26 November 2012

The House of Lords constitution committee inquiring into the accountability of civil servants published its report last week.

The content may be seen as a case of old bulls and young bulls.  The report emphasises the strengths of Westminster traditions, implicitly cautioning the Prime Minister and the Cabinet Office Minister against reacting to their concerns about civil service performance by restructuring the relationship between officials and their Ministers.

The Constitution committee is concerned that Government reform proposals will affect the impartiality of the civil service and its ability to serve successive governments with equal commitment, diminish the importance of merit based appointments and undermine the importance of Ministers receiving advice they may not want to hear.  The committee sees a risk of cronyism in adopting processes similar to either the New Zealand or the Australian model for appointing departmental heads.

The report is readily recognised as a restatement of the Westminster model, although with a few embellishments.

“… the convention that ministers are constitutionally responsible for all aspects of their departments’ business is an essential principle … The convention is clear, straightforward and leaves no gaps.”

“… there is no constitutional difference between the terms responsibility and accountability.”

“… appointments process for permanent secretaries … must conform fully with the constitutional principles of integrity, honesty, objectivity and impartiality…. any modified process should protect the principle of appointment on merit, on the basis of fair and open competition.”

“…we do not recommend any additional powers for the civil service to act as a check on the constitutionality of ministerial actions.”

“…ministers are responsible for the actions of their special advisers. Ministers have a duty to ensure their special advisers abide by the Code of Conduct for Special Advisers at all times.”

“…guidance to civil servants  … in no way have the effect of imposing restrictions on the activities of select committees. It is for Parliament to determine how it scrutinises the executive.” – (relating to Osmotherly rules)

“… where select committees request evidence from other former senior civil service post holders (whether or not they are still in the civil service) … the expectation is that such requests will be acceded to.”

“…select committee should be able to request access to relevant policy advice given by civil servants to ministers… the Government should consider each request on its merits and not reject them out of hand.

“…civil servants …should not be invited to disclose the policy advice they give to ministers: it is for ministers, not civil servants, to waive the confidentiality of such advice.”

An interesting variance creeps into the report. Despite referring throughout the report to “free and frank” advice,  “fearless” the expression used in Australia appears in the Summary where it is stated that advice to Ministers should be “candid and fearless”.  ( That term was used in the UK government’s Scottish independence referendum agreement this year).

In an article on the Institute of Government blog, the Australian academic Patrick Weller implies that governance structures are less important than the people involved;   “So on the key issues – will the civil service become politicised and subservient if contracts and ministerial input are introduced – the answer is far from clear. Many of the oft-repeated fears are not born out in practice. It is not contracts or tenure that by themselves shape the relationship between ministers and secretaries. Less than impressive secretaries remain so under both systems. Secretaries whose appointments are endorsed by ministers are still valued precisely because they speak their mind.”  A similar comment by Hon Trevor Mallard is quoted in the Institute of Government report published last week on Reforming civil service accountability – Lessons from New Zealand and Australia.