How to be a Civil Servant
Government in the United Kingdom (the UK) is built on the assumption of Parliamentary Sovereignty; all key decisions are made by Parliamentarians and there is no higher authority.
(In particular, a decision by a UK Government to sign an international treaty does not create rights and duties in national law which are enforceable in UK courts. Only UK legislation can create or revoke such rights and duties. European Union law was accordingly incorporated into UK law by the European Communities Act 1972. That legislation could not and did not fetter the ability of successor Parliaments to revoke or amend the 1972 legislation.)
Legitimacy and democracy are maintained because Ministers are answerable to Parliament, and the House of Commons is elected by the people. Decisions are taken by Ministers (and if necessary by the whole Cabinet) and implemented by a neutral civil service.
Another important feature of the model (drawing on the teaching of 18th Century philosopher Edmund Burke) is that Members of Parliament (MPs) are representatives, not delegates. In other words, they should act in what they judge to be the public interest - not as advocates for the interests of their constituents and therefore not necessarily in the way that their constituents might wish them to vote, nor even necessarily in the interests of their own constituency.
Put shortly, therefore, there is a simple chain of command. Civil servants are accountable to Ministers who are accountable to Parliament, whose Members are accountable to their constituents.
Building on Burke, the nineteenth century idealist T H Green helped provide the ethical framework through which civil servants are expected to achieve integrity in their work. As politicians are inevitably subject to short term and selfish pressures, there needs to be a unified administration in which officials ensure the common good or public interest. To do this, they must be politically neutral and must demonstrate pecuniary and moral integrity. They must not be motivated by the desire to make money.
Building in turn on Green, the 1854 Northcote-Trevelyan report on the organisation of the Permanent Civil Service responded to pressure for change which was in turn driven by circumstances which have immediate resonance today:
The result was a civil service appointed on merit through open competition, rather than patronage, with the following core values:
The 1918 Haldane Report, published at the end of the First World War, recommended the development of deeper partnerships between Ministers and officials so as to meet the more complicated requirements of busier government as substantial executive ministries emerged from the first world war. The Report's impact came through two closely-linked ideas:
The relationship between civil servants and Ministers thus became one of mutual interdependence, with Ministers providing authority and officials providing expertise. This "Haldane Model" encapsulates the notion that civil servants have an indivisible relationship with their departmental ministers, quite different to many other models of government around the world, which are often based on separation of powers.
Crucially, however, 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 ... :
The rest of this note summarises the key rules and legislation which currently govern civil servants' behaviour and flesh out the above principles.
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 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 previous one in two main ways:
The code defines the civil servants' four core values in the following way:
This document summarises the duties and responsibilities of civil servants. The most important parts read as follows:
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.
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 which may be accessed via the Cabinet Office website. Put shortly, officials may describe and explain the reasons which caused Ministers to adopt existing policies but they should not give information which undermines collective responsibility nor get into a discussion about alternative policies. In particular, they are not allowed to divulge:
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:
It should be noted that the Westminster Model is predicated on the view that 'Government knows best'. It assumes that the public does not have the information necessary to make the right decisions. Some commentators go further and argue that the political elite regard secrecy as the best means of ensuring that the right decisions are made in the interests of the people. A responsible government is accordingly able to take strong decisive action, even when opposed by a majority of the population. This is a leadership rather than participatory view of democracy, but it is legitimised by regular democratic elections, when representatives can be held to account for their decisions.
The Haldane Model, furthermore, encourages concentration of power at heart of the British political system and "Government by the elite". This concentration of power, together with the interdependence of Ministers and officials, means that senior civil servants can be quite powerful whilst simultaneously maintaining the polite fiction thay are "only advisers". And politicians can, at the same time, continue to maintain that they are really taking all the decisions. In practice, of course, the relative power and influence of senior officials varies very much from Government to Government, and with the characters and experience of the officials and their Ministers. But critics argue that the Westminster/Haldane model is in effect a facade which works to the benefit of both politicians and civil servants, but which disguises the truth from the population at large.
Both parts of the model are, however, being increasingly tested by modern developments. See the other notes on civil service reform for further detailed discussion of recent developments.
When preparing this note, I found it very helpful to read David Richards' New Labour and the Civil Service, part of the ESRC's Transforming Government Series.
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