ukcivilservant

Articles about the UK Civil Service and Regulation

The Civil Service v. Boris Johnson?

It has been suggested (28 August) that “We are reaching the point where the civil service must consider putting its stewardship of the country ahead of service to the government of the day”.

I do not recognise this concept.

Statute law and convention both require the civil service to serve the administration as it is duly constituted for the time being, whatever its political complexion.

Civil Servants’ duties etc. are summarised in The Armstrong Memorandum, the Constitutional Reform and Governance Act 2010 and the Civil Service Code.

The Armstrong Memorandum says that:

  • Civil servants are servants of the Crown. For all practical purposes the Crown in this context means and is represented by the Government of the day. … The Civil Service as such has no constitutional personality or responsibility separate from the duly constituted Government of the day.
  • The determination of policy is the responsibility of the Minister (within the convention of collective responsibility of the whole Government for the decisions and actions of every member of it). In the determination of policy the civil servant has no constitutional responsibility or role distinct from that of the Minister.

The Constitutional Reform etc. Act provides that

  • there should be a Civil Service Code which “must require civil servants … to carry out their duties for the assistance of the administration as it is duly constituted for the time being, whatever its political complexion”.

I cannot see that the above texts offer any possibility that civil servants have a duty of stewardship of the country, nor can I think of an example of such stewardship being exercised.

For completeness, the Act does also say that

  • In exercising his power to manage the civil service, the Minister for the Civil Service shall have regard to the need to ensure that civil servants who advise Ministers are aware of the constitutional significance of Parliament and of the conventions governing the relationship between Parliament and Her Majesty’s Government.

This phrase is repeated, but not expanded upon, in the Civil Service Code which, under the same Act, “forms part of the terms and conditions of service of any civil servant covered by the code.”

This formulation perhaps offers a glimmer of hope to those who would have the civil service defy the Johnson government.  But it does not persuade me.

All in all, therefore, we are in such a constitutional bind at the moment that I cannot think of any way in which any form of civil service intervention would make matters better.

Postscripts

  1. Former Head of the Civil Service, Bob Kerslake, suggested on the Today Programme on 29 August that the current Cabinet Secretary, Mark Sedwill, and his senior colleagues should resign. But they would need to be replaced, and it is hard to imagine that the Prime Minister would accept successors who were anything other than keen to do his bidding.
  2. And the IfG’s Catherine Haddon has noted that:- “There has been long debate about preserving their ability to serve future governments and advising on constitution and whether both constitutes some kind of ‘guardianship’ role. But that has always been about things within their purview and the proceedings of Parliament are not.”
  3. Civil servants – inc. those working in No.10 and for the Leader of the House – should have been consulted on, and will readily have given advice on, whether Ministers’ proposals were consistent with constitutional arrangements.

 

Martin Stanley
Editor  – Understanding Government websites … including …
Understanding the Civil Service

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Civil Servants Now Free to Promote Brexit

Keen Brexiteers  have long believed that the senior civil service has been trying to scupper Brexit.  More recently, keen Remainers have become concerned that civil servants have become too willing to promote Brexit ‘propaganda’.  The key change, I suspect, is that civil servants are – in some ways – finding it much easier to work with the Johnson government that with its predecessor.  They should certainly not be criticised for promoting the new government’s Brexit policies.

Civil Servants have three quite distinct roles:

  1. First, they speak truth to power, offering private, honest, advice to Ministers before the latter make policy decisions.
  2. But then, once Ministers have made those decisions, civil servants are expected to help Ministers promote and defend their policies, even if officials advised against them.
  3. Finally, officials are responsible for delivery, implementing Ministers’ decisions on the ground and drafting the necessary legislation.

Whether ‘promoting and defending’ or ‘delivering’, officials must put their doubts (and inconvenient facts) on one side and proactively seek to deliver Ministers objectives, however controversial and unpopular the underlying policy decisions.

Prior to 24 July, it was far from clear when the UK was intended to leave the EU, nor on what terms.  The Cabinet was badly split and there was in particular zero clarity about whether ‘No Deal’ was a realistic outcome.  Officials were roundly criticised for being insufficiently wedded to the Brexit project, whereas the truth was that they were still giving advice (which undoubtedly included worries about ‘No Deal in particular) and were also reflecting the different messages coming from different Cabinet Ministers.

It is much easier now.  The government’s policy is clear.  All Ministers now say that Brexit is a good thing, and that we need to plan and prepare to leave on 31 October with or without a deal.  Civil servants are expected enthusiastically to promote those policies. The only constraints are that civil servants cannot communicate untruths, nor criticise political opponents.

Martin Stanley
Editor  Understanding Government

Dominic Cummings & the Civil Service

Dominic Cummings’ arrival in No. 10 is said to be very bad news for the civil service.  I am not so sure.

If you dig a little deeper, according to Oliver Wright:

[Dominic Cummings] at the Dept for Education inspired extraordinary loyalty, certainly among fellow believers but also from some civil servants who were as frustrated by Whitehall bureaucracy as they were. As one person in the [Education] department put it: “The caricature of Dom as the villain is wrong. He accepted argument and evidence. He wasn’t dogmatic. And a lot of senior civil servants responded to it as a breath of fresh air. When he fell out with people it was over whether things could be done differently.”  Another former colleague said that he had never worked for someone “more inspiring or oddly charismatic”.

David Allen Green commented as follows:

[Dominic Cummings’] candour and openness was striking.  …  There is none of the platitudes and evasions of the politicians of both sides on Brexit.

Looking forward, many would surely applaud Mr Cummings’ reported wish to foment a cultural revolution in Whitehall so that civil servants (and Ministers) have a more instinctive grasp of the importance of science, technology and productivity for the UK’s future.  And I suspect that a majority of civil servants would share some or all of Mr Cummings’ reported criticisms of the Whitehall machine:

  • its inability to respond quickly to errors;
  • the “slow, confused” and usually non-existent feedback;
  • the “priority movers” system that sees incompetent staff members (“dead souls”) moved into jobs elsewhere in the civil service rather than sacked; and
  • the “flexi-time” working regimes that allow key personnel missing in action when big announcements need to be planned.

It is not as though the UK has a great track record in policy making.   There have been lengthy analyses of government blunders for which politicians must take a large share of the blame.  There are very few senior politicians who are nowadays genuinely keen on prioritising sensible policy-making, nor science, technology and productivity. Indeed, it is interesting that previous Cabinet Ministers seem to have detested the obsessive Dominic Cummings and his criticisms.  David Cameron called him a career psychopath and Nick Clegg said he was loopy.  Theresa May’s views are not known, though we do know that Mr Cummings thought that her triggering of Article 50 was premature, and that her implementation of Brexit in general, and her red lines in particular, were catastrophically inept.  Few civil servants would disagree.

The Mandarinate must nevertheless surely also take much of the blame for the UK’s current woes.  It is hardly entirely their fault, but they have not shown themselves to be effective in speaking truth to power when it was most needed.

Sadly, I doubt that Mr Cummings has identified the right medicine  to cure the ills that he has identified.  He has argued, I understand, that “quitting the EU will sweep away another roadblock on the path to his vision of the UK.”  But I cannot understand that logic whether it comes to encouraging revolution in Whitehall or elsewhere.  It would be much better – if less exciting – to carry out a root and branch review of the relationship between Parliament, Ministers and the civil service – a 21st Century Haldane Report, if you like.

Short of that, so far as the civil service is concerned, I suspect that part of the answer will need to be better targeted performance management.  I was struck by this Matthew Parris anecdote, which applied just as much outside the FCO as within it:

… our outgoing ambassador remarked that, beyond all the routine work that had had to be done day-in day-out, he reckoned he had offered important advice at critical moments … on perhaps a dozen occasions.   On many of these his advice had been good, as events had shown.  A handful of times, however, subsequent events had proved him wrong.  … [he] did not suppose [anyone in the FCIO] had ever noticed, let alone recorded, the score. Nobody would have cared if he had always been wrong, and nobody but himself would have known if he had always been right. [His] progress had therefore depended on his competence in the immediately noticeable things – in everything [but whether he had given] what would later turn out to be the right advice.

This happened a good while ago, of course, but not much has changed over recent years.  We still mainly promote clubbable ‘good chaps’ (and female chaps) who are brilliant courtiers and fixers and who don’t startle any horses.  It would be difficult, but not impossible, to change the system, and it would need serious political will.  Maybe, just maybe, Dominic Cummings will provide the necessary pressure?

 

Martin Stanley

Editor – Understanding Government

Civil Service Training – Good News – But Some Problems Remain

The absence of any serious planning caused unnecessary damage to civil service training – as well as to wider civil service effectiveness – when Lord Maude set about “reforming the civil service” in 2012.

The Public Administration Committee’s latest report on CS training (Strategic Leadership in the Civil Service) provides a useful summary of subsequent developments, including much positive news about current training initiatives.  But it also notes that some serious problems remain.

The report is clearly written and well worth reading in full, and includes interesting evidence from the Better Government Initiative and the Institute for Government.

Here are some key extracts:

Previous Mistakes

“We reiterate the conclusion of our earlier report, as well as those of our predecessor Committees, that, despite its shortcomings, the closure of the National School for Government was premature and left a void that has not been filled. In particular, the need for a dedicated facility where Civil Servants can reflect on their experiences and share them with their peers is as significant now as it was when the Civil Service College was first established. We also note how the closure of National School for Government has made the UK the odd one out, compared with countries such as Australia, Canada, Germany, France, or New Zealand. Most have a permanent institution, dedicated to the learning and development of civil servants. However, the closure of the NSG has also acted as catalyst to some of the positive developments that we go on to discuss [below].

In his written evidence to this inquiry, Julian McCrae (King’s College London) [said that]:

The abolition of the National School of Government (NSG) and replacement with Civil Service Learning (CSL) was probably a mistake, largely because of the serious weaknesses in the CSL model. This included an overly centralised, complex commissioning model. Its provision was also underfunded. For example, e-delivery was used as means of cutting costs, rather than a way of opening access to high quality provision.

Positive Developments

An apparently unintended consequence of Civil Service Learning’s (CSL) shortcomings has been that individual departments and Professions have taken their own steps to address their learning and development issues. This has seen a number of specialist academies established within the Civil Service. The Government lists the current ones as:

  • the Defence Academy;
  • the Government Finance Academy;
  • the Commercial College;
  • the Major Projects Leadership Academy (MPLA);
  • the Government Digital Academy;
  • the Diplomatic Academy; and
  • the HMRC Tax Academy.

In addition to these, there is also the Civil Service Leadership Academy (CSLA), which aims to develop leadership skills in the Senior Civil Service (SCS) grades.  … For the most part, these academies have been established ad hoc, as autonomous operations to address specific requirements, and then run, with limited involvement from CSL even where external partners are involved.

… the National Leadership Centre (NLC) has also been established as a separate initiative to address senior leadership capability across the wider public service.

But Problems Remain …

Sir Richard Mottram (BGI) posed the question:  … who is the individual in the top management of the Civil Service whose day job is to answer the question, “Are the leadership and development plans and programmes and the philosophy of the Civil Service up to scratch?  He confessed that he did not know the answer and that the “governance of all of this is really quite unclear and probably not sufficiently strong”.

We share Sir Richard Mottram’s view that the governance of learning and development is:   disjointed and fragmented, with lots of different organisations who do not appear to have any meaningful self-standing status that requires them to report what they are up to and how they measure their performance. Who at the centre of Government is leading this part of the Civil Service vision? It is opaque to me.

… including with the CSLA/NLC Relationship

The CSLA has been active since its establishment but still has no permanent location. … There [also] remain outstanding issues to resolve with the NLC before it becomes operational. Furthermore, we have found no evidence that thought has been given to the way in which these two bodies complement the professional academies.

The Government’s [told us] that “Our model is built on a system of dedicated professional academies”, but we could not find anyone who is accountable for this “model” or who has designed or has a settled concept for such a “system”.

As the plans for the NLC have progressed, it has become apparent that it will not play the coordinating role for the Civil Service the Minister seemed to suggest. The NLC’s remit will be both narrower and broader than the CSLA’s. Its focus is narrower insofar as it is aimed exclusively at the most senior levels in each sector: those “very close to the top of the pyramid”.  It will be broader because it will not be focussed on leadership in the Civil Service alone.

We welcome the establishment of the National Leadership Centre (NLC). For a learning body with a prospective market of fewer than 2000 people, the NLC’s £21 million budget is generous. We are not critical of this—if it achieves even a small improvement in public service productivity, it will easily cover its costs. However, in comparison with the much smaller amounts given to the Civil Service Leadership Academy, the budget is striking.”

 

Martin Stanley

Editor – Understanding Government

 

 

 

 

 

Jeremy Corbyn, Tony Benn & The Civil Service

Daniel Finkelstein’s article in The Times this morning draws attention to possible future friction between Jeremy Corbyn and the Civil Service, and mentions the 1970s disputes between Tony Benn and his officials.  But I would draw the opposite conclusion from Mr Benn’s experience, and suggest that Mr Corbyn might have an easier ride than he expects.

Mr Benn’s problem was that he was sharply at odds with Prime Minister Harold Wilson, and most of the rest of the Cabinet.  He didn’t want them to know what he was up to, and hated it when his officials (in his view) communicated with other departments behind his back. But civil servants are accountable to the government as a whole – and in particular to a Cabinet bound together by collective responsibility.   It is absolutely forbidden (with one minor exception) for Ministers to ask officials to hide things from interested Ministers and officials in other departments, nor may they ask them to help circumvent collective discussion, e.g. by announcing a ‘decision’ whilst a Cabinet colleague remains opposed to it.

A Corbyn (or Johnson/Hunt) led government would not therefore face the same problem.  The civil service machine would do its best to deliver policies approved by the Prime Minster and Cabinet – and would do its best to help Ministers defend those policies in Parliament.  Mr Corbyn’s enemies might well regret the efficiency (if not the zeal) with which civil  servants would implement a left wing agenda.

As Danny Finkelstein notes, Tony Benn believed that officials should be directly accountable to Parliament, and not to ‘the establishment’ – aka the government of the day.  But I very much doubt whether Mr Corbyn, or any other Prime Minster, will so readily hand over the reins of power in this way.

It is also worth recording that relations between Mr Been and his officials were not quite as bad as often reported.  There was a quite moving exchange of letters when Mr Benn was reshuffled, including this from his Permanent Secretary. (whom Mr Benn had visited when in hospital)

“Granted the political balance within the Cabinet, you were bound to face your senior advisers with some difficult problems, but … we enjoyed the challenges and the stimulation, and you were generous in your appreciation of the support that you received on such key subjects as the Industry Bill and the Post Office. …  We admired your outstanding skill in communication (even when, occasionally, we were worried about what you were communication) and the deftness of your drafting. “

Martin Stanley

Editor – Understanding Government   and  Understanding the Civil  Service

Data Driven Regulation

I am pleased to be able to publish this guest blog by Paul Hazell.

Regulation tends to only get noticed when it fails. Examples of that are appalling care in a hospital; a plane crashes; a run on a bank; or a poor student experience. But good regulation and effective oversight should mean none of this happens.

Regulation, it has to be said, can be dry and technical. The regulation of higher education, particularly in England, is no different. It’s about conditions, thresholds, risk and data.

How then to make regulation interesting and engaging? This is important if the student experience matters to us and we’re concerned about value for money and quality.

Well, within the higher education sector, regulators have looked at how others do regulation and what we might learn from their experience.1  Research of this sort is typically used to develop policy and expert thinking. But has this brought regulation to life, so that we engage and take notice? Probably not.

Higher education is not just about research, though. It’s about people. And great things tend to happen when bright people come together to learn, develop and share new knowledge. Talking – particularly with people who have different experience and expertise – can bring a dry topic to life. It can help personalise a topic so that we can see how it affects our lives. Talking can help us see something in a new, fresh way.

So that’s what I did. I spoke to two people who really know about regulation, risk and data. Their key message is this: data driven regulation works well if its limitations are recognised and mitigated.

Andrew Dilnott

Andrew was the chairman of the UK Statistics Authority and the founding presenter of Radio 4’s ‘More or less’. He’s now the Warden of Nuffield College, Oxford.

The key risk of data driven regimes, Andrew said, is the gaming of metrics and data.

To mitigate this risk, pick five pieces of data at random but don’t tell the regulated what they are. Then report on their performance against that data set. Next, after a few years, change the audited data but don’t tell your stakeholders what the new data are. This approach can help mitigate some of the risks – such as Goodhart’s law – associated with targets.

Related to this point, data driven regimes need high quality data. This is vital. Big and prohibitive penalties for poor data can help assure the quality of data regulators receive.

While there are no magic bullets with data driven regulation, when done right there are real benefits. These include accountability; identifying and improving weak institutions; public information to inform choice; and improving quality across the board.

Martin Stanley

Martin Stanley was a senior civil servant and former Chief Executive of the Competition Commission and the Better Regulation Executive.  He now edits Understanding Government.

Martin said that data is an excellent regulatory tool, but we need to be aware of and work with its limitations. A good understanding of risks, and a fair degree of regulatory wisdom, can help isolate the signal from the noise in the data.

Regulators also need investigatory powers. It’s important to check, verify and audit what’s been said or reported.

Regulators should also keep their ear to the ground, listen to what’s being said and what their industry’s chatter is. This should be a key part of the regulatory mix: this sort of intelligence can provide early warnings about non-compliance in providers, or wider sectoral issues.

And going native is a danger for any regulator. Warning signs – often used in co-regulatory regimes like higher education – include over long and technical consultation processes and giving notice of inspection visits.

Summing up

Used with care and thought, data and regulation work very well together. But, to quote the Quality Assurance Agency’s research, data ‘can distort if not applied carefully; education is a complex activity which places some limitations on the use of such technologies.’[1]

In this context, checks and balances in the regulatory framework for higher education can help mitigate the risks associated with wholly data driven regimes. These include:

  • the Office for Student’s data assurance regime[2]
  • a breach of the regulatory framework for poor quality data returns[3] and initial and ongoing conditions of registration[4]
  • powers of entry and search
  • data supporting (not replacing) qualitative assessment in the Teaching Excellence Framework.[5]

Data is a fantastic resource when used and interpreted with care. But behind the data and the regulatory theory there are students and their many and varied experiences. This is important. Because it’s students – not numbers – that count.

Paul Hazell
Email  – hazell.paul@gmail.com
LinkedIn

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[1] www.qaa.ac.uk/docs/qaa/about-us/data-driven-quality-assessment-final.pdf?sfvrsn=916ff681_8

[2] https://www.officeforstudents.org.uk/data-and-analysis/data-assurance/

[3] See para 54 www.officeforstudents.org.uk/media/83cf5ba5-e2ea-4787-a83b-44e048ddaf3c/ofs2018_50.pdf

[4] www.officeforstudents.org.uk/media/a3383481-fada-4619-8012-932e61bc9b7e/bd-2019-january-31_chief-executives-report.pdf

[5] www.theguardian.com/science/political-science/2018/jul/10/has-the-tide-turned-towards-responsible-metrics-in-research

Fire Safety – Still No-One Listens

Remember when we all thought that “Grenfell changes everything”?  Remember how we all recognised that we had to start listening to those who lived in apartment blocks?  And wasn’t it great that, when inviting views on proposals taking forward the post-Grenfell Hackitt report, MHCLG splashed this news on 6 June:

Residents encouraged to have their say to improve building safety – The government is inviting views on a new building safety regime, as it seeks to bring forward new legislation to keep residents safe.

But this was pure spin.  The MHCLG consultation document runs to 192 pages, with responses required within only 8 weeks.  There is almost zero chance that residents around the country (and high-rises in particular), with busy lives will be able to give any meaningful input by the HMG’s deadline.  They first need to learn about the document (Has it been publicised and made accessible to them?), then assimilate all 192 pages of it (Has it been written from their perspective and is it available in multiple languages?), and then craft a response either individually or collectively (Has the format for responding made this easy for residents?)

It used to be the case that departments were recommended to allow 13 weeks for responses to significant consultation exercises.  So why did MHCLG  not allow this consultation to run over the holiday period so that the general public could truly have their say? Why did the MHCLG not practise what it is proposing and conduct a more inclusive and accessible process?  Did they consider using a ‘citizens assembly approach’ or training and paying local residents to run local consultation sessions and summarise responses to feed into the process?

This matter as a lot, was made clear in a recent BBC podcast Grenfell: What have we learned? One interviewee was Gill Kernick:

“For the last 10 years I have worked predominantly in high hazard industries looking at how you create safe cultures … and specifically how to prevent major accidents – low probability, high consequence events.  The key to change is creating a connection between the most senior levels of the organisation and the front line.  … In the case of housing, because of the complexity of the world we live in, it is the tacit knowledge of residents that is critical to keeping people safe.  They have the experience of living in the building, they know what the issues are, and they probably know how to solve them.”

It is not just HMG that finds it too much of an effort to involve those who actually have experience of living in unsafe buildings.  Cue London’s Deputy Mayor:-

GLA

And then there were those responsible for the safety of the residents of Barking Riverside, the wooden fronted building where fire alarms and sprinklers recently did not work.  Residents had raised concerns about fire safety and specifically about both the wooden balconies and the fire alarms.  And yet again no-one had listened.

Barking

It is desperately depressing stuff.  We clearly need a huge culture shift in government, local government and the construction industry.  But  who is going to make this happen?

Martin Stanley is the Editor of Understanding Government.

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ANNEX – The Pre-Fire Concerns of Grenfell Tower Residents

There is plenty of evidence that the pre-fire concerns of Grenfell Tower residents were ignored by those who were supposed to represent and defend them.  Note that it wasn’t just – or even mainly – the cladding.  The residents did not know that the cladding was dangerous, but they did raise lots of other concerns -– and no-one listened or cared.  One pre-fire blog had noted that “only a catastrophic event will expose the ineptitude … of our landlord” only months before an ordinary kitchen fire:

  • escaped through an insufficiently fire-resistant window and ignited supposedly fire-proof cladding, and then broke into other apartments through similar windows,
  • whilst, the Fire Brigade couldn’t effectively fight the fires or rescue people because there was no wet riser delivering water to the top of the tower (although there should have been), and they could not take control of the lift which hampered their ability to carry out rescues and endangered the lives of residents using the lifts to escape. The lift did not meet regulations.

For further detail, please see   https://www.regulation.org.uk/specifics-grenfell_tower.html and Gill Kernick’s analysis and blogs: – https://grenfellenquirer.blog/ .

Regulation for the Fourth Industrial Revolution

The Business Department today published an interesting White Paper with the above title.

The background is that we seem to be undergoing a further Industrial Revolution in which the physical, biological and digital worlds are coming together in the form of new technologies such as machine learning, big data, robotics and gene editing.

Regulators have for some time noted the disappearance of boundaries between the various forms of communication:- “It’s all now bits and bytes”. Road vehicles and aircraft are nowadays little more than complex IT systems in aluminium shells. And biologists appreciate that the genetic code in DNA uses only four chemical bases (A, C, G & T) whose sequence needs to be read, decoded, and translated into the more complex amino acid alphabet used to form proteins. So they now use the same language as software engineers, using concepts such as coded instructions, signalling and control.

The White Paper recognises this convergence and proposes no less than 28 measures to be taken by government and regulators to address these six challenges:

  • We (the UK) need to be on the front foot in reforming regulation in response to technological innovation
  • We need to ensure that our regulatory system is sufficiently flexible and outcomes focused to enable innovation to thrive
  • We need to enable greater experimentation, testing and trialling of innovations under regulatory supervision
  • We need to support innovators to navigate the regulatory landscape and comply with regulation
  • We need to build dialogue with society and industry on how technological innovation should be regulated
  • We need to work with partners across the globe to reduce regulatory barriers to trade in innovative products and services

Comment:  We await the reactions of innovators and industry, but this document – at first sight – looks both sensible and worthwhile.  Its detail clearly needs to be read by all those interested in this important area.

Non-experts wanting easily accessible information about the regulation of communications, the internet, AI and other emerging technologies might like to browse the Understanding Regulation website.

 

Martin Stanley

Editor  –  Understanding Government websites

 

Competition Authority wants to Shoot First, Ask Questions Later

The CMA (the UK’s principal competition authority) has clarified its earlier request for more powers.  Its Chair, Andrew Tyrie, delivered an important speech yesterday in which he argued that:

‘The evidence indicates both that competition policy is lacking in vigour, and that it is too narrowly focused on process, rather than practical outcomes for millions of consumers. … Just as the pace of change in markets in accelerating, the competition framework is taking ever longer to get results. In the time it takes to reach a decision and go through the appeals process, markets may move on. The detriment will be developing somewhere else.’

So he wants the CMA to be more assertive:

‘If we don’t contribute to finding the solution to the demise of trust in markets, we increase the danger of being cast – by populists on the left and right alike – as part of the problem. This will put at risk the foundation of an independent competition regime, and many of the welfare gains derived from it. And presage a return to the days when competition policy was subordinated to daily politics.

If  [competition authorities] are to secure legitimacy in this febrile environment, they should do one of two things. Either they should ask for the tools to address public concerns about markets, or they should have the courage to tell politicians that it is their responsibility, and say so publicly, and if appropriate – given their remit – advocate how.’

The CMA’s current processes mean that …

‘… it is slow – it can take over 3 years before the CMA is in a position to order remedies, even in cases where the failure to act urgently can cause lasting harm…. if the CMA identifies – during its markets work – a practice that is harming consumers, it should be able to order it to stop, pending an investigation, under threat of a fine for those who might flout its order.’

Accordingly, the proposals include

‘measures to increase board-level responsibility for complying with the law, so that competition and consumer protection are in the minds of company directors. And it is proposed that, for serious breaches of consumer protection law, director disqualification should be a possibility. Just as it is for competition law offences.’

On the other hand, Lord Tyrie suggests that the CMA’s powers should be rolled back in other areas:

‘These include removing the CMA’s responsibility in respect of regulatory appeals, which may be better heard by the courts. They also include transferring primary responsibility for the prosecution of criminal cartels, which may sit more naturally with a law enforcement agency that routinely brings criminal prosecutions.’

Comment

There is much to applaud in Andrew Tyrie’s speech.  The principal difficulty, however, is that the CMA is a quasi-judicial body – so it, and its predecessors, have always taken great care not to take any decisions before giving those it investigates a fair opportunity to state their case and adduce relevant evidence.

As Andrew Tyrie says in his speech “I was struck, when I took up this role, by how little [the CMA] says in public”. But there was a good reason for this, and the CMA will inevitably find its decisions judicially reviewed if they appear to have resolved in advance “to do something about” an unpopular company or industry – or if they take enforcement action “pending an investigation” – and then confirm their own suspicions.  It might be a price worth paying, of course, but the CMA will need to tread carefully.

I was also struck by Lord Tyrie’s implied belief that he can bring about more rapid change by making recommendations to the government.  He points out that Ministers have asked the CMA to “actively challenge central and local government”.  Hmmm … I wonder.  The CMA recently  called on the government to legislate to end the dominance of KPMG, PwC, EY and Deloitte and their conflicts of interest in the audit market.   But the CMA could itself have begun an 18 month Market Investigation which could have triggered very strong interventions. Politicians might move faster, but I am somewhat sceptical that they will always do so.

Finally, having worked in this area for several years, my instinct is that it will not make sense for other organisations to hear regulatory appeals or mount cartel prosecutions.  I suspect that these duties simply do not interest Lord Tyrie, but that is no reason to get rid of them.  But maybe I am being unfair.  It will be interesting to see others’ reactions.

 

Martin Stanley
Editor – Understanding Regulation

Capita Charges £235 for Sellotape

Senior civil servants seldom experience the intimidation that debt collectors – often acting on behalf of public authorities – inflict on those of limited means.  Sometimes, however, we witness direct the dubious tactics of companies such as Capita.  Here is my story …

One early evening last July, my wife heard someone climb the steps to our front door and very shortly afterwards leave again.  She assumed that a leaflet had been put through our letter box.  No-one knocked on the door or rang our doorbell.  I returned home at around the same time and saw someone leaving our premises and driving away.  I then found a “Collection Notice” sellotaped to our front door.  A redacted copy is below, from which it appeared that the notice was aimed at a nearby neighbour.

equita notice redacted

I rang the “collection agent” straight away, who assured me that he had not delivered the notice himself but that Equita employed “correspondence agents” (or a similar description) who must have made a mistake in this case.  He asked me to send him the notice by email, which I did.  I subsequently became concerned that it:

  • had not been fully completed – e.g. with the name of the debtor and the amount owed,
  • contained a clear lie (i.e. that the agent had visited the property with a view to meeting the debtor), and
  • therefore wrongly included a £235 enforcement fee, which seemed deliberately intimidatory.

I never heard back from the agent, despite a reminder.  I accordingly wrote to Equita’s Chief Executive at his ‘correspondence address’ in central London as notified to Companies House.  No-one in Equita relied to that letter.

I subsequently realised that Equita is owned by Capita plc and that Equita’s main office is in Northampton.  I accordingly then wrote to the Chief Executive there and received an unsatisfactory reply from one of his staff.  After further, almost comical, to-ing and fro-ing, Equita finally admitted that “a colleague of [the collection agent] attended your house in error and delivered a sealed envelope addressed to the account holder”.  I wrote again, as follows, on 7 February:-

You will have appreciated, I am sure, that my main concern was that your agent tried to intimidate the debtor by charging a £235 enforcement fee when no-one – and especially not the agent concerned – had even knocked on (what they thought was) her door.

But you don’t address this issue in your letter, which leaves me in a difficult position.  The misdelivered letter has in effect told me that Equita has tried to extract £235 from my neighbour (….) when no such fee was due.  But you have not yet confirmed that the fee should not have been charged, nor told me that the fee was cancelled.

… I appreciate that the misdelivery was a simple error which does not deserve a strong reaction.  I suggest, therefore, that you should please confirm that the fee should not have been charged, and that this has been made clear to your agents.  If you will kindly do this, I think we can let the matter rest there

I have heard nothing since, despite sending a reminder.  So it seems pretty clear that Capita/Equita still believe that merely sellotaping a notice to a door entitles them to a £235 fee.

I know that the MoJ are currently reviewing the Enforcement Agent legislation, and I have submitted evidence.  In the meantime, I can only hope that local authorities and other Capita customers are getting wise to what is being done to debtors in their name

 

Martin Stanley

Editor – Understanding the Civil Service  &  Understanding Regulation

 

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