If there’s a law for Whitehall what not to expect

We could be on the brink of an historic event — the enshrinement in statute of the civil service. But the importance of the moment should not lead to exaggerated or inaccurate claims on behalf of this prospective legislation.

In 1854 the Northcote-Trevelyan report, regarded as the foundation of modern Whitehall, called for an Act of Parliament to set out the values it proposed for the civil service, arguing that a ‘few clauses’ would be sufficient. But until now no such law has been introduced. It is by convention that the prime minister is responsible for organising Whitehall, under the royal prerogative, while the civil service commission acts as guardian of the principle of appointment on merit through open competition.

Under growing pressure from such sources as the Committee on Standards in Public Life, the Blair government eventually brought forward a draft civil service Bill late in 2004, but there was no further progress. The idea has now been revived as part of Gordon Brown’s Governance of Britain constitutional reform programme. There is a commitment to include proposed legislation in the draft constitutional reform bill, the publication of which is imminent.

Assuming the draft Bill will not be radically different from the 2004 version, a number of observations can be made about its form and content. Though not a mammoth document, it will be longer than the ‘few clauses’ proposed in 1854.

The 2004 paper contained 28 clauses and five schedules. It will put the civil service commission on a statutory basis, stipulate that prime ministers (in their capacity as ministers for the civil service) are the senior managers of Whitehall (and the foreign secretary for the diplomatic service); it would create a duty to issue codes of practice, enshrine the principles of objectivity, impartiality and recruitment on merit through open competition (with limited exceptions including for the appointment of special advisers), provide for reporting to parliament and set out complaints procedures.

That said, there are a number of things the likely draft bill will not do. First it will not protect the supposed ‘independence’ of the civil service ­— because no such thing exists, though it is often mistakenly referred to by commentators.

Whitehall officials are bound loyally to serve the elected government of the day. While required to provide objective advice, in other words to tell it how it is to ministers even if the news they bring may be unwelcome, ultimately it is ministers, taking the counsel they are offered into account, who make decisions which staff must implement.

Generally the only limitation on this requirement is that civil servants should not break the law and must remain able to serve different ministers and governments of other parties.

The civil service, then, is not some kind of regulatory body, it is the instrument of whoever holds office. Perhaps an ‘independent’ Whitehall is referred to and called for because of a desire for a check on government that our executive-dominated legislature cannot provide. But the solution here would appear to be a more effective parliament, not an autonomous civil service.

A second function the draft bill will not perform is the resolution of tensions arising from the use of special advisers. These ministerial aides have been around since 1964 and they are an embedded part of the political and constitutional culture.

The career path from special adviser to senior parliamentarian is well established. All three main parties have now had a full or acting leader who progressed through this route (David Cameron, Margaret Beckett and Vincent Cable, who worked for John Smd as civil servants (employed on temporary contracts) are not bound by the same rules as career officials. They are not required to be impartial or objective. Yet they are in an effective position of authority over permanent civil servants who are supposed to be governed by such principles.

Special advisers are permitted by their code of conduct to ‘convey to officials ministers’ views and work priorities, including on issues of presentation…request officials to prepare and provide information and data…[and] hold meetings with officials to discuss the advice being put to ministers.’

These stipulations provide for significant influence over the activity of permanent civil servants. They mean that partisan, personally interested staff have been, to some extent, integrated into the chain of command of a supposedly impartial organisation.

Fully resolving this tension is problematic, but it may be helpful to end the anomalous classification of special advisers as civil servants; and for temporary and permanent staff within departments to draw up concordats setting out an agreed basis for working together.

Another conflict within Whitehall that the draft bill is unlikely to address is that between the perceived requirement for powerful co-ordinating mechanisms at the centre, around the No.10/Cabinet Office/Treasury axis; and the need for individual departments and secretaries of state to take the lead in formulating and implementing policies within their remits.

During the Blair period, the official objectives of the Cabinet Office were rewritten so as to exclude any reference to its supporting the cabinet or the collective and it became to a great extent his department, used to facilitate direct prime-ministerial interventions across government.

While Blair’s intention was better co-ordination, the most appropriate means for achieving this end was neglected. The cabinet was developed over centuries precisely to attain goals that would now be described as joined-up government or cross-cutting initiatives. If civil servants in different parts of Whitehall are to collaborate effectively towards shared objectives, cabinet, in which senior ministers deliberate as a group, is the best likely means of ensuring they are brought together.

Finally there are a whole range of further issues that will probably not be addressed by the draft bill. When the 2004 document was introduced it noted that there were various other concerns: ‘leadership and skills, departmental restructuring and efficiency’.

The government continues with this programme and it seems that a civil service Act is considered a side issue. But despite a lack of ministerial enthusiasm and possible misconceptions over what it will provide, such a piece of legislation will be historically significant and welcome as part of a broader programme of constitutional codification, making precision over the true nature of the draft bill all the more important.

    Dr. Andrew Blick is author of People who live in the dark, the history of the special adviser in British politics (Politico’s, 2004).