24 March 2006
The PM is to appoint a new independent 'ethics czar' to stem rising public concern over political misconduct. It doesn't go far enough, argues Colin Talbot
What do the following stories have in common? Sir Gus O'Donnell, head of the home civil service and Cabinet secretary, is asked to investigate whether or not a secretary of state, Tessa Jowell, has broken the code of conduct for ministers.
Lord Butler, one of O'Donnell's predecessors, while giving evidence to the Commons public administration select committee, declares that ministers are frequently involved, sorry – 'consulted' – over senior civil service appointments. Butler again, in the same evidence session, criticises Parliament for its failure to properly scrutinise poorly prepared legislation.
Sir Nigel Crisp, permanent under secretary of state at the Department of Health and chief executive of the National Health Service, takes an early bath – sorry, an early retirement package – which includes a seat in the House of Lords. It is widely assumed he is being blamed, or taking the fall, for the financial crisis facing the NHS.
Finally, all hell breaks loose over the 'loans-for-lordships' scandal and accusations of election-funding sleaze.
The answer is a poisonous mixture of unaccountable civil servants, hypocritical and opaque conventions, prime ministers' draconian Crown Prerogative powers and our wonderful unwritten constitution, with just a dash of parliamentary disempowerment.
Let us review first the 'official' position. Under the UK's constitutional arrangements, Parliament is supposedly supreme (which is why it won't let anyone else judge MPs' behaviour). The prime minister is appointed or dismissed only by Parliament. He or she appoints ministers who are also accountable to Parliament. The PM and her/his ministers in turn delegate some of their power to permanent civil servants (hence the 'permanent under secretary of state' title) to actually run things. So civil servants are mostly only indirectly accountable to Parliament and can speak to it only on behalf of 'their' minister. Still with me? Good, because now it gets complicated.
The PM is appointed not by Parliament but by the monarch. Of course, no modern monarch is likely to overrule Parliament unless they want to join Charles I. But monarchical appointment does have one big advantage for prime ministers – you get those lovely Crown Prerogative powers. No kowtowing to Parliament to get approval for ministerial appointments or chopping and changing departments, as the poor old US President has to do with Congress.
Civil servants' 'permanency' means that – officially at least – ministers neither appoint nor dismiss them. Otherwise, so it is argued, we'd go down a slippery slope and end up with a massive round of politically motivated appointments to senior public posts, as in the US. But how do you hold people to account when you can neither hire nor fire them?
So what's this all about? First, the ministerial code. Like its Da Vinci counterpart, it's a bit of a puzzler. It is authored by the prime minister of the day (although it's been around for a while, technically each new PM has to reissue it). It has no legal or constitutional standing and is authored, judged and sentenced upon only by the PM.
O'Donnell's role in the Jowell affair was purely to ascertain the facts and report to Tony Blair. We'll leave aside the fact that he has no way of ascertaining the facts other than to ask the ministers involved and accept his or her word. O'Donnell's role was carefully spun by Downing Street as having cleared Jowell, but of course he could not and did not do any such thing.
The truth is, O'Donnell refused to judge whether Jowell had broken the code, insisting that this was a job for the prime minister.
Blair has now accepted that the current position is untenable, and has issued yet another panicky response. To quote his official spokesman: 'The PM was proposing that an independent figure should advise ministers when they first came into office about any issues where there could be conflicts of interest. That same person should then be the person who established the facts for the PM, if there were any questions raised. The final decision-maker in that process, as the prime minister had himself stressed, should remain the prime minister.'
This new ministerial ethics czar would be 'someone who was genuinely regarded as an independent figure by the public and someone that ministers had confidence in regarding confidential matters', the spokesman added.
Second, let's look at Butler's statement that ministers are routinely involved in civil service appointments. While it is one of politics' worst kept secrets, it still apparently caused a sharp intake of breath at the PASC. Having Butler say this openly leaves a breach in the whole edifice of our conventions, which is that civil servants appoint civil servants.
The argument here has always been that if ministers get involved it will inevitably lead to the civil service's politicisation, an accusation first thrown at Margaret Thatcher for her infamous 'are they one of us?' question. The danger, we have always been told, is that we would end up with a US-style system of mass appointments every time the government changed.
But according to Butler, ministers are involved, and, if his evidence is anything to go by, over a wide range of appointments. This leaves us with a typical British muddle in which the official rules aren't clear because they aren't written down anywhere.
Third, and closely linked, is Crisp's departure. His whole history at the DoH – from his appointment as joint permanent secretary and chief executive of the NHS up to and including his departure – is a classic case of the Crown Prerogative's unchecked exercise.
In any proper democratic system, he would only have been dismissed by ministers (with an account to Parliament), or by Parliament itself, after due process and an open accounting.
Finally, Butler again. Who supposedly drafts legislation? The civil service, of course. For Butler to criticise Parliament for failing to correct bad legislation is a wonderful sleight of hand. He suggests that this is because ministers and their special advisers are running rampant, but where are the permanent secretaries – on 'gardening leave'? Yes, Parliament should be less supine, but whatever happened to civil servants 'speaking truth unto power'?
So what are the possible correctives to all these shenanigans? Perhaps a Civil Service Act, which settles clearly the powers and responsibilities of the service and, crucially and for the first time, makes them properly accountable to Parliament as well as ministers.
What about parliamentary adjudication on the code of conduct? How about the parliamentary appointment of the new ministerial ethics czar? Could we possibly have an open process for selecting and dismissing all senior civil servants, with an active role for Parliament? Don't hold your breath. After promising an Act, the government has gone silent.
A final thought. It is passing strange that what is right for foreign parts is definitely not OK for dear old Blighty. I am currently helping the UN Development Programme write a report on Macedonia. This small ex-socialist state is making valiant efforts to drag itself into democratic shape, helped in part by money and advice from our very own Department for International Development.
Some of the things they have been putting in place include civil service laws and legally binding codes for all manner of public administration activities.
Indeed, almost all the proposals suggested above are to some degree at least being implemented in Macedonia.
It is strange how we are willing to export principles that we aren't prepared to impose upon ourselves.
Colin Talbot is professor of public policy and management at Manchester University's Centre for Public Policy and Management
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