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A healthy constitution, by George Jones

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08 April 2005

Backers of a civil service Act are either misguided or mischievous, argues George Jones, as their proposals will reduce – not enhance – democracy

A broad consensus has been building up in recent times over the need for a civil service Act, to push ahead the reform process across Whitehall. The public administration select committee has been particularly active on the question, repeatedly raising the controversial issue of the role of special advisers in government.

However, as the draft Civil Service Bill works its way through the consultation process, it is worth raising some critical questions about the assumptions that underpin it. The main argument against such a Bill is that it overturns a major feature of the British constitution. Civil servants are servants of the Crown, which, today, means the duly elected government.

They serve ministers, not MPs, peers, nor select committees. They have no constitutional identity separate from that of the government they serve. For more than 150 years, they have been regulated by Orders in Council under the Royal Prerogative – that is by government's, not Parliament's, rules. Putting the permanent part of the executive on a statutory basis will produce a parliamentary civil service, not a government civil service.

Such a change is not trivial but fundamental, as it would reverse a basic element of the constitution. The Department for Constitutional Affairs justifies such a change by asserting that Parliament is sovereign. It claims it has 'general authority as the ultimate sovereign body and source of the government's right to govern'.

That is incorrect. The ultimate sovereign body is the Crown in Parliament, not Parliament alone. The Crown in this context is not just the monarch, but the duly elected government that over the centuries has come to exercise the governing powers of the Crown. The government is itself an essential component of the ultimate sovereign body.

It is wrong to locate sovereignty in Parliament alone, or indeed in the Commons, just one House of that Parliament. To switch responsibility for the civil service from the government to one part of Parliament is not a minor change to be undertaken lightly.

Recognition of the major significance of such a change is one reason why this proposal of the 1854 Northcote-Trevelyan Report was not adopted in the years that followed. To go back to a proposal in a mid-nineteenth century report – and one rejected for 150 years – is a strange way to modernise the civil service. Governments had good reasons over the years not to adopt the change. It would make its officials servants of Parliament, and not of the elected government.

Before legislation is introduced, it is a good idea to identify clearly the problem to be dealt with – and to show that the proposed legislation will address it. No such problem has been exposed. There has been some hysteria about special and political advisers, which has led to calls for boundaries, roles and relationships to be defined (presumably to stop advisers from intruding into civil service roles) and for the number of advisers to be limited.

But in most cases civil servants and advisers get on well together, and most civil servants welcome advisers as protecting them from too deep an involvement in party political matters. Tensions have occurred in only a few departments, where personal relationships broke down. Such tensions would have occurred whether or not there were a civil service Act.

Legislation cannot guarantee good behaviour, respect and trust. The government has already, rightly, rejected putting a limit on the number of advisers. It would be a rigid curb on government, hindering its capacity to respond to changing events and circumstances. The quest for defined boundaries and roles at the top of government, where politics and administration intertwine, is misguided. Ambiguity, fuzziness and grey areas are assets, since they enable the flexibility and fluidity that is so prized by the Department for Constitutional Affairs, as well as sensible practical responses to unexpected happenings. It would grossly damage good government to try to freeze the future with the rigidities of an Act rooted only in anxieties about a few examples of contemporary misbehaviour.

The civil service has evolved over the years, and is still doing so, adapting to the changing requirements and complexities of government in a flexible way. Perhaps further evolution is what advocates of the Act anticipate, believing the civil service needs to protect itself against changes that will make it more efficient and responsive to the needs of ministers. A statute would be harder to alter than an Order in Council or code of practice, and would preserve the civil service as it is at the present time.

The Department for Constitutional Affairs needs to appreciate that the 'impartiality and political neutrality of the permanent civil service' lies in its capacity to transfer its allegiance from one party to another, depending on which party has been elected to be the government. The civil service is not neutral between government and its opponents. It must be 100% committed to the government, within the law. The advocates of a strong civil service Act want to extend the law to weaken the commitment and loyalty of the civil service to the government.

A civil service Act as envisaged by its most vociferous advocates would change the way ministers, advisers and civil servants interact, for the worse. Instead of focusing on the problems before them and producing appropriate reactions, they would be worrying over who should be doing what, and whether they were conforming to statutory provisions about their relationships.

In place of spontaneity and informality, there would be adherence to formalism. If the Act expressed some high-flown principles, then lawyers would have a field day, clogging up the processes of government with disputes, sucking in judges and the courts, to the benefit only of lawyers' fees. The government should stay with a system of codes capable of adjustment to changing circumstances. This allows ministers, advisers and civil servants to interact in a commonsense way – and to devote their energies to tackling pressing problems in a collaborative team effort.

The advocates of an Act exaggerate the threat posed to the civil service by ministerially appointed special advisers. There is no crisis that justifies the need for statutory protection for civil servants. Around 80 advisers, many of whom are serving the prime minister and chancellor of the exchequer, are not undermining a civil service numbering around 3,500 at the top. There might be a problem about the undermining of ministerial and Cabinet government by Number 10, the Cabinet Office and the Treasury, but that issue is not going to be solved by a civil service Act.

A powerful lobby has been campaigning for some time to bring in such an Act, instigated by Lord Wilson of Dinton when he was Cabinet secretary and head of the home civil service. This lobby is pressing for measures to strengthen appointed civil servants against elected ministers.

The Department for Constitutional Affairs should not allow itself to become the battering ram for the forces of protectionism, seeking to enhance producer and provider interests against the consumers of government: citizens and their elected representatives who are ministers.

Lord Wilson's campaign is supported by his predecessor, Lord Butler of Brockwell, and both of them persuaded Lord Armstrong of Ilminster (Lord Butler's predecessor as Cabinet secretary) to speak in favour of a civil service Act, although he had previously been opposed. They were supported by: Baroness Prashar, who, as the first civil service commissioner, sought to advance the powers of her commission; by Sir Nigel Wicks, who wanted to keep his Committee on Standards in Public Life in employment; and by the First Division Association, the top civil servants' trade union, seeking enhanced status for its members.

This sectional lobby acted in cahoots with Tony Wright, chair of the Commons public administration select committee, which conducted its inquiry without examining the main objections to a civil service Act. It also helped the lobbyists by writing a draft Bill, acting as if it were a department of government.

The Opposition parties want to embarrass the government by weakening its control over its officials. Some journalists want to stimulate more rows between ministers, advisers and civil servants so they will have more to write about, while sundry academics relish the prospect of more subjects for their own research and that of their students. This motley conspiracy against the public interest has exploited the leaking of an

e-mail message by a special adviser about burying bad news to protect privileged interests and to undermine ministers. The problem, though, is not that civil servants need protection against ministers, but that ministers need protection against civil servants.

The Department for Constitutional Affairs should stand up for the British constitution and reject the concept of a civil service Act. It should champion the civil service as servants of ministers, whose behaviour should be regulated by codes of good practice. This should be backed up with imaginative training for ministers, advisers and civil servants.

It should resist the mandarins and their allies who press for a civil service Act. They are a menace to democratic government, since they seek to inhibit a democratically elected government, whose elected ministers should prevail against its appointed servants. The proposed legislation is neither necessary nor desirable.

George Jones is emeritus professor of government at the London School of Economics

PFapr2005

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