This is a blog published in October 2018 following considerable public criticim of the retiring Director of Public Prosecutions.
These are some thoughts in response to some interesting questions that arose following soon-to-retire DPP Alison Saunders’ interview in which she said that her organisation and the police were critically short of the skills and resources required to combat crime … to which The Secret Barrister responded
“Gosh. If only this Alison Saunders, talking honestly about the chronic under-resourcing of the Crown Prosecution Service, had been DPP. Instead for 5 years we’ve had that obliging civil servant blithely insisting that all was well as the CPS burned.”
I chipped in with the standard line that civil servants may not publicly attack Ministers’ resourcing decisions – or any other Ministerial decisions for that matter. This generated some interesting further comments and questions.
- Secret Barrister pointed out that “Alison Saunders went out of her way to pretend that there were no problems. That was the issue that really grated.”
- Michael Heery pointed out that officials in the health sector have gone much farther than DPP in talking about the effect of cuts.
- Jonathan Potts asked “Is the answer for the DPP to be not a civil servant?
- AJP Wood asked “Surely Civil Servants already aren't allowed to be anything other than honest per the Civil Service Code?:- [Civil Servants] must not deceive or knowingly mislead ministers, Parliament or others.”
- And ex-Home Office Lorraine Rogerson … Previous DPPs not from Civil Service background. Prosecution decisions constitutionally independent. The AG also *independent*. Cutting funds undermines independence. But it is a public service & has also to be accountable. AG’s role, influence and relationship with DPP (and championship of prosecution services) crucial. DPP has to maintain a network of support as well as being independent.
So here are some further thoughts from me.
First, it is very hard to understand, let alone defend, the artificial borders between various parts of the public sector such as
- the principal government departments,
- non-ministerial government departments (NMGDs) such as HMRC, the CPS, the CMA, Ofsted and Ofgem), and
- various non-departmental public bodies (NDPBs) such as NHS England, the Environment Agency and the Financial Conduct Authority.
- And then there are local authorities, various types of school, the police, the BBC, and so on.
There is even, as Lorraine Rogerson points out, a distinction between those HMGDs that have operational independence but a close relationship with a Minister (such as HMRC and the CPS) and those that are even more independent (such as the economic regulators).
Second, I do not find it difficult to defend the obligation of near public silence that is imposed on those – such as Permanent Secretaries - that give policy advice to Ministers. It is better, as AJP Wood suggests, that they should say nothing rather than make misleading statements about the abilities of their organisations.
But, third, I think that we should now be quite grown up and allow the Heads of NMGDs (such as DPP Alison Saunders) to have the same freedoms as the Heads of NDPBs (such as the NHS’ Simon Stevens). Of course they shouldn’t mount all out attacks on those that appoint and fund them, but Parliament and the public are surely entitled to hear their honest opinions about the strengths, weaknesses and resources of their organisations. Simon Stevens seems to have walked this particular tightrope with some skill, and has gained resources for the NHS.
The case for such openness is strengthened by the fact that an independent prosecution service is a cornerstone of the justice system and indeed the constitution. However, as many – not least The Secret Barrister - have pointed out – the Criminal Justice system as a whole has been shamefully denied resources. Expecting the DPP to remain mute like a senior mandarin is therefore quite wrong; the whole point of the role is independent decision making.
And there is a wider governmental question here. Oppositional voices, challenge, and creative tension should all be welcomed and indeed promoted if good services with integrity are to be delivered and improved.
I would therefore like to see Alison Saunders’ successor – whilst technically remaining a civil servant - insisting on the same freedom of expression as his colleagues in the health service and other important pubic roles. This would also free him from worrying about breaching the Civil Service Code, whether explicitly or implicitly.