptable for a serving or former civil servant to seek to frustrate policies or decisions of Ministers by the disclosure outside the Government of information to which he or she has had access as a civil servant.

Despite the clear rules in the Civil Service Code, and in the Armstrong Memorandum, there have been a number of recent instances of senior officials speaking out in support of, or sometime even against, Minsters' policies. Click here for a more detailed discussion.

Click here to read the full text of the Armstrong Memorandum.

The Osmotherly Rules

Civil servants who appear before Select Committees are required to follow ‘the Osmotherly Rules’. These are contained in a document entitled Departmental Evidence and Response to Select Committees. Put shortly, they may describe and explain the reasons which caused Ministers to adopt existing policies but should not give information which undermines collective responsibility or get into a discussion about alternative policies. In particular, they are not allowed to divulge:

advice given to Ministers by officials;
information about interdepartmental exchanges on policy issues, the level at which decisions were taken, or the manner in which Ministers consulted their colleagues;
the private affairs of individuals, including constituents;
sensitive commercial or economic information, and
information about negotiations with other governments or bodies such as the European Commission.

Click here to read the full text of the Osmotherly Rules

The Carltona Principle

This is the legal principle under which civil servants exercise power on behalf of Ministers.

In some circumstances, a person in whom a power is vested can authorise another person to exercise that power for and on his or her behalf. It is essential to note at the outset that a person exercising a power for and on behalf of another does so as the ‘agent’ or ‘alter ego’ of the person in whom the power is vested. That is, the act of the authorised person is, at law, the act of the person in whom the power is vested. This is fundamentally different to the act of a delegate which, at law, is the delegate’s and not the delegator’s act.

The case most often cited as authority for the proposition that a person may authorise another to exercise a power for and on his or her behalf is Carltona Ltd v Commissioners of Works 1943. This was a wartime case dealing with the requisition by the Government of a factory which manufactured food products. In Carltona, the English Court of Appeal considered whether a Minister had to exercise personally a power to take possession of land, or whether the power could be exercised by one of the Minister’s departmental officials for and on behalf of the Minister. The court concluded that the power in question could be exercised by a departmental official for and on behalf of the Minister. The court’s reasoning indicates that there are two grounds which justify a Minister being able to authorise an officer to exercise a power vested in the Minister:

the Minister is ultimately responsible to Parliament for the decision of an authorised officer; and
in modern government, Ministers have so many functions and powers that administrative necessity dictates that they act through duly authorised officers.

Martin Stanley

Click here to access other pages dealing with related subjects. And please help me keep this website up to date. Please do tell me if you have interesting new information, or if any of the links stop working. Thank you.