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.
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 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?
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.
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?
Editor – Understanding Government