How to be a Civil Servant

A Civil Service Act?

Lord Chancellor Jack Straw announced on 25 March 2008 the introduction of a Constitutional Renewal Bill, Part 5 of which would, for the first time, put the civil service on a statutory footing by enshrining the core values of the Civil Service -impartiality, integrity, honesty and objectivity - into law, as well as the historic principle of appointment on merit. The Bill makes provision for special advisers and the Civil Service Commission. This follows one of Gordon Brown's first announcements as Prime Minister, in July 2007, that he intended to introduce a Civil Service Bill. The Government had previously published a draft Bill and Consultation Document on 15 November 2004. This note examines the background to these important developments.

The Pros and Cons

The proponents of a Civil Service Act see it as support for the status quo, including statutory protection for the impartiality of the civil service and a defence against the employment of too many imported czars and cronies. They are very happy with the Civil Service Code, the Code of Conduct for Special Advisers and the Ministerial Code, which require Minsters to take advice from their apolitical civil servants before making decisions. But they say that these rules are often flouted, and would like them to be made enforceable. They also feel that modern day Permanent Secretaries - one of whose traditional tasks was to defend the status and ethics of the civil service - are nowadays too "pragmatic", and need to have their backbone stiffened by force of law. And they want to ensure that future change in the status and role of the civil service is implemented only with the agreement and authority of Parliament.

Opponents argue that an Act would stifle much needed Civil Service Reform and entrench the monopoly of current civil servants, a monopoly which shelters poor and unimaginative performance.

Another problem was that Tony Blair's Ministers probably feared that the Bill would open a can of worms, and facilitate renewed attacks on its handling of the David Kelly affair, its supposed love of "spin", its supposed centralist tendencies, and so on. The passage of the Bill might also be used to reopen debates about privatisation and related issues, such as the accountability etc. of Executive Agencies and the effect of "contracting out" public sector jobs. Ministers might therefore understandably wonder whether the effort of producing the legislation would be worth the resultant benefit. In other words, is there is not very much wrong, then why try to fix it?

Sir Robin Mountfield (previously the Permanent Secretary of the Cabinet Office) has published a note summarising the intended content of a Civil Service Act.

Developments since 1997

The Civil Service Code sets out the constitutional framework within which all civil servants work and the values they are expected to uphold. It says that the constitutional and practical role of the Civil Service is to assist the government of the day with integrity, honesty, impartiality and objectivity. The Code has some legislative force as it was made under an Order in Council, but it lacks the force of a law passed by Parliament. Click here for more detailed information.

But many influential figures have argued for some time that the consitutional role of the civil service needs to be protected by something stronger than the Civil Service Code. As a result, both main political parties committed, before the 1997 General Election, to introduce a Civil Service Bill if they were elected. The introduction of a Bill was further encouraged by a report by the Committee on Standards in Public Life. The Labour Government accepted the committee's recommendation that there should be a Civil Service Act, but did not announce a timetable for its enactment.

Sir Richard Wilson, outgoing Head of the Civil Service, delivered a speech in March 2002 dealing with the role of Special Advisers, the need for a Civil Service Act and so on. Click here to read the speech. But his successor, Sir Andrew Turnbull, seemed lukewarm:- "We have lived without one for 150 years" (Financial Times 1 May 2002). And Cabinet Office Minister Douglas Alexander was reported to have said on 2 July 2002 that, although the Government remained committed to legislation, it had higher priorities.

The Committee on Standards in Public Life repeated its strong support for an Act when it published its ninth report in April 2003. The Government's latest formal comment is in its September 2003 response to that report:-

"The Government accepts the case in principle for legislation but any legislation has to compete for its place alongside many other priorities. The Government also believes that much more can be done to implement most of the Committee’s concerns without or in advance of legislation. For example, in recommendation 14, the Committee feels strongly that the appointment of the First Civil Service Commissioner needs to be able to carry the confidence of each new Administration. As the Committee acknowledges this can be achieved through consultation with Opposition leaders. Another example is the appointment procedures for public appointments where a rigorous and effective process has been established without legislation. The Government believes that the present arrangements work well but it will continue to reinforce the impartiality of the Civil Service. Once the Public Administration Select Committee’s proposals for legislation for the Civil Service have been published, the Government will itself publish a draft Bill, as a basis for further consultation."

The Public Administration Select Committee remains a strong supporter of a Civil Service Act - see for instance its eighth report published on 19 July 2002. No doubt remembering that the Civil Service Code was only adopted because a draft was first published by a Select Committee, the Committee published its own draft Bill on 5 January 2004. According to the committee, the draft Bill "provides a clear framework which would enable Parliament to ensure that public service principles are upheld and that civil servants and others are carrying out their jobs with propriety. It is firmly based on existing codes and institutions, while giving Parliament greater powers of oversight and strengthening accountability. The Bill is not intended to shield civil servants from change or make them a protected species. In fact, it would make their duties and obligations clearer than ever. Neither would it affect the right of ministers to run their departments, make policy and deliver programmes. What it would do, for the first time, is to anchor some of the key operating principles of our system of government in Parliament.".

Various clauses of the Committee's draft:-

• replaced Orders in Council as the principal legislative vehicle for civil service matters,
• strengthened the position of the Civil Service Commissioners
• put the Civil Service Code on a statutory basis, and
• clarified the role of special advisers without limiting their numbers.

But the Committee's draft unambiguously transfered control over the status, role etc. of the civil service from Ministers to Parliament. It remains to be seen whether either this or any future government will agree to this reduction in its power.

For further background, it is worth reading a note of a debate hosted by the Public Adminstration Select Committee in October 2003.

The media reported that the Committee's draft Bill was merely intended as public reassurance, to provide a framework rather than change relationships, and to "anchor the civil service in Parliament". Tony Wright, Chairman of the Committee, said that the Bill "sought to express what we take to be the prevailing consensus".

The Government undertook to publish its own draft Bill and did so, with an accompanying consultation document, on 15 November 2004. The consultation document was written in fairly unenthusiastic terms, but the draft Bill was uncontroversial, following the lines of the earlier Select Committee draft (see above) apart from failing to give the Civil Service Commissioners the power to undertaken enquiries into the operation of the Civil Service Code and the Code of Conduct for Special Advisers. In other words, although the Commissioners would retain their power to consider appeals from civil servants under the Civil Service Code (which could in future if necessary be made direct to the Commission rather than first to the official's department) their "primary function would continue to be the principle of selection on merit". This will no doubt disappoint those who would have liked to see the Commission given the role of guardian of traditional civil service values.

The draft Bill also usefully made it clear that (apart from two special advisers in No.10 - itself a reduction of one on the previous maximum) special advisers could not authorise expenditure, exercise line management responsibility over permanent civil servants, or discharge any statutory power. However, they would continue to be free to commission work from civil servants on behalf of their Ministers.

The Government then said nothing on the record after the end of the consultation period. In particular, there was no mention of any Civil Service Bill in the May 2005 Queen's Speech following that month's General Election. And, although incoming Cabinet Secretary Gus O'Donnell told the Public Administration Select Committee in October 2005 that he favoured legislation, he also stressed that it was not a legislative priority for the government. It therefore looked unlikely that there will be legislation in this Parliament - until Gordon Brown's announcement on 4 July 2007. The accompanying statement from the Justice Ministry was inevitably pretty vague, given the very few days in which it had been drafted:

The Government believes that, as part of the legislation it intends to bring forward in the next Session, it is right to include measures which will enshrine the core principles and values of the Civil Service in law.

This legislation will place the independent Civil Service Commissioners on a statutory footing. It will also make a legal reality of the historic principle of appointment on merit following fair and open competition. As the Civil Service Commissioners themselves have pointed out, legislation will ensure that the Civil Service is not left vulnerable to change at the whim of the Government of the day without proper parliamentary debate and scrutiny. It is also important, however, that legislation in respect of the Civil Service is concise and focused, ensuring it does not hamper the Service’s ability to respond flexibly and rapidly to changing circumstances.

Amongst other matters, the legislation will clarify the legitimate and constructive role of Special Advisers within government. Having Special Advisers allows Ministers to get the political advice they need, and reinforces the political impartiality of the permanent Civil Service by clearly distinguishing the sources of political and non-political advice.

The Bill, when published on 25 March 2008, was pretty much as predicted - useful in its way, but changing very little. In particular, there is no suggestion that Parliament will take any form of control over the civil service. And, although the Civil Service Commissioners will have power to "undertake inquiries without a complaint being made by a civil servant", such inquiries can only be made "with the agreement of the Government, on the advice of the head of the Civil Service". The relevant extract from the consultation document which accompanied the draft Bill can be read here.