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• take decisions on the merits of the case; and
• take due account of expert and professional advice.
10. You must not:

• ignore inconvenient facts or relevant considerations when providing advice or making
decisions; or
• frustrate the implementation of policies once decisions are taken by declining to take,
or abstaining from, action which flows from those decisions.

Impartiality
11. You must:

• carry out your responsibilities in a way that is fair, just and equitable and reflects the
Civil Service commitment to equality and diversity.

12. You must not:

• act in a way that unjustifiably favours or discriminates against particular individuals or
interests.
421 Crown and government


Political Impartiality
13. You must:

• serve the Government, whatever its political persuasion, to the best of your ability in
a way which maintains political impartiality and is in line with the requirements of
this Code, no matter what your own political beliefs are;
• act in a way which deserves and retains the confidence of Ministers, while at the same
time ensuring that you will be able to establish the same relationship with those
whom you may be required to serve in some future Government; and
• comply with any restrictions that have been laid down on your political activities.
14. You must not:

• act in a way that is determined by party political considerations, or use official
resources for party political purposes; or
• allow your personal political views to determine any advice you give or your actions.
Rights and responsibilities
15. Your department or agency has a duty to make you aware of this Code and its values.
If you believe that you are being required to act in a way which conflicts with this Code,
your department or agency must consider your concern, and make sure that you are not
penalised for raising it.
16. If you have a concern, you should start by talking to your line manager or someone else
in your line management chain. If for any reason you would find this difficult, you should
raise the matter with your department™s nominated officers who have been appointed
to advise staff on the Code.
17. If you become aware of actions by others which you believe conflict with this Code
you should report this to your line manager or someone else in your line management
chain; alternatively you may wish to seek advice from your nominated officer. You
should report evidence of criminal or unlawful activity to the police or other appropri-
ate authorities.
18. If you have raised a matter covered in paragraphs 15 to 17, in accordance with the
relevant procedures, and do not receive what you consider to be a reasonable response,
you may report the matter to the Civil Service Commissioners. The Commissioners will
also consider taking a complaint direct. If the matter cannot be resolved using the
procedures set out above, and you feel you cannot carry out the instructions you have
been given, you will have to resign from the Civil Service.
19. This Code is part of the contractual relationship between you and your employer. It
sets out the high standards of behaviour expected of you which follow from your position
in public and national life as a civil servant. You can take pride in living up to these
values.

Similar Codes apply to civil servants working in the devolved governments in
Scotland and Wales and in the Northern Ireland Civil Service and the
Diplomatic Service.
422 British Government and the Constitution


The Civil Service Code gives emphasis to the impartiality of civil servants,
while at the same time underlining their obligation of loyalty to the administra-
tion in which they serve. ˜Impartiality™ is re¬‚ected in the convention that the civil
service is non-political and is expected to give loyal service to administrations of
every political complexion. (See paras 2 and 13 of the Code, above.) A new
government, while it may introduce a number of political advisers of Cabinet
ministers into the departments, keeps in o¬ce the senior civil service personnel
who have advised its predecessors. In each department the Permanent Secretary,
as its o¬cial head, having ensured the removal of ¬les and documents of the
previous minister from the sight of his or her successor, assumes the role of
objective adviser to the new political head of the department.
By the House of Commons Disquali¬cation Act 1975, section 1(1)(b), civil
servants are ineligible for membership of the House of Commons, and under
rules ¬rst laid down in 1953 (Cmd 8783) they are subject to restrictions on
participation in political activities. In 1978 the Armitage Committee recom-
mended relaxations of the rules so as to allow a wider freedom to take part in
political activity (Cmnd 7057); the Government accepted the recommenda-
tions and the rules were liberalised in 1984. The rules now applicable are to be
found in the Civil Service Management Code, section 4.4. Civil servants are
divided into three groups: the politically free (industrial and non-o¬ce grades)
who may take part in all political activities; a politically restricted group
(primarily members of the Senior Civil Service) who are debarred from
national political activity but may be given permission to take part in local
politics; and an intermediate group, comprising all other sta¬, who may, with
permission, take part in national or local politics. Permission, where required,
˜should normally only be refused where civil servants are employed in sensitive
areas in which the impartiality of the Civil Service is most at risk™ (Annex A to
section 4.4 of the Code), for example, civil servants closely engaged in policy
assistance to ministers. The European Court of Human Rights dismissed a chal-
lenge to the restrictions on political activity in Ahmed v United Kingdom (1998)
29 EHRR 1.
Should civil servants give total and unquali¬ed loyalty to the government, or
do they have, in any circumstances, an overriding responsibility to the Crown,
to Parliament or to the public?

Civil Service Management Code, para 4.1.1
Civil servants are servants of the Crown and owe a duty of loyal service to the Crown as their
employer. Since constitutionally the Crown acts on the advice of Ministers who are answer-
able for their departments and agencies in Parliament, that duty is, subject to the provisions
of the Civil Service Code, owed to the duly constituted Government.

This authoritative statement acknowledges that a civil servant™s duty to the
government of the day is not unquali¬ed, but is subject to the principles set out
423 Crown and government


in the Civil Service Code, which reminds of the duty of civil servants to comply
with the law (para 5).
What is the duty of a civil servant who becomes aware that ministers are
concealing politically embarrassing facts from the public, or are misleading
Parliament and the public with false information, or are otherwise acting in
a way that is constitutionally improper? He or she is required to act in accor-
dance with paragraphs 15“18 of the Civil Service Code (above), ¬rst bringing
his or her concerns to the attention of senior o¬cers within the department
and if this should not resolve the matter, reporting to the Civil Service
Commissioners. The Commissioners have powers of investigation and may
recommend redress. They publish an annual report which gives a general
account of appeals made to them under the Code and they may make special
reports on appeals, for instance, if the government should refuse to act on their
recommendations. Civil servants (other than members of the security and
intelligence services) are also secured by the Public Interest Disclosure Act 1998
(the ˜Whistleblower™s Act™) against dismissal or other sanctions if they make
˜protected disclosures™ of malpractices such as a criminal o¬ence, a miscarriage
of justice, a risk to health or safety, etc.

(ii) Civil servants and ministers
It does not su¬ciently explain the role of civil servants to say that they advise
ministers on policy and execute ministers™ decisions. In government depart-
ments and agencies very many decisions are necessarily taken by civil servants
themselves without reference to ministers, and these decisions will often involve
an element of policy-making. Moreover the senior civil servants who advise
ministers can draw on an accumulated departmental experience and expert
knowledge of the department™s a¬airs in pressing for acceptance by their
minister (perhaps a newcomer to the department, seldom as well versed in its
business) of the ˜departmental view™.

Peter Kellner and Lord Crowther-Hunt, The Civil Servants (1980), p 187

The concept of the departmental view is difficult to define, or to reconcile with any conven-
tional constitutional theory. Broadly it consists of the ideas and assumptions that, indepen-
dently of which party is in office, flow from the knowledge and experience that are generated
by civil servants working together. However much civil servants as individuals move around,
they add their increment of information to the pool of knowledge about motorway building,
or kidney machines, or food subsidies. Such knowledge does not exist in a moral or political
vacuum: and so, by an often complex chemistry, a department™s knowledge translates into
a departmental view. Some of the greatest conflicts between ministers and their Permanent
Secretaries occur when the minister™s intentions conflict with the departmental view.

There have been ministers in both Conservative and Labour Governments
who have, from time to time, asserted that they have been obstructed by civil
424 British Government and the Constitution


servants committed to departmental policies contrary to those being pursued
by the minister. Among Labour ministers who have made this claim are Tony
Benn, Barbara Castle and Richard Crossman (see K Theakston, The Labour
Party and Whitehall (1992), ch 2). Michael Heseltine, a Cabinet minister in the
Major Government, said to the Public Service Committee (Evidence, HC 265 of
1995“96, Q9):

[A] Minister in charge of a department can give orders, but if he gives orders which
are outside the broad conventions, there are endless ways in which his orders will be
frustrated. The most obvious is that he will be told that this is not government policy,
that he will be told that he has not got authority for what he said, that in some way it
is unwise to take a decision on this matter at this stage because other events are about
to unfold.

(See also Tony Benn in K Sutherland (ed), The Rape of the Constitution? (2000),
p 46.) It may be said that civil servants have a legitimate constitutional role as
a counterweight to politicians and an obligation to ˜speak truth unto power™. Sir
Brian Cubbon said to the Treasury and Civil Service Committee (Fifth Report,
vol III, HC 27-III of 1993“94, Appendix 31, para 8):

An apolitical civil service is one of the checks and balances that makes it tolerable to have
Ministers who have so much more power than Parliament. Ministers™ total dependence for
support on apolitical civil servants means that they cannot secretly abuse their power without
the knowledge of those who owe them no political allegiance and they cannot take decisions
without the discipline of face-to-face discussion with them.

Of course, arguments of this kind do not justify obstruction by civil servants
of the policies of elected governments. This seems sometimes to have occurred
but is not a normal feature of the relations between civil servants and ministers.
A Fabian Society study group concluded in 1982 (cited by Theakston, above,
at p 40):

It is doubtful if the civil service as a whole has a conscious political position of its own to
defend. A united government can rapidly secure the support of the civil service in carrying
through major and sharp changes of policy, and a strong minister “ with the support of the
Prime Minister and his colleagues “ can impose his will on the government machine.

Government is most e¬ectively conducted by a partnership of ministers and
civil servants. In the 1980s and 1990s this balanced arrangement was disturbed
by a tendency for ministers to devalue and dispense with the advice of civil
servants and to rely on politically committed outsiders for policy advice. Keith
Dowding, writing in 1995 (The Civil Service (1995), p 124), found that ˜the
power and in¬‚uence of civil servants over their ministers have diminished
during the last decade™. (The dislocation of the relationship is examined in
425 Crown and government


depth by Christopher Foster and Francis Plowden, The State under Stress
(1996).) This trend has continued under Labour administrations since 1997, as
ministers rely increasingly for policy support on special advisers, advisory
NDPBs, task forces and other sources outside the traditional, permanent civil
service. If civil servants exert less in¬‚uence on ministers than formerly this may
re¬‚ect a lack of adaptability of the civil service to the demands of modern
government. Sir Christopher Foster, a well-informed observer, says of civil ser-
vants: ˜They were excellent in a world in which changes were evolutionary and
marginal, where there were not too many changes at once and none requiring
profound reforms™; but, he adds, ˜they were not good at organisational
or culture change™ and ˜rarely gave much direct attention to citizens or the
consumers of the public services they provided™ (˜Civil service fusion™ (2001)
54 Parliamentary Affairs 425, 439“40). Among criticisms of the civil service
expressed to the Public Administration Committee of the House of Commons
were ˜the perceived slowness of its reaction, poor performance in providing
policy advice, an inattention to policy delivery, inadequate understanding
of risk management issues, and bad project management™ (Seventh Report, HC
94 of 2000“01, para 20). The Government has undertaken a civil service reform
programme with a view to strengthening leadership, planning and performance
in the service while preserving its core values such as selection on merit,
integrity and impartiality. But ministers themselves, it would seem, have under-
valued the contribution that civil servants can make to more e¬ective formula-
tion and implementation of policy. Sir Christopher Foster, in a memorandum
for the House of Commons Public Administration Committee (HC 307 of
2004“05, p 59), observes that:

the belief that the public sector can be satisfactorily run by politicians issuing instructions,
as if private sector managers, is deeply flawed, even if an ample supply of superb private
sector managers were on offer. The public sector is essentially different. It requires an effec-
tive partnership between Ministers, with their political policy objectives and experience, and
experienced civil servants capable of providing the administrative expertise on which effec-
tive delivery depends.

He looks also for the ˜revival of an earlier tradition by which the Civil Service
regularly probed, tested and sometimes challenged new policy proposals, even
those in the manifesto, to test their sense and practicality™, while acknowledg-
ing that ˜Ministers must ultimately decide™. (See further Horton, ˜The civil
service™, in S Horton and D Farnham (eds), Public Management in Britain
(1999); Foster, ˜The civil service under stress™ (2001) 79 Public Adm 725;
C Foster, British Government in Crisis (2005), chs 2, 15.)
The Ministerial Code (2005), para 3.1, reminds ministers that they ˜have a
duty to give fair consideration and due weight to informed and impartial advice
from civil servants, as well as to other considerations and advice, in reaching
policy decisions™.
426 British Government and the Constitution


(iii) Special advisers
In recent decades ministers have looked outside the departments for advice
from persons sympathetic to their policies. With prime-ministerial approval
they have appointed temporary advisers to provide them with political advice
or the bene¬t of specialised skills (eg, in economics). On taking o¬ce as Prime
Minister in March 1974 Mr Harold Wilson decided to experiment in this way,
authorising Cabinet ministers to appoint political advisers who would give
advice from a perspective di¬erent from that of the ˜Whitehall mandarin™ and
help ministers ˜to play a constructive part in the collective business of the
Government as a whole™ (Harold Wilson, The Governance of Britain (1976),
Appendix). The practice has continued under subsequent administrations and
is now an established feature of British government.

Ministerial Code (2005), para 2.11
The employment of Special Advisers on the one hand adds a political dimension to the advice

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