The Constitutional Role and Accountability of UK Civil Servants - Summary
This is a summary of the constitutional and ethical framework within which UK civil servants work. It will provide sufficient information for many readers, but please follow these links if you would like to read more detailed discussions of civil servants' constitutional role and accountability.
The Traditional Whitehall and Westminster Model
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. 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. 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.
However, 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.
The 1854 Northcote Trevelyan Report led to the creation of a civil service
- appointed on merit
- through open competition, rather than patronage,
with the following core values:
- Objectivity and
- Impartiality – including political impartiality.
The 1918 Haldane Report 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 relationship between civil servants and Ministers became one of mutual interdependence, with Ministers providing authority and officials providing expertise.
Crucially, therefore, 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, and
- ... must loyally carry out Ministers' decisions with precisely the same energy and good will, whether they agree with them or not.
The Civil Service Code 2010 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 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 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 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.
- 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.
Civil servants who appear before Select Committees are required to follow the 'Osmotherly Rules'. 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:
- 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.
The Carltona Principle is the legal principle under which civil servants exercise power on behalf of Ministers. In short, 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.
Accountability means being held to account, scrutinised, and being required to give an account or explanation. If it is effective, accountability causes the decision maker to think hard about the range of decisions that are available to him/her, and the fairness, appropriateness and proportionality of each possible decision. Jonathan Haidt refers to this as exploratory thought, and argues (I think correctly) that effective accountability has three vital elements:
- Decision makers learn before forming any opinion that they will be accountable to an audience.
- The audience's views are unknown.
- The decision maker believes that the audience is well informed, and interested in both fairness and accuracy.
(Apart from their relationship with Ministers), civil servants are in principle accountable upwards through audit and Parliamentary scrutiny, and outwards through transparency and openness to stakeholders and to the public at large, and also through Judicial Review (JR). But only JR meets all three of the tests of effective accountability summarised above.
Civil servants are accountable for three things:-
- Our stewardship of public funds etc. including: ◦ regularity which means the requirement for all expenditure and receipts to be dealt with in accordance with the legislation authorising them, any delegated authority and the rules of Government accounting ◦ propriety which is a further requirement that expenditure and receipts should be dealt with in accordance with Parliament's intentions and the principles of Parliamentary control, and in accordance with the values and behaviour appropriate to the public sector - see below. ◦ value for money (VFM), and ◦ effective management systems.
- Compliance ◦ with the law ◦ with Government policies and initiatives, and ◦ with public expectations of proper conduct:- see "the Seven Principles" listed below.
- Our Performance, including ◦ against objectives and targets, and ◦ in delivering acceptable levels of service to the public.
More detail, if you need it, is here.
The Seven Principles of Public Life were endorsed in the Nolan Report as encapsulating the values and behaviour appropriate to the public sector: A short summary is as follows:
- Don't bend or break the rules
- Put in place and follow clear procedures
- If approval is needed, get it first
- Don't allow a conflict of interest to appear to affect a decision
- Don't use public money for private benefit
- Be even-handed Record the reasons for decisions
Comment: Various parts of the above model are being increasingly tested by modern developments. See the notes on civil service reform for a detailed discussion.