ministers and mandarins and select committees

REPORTS OF COMMITTEES

MINISTERS AND MANDARINS AND SELECT COMMITTEES

Introduction THE relationship between Mrs. Thatcher and the civil service has not been particularly harmonious. Civil service manpower has been reduced, trade union membership has been curtailed at G.C.H.Q. Cheltenham, and pay rises (excepting very senior civil servants) have been kept low. Unsurprisingly, this has resulted in poor morale within the service, and this has manifested itself in industrial disputes and a fair degree of “leaking” by civil servants. It has also been alleged that, under Mrs. Thatcher, “politicisation” of the higher civil service has occurred. These points have concerned the Treasury and Civil Service Committee (T.C.S.C.). The promulgation of Sir Robert Armstrong’s Memorandum “The Duties and Responsibilities of Civil Servants In Relation to Ministers”’ was taken as the peg on which to hang the Committee’s investigation into the relationship between civil servants and ministers. The T.C.S.C. report Civil Servants and Ministers: Duties and Responsibilities* was published in May 1986 and two months later the Government published its r e ~ p o n s e . ~

The Westland affair not only overlapped with the T.C.S.C. inquiry but also overshadowed it. The investigation of the affair was left to the Defence and Trade & Industry Select Committees. The Defence Committee’s reports4 were published on the same day as the Government’s response to the T.C.S.C. and it was in the response to the Defence Committee’s reports5 that the Government announced its intention to give new instructions to civil servants about the evidence they could give to select committees. This announcement on accountability outraged the select committees. The Government engaged in consultation following this hostile reception and subsequently amended its instructions. This note examines the T.C.S.C. report, the Government’s response and the Government’s instruction to civil servants, the select committees’ reaction to that and the modification this caused. It is suggested

The full text of the Memorandum is reproduced in Volume I1 of the committee’s re ort, see n.2 for citation. Hereafter this volume Ev.

Seventh Report Treasury and Civil Service Committee, Session 1985-6 H.C. 92 1-11, Hereafter Vol. I Report. ’ Civil Servants m d Ministers: Duties and Responsibilities. Government Response to the Seventh Reporf from the Treasury and Civil Service Committee Session 1985-86. Cmnd. 9841. Hereafter Response.

Defence Committee The Defence Implications of the Future of Westland plc Third Report Session 1985-88 H.C. 518 and Westland plc: The Government’s Decision-Making Fourth Report Session 1985-86 H.C. 519. Trade and Industry Committee Westland plc Second Report Session 1986-87 H.C. 176.

Government Response to the Third and Fourth Reports from the Defence Committee Session 1985-86. Cmnd. 9916. Hereafter Response (Defence).

492

JULY 19871 REPORTS OF COMMIlTEES 493

that changes in the relationship between ministers and civil servants are of sufficient constitutional importance to require a reassessment, rather than a restatement of orthodoxy.

“Duties and Responsibilities”: Recommendations and Response The Armstrong Memorandum6 was issued in the wake of the Ponting trial in order to give some guidance to civil servants. In summary, the memorandum stated that civil servants are the servants of the Crown and that this means they are the servants of the Government. The duty of a civil servant is first and foremost to the minister in charge of the department in which the civil servant works. While a civil servant ought not to be required to do anything unlawful, once a minister takes a decision the civil servant must loyally carry it out whether or not he or she agrees with it. If it is felt that an instruction would breach the law then this should be reported to a superior or to the Principal Establishments Officer who then may refer it to the department’s legal adviser. If the advice is that the required action would indeed be unlawful then this is to be reported in writing to the Permanent Head of the Department. If an instruction, although not unlawful, nevertheless touches upon a fundamental issue of conscience for an official, then there may also be reference upward in the chain of command, ultimately to the Head of the Home Civil Service. If, however, this procedure does not produce a satisfactory result the civil servant must either carry out the task or resign.

This memorandum was the point of departure for the T.C.S.C.’s inquiry. Its report may be divided into three sections dealing with (a) duties, loyalties and accountability, (b) open government and (c) the machinery of government.

(a) Duties, Loyalties and Accountability While most of the T.C.S.C.’s witnesses regarded the memorandum as an accurate restatement of the traditional understanding of a civil servant’s duties to a minister, a common criticism was that the guidance was inadequate to deal with present day circumstances. Change had occurred in the way the service is run and in the climate within which civil servants work. Nevi1 Johnson,’ in one of the more perceptive submissions of evidence, gave examples of such changes. He also noted that it was not for Sir Robert to take the initiative in revising the guidance to take account of these changes. The T.C.S.C. felt that it was able to make some recommendations for change. Nevertheless it agreed with the

February 25, 1985. ’ Ev. pp.169-78. See also his article which traverses similar ground “Change in the Civil Service: Retrospect and Prospects” (1985) 63 Public Adminisfratiori 415.

494 I H E MODERN LAW REVIEW [Vol. 50

statement in the memorandum that a civil servant’s duty is to his or her minister.” The Committee, however, felt that duties and loyalties did not flow in one direction only and recommended the preparation of guidelines for both civil servants and ministers which would reflect these responsibilities.”

The Government, in its response, claimed that, in producing guidelines, all one can do is to state general principles. It agreed that good government depends as much upon the integrity and accountability of ministers as upon that of civil servants,’” but believed that ministers were well aware of their responsibilities both to Parliament and civil servants. Nevertheless it did offer a general definition of these duties and responsibilities. Included in this list were the duties “to give to Parliament as full information as possible about the policies, decisions and actions of the Government and not to deceive or mislead Parliament or the public” and “to refrain from asking or instructing civil servants to do things which they should not do.”l’

On the subjects of unlawful instructions and matters of conscience evidence was received that the procedures in the Armstrong memorandum were inadequate.” The principal problem was that the language of the memorandum was merely permissive; superiors may follow the procedures. What if a superior refuses to do anything in the face of advice that the instruction is unlawful? What if it is decided not to transfer someone from work which clashes with his or her conscience? The evidence of former top officials such as Sir Douglas Wass13 and Sir Patrick Nairne14 was that these sorts of problems can generally be resolved by negotiation. However, would these procedures have helped Mr. Ponting and Miss Bowe? Whilst the memorandum’s guidance came after Mr. Ponting’s difficulty, it would not have assisted him had it been issued at that time. He explained that the reason he did not talk to his permanent secretary was because his superior was well aware of what the minister proposed to do and did not seem to object.’’ In Miss Bowe’s case, as the T.C.S.C. noted,16 her superior was unavailable and the instruction to leak the Solicitor-General’s letter during the Westland affair was to be carried out promptly.

One remedy would be that of an external appeals mechanism. The sub-committee which conducted the inquiry was somewhat attracted to this proposal in the form of a variant of Sir Douglas

Report para. 3.8. Ibid., para. 3.13 for ministers and para. 4.11 for civil servants. ’” Response para. 10.

” Ibid., para. 1 1 . Ev. , pp.59-75 (Association of First Division Civil Servants) and pp.7685 (Council

of Civil Service Unions). l 3 Ibid., p.42.

Ibid., p.56. I s Ibid., p.106 Q . 385. l6 Report para 4.7 drawing on Sir Robert’s answer to Q. 1178 in the Defence

Committee’s Minutes of Evidencc The Deferice Iniplicarions of Westlorid plc H.C. 169.

JULY 19871 REPORTS OF COMMITTEES 495

Wass’ suggestion of an Inspector General,17 who would be an ombudsman of the civil service. The T.C.S.C., however, did not endorse this18 but simply recommended that the Head of the Home Civil Service make it clear that he would be available to hear appeals from officials who had followed his procedures but had not resolved their dilemma^.'^ This was accepted by the Government but only on the understanding that it would apply to fundamental issues of conscience and not to disciplinary or personnel matters. No doubt the Government would have objected to the idea of any external appeals mechanism, echoing the evidence of Sir Robert Armstrong that it would complicate that relationship between the minister and the civil servant.

Under the British constitution the relationship between ministers and their senior officials is important but it is regulated by convention. Its significance rests on the experience of the officials and the fact that they will carry out many tasks on their ministers’ behalf. The safeguard against the misuse of officials is agreement that they should not be used for party political purpoers or to assist ministers to evade their duties and responsibilities. This self- regulation has come under strain; officials have been misused and some officials, believing ministers to be breaching the conventions, have themselves acted disloyally by leaking material. As the T.C.S.C. accept that loyalties are personal, owed directly to the participants and not to the constitution, it follows that they should reiterate adherence to the convention stressing its two way nature. It is suggested that the policing of the convention by an Inspector General could work and would not necessarily complicate the relationship between ministers and officials. It is therefore unfortunate that the sub-committee was overruled on this point.

In dealing with the accountability of ministers to Parliament, the Committee was directed, by some of the witnesses, towards the implications of the Government’s promotion of managerialism within the civil service. In 1982 the Government introduced the Financial Management Initiative (F.M.1.)” which sought to delegate to civil service line managers responsibility for operations and budgets. Thus these managers will be responsible for resources and for the uses to which the resources might be put. Sir Patrick Nairne submitted that the introduction of F.M.I. had caused some “fuzziness” about ministerial responsibility.*l Sir Douglas Wass gave an illustration as to how F.M.I. could affect ministerial responsibility. He thought that on occasions select committees

Ev. p.43-44 also outlined in his article “The Civil Service at the Crossroads” (1985) 56 Po1.Q. at pp.235-38.

I” See the minutes of the T.C.S.C. Report p.xxxviii. l9 fb id . , para. 4.16. *’ Prime Minister and Minister for the Civil Service Efficiency and Effectiveness in the

Civil Service Government Observations on the Third Report from the Treasury and Civil Service Committee Session 1981-2, Cmnd. 8616.

Ev. p.51 Q . 184.

496 THE MODERN LAW REVIEW [Vol. 50

might wish to speak to such civil service managers.” Indeed, it should be noted that since the 1979 reorganisation of select committees on a departmental basis, senior civil servants have been frequent witnesses before the committees explaining their ministers’ policies. The impetus for such direct accountability of officials to Parliament comes from a wish to deal with those who are actually responsible for administration. In his evidence, Johnsonz3 was concerned about (semi) autonomous organisations such as the Manpower Services Commission. If, as he thinks, the trend of giving tasks to such bodies continues, does this not attenuate the thread of ministerial responsibility? In short, is accountability weakened if ministerial responsibility is strictly adhered to when officials’ managerial responsibilities are expanded significantly?

The Committee recommended that “the Government and other interested parties should produce for consideration specific proposals on how the crucial question of accountability should be dealt with in the future.”24 The Government’s response to this, it is suggested, smacks of burying one’s head in the sand. Simply to reiterate the traditional view and to say that delegation to managers involves accountability within departments and causes no conflict with ministers’ external accountability to Parliamentz5 is not good enough. The Government recognised that direct accountability of civil servants to Parliament is (apart from departmental Accounting Officers and the Public Accounts Committee) difficult to reconcile with ministerial responsibility.26 Having recognised a potential problem the Government refuses to accept that F.M.I. could lead to that problem. If the government is correct and F.M.I. does not affect ministerial responsibility, then the desired gains in efficiency may not be realised as ministers could intervene in, and check the work of, their officials and this would be contrary to the logic of delegat i~n.~’

(b) Open Government Given that the genesis of the Armstrong memorandum was the perceived need to provide guidance to civil servants after the Ponting trial, it is not surprising that the T.C.S.C. should devote some attention to open government. No recommendations were made as to the way in which more open government might be achieved, but the T.C.S.C. did not think that the Government had made “a convincing case against some form of Freedom of

22 Ibid., p.35. See also his article op.cif. n.17 at p.230. 2, Ibid., p.175-6. 24 Report para. 3.19.

Response para. 13. Idem.

27 See W. Plowden “What Prospects for the Civil Service?” (1985) 63 Public Administration 393 at p.400 and Johnson op.cil., n.7 at p.430.


Information Act.”28 Nevertheless while they were in favour of more disclosure of official information, they were against “leaking” by civil servants which was intended to frustrate the actions or policies of a minister.

The Committee felt that since section 2 of the Official Secrets Act 1911 is now ~ n e n f o r c e a b l e , ~ ~ the sanction for civil servants who “leak” information should be dismissal or internal disciplinary proceeding^.^^ The Government did not comment directly on this recommendation, but it did state that responsibility for decisions on section 2 prosecutions rests with the Attorney-General qua Law O f f i ~ e r , ~ ’ which therefore suggested that criminal proceedings are not to be ruled out against any erring civil servant.

One of the aspects of the Westland affair which the T.C.S.C. did consider was the role of press and information officers. They suggested a distinction between the presentation and description of policies and their justification and defence and recommended that, if a minister asked a press officer to do more than present and describe policies, then the minister should make a political a p p ~ i n t m e n t . ~ ~ The Government felt that such a distinction was in practice difficult to make and preferred to say that it would be wrong to involve a press officer in the making of party political points about policy.33

It is, perhaps, unsurprising that the T.C.S.C. could not be specific about the implementation of open government. If it came about it would be a radical change and officials would need new guidelines for their new working environment. The reaffirmation of guidelines was the T.C.S.C.’s response to the misuse of a press officer in the Westland affair. If gentlemen’s agreements about the prohibition on the party political use of officials are being breached, does this not call for a re-examination and possibly policing by an Inspector General for the civil service rather than a reminder of the conventional obligations?

(c) The Machinery of Government Both the T.C.S.C. and the Government are opposed to the idea of a “politicised” civil service, and support the traditional ideas of the civil service as permanent, impartial and able to serve governments committed to ‘different policies with equal diligence. Sir John H ~ s k y n s , ~ ~ former special adviser to Mrs. Thatcher, disagrees. In

Report para. 6.5. 29 Ibid., para. 6.11.

Ibid., para. 6.10. ” Response para. 46. 32 Report para. 5.20. ’’ Response para. 29. 34 “Whitehall and Westminster: An Outsider’s View” (1983) 36 Parl.Aff. 137. The

article was originally delivcred as a speech to the Institute of Fiscal Studies in October 1982.


his view radical governments need top officials who are committed to their ministers’ policies. For him political neutrality at the top is not desirable. The contrary, traditional view has been neatly summarised by Lord Bancroft, a former Head of the Home Civil Service: “Conviction politicians certainly: conviction civil servants, no.”35 Unlike her predecessors Mrs. Thatcher has taken an active interest in the appointment of permanent secretaries. Her desire, it is said,3h is to have officials who have a positive “can do” attitude. The civil service grapevine reports that promotion does not come to those who point out difficulties and that this has caused some officials to refrain from giving advice which is against the minister’s views.37

The T.C.S.C. approve of “ministers playing an active role in selecting the key officials who are going to work with them in planning and implementing their p~licies.”~’ The T.C.S.C. seem to be moving towards a new situation which would give ministers more of a committed staff without full scale politicisation of the higher civil service. In addition to a greater role in choosing key officials the T.C.S.C. propose that ministers have a cabinet which would come somewhere between the French version and the current British Private Office.39 The cabinet or Minister’s Policy Unit, as the T.C.S.C. prefer to call it, would contain special advisers recruited from outside the civil service as well as career officials. The aim of such a Policy Unit would be to improve the minister’s control and influence in his department as well as providing him with more information which should enable him to play a greater role in Cabinet decision-making. Currently a minister has help and advice which is directed towards enabling the minister to keep on top of his department and in touch with his party.

Unsurprisingly , the evidence of former permanent secretaries disclosed worries about the impact of such a Policy Unit. If it was like a continental cabinet then, it was said, it could hinder the effectiveness of the Private Office-the “gear box” between ministers and the department, as it was de~cr ibed .~”

The Government grudgingly acquiesced in the recommendation that an experiment to test the Policy Unit in more than one department of State be carried The Government suggested that the T.C.S.C. had imperfectly considered the advice and support which junior ministers can offer to their Secretary of State.

” Ev. p.245. 16 Ibid., p.74 Q. 242 answered by John Ward, General Secretary Association of First

Division Civil Servants. Ibid., pp. 81-82 Q.s 265-7 (Council of Civil Service Unions). Report para. 5.13.

l9 Ibid., paras. 5.28-5.32. 4o Ev. p.48 (Sir Patrick Nairne). For an analysis see P. Nevile-Jones “The Continental

Cabinet System: The Effects Of Transposing It To The United Kingdom” (1983) 54 Pol. 0. 232.

The Government did not propose to take the initiative in such an experiment but interested ministers could discuss the idea with the Prime Minister. Response para. 35.


It is true that the ministerial team may assist the Secretary of State in synthesising the material relating to departmental concerns. But the most interesting idea is that of the Policy Unit, the improvement of collective decision-making in Cabinet by a proper briefing of the Secretary of State. Junior ministers would not have the time to collect and analyse data for such a briefing. Sir Douglas Wass, in the Reith Lectures,42 was also concerned to improve Cabinet although his preferred method was to resuscitate the Central Policy Review Staff and have it brief the Cabinet as a whole, not just the Prime Minister.

The T.C.S.C.3 recommendations that ministers should play an active role in the appointment of key officials and the creation of a Policy Unit tend towards the politicisation of the civil service of which the committee does not approve. Professor Ridley is quite clear that we have moved away from the circumstances in which we could expect civil servants to be permanent, neutral and able to serve governments of not vastly differing i d e ~ l o g i e s . ~ ~ He thinks that the two top grades of permanent and deputy secretary could be political appointments. He draws a distinction between staff and line officials. The role of the staff is to provide the policy advice and the line managers would carry out the implementation of policy. Johnson4 seems to be thinking along similar lines when he distinguishes between political administration and management. The Government’s approach to management leads him to this distinction and he suggests that it could lead to two kinds of accountability. The policy advisers would be within the traditional understanding of ministerial responsibility whereas the managers might be responsible directly to select committees or the National Audit Office.

If, as Dr. Plowden4’ suggests, the civil service changes its view on management so as to upgrade its value in comparison with policy advice, then it might be possible to have a career civil service of managers of public resources, and specialist advisers who were political appointments in cabinets. It is suggested that active ministerial involvement in appointments and Policy Units takes us down that road. If we can think of the civil service Clite as being managers who will be directly responsible for their decisions, the service could continue to attract high quality personnel who wish to play a significant role in the governance of the country.

No doubt this distinction can be shown to break down, that management includes policy advice and that specialists brought in from outside will not know how to run departments or be familiar with the networks within Whitehall. This is part of Sir John Hoskyns’ argument that the Whitehall normative model be

Government and the Governed (London, 1984) pp.35-40.

Ibid., p.176 and in his article op.cir. n.7 at pp.43CL31. 4’ Ev. pp.153-169. Thc submission was written jointly with A. Doig.

‘I Op.cif., at pp.406, 413.


displaced.46 Yet the civil service has changed and will continue to change. Politicisation may yet come; and, indeed, I would suggest, the logic of some of the committee’s recommendations tends that way. The greater involvement of ministers in the appointment of their top officials could lead to the identification of officials with policies so that a change of government could mean replacement of top officials.

Finally, the T.C.S.C. recommended that there should be a single Minister for the Civil Service47 and that the post of Secretary to the Cabinet and Head of the Home Civil Service be ~ e p a r a t e d . ~ ~ The Government responded that the T.C.S.C. seemed to be wanting to revive the Civil Service Department. It had been found to be wholly unsatisfactory because of the divorce of responsibility for civil service pay and manpower from the Treasury’s general responsibility for the central management of e ~ p e n d i t u r e . ~ ~ As for the combined workload of the Cabinet Secretary and Head of Home Civil Service, it need not be unduly burdensome if managed properly.50 The Cabinet Secretary is well placed to be able to advise the Prime Minister on top appointments. As the Government said, on these matters of organisation and management, opinions can differ.51 And morale within the service is a matter, according to the Government, for all of those in government and not the responsibility of any one official or minister.

Accountability Again: The Apparent Departure from the Status Quo

(a) The Government’s Original Instruction In its Response5* to the Defence Committee’s reports on Westland the Government addressed the issue of civil servants as select committee witnesses. The orthodoxy is that civil servants act on their ministers’ instructions and, if the committee is unhappy about an official’s refusal to answer questions following the minister’s instruction, then the committee must tackle the minister.53 If the committee is dissatisfied with a minister the committee may not then require of an official “an accountability to Parliament separate from and overriding his accountability to his Minister.”54 The Government quoted from the Select Committee On Procedures5 which had said that it was inappropriate to seek information from

46 0p.ci t . at p.146. 4’ Report para. 5.38.

Ibid., para. 5.44. 49 Response para. 37.

Ibid., para. 41. 5’ Ibid., para. 37. )* Response (Defence) op.cit. n.4. 53 Ibid., para. 42. s4 Idem. 55 Idem. quoting from First Report from the Select Committee On Procedure Session

1977-78 H.C. 588 at para. 7.20.

JULY 19871 REPORTS OF COMMITTEES 501

the Executive below ministerial level as this would undermine ministerial accountability to the House of Commons.

Select committees, the Government argued, were not suitable for the task of inquiring into or making judgments upon the actions and conduct of individual civil servants.56 The official is constrained by the duty owed to the minister and so may not be able to defend himself or herself. As select committee proceedings are public and privileged the civil servant has no safeguards even though his or her reputation or career may be at risk. The Government concluded its response with the proposed instruction to civil servants giving evidence to select committees that “they should not answer questions which are or appear to be directed at the conduct of themselves or of other named individual servant~.”~’

This caused an uproar amongst the membership of select committees. In the Adjournment Debate upon the Government’s response to the Defence Committee’s reports the Leader of the House gave the assurance that the Government would not make any final decision on the proposed instruction until the T.C.S.C. and the Liaison Committee (L.C.) had an opportunity for comment.58 Their reports were published in December 1986.59

(b) The Select Committees’ Reaction Both committees were clear that the proposed instruction should not be issued.@’ They pointed out that the select committees had the power to send for persons and papers and that ultimately non- compliance with select committees’ requests could lead to the House of Commons holding those guilty of non-compliance to be in contempt.61 They said that the Government was selective in its quotations from the Select Committee On Procedure, whose report had recommended the empowering of select committees by the House to order attendance of ministers.62 The L.C. referred to the significance of the Government’s promotion of managerialism in the civil service through measures such as the F.M.I. In particular, the L. C. instanced Enhanced Responsibility Budgets (E.R.B.) in the Ministry of Defence and stated that there was a need to examine managers about the allocation of resources when E.R.B.s could cover f 3 billion of annual expenditure on defence.63

Response (Defence) para. 44. ” Idem. ’13 October 29, 1986 H.C. Debs. Vol. 103 col. 415-6. ” Ministers and Civil Servants First Report Treasury and Civil Service Commiitee

Session 198687 H.C. 62, Accountability of Ministers and Civil Servants to Select Commiitees of the Hoiise of Commons First Report of the Liaison Commitiee Session 1986-87 H.C. 100.

H.C. 62 para. 2 6 2 7 , H.C. 100 para. 13. 6’ H.C. 62 paras. 10-11, H.C. 100 para. 2.

H.C. 62 para. 13, H.C. 100 para. 17 quoting para. 7.21 of op.cit., n.55. 63 H.C. 100 para. 9.


The L.C. agreedw with the T.C.S.C.’s distinction drawn between actions and conduct of civil servants. Actions were defined as “activities which are carried out on the instructions of, or are consistent with, the policies of the Ministers ~oncerned.”~’ They defined conduct as falling outside the definition of actions and suggested that it could encompass misconduct.M The actions of civil servants are therefore a proper ground of inquiry for select committees as it is within the administration of a department which the committees are charged to e~amine .~ ’ On the other hand inquiring into conduct would be rather more unusual as it could cover misconduct and it is not appropriate for select committees to act as disciplinary bodies.68 It should still be open to select committees to establish the facts if there was reason to believe that an identified official had done something incompatible with the minister’s policy.69

The L.C. also said that in the Westland affair the Defence Committee had sought to interview particular civil servants because ministers had not accounted to the committee. Therefore in such circumstances it is imperative that officials should give evidence rather than be prevented from doing so. The L.C. also wish the Government to undertake that ministers be accountable to the appropriate select ~ommittee.~’

(c) The Modified tnstruction Two months after the T.C.S.C. and the L.C. produced their reports the Government issued its response71 which included the modified supplementary “Guidelines for Officials giving Evidence to Select Committees.’’ The Government noted that there was much common ground between it and the committee^.^^ This common ground now included the distinction, drawn by the committees, between “actions” and “conduct.” Civil servants, subject to ministerial instructions, could answer questions “which seek to establish the facts of what has occurred” but would not answer questions “which seek to assign criticism or blame to individual civil If a committee finds that its inquiries raise matters of “conduct,” then the committee should not pursue

t.i Ibid., para. 10. 65 H.C. 62 para. 15. 66 Idem. c.’ H.C. 100 para. 6.

H.C. 62 para. 26. 69 Idem., H.C. 100 para. 14. ’O H.C. 100 para. 18. ” Accountability of Minisrers and Civil

Report from the Treasury and Civil Service Re ort from the Liaison Committee Session

Ibid. para. 1. l3 Ibid. para. 5 .

Servants Government Respome fo p Commirree Session 1986-87, and to 198687, Cm. 78.

the the

Firsr First

JULY 19871 REPORTS OF COMMI‘ITEES 503

those inquiries but should inform the minister and await the report of his examination of the case.74

If the Government’s acceptance of the actionskonduct dichotomy may be regarded as a retreat, no ground was conceded on the general principle of accountability. The Government reaffirmed its adherence to the traditional view that civil servants are responsible to ministers and ministers account to Parliament.75 The select committees were reminded that they derive their role and powers from the sovereignty of P a ~ l i a m e n t . ~ ~ It was restated that it would not be constitutionally appropriate for select committees, as opposed to the House of Commons, to require the attendance of ministers before select committee^.^^ The Government, however, proposed to continue the practice of undertaking that ministers would co-operate with the committees.’’ Thus if a committee was of the view that a civil servant’s answers to questions were unsatisfactory and this was because of the official’s duty to, or the instructions of, the minister, then “the relevant Departmental Minister should be prepared himself to attend the c ~ m m i t t e e . ” ~ ~ This very careful wording does not impose an absolute obligation of attendance upon a minister.

The main aim of both the original and modified instruction to civil servants was to ensure that, should a situation like Westland recur, the civil servants who were involved would not be able to answer a select committee’s questions. The difficulty with the original wording was that it was too wide, appearing to include “actions” as well as “conduct” within the range of matters barred to the committees. It is now clear that the Government continues to adhere to the traditional view of the arrangements for the accountability of the executive, a view which, as has been suggested, ignores or, at least, considers imperfectly the changes caused by the promotion of managerialism within the civil service. This means that we have indirect and not direct channels of accountability. Just as it is unreal to say that ministers are really in control of their departments because of the delegation carried out through the F.M.I., so it is mistaken to argue that ministers account to Parliament rather than to its select committees. The select committees are the primary means by which ministers are called to account, but as the formal and theoretical power is vested in Parliament this limits the committees’ potential for effective scrutiny. The sanction which bolsters the committees, that of requiring production of papers and attendance of persons, follows a vote of the House of Commons and, accordingly, is outside the committees’ control. If a committee wished to compel attendance

” Ibid. para. 8 . ” Ibid. para. 2 76 Idem. ’’ Ibid. para. 3 .

Ibid. para. 4. 79 Idem.

504 I H E MODERN LAW REVIEW [Vol. 50

by a minister, the vote of backbench M.P.s on the Government’s side of the House would be crucial. In such a situation can it be doubted that these M.P.s would support Party rather than Parliament, given our executive dominated legislature? The possibility of such a clash between select committee and minister seems to ensure that select committees will be denied the power themselves to demand anyone’s attendance, minister or mandarin.

As the real scrutinisers of the executive have limited access to both the real and apparent managers, because effective scrutiny covers both actions and conduct, it is suggested that the T.C.S.C.’s call for new guidelines for accountabilitys” remains valid and urgent. Current circumstances require a reassessment of the arrangements for accountability rather than the Government’s restatement of the traditional and outdated understanding.

Conclusion This series of exchanges between the Government and some of the select committees focused initially upon the relationship between ministers and civil servants but subsequently the accountability of Government to Parliament was highlighted. These topics are linked by the changes in the nature and circumstances of the work of the higher civil service. The senior officials are in the public eye more than before. They are now frequent witnesses before the departmental select committees which conduct the bulk of Parliament’s scrutiny of the Government’s administration. Greater attention is paid to the appointment of mandarins because of Mrs. Thatcher’s active involvement, which is designed to promote those who will enthusiastically implement her Government’s policies. It is not, therefore, surprising that the Government’s commitment to managerialism in the civil service should raise the issue of accountability and, in particular, the idea of officials accounting to select committees. This does violence to the traditional notion of ministerial responsibility, but the Government argued that there was no problem over accountability and reaffirmed ministerial responsibility. The Government invoked ministerial responsibility as part of its reaction to the Westland affair. It underpinned the Government’s proposals to restrict what officials could say to select committees. This was seen by the committees as a curb on their scrutiny of the administration of departments and they forced the Government to modify its proposal. In effect the watchdogs ensured that they were not muzzled but it is clear that they will not be given teeth to deal with either controversial affairs or routine administration.

The T.C.S.C. report on civil servants and ministers was somewhat disappointing when compared with the wealth of evidence submitted

en See n.24 supra.


to the Committee. In turn the Government’s response was disappointing, dismissing most of the T.C.S.C.3 recommendations as either undesirable or impractical. While the T.C.S.C. may not have pointed the way forward boldly, at least the report recognised that reassessment was required of the relationship between ministers and civil servants rather than the restatement made in the Armstrong memorandum and endorsed by the Government. The issues raised in the report are important because under the British constitution much of government is regulated by convention, not law. The relationship between ministers and civil servants is an important factor affecting the tone of government. Therefore when changes in practice occur corresponding adjustments in the constitutional conventions ought to be made. Given that the present Government does not accept that changes in practice pose a problem the T.C.S.C. ought to return to this area in order to promote appropriate corrective action.

BRIAN THOMPSON*

* Lecturer in Law, Univcrsity of Livcrpool.

ministers and mandarins and select committees

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