The Constitutional Position

of Civil Servants

The Constitutional Position of UK Civil Servants

The Traditional Whitehall and Westminster Model

Government in the United Kingdom is built on the assumption of Parliamentary Sovereignty; all key decisions are made by Parliamentarians and there is no higher authority.

(Note therefore that a decision by a UK Government to sign an international treaty does not create rights and duties in national law which are enforceable in UK courts. Only UK legislation can create or revoke such rights and duties. European Union law was accordingly incorporated into UK law by the European Communities Act 1972. That legislation could not and did not fetter the ability of successor Parliaments to revoke or amend the 1972 legislation.)

Legitimacy and democracy are maintained because Ministers are answerable to Parliament, and the House of Commons is elected by the people. Decisions are taken by Ministers (and if necessary by the whole Cabinet) and implemented by a neutral civil service. There is thus a simple chain of command. Civil servants are accountable to Ministers who are accountable to Parliament, whose Members are accountable to their constituents.

Burke, Green and Civil Service Ethics

Another important feature of the model (drawing on the teaching of 18th Century philosopher Edmund Burke) is that Members of Parliament (MPs) are representatives, not delegates. Burke himself said the following to his constituents, having been returned as an MP: "Your representative owes you, not his industry only, but his judgment; and he betrays instead of serving you if he sacrifices it to your opinion." In other words, MPs should act in what they judge to be the public interest - not as advocates for the interests of their constituents and therefore not necessarily in the way that their constituents might wish them to vote, nor even necessarily in the interests of their own constituency. It is worth noting, however, that Burke decided, six years later, that he would not seek re-election rather then lose the forthcoming vote, thus showing that no MP can completely ignore the views of his constituents and hope to be re-elected.

Building on the limitations of Burke's model, the nineteenth century idealist T H Green helped provide the ethical framework through which civil servants are expected to achieve integrity in their work. As politicians are inevitably subject to short term and selfish pressures, there needs to be a unified administration in which officials ensure the common good or public interest. To do this, they must be politically neutral and must demonstrate pecuniary and moral integrity. They must not be motivated by the desire to make money.

Northcote Trevelyan Reforms

Building in turn on Green, the 1854 Northcote Trevelyan Report on the organisation of the Permanent Civil Service responded to pressure for change which was in turn driven by circumstances which have immediate resonance today: ‘The great and increasing accumulation of public business, and the consequent pressure on the Government.’ The result was a civil service appointed on merit through open competition, rather than patronage, with the following core values:

Political Impartiality

The line dividing the British political class from the official class was established in 1884 when the Gladstone Government determined, in an Order in Council, that 'a civil servant standing for election in a constituency must resign his post when he announces himself as a candidate'.

Permanent Secretary Martin Donnelly, in a speech at the Institute for Government in June 2014, defined political impartiality in this way: "[Civil Servants must] not do for one Minister what would not be done for another of a different party ... in the same situation. ... Providing a convincing defence of government policy should be a core Whitehall skill; rubbishing the Opposition is not the function of permanent officials.".

Practical advice on remaining impartial may be found here.

The Haldane Model

The 1918 Haldane Report, published at the end of the First World War, recommended the development of deeper partnerships between Ministers and officials so as to meet the more complicated requirements of busier government as substantial executive ministries emerged from the first world war. The Report's impact came through two closely-linked ideas:

The relationship between civil servants and Ministers thus became one of mutual interdependence, with Ministers providing authority and officials providing expertise. This "Haldane Model" encapsulates the notion that civil servants have an indivisible relationship with their departmental ministers, quite different to many other models of government around the world, which are often based on separation of powers.

Crucially, however, the UK Civil Service has no "constitutional personality" or responsibility separate from the Government of the day. It is there to provide the Government of the day with advice on the formulation of the policies, to assist in carrying out the Government's decisions, and to manage and deliver Government services. Civil servants therefore ... :

Manchester University’s Dave Richards and York University’s Martin Smith have amplified the above description as follows:-

… the British system of government is seen to embody a system not of formally codified rules but instead one of advice - determined by the constitutional principle that [Prime] Ministers act as advisers to the sovereign, having in turn been advised by civil servants. It is based on the convention that officials are in a position to advise a minister on a subject (free from the threat of fear or favour) and as such, there is no requirement for the separation of power between the political and administrative class. This is the antithesis of the US ’Wilsonian model’ or many other European models of government that are premised on more pluralistic sentiments and a separation of powers.

Constitutionally then, the Haldane convention does not recognise any division in the personality of ministers and their officials. This principle of both indivisibility and mutual dependence within the UK system is seen as providing both a practical and constitutional constraint to protect against the arbitrary (ab)use of power. This convention became a bedrock of the Westminster model. It established the modus operandi that officials and ministers should operate in a symbiotic relationship whereby ministers decide after consultation with their officials whose wisdom, institutional memory and knowledge of the processes of governing helps to guide the minister. The official is loyal to the minster who takes the rap when things go wrong. Whatever the problems with this approach, democratic or otherwise, it at least outlined clear lines of responsibility and accountability.

Ministers were the ones held to account even if they often evaded the responsibility. Of course, scratch below the surface and the constitutional niceties of the minister-civil servant relationship have of course proved at times fractious. The Wilson Government’s suspicion and criticism of Whitehall moved it to establish Fulton, although infamously of course the Haldane principle was left strictly off-limits. Heath’s reorganisations in the early 1970s was an asserted attempt at ministerial muscle flexing, but Whitehall was not shy in kicking-back. The Benn side-show during the 1970’s Labour Government offered some entertaining spats when first in Industry, then in Energy, he challenged the standard operating procedures within Whitehall, so boo-hooing Haldane. But beyond these skirmishes, it is really only since the 1980s, that the Haldane model has been gradually, and largely implicitly, undermined.

This 'undermining' is examined in more detail in the Civil Service Reform section of this website.
Douglas Wass 1983 Reith Lecture The Privileged Adviser is a highly readable review of the relationship between Minister and senior official as it was then, and as it is still supposed to be.

The rest of this note summarises the key documents, rules and legislation which currently govern civil servants' behaviour, and flesh out the above principles.

Documents

Civil servants are employed by the Crown under the Royal Prerogative and with powers delegated to them under various Acts, regulations, instructions etc. The most important of these are:

The indivisibility and mutual dependence of Minsters and civil servants mean that officials must also work within the laws, conventions and rules summarised in:

The following notes provide further information about the Civil Service Code, the Carltona Principle, the Armstrong Memorandum and the Osmotherly Rules. Further information about the Orders in Council etc. may be obtained from the Government's official civil service website.

The Civil Service Code

The Civil Service Code provides a clear, helpful and commendably brief summary of the values that should be common to all civil servants of all grades, and the standards of behaviour that are expected of them. The first version of this Code of Practice was put in place in January 1996 at the suggestion of the then Treasury and Civil Service Select Committee, and was revised in May 1999 to take account of devolution to Scotland and Wales. A significantly new edition was published in June 2006. It differed from the previous one in two main ways:

The code also helpfully defines the civil servants' four core values in the following way:

The Armstrong Memorandum

This memorandum summarises the duties and responsibilities of civil servants. The most important parts read as follows:

Despite the clear rules in the Civil Service Code, and in the Armstrong Memorandum, there have been a number of recent instances of senior officials speaking out in support of, or sometime even against, Minsters' policies. Click here for a more detailed discussion of these developments.

Click here to read the full text of the Armstrong Memorandum.

The Osmotherly Rules

Civil servants who appear before Select Committees are required to follow 'the Osmotherly Rules'. Put shortly, officials may describe and explain the reasons which caused Ministers to adopt existing policies but they should not give information which undermines collective responsibility nor get into a discussion about alternative policies. In particular, they are not allowed to divulge:

The Carltona Principle

This is the legal principle under which civil servants exercise power on behalf of Ministers.

In some circumstances, a person in whom a power is vested can authorise another person to exercise that power for and on his or her behalf. It is essential to note at the outset that a person exercising a power for and on behalf of another does so as the ‘agent’ or ‘alter ego’ of the person in whom the power is vested. That is, the act of the authorised person is, at law, the act of the person in whom the power is vested. This is fundamentally different to the act of a delegate which, at law, is the delegate’s and not the delegator’s act.

The case most often cited as authority for the proposition that a person may authorise another to exercise a power for and on his or her behalf is Carltona Ltd v Commissioners of Works 1943. This was a wartime case dealing with the requisition by the Government of a factory which manufactured food products. In Carltona, the English Court of Appeal considered whether a Minister had to exercise personally a power to take possession of land, or whether the power could be exercised by one of the Minister’s departmental officials for and on behalf of the Minister. The court concluded that the power in question could be exercised by a departmental official for and on behalf of the Minister. The court’s reasoning indicates that there are two grounds which justify a Minister being able to authorise an officer to exercise a power vested in the Minister:

Commentary

It should be noted that the Westminster Model is predicated on the view that 'Government knows best'. It assumes that the public does not have the information necessary to make the right decisions. Some commentators go further and argue that the political elite regard secrecy as the best means of ensuring that the right decisions are made in the interests of the people. A responsible government is accordingly able to take strong decisive action, even when opposed by a majority of the population. This is a leadership rather than participatory view of democracy, but it is legitimised by regular democratic elections, when representatives can be held to account for their decisions.

The Haldane Model, furthermore, encourages concentration of power at heart of the British political system and "Government by the elite". This concentration of power, together with the interdependence of Ministers and officials, means that senior civil servants can be quite powerful whilst simultaneously maintaining the polite fiction they are "only advisers". And politicians can, at the same time, continue to maintain that they are really taking all the decisions. In practice, of course, the relative power and influence of senior officials varies very much from Government to Government, and with the characters and experience of the officials and their Ministers. But critics argue that the Westminster/Haldane model is in effect a facade which works to the benefit of both politicians and civil servants, but which disguises the truth from the population at large.

Both parts of the model are, however, being increasingly tested by modern developments. See my notes on civil service reform for further detailed discussion of recent developments.

An excellent summary of the constitutional development of the UK Civil Service through to 1997 may be found in Michael Duggett's paper The Evolution of the UK Civil Service.

 

Martin Stanley