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Central intelligence - The more things change, by Colin Talbot

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08 July 2005

The UK is unusual in having virtually no legislative control over central government reorganisations. Proponents of this state of affairs point to its flexibility, but it can also lead to flawed decision-making

In my last column ('The ministry of silly changes', May 27) I suggested that it might be a good idea if government organisations — ministries and agencies — were put on some sort of legislative basis.

I was pleased to receive an immediate response from Sir Andrew Turnbull, the outgoing head of the civil service, politely disagreeing and saying that in his experience foreign visitors were always envious of the UK's flexibility in these matters.

We clearly talk to different people. In my contacts with international public administrators I find that many are shocked and frankly unbelieving when I try to explain the UK's remarkably non-legal basis for public administration. When I have been lecturing abroad on the Next Steps programme of agency creation in our civil service, people have flatly refused to believe there was no legislation authorising it.

So why and how is the UK different? Well, first it is not different in all cases. The supposed advantages of flexibility apparently only apply to Whitehall: local government, Welsh and Scottish government, quangos and many other public bodies are subject to legislation. Even a few bits of Whitehall are — the main ones being the revenue agencies (HM Revenue & Customs).

This is purely an accident of history, rather than by design. British government derives its authority from the monarchy, and ministries were traditionally established through Crown prerogative. Apart from the revenue agencies, where legislators insisted on a legal basis to try to keep the monarch out of the till, they never thought it sufficiently important to try to get control over what ministries the government decided to create, merge, delete or — ludicrously, and sometimes purely vainly — rename.

This does indeed offer ministers more flexibility than they would enjoy in most other democratic countries. The churn rate in ministry structures is quite high. And one study in the 1980s, by Christopher Pollitt, pointed out that these reorganisations tended to go in cycles — from small specialised ministries to super-ministries and back again.

But this rearranging of the deckchairs can be deceptive. It is mostly about simply redistributing functions. Few are abolished. Few are farmed out to local government or quangos, because that does require legislation.

Being able to carry out impressive-sounding but often fairly superficial reorganisations is certainly a political lever most governments and ministers seem to enjoy pulling. It creates a great impression that 'something is being done'. In some cases it is, and for good reasons. But there have also been numerous cases of vanity or spin-based renaming or reorganising, at great expense and with little benefit. And even reorganisations carried out for good reasons and in good faith but based on closed 'group think' in Whitehall have proved to be duds in practice.

There are good reasons why such changes should be subject to greater legislative restraints. The public service argument is one. Ministries are not just the creatures of ministers. They have to command widespread respect and have an ability to represent the public interest as well as the government's. To the extent that they start to be seen purely as creatures of the ruling party, they lose credibility.

The way most democracies resolve this tension between the needs of government and the need for a sense of public ownership is through legislative involvement in how public services are organised.

In the UK the position is weird — Parliament gets involved in authorising organisational choices only when these are away from the core. So MPs do get to vote on what non-departmental public bodies we have, or on how local government or NHS trusts and foundations are constituted but not on what the Home Office should do or whether we should merge Education and Employment, or split them up again.

In most cases these organisational issues are relatively uncontroversial but in some there are legitimate and important choices to be resolved. The danger of not having some sort of pre-scrutiny is that the executive will periodically make silly mistakes at best and dubious choices at worst.

The debate over the location of the Child Support Agency (stay at the Department for Work and Pensions or move to the new Revenue & Customs department) is a case in point. Parliament should have some say — uniquely in this case it would if it moved, because Revenue & Customs is based on legislation.

We do not want to end up gridlocked. But this can be avoided while retaining parliamentary involvement. In Tanzania and Jamaica, for example, a mix of enabling and secondary legislation has been used to push through agency-type programmes without unnecessary delays, but with scrutiny.

Colin Talbot is professor of public policy at Nottingham University and director of the Nottingham Policy Centre

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