403. The Civil Service
Management Code is issued under the authority of the Civil Service
Order in Council 1995 under which the Minister for the Civil Service
has the power to make regulations and give instructions for the
management of the Home Civil Service, including the power to prescribe
the conditions of service of Civil Servants. Section 4.1 of the
Civil Service Management Code deals with general principles and
rules relating to the conduct of Civil Servants and contains,
as an Annex, the Civil Service Code which departments and agencies
must incorporate in the conditions of service of their staff.
404. The Civil Service
Code states "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 the Government, carrying
out decisions of the Government and in administering public services
for which the Government is responsible". The new version
of the corresponding but non-statutory Ministerial Code issued
in July 1997 states (paragraph 56) "Ministers have a duty
to give fair consideration and due weight to informed and impartial
advice from Civil Servants, as well as to other considerations
and advice, in reaching policy decisions; a duty to uphold the
political impartiality of the Civil Service, and not to ask Civil
Servants to act in any way which would conflict with the Civil
Service Code; a duty to ensure that influence over appointments
is not abused for partisan purposes; and a duty to observe the
obligations of a good employer with regard to terms and conditions
of those who serve them. Civil Servants should not be asked to
engage in activities likely to call in question their political
impartiality, or to give rise to the criticism that people paid
from public funds are being used for Party political purposes".
405. The Armstrong Memorandum,
a note issued in 1985 by the then Head of the Civil Service, declared
that "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 ...". That description
of the constitutional position was criticised by the Treasury
and Civil Service Select Committee (Fifth Report, HC 27, 1993-94).
The revised Civil Service Code issued in April 1996 now expresses
it thus: "Civil Servants are servants of the Crown. Constitutionally
the Crown acts on the advice of Ministers and, subject to the
provisions of this Code, Civil Servants owe their loyalty to the
duly constituted Government".
406. The Committee regards
the formulation in the 1996 Code as much more satisfactory. The
Civil Service may have no specific legal status but its distinctive
responsibilities and the manner in which they are carried out
play a significant part in our constitutional arrangements. A
definable body of people which owes a loyalty to, and has certain
duties in relation to, the duly constituted Government undeniably
has a personality and responsibility of its own, and attempts
to define the public service ethos are attempts to describe the
attributes of that personality and the nature of the body's responsibilities
in relation to the Government.
407. The Committee agrees
with Mr David Faulkner's description (Evidence volume, p 219)
of the functions of the Civil Service as including "identifying
and explaining the public interest". The Committee further
agrees that "it is not for Civil Servants to be arbiters
of the public interest, but nor is it a matter only for Ministers.
It is also a matter for Parliament and the courts. All these,
together with the Civil Service, have to operate in a constitutional
framework in which all the institutions of the state can be seen
as accountable and legitimate". It can be argued that within
that constitutional framework the position of Ministers, Parliament
and the courts is acknowledged, assured and understood; but the
same cannot be said of the Civil Service. If Ministers were to
decide that Civil Servants had no role in identifying and explaining
the public interest, that would be that. The Civil Service would,
in effect, become a private service for Ministers and neither
the Civil Service, Parliament nor the courts would be in any position
to do anything about it.
408. It may be argued
that the Civil Service has survived for centuries without a Civil
Service Act; that much of our constitution is unwritten; and that
the safeguards of history, tradition and convention are sufficient
to secure the future of the Civil Service. Further, it may be
argued that a Civil Service Act would unnecessarily restrict the
ability of the Civil Service to respond to change, and to adapt
to changing circumstances with the flexibility which it now enjoys.
The Committee received evidence supporting both sides of this
409. Asked about a Civil
Service Act, Sir Robin Butler said (Q 2145) "I think flexibility
is the worry. It could be done in various ways. One of the ways
suggested is that you have a statute that provides that there
will be a code and the code can be altered by statutory instrument.
That would provide a good deal of flexibility. I think there should
be flexibility because, for example, you get recommendations by
Lord Nolan which you want to incorporate which sets new standards
and you do not want to have to pass an Act of Parliament every
time there is some development of that sort".
410. Lord Nolan himself
did not favour a Civil Service Act, but took the view that (Q
1814) "we have quite enough Acts", and that "good
standards come from within" rather than from primary legislation.
He drew attention to the difficulties of drafting an Act which
had to encapsulate the relationships between Ministers and Civil
Servants, saying (Q 1815) "my mind boggles at the enormous
difficulties involved". He also suggested that primary legislation
(Q 1814) "takes time and tends to produce inflexibility".
411. Other witnesses favoured
the introduction of a Civil Service Act. Professor Hennessy (QQ
1956 to 1961) thought the new Civil Service Code was "as
good as you could have made it" and that it should be put
into statutory form. It was still too easy for a Prime Minister
to politicise the Civil Service "around the edges" because
changes to Orders in Council were easily made and seldom noticed,
but "if it is in the form of primary legislation and you
do want to make a change you have to be honest about it because
only primary legislation can override primary legislation".
412. The Committee notes
the Government's intention to put the Civil Service Code on a
statutory basis (Q 1875).
413. Mr Faulkner (Evidence
volume, p 221) set out the case for a legislative framework for
the Civil Service which would include a Public Service Act specifying
the responsibilities and duties of public servants and the mechanisms
for their accountability, not only to Ministers, but also to the
public; and an independent, statutory Public Service Commission
to oversee matters of appointment and professional conduct. "The
process of constructing this legislative framework would resolve,
or more probably provide the means for resolving, any distinctions
which need to be made between 'policy' and 'operations', between
matters which are political and those which are administrative,
or between functions which should be retained in Government departments
and those which can be contracted out or privatised".
414. Mr Robin Mountfield
said (Q 2042) that the argument against a Civil Service Act was
"little more than a question of whether it would add anything
to the authority of the Code. I think that the argument in favour
is that it might tend to entrench even more than at present the
expectation that the Civil Service will continue unpolitical.
I think that is quite a difficult balance to draw and the Government
intend to introduce legislation to do two things, fundamentally.
One is to put into parliamentary Act form powers to employ staff
which currently derive from the Orders in Council. The second
is to give some statutory backing to the Civil Service Code. The
Civil Service Code in a sense already has a degree of statutory
backing in this respect: that Civil Servants have to be employed
by authority of the Order in Council and part of the rules that
we lay down under the Order in Council require the Code to be
incorporated in the terms and conditions [of employment of Civil
Servants], so in effect there is a chain that goes back to the
Order in Council".
415. On balance,
the Committee favours the introduction of a Civil Service Act.
The Act should provide for sufficient flexibility to allow the
Service to adapt readily to changes. It should specify which public
bodies come within its ambit. It would in effect define the Civil
416. If adopted,
the Civil Service Act should give statutory force to a Civil Service
Code of the kind which was promulgated in 1996. It should clarify
whether Civil Servants have any duties over and above their duties
to Ministers and whether they owe independent duties as an organ
of the constitution. It should also set out the duties of Ministers
in relation to Civil Servants.
417. The Civil
Service Act should replace the Civil Service (Management Functions)
Act 1992 and give uniform and clear guidelines on the recruitment
and management of Civil Servants as servants of the Crown. It
should also replace the Deregulation and Contracting-Out Act 1994
and define what changes to the ambit of the Civil Service could
be effected only by primary legislation.
418. The Act should
specify a mechanism by which Civil Servants could in the public
interest report breaches of the provisions of the Act, which they
might otherwise be prevented from doing by their obligations of
obedience and confidentiality. The Act should also indicate the
grounds upon which application may be made by those seeking judicial
review of the action of Civil Servants or Ministers.