Select Committee on Public Service Report


PART 6: CONCLUSIONS AND RECOMMENDATIONS (continued)

PUBLIC SERVICE ETHOS (289-298)

  442.    The evidence we received testified to the high standards of efficiency, integrity, impartiality and intellectual rigour which continue to characterise the Civil Service. We pay tribute to the Civil Service for maintaining these qualities so well. However, the evidence we received-and which, indeed, the House of Commons Treasury and Civil Service Committee received in connection with its 1994 Report on the Role of the Civil Service-leaves us in no doubt not only of the great importance of the Civil Service ethos but also of its vulnerability.

  443.    Perhaps the single most important factor leading to the preservation or alternatively the erosion of the public service ethos is the esteem in which it is held. Maintaining it can be demanding and often difficult. If its value is doubted or if it is ignored, people are less likely to be committed to upholding and preserving it. It needs to be consciously fostered. We received evidence that Civil Servants find a dignity of purpose in working for the public sector, but also evidence that some Ministers have tended to regard the private sector as having superior qualities. The extent to which many of the changes in the public sector have involved transferring work from it to the private sector will have reinforced the feeling amongst Civil Servants that in relation to those areas of work their political masters regarded their role as unnecessary or inappropriate.

  444.    The attitude of Ministers towards Civil Servants is crucially important. As Lord Armstrong of Ilminster said (Special Report, p 2), "it is not enough to pay lip service to the public service ethos or to take it for granted as something that will survive anything that is thrown at it". We believe that Ministers have a particular responsibility to affirm the value of the public service ethos in maintaining standards of conduct and service in the public interest.

  445.    The Committee attaches particular importance to the role of the Civil Service in offering frank advice to Ministers. Sir William Reid said (Q 593) "for those who are in the public service there should be an understanding that it is an essential, not just an option, to inform Ministers of unpalatable or unwelcome consequences of their intended decisions". Sir Brian Barder described it (Special Report, p 215) as a "willingness to offer frank and if need be unwelcome advice without regard to personal consequences". It takes personal courage for a civil servant to perform this important public duty; he or she can only be sustained in it by colleagues who share the same strong public service ethos.

  446.    The importance which the Committee attaches to this role lies behind the Committee's concern at the evidence given by Sir Christopher Foster and Mr Francis Plowden (Special Report p 17) about the distancing of Ministers from Civil Servants and the tendency of Ministers to take more decisions on their own or with external advice. The Committee considers that such tendencies are capable of undermining the safeguards of the public service ethos.

  447.    Some of the changes made in the structure of the Civil Service might also reasonably be supposed to reduce the willingness of Civil Servants to offer Ministers unwelcome advice. Senior Civil Servants employed on personal contracts to meet specified measurable targets and with performance related pay could, at the very least, be tempted to look no wider than their responsibilities to deliver those targets. The only yardstick may be seen as efficiency, and there is a risk that such persons might feel that it would count against their own personal and professional interests to draw Ministers' attention to matters affecting the wider public interest which might adversely affect their ability to meet their targets. A public servant who is required to compete with the private sector for the performance of his function can be forgiven for assuming that Ministers do not see the public service ethos, including the duty to proffer unwelcome or unpalatable advice, as important to his tasks.

  448.    The Committee welcomes the statement in the Ministerial Code (Cabinet Office, July 1997, paragraph 56) that "Ministers have a duty to give fair consideration and due weight to informed and impartial advice from Civil Servants". The consultation process is no less important.

  449.    Difficult though it is to define the public service ethos, there was a broad measure of agreement among our witnesses about its constituent elements. These include factors, such as the importance of an esprit de corps, which go a good deal wider than any characteristics one might reasonably expect to be mentioned in any Civil Service code. It is these other factors which are likely to be particularly vulnerable to the kinds of change in the public service which have taken place over the last thirty years. The role of the Civil Service is not governed by rules. Its advice on constitutional propriety, for example, is often based on experience and tradition as much as on law. The traditions and collective memory of the senior grades in the Civil Service are therefore very important and depend crucially on its unity, continuity and collegiality. These, in the view of the Committee, could easily be damaged by the structural division of the Civil Service if they were not specifically and consciously safeguarded.

  450.    The role of the Civil Service is so important that both ethos and morale must be monitored carefully. This is no doubt the function in the first place of senior managers within departments and ultimately, for the Civil Service as a whole, the Permanent Secretaries and the Head of the Civil Service. We believe that they have done well to uphold the ethos of the service throughout a period of considerable organisational turbulence.

  451.    At the Ministerial level, the overall responsibility for protecting ethos and morale lies in the first place with the Minister for the Civil Service (i.e. the Prime Minister) and under him the Chancellor of the Duchy of Lancaster as Head of the Office of Public Service. But we stress strongly that this should not be left solely for Ministers with designated responsibility for the Civil Service. All Ministers as guardians of the public service should bear the responsibility, whatever departmental portfolio they hold, to uphold and sustain the traditions and the ethos of an impartial, dedicated, non-political Civil Service. In order to safeguard the future, this responsibility should be spelled out in the Ministerial Code. Consideration should also be given to including it expressly in the Civil Service Act.

ACCOUNTABILITY

The Cost of Accountability (308-310)

  452.    Sir Robin Butler's wish to retain the present tradition of accountability must be read together with his view that the trend towards privatisation in recent years is in part due to the restraints which accountability imposes. There are some activities which can generally best be left to a body not subject to daily political control. That body should be allowed to get on with its tasks. But it is not justified to transfer a function to a quango or to the private sector solely or principally so that Ministers can avoid being accountable.

  453.    The Committee notes that, in the majority of cases, the transfer of functions has been done with the acquiescence of Parliament, and indeed in most cases legislation has been required to effect the transfer. In the case of the Recruitment and Assessment Services, however, the offer for sale of RAS to the private sector was made using the Government's prerogative powers and the decision to do so was simply announced by means of a written answer to a Parliamentary Question in the House of Commons. In our First Report on RAS we drew attention (paragraph 87) to the strong criticisms made of the Government's handling of the matter. Lord Beloff (Special Report, page 221) wrote that recent developments and discussion have called into question the classical theory of the Constitution, citing the most recent development as "the decision to privatise the Recruitment and Assessment Services despite the objections raised by the Committee. And this decision was taken as the Committee will recall despite a strongly negative vote in the House of Lords and strong criticism in the House of Commons." This observation brings us back to the concern raised earlier in this report (see paragraph 153) that changes were made with little public debate and without cross-party consensus.

  454.    The Committee is aware of the danger of imposing so heavy a burden of accountability on Ministers as to encourage them to transfer functions to other bodies. However, the Committee does not consider that that danger warrants a reduction in levels of accountability in the public service. Public bodies such as executive agencies should be able and required to demonstrate to Parliament and the courts that their business is discharged in a rational, fair and reasonable way and that full account can be given of the way in which public money is spent. The inspiration, risk-taking, impulse and flair which can so often be the key to success (or failure) in private business cannot be applied in the same way by public servants dealing with public resources. Many of these considerations apply as much to NDPBs and private companies involved in the delivery of public services as they do to the core Civil Service and to executive agencies. The Committee therefore rejects the idea that it would be beneficial to reduce the meticulous record-keeping which is an essential feature of the public service at present, and recommends instead that the Office of Public Service carry out a review of accountability arrangements in relation to NDPBs and private companies involved in public service delivery.

Policy, Operations and Agency Status (346-349)

  455.    It appears to the Committee that within the agency structure there will always be cases where the dividing line between policy and operations is blurred. An operation may fail because the policy behind it was bad: yet as Professor Bogdanor told us (see paragraph 318 above) "it can never be policy that something goes wrong". Operational matters enter the political domain when they go wrong.

  456.    The Committee has heard that matters which have a high operational content are suitable to be dealt with by agencies, whilst matters with a high policy content should remain in the core. However, the Committee has seen no guidelines specifying which activities are considered to be matters of policy, and which operational. Nor is the Committee convinced that precise guidance as to this distinction could be produced. Any operation can involve a question of policy-even the issue of driving licences-if circumstances are right. It is therefore not surprising that such precise guidance does not exist. Decisions as to whether an activity should be undertaken by an agency or by the core department appear to have been taken on an ad hoc basis within departments. In general this is unobjectionable but, even though allocation of activities to core departments or to agencies cannot be made simply on a clear-cut policy/operations distinction, general criteria should be defined to indicate what should or what should not be transferred to an executive agency and what should be retained within a core department. In any event, when a decision has been made to transfer a given set of activities to an Agency, it should be standard practice to carry out a pilot test before the decision is implemented fully. In this way the problems which beset the Child Support Agency and the Benefits Agency at the outset might have been avoided.

  457.    The Committee also questions the opinion that it is desirable to separate policy from operations. The focus on operations in agencies may have raised standards of service (see paragraph 368ff); but those who point out the benefits of isolating operations from policy equally protest that agency staff are deeply involved in policy decisions. An acknowledgement that policy and operations must inform each other in a continuous loop can not be accompanied by a dogmatic assertion that it is best to separate them. The Committee has heard no serious argument for the separation of policy from operations other than the opportunity it affords to improve standards of service. The Committee considers that standards might have been improved within the existing, unaltered Civil Service. The Committee does not accept the view that it is possible effectively to separate policy from operations, or the view that such a separation is desirable.

  458.    By devolving some activities of a Government department to an executive agency, there is a risk-and perhaps it is inevitable-that no-one will remain in the core department who is able to brief and advise the Minister on those aspects of the department's work which have been devolved to the agency. It is obviously important that a Minister should be able to obtain such briefing, which formerly would have been given by an official working in a core department. It is essential therefore to ensure that Ministers are and continue to be able to obtain the necessary briefing and policy advice from senior officials in the executive agencies if it is not available in the core departments.

Answering Parliamentary Questions (365-367)

  459.    An agency's activities are very clearly circumscribed, and their successful performance is the responsibility of the chief executive. These two facts taken together explain why it is for the first time possible to suggest that an official rather than a Minister should be accountable for a particular area of activity. Very quickly it has become an established convention that chief executives of next steps agencies provide the substance of written answers to parliamentary questions and are held to be responsible for operational matters within the agency they run. The Minister's reply in Hansard consists of a covering letter signed by the Minister, accompanying a substantive answer signed by the chief executive. Rather than answering questions about agencies themselves, Ministers now often refer queries to chief executives instead. This is very different from the previous understanding, which was that Ministers were accountable for everything that went on in their department, and Civil Servants spoke only on behalf of the Minister.

  460.    However, devolution of accountability raises both practical and theoretical issues. On a theoretical level, the question arises whether any attempt by Ministers to distinguish between responsibility for policy and responsibility for operations is consistent either with the Armstrong Code or with the Carltona doctrine. If that doctrine holds good, then whatever might be said in an executive agency's framework document, its chief executive is in all things acting as his Minister's alter ego. In terms of the Armstrong Code, the chief executive has no constitutional personality or responsibility separate from that of the Government. If it is claimed that in operational matters a chief executive (but not the Minister) is personally responsible because the Minister has delegated that responsibility to him, then the chief executive's position is radically different from that of the Permanent Secretary, except perhaps, when the latter acts as an accounting officer. Such an interpretation would have far-reaching implications for the current status of both Civil Servants and Ministers as servants of the Crown-and, indeed, for Crown immunity. The Committee considers that the precise relationship between Ministers and Civil Servants is now subject to a variety of interpretations, and that there is now a need for this relationship to be clearly defined, taking into account the Carltona doctrine, the Armstrong Code, the Civil Service Code and the new position of Chief Executives. It is a matter for reflection as to whether the Carltona doctrine is really relevant, or indeed in operation, in the changed circumstances of today, or whether the Civil Service should not be regarded as in some respects a separate organ of the constitution distinct from the Ministers of the Government. A Civil Service Act might be the means by which to clarify this. The idea of a Civil Service Act is discussed more fully in paragraphs 403ff.

  461.    On a more practical level, the Committee considers that it is unrealistic to imagine that Ministers will not become involved when an operational matter suddenly raises a policy issue. That being so, it is impossible to devolve absolute accountability to chief executives so as to allow them to answer questions on their own behalf. Any such devolution would lead to an unworkable system where there were dual lines of accountability to the chief executive and to the Minister. The Committee recommends that in clarifying the relationship between Civil Servants and Ministers, the Government should affirm that the position of agency chief executives is no different from the position of any other civil servant; that when chief executives provide the substance of written answers to parliamentary questions or appear before select committees they do so on behalf of the Minister; and that Ministers are accountable for whatever goes on in their agencies just as they are accountable for whatever goes on in the rest of their departments. The Committee hopes that such an affirmation would prevent it being thought that Ministers could pass responsibility for operational matters to chief executives.

PERFORMANCE LEVELS IN THE CIVIL SERVICE (382)

  462.    The bulk of the evidence which the Committee received on standards of service related to the Department of Social Security. It was overwhelmingly positive. A number of members of the Committee visited the Benefits Agency in Leeds, and a local benefits office, also in Leeds. They were very favourably impressed by what they saw. The staff were well motivated, courteous to applicants, efficient and anxious to be giving and to be seen to be giving highly satisfactory service in difficult circumstances. The little evidence we received about standards more generally across the Civil Service since the introduction of agencies backed this up. The Committee therefore concludes that the introduction of agencies has improved standards of service delivery in the Civil Service. However, the Committee notes the concerns of witnesses that those standards will fall if agencies are subject to severe financial cuts. The Committee also shares Lord Nolan's concern about the "organisation and traditions and standards of the Civil Service". Performance standards are important: but they are not everything. The possible detrimental effect of agencies on accountability and ethos are discussed elsewhere in this Report.

GRIEVANCE AND REDRESS (392)

  463.    The Committee had evidence to suggest that the introduction of agencies has in some cases improved arrangements for grievance and redress. The main complaint now seems to be a lack of consistency across the public service with regard to complaints procedures. Different departments now have different types of grievance procedure. Tribunals are constituted differently for different tasks. The appellate procedure is different and in some cases elaborate. It may be inevitable that structural differences should exist for tribunals and other bodies to deal with different grievances. It is, however, desirable in the view of the Committee that as far as possible standard principles and guidelines in relation to the handling of grievances and to the provision of redress should be available across the public service. It may well be that the process of standardisation so far as is possible would also lead to the simplification of procedures. It is plainly important that citizens should know how their grievances are dealt with if a department or an agency or any other public body fails to give the service which it is expected to give.

THE IMPACT OF THE EUROPEAN UNION ON THE CIVIL SERVICE (402)

  464.    The Committee concludes that membership of the European Union has changed the content of Civil Servants' work, but not its nature. The constraints imposed by Europe are not so very different from the constraints imposed by domestic policy in the past. The Committee is impressed with the way in which the Civil Service has adapted itself to cope with the changing demands of the United Kingdom's membership of the European Union, and in particular the Committee applauds the European Fast Stream programme for sending British Civil Servants into European institutions. The Committee attaches importance to the fact that discussions about the public service take place between officials in this country and those in European Community institutions, and, no less important, with officials of other Member States. It seems to the Committee that even allowing for structural and policy distinctions between the Civil Service in this country and that in other countries there is much to be gained from a study of what happens in other Member States. It is obvious that this is already happening and that the Civil Service here is also very conscious of changes which are taking place in other Commonwealth countries, such as New Zealand, Australia and Canada.

A CIVIL SERVICE ACT (415-418)

  465.    On balance, the Committee favours the introduction of a Civil Service Act. It 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 Service.

  466.    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.

  467.    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.

  468.    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.



 
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