The regulator of post-employment restrictions has demonstrated its independence but the circus around Sue Gray’s new job shows a system in need of an overhaul, argue Jordan Urban and Alex Thomas
After months of fury, whether real or confected, from government ministers and plenty of angst from senior civil servants, the Advisory Committee on Business Appointments (ACOBA) has decided to recommend Sue Gray serves a six-month waiting period before taking up her post as Keir Starmer’s new chief of staff. The prime minister has accepted the ruling, so Gray will be able to take up her new role in September.
It is welcome that ACOBA has demonstrated its independence and resisted a punitive approach, and that the prime minister has not overruled the committee. But Gray’s move to the Labour Party has exposed long-standing flaws in the way that the movement of civil servants into and out of government is regulated. It is impossible to conclude that this process has worked well.
Civil servants must be able to move to political jobs with reasonable safeguards
Gray’s choice to accept a role as Labour’s chief of staff was controversial, but not unprecedented. Since 1997, three No.10 chiefs of staff – the most senior political aide in government – have had a civil service background. Recently Lord Frost made the transition from civil servant to special adviser and then cabinet minister and Conservative peer (albeit after a gap); Siobhan Benita resigned from the Department of Health to twice run for London mayor, first as an independent and then as a Liberal Democrat; and former civil servant Alicia Kearns is now a senior Conservative MP and chair of the Foreign Affairs Select Committee.
But Gray was in a much more senior role when she left the civil service, and had occupied much more politically sensitive positions. Gray’s previous job as the Cabinet Office’s head of propriety and ethics – and her continued involvement in that area, including through the ‘partygate’ investigation – does make this an unusual case. Now that she has made the transition to former employee, it is legitimate for the government to seek to protect its interests, just as any private company would do. But Gray, and any other senior civil servant who wants a path into party politics, also has the right to expect that the system regulating movement into and out of government works better than it currently does.
Much of the debate has been about the extent of Gray’s contact with the Labour Party while still a civil servant. Reports suggest that the government believe she broke the civil service code. 4 Beth Rigby, Twitter, 30 June 2023, https://twitter.com/BethRigby/status/1674780789006036993 But the lack of clarity over what is and is not acceptable put her in a difficult position. Clearly to take a job with Labour she had to talk to them first. But who was Gray meant to inform when contact was first made – presumably the permanent secretary in her department or the cabinet secretary? What were their obligations to pass on – or not – that information to ministers and the prime minister? Should Gray have recused herself from certain activities while in discussions with Labour – and how would she have done that while maintaining reasonable confidentiality about the recruitment process? ACOBA found “no evidence” that she had acted improperly or favoured Labour in her official duties. But it is still unsatisfactory that there was no established route for her to follow when seeking the chief of staff job.
It is also unfair to Gray that the snail-like ACOBA process forced her to wait months to get clarity on her future while a psychodrama about her employment status played out in public. And, although it is welcome that both Gray and the Labour Party committed to abiding by ACOBA’s judgement, it undermines the system that they – or others – can choose to ignore the rules without sanction.
The system regulating conflicts of interest must be overhauled
The Gray saga should be a catalyst for an overhaul. To regulate post-employment activity the government should introduce a system of ‘restrictive covenants’ – agreements written into civil servants’ contracts that set out how restrictions on their activity will work after they leave the civil service. Recommended by the Boardman Review in response to the Lex Greensill affair (and in previous Institute work), such rules would provide certainty to all parties ahead of time. If the government feels strongly that a former head of propriety and ethics should have to wait longer than six months before taking on a new role, it is only fair that this is a known condition of them taking on the role in the first place.
Meanwhile, there needs to be better oversight of civil servants’ activities while in post and a route for civil servants to report contact with opposition parties over potential jobs. A clear expectation should be established that senior civil servants who have contact with the opposition in this way should, in strict confidence, inform the Civil Service Commission and agree private restrictions on their activity while discussions are ongoing.
A system that allows for properly regulated movement between the civil service and political parties benefits good government
One of the reasons a civil service background has come to be seen as a helpful qualification for a No.10 chief of staff is because it brings with it knowledge and experience of public administration. If Labour wins the next election, Sue Gray will bring rare expertise to her post.
Similarly, an understanding of politics can be useful for civil servants. Democratic government is not a purely technocratic exercise and an appreciation of the political constraints acting on ministers is vital.
Properly regulated movement between a permanent, impartial civil service and political parties is beneficial to good government. But the civil service needs to retain the confidence of politicians of all stripes and officials must be treated fairly when making the switch. Where movement happens it needs to be on clearly understood terms and with appropriate constraints. The Sue Gray saga has shown a system unfit for purpose.