Special adviser appointments and the constitution

The UK government includes both a large body of impartial civil servants and a smaller number of politically appointed advisers (known as ‘special advisers’). The civil service is a permanent body, appointed on merit and not meant to undertake explicitly political duties in government. Special advisers are formally temporary civil servants, but they are not bound by the same restrictions as other civil servants on impartiality and objectivity and so are able to undertake more political roles.  

To maintain the separation of roles, codes of conduct governing how each may act have been published by successive governments. Since 2010, the distinctions between the two and restrictions on how special advisers work have been established in primary legislation.  

What is the origin of civil service impartiality?

The 1854 Northcote-Trevelyan report set out that the civil service should be appointed on merit (as opposed to patronage), there should be exams to ensure they are recruited on merit, and that they should not undertake political roles.  

Since the 2010 Constitutional Reform and Governance Act (CRAG), the management of the civil service and requirement for a civil service code of conduct has been set out in legislation. CRAG also provided in law for the existence of the civil service commission to oversee the appointment of civil servants, and to uphold the civil service code. But it also made provision for the minister for the civil service (the prime minister by precedent) to ‘manage’ the civil service and gave them responsibility for publishing the code of conduct.   

CRAG set out that the code must include requirement for civil servants to carry out their duties with integrity, honesty, objectivity and impartiality. It also set out that special advisers are not bound by the objectivity and impartiality clause.  

Appointment of special advisers

CRAG also set out that special advisers are selected for appointment by the minister they will serve, but their appointment must be approved by the prime minister. It also sets out that special advisers will lose their post when their appointing minister leaves office, or at a general election, unless they are reappointed or have express permission to stay in post after the dissolution of parliament. CRAG also provides for a special adviser code of conduct.

Although governments have often set some limits on the number of special advisers – limiting the number per department or stating an intention to cap the overall number below the previous government – there is no formal, legal limit on the numbers of special advisers and even informal limits have usually been ignored in practice.

What other mechanisms are there for making appointments?

As well as special advisers, departments can make direct appointments in other ways. According to the Civil Service Commission’s recruitment principles, ‘in some circumstances it may be right to allow appointments to be made outside of the principle of selection on merit on the basis of fair and open competition. Any such exception should not undermine this fundamental principle’.  ²² https://civilservicecommission.independent.gov.uk/wp-content/uploads/2019/03/02a_RECRUITMENT-PRINCIPLES-April-2018-FINAL-.pdf

Exceptions include:  

• Temporary appointments when a person is appointed as a civil servant for a fixed period of up to two years, to meet short term needs where ‘either the urgency of the need or the short duration of the role make a full competition impracticable or disproportionate’.  
   
• Departments may also make appointments for inward secondments from outside the civil service, again for a maximum of two years.  
   
• Departments can also employ people, again for a maximum of two years where they have ‘highly specialist skills that are not readily available within the Civil Service’.
   
• Former civil servants can be reemployed within five years of leaving the civil service. They may not be brought back at a higher grade than the one they were on when they left.  
   
• The prior approval of the commission is required for any such appointments above SCS pay band 2 (directors and above to permanent secretary level).  

These methods can be used to bring in policy advisers (PADs) to support ministers, civil servants who bring a specific policy expertise. They have at times, including in summer 2024 after the Labour government came into office, been used to appoint individuals who might otherwise have been made special advisers. If they are made a civil servant, they are bound by the civil service code and rules around what work they can and cannot undertake.  

What are the rules for how special advisers work with officials?

Since the creation of special advisers from the early 1960s, but even with their predecessor roles before then, there has sometimes been both real and perceived tension between direct political appointments and the boundary of their role and that of the permanent, impartial, civil service. This has included how they work together day-to-day, but also the wider question of how political appointments affect the principles surrounding the impartiality of the civil service.  

Since 2010, the rules around how spads and civil servants work together have been set formally through CRAG. A specific clause  ²³ https://www.legislation.gov.uk/ukpga/2010/25/section/8  in CRAG bans special advisers from:

• Authorising the expenditure of public funds.  
   
• Exercising any power in relation to the management of any part of the civil service of the state (except in managing other special advisers); 
   
• Exercising any power under the royal prerogative.

The Cabinet Manual and the Special Adviser code repeat the guidance in CRAG on the limits placed on special advisers in terms of their work with civil servants. Both add that spads must not ask civil servants to do anything that ‘is inconsistent with their obligations under the Civil Service Code’, i.e. the obligations around ‘integrity, honesty, objectivity and impartiality’. As spads are also bound by the same obligations on integrity and honesty, the key difference between the two is that spads must not ask civil servants to do anything that contravenes objectivity and impartiality, but spads can do that themselves.

Have there been exceptions to these rules?

The Civil Service (Amendment) Order in Council 1997, passed shortly after the Labour government came to power, provided that up to a maximum of three special advisers in No10 could exercise management control over permanent civil servants. It was revoked by Gordon Brown in 2007. By allowing for an exception, this recognised the principle that special advisers could not otherwise manage civil servants. This principle was then explicitly and legally set out in CRAG in 2010.  

What do the rules around how special advisers and officials work together mean in practice?

The Code and the Cabinet Manual imply that while spads cannot directly manage officials, they can task civil servants, within the Code’s provisions.  

The special adviser code says that special advisers should be ‘fully integrated into the functioning of government’.  ²⁴ Special advisers: code of conduct (Nov2024 version), p2 https://www.gov.uk/government/publications/special-advisers-code-of-conduct last accessed 290525 It also says that special advisers should ‘work closely with the ministerial team and with other civil servants’ and sets out how this should work in practice:

• Convey to officials ministers’ views, instructions and priorities, including on issues of presentation. In doing so, they must take account of any priorities ministers have set;  
   
• Request officials to prepare and provide information and data, including internal analyses and papers; 
   
• Hold meetings with officials to discuss the advice being put to ministers; 
   
• Review and comment on – but not suppress or supplant – advice being prepared for ministers by civil servants.

The code also states that they can ‘give direction to such civil servants in relation to their day-to-day work for them, and their views should be sought as an input to performance appraisals on the basis that these are written by other civil servants’. There is also a clear prohibition on tasking civil servants to do anything that would breach their civil service code of conduct.

The CRAG provision that spads should not undertake ‘management of the civil service’ has therefore, by precedent, been taken to refer to line management aspects of the civil service.  

How have these rules evolved?

The earliest boundaries between spad roles and civil servants are hard to track, based on personal experiences of those doing the roles and those who worked with them. The first legal reference to special advisers came in 1978.  ²⁵ 1978 Order in Council, cited in Blick, A, People who live in the dark, (2004), pp. 224  But it was only in the 1990s that their role began to be defined in official terms. In 1991 another Order in Council set out that such advisers were appointed 'only for the purpose of providing advice',  ²⁶ Civil Service Order in Council 1991, cited in https://www.ucl.ac.uk/constitution-unit/sites/constitution-unit/files/special_advisers_and_public_allegations_of_misconduct_1997_-_2013.pdf  thereby defining them separately from civil servants and separating their role from anything directing civil servants. In 1995, another Order in Council made it obligatory for special advisers to abide by the civil service code, except in terms of political impartiality and ability to serve future administrations.  

Over the same period, the role of special advisers came to be more formally defined, and in doing so placed emphasis in a different direction: how they would serve ministers and the powers they needed to do so. In 1995, the draft model of appointment for special advisers set out that their duties would be 'laid down by their ministers', reinforcing the idea that individual ministers could shape advisers, within boundaries, to their own needs. In the late 1990s, other developments including the first Ministerial Code and a Model Contract for Special Advisers in 1997, which focused on the need to avoid their political role straying into the unethical, ensuring public funds could not be used for party political means and that spads cannot campaign politically during working hours.  

The evolution of spads and the codes of conduct surrounding them has therefore evolved to try and reconcile the needs of ministers in why they want to have spads, alongside the desire to ensure a distinction with the civil service that protects their role. The 2011 Cabinet Manual adds context, explaining that one of the benefits of special advisers is that it further reinforces ‘the political impartiality of the permanent civil service by distinguishing the source of political advice and support’.  ²⁷ The Cabinet Manual, p.58 https://assets.publishing.service.gov.uk/media/5a79d5d7e5274a18ba50f2b6/cabinet-manual.pdf

Who oversees these rules?

Senior officials and ministers in departments should ensure that civil servants and special advisers are adhering to the civil service and special adviser codes, including how they interact, making sure that special advisers do not make inappropriate requests of officials and that officials do not misinterpret rules about what is permissible. As head of the civil service and minister for the civil service respectively, the cabinet secretary and prime minister have overall responsibility.  

The Civil Service Commission works proactively with departments to ensure the codes and recruitment principles are adhered to and promoted. However, complaints or problems are expected to be resolved within departments through ‘normal channels’ where possible. The Commission receives complaints if a civil servant is dissatisfied with how the complaint has been resolved and may at times receive a complaint directly. They also produce annual reports on the work of the commission generally and on the outcome of code and recruitment complaints.  ²⁸ https://civilservicecommission.independent.gov.uk/publications/annual-reports/