16 July 2012

The House of Lords Constitution Committee inquiry on the Accountability of Civil Servants has heard some memorable contributions from informed commentators, ranging from former Ministers to academics. Four former Cabinet Secretaries were the witnesses last week.  Ths week, witnesses include the Minister for the Cabinet Office and the incumbents in the offices of Cabinet Secretary and Head of the Civil Service.

The transcripts of evidence published so far are a great read (about four hours of it!).

Issues addressed extend beyond accountability to encompass appointments of permanent secretaries and the role of political advisers. One interesting aspect is whether the civil service has a constitutional role as a check on the Government. There is a suggestion in the Constitutional Reform and Governance Act 2010 which gave statutory form to the civil service, that there is a responsibility although as yet undefined.

Section 3 (6) “In exercising his power to manage the civil service, the Minister for the Civil Service shall have regard to the need to ensure that civil servants who advise Ministers are aware of the constitutional significance of Parliament and of the conventions governing the relationship between Parliament and Her Majesty’s Government.”

The evidence given by Charles Clarke, a former Home Secretary – (and incidentally son of the originator of the FT share index and later a civil service permanent secretary) –is a perspective probably regarded in New Zealand more as an obligation on chief executives to ensure Ministers act lawfully than a constitutional check.  We have a weaker line of authority, derived possibly from the obligation in the State Sector Act to maintain standards of integrity and conduct.

Charles Clarke:  … In answer to your question, the home civil service absolutely does and should act as a constitutional check on the actions of Ministers. That is precisely what they ought to do.

However, everything depends on the relationship between  the permanent secretary and the Secretary of State, as I said at the outset. The permanent secretary has to be strong enough to say to a possibly very strong Minister, “You cannot do this, Secretary of State”. To be honest, I do not think that all permanent secretaries are strong enough to do that. There are occasions when Ministers will try to override their permanent secretaries, and that is a serious criticism of a permanent secretary.

Secondly, I used to encourage…all civil servants, even as many as would be round a table of this size, to give me their opinion about what I was proposing. I would say that the sanctionable offence would be not to tell me that I was about to do something mad before I found out by another route. It was then my job to take the decisions. If somebody said, “You are mad to do this for the following reasons”, I might say, “Well actually I am still going to go ahead and be mad”, and that was a matter for me. It was my decision.

It was the duty—I emphasise the duty—of officials to say to me, “You have to operate in this way and understand these circumstances.” I understand that there are other Ministers who do not operate in that way. They essentially do not want their civil servants to give their views and do not want to be contradicted.

I am sure that Michael, (another witness,  Lord Howard, also a Home Secretary ) having his personality, would have been similar in his approach in wanting people to be quite candid. I did not mind if officials said that I was doing completely the wrong thing, because I was confident enough to deal with the arguments that they put forward and come to a view about how to proceed.  Having said that, you have a series of difficult issues if the civil servants are not strong, and if in particular the permanent secretary is not, in relation to the Secretary of State.

That leads to a very difficult set of issues. You used in your question the phrase “constitutional check”. That becomes a very critical question when you talk about quasi-judicial roles played by Ministers, or proprieties, for example in relation to allocation of moneys including to your own constituencies and issues of that kind, where the civil service has to be absolutely a stickler for the position—and should be.

That is one of the reasons why I find the current position in relation to the Secretary of State for Culture, Media and Sport completely inexplicable. In the current circumstances, it does not appear that the permanent secretary acted as he should have done. It is a constitutional check. It should be a key culture of the civil service to be that constitutional check.

Now, some politicians do not like that. We see it in the papers all the time at the moment that certain politicians argue that you do not want civil servants who are a constitutional check. I take exactly the opposite view: it is critical that they are a constitutional check as long as, at the end of the day, the right of the Minister to take the decision is acknowledged and recognised.

I think that in practice that is the case. All civil servants I know accept that if the Secretary of State wants to take a decision, then that is what they should do.”

The Constitution Committee has been teasing out views on what should subsequently happen regarding responsibility and accountability, when several years later, a policy fails and both Minister and the departmental head have moved elsewhere. What is the difference between being accountable and being responsible?