Mandates, politics vs administration and the right to govern
The appointment of a new prime minister with radical plans has caused a lot of comment about "rights", both correct and mistaken
I read The Guardian more than some of you might expect, and not just because it remains without a paywall (though I’ll admit that’s a major attraction), and today it published an “exclusive” by the formidable tag team of Jessica Elgot, Rowena Mason and Aubrey Allegretti entitled “Liz Truss to push ahead with unlimited ‘investment' zones’ despite costs row.” The piece sets up a familiar contest between politicians and officials in Whitehall, and I hope I’m not being too much of a caricaturist when I say that an article like this in The Guardian is likely to err, however mildly, on the side of the civil servants. (That’s not a criticism: very few, if any, journalists are absolutely without bias, and all three authors here are good, conscientious, experienced reporters. I also repeat what I say as often as I can, which is that, although I write for newspapers, I am neither a journalist nor a reporter, lacking the skills, training and, I suspect, temperament.)
I won’t dwell too much on the details of the article itself, but it highlighted for me an ongoing and increasingly public tension between the two halves of Whitehall, the temporary (politicians and special advisers) and the permanent (the civil service and public sector agencies). It is fashionable on the right at the moment—this used to be a habit of the left—for criticising civil servants for being cautious, conservative (firmly with a small ‘c’), out of touch with the ‘real world’ and suffering from a collective orthodoxy from which they will not be shaken. Like almost any trope in UK politics, it is a misleading impression and often a smear, but, again like any trope, it contains a morsel of truth, otherwise it would never have gained traction.
The other caveats and disclaimers (my friends will tell you my conversation is as looping and parenthetical as my prose: all I can is say sorry and not really mean it). I was never a civil servant, but for 11 years I was employed by the House of Commons Commission as a clerk, an official, a bureaucrat, our pay and conditions were broadly the same as the Civil Service and in those days we were recruited through the Civil Service Fast Stream (though there was an extra final selection board for candidates for clerkships, which meant that for a few weeks in 2005, I didn’t know if Parliament wanted me but I had a guaranteed post in a home department in Whitehall: I sometimes wonder where they might have sent me).
I worked closely with civil servants, most commonly the confusingly named parliamentary clerks who were the officials in each department responsible for relations with Parliament. They were a mixed bunch. For some it was obviously a hardship posting and their engagement was superficial and bare-minimum, but some were fantastic and genuinely helpful, realising we were not always on opposing sides, even if we were on different teams. One former colleague, Georgina Holmes-Skelton, made the leap across the cavern and became the parliamentary clerk at what was then the Department for Business, Innovation and Skills, and was described by a minister as “brilliant”. (She was a lovely and able colleague in the House and is now head of government affairs for the National Trust, part of an increased turnover of clerks to which I will return at some point.)
I also think in general that civil servants are a fairly able bunch. I put it so mildly because there is wild variation. I have met some on whom I have formed kinds of professional crushes, and some whom I would not, to borrow Jess Phillips’s phrase, trust to mind my pint. Treasury officials are often extremely bright and dauntingly young but they can burn out quickly; and I do believe in the concept of “Treasury brain”, an orthodox mindset which holds us back. See here and here. Members of the Diplomatic Service often have a polished sheen but don’t always live up to the FCDO’s grand reputation. And there are incredibly able people in other departments too. As she’s no longer a public servant I can happily namecheck my friend Emma Thompson, who was superb at business engagement at the Cabinet Office and DCMS but has now returned to the private sector.
Enough of caveats and disclaimers, and let us return to the issue of politicians clashing with civil servants, and the wider issue of mandates. Does the civil service oppose politicians’ proposals, can it, and should it? Are we to believe, as the Guardian article which began this suggests, that Treasury officials are in some way trying to stop plans which the Prime Minister and the Chancellor have announced?
The “can” and “should” are intertwined. The Civil Service Code, which was given a statutory footing by the Constitutional Reform and Governance Act 2010 (CRAG) (God, how I remember that hitting the Public Bill Office! That was a story), lists civil servants’ core values as “integrity, honesty, objectivity and impartiality.” This is fairly self-explanatory, but it’s worth noting that it means that civil servants are absolutely required to follow the instructions of ministers of any political persuasion, irrespective of their personal view.
(This is a requirement of clerks in Parliament too, with some strict features. I never allowed political views to affect my work for Members, and indeed was advised it was unwise even to be an ordinary member of a political party. Any vaguely political activity outside our professional life was very much frowned on, and I even had to abandon an article I was writing about devolution before I even joined the House Service, though after I’d been appointed. I never told MPs how I voted, whom I admired if it might have partisan overtones, or any other piece of information which might legitimately reveal something. They sometimes fished, and I stonewalled as gracefully as I could, though on one occasion I was reduced to saying, rather formally, “I have the same views as the clerk of the committee, and the clerk has no views.” It made the point.)
This is very different, of course, from policy advice to ministers. As Martin Stanley, a former civil servant at various iterations of today’s BEIS, has remarked: “The best civil servants are therefore very good at putting themselves in their Ministers’ shoes, and understanding their fears, ambitions and pressures.” It is perfectly open for a civil servant to advise that a proposed policy is unwise because it will be ineffective, create perverse incentives, cause real damage or be perceived badly, he or she cannot do so on the grounds of personal disapproval. But, from the outside, I would take a maximalist view of this. Civil servants should be able to argue passionately against a policy proposal, because argumentation makes policy stronger and ideology clearer; but any official also needs to consider their reputation, not so much with their colleagues but with their ministerial overlords. Seeing pitfalls and warning in advance may garner praise; seeming to have a personal agenda will damage you.
(Again, reputation matters. I had a chairman whose preconception was that clerks were conservative forces ranked against him and I was a likely typical English Tory. I had a long and 95% honest conversation with him in which I told him my only agenda, the only agenda that matters to any clerk, really, was helping him do what he wanted to do within the rules of the House. Later on in our relationship there were times when I had to say to him, as I’d said to other Members, that, if he insisted, he could do what he proposed and I would carry it out with all my diligence and ability, but that I advised strongly against it on presentational grounds. He generally agreed, having been convinced that I was not a partisan actor (it took me longer to convince him of my ancestral Scottish bona fides. It was my overwhelming observation that MPs who thought about it at all hated the idea of officials with their own agendas.)
Of course that is not to say that civil servants are or should be meek functionaries, “only obeying orders”. I would argue, and I think most commentators would agree, that a civil servant has a right to refuse to carry out illegal acts or enforce laws or regulations which are contrary to the law. They are, according to the Civil Service Code, required to “comply with the law”, the inverse implication being that they must not break the law. If a minister decided to embark upon a policy which was, for example, clearly in breach of the Human Rights Act 1998, civil servants would not only be entitled but obliged to say “No, minister, you cannot do this and I will not help you to do it.” One would expect that push-back to come from the permanent secretary in a clear-cut case, though of course individuals may appeal to the Civil Service Commission in instances of suspected breaches of the Code.
Nevertheless, arguments continue to be reported and the idea of a civil service adhering to its own views and agenda in defiance of political will is a live one. In February, The Daily Telegraph reported that unconscious bias training had not been scrapped in Whitehall, despite a clear ministerial view that it was ineffective. A spokesman noted that it had been phased out in standalone form but continued to be part of some legacy training content; the intention was to phase this out too.
Here we have several features of the trope. The casus belli is something which, while it may not be of first-rank importance, touches nerves. A perception develops (or is created) of a cultural conflict between ministers, painting themselves as radicals and iconoclasts, and officials, depicted unwillingly as opponents of change and wedded, in some de haut en bas way, to an agenda which clings to ideas which have fallen out of favour with the electorate at large. A complexity over what is actually happening which is claimed by both sides as the truth (I wrote last time on the difficulty of identifying, let alone policing, absolute truth). And the facts reveal a muddle which requires urgency and clarity before it becomes a battle over fundamental principles.
There are guilty parties on all sides. To be brief, the government and its hangers-on sometimes find the Civil Service, which cannot answer back, a useful target to beat as a virility signal and makes dreadfully unfair characterisations. There are ex-civil servants and commentators who uncritically deploy the “Rolls-Royce organisation” argument and loftily dismiss any criticisms as verging on lèse-majesté. And there is a broadly centre-left narrative which sprung up mainly from the Brexit referendum that the government has embraced a fundamentally damaging and—this is the real danger—invalid approach to the world which makes any move to frustrate it in some small way justified. While understanding where these emotions come from, all are magnified beyond utility and can harm the way we do politics.
I count myself as fairly reform-minded when it comes to the Civil Service. There is, I think, a huge amount that could be done to make it much better and more effective than it is, although I have conservative opinions on some core values and practices. I am one of those weird people—some others I’m sure do exist—who would be in seventh heaven if a prime minister called with an offer of a peerage and a ministerial brief to “sort” Whitehall. I’ve been drawing diagrams of departments and responsibilities since I was a teenager (I’m not joking). But reform is not revolution, and I generally believe in working with the grain rather than the more modish mantra of “move fast and break things”.
What I do passionately believe, however, is that the current culture, Kulturkampf almost, is like strategic bombing: indiscriminate, ineffective, damaging to collateral issues and the easy way out for populists and sloganeers. Ministers are right to have unorthodox ideas, and should challenge their officials, but they must defend and cherish the independence of the Civil Service and observe due process. Equally, civil servants should remember where the democratic legitimacy lies, approach policies with an open mind, but be firm and persuasive in presenting advice, with brutal honesty if needs be. We can there, but I’m not sure if we will any time soon.