The civil service
The underlying principles
Three principles underlie the civil service: political neutrality, anonymity and permanence. The important issue to understand and be able to evaluate is the relationship between the civil service and the government of the day. Equally important is the issue of ministerial accountability to Parliament and the manner in which the civil service assists or impedes parliamentary scrutiny.
Civil servants are employees of the Crown, not of the government. The employment of civil servants, and their terms and conditions of employment are regulated under the royal prerogative, and the Crown may dismiss civil servants without incurring any liability for breach of contract. However, the Employment Rights Act 1996 applies to the Crown and therefore the Crown may be liable for unfair dismissal. The permanent character of the civil service ensures continuity in administration even after a change of government at a general election. Much of the regulation of the civil service is by convention rather than law. Civil servants are required to remain politically neutral. Senior civil servants are prohibited from standing for Parliament and must not publicly express political opinions. The convention of ministerial responsibility requires that it is the Minister in, charge of a department who answers questions in Parliament about the department, both at Question Time and before Select Committee inquiries.
The reform of the civil service, largely under the Thatcher administration of 1979-1990, but still ongoing, has resulted in the fragmentation of the once-monolithic departments of state. The introduction of ‘Next Step’ or executive agencies was motivated by the need to improve efficiency in the delivery of services to the consumer. Greater openness and accountability to the public has been effected through the ‘Citizen’s Charter’ introduced under the Major government 1990-1997, and through the Freedom of Information Act 2000 which requires information to be given to the public, subject to a number of exceptions.
There is a need for a Civil Service Act, which the government has agreed to introduce.
THE CIVIL SERVICE
A civil servant has been defined as: ‘…a servant of the Crown, other than holders of political or judicial offices, who is employed in a civil capacity and whose remuneration is paid wholly I and directly out of monies voted by Parliament.
The constitutional relationship between the Civil Service and the government of the day is a matter directly linked to ministers’ responsibility to the electorate – through parliament – and the extent to which that responsibility is affected by the role of civil servant; Before considering the relationship between ministers and departments, some preliminary points require attention. Some doubt exists as to the precise number of personnel in the Civil Service, doubt that arise from the difficulties concerning the appropriate classification of some occupations within the public service. For example, employees of the National Health Service are not technically employees of the Crown – and therefore not civil servants – although responsibility for the Health Service lies with the Secretary of State.
A final practical preliminary point to consider is the sheer volume of work, entitled in government. An estimated two-thirds of a minister’s working weeks taken up by non departmental business: Cabinet meetings, Cabinet committees, parliamentary party meetings, debates and questions in the House, official visits, and constituency duties. The task of heading a major department of state in addition to all the other duties is a major one, and the practical impact of regular government ‘re-shuffles’, the size of departments and non departmental duties is great such considerations lead the observer to wonder whether ministers, rather than senior civil servants, can truly be said to be in charge of their Departments.
CONSTITUTIONAL PRINCIPLES AND THE CIVIL SERVICE
The role of the Civil Service must be considered against the constitutional features of permanence, political neutrality and anonymity.
In many countries, such as the United States of America, the Civil Service is a, semi permanent body, the most senior posts of which change hands with a change in government. A variation on this model, which is employed in Germany and France, involves incoming ministers bringing into the department a small body of hand picked professional advisers. Under the constitution of the United Kingdom, civil servants hold permanent posts, in law ‘holding office at the pleasure of the Crown’. Many aspects of employment protection legislation apply to the Civil Service, but such rights as, for example, the right of appeal against unfair dismissal and the right to belong to a trades union, may be revoked under the royal prerogative.63 Moreover, at common law, the position of civil servants is precarious. Being a servant of the Crown, they may be dismissed with no common law action for wrongful dismissal. However, while the formal position is insecure, in practical terms civil servants enjoy a high degree of security. Terms and conditions of employment are regulated under the prerogative, and the Minister for the Civil Service has power to make regulations; relating to the conditions of service of all civil servants.
The constitutional significance of permanency lies in the development of expertise and the natural growth of a Civil Service ‘ethos’. Most importantly, permanency ensures the availability of such expertise to governments of differing political persuasions. The Private Secretary is a minister’s closest contact with a department, and his adviser.
The Civil Service owes its loyalty to the government of the day; irrespective of political party, and it is imperative that the Civil Service avoids creating the impression of political bias. While the writings of leading Labour Party politicians referred to above reveal scepticism as to this, its theoretical importance cannot be underestimated. Following the trial of senior civil servant Clive Ponting for unauthorized disclosure of information to a Member of Parliament, the Head of the Civil Service issued Notes of Guidance on the Duties and Responsibilities of Civil Servants in Relation to Ministers (1955, revised 1987) in which it was stated that:
The Civil Service has no constitutional personality or responsibility separate from the duly elected government of the day. The rules make it clear that a civil servant who cannot conscientiously comply with his or her official duties because of personal opinions or convictions should take the matter up with his or her superiors; but if unable to carry out instructions should resign from the Service.
The anonymity and political neutrality of civil servants is reinforced by the rules restricting political activity. If the Civil Service is to serve governments of all political persuasions, it is imperative that civil servants, whatever their private political views, should not be seen to be politically active in a manner which would inevitably compromise their neutrality under one political party or another.
The Civil Service is divided, for the purpose of control over political activity, into three groups:
(a) the ‘politically free’ category which comprises industrial staff and non-officer grades, who may freely engage in either national and local politics;
(b) the ‘politically restricted’ category, comprising higher staff grades who are debarred from participating in national’ political activities, but may be permitted to engage in local politics;
(c) an intermediate group which comprises those who are neither employed in the highest or lowest grades.
Political activities, which are subject to restriction, are divided into activities at both national and local level. Those activities subject to restriction at national level include standing as a candidate for election to the European Parliament; holding office in party political organisations which relate to party polities in relation to the United Kingdom or the European Parliament; and speaking on matters of national political controversy, or expressing such views to the press or in books, articles or leaflets. Canvassing, on behalf of a candidate for election to the United Kingdom Parliament or the European Parliament, or on behalf of a political party in respect of such elections, is also prohibited. At local level, civil servants in the restricted category may not stand as candidates for local elections; hold office in party political organisations relating to local government; speak on local politically controversial matters or express such views in the media or other publications; and may not canvass on behalf of either a candidate or a political party in the course of local elections.
In order that the minister be seen to be responsible and accountable for the working of his Department, the Civil Service has traditionally been shielded from the public gaze and protected from public inquiry. By protecting the Civil Service, its impartiality and integrity is enhanced. Further, if civil servants become public figures scrutinised in parliament or the media, their capacity for maintaining the appearance of political impartiality, so important to the concept of permanence, would be damaged.
It has been seen that the minister in charge of a particular government department is absolutely responsible to parliament for the conduct of civil servants, and that this responsibility in turn involves two aspects. The first of these is that the minister has an obligation to explain and answer for the work of his department to parliament; the second is that the minister is responsible in constitutional terms for any failure of departmental policy and administration. As a corollary to ministerial responsibility, the Civil Service is not accountable to parliament and is protected by the concept of anonymity.
While, in theoretical constitutional terms, the anonymity of civil servants is important in buttressingthe responsibility of ministers of the Crown, it is becoming, as, will be seen below, an increasingly less notable feature of the Civil Service. The explanations for the decrease in anonymity are manifold: the vagaries of individual ministerial responsibility. The increasing strength of departmental select committees and the televising of those proceedings, and recent developments in the management of government departments.
The official Guidance for Officials Appearing before Select Committees stressed that civil servants should be ‘as helpful as possible’ to parliamentary committees, but that advice given to ministers should never be disclosed (in order to protect collective ministerial responsibility), nor should advice given by a Law Officer be revealed. Further, officials should not give evidence about matters of political controversy, or ‘sensitive information’ relating to commercial or economic matters or related to intergovernmental negotiations. The rules make it clear that civil servants give evidence to committees on behalf of their ministers, and that they are subject to instructions given by ministers.
THE CIVIL SERVICE MANAGEMENT CODE
In 1994, the Treasury and Civil Service Committee reviewed the position of civil servants. In its report. The Role of the Civil Service, it concluded that a new Civil’ service Code should be drafted to clarify the position of civil servants. The Nolan Committee also recommended clarification in the constitutional framework within which civil servants work and ‘the values they are expected to uphold
The new Code was introduced under the royal prerogative and came into force 1996, replacing Sir Robert Armstrong’s statement. The Civil Ser–ice Management Code, as amended, now states that:
… the constitutional and practical role of the Civil Service is, with integrity, honesty, impartiality and objectivity, to assist the duly constituted government, of whatever political complexion, in formulating policies of government, carrying out decisions of the government and in administering public services for which the government is responsible.
Civil servants are under a duty to give honest and impartial advice to ministers and to:
… endeavor to deal with the affairs of the public sympathetically, effectively, promptly and without bias or maladministration of public money.
They are also required to conduct themselves in such a manner 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 Code also states that civil servants must not misuse their official position to further their own, or another’s, personal interests. It is expected that a Civil Service Act will incorporate the Code.
Ministers. civil servants and Parliament
Under the Guidance for Officials civil servants are required to avoid giving evidence to Parliamentary committees (Select Committees) about or discussing the following matters:
• Questions which are politically controversial
• Sensitive information of a commercial or economic character
• Matters which may be the subject of sensitive negotiations
• Matters, which are, sub judice.
Civil servants are under a duty to give honest and impartial advice to Ministers and to implement government policy.