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( 155 .)


(see Quangos: Opening the Doors (1998) and the House of Commons debate on
˜Quangos™ on 16 March 2000: HC Deb vol 346, col 115 W et seq). Executive
NDPBs are set performance targets and their progress in meeting these is
415 Crown and government

reported annually to Parliament. They are also subject to regular reviews, like
those applied to executive agencies (above), when it is considered whether the
function is really needed, and if so whether it should continue to be performed
by an NDPB.
Executive NDPBs may have grant-giving or licensing powers, or provide
legal services, enforce standards, levy charges, or conduct or supervise investi-
gations of individuals™ complaints. Persons may su¬er detriment if powers
such as these are improperly exercised. Initially only very few NDPBs were
within the jurisdiction of the Parliamentary Ombudsman to inquire into
allegations of maladministration, but the Parliamentary and Health Service
Commissioners Act 1987 extended this jurisdiction to a number of important
executive bodies (see Schedule 1). All executive NDPBs (as well as those
advisory NDPBs that have direct dealings with members of the public) now fall
within the Parliamentary Ombudsman™s jurisdiction unless there are excep-
tional reasons against this, such as that they are within the jurisdiction of
another ombudsman.
A degree of control is also exercised by the courts, in that bodies performing
public functions are subject to judicial review. Public bodies created by statute
are held by the courts to the limits of their statutory powers under the doctrine
of ultra vires: a case of this kind was Anisminic Ltd v Foreign Compensation
Commission [1969] 2 AC 147, in which the House of Lords struck down a deci-
sion of the Commission as having been made outside its jurisdiction. A public
body is also open to legal challenge on the grounds that it misapplied the rules
(even if non-statutory) under which it operates (R v Criminal Injuries
Compensation Board, ex p Scho¬eld [1971] 1 WLR 926); or failed to act fairly in
deciding a question a¬ecting the rights or interests of an individual (R v Gaming
Board, ex p Benaim and Khaida [1970] 2 QB 417; R v Parole Board, ex p Wilson
[1992] QB 740); or failed to take account of relevant considerations (R v Human
Fertilisation and Embryology Authority, ex p Blood [1999] Fam 151); or acted
irrationally (cf R v Radio Authority, ex p Bull [1998] QB 294). Executive NDPBs,
in exercising ˜functions of a public nature™, are public authorities for the pur-
poses of the Human Rights Act 1998 (see section 6).
An Australian Royal Commission on Government Administration has warned
(Parliamentary Paper No 185/1976, para 4.4.26) that, taken to extremes, the
creation of non-departmental bodies:

could represent a substantial modification of the constitutional system through the addition
of what would amount to a fourth branch of government, separate from the executive branch
and largely exempt from the operation of the constitutional conventions which harness the
executive to the legislature.

(See further S Weir and W Hall, Ego Trip: Extra-governmental Organisations in
the UK (1994); F Ridley and D Wilson (eds), The Quango Debate (1995);
C Skelcher, The Appointed State (1998); M Flinders and M Smith (eds), Quangos,
416 British Government and the Constitution

Accountability and Reform (1999). D Lewis, Ef¬ciency in Government: The
Essential Guide to British Quangos (2005) is a sceptical report published by the
Centre for Policy Studies.)

(g) The civil service
The civil service comprises the Home Civil Service and the Diplomatic Service.
(There is a separate Northern Ireland Civil Service.) A concise description of
civil servants is that they are servants of the Crown employed in a civil (ie, non-
military) capacity in government departments, but there is no all-purpose legal
de¬nition of a civil servant. For many years the generally accepted de¬nition
was that adopted by the Tomlin Royal Commission on the Civil Service in 1931
(Cmd 3909). Civil servants, it said, are:

servants of the Crown, other than holders of political or judicial offices, who are employed
in a civil capacity and whose remuneration is paid wholly and directly out of monies voted
by Parliament.

This de¬nition is still serviceable but has been modi¬ed in recent government
publications. The Civil Service Statistics 2004: Sources and De¬nitions has the

A civil servant is a servant of the Crown working in a civil capacity who is not: the holder of
a political (or judicial) office; the holder of certain other offices in respect of whose tenure
of office special provision has been made; a servant of the Crown in a personal capacity paid
from the Civil List.

The revised de¬nition takes account of those civil servants who are employed
in government departments or executive agencies that are ¬nanced by means of
trading funds and not from money voted annually by Parliament. (See the
Government Trading Funds Act 1973.)
These de¬nitions exclude, besides ministers and judges, members of the armed
forces, the police, local government employees, and the employees of nationalised
industries, the National Health Service and most non-departmental public
bodies. The total number of permanent civil servants at 1 April 2005 was 550,000.
Since its peak in 1976 the number of civil servants had by 2001 fallen by 36 per
cent, as a result of government policies to scale down the activities and size of the
public sector (through privatisation and contracting-out as well as the use of
computers and gains in e¬ciency). The number has risen again from year to year
with increasing volumes of work (for instance in immigration and nationality
services) but has not approached the high level of the 1970s. It is the present
Government™s policy to reduce very substantially the number of civil service
posts “ in part, it would seem, by employing private consultants to do work
previously done by civil servants.
417 Crown and government

The Prime Minister, as Minister for the Civil Service, has ultimate responsi-
bility for the management of the civil service as a whole, and is supported by the
Minister for the Cabinet O¬ce who exercises day-to-day responsibility for the
service. The Cabinet Secretary is the o¬cial Head of the Home Civil Service.
A civil service ruled under the prerogative and founded on in¬rm and uncer-
tain (if estimable) traditions originating in the Northcote-Trevelyan Report of
1854 may be thought less than well ¬tted for the administration of the modern
British state. In recent years it has been urged, notably by the House of
Commons Public Administration Committee and the Committee on Standards
in Public Life, that the management, conditions of service and responsibilities
of the civil service should be put on a secure statutory basis in a Civil Service
Act. In response the Government published a draft Civil Service Bill in
November 2004, saying that it wished ˜to consult on whether legislation is a nec-
essary and desirable step to take in support of the values that have characterised
the Civil Service™ (A Draft Civil Service Bill, Cm 6373). (See the Public
Administration Committee™s response to this consultation document in its
Third Report, HC 336 of 2004“05.)
Many Acts of Parliament a¬ect the rights, duties and liabilities of civil
servants (eg, the O¬cial Secrets Acts 1911“1989, the Superannuation Act 1972
and the Civil Service (Management Functions) Act 1992), but their conditions
of service have been regulated mainly by Orders in Council made under the
royal prerogative and by regulations and instructions issued by the Minister for
the Civil Service under the authority of the Civil Service Order in Council 1995.
The rules are collected in the Civil Service Management Code issued by the
Cabinet O¬ce. The Code is supplemented by regulations made by individual
departments for their sta¬.
At common law, civil servants hold o¬ce at the pleasure of the Crown and
can be dismissed at any time. (See Dunn v R [1896] 1 QB 116; Hales v R (1918)
34 TLR 589; Denning v Secretary of State for India (1920) 37 TLR 138.) This rule
has in the past sometimes been explained as resting upon an implied term in
the contract of employment, but is better regarded as a rule of constitutional
law established by the courts on the basis of public policy (and attributed by the
majority of their Lordships in Council of Civil Service Unions v Minister for the
Civil Service [1985] AC 374 to the prerogative). But public policy changes over
time, and the modern view of the nature of public employment is expressed in
legislation which extends to civil servants rights such as protection against
unfair dismissal enjoyed by other employees. (See the Employment Rights Act
1996, section 191.) In practice civil servants are not notably insecure in their
employment, although dismissals for ine¬ciency or disciplinary o¬ences do
occur and some civil servants have lost their jobs when departments have been
merged or dissolved or functions have been contracted out to the private sector.
An aggrieved civil servant may be able to appeal to the Civil Service Appeal
Board, a non-statutory internal tribunal, for instance against dismissal or com-
pulsory early retirement from the service. The Board can award compensation
418 British Government and the Constitution

or recommend reinstatement. Civil servants bene¬t from the provisions of the
Equal Pay Act 1970 and the Sex Discrimination Act 1975; and the provisions of
the Race Relations Act 1976 and the Disability Discrimination Act 1995 relat-
ing to discrimination against employees apply to employment under the
Crown. (Equal Pay Act 1970, s 1(8); Sex Discrimination Act 1975, s 85; Race
Relations Act 1976, s 75; Disability Discrimination Act 1995, s 64.)

(i) The civil service: principles and conduct
Recruitment of civil servants has long been based on the principle of selection
on merit in fair and open competition and has been insulated from political
in¬‚uence by entrusting responsibility for appointments to independent Civil
Service Commissioners. In recent decades responsibility for appointment of
the great majority of civil servants has been progressively delegated to the
departments (and to the new executive agencies within them), but appointment
to the most senior positions requires approval of the Commissioners, who
also issue a Recruitment Code which must be followed in all civil service
appointments. The Commissioners monitor observance of the code by the
appointing authorities.
A head of the home civil service de¬ned the essential principles of the service
as follows (The Civil Service: Continuity and Change, Cm 2627/1994, para 2.7):

The particular standards that bind the Civil Service together are integrity, impartiality, objec-
tivity, selection and promotion on merit and accountability through Ministers to Parliament.

In the 1980s and 1990s, developments such as the establishment of executive
agencies (above, pp 409“11), the ˜market testing™ of departmental activities and
the retrenchment of civil service personnel and functions, associated with a
long tenure of government by the same political party, a¬ected traditional
understandings and practices in the civil service (see A Tomkins, The
Constitution after Scott (1998), ch 2). O¬cials were more exposed to public
criticism and relationships with ministers came increasingly under strain (see
William Plowden™s observations on the ˜¬‚awed relationship™ in Ministers and
Mandarins (1994), pp 102“9). John Garrett MP spoke of the ˜dismemberment™
of government and of a threat to the integrity of the civil service in a ˜process of
moving from a uni¬ed Civil Service of some 30 main departments to a Civil
Service which consists of 30 ministerial headquarters; about 150 executive agen-
cies and units; hundreds of quangos . . . and thousands of contracts with private
contractors, all of which are trying to make a pro¬t™ “ all these enterprises
having ˜varying standards of service delivery, public accountability and sta¬
relations™ (Treasury and Civil Service Committee, Fifth Report, vol II, HC 27-II
of 1993“94). There was widespread concern that traditional values of the
civil service were being eroded and the Government was persuaded in 1996 to
introduce, by prerogative Order in Council, a Civil Service Code to give clearer
de¬nition to principles of the civil service and the duties of civil servants and of
419 Crown and government

ministers towards them. The Code was based on a draft proposed by the
Treasury and Civil Service Committee of the House of Commons (Fifth Report,
HC 27-I of 1993“94, Annex 1). A new version of the Code was published in
2006. It summarises the values and standards of behaviour which are expected
of all Home civil servants and their rights and responsibilities. It forms part of
their conditions of service.

The Civil Service Code, 2006

Civil Service values
1. The Civil Service is an integral and key part of the government of the United Kingdom.
It supports the Government of the day in developing and implementing its policies, and
in delivering public services. Civil servants are accountable to Ministers, who in turn are
accountable to Parliament.
2. As a civil servant, you are appointed on merit on the basis of fair and open competition
and are expected to carry out your role with dedication and a commitment to the Civil
Service and its core values: integrity, honesty, objectivity and impartiality. In this Code:

• ˜integrity™ is putting the obligations of public service above your own personal
• ˜honesty™ is being truthful and open;
• ˜objectivity™ is basing your advice and decisions on rigorous analysis of the evi-
dence; and
• ˜impartiality™ is acting solely according to the merits of the case and serving equally
well Governments of different political persuasions.

3. These core values support good government and ensure the achievement of the highest
possible standards in all that the Civil Service does. This in turn helps the Civil Service
to gain and retain the respect of Ministers, Parliament, the public and its customers.
4. This Code sets out the standards of behaviour expected of you and all other civil servants.
These are based on the core values. Individual departments may also have their own
separate mission and values statements based on the core values, including the stan-
dards of behaviour expected of you when you deal with your colleagues.

Standards of behaviour

5. You must:

• fulfil your duties and obligations responsibly;
• always act in a way that is professional and that deserves and retains the confidence
of all those with whom you have dealings;
• make sure public money and other resources are used properly and efficiently;
• deal with the public and their affairs fairly, efficiently, promptly, effectively and
sensitively, to the best of your ability;
420 British Government and the Constitution

• handle information as openly as possible within the legal framework; and
• comply with the law and uphold the administration of justice.

6. You must not:

• misuse your official position, for example by using information acquired in the course
of your official duties to further your private interests or those of others;
• accept gifts or hospitality or receive other benefits from anyone which might
reasonably be seen to compromise your personal judgement or integrity; or
• disclose official information without authority. This duty continues to apply after you
leave the Civil Service.

7. You must:

• set out the facts and relevant issues truthfully, and correct any errors as soon as
possible; and
• use resources only for the authorised public purposes for which they are provided.
8. You must not:

• deceive or knowingly mislead Ministers, Parliament or others; or
• be influenced by improper pressures from others or the prospect of personal gain.

9. You must:

• provide information and advice, including advice to Ministers, on the basis of the
evidence, and accurately present the options and facts;


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( 155 .)