October 28, 2020

The Editor Speaks: Why civil servants should be politically neutral

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Colin WilsonwebIn the latest minutes from the Deputy Governor and Chief Officer’s Meeting on the 28th October it revealed HE Governor Helen Kilpatrick had met with COs present there.

She emphasised the importance of being politically neutral and that she expected everyone to perform their duties in such a way that ensures that their political neutrality is not compromised.

The reasons for this policy of civil servants being politically neutral has been laid out in a United Kingdom Freedom of Information Policy Knowledge Base Document titled Issue: Risk to the role and integrity of the Civil Service

I have published extracts from the document. The whole publication can be found at: http://www.ico.org.uk/foikb/FOIPolicyrisktotheroleandintegrityofthecivilservice.htm

Arguments about the risk to the role and integrity of the civil service have been made on the following grounds :

If information were to be released that identified individual civil servants with policies, then co-operation between civil servants and ministers would be lost, leading to poorer quality advice and decision making.

If the advice from, or discussions of, civil servants are disclosed, then politicians will react by seeking advice from other sources or adopting other less formal mechanisms for decision making, thus undermining the role of the civil service.

Disclosure of the role and identity of the civil servant carries the further risk that accountability for decisions might be seen as passing from the minister, the elected representative, answerable to Parliament, to the unelected official.

The weight to be given to such arguments will vary from case to case as discussed below, however, these arguments will often carry little weight and / or have limited application.

Public Identification of civil servants with policies

The argument here is that if information were to be released that identified individual civil servants with policies then this would undermine the impartiality and neutrality of the civil service.  Co-operation and engagement between civil servants and ministers would be lost and the integrity of the civil service would thus be compromised, leading to poorer quality advice and decision making.

Increased use of special advisers  – sofa government  – government by cabal

In broad terms the phrase ‘sofa government’ or ‘government by cabal’ refers to a reliance on political advisers appointed directly by politicians for advice rather the professional, politically neutral, civil service (The term was used in the Butler Report on the Intelligence on the Weapons of Mass Destruction). The suggestion is that if the advice from, or discussions of, civil servants are disclosed, then politicians will react by seeking advice from other sources or adopting other less formal mechanisms for decision making, thus undermining the role of the civil service.

In the DfES Tribunal case the Tribunal referred to Lord Butler’s description of ‘sofa government’ as “ the increase in influence of special political advisors, working independently of senior civil servants and free of public scrutiny, supplanting and undermining the normal processes of policy-making.“ (para 31).  This danger was “forcefully highlighted by both Lord Turnbull and Mr Britton, supported by quotations from cabinet ministers from the present and former administrations.” (para 31).  Mr Britton “warned the Tribunal with a particular vigour of the danger of more “sofa” government” (para 36).

The Tribunal’s response to these arguments was given at paragraph 82 of its decision as follows; “We recognise the dangers of increasing “sofa government” or “government by cabal” as it was termed by Mr Britton. The use of political advisors rather than career civil servants goes back at least to Churchill and represents a growing trend, lamented by oppositions of whichever political complexion.  Whether it is likely to accelerate if there is a greater risk of disclosure of the dealing of civil servants with each other and with ministers we do not feel confident to predict.  It will certainly not be curbed by any decision of ours. “

Accountability seen to pass from minister to official

The argument here was first expressed at Tribunal in the DfES case.  Lord Turnbull argued (at para 33) that  “Disclosure of the role and identity of the civil servant carried the further risk that accountability for decisions might be seen as passing from the minister, the elected representative, answerable to Parliament, to the unelected official. “

The Tribunal responded to this argument at paragraph 84 of its decision stating: “We recognise the importance of maintaining the constitutional position that Ministers, not civil servants, are answerable to Parliament and public for the actions of their department. We also recognise that officials should be able to have robust and honest discussions with their ministers without fear that such frank discussions will make them a political football with possible adverse consequences for their careers.  As we have already said, that is not, of itself an argument for withholding the names of civil servants but the wider impact point may require consideration in some cases. “

At paragraph 75 the Tribunal had already stated that :

“The most senior officials are frequently identified before select committees, putting forward their department’s position whether or not it is their own.  “,  and that

“On other hand, there may be good reason in some cases for withholding the names of more junior civil servants who would never expect their roles to be exposed to public gaze.  These are questions to be decided on the particular facts, not by blanket policy.” , and that

“A blanket policy of refusing to disclose the names of civil servants wherever they appear in departmental records cannot be justified because in many cases disclosure will do no harm to anyone……..There must be a specific reason for omitting the name of the official where the document is otherwise disclosable.”

It should be remembered that the relevance of these arguments in relation to the section 35 public interest test, is the extent to which the role and integrity of the civil service would be undermined by accountability for government policy and political decisions being seen as passing from minister to official.  Whilst fairness to the individual civil servant may be relevant from a section 40 FOIA or DPA perspective, the focus here is the public interest in maintaining the constitutional position that Ministers rather than civil servants are accountable to Parliament for Government Policy or political decisions.  The full “wider impact” argument would be that if civil servants rather than ministers become seen to be accountable for government policy or political decisions then the political neutrality of the civil service and the constitutional position of ministerial accountability are undermined, leading to a less effective policy making or decision making process.

In light of this, the DfES comments shouldn’t be taken to mean that civil servants have no accountability at all. In the case of MOD v the ICO & Evans (a section 36 case), MOD argued that civil servants, as distinct from Ministers, are not accountable to the public, and relied on the DfES judgment to support its position (para 60). The Tribunal in this case accepted that as a matter of constitutional principle the concept is correct, but was clear that, “Questions of competing public interests raise issues which of necessity go beyond pure considerations of constitutional accountability. Those persons who expend public money must in general terms be expected to stand up and account for the activities they carry out on doing so ”

In “How to be a Civil Servant” by Martin Stanley *  (link provided below) the author states that  “Civil Servants are accountable upwards through audit and Parliamentary scrutiny, and outwards through transparency and openness to stakeholders and the public at large.”

“How to be a civil servant” can be found at: http://www.civilservant.org.uk/accountability.shtml

So now we all know why civil servants should be politically neutral!

 

 

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Comments

  1. It should not be acceptable for those of us already privileged by our birth into a middle-to-upper class family, to believe that it is enough that we’re ‘working hard’ towards our private sector careers. Working all day at a desk job, earning money, and always yearning for more upward mobility should not mean we abandon our inclination to discuss events/issues and understand the reason behind them critically. And even, god forbid, play a part in spreading awareness or making a difference.

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