I’ve had a very hectic day today, but one thought has been plaguing me all day.
First the hectic bit: I’d already agreed to come to Leuven (Belgium) for a workshop in honour of Christopher Pollitt’s retirement from the University here. For those of you who don’t know him, Christopher is both an ex-civil servant himself and one of the world’s foremost public management scholars.
I’d booked the flights and then, last week, I got asked to go to a ‘closed’ seminar for the House of Lords Constitution Committee, chaired by Baroness Jay, to discus “civil service accountability”. Apart from the Committee there were going to be a number of academic experts, think-tankers, etc to enliven the proceedings. So not something I wanted to miss. So I ended up going from Manchester to London and back again and thence to Brussels and on to Leuven. The highlight of the days many trips was the taxi driver from Brussels airport stopping on the motorway to take an impromptu leak in the bushes.
Small diversion: someone asked me via twitter why it was a closed session at the Committee today, which is a good question. I’ve been involved in several of these with different Select Committees and they are usually used simply as a way of getting Committee members ‘up to speed’ or at least ‘on the same page’ around a specific issue. I even did one for the Treasury Select Committee where I was the only outsider, briefing them on some technical issues about how governments measure efficiency. Today we operated on ‘Chatham house’ rules, which means nothing cn be attributed to any individual. this allows people to say stuff they wouldn’t necessarily say in public (and they did today, believe me). This all seems a perfectly reasonable thing to do, to me, but others might disagree.
So, I can’t report who said what and to be fair to the Committee I can’t even give an overview of what was said. But there was one issue that was brought up that got me thinking: the Committee asked in their brief for the day “should the civil service act as a constitutional check on the actions of ministers?”. I feel free to talk about this because it didn’t actually get discussed today (although I did raise it at the end).
My answer would be an unequivocal “yes” both in terms of “ought” and “do”. Civil servants both should and do constrain ministers from doing unconstitutional, illegal and immoral things. But my question is, to whom are they accountable when they do (or when they don’t) exercise this constraint?
Let me give a trivial, but instructive, example. Under the last Tory government an (unnamed) Tory minister asked the head of the Passports Agency (as it was then) for a small favour. Their passport was coming up for renewal and they asked (I kid you not) if they could have a passport number issued ending in 007? Seriously. The Passports Agency Chief executive said firmly “no Minister”.
Most of us would think that was right, but on what basis did he do it and what would have happened if he hadn’t? On a much more serious note, the Head of the Civil Service has been asked to pass judgement several times in recent years on ministers behaviour (most recently Liam Fox).
Obviously, the normal doctrine that Civil Servants are solely accountable to ministers can’t apply in cases like these. So if not ministers, who are they accountable to for this important function. The late Larry Terry, an excellent American wrote a good book on this – Leadership of Public Bureaucracies: The Administrator as Conservator. His argument was that this is an essential role of public bureaucrats in a democracy, protecting democratic politicians and the public from abuse. But to whom are they accountable when they are doing this?
Are they, perhaps, acting in a sort of quasi-judicial capacity – judges are after all independent of both the executive and legislative branches of government. If they are, how does this sit with their other roles? And who could call them to account for malpractice? Say a future Head of the Civil Service examined a Ministers conduct and wrongly found them guilty, or more likely acquitted them of wrong-doing when in fact they were plainly guilty? There is no Court of Appeal, or Supreme Court, to overturn their mistake. No Crown Prosecution Service to lodge an appeal.
I confess not to having instant answers to this dilemma, but I think it does raise a very important issue that does need investigating. Having asked the initial question, I do hope the Constitution Committee pursues it.
STATECRAFT - improving government 
“Reduced to essential, the Civil Service remains a concept governed by administrative convenience rather than by legal authority” – thus said Peter Keller and Lord Crowther-Hunt in their 1980 book “The Civil Servants: An Inquiry into Britain’s Ruling Class”. In short there cannot be a clear way to approach a useful definition until civil servants are required to swear an oath of allegiance to a written constitution. I joined the NI civil service in 1963 after a spell in England and Scotland only to be informed by the Unionist controlled regime that I was not formally in post until I had sworn an allegiance to the Queen. This I then did – though some six years later, I was removed from senior duties when NI politicians discovered my English wife was a Catholic! The civil servant who executed this adjustment became the Comptroller and Auditor General. More generally NI civil servants were expected to know what was politically expected without being told.
But having left public service for three years I then found myself in Whitehall ready for a more elevated experience among colleagues who, I assumed, aspired to impeccable standards – and indeed where I even had my permanent secretary’s written but naive assurance that I “would have every opportunity to contribute to the advice going to Ministers”. In fact the degree of hierarchical control in our then massive Whitehall departments was so complete that whole programmes could be cynically launched without the least chance of success – and others permanently prejudiced if considered departmentally inconvenient. And all this preceded the “Thatcher era” where, by many accounts, the traditional policy directing levels were replaced by “can-do” officials even less interested in offering advice that might prejudice their career opportunities.
At base we should admit that these faults occur within any official bureaucracy – and precisely the same faults are reproduced by party political hegemony in the political arena. Even without specific instructions, each new MP soon discovers that it it is his or her duty “to work towards the Führer”! So the only provisional constitutional remedy to alleviate this is to seek to incorporate audit as a formal part of the political agenda – or in more operational terms, to ensure that public audit always formally informs the parliamentary supply procedure. What is happening – or what has happened – must formally inform all budgetary decision. And this is precisely what those who sought to reform Gladstone’s Exchequer and Audit Department wanted. This is precisely what they wanted the future National Audit Office to do. But it never happened!