20 September 2013

Since the passage of the Constitutional Reform and Governance Act 2010, the Civil Service has been based in primary legislation rather than prerogative powers. But how distinctive is this compared to legislation elsewhere? A comparison of four countries – the United Kingdom, New Zealand, Australia, and Canada – published by the Institute for Government show that the UK’s light-touch approach is not the only option.

Legislation can embed change and establish norms of expected behaviour. Northcote and Trevelyan argued in their seminal report on the Civil Service in 1854 that overcoming the ‘powerful interests’ of the status quo needed ‘the force of law’. Their recommendation was ignored until 2010, but elsewhere – such as in New Zealand – legislation has been used to drive through public sector reforms and embed a new system.

On the flipside, legislation can also be deployed to prevent change. Supporters of the Constitutional Reform and Governance Act 2010 sought to entrench civil service values in legislation. All four countries require in law that a set of civil service values and a code of conduct should be set out. In Australia, the text itself is in primary legislation – meaning any change at all requires parliamentary approval.

The relationship between ministers and the Civil Service is less clearly codified. By convention in the UK there is no constitutional separation between ministers and their officials. The roles taken on by permanent secretaries therefore change in response to different ministerial personalities, priorities, styles of working and interest.

We often accept this as inevitable, but legislation in New Zealand and Australia sets out the roles and responsibilities of department heads more clearly. New Zealand clarifies management of the department as the permanent head’s responsibility, while Australian legislation emphasises that department heads are responsible ‘under the Agency Minister’. Accountability is clearer. Canada joins the UK in only codifying one small but vital part of the job: the accounting officer individual accountability to Parliament for the use of public money.

Of course, you cannot legislate away the complexities of the relationship between permanent secretary and secretary of state. But the British preference for ambiguity should not be sacrosanct. The three other systems we looked at have more prescriptive and detailed civil service legislation, but are still agile and effective public services. For example, New Zealand and Australia – where much more of the structure and process of the Civil Service is prescribed by law – were recently ranked higher than the UK in a new study assessing the ability of countries to respond to global change.

Setting out key relationships in legislation can help embed a shared view of where power and accountability reside in the system. This can be helpful, but currently these are contentious issues in the UK. Further civil service legislation seems unlikely and unadvisable unless and until there is greater consensus.
For example, the instability of the Head of the Civil Service role may be symptomatic of a wider uncertainty about the future direction of the civil service. Not only is the role not entrenched in legislation, but neither are there strong conventions about the nature of the role. It can be changed on the Prime Minister’s whim. This contrasts with New Zealand, where the powers of the independent State Services Commissioner are being strengthened to enable him to lead a more corporate and unified public service. He has been given the legal levers to do this – clarifying his power and responsibility.

The instability of the UK system has been further illustrated by part of the legislation which has proved important since 2010: the statutory independence of the Civil Service Commission, which regulates appointments to the civil service. In 2012 the Government had announced its intention to allow ministers to choose their permanent secretary from a shortlist. However, the Commission made plain that it would not permit such a system, relying on its new statutory power to define the principle of ‘merit’ in such a way as to exclude ministerial choice. Even the Secretary of State who oversaw the legislation – Jack Straw MP – told us he did not realise this would be the outcome of his own legislation.

The Government is currently implementing its civil service reform agenda. When so many of the civil service organisations and accountability arrangements are in flux, a minimal approach to legislation is probably correct.

In due course, however, it may be worth considering which elements of the Whitehall system could be more firmly entrenched. Effective and well-written legislation can be a helpful device for clarifying accountability – and reducing the scope for tinkering at the expense of lasting reform.

Yet ultimately legislation can only assist, and not replace, the willingness of civil service leaders – both political and official – to be clear and open about the scope of their powers and responsibilities. Such openness is a vital ingredient for clarifying accountability in central government, whether or not it is then placed in legislation.

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