Institute for Government Essay Prize 2016

If you were made Head of the Civil Service tomorrow, what would your priorities be?

Reform of the civil service will only be successful if it is instigated by its own leadership[1]. Since British institutions develop by evolution rather than revolution[2], innovations may take a decade or more to embed. But the foundation of success will rest on protecting and enhancing the civil service on the basis of law. As Head of the Home Civil Service a priority would be the promotion of a series of bills, a set of Civil Service Acts, intent on achieving statutory foundation for: merger of the Home and Diplomatic Services under the leadership of one combined ‘Head of her Majesty’s Civil Service’; the role and constitutional status of Permanent Secretaries; statutory reorganisation of departments following review of their purpose; the creation of a new Department for the European Union (EU); Centralisation of policy development in a reconstituted Cabinet Office; and the creation of ancillary ‘back office’ services serving all departments. The limitations of this package of reforms are the obvious requirement to ensure cross-party political consensus is secured, and that mechanisms are implemented to ensure amended structures are subject to Parliamentary oversight and scrutiny.

A single leader for the civil service

The strategic management of the civil service is confused. A clumsy quadrumvirate, subject to endless and ad hoc tinkering by governments of all colours, has encompassed in varying degrees of status or influence: the Head of the Home Civil Service, Head of the Diplomatic Service, Cabinet Secretary, and Permanent Secretary of the Cabinet Office. (This fourth position received the suffix ‘Chief Executive of the Civil Service’ in 2015; the consequences of which remain uncertain, given this position co-exists with the Head of the Home Civil Service.) Role innovations arrive and depart almost as frequently as governments; between just 2010 and 2012 a new senior leadership position was created – a Permanent Secretary of Downing Street – and disappeared as almost as swiftly as it appeared[3]. Half-a-million-or-so civil servants should expect not only the permanence of positions which have longevity, but the clarity of a single and absolute authority by the man or woman in control of their employer. This applies as much to civil servants at home as it does abroad, in an age when diplomatic relations between all of the UK’s immediate neighbours are superfluous within European union, and the development of instant means of communications obviate a requirement for separate (and therefore, more costly) institutional structures. The creation of a new all-encompassing post – a Head of Her Majesty’s Civil Service – would unify executive decision-making under one person, and act as the co-ordinating authority for further reform.

The role and constitutional status of Permanent Secretaries

The Permanent Under-Secretary of State (PUS) is the de facto Chief Executive of a government department. De facto since, under the myriad constitutional guidance in which they exist, their legal status (and protection) remains undefined[4]. A PUS has authority over the budget, headcount and operational management of their department – with policy remaining the scope of Ministers. Yet their constitutional status by convention is equivalent to a Parliamentary Under-Secretary-of-State[5], or the most junior ministerial rank. Under existing norms, where evidence exists to suggest the advice of a PUS is frequently ignored or overruled[6], the occupier of the post can reveal opposition by preparing, and publishing, a Letter of Direction. This states, explicitly, that a Minister is acting contrary to their advice. In the 2010-15 Parliament only a single letter was prepared[7]. For salary purposes, too, they are deemed the equivalent of an army General or a High Court Judge. These details pose conundrums: evidentially a junior minister, such as a Minister of State, has power to over-rule a PUS who has executive responsibility for the department as one whole. Pay does also not seem to sync. A new Civil Service Act would provide the PUS with constitutional equivalence to a Secretary of State, and upgrade salaries to those of a Chief of the Defence Staff, or Supreme Court judge. Attempts to enhance the status of the PUS have been attempted before, notably under Sir Richard Wilson’s tenure as Head of the Home Civil Service in the 2000s[8], meaning such reform is long overdue.

Re-organisation on a statutory basis

Government departments are chameleon both by name and nature. One critical function of the state, the provision of schooling, has been managed by a government department with six different names since 1992: The Department for Education restored in 2010 the same name the department had in 1992[9]. The capacity for a government to manipulate the structure of the country’s administrative machine at will is immense: decisions made by a small group including the Prime Minister and typically no representative of the department(s) in question. This can only lead to a state of continuous flux and re-organisations with uncertain consequences, not least in relation to constitutional matters. Tony Blair’s ill-fated attempt to abolish and unwind the role of the ancient office of Lord Chancellor was shambolic. His creation of a Department for Constitutional Affairs, in 2003, was another short-lived manipulation of the Whitehall machine which demonstrated the ill-feeling generated by decisions made in haste[10]. In the words of one commentator it is legitimate to say: ‘The truth is that some of the departments are created as a form of party management rather than a contribution to good governance[11]’. Under this new Act, Government departments would have statutory protection similar to that enjoyed by the present-day Ministry of Defence, under the Defence (Functions Transfer) Act 1964. Thus no longer at the mercy of merger or abolition by some or other Cabinet reshuffle with political outcomes in mind, the Departments would be better able to focus on their responsibilities than the niceties of names, or name plates.

A department for the European Union

Whitehall and the diplomatic service have never adapted structurally to the UK’s forty years of EU membership, with one former Chief of Staff to the Prime Minister arguing such an innovation would assist the flow of government and the speed of decision making[12]. No department can ignore European legislation and there is a very strong case for concluding EU member-to-member relations should no longer be described as ‘diplomatic’ at all[13]. For the Department for Business (BIS), or Department for the Environment, Food and Rural Affairs (DEFRA), meetings of the Councils of Ministers are almost their raison d’être. In total, 53% of legislation requiring administrative implementation originates at a European level[14]. As such the Foreign and Commonwealth Office (FCO) might be recast as an extra-European function, with part of its London headquarters and British diplomatic property in member states being allocated to a new Department for European Union (DEU)[15]. Joined by the EU Secretariat, presently (and idiosyncratically) part of the Cabinet Office, the Department would have responsibility for coordinating relations with EU member states and effecting the flow of information, regulation, and legislation from EU institutions. In consequence there would be a ‘single point of entry’ for other member states; the Commission; Council; Parliament; Courts of Justice, and all layers of UK, devolved and local government for whom European matters are more relevant than ever. A new department would also refocus the European debate, signalling the UK’s commitment to Europe and helping to consign ‘awkward partner’ rhetoric to the past[16].

Re-casting policy development

Prime Ministers and others have recorded their struggle to affect manifestos with the urgency they might expect to see in the civil service[17]. Although the civil service does need to be stronger, the development of policy and the implementation of a political party’s manifesto remains a paramount expectation of a politically neutral and efficacious civil service. Numerous attempts to strengthen a Prime Ministerial or Downing Street policy unit – for policy design, implementation or otherwise – have tried and usually failed to provide the expectations demanded of them[18]. Where policy passes that crucial evolution into law, the literature bemoans rudderless development of new legislation at risk of being uninterpretable by Courts. In Laying Down the Law[19], a Parliamentary Counsel explains the haphazard approaches they witnessed drafting new legislation, as trench warfare-style chaos descended over what is viewed by outsiders as surely a condition of sound government. Lord Bingham noted frustration in The Rule of Law with obfuscating statutes developed by Whitehall and passed by Parliament[20], such as New Labour legislating to end child poverty[21]. Both policy development, and the Office of the Parliamentary Counsel, should be co-located with headcount extracted from departments to form a part-reconstituted Cabinet Office. This department would in future own the stewardship of new bills, departments would retain responsibility for implementation, and rotation between the two would be a prerequisite for career progression.

Unitary ancillary services

Waste and inefficiency are evils referenced time again by reformers of the state, but rarely is application of basic organisational principles, long established in corporate theory, affected in the civil service. Although H.M. Treasury was once responsible for cross-departmental overheads, this ceased largely with the creation of the Civil Service Department in 1969 (abolished 1981). Government departments and a myriad of QUANGOs[22] presently provide back-office services for one another on an inconsistent and, no doubt, costly basis. Some departments use the Ministry of Justice’s payroll, for instance, and the Treasury-based Government Legal Service provide internal advice to some government departments and associated bodies, but not all[23]. A modern conglomerate, along the lines of the horizontally integrated ‘M’ corporate form championed by Alfred Chandler in 1962[24], will at the very least share all human resources, technology, legal, finance and communications functions – if not established as one centralised team, then at least based in a subsidiary/legal entity but with headcount employed and accountable to the Director of said function. This innovation could transform the effectiveness of government, extract expensive overheads from London or the south of England, and ensure a leaner Whitehall maximises the economies of scale available to it. Over time, the new functions could be utilised by other public sector organisations including local authorities, schools and NHS trusts.

Through a combination of legislation and innovations based on organisational theory, the strategic management of the civil service could be transformed. Since reform of the service only ever appears to fail when led top-down by political forces[25], the above demonstrates successful change will only be achieved once its leadership is enhanced and protected from political interference. Central departments have an ethos distinct from other public services – they even have differing values when examined individually – and thus application of methods that succeed in other environments will fail if the leadership, and will to change, is not found internally. The creation of a Head of Her Majesty’s Civil Service, enhanced status for the PUS, and the reorganisation of the central departments, must however be placed on a statutory footing. At a time of discomfiting uncertainty, the risk of a future balkanised UK outside the EU has the power to overwhelm an administrative bureaucracy which is not prepared to evaluate and confront the challenges it faces. Organisational meddling and casual, ad hoc changes seldom evaluated robustly, are arguably part of the explanation for why the UK may well be dissolved within a generation. A series of Civil Service Acts, codifying structures and conventions which have never been subject to public scrutiny or design, will ensure the country is subject to ever-better standards of administration.

Bibliography

Adonis, Andrew (Lord). Education Education Education: Reforming England’s Schools (London, Biteback Publishing, 2013)

Bingham, Tom (Lord Chief Justice). The Rule of Law (London, Allen Lane, 2010)

Blair, Tony. A Journey (London, Arrow Books, 2011)

Bogdanor, Vernon. The New British Constitution (Oxford, Hart Publishing, 2009)

Buller, J and Smith, M. Civil Service Attitudes towards the European Union in Baker, D. and Seawright, D. (Eds) ‘Britain For and Against Europe: British Politics and the Question of European Integration (Oxford, Clarendon Press, 1998)

Chandler, Alfred D. Strategy and Structure: Chapters in the History of the Industrial Enterprise (Cambridge MA, MIT Press, 1962)

Davis, Jon. Prime Ministers and Whitehall 1960-74 (London, Hambledon Continuum, 2007)

George, Stephen. An Awkward Partner: Britain in the European Community (Oxford, Oxford University Press, 1990; 1994)

Greenberg, Daniel. Laying Down the Law: A Discussion of the People, Processes and Problems that shape Acts of Parliament (London, Sweet and Maxwell, 2011)

Hennessy, Peter. The Prime Minister: The Office and its Holders since 1945 (London, Penguin, 2000)

House of Commons Public Administration Select Committee. Leadership of Change: New arrangements for the roles of the Head of the Civil Service and the Cabinet Secretary (London, Nineteenth Report of the Session 2010-12, The Stationary Office, 2012)

McTernan, John and Cameron, Sue. The Duel: Are there too many government departments? (London, Prospect Magazine, November 2015)

Mullin, Chris. A View from the Foothills: The Diaries of Chris Mullin (London, Profile Books, 2010)

Oliver, Tim. The British State and the World: How the core executive manages foreign policy in an era of Governance, Europeanisation and Globalisation (London, Unpublished PhD thesis, London School of Economics, 2009)

Panchamia, Nehal and Thomas, Peter. Civil Service Reform in the Real World: Patterns of Success in UK Civil Service Reform (London, Institute for Government, 2014)

Paun, Akash; Harris, Josh and Magee, Ian. Permanent Secretary Appointments and the Role of Ministers (London, Institute for Government, 2012)

Powell, Jonathan. The New Machiavelli: How to Wield Power in the Modern World (London, Vintage, 2011)

Rawnsley, Andrew. The End of the Party: The Rise and Fall of New Labour (London, Penguin, 2010)

Thatcher, Margaret. The Downing Street Years (London, HarperCollins, 1993)

Williams, Shirley. Climbing the Bookshelves (London, Virago Press, 2009).

 

 

[1] See Panchamia, Nehal and Thomas, Peter. Civil Service Reform in the Real World: Patterns of Success in UK Civil Service Reform (London, Institute for Government, 2014).

[2] See Bogdanor, Vernon. The New British Constitution (Oxford, Hart Publishing, 2009).

[3] House of Commons Public Administration Select Committee. Leadership of Change: New arrangements for the roles of the Head of the Civil Service and the Cabinet Secretary (London, Nineteenth Report of the Session 2010-12, The Stationary Office Limited, 2012).

[4] See Paun, Akash; Harris, Josh and Magee, Ian. Permanent Secretary Appointments and the Role of Ministers (London, Institute for Government, 2012). The paper also notes role profiles do not exist for Permanent Secretary positions.

[5] Williams, Shirley. Climbing the Bookshelves (London, Virago Press, 2009), p. 166.

[6] Off-record discussion with a former Permanent Secretary.

[7] The letter was in relation to payments the Cabinet Office was ordered to make to Kids Company.

[8] Rawnsley, Andrew. The End of the Party: The Rise and Fall of New Labour (London, Penguin, 2010). p. 291.

[9] In between, it was named successively: The Department for Education and Employment (DFEE); The Department for Education and Skills (DES); and The Department for Children, Schools and Families (DCSF). Going further back, it was known as the Board of Education, and in the 1960s and 1970s, The Department for Education and Science.

[10] O-Brien, Patrick. Blog: Does the Lord Chancellor Really Exist? (London, UCL Constitutional Unit, 2013): http://ukconstitutionallaw.org/2013/06/26/patrick-obrien-does-the-lord-chancellor-really-exist/.

[11] McTernan, John and Cameron, Sue. The Duel: Are there too many government departments? (London, Prospect Magazine, November 2015).

[12] Powell, Jonathan. The New Machiavelli: How to Wield Power in the Modern World (London, Vintage, 2011). p.148; 245.

[13] This would be by no means unprecedented. The UK’s historic role in Commonwealth countries means a distinction is made between ambassadors and high commissioners; and diplomatic representation was, as late as the 1960s in the case of the ‘old’ Commonwealth dominions, separate via the Commonwealth Relations Office.

[14] House of Commons Library, 2010: https://fullfact.org/europe/eu_make_uk_law-29587.

[15]For a discussion on this proposal, which the author can find proposed once in the literature (in Buller, J and Smith, M. Civil Service Attitudes towards the European Union in Baker, D. and Seawright, D. (Eds) ‘Britain For and Against Europe: British Politics and the Question of European Integration (Oxford, Clarendon Press, 1998). p. 165-86) see Oliver, Tim. The British State and the World: How the core executive manages foreign policy in an era of Governance, Europeanisation and Globalisation (Unpublished PhD thesis, London, London School of Economics, 2009), p. 247.

[16] See George, Stephen. An Awkward Partner: Britain in the European Community (Oxford, Oxford University Press, 1990; 1994).

[17] See Thatcher, Margaret. The Downing Street Years (London, HarperCollins, 1993); Blair, Tony. A Journey (London, Arrow Books, 2011); Mullin, Chris. A View from the Foothills: The Diaries of Chris Mullin (London, Profile Books, 2010) and Adonis, Andrew (Lord). Education Education Education: Reforming England’s Schools (London, Biteback Publishing, 2013).

[18] See Davis, Jon. Prime Ministers and Whitehall 1960-74 (London, Hambledon Continuum, 2007).

[19] See Greenberg, Daniel. Laying Down the Law: A Discussion of the People, Processes and Problems that shape acts of Parliament (London, Sweet and Maxwell, 2011).

[20] See Bingham, Tom (Lord Chief Justice). The Rule of Law (London, Allen Lane, 2010).

[21] An admirable ambition, but something which is not in the gift of Parliament.

[22] Quasi Autonomous Non-Government Organisation.

[23] The Department for Work and Pensions, for instance, has its own legal team. The Government Legal Service was known as the Treasury Solicitors’ Office until April 2015.

[24] Chandler, Alfred D. Strategy and Structure: Chapters in the History of the Industrial Enterprise (Cambridge MA, MIT Press, 1962).

[25] The most recent attempts to reform the civil service, led by Rt. Hon. Francis Maude MP over 2010-15, now Lord Maude of Horsham, are widely regarded to have failed. Ibid Panchamia and Thomas (2014).