In the end, is doing nothing the best future for Whitehall?

To codify or not to codify – this question has concerned civil service watchers for over a century. The latest attempt at drafting a Civil Service Act, contained in the recent ‘Constitutional Renewal Bill’, included the long-standing demand to put the ‘core values’ of the civil service on a statutory basis.

Debates about the merits and flaws of a Civil Service Act have been a standing feature for Whitehall watchers but where do the demands for civil service legislation come from? Who are the winners and losers from the proposed changes? Most crucially, is the Act likely to matter? Or are the current proposals little else than what Simon Carr in the Independent somewhat provocatively described as a ‘self-defeating mish-mash of bilge, bollocks and fudge’?

If there is one uniting factor for all observers of the public service bargain between top bureaucrats and politicians, it is the diagnosis that all is not well. Whether this discontent is expressed in outspoken complaints or well-placed leaks, criticism abounds regarding political decision-making styles and priorities, civil service unhelpfulness or political demands threatening civil service ‘neutrality’.

The demand to make the civil service ‘fit for purpose’ for the 21st century receives widespread backing, although the specifics of the actual purpose are usually less well defined. Gone are the days where the public service bargain was seen as a mostly implicit understanding in which public servants gave up the right to an open political life and high salaries in exchange for tenure, honours, a guaranteed pension, a trusted advisory role at the centre of government and the avoidance of public blame when things go wrong.

The feeling that something is ‘broken’ is not just a Whitehall/Westminster phenomenon but is also shared in other Westminster-type democracies such as Canada, as highlighted by Canadian political scientist Donald Savoie in his recent Court Government and the Collapse of Accountability (University of Toronto Press).

While there is widespread consensus regarding the troubled state of the traditional bargain, less consensus exists about whether it should be replaced and what should replace it. On the one side are ‘traditionalists’ who advocate a return to the traditional values of the civil service and the protection of traditional understandings that supposedly underpinned the workings of the civil service and its relationship with politicians.

On the other side are the ‘transformers’ who regard the traditional bargain as hopelessly out of date and, pointing to the policy failures of recent years such as IT, farm payments or tax credit systems amongst others, demand a clearer managerial orientation of the civil service. They also argue for the introduction of more external ‘accountability’ for civil servants’ outputs with ministers being responsible for outcomes.

Within these two camps there is also disagreement regarding the merits of a Civil Service Act. The advocates of an Act within the ‘traditionalist camp’ see legislation as the best way to protect ‘values’ and to get back to the old bargain or at least to protect the old bargain from any further infringements by political advisers.

Opponents believe variously that self-correcting processes make legislation unnecessary, that recent breakdowns between politicians and civil servants were largely about personalities and not constitutional roles and that it will make little difference whether a code of conduct is based on parliamentary legislation or an order in council. There is concern too that codification would cause a dangerous precedent that would only tempt politicians to continuously fiddle with civil service legislation.

Similar constellations also exist in the ‘transformer’ camp. Some see a civil service act as an opportunity to do away with the myriad conventions and understandings that underlie the present order, thus publicly demonstrating that the rules of the game have fundamentally changed, and make senior civil servants publicly accountable for their work.

Opponents are sceptical, seeing legislation mostly as a charade by ‘traditionalists’ to block modernisation and to embed a culture, as they see it, of complacency, inefficiency and lack of imagination.

While advocates of legislation in both ‘traditionalist’ and ‘transformer’ camps would agree on the need to establish a Civil Service Act, they are less likely to agree as to what should be written down and codified.

The draft Bill includes the requirement of a code of conduct based on core values for civil servants (integrity, honesty, objectivity and impartiality) to be put on a statutory basis. It introduces rules regarding political advisers and defines the position of a Minister for the Civil Service. It replaces the existing Civil Service Commissioners with a stronger Civil Service Commission, with particular emphasis in the area of recruitment.

For the transformers the very basis of enshrining core values on a statutory basis indicates that they have lost this round of civil service reform. Neither will they be pleased by the absence of any measures that make civil servants accountable for their outputs. All civil service watchers will be wondering at the absence of any thought about the future of a unified civil service across the four countries of the United Kingdom.

Traditionalists will be pleased with the placing on a statutory basis of both the civil service code of conduct and the principle of employment by merit, as well as by the strengthened position of the Civil Service Commission. However, the ‘traditionalists’ were not granted their wish that control over the civil service should be passed from ministers to parliament, nor satisfied by the restriction of the Civil Service Commission to investigate civil service employment decisions to those where a complaint has been made.

In most aspects, nevertheless, the ‘traditionalist’ advocates of civil service codification have won, and the latest proposals follow a line of developments over the past decade or so that have sought to define roles and responsibilities.

However, those traditionalists who see the Civil Service Act as recipe for a better future may be disappointed. Putting civil service values into legislation is hardly the ‘magic cure’ that is going to protect civil servants from politics. Germany has legislation and court rulings underpinning its constitutional commitment to ‘traditional professional values of the civil service’ but that has not made their civil service a politics-free zone.

Other aspects such as how to deal with leaks or how to reconsider competency requirements are also difficult to define in legislation. Indeed, the majoritarian system of Westminster may simply be ill-suited to any attempt at ‘hardwiring’ principles into legislation as parties in government can simply overturn legislation. In other words, it is more or less inevitable that at some point the transformers will have their chance at rewriting civil service legislation.

Codifying values of the civil service may be worthwhile if there are organisational arrangements and a shared culture that underpin the formal provisions with informal understandings. But legislation is unlikely to solve those relationship problems if a shared culture does not exist. Legislation is also more likely to trigger side effects that may worsen rather than improve the workings of the bargain. In the end, the ‘do nothing’ option may indeed be the least damaging one.

Those accusing the government of confusion and obfuscation may very well have a point: larger questions as to how to run public services in a devolved and Europeanised polity are unlikely to be solved by legislating for civil service values.