Should the Civil Service be More Accountable
to Parliament and the Public?
The electorate clearly believe that ‘the Westminster Village’ is incompetent and/or out of touch with the concerns of those who live outside cosmopolitan London. The Institute for Government recently reported that there is no correlation between things that the public thinks that government ‘should’ prioritise and what it ‘does’ prioritise. Voters have not forgiven those responsible for the financial crisis, for growing income inequality, or for the Iraq war. And those who have read Richard Bacon and Christopher Hope’s Conundrum, and/or Anthony King and Ivor Crewe’s The Blunders of Our Governments, have plenty more ammunition, dating back to the Poll Tax and before.
But it is not only politicians who live in the Westminster Village. Is it not time that officials became more accountable for their actions – or lack of them? There are, after all, about 40 times as many senior officials as there are Ministers. Some of them were intimately involved in the ineffective planning, in ignoring the warnings, and in delivering the faulty policies. Surely they cannot avoid taking some of the blame?
Academics and commentators seem to fall into two groups when analysing the sad state of current politics. One school, including Daniel Finkelstein and Matthew Parris, argue that the public do not understand the complexity and long-term nature of government. Politicians (they say) know when they are blundering. They know what needs to be done – at least in the ‘wicked areas’ such as the environment, tax, foreign policy, pensions, drugs. But they just don’t know how to get re-elected after doing it. Politicians (they say) are not unaware of evidence, but they are often forced to ignore it given the pressure to be re-elected and the influence of pressure and focus groups, and social and other media. Commentators who take this view do not argue for greater civil service accountability, for the faults in the system (in their view) lie outside government in the ignorant or unforgiving nature of the electorate and media. Politicians and officials should be allowed to debate, quite privately, how to negotiate the tricky shoals of public opinion.
But another group of academics, echoed by politicians such as Alex Salmond and Nigel Farage, argue that, to understand the source of contemporary political disengagement, we need to recognise that political elites have for too long been making decisions without reference to the public. The role of the electorate has been to do little more than legitimise politics, rather than to be involved in politics. By way of evidence, they note declining numbers voting in elections, and declining membership of the main political parties. They see a hypocritical Establishment, much more inclined to tell voters to ‘do what I say’ rather than ‘do what I do’. They argue that Whitehall needs to work much harder to involve citizens in decision-making. That implies opening to public scrutiny the debates between Ministers and officials.
And there seem to be two incompatible criticisms of the performance of the modern civil service. Some critics remind us that our ‘Westminster Model’ of government derives in part from TH Green’s proposition that, as politicians are inevitably subject to short term and selfish pressures, the UK needs a unified administration in which officials ensure the common good and good government? A few decades later, Haldane added that the relationship between civil servants and Ministers should be one of mutual interdependence, with Ministers providing authority and officials providing expertise. He did not add that it was fine for Ministers to totally ignore that expertise. It follows that Ministers should be told in no uncertain terms if their programs cannot be delivered within the resources and timescales allocated to them. But critics say that the modern delivery-focussed civil service has become much less good at challenging Ministers, and might even have become somewhat politicised. The initial Universal Credit program was clearly unrealistic. Departments’ press releases are becoming a little too economical with the truth. And Permanent Secretaries are agreeing too easily to implement Ministers’ short-sighted management decisions.
In contrast, however, many Ministers clearly think that the civil service is far too obstructive. They would be pleased if – but do not believe that - the civil service has indeed become more willing to energetically carry out Ministers’ wishes. It is only two years since The Times reported “Whitehall in Worst Crisis … ‘[officials] think it’s their job just to say “No” … “The Civil Service sees itself as a check and balance within the political system, and that’s a problem.” Previous governments have felt similar frustration. This hardly suggests that officials have forgotten their challenge function.
The difficulty is that we just don’t know whether the challenge function of the civil service has indeed been degraded over time, and if so whether that is a good thing. It has long been thought that one necessary consequence of the close and occasional stressful relationship between officials and Ministers has been the invisibility of civil service advice. But how can we resolve the conflicting arguments, and reduce the amount of blundering, without piercing Whitehall’s veil? In particular …
How would officials react to greater public scrutiny?
Most of them, I suspect, would have no problem in principle. Those who have been Agency Chief Executives, or have led Non-Ministerial Government Departments, have generally enjoyed the experience, and have been glad to account for their decisions and performance both in Parliament and via the media. But working in a mainstream department is a bit different. Policies evolve over time, and policy compromises have to be agreed with all affected departments. It can be hard to pin down true responsibility for the compromises that result from this slow, collegiate process. Those who have worked closely with Ministers therefore point out that both Ministers and their officials need a safe space for discussion of both good and bad ideas.
They also worry that greater openness would make it even harder for Ministers to act as leaders when that is necessary. Politicians are surely under enough scrutiny already. They need to maintain a commanding presence, which means having courtiers to shield them from excessive exposure. But when does shielding morph into hypocrisy and cover up? The Establishment used to be pretty good at hiding its infidelities, homosexual activity and drunken misbehaviour. A good thing, many would say. But it may also have been pretty good at hiding police corruption, paedophilia and other nasties. Not quite the same?
And then what about the Establishment’s ability to resist policies that it regards as dangerous or illiberal, such as leaving the EU, ditching Trident, bringing back hanging or cutting immigration and overseas aid. There is already a good deal of group think (aka showing good judgment). No promotion-hungry senior civil servant is going to admit to voting for UKIP, or agreeing with the SNP, or even enjoying reading the Daily Mail. A good thing, many would say. I imagine that most readers of this blog would welcome a little foot dragging if and when Nigel Farage becomes Home Secretary in a coalition government. Is there not something to be said for initial civil service resistance to the more dramatic or far-reaching pressures for change, at least so as to give the electorate and Ministers time to think again? But it is hardly democracy in action.
The dilemma was brought home to me very sharply when I watched the PAC tearing into MoJ officials on 4 December for failing to identify all the unintended consequences and costs arising out of Ministers’ decision to lop £300m off the legal aid budget – and to do it very quickly. I’ll bet a pound to a penny that officials would much rather have dragged their feet and not implemented this policy at this speed, and I’ll bet they were acutely aware of its consequences, not least for the disadvantaged. Would we be better governed if the public had had access to those officials’ advice and concerns, which might have helped ensure that Ministers did not achieve their policy objectives?
This brings me to the real reasons why Parliamentarians have been so slow to require officials to be more open about their advice. Put shortly, Opposition politicians want to retain the ability to gain political advantage by criticising Ministers rather than unelected officials. It can be fun to tear into hapless MoJ officials, but there are no votes in it. And Ministers, for their part, are reluctant to admit that they are not solely responsible for important decisions and achievements. Every senior official is well used to Ministers claiming full public credit for a successful negotiation or initiative to which they have devoted only a tiny fraction of the time devoted by their officials. (To be fair, however, most decent Ministers are very grateful in private.)
More generally, of course, MPs want to be able to continue to write to fellow MPs (currently serving as Ministers) about all aspects of a department’s performance. Their constituents are much more impressed by ‘a letter to the Minister’ than by a letter to an official, even though they usually amount to the same thing. A small number of MPs refuse even to correspond with Agency Chief Executives, for instance about the Driver and Vehicle Licensing decisions.
Finally, picking up the point made earlier, many senior officials would not like to be publicly accountability for the effectiveness of their departments, knowing that this would open up areas of conflict with their political masters. Ex-Cabinet Secretary Sir Andrew Turnbull made this point when interviewed on the BBC’s Westminster Hour on 11 January 2015. Describing the ‘bargain’ entered into between Ministers and civil servants, he noted that the former benefit from frank advice and commitment from officials, but the civil servants are not then criticised publicly. If officials were to face public criticism then they would need a right of reply.
It was interesting that Cabinet Office Minister Francis Maude saw no problem with such public debate. “A Minister who is confident about what he or she has decided should have no problem in publicly defending it”. By way of example, he said that he would like to see much more use made of the ‘constitutional safety valve’ of written Ministerial Directions to Accounting Officers. They should become ‘much more normal’ and no longer seen as the nuclear, relationship-destroying option. Indeed, he believed that the fear of using Directions may well have led to officials failing to challenge decisions with which they are uncomfortable, but then failing to implement those decisions.
But there does seem to be a definite trend towards greater civil service accountability, including some interesting recent developments, which are discussed in the final part of this note:-
Whatever the strength of the arguments for and against greater civil service accountability, there does seem to be a long-term trend towards increasing the public accountability of the most senior officials. Maybe the first evidence of this was the creation of Next Steps Executive Agencies when the Thatcher administration decided that it was reasonable to hold officials rather than Ministers accountable for failures of administration. It was felt that the doctrine that Ministers should be held personally responsible for every failure in a department, however distant and minor, had never made much sense in theory or in practice. Ministers should certainly look for assurance that the right people and systems were in place, but they should not feel they need hands-on control. The more control they assert, the more they will attract blame for failures.
Next came a proliferation of regulators, charged with making many politically sensitive decisions independently of Ministers, including setting energy prices, encouraging competition in postal services, and deciding what medicines may be prescribed. The regulators are often criticised for being unelected, but their Boards and their staff are certainly much more accountable than their opposite numbers (and often ex-colleagues) in Whitehall departments.
Ministers have more recently shown themselves willing to appoint ‘big beasts’ to tackle big challenges. The Olympic Delivery Authority was an undoubted success, and Simon Stevens, as Head of the NHS, has proved adept at wringing substantial sums out of the Treasury, despite concerns about the deficit. But the ODA and the NHS lie outside the UK’s very narrow definition of the civil service.
There is however the possibility that the public will soon be in a better position to judge the performance of Permanent Secretaries because Permanent Secretaries’ objectives are now published – and Ministers are now allowed to choose which Perm Secs they want to work with, albeit from a pre-approved list of apolitical candidates. This is bound to encourage potential candidates to ensure that they are already known to be delivery-focussed and Minister-friendly and that their achievements are better known within Westminster. But it will also encourage them to ensure that their faults and failures are better hidden.
The most far-reaching recent development, however, was the publication of new ‘Osmotherly Rules’ that set out the terms on which civil servants may give evidence to Parliamentary Select Committees. The key principle has until now been that civil servants who give evidence to such committees do so “as the representative of the Minister in charge of the Department and subject to the Minister's instructions”. But MPs can now, for the first time, question civil servants about their delivery of major projects such as the (delayed) introduction of Universal Credit. The new rules now provide that “Senior Responsible Owners (SROs) for Major Projects” are “expected to account for and explain the decisions and actions they have taken to deliver the projects for which they have personal responsibility”. This narrows yet further the area of decision making for which Ministers accept responsibility.
The idea is that every such SRO should receive a publicly available appointment letter, approved by the relevant Minister, which will define the project and make clear the point at which the SRO becomes directly accountable for the implementation of the project. The SRO will not be accountable for the policy development of the project (even though they may have been involved in it) but they will subsequently be able to disclose where a Minister has intervened to change the cost or timeline of the project, and whether they agreed with the Minister’s decision.
This could work well, for proposed SROs will in theory be able to refuse to become responsible for a project which they believe to be undeliverable within the resources and timescale demanded by Ministers. But it could work very badly if SROs do what officials have done in the past, which is to accept that Ministers are entitled to demand rapid action with limited resources, and so sign up to achieving what they privately believe to be unachievable. This sort of behaviour will be encouraged by Ministers’ new power, mentioned above, to choose their next Permanent Secretary. We will have to look out for fingers crossed behind SROs’ backs as they accept their new public responsibilities.
So it will be interesting to see how both Ministers and the official machine respond to the new rules. Will potential SROs challenge Ministers more often than in the past, and if so how will frustrated Ministers respond? Or will we see a new generation of SRO ‘yes men’ (and women) who will expect their colleagues to forgive and shield them when their project goes wrong. Or maybe appointment letters will be just too vague, so that both Ministers and SROs can escape censure when failure looms. I have yet to see an appointment letter, and will report further when I have done so.
This is a combination of three blogs originally posted in February 2015.