ukcivilservant

Articles about the UK Civil Service and Regulation

Avoid double negatives wherever it is not impossible to do so

The above instruction is taken from the wonderfully quirky Drafting Guidance issued by the Office of Parliamentary Counsel.

The purpose of this short blog is to draw attention to that guidance, and to recommend that those who are interested in the effective use of the English language should read at least parts 1 and 2. (And I hope that this paragraph responds effectively to this injunction in para 1.19 of the guidance: Get to the point as quickly as you can.)

Other memorable instructions include:

  • While it is not our job to spice things up, we are failing our readers if we produce text that is impenetrable or unnecessarily turgid.
  • Legislation should speak firmly but not shout.
  • While brevity may be good, brusqueness is not.

I was also pleased to see that Office policy is to avoid the use of the legislative “shall”.

I read the guidance as it was mentioned in a blog by Joshua Rozenberg about gender-neutral drafting. The guide’s discussion of such drafting is particularly interesting, and topical.

You can read the guidance here.

Martin Stanley
Editor – Understanding Government

English Devolution (and The Mystery of the Disappearing Speech)

England has one of the most centralised systems of government in the world. And yet, ever since 1997, every government has promised more devolution.  This blog looks back at what has actually happened and summarises the present unsatisfactory state of play.

In short …

Labour delivered genuinely devolved government in Scotland, Wales and Northern Ireland and introduced a Mayor and Assembly for London but achieved little else south of the border.

The subsequent Coalition and Conservative Governments entered into a whirl of activity based around local areas negotiating individual “Deals” with central government for greater control over key policy areas.  But although some powers have been passed down from central government, they often come with limitations on their use and, with some exceptions, do not include the power to raise revenue.  The majority of funding continues to come from central grants that can be withdrawn/modified at ministerial discretion.   And recent spats with the likes of Andy Burnham have reminded ministers of the political dangers of creating regional power bases.

The result is that local government in England is now a surely unsustainable patchwork of different governance models and powers.  Whitehall retains tight control, and a White Paper on Devolution in England appears to have been shelved.  The debate looks increasingly likely to be wrapped into a bigger discussion about the future of the Union.

In more detail …

Labour’s regional agenda

Apart from the London Mayor and Assembly, the 1997-2010 Labour Government left England largely unchanged. Labour was much more concerned about improving central government decision making than in empowering local government.

The previous Conservative Administration had already created a network of Government Offices (GOs) in the nine English regions to decentralise and join up central government decision making.  (You can read a ‘lessons learned’ account of the program here.)

Labour created Regional Development Agencies (RDAs) to sit alongside the GOs and charged them with developing Regional Economic Strategies.  Outside London, Labour also created Regional Assemblies, which were voluntary partnerships between local government and “social and economic partners”, and promised to make them directly elected in due course with a range of powers over economic and planning issues. Legislation was introduced in 2003 but the rejection of an Assembly for the North East in a referendum in the following year brought devolution to a halt.  (Dominic Cummings played a leading role in the campaign against the Assembly.) 

Assemblies were then replaced by Local Authority Leaders Boards. These no longer included other partners and had joint responsibility with the RDAs for signing off new integrated regional strategies, which brought together economic and spatial issues.

Insofar as Labour addressed sub regional issues, they did so through the mechanisms of Local Strategic Partnerships (LSPs), Local Area Agreements and Multi Area Agreements. LSPs involved local government working with other partners “to improve the quality of life in an area and deliver public services more effectively”. Targets were negotiated with central government (generally through the GOs) as a part of the local agreements

The move to combined authorities

From the middle of its period in power, Labour came under increasing pressure from the major cities – led by Manchester – for a greater role in economic development and other areas such as skills and transport.  RDAs began to focus more of their activity on cities, and the government introduced legislation in 2009 to allow the creation of Combined Authorities, These allowed groups of neighbouring local authorities to come together and share responsibilities and powers over a range of services. As such, they effectively recreated the Metropolitan Counties which had been abolished in 1986, and arguably laid the ground for much of what was to follow.  Note, though, that no power was transferred out of Westminster.

The Coalition and Local Enterprise Partnerships

The Coalition stripped away Labour’s regional infrastructure, abolishing GOs (and so removing Whitehall’s regional ‘eyes and ears’), RDAs and LSPs, Then, rather than give economic development responsibilities to local government, it replaced RDAs with Local Enterprise Partnerships (LEPs).

LEPs are voluntary non statutory bodies bringing together LAs and the private sector to promote economic development. There are 39 LEPs covering the whole of England. Because their boundaries are set to reflect “functional economic areas” they are generally organised on a different geographic basis to local government and also have an unclear relationship with the latter since they must be chaired by, and have at least half of their members drawn from, the private sector.  Following the publication of Lord Heseltine’s report No Stone Unturned in 2012, LEPs were charged with developing Strategic Economic Plans to use as the basis of negotiating “Growth Deals” with government from Local Growth Fund. Details are here

City Deals, Devolution Deals and Mayoral Combined Authorities

Alongside the discussions with the LEPs, the Coalition began negotiations with major cities on a series of 26 Deals that went beyond the purely economic focus of Growth Deals. As Nick Clegg said at the time, the idea was to move “away from a one-size-fits-all model towards individual city deals”

To further complicate the picture, having approved the formation of the first Combined Authority – in Greater Manchester (GM) in 2011- the Coalition began negotiations about devolving further powers (including spatial planning, health and transport) in exchange for a directly elected Mayor. This “Devolution Deal” – generally known as “Devo Manc” – was concluded in November 2014 and led to the creation of other similar Mayoral Combined Authorities, again on the basis of bilateral negotiations. As part of this agenda, Metro Mayors were given statutory powers in 2016

There are currently 8 Mayoral Combined Authorities with a further two agreed in principle. (See this report by the Institute for Government.)  All include an agreement on devolved responsibility for substantial aspects of transport, skills training and economic development.  Some also include housing and planning, business support, employment support and health and/or social care. 

The limitation of the freedoms negotiated in these Devolution Deals is illustrated by two examples, both from Greater Manchester. The first was when HMG withdrew £68m of funding from the GM Combined Authority when the latter reduced its housing targets as part of developing the Greater Manchester Spatial Plan. The second was the very public disagreement between the Mayor (Andy Burnham) and the Government over the amount of support available to businesses in GM as a result of Government imposed Covid restrictions. The Government’s response – a threat to negotiate support packages with individual local authorities in GM – was also instructive.

Civil Service Jobs

Although the Government has undertaken to move some Treasury and other jobs (though not necessarily current officials) out of London, it remains to be seen whether any power and influence accompanies them.  It appears to have no interest in learning the lesson from Government Offices (or, for that matter, from RDAs) about the importance of bringing different Departments together to break down silo modes of thinking. Nor is there any sign that they intend to follow up on Lord Heseltine’s suggestion in No Stone Unturned that relocations should be used to build more strategic capacity in local government.

Delayed White Papers and Disappearing Ministerial Speeches

Local government in England is now a patchwork of different governance models and powers – with a bias towards city regions with an elected Mayor – which does not look sustainable.   Levelling up has not yet developed beyond being a slogan.  City Deals sit alongside Devolution Deals and Growth Deals with much overlap between content, geography and governance. And a recent report pointed out there are now 349 Local Authorities and Combined Authorities with economic powers, sitting alongside 39 LEPs which also have economic powers but with different geographies and lines of accountability.  Moreover, post-2010 austerity means that many LAs have lost the capacity to work outside their statutory responsibilities.

It is also increasingly clear that in some areas – for example transport, environment and planning – there is the need to reinstate at least part of the regional apparatus put in place by Labour.  Recent reports by both IPPR and the  UK2070 Commiission have argued for four new democratically accountable bodies covering the North, the Midlands, the South West and the wider South East.

Michael Gove in his Ditchley Lecture back in July offered an insight into Government thinking on the importance of elected Mayors when he said “we need to look at how we can develop an even more thoughtful approach to devolution, to urban leadership and to allowing communities to take back more control of the policies that matter to them. One of the glories of the United States is that there are fifty Governors, all of whom can be public policy innovators”.

The then Minister, Simon Clarke, went even further in a widely reported speech around the same time when he explicitly linked future funding and powers to a reorganisation of local government in England into unitaries and Combined Authorities, all with elected Mayors“This September, the government will … be publishing the Devolution and Local Recovery White Paper…which will lay a clear path for levelling up every region of our country.  The White Paper establishes the framework to fundamentally rewire the role of the state at all levels.”

But it seems that ministers began to realise that giving people like Andy Burnham a voice (even without giving them resources) can cause acute political difficulty.  The Local Government Chronicle reported that most senior ministers had gone cold on the devolution agenda.  There is no sign of the White Paper.  And Mr Clarke’s speech mysteriously disappeared from Government websites(You can however read it here.)

All in all, it is hard to identify any real progress since 1969 when Harold Wilson said, in reference to the Redcliffe Maud report, “It is my hope that the reorganisation of local government will provide an opportunity and the incentive …..for a fresh attack on (this) problem of central financial control”

David Higham

(This guest blog by David Higham (@oldtrotter) was first published by the Constitution Society.)

The Worst Management Fads

The Financial Times’ Lucy Kellaway wrote numerous very perceptive columns about the idiocy of much modern management advice.  Here is some of the best of her writing:-

“Harder, by far, than picking the best management ideas of all time is picking the worst. I can think of no other area of expertise to which the word “fad” attaches itself so naturally. No one talks much of economics fads, or accounting fads, but there is something about the word “management” that means the word “fad” is never far away.

In the 20 years that I have been writing about these things, I have seen so many come and go that whittling the list down to the 10 most dismal, most damaging or most daft management fads of all time has been exceptionally challenging.                 

However, here are the ones that, in my view, merit inclusion. The list is in no particular order.

1) Emotional Intelligence. This idea, made popular by Daniel Goleman in 1995 and still very much in vogue almost 20 years later, says that people who can empathise with others do better. It is a heartwarming theory and it would be awfully nice if the world were like this. Alas, the most cursory look around any normal-ish enterprise should be enough to assure us it isn’t. The longevity of this fad tells us a great deal about the power of wishful thinking.

2) Management by Walking Around. This was invented at Hewlett-Packard in the 1970s and then much favoured by the great guru, Tom Peters. I suppose I can vaguely see the point of it, if the alternative is having managers who never poke their noses out of their offices. However, to expect constant wandering around to have any important effect on anything – apart from paranoia levels of staff and the shoe leather of managers – strikes me as gloriously wrong-headed.

3) Six Sigma. This one is so complicated and contains so many tricky equations that it can only be understood by the most expensive and highly specialised management consultants. As far as I can understand it, Six Sigma is all about isolating and eliminating the causes of defects. There is nothing wrong with that in itself; it makes perfect sense. What is wrong, however, apart from the over-complication of it all, is the fad’s pretentious paraphernalia involving managers becoming “black belts” and “green belts”. It was made big in the mid-1980s at Motorola, but other companies that enthusiastically espoused it quickly became bogged down in endless meetings and found they increasingly had trouble distinguishing wood from trees. It didn’t help their bottom lines either: there was one study that showed the companies that espoused it most religiously trailed the S&P 500 index most markedly.

4) Core Competency. This was an ugly term for something blindingly obvious: that companies ought to concentrate on doing things that they are good at. It is a great idea in theory. But it has two flaws that can make it very dangerous. First, companies often don’t have the first idea what they are good at. And second, there is no point in being good at something if the world doesn’t want it any more. Think of Kodak.

5) There is no “I” in Team. The teamwork obsession started about 20 years ago and is still very much alive. In real life, work is not done by teams, it is done by individuals, a word that does, indeed, contain not one, but three, “I”s.

6) Embracing Mistakes. This is also a fad that was introduced about a decade ago, and is currently at peak popularity. The idea is that only by making mistakes do we learn, and that therefore people should be encouraged to make lots of them. This is one of the nuttiest ideas of all. Excessive fear of getting things wrong can be paralysing, but moderate fear is surely healthy and necessary as it helps ensure that most of the time we get things broadly right.

7) Business Process Re-engineering. This was the craze of the early 1990s, touted by various people including engineer and business writer Michael Hammer. It was all about businesses tearing up their old ways of doing things to make them more efficient. Actually what it turned out to be about was giving lots of work to management consultants, and then firing half the workforce. Thus it got a very bad name and mercifully fell out of fashion.

8) Fun by fiat. Actually it wasn’t really called that. But my name exposes the ridiculous insistence by managers that workers will be more productive if there is a playground slide in reception. The idea originated from two shaven-headed Swedes, Kjell Nordström and Jonas Ridderstråle, who in 2000 wrote a book called Funky Business espousing coolness as competitive advantage. Some internet companies still appear to believe in the doctrine, but it can only be a matter of time.

9) Matrix Management. This became big in the 1980s and was possibly the worst way of organising people that anyone has yet come up with. It meant that people with a speciality were all bundled together and then parcelled out ad hoc to work on different projects. The upshot was that everyone had several different bosses and it made office life one long turf battle.

10) Authentic Leadership. Or the idea that everyone must be true to themselves. This idea is not only unspecific, it is sentimental and unrealistic – the whole point of being a manager is that we get to be someone else. However, I was amused to read a very pertinent line on a coaching website: “Authenticity isn’t a fad – it’s a solution.”

Laziness

This leads naturally to the second white-is-the-new-black theory, which says laziness can be a good thing in a boss. This idea is peddled in Richard Koch’s latest book, The 80/20 Manager.  In it he writes: “Lazy managers achieve exceptional results. Only by being economical with your energy and attention can you make it count when it matters.” He goes on to say that sloth is such a gift that those managers not fortunate enough to have been born with it must work to acquire it.

Mr Koch is right to point out that most of our work is wasted effort; but the trouble is that we have to crunch through the wasted bits in order to get to the worthwhile ones. In real life there are few lazy bosses, since if you are an idle slug you tend not to get promoted. The few that I have met were incompetent, much disliked and generally sacked before long.

Annual Appraisals

I recently saw a statistic saying 825m hours a year are spent conducting annual appraisals. Yet despite this outpouring of effort, I have yet to come across a single person who has changed for the better as a result of one of them.

A system in which people only get evaluated once a year, and then in a way that makes it very hard for anyone to say anything honest, is quite remarkably useless. Yet never are they more useless than when a junior person is judging one more senior, as then the scope for honesty is virtually zero. As almost no one tells the truth, the rare person brave or daft enough to do so is deemed so out of kilter with the corporate culture that their views are instantly discounted.

Tendering

New bidders for tech contracts often can’t see/understand problems and hence bid lower than established Cos that can – then run into trouble delivering.

Corporate Diplomacy

Second, my experience of big corporations is that flattery is only one of many skills required to do well. Others include diplomacy, hard work, conviviality, deviousness, ambition, ruthlessness and talent.

Large companies are complicated places where people who are emotionally sophisticated can end up doing very well indeed. The traits required for advancement are a mixture of good and bad; and while some companies are more dysfunctional than others, all inevitably require compromises to be made. Egos need to be managed, which inevitably means tiptoeing works better than barging. Yet to dismiss all the skill required in this delicate game as phoney brown-nosing is to miss the point entirely.

It’s OK to Make Mistakes

Last week the chief executive of UBS told all the bankers who work for him that henceforth it was OK for them to make mistakes. A culture in which everyone was petrified of taking risks, Sergio Ermotti said, was not in the interests of the bank or its clients.

How mature, came the response. How refreshing to hear a bank chief acknowledge that risks need to be taken and honest mistakes will sometimes be made.

But it wasn’t mature. It was mad.

In a limited sort of way what he said made sense. The main point about risks is that they are risky — and risky things have a way of going wrong. Places where people get a bollocking for making the slightest slip tend not to be where the best decisions are made.

Yet the answer is not to tell bankers that it is fine to screw up. Mistakes are never OK. And they are particularly un-OK in banking. If I were a UBS client, I would be exceedingly displeased to learn that the bankers to whom I was handing over a king’s ransom were being taught that errors were perfectly acceptable.

This mistake-loving nonsense is an export from Silicon Valley, where “fail fast and fail often” is what passes for wisdom. Errors have been elevated to such a level that to get something wrong is spoken of as more admirable than getting it right.”

Martin Stanley
Editor – Understanding Policy Making

PS – Further Reading

I have distilled my many years of management experience into Leading and Managing Policy Teams. This advice is relevant to those involved in policy-making within the private and not-for-profit sectors, as well as the public sector.

MS

The Inspector’s Dilemma

[This blog was first published by Cambridge University’s Bennett Institute for Public Policy.]

The modern world is full of inspectorates of various kinds, all with subtly different roles and responsibilities.  But they all face the same dilemma.  The more they give helpful advice, and the more they offer opinions, the more they become responsible for the decisions of their regulated entities.

One version of the dilemma arose in the early days of the railways, and led to a great debate between George Stephenson and Isambard Kingdom Brunel.  Stephenson argued for government oversight of new railways, fearing ‘wild and visionary schemes being tried at the great danger of injury or loss of life to the public’.  Brunel opposed any form of government interference and reckoned that his enginemen did not ‘obtain the slightest knowledge of instructions by reading them’.

The resultant Regulation of Railways Act 1840 met Stephenson’s concerns by establishing the Railways Inspectorate which had wide powers of inspection.  But Brunel’s concerns ensured that the Inspectorate had no other powers.  They could do nothing beyond deploying their powers of persuasion if they found that a new railway had not been built to a safe standard.  The government of the day felt that powers to enforce Inspectors’ recommendations would result in the unwelcome (to the government) result that the management of the railways would be taken out of the hands of the companies’ directors. Responsibility for safety would instead be placed fairly and squarely upon the Inspectorate and the Board  of Trade.

This compromise faced one of its most severe tests in the Tay Bridge disaster.  The bridge had been inspected by a Railway Inspector in 1878 when he supervised a successful crossing by six engines all coupled together  – but he had expressed concern about the effect of strong winds when a train was crossing.  In the event, a fierce gale in December 1879 destroyed the bridge and a crossing train, killing over 70 passengers.

It will have been little consolation to the passengers’ relatives that the subsequent Board of Inquiry concluded that the Board of Trade could not and should not be held responsible for the designs of railway structures.  As a practical matter, the Board would have to employ large numbers of qualified staff, duplicating those employed by the industry.  But also “… the result would be to check and control the enterprise which has done so much for this country , and to substitute for the real responsibility which rests on the railway engineer the unreal and elusive responsibility of a public office … to say nothing of the necessary evils of double management.”

Avoidable serious accidents continued until railway safety regulation was at last recognised as inadequate following the privatisation of the railway industry, and the Southall, Ladbroke Grove and Hatfield accidents.  Here is an extract from an HSE report (emphasis added):

“[The Inspectorate] has followed a consensus-seeking approach … with a reluctance to use formal enforcement powers.  The ‘light touch’ approach was derived during a political climate of deregulation … Such an approach is less appropriate for an industry which is more driven by commercial imperatives and in which levels of co-operation and trust appear to be declining.”[1]

And so we come to another 72 deaths following the refurbishment of Grenfell Tower by an industry very much “driven by commercial imperatives and in which levels of co-operation and trust appear to be declining”.  It is already striking that the contractors and sub-contractors claim not to have any responsibility for ensuring that their insulation and cladding systems complied with building regulations.  Rydon told the Inquiry that it was content to rely on building control inspectors to check for fire safety issues and “we did regard it as building control’s responsibility to raise concerns”[2].  And Harley Facades said its view was that it was for Building Control to check that products complied with regulations[3] .

What can we learn from these stories? 

First, although inspectorates can encourage good management, a lot depends on how they go about their task.  By ‘passing’ a practice or standard as acceptable, they can too easily (though inadvertently) reduce the ambition, innovation, responsibility and accountability of managers whose practices they have ‘passed’.  “As long as ‘they’ (the inspectors) are happy, why should we worry?”  This problem was exacerbated, in the case of Grenfell, by the fact that local authority Building Control was competing for work with private sector inspectors.

It follows that when regulators carry out effectiveness reviews they should ensure that those they regulate clearly understand their inalienable responsibility for ensuring the safety of those who use their products and services. 

The second lesson, surely, is that regulators must be properly funded.  Most businesses may not need frequent inspections, but the occasional criminals and ‘chancers’ can do huge harm – and will do so unless faced with energetic prosecution and/or enforcement.  It is worrying, therefore, that recent governments have reduced the resources available to regulatory bodies, typically by around 50% in real terms.[4] 

Reductions in regulatory etc. budgets was prepared by unchecked.uk

These savings looked like false economies even before Grenfell Tower.  Politicians have subsequently been distracted by Brexit and COVID.  Let’s hope that, as normality reappears, there is a sensible review of the resources available to these vital organisations. 

Martin Stanley
Editor, Understanding Government and Understanding Regulation


[1] The information about railway regulation is taken from Ian Prosser and David Keay’s history of the Railway Inspectorate.
[2] https://www.insidehousing.co.uk/news/news/rydon-planned-to-pocket-savings-from-grenfell-tower-cladding-switch-inquiry-hears-67231
[3] https://www.insidehousing.co.uk/news/news/grenfell-cladding-subcontractor-did-not-check-drawings-for-compliance-67822
[4] The chart showing reductions in regulatory etc. budgets was prepared by unchecked.uk .

A Useful Staff Survey

I confess that I am sceptical of the value of most ‘People Surveys’ and the like. The civil service survey has 74 questions! Does it really provides reliable and useful information for individual managers?

If you share these concerns then I offer this very simple questionnaire for managers to copy and/or recommend. I felt that its blunt questions gave me a very useful summary of colleagues’ views. Analyses by grade and Section (management unit) worked well in enabling me to spot significant problems.

(I used Framework – a small consultancy that no longer exists – to ensure anonymity. )

Martin Stanley
Editor – Understanding Government

Boris Johnson and the Turbot

The wonderful Mary Beard has suggested that the chef may have been trolling our Prime Minister when serving turbot at his dinner with Ursula von der Leyen. For those, like me, who were mystified by this suggestion I offer the following extracts from Juvenal’s Fourth Satire.

I will leave it to others to wonder who, if any, in Mr Johnson’s present Cabinet might stand in for the main characters in this story of corruption and failure to speak truth to power.

A dish was lacking large enough for the enormous turbot.

So the nobles, the Emperor hated, were summoned to a council, displaying in their faces the pallor of that vast and terrible friendship. 

The first to snatch up his cloak and hasten there (as the Liburnian slave was calling: ‘Hurry, he’s seated now’) was Plotius Pegasus, slave – what else were prefects then, after all?

The aged and amiable Quintus Crispus was there as well, a gentle soul, with a character to match his eloquence.  How much more useful a courtier he’d have been to that king of nations, lands and seas, if only he’d been allowed, while serving that ruinous plague, to condemn cruelty and offer honourable advice!

But what’s more deaf than the ear of a tyrant? 

On his whim hangs the fate of a friend, who simply wants to speak of rain, heat, or the poor spring weather.

Thus, Crispus never extended his arms against the flood, not being the kind of citizen to dare to offer his thoughts freely, nor one to put his life at risk for the sake of truth.

That’s how he managed eighty summers and as many winters, protected by such armour even in that court.

No less in appearance, despite his humble background came Rubrius Gallus, guilty of an old unmentionable offence, yet more perverse than a pathic scribbling satire.

Montanus’s belly was present too, with weighty paunch;

And Crispinus drenched in that morning’s perfume, scarcely less odorous than a funeral cortege or two; … in company with the deadly Lucius Catullus Messalinus, inflamed with passion for a girl he had never seen.  He’d be a great and notable monster even in our day, a blind sycophant, and a terrifying hired accomplice, worthy to be one of those beggars blowing obsequious kisses at the wheels of your carriage on the hill at Aricia.

‘So what do you recommend? Should we chop it in half?’  ‘Spare it such outrage’ cried Montanus, ‘have a deep dish made, thin-sided, but large enough for its vast dimensions.   We need a prompt and mighty potter, like Prometheus.  Ready the wheel and the clay swiftly, and from this time forth, let there be potters, Caesar, among your servants.’

The proposal, worthy of the man, won the day. He’d known the excesses of the old Imperium, and Nero’s late hours. … No one today has greater knowledge where food’s concerned: at first bite he could tell if the oysters came from Circeii, the Lucrine Lake, or the Kentish Coast by Richborough, or at a glance, a sea-urchin’s native shore.

They rose, the council over, the nobles ordered to leave, whom the great leader had called to his Alban fortress, forced to hasten there, gathered together in surprise, as though he’d news of the Chatti or fierce Sygambri, as though a disturbing letter had arrived on frantic wings, sent swiftly from some far-distant region of the world.

Oh, if only he’d chosen to devote the whole of that age, given to savagery, to such trivia, instead of depriving Rome of great and illustrious spirits, with impunity, and none to take revenge!

Yet he perished as soon as the working man began to fear him:

It did for him, to be drenched in blood.

Martin Stanley

Editor – Understanding Government

‘Levelling Up’ – Lessons from Government Offices for the Regions

David Higham has published a very timely history and ‘lessons learned’ analysis of Government Offices for the Regions (b. 1994, d. 2011).

GOs were the most ambitious attempt by any post war government to tackle the centralised and departmentalised traditions of the civil service.  But they haven’t featured at all in the current debate levelling up debate.  This is a remarkable omission because GOs – like the current government’s plans for the Teesside economic campus etc. – were always about improving central government decision making, rather than devolving power to local areas.

GOs were formed initially from the regional offices of four big departments. Later, the post-1997 Labour Government tasked them with working alongside bodies such as Regional Development Agencies.  Later still, major cities such as Manchester increasingly urged a city-based rather than a regional approach.  Sounds familiar? 

GOs were finally abolished by the 2010- Conservative/Lib Dem coalition, supposedly because they were “no longer necessary … given the Government’s commitment to genuine decentralisation and devolution of power”.

David’s paper is a great read with the added benefit that he draws attention to several important learning points, and key lessons for the current government.  You can find it here.

Martin Stanley

Editor – Understanding Government

Should civil servants follow instructions to act unlawfully?

[This blog first appeared on the new Constitution Society website. I have been somewhat surprised that no-one has yet challenged my conclusions.]

The UK Internal Market Bill (IMB) continues to draw much criticism and opposition as it makes its way through Parliament – but what questions do its drafting and possible implementation raise for civil servants?  

Clause 45 of the Bill controversially provides that “The following [various regulations etc.] have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent …”. Three main questions arise from this.

  1. Should civil servants have refused to help Ministers draft this legislation?
  2. In the unlikely event that the legislation is enacted and comes into force, should civil servants refuse to enforce the regulations that are ‘incompatible’ with international law?
  3. What should happen to a civil servant who believes that the answer to either or both questions is ‘Yes!’, but the Attorney General and Cabinet Secretary decree that the answer is ‘No’?

Let’s start by looking at the Civil Service Code which summarises civil servants’ ethical responsibilities. It records that the service’s core values include integrity and honesty – but the key requirement is that officials must “comply with the law”. Unfortunately it doesn’t say which law.

Under the Constitutional Reform and Governance (CRaG) Act, the code forms part of civil servants’ terms and conditions  Civil servants may (but are not obliged to) complain to the Civil Service Commission if they feel that they are being required to act in a way which conflicts with the code. The Commission may then make recommendations about how the matter should be resolved, but the government is not required to comply with the Commission’s advice.

So, to Question 1: Should civil servants have refused to help Ministers draft this legislation? 

The short answer is ‘No!” Officials are not failing to comply with any law or any other duty when engaged in drafting the legislation. 

Question 2, however, is harder: Should civil servants refuse to enforce any regulations that are “incompatible” with international law?

I would defer to a well-reasoned legal opinion to the contrary, but I suggest that the answer is ‘Yes’ – they should refuse. They are required to “comply with the law” and that means every law, not just most of them. I fail to see how enforcing regulations that are incompatible with international law can be said to be complying with the law.

As an aside, I can imagine legislation which might force officials to break international law. “[Designated civil servants] may be required by their Secretary of State to enforce [specified regulations] and [the Civil Service Code] shall not apply to this instruction”. That’s not legal drafting but you get the idea.

On to Question 3: 

First, what might have happened to officials reluctant to help draft the IMB? They could have asked to be transferred to other duties but their managers would have been under no obligation to agree to such a request and, indeed, may have had difficulty finding someone else to do it. The official must then continue to do the work – or resign, as did Treasury Solicitor Jonathan Jones.

So then what should happen to civil servants who believe that they are being asked to work other than in compliance with international law, but the Cabinet Secretary, advised (arm-twisted?) by the Attorney General, tells them that domestic law (as in the new Internal Market Act) takes precedence? The Civil Service Commission might have a key advisory role but, absent that, I suspect that we are in employment law territory. 

Mandarins would in the past have expressed sympathy for those whose consciences caused them to refuse certain duties, and would have tried hard to find them other work, or offer honourable retirements. But the CRaG Act has given officials a statutory protection that was not previously available. Civil servants can now persuasively argue that their terms and conditions of employment incorporate the requirement to comply with all laws, and dare anyone to discipline them. 

Much would then depend on the numbers. A small number could perhaps be transferred to other equally valued positions. But it would be hard to quash a significant rebellion. Senior officials might point out that resignation was an option, but why would anyone want to take that route? Resignation is an unrealistic option for many staff with family and financial responsibilities, especially in the middle of the current economic crisis. And I suspect that Employment Tribunals and the courts would be sympathetic. 

Finally, here are some other interesting scenarios to consider:

  • Would a ministerial direction help? I think not. Directions are extra-statutory and (although they can be used to authorise expenditure outwith a department’s powers) they can surely not be used to contravene clear statutory or international law. 
  • What should happen if ministers, in the absence of an agreement with the EU, ordered HMRC to fail to collect import duties so as to speed flows through Dover and reduce food prices. As I understand it, this would be a clear breach of WTO treaties which forbid the application of favourable tariffs in the absence of free trade agreements. Unless there were covering domestic legislation, I would expect HMRC to refuse to obey such an order. 
  • How should the civil service in Scotland respond to Scottish legislation purporting to disapply UK law? Following my logic, they should ignore it and continue to apply UK law north of the border. This in turn suggests that it could be unwise for Whitehall ministers to argue (to the contrary) that domestic legislation (in the form of the IMB) can neuter international law, for that would appear to create an unwelcome precedent for use by devolved legislators. (Note, by the way, that the Scottish courts are even now being asked to rule on whether an independence referendum would require UK government permission to proceed under Section 30 of the Scotland Act.)

Martin Stanley

Editor – Understanding Government

Boris Johnson Added Bullying to the Ministerial Code

Newly appointed Prime Ministers update and re-issue the Ministerial Code during the first few weeks of their period in office. They then usually repeat this exercise on being re-elected.

All recent codes have included this general provision:

Ministers should be professional in their working relationships with the Civil Service and treat all those with whom they come into contact with consideration and respect.

All recent codes have also been accompanied by a short foreword. Theresa May’s first (2016) foreword made no reference to the way that ministers should treat officials in the workplace. But her second, January 2018, foreword contained this interesting paragraph (emphasis added):

Parliament and Whitehall are special places in our democracy, but they are also places of work too, and exactly the same standards and norms should govern them as govern any other workplace. We need to establish a new culture of respect at the centre of our public life: one in which everyone can feel confident that they are working in a safe and secure environment.

Boris Johnson went considerably further in 2019 when he included this paragraph in his foreword (emphasis added):

There must be no bullying and no harassment; no leaking; no breach of collective responsibility. No misuse of taxpayer money and no actual or perceived conflicts of interest. The precious principles of public life enshrined in this document – integrity, objectivity, accountability, transparency, honesty and leadership in the public interest – must be honoured at all times; as must the political impartiality of our much admired civil service.

All these documents may be seen in the Understanding the Civil Service online library.

Martin Stanley

Editor – Understanding Government

Four Constitutional Questions for the New Cabinet Secretary

The Constitution Society (whose new website was launched today) published this blog a few weeks ago. As constitutional issues seem increasingly prominent both sides of the Atlantic, I am republishing it here for those that missed it first time around.

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Simon Case, the new Cabinet Secretary, faces four significant constitutional questions.  His responses will have repercussions for years to come.

First, he must decide whether to encourage the creation of a Strategic Centre within Whitehall despite its consequences for Cabinet government.  We have already seen Downing Street take control of all government data, and require all Special Advisers to report to Dominic Cummings.  And surely there seems a lot to be said for the idea of the Prime Minister having a powerful team around him to help monitor progress on his key priorities, to intervene when progress has stalled, and make those all-important trade-offs which will, if unaddressed, lead to endless and fruitless debate?  (Social care is a good example.)

The problem with the current settlement was neatly encapsulated when Prime Minister Johnson asked Mr Case’s predecessor, Mark Sedwill, who was in charge of implementing a COVID-19 delivery plan. One observer recalled: “There was just silence.  Mr. Johnson looked at Sedwill and said, ‘Is it you?’  Sedwill replied, ‘No, I think it’s you, Prime Minister.’”  This exchange must seem extraordinary to anyone outside Whitehall, but it reflected the old reality of Cabinet government.  It was a system, not a command structure.  The Cabinet was meant to be a team of (almost) equals.  Each team member took responsibility when the ball, so to speak, was passed to them.  But there was no organising mind, least of all in the Cabinet Office, whose main function was to resolve disputes between the players. 

This has sometimes worked well during the COVID-19 crisis.  No-one needed to tell the Chancellor and his officials how to (or indeed whether to) organise a furlough scheme.  Nor did they need to tell Matt Hancock and his officials how to manage the NHS so as to cope with the first spike in COVID deaths.  But it all clearly fell apart when it came to lockdown and related policies

But a strategic centre greatly increases the number of decisions that need to be made by the Prime Minister assisted by those around him/her. Those decisions have to be made quickly and on the basis of less detailed information and more limited briefing than is available to departmental ministers. Centralised decision making is therefore much more likely to be made on the basis of instinct – or for purely political reasons.

And centralisation inevitably and intentionally boosts the power of the Prime Minister and reduces the power and influence of other members of the Cabinet – and their Permanent Secretaries – and so maybe even the Cabinet Secretary himself.  Previous PMs have been accused of acting presidentially, of course, but none of them supplemented their personal power base with significant institutional reform.  Case’s attitude to this will be crucial.

(The House of Commons Library have written an excellent – and much more detailed – introduction to the Centre of Government. You can find it here.)

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The new Cabinet Secretary’s second constitutional question will concern Speaking Truth to Power.  To what extent will he encourage Permanent Secretaries to challenge ministerial policy decisions?  Paradoxically, the ground for such increased questioning was laid by Francis Maude and others many years ago.   It is less clear that members of the present Cabinet welcome challenge to the same extent.

Feasibility Directions were introduced under Maude, then Minister for the Cabinet Office, in 2011.  Under Treasury guidance newly-issued at this time officials were instructed to require ministers to ‘direct’ them to proceed if officials ‘doubted that the government had the ability to carry out the proposed policy effectively and credibly.’  Whitehall watchers awaited the first Feasibility Direction with great interest.  Would it be seen as evidence, yet again, of ministers’ unrealistic expectations, driven by short term political considerations? Or would it be evidence, once more, of the need for ministers to be able to override their cautious, unimaginative and unambitious civil servants?

Permanent Secretaries ducked the question.  The first Feasibility Direction did not appear until 2018 when a minister took responsibility for the risks associated with accelerated introduction of new ‘T Level’ exams.   Why was this? A 2016 National Audit Office report asserted that Accounting Officers ‘appear to lack confidence to challenge ministers where they have concerns about the feasibility or value for money of new policies or decisions, not least because standing up to ministers is seen as damaging to a civil servant’s career prospects’.   And the retiring head of the National Audit Office, Sir Amyas Morse, announced in 2019 that he was concerned that the balance of power between ministers and senior civil servants had shifted, with officials increasingly unable to challenge bad decisions.

“There’s pressure to do things too quickly or to announce very high-profile world-beating projects. Allowing ministers to have a say in the appointment of senior officials has led to a position where ministers have a great deal of power over their civil servants. That’s unfortunate. They’re intelligent people. They understand that the consequences of disagreeing with a minister are likely to be pretty ugly.”

Senior Responsible Officers were a similar Whitehall innovation which was slow to take off.  SROs were from 2013 to be personally accountable, including to Parliament, for the delivery of major projects.  It was hoped that SROs would be forced to challenge ministers if a major project were being established without proper resources etc.   But the results have been patchy.  Some ministers and senior officials have learned to work well together within these new structures.  But it’s not clear that they have led to the intended revolution in project planning.  And parliamentarians seem, so far, to have taken very little interest in their new direct reports.

Crucially, however, SROs have recently been strengthened by the introduction of Accounting Officer Assessments .  The Treasury announced in 2017 that ‘Accounting Officers should personally approve, in advance, all significant initiatives, policies, programmes and projects’ and so be able to provide assurance to Parliament that those activities provide value for money, are feasible, and so on.  The assessments of initiatives and policies was, however, to be significantly less transparent than the assessment of programmes and projects.

 The guidance says (emphasis added):  ‘The analysis should consider the issue in the round. A ministerial policy decision cannot be sufficient justification alone for proceeding. The accounting officer’s job is to try to reconcile ministers’ policy objectives with the standards for use of public funds.[The assessment is] not usually published in full, but is shared with the Treasury.   A summary of the key points [of an] assessment of a major project should however be prepared and published.’

AO assessments on the face of it do real damage to the old rule that ‘officials advise, ministers decide’.  Again, though, they have as yet to make much of an impact. They did not appear to deter the number of ill-thought-announcements during the initial response to the COVID-19.  Optimists, however, would point out that officials are not obliged to prepare an AO Assessment immediately a minister indulges in some blue sky thinking.  But will this let-out allow officials to prevaricate far too long before offering serious challenge to ministers?  

And AO Policy Assessments will not automatically be shared with Parliament.  So it could all come down to the energy and inquisitiveness of MPs and Select Committees.  Will they – perhaps supported by the National Audit Office and the media – start insisting on seeing AO Policy Assessments?  If so, we could see a significant improvement in the way this country is governed – but only if Simon Case and his colleagues use their new powers and prepare the assessments in the first place.

The test may well come in this year’s Spending Review.  Faced with yet further cuts, departmental ministers will try to avoid either cutting existing programs or prioritising their wish list.  Mistakes will be made.  Will the new Cabinet Secretary support Permanent Secretaries who, despite being on five-year contracts, assert that ‘a ministerial policy decision cannot be sufficient justification alone for proceeding’ with a poorly funded programme – or will he leave them in a position where they have to choose between offering this resistance or prioritising their careers?

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Five-year contracts, also introduced by Francis Maude, lie behind that new Cabinet Secretary’s involvement in a third constitutional issue: ministerial dismissal of Permanent Secretaries.

It is (or was) a firm rule that ministers cannot dismiss civil servants that displease them or that offer unwelcome advice.  If a minister cannot stand a particular official, the latter is usually moved to a different job.  Sometimes, though, this is impossible.  Other Secretaries of State may refuse to accept what they see as a tainted official, or there may be no available post which is senior enough within the Permanent Secretary pecking order.  The Permanent Secretary must then leave the civil service.

Such departures do not necessarily reflect badly on either the Secretary of State or the official.  Cabinet Ministers are entitled to work with someone that they find reasonably congenial.  And no-one gets to be a Permanent Secretary unless they have shown that they can work well, over a long career, with a large number and variety of Ministers of all political persuasions.  The departure is therefore usually pretty amicable, at least on the surface.

It was therefore concerning that the Johnson government has overseen the distinctly un-amicable loss of several Permanent Secretaries in 2020.  Apart from those mentioned elsewhere in this blog, there were other important factors in the background to this highly unusual development. 

One was that the senior ranks of the Civil Service will have been concerned about the way in which ministers were approaching the Brexit and post-Brexit negotiations following the 2016 referendum.  Their speaking truth to power will probably not have gone down at all well.  Another will have been the fact that Whitehall, as well as many public services, encountered Brexit and COVID-19 following years of staff cuts and lack of investment driven by austerity.  The whole of the UK public sector lacked resilience and spare capacity.  Its performance in some areas may very well have been poor, but ministers were hardly likely to realise that they and their predecessors were to blame for this.  In addition, of course, the government mishandled the early (and some of the later) stages of the COVID-19 crisis and will have wanted to deflect criticism away from ministers.

The first Permanent Secretary to go was Philip Rutnam at the Home Office who fell out so badly with Home Secretary Priti Patel that he refused compensation and instead claimed to have been unfairly and constructively dismissed because of her bullying.  He claimed that there had been a “vicious and orchestrated” campaign against him in the department.  He was followed by Richard Heaton who left the Ministry of Justice unexpectedly in the summer, even though his Secretary of State wanted to keep him following the end of his initial five-year appointment period. 

The manner of Jonathan Slater’s subsequent dismissal then caused little short of outrage amongst many observers as he was evicted from the Education Department with only five days’ notice.  Although this followed the department’s very poor handling of the education aspects of the COVID-19 crisis, it was widely assumed that the Prime Minister had required someone to fall on their sword but ordained that that someone was not to be the Cabinet Minister Gavin Williamson – a reversal of the normal acceptance of responsibility in these circumstances.

Last, but not least, Cabinet Secretary Mark Sedwill left in September following acres of press reports that he was to be sacked.  The Telegraph said that Downing Street regarded Sir Mark as “too much of a Europhile and establishment figure” to be in post through planned Whitehall reforms. 

The departures of Richard Heaton and Jonathan Slater were so clearly ordered by the Prime Minister as to call into question my assertion, above, that ‘ministers cannot dismiss civil servants’. The sackings may have been designed to show Permanent Secretaries that they have no job security and they should watch their step, though – as in all the best authoritarian systems – watching their step may well not save them.

It was, of course, also the case that the outgoing Cabinet Secretary was in no position to object to the two dismissals, as he was himself serving his notice period. It remains to be seen whether Simon Case will choose to withstand pressure from the Prime Minister and his aides, or whether he was chosen for his willingness to bend to Prime-Ministerial will.

4

The fourth constitutional question for Sir Simon is whether to resist Dominic Cummings’s and colleagues’ pivot away from good policy process towards data driven decision-making.

Mr Cummings’s thesis is that the government needs more policy advisers who have an ‘Odyssean education’ alongside assorted ‘weirdos’ and data scientists.  He claimed to be concerned at ‘the elevation of the courtier-fixer at the expense of the thinker and manager’ – though it is intriguing Simon Case is surely the archetypal courtier-fixer.  But if he really wants to reform British policy-making then he would be better advised to follow his own advice and start by learning from the wealth of data and analysis provided by those who have studied UK government over many decades.  It would point him in a quite different direction.

For a start, he would learn that better data and analysis would not have helped successive governments tackle the many ‘wicked issues’ such as how best to fund Social Care. 

Nor would it have helped various Chancellors withstand pressure to abandon the Fuel Duty Escalator (despite concerns about Climate Change) and overdue property revaluations (which have led to much unfair local taxation).  And I cannot imagine that a mission control centre could have stopped the ministerial panic that has characterised much of their response to Covid-19 – not to mention their handing of this year’s A-Levels.

The reasons why ministers make so many poor decisions lie much deeper than lack of data and out-of-touch officials.  Report after report, and book after book, have reached very similar conclusions.  They point to:

  • Weak parliamentary oversight including weak scrutiny of legislation.
  • Ineffective checks and balances within the executive (including the Cabinet) which allow mistakes to be made and encourage groupthink.
  • Political hyperactivism – when politicians individually and collectively gain ‘points’ from making new initiatives almost for their own sakes.
  • High turnover of both ministers and senior officials.
  • A culture of haste and determination to ‘deliver’.
  • Over-willingness to recreate policies and organisations rather than seek continuous improvement …
  • all exacerbated by failure to learn from past mistakes.

Sadly, therefore, much of this analysis suggests that the Johnson/Cummings partnership is heading in entirely the wrong direction as it strengthens the centre, emasculates the Cabinet, and ignores Parliament.  If the experts are to be believed, this will lead to less scrutiny, less debate, more groupthink and more mistakes.  But who needs experts?

Martin Stanley

Editor – Understanding Government

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