ukcivilservant

Articles about the UK Civil Service and Regulation

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.

2

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?

3

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

Picking Winners – and State Aids

This is a response to a request from David Higham and other fomer colleagues for my views on the current debate about Dominic Cummings’ reported wish to be able to offer generous ‘state aid’ (i.e. subsidies) to chosen high tech (and potentially high growth) companies.

Background:  I led the Business Department’s industry/education team in the late 1980s and a number of industry ‘sponsorship’ teams in the mid 1980s and then again from 1992 to 1998, including working closely with Michael Heseltine during his time as President of the Board of Trade.

Sponsorship teams focus on specific industries or groups of industries, and undertake a number of activities. Officials are expected to get to know key figures across the industry and so gain a thorough understanding of its strengths, weaknesses, challenges, opportunities and needs. Its interests can then be communicated to all relevant government departments.

Most industries do not need any sort of hard intervention either by way of regulatory favours or subsidies. Indeed, it was obvious to most outside observers that many industries’ fundamental problems were self inflicted through weak management and chronic underinvestment exacerbated by over-strong and/or short-sighted unions. Any government intervention was likely to make things worse, not better.

But some interventions were well justified, During the periods mentioned above, I can think of four types of subsidy that represented good to exceptional value for money.

  • First, in the 1980s, we heavily subsidised the provision of the first computers in schools.  There were two suppliers, Acorn (who built the BBC-B microcomputer) and Research Machines (RM) who built higher spec and more expensive machines.  The scheme was a huge success.  It not only excited huge numbers of teachers and pupils but Acorn went on to develop RISC PCs, and one of its subsidiaries became ARM Holdings whose processors can be found in most mobile phones.  RM now employs around 1,700 people providing educational IT, although it ceased manufacturing during the 2008 financial crisis.
  • We subsidised inward investment, most obviously by vehicle manufacturers.  But we never invested more than 25% of total cost.  Our support was most often directed at ‘saving jobs’ or ensuring that we got jobs as a result of investment that would otherwise go to other countries.  But we sometimes supported R&D, including most recently into battery technology and autonomous (‘driverless’) vehicles – though we subsidised Jaguar’s investment in autonomous vehicles as long ago as 1989.  I remember experiencing it on a French motorway.
    • Note, though, that it can be difficult to know how to respond to other countries’ bids to win investment in new vehicle plants, for instance. Serious bidding wars usually end with a seriously expensive winner’s curse. Luckily, the UK has been able also to point to the benefits of excellent macroeconomic and regulatory policies – at least until Brexit – and so spend less than might otherwise have been necessary.
  • We rescued (i.e. saved jobs in) Leyland Daf’s UK operations following its 1993 receivership including by funding 25% of an otherwise private sector investment in Leyland Daf Vans (LDV) in the West Midlands.. Three of the four rescued subsidiaries are still trading successfully.  LDV continued to employ significant numbers but closed during the 2008 recession.
  • Finally, and probably least successfully, we ran schemes which funded typically 25% of smaller firms’ investments in research, development and new products.  Many of these were bound to lead nowhere but even a low hit rate followed by exceptional growth would have justified the expenditure.

And here is a bad example:

  • There was a fierce battle, in the UK in the 70s/80s, between big bad IBM with their closed propriety systems, and ICL, keen on open systems and a proud successor to the earlier giants of British computing including English Electric Leo Marconi. I inherited the sponsorship team and initially continued to pour as much money as possible into ICL technology, and to arm twist the public sector to continue to buy its mainframes. But I eventually realised that the company was uncompetitive to the extent that well over 90% of its sales were to the public sector. In other words, any business that had a choice bought IBM. I understand that colleagues subsequently did their best to continue to support the company, and it eventually had to be rescued from collapse in order to keep vital systems running, such as those in DVLA. ICL was eventually bought by Fujitsu.

Lessons, Conclusions, Comments

All the above expenditure was approved under the current state aid regime, though it sometimes took a few weeks or months to persuade the European Commission of the merits of our case.  It helped hugely that were not one of the member states who spent the most on state aid, nor one of those who came forward with the least deserving applications.

Equally, though, we probably could have pushed the state aid boundaries further than we did.  Other countries ‘ administrations seem to have more supportive lawyers and economists.  Also, countries such as France and Germany have well-funded public sector investment banks which pre-date the state aid regime.  I understand that our attempts to set up similar institutions have been thwarted by state aid considerations, much to the annoyance of both ministers and officials.

Two of our successful investments were brought down by the 2008 financial crisis, which underlines the importance of having appropriate macro-economic and regulatory backgrounds, including competition policy, without which state aid will inevitably be wasted.

Despite my experience, I have no faith in ministers’ or officials’ ability to ‘pick winners’ even when our decisions had to be approved by external advisory boards.   (See Note below) I was accordingly a great fan of the requirement that 75% of program cost had to be funded by the private sector.

Note, for instance, that my ‘best’ investment was almost certainly computers in schools.   However – if we had been forced to support only one of the two companies  – we might have gone for RM’s higher end machines which would certainly have met with the approval of a previous generation’s Dominic Cummings.  But it was the initially lower tech Acorn computer that eventually led to world-beating technology.

Equally, my worst investment (though I inherited the policy) was support for ICL. Unfortunately that company was then seen as the UK’s answer to an American giant. It is a cautionary tale for those now seeking to build British high-tech companies to rival the American and Chinese giants.

(And I am anyway not aware that Silicon Valley benefitted from government finance. Weak regulation and a vibrant venture capital industry were much more important.)

More generally, I have absolutely no faith in ministers’ ability to withstand pressure to spend unwisely for political and constituency reasons.  ‘Saving jobs’ and ‘attracting inward investment’ can make sense, as I have explained above.   But such powers need to be tightly controlled (such as via the state aids regime) if they are not to degenerate into hugely wasteful expenditure in uncompetitive companies and/or international auctions which end up in governments paying far too much per job gained.

Equally, I have little faith in minister’s ability to focus support narrowly enough.  As Giles Wilkes points out, no-one is ever against:

  • Investment
  • Innovation
  • R&D
  • Entrepreneurship
  • ‘Hubs’, ‘Catalysts’ and ‘Accelerators’
  • Exports, and
  • How Germany Does Things

And I would add small firms to that list. 

The underlying problem is that ministers find it very difficult to refuse to extend the borders of even the best, highly targeted schemes.  Surely, they will argue, butchers and restaurants can be innovative too.  And how can we justify excluding firms that employ less than 500 people, or 50, or 5 …?

The result can too easily be cash sprayed at a large number of targets in the hope that some of it will generate rapid returns.  But it is far from clear to me why the government is likely to be any better at this than venture capitalists and other investors.  

In short, therefore, I would generally advise against adopting any policies which go beyond those currently allowed by the current state aids rules.  

Martin Stanley

Editor – Understanding Government

POSTSCRIPT

Mandy Mayer, who has considerable experience of supporting SMEs from within government, has sent me these interesting comments:

  • There is a marked difference between entrepreneurs and small firms. The former usually cannot be bothered with government schemes because they are moving too fast and don’t want to be tied up in bureaucracy for the sake of relatively small amounts of money.
  • Those SMEs that did get involved with the schemes did indeed often find they got bogged down and had their timescales distorted.
  • Innovation is very hard to define and differs in its nature form sector to sector. In a service-based economy such as ours it can be about intangibles which are hard to identify and, just as importantly, measure.
  • I’ll never forget the venture capitalist I met in California who said that US VCs were an inch wide and a mile deep whereas he viewed UK ones as a mile wide and an inch deep.
  • I would count the most successful experience of supporting innovation was through the telecommunications liberalisation regime and then the subsequent opening up of 3G.
  • Looking to support innovation in the future, I would like to see more focus on helping to create markets.

Notes:

  1. Prominent examples of foolish government-inspired investments include:
  • The Rootes Hillman Imp factory in Linwood, many miles from main suppliers and where the local workforce had no relevant experience.
  • The aluminium smelter at Invergordon next to a nuclear power plant that was never built.
  • It is beginning to look as though the 2020 (Brexit driven) $500 million investment in the OneWeb mass constellation satellite system (ordered by Ministers against the advice of officials) might also have been a very expensive mistake.

2. My colleague Michael Coolican wrote this in his book No Tradesmen and No Women.

‘[Many ministers are very clever but they] tend to be ‘big picture’ people who simply can’t deal with detail. If such qualities are mixed with a fair amount of dogmatism, a large dose of self-confidence, special advisers with inadequate experience, and a civil service unable to make good the deficiencies, then the way is prepared for the sort of poor government that has been much in evidence during the past fifty or so years …

Harold Lever saw at first hand how such factors affected the ability of the Wilson government to achieve anything despite the undoubted talents of its members … ‘These governments … overestimated their ability to shape and manage the complex drivers of a modern economy. They assumed they understood all the reasons for its shortcomings and so, unsurprisingly, were all too ready to lay hands on superficial remedies for overcoming them.

3. Exposure to private sector practices could often be translated into lessons for government itself. Some private sector practices were appallingly bad – so we learned what not to do. But some companies taught us a huge amount about how highly controlled manufacturing environments, for instance, could be combined with recognition that ideas and challenges can start at the bottom and flow upwards if encouraged by a positive atmosphere, a sense of purpose and an emphasis on team-working.

Will there be Further Whitehall Wars this autumn?

There was a startling but hardly noticed announcement, a couple of years ago, that ‘a ministerial policy decision cannot be sufficient justification alone for proceeding’.  Priti Patel, Matt Hancock and the rest can apparently announce whatever they like – but civil servants shouldn’t take any notice unless they are convinced that the plans are ‘feasible’.  Here is how we got here.

Ministers are frequently accused of being too ready to seek political advantage by announcing impossible or badly thought-through policy objectives, or by allocating insufficient time and resources to otherwise achievable policy objectives.  Jill Rutter’s half jest summarised the underlying issues rather well:

Civil Servants say to ministers that “We won’t tell you it can’t be done if you won’t sack us when it is not done”.  Maybe it is time we recognised that this constitutional pact has run out of road?

The story began in 2011 when the Institute for Government recommended that it should be made easier for senior civil servants to challenge ministers’ policy decisions in the same way as they had for many years been able to challenge a ministerial spending decision.  (Officials would ask for a formal written ‘Ministerial Direction’ if the spending appeared to be irregular, or improper, or to represent poor value for money.)  Permanent Secretaries would ask for a Policy Direction if they were not satisfied that ‘clear, well-reasoned timely and impartial advice’ had been provided, and that the decision was in line with the aims and objectives of their organisation. 

Not surprisingly, this particular idea did not find favour with ministers who were shortly afterwards faced with an equally threatening suggestion of Procedural Directions.  These were proposed by the Better Government Initiative and supported by the Public Administration and Constitutional Affairs Committee and The Constitution Society.  In short, ministers would be held to account if they were to deviate from the processes laid out in the Cabinet Manual. 

One example, had this mechanism already existed, might have been Tony Blair’s failure to circulate pre-Iraq War legal advice to Cabinet colleagues.  Others might have been some of the decision-making either side of the Brexit referendum. Sadly, this attempt to fetter Prime Ministerial discretion was no more welcome to the government than had been the Policy Directions. 

But there was progress on the policy front.  Treasury ministers quietly, in 2011, introduced Feasibility Directions.  These allowed officials to require ministers to direct them to proceed with projects even if officials doubted that the project’s objectives could be achieved either at all, or within the timescale and resources stipulated by the minister. Here is an extract from the guidance:

‘Feasibility often overlaps with value for money and/or propriety. The judgement to be made is whether government has the ability to carry out the proposed policy effectively and credibly. Precedents, market testing and pilot studies can give confidence that a new policy or proposal will be feasible. Conversely, warning signs include novelty, high administration costs, high error rates and significant compliance costs. Where there is doubt about the quality of administration, the proposed course may well also be inefficient or improper.’

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, yet again, of the need for ministers to be able to override their cautious, unimaginative and unambitious civil servants?

It was therefore quite telling that a National Audit Office report five years later 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’. 

The first Feasibility Direction did not in fact appear until 2018 when a minister took responsibility for the risks associated with accelerated introduction of new ‘T Level’ exams.  This was a perfectly sensible and uncontentious use of the mechanism. 

The seven year wait for the first Direction was no doubt one reason why 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.

“I still don’t think we’ve sorted out the question of the interaction between the political agenda and delivering good results and value for money.  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.”

A small number of further Feasibility Directions were issued by the Business Secretary as his officials rushed to support the private sector during the 2020 COVID-19 crisis. 

Senior Responsible Officers were another Whitehall innovation which is taking a long time to take off.  SROs were from 2013 to be personally accountable, including to Parliament, for the delivery of major projects such as the National Cyber Security Programme.  It was hoped that newly appointed SROs might be concerned to ensure – before accepting their appointment – that they were not suffering from appraisal optimism, and that their project was properly resourced and had sensible timescales and objectives.  This would reduce the chances of their having to account to their Permanent Secretary and Parliament when things went wrong.  And it would ensure that a senior official – the SRO – was forced to challenge ministers if a major project were being established without proper resources etc.

In practice, however, little at first appeared to have changed.   SRO appointment letters were little more than that.  They specified neither the programme’s objectives nor its resources or timescales.  And most departments at first decided to appoint very senior staff as part-time SROs, rather than nominate those officials who were truly responsible for key projects. The SRO for the National Cyber Security Programme was for instance told that he would need to devote only two days a month to the role!

But SROs were strengthened by the introduction of Accounting Office Assessments – see further below.  The Universal Credit SRO appointment letter, for instance, requires the SRO to prepare an Accounting Officer Assessment ‘if the programme might depart from the four standards (regularity, propriety, value for money and feasibility), or from the agreed plan – including any contingency – in terms of costs, benefits, timescales, or level of risk’. The letter is also firmly linked to the Business Case, so the SRO is personally accountable for delivering the intended economic and net present values. Indeed, some of the Universal Credit material suggests that the relevant SRO was able to renegotiate the programmes timescales and be clear to Parliament what the reasons were.  So this particular (if isolated?) Minister/official dynamic appears to be working well. 

Finally, Accounting Officer Assessments were introduced in 2017.  Following a Public Accounts Committee recommendation, the Treasury announced that ‘Accounting Officers should personally approve, in advance, all significant initiatives, policies, programmes and project’ and so be able to provide assurance to Parliament that those activities provide value for money and are feasible etc.  The guidance went on to say (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 full accounting officer assessment should provide a frank examination of the key issues including any sensitive issues. It should address the essence of the policy which is being delivered, its purposes and its prospect of successful delivery or implementation. It is therefore not usually published in full, but is shared with the Treasury.   A summary of the key points from an accounting officer assessment of a major project should however be prepared and published.’

Will AO Assessments Make a Difference?

Ministerial Directions were once regarded as nuclear weapons – more effective in the silo rather than launched.  But they have come to be seen as a grown-up way of allowing ministers to account for political decisions to override strict value for money criteria.  SROs’ ability to launch Accounting Officer Assessments are similarly unlikely to be used very often, but they should in theory discourage ministers from announcing badly thought through projects such as Prime Minister Cameron’s ‘Big Society’ or Prime Minister Theresa May’s social mobility agenda.  Boris Johnson’s ‘levelling up’ might meet a similar fate. All the aspirations were no doubt sincere but there was no organisation or institutional weight behind them. 

The signs so far are not promising, given the number of ill-thought-announcements during the initial response to the COVID-19.  Officials are clearly not obliged to prepare an AO Assessment immediately a minister indulges in some blue sky thinking.  But I suspect that they will nevertheless prevaricate far too long before offering serious challenge to ministers.  And the Treasury’s guidance allows a fair bit of wriggle room later on:

Often, big intricate decisions have long lead times. In such cases, it is good practice to make the accounting officer assessment in principle at an early point, firming it up at suitable strategic points as the policy or proposal is developed. This makes for orderly evaluation of the key features of the policy, with no surprises at the final decision point. Apart from providing time to redesign a policy or proposal, early assessment may flag up how the proposal can be better designed to meet both ministers’ and parliament’s requirements …

Also, unlike AO Assessments associated with major projects, AO Policy Assessments, will not automatically be shared with Parliament.  I fear that the result is that they will not differ in substance from the traditional Mandarin warnings that ministers’ policy proposals are ‘brave’ – ‘courageous’ even!  So it could all come down to the energy and inquisitiveness of MPs and Select Committees.  They could – 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.

The test may well come in this year’s Spending Review.  Faced with yet further cuts, departmental ministers may fail either to cut existing programs or to prioritise their wish list.  Mistakes will be made.  Will Permanent Secretaries, on five year contracts, assert that ‘a ministerial policy decision cannot be sufficient justification alone for proceeding’ – or will they prioritise their careers?

[This is a shortened version of a more detailed history on the Understanding the Civil Service website.]

Subsequent Debate

The IfG’s Alex Thomas sparked an interesting exchange with Jill Rutter and others after reading this blog. (Jill was one of the authors of the IfG’s 2011 report recommending the introduction of Policy Directions.) The debate revolved around the difference between Policy Directions (which weren’t introduced) and AO (Feasibility) Assessments (which were).

Jill stressed that Policy Directions were not intended to impede the introduction of policies which civil servants thought to be bad ideas. They were solely intended to come into play when officials thought that the evidence did not support a particular intervention as a reasonable way of delivering the ministerial policy objective.

Alex could live with the feasibility test as a way of reconciling ministers’ policy intentions with the sensible use of public funds. But ministers are already required to consider civil service advice before taking significant decisions. Ministers therefore take responsibility for the decision, not least if the they choose an option other than the one recommended by officials on the basis of evidence and analysis.. A further challenge, by way of requiring a Policy Direction, would surely further damage minister/civil servant relationships. The publication of the Direction would certainly enhance accountability by exposing the debate to public view. But it would damage the collegiate nature of minister/official relationships within Whitehall.

In reply, Jill wondered whether the relationship was already so decayed there is no option but formalisation. Both sides would lose something important – but she was not sure the relationship was now salvageable.

Martin Wheatley and Jonathan Potts rounded off the discussion by suggesting that the problem that Policy Directions were intended to address would be better solved through strengthened parliamentary scrutiny – a noble aim but not one likely to be achieved in the near future?

Martin Stanley
Editor Understanding Government

How (not) to Sack a Permanent Secretary

This blog is a reprint of my web page which explains how and why Permanent Secretaries can be dismissed, and seeks in particular to explain the concerns arising from the loss this year of the Cabinet Secretary and five Permanent Secretaries.

I do not claim to have detailed knowledge of the individual dismissals, and so would welcome additional information and corrections, either as comments on this blog or by email.

It is a firm rule that ministers cannot dismiss civil servants that displease them or that offer unwelcome advice (but see the comment below).  If a minister cannot stand a particular official, the latter is usually moved to a different job. Much more detail is here. It follows that, if a Secretary of State falls out with their Permanent Secretary, there then needs to be a triangular discussion involving the Secretary of State, the Cabinet Secretary and the civil servant.   Where possible, this leads to two or more Permanent Secretaries swapping places.

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.  But, if it is not addressed, the poor relationship at the top of a department can lead to serious damage both to the minister and the department, and hence to the wider government. 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.   Former Cabinet Secretary Robin Butler noted (in a letter to the Times in September 2020) that “It is especially important in the case of the head of the civil service that the appointee should be endorsed as politically non-partisan. When I was head of the service, I was authorised by the prime minister of the day to confirm informally with the leader of the opposition that those chosen for important civil service appointments were acceptable also to his party.”

Indeed, Permanent Secretaries often work with several Secretaries of State before finding one that doesn’t like them.  Simon McDonald, who was eased out of the Foreign Office in 2020, noted that in his five years as Permanent Secretary he had worked for 22 junior ministers, 4 Foreign Secretaries, 3 Prime Ministers and 1 Queen.

The departure is therefore usually pretty amicable.  There can be financial compensation for the official in the form of an early retirement package (though these are modest compared with private sector equivalents).  And prestigious jobs can often be found in higher education or the charitable sector. 

It was therefore concerning that the Boris Johnson government oversaw the distinctly not amicable loss of several Permanent Secretaries in 2020.  There were several important factors in the background to this highly unusual development.

  • The senior ranks of the Civil Service were undoubtedly very 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.
  • The Prime Minister’s principal adviser Dominic Cummings made it clear that he had no time for most senior civil servants.  He was also keen to centralise decision making in or near Number 10, which will have been unwelcome to most Permanent Secretaries on both practical and constitutional grounds.  The Times and others reported that he had told political aides that a “hard rain is coming” after detailing the shortcomings of an “incoherent” Cabinet Office.
  • The government mishandled the early (and some of the later) stages of the COVID-19 crisis, completely disregarding well established good practice in handling crises.  But it will have wanted to deflect criticism away from ministers.
  • More generally, Whitehall, as well as many public services, encountered Brexit and COVID-19 following years of staff cuts and lack of investment driven by austerity.  It had also maybe not fully recovered from the turmoil of the LibDem coalition years. (19 out of the 20 Perm Secs had either left or been moved between departments between the 2010 general election and 2013.) By 2020, therefore, the whole of the UK public sector lacked resilience and any 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.
  • Permanent Secretaries had, since 2013, been appointed on five year fixed term contracts. By 2020, therefore, it had become much easier to ease Permanent Secretaries out of their offices, whilst simultaneously sending clear messages to the others that they had better behave – or else!

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.

Clare Moriarty left the civil service in March 2020 following the abolition of her department (The Department for Exiting the European Union). It is not known whether she was would have accepted another appointment if indeed one had been offered, as she was recovering from a serious illness But many wanted her to stay. Civil Service World commented as follows:

“This is sad news,” CSW columnist and former senior civil servant Andrew Greenway tweeted. “I’ve often been critical of leadership in the CS. Clare was a perm sec who espoused the best of the service’s traditional strengths while pushing it towards the internet era. Her empathy and ability will be much missed.”  As this tribute implies, Moriarty developed a leadership style that felt refreshingly open and modern in a civil service that talks the inclusivity talk, but doesn’t always walk the walk. Many wanted to see her take her this model of stewardship to the very top of the organisation. It was a surprise then when news emerged a few weeks ago that – after seven departments and 35 years – she would be leaving the civil service at the end of March.  

Richard Heaton left the Ministry of justice in the summer, at the end of his initial five year appointment period.  I understand that the Justice Secretary wanted him to stay, but the application had to be considered by the Prime Minister (or more likely Dominic Cummings) and Mr Heaton only learned of his departure as it was tagged on to the statement by No 10 announcing the departure of Mark Sedwill – see further below. This was a pretty shabby way to treat anyone, let alone such a distinguished public servant.

Simon McDonald left the Foreign Office in the late summer, having originally said that he would stay on until 2021 to oversee the merger of the FCO and DfID – see further below.  He had worked for Boris Johnson as Foreign Secretary and then for Dominic Raab, neither of whom were regarded as strong or effective in the role, so there may have been tensions in their relationships. .  He had then, according to the media:- been forced to make U-turn on his claim to MPs that the UK made a “political decision” not to join an EU scheme to source ventilators to treat coronavirus patients. He later declared he had been “incorrect” in his comments to the Foreign Affairs Committee, prompting speculation he had been ordered to recant by Downing Street.  He had also undoubtedly opposed the speed of the merger that autumn of the Foreign Office and Department for international Development.  This was being planned for 2021so as to allow time to tackle a number of complexities, including the need to knit together two quite different cultures, pay systems etc . 

The manner of Jonathan Slater’s dismissal caused little short of outrage amongst many observers.  He was evicted from the Education Department in August 2020 with only five days notice.  Although this followed the department’s very poor handling of the education aspects of the COVID-19 crisis, including some impressive u-turns over the grading of pupils who had been unable to sit A-level and GCSE exams, very few thought that the errors should be attributed to Mr Slater alone, if indeed at all.   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.

It was noticeable that, although the Head of Ofqual (the exams regulator) also resigned, she remained a civil servant and returned to her home department, the Cabinet Office.

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. It is worth noting, too that Sir Mark’s previous career (mainly in defence and national security) was probably not ideal preparation for his new role, especially given the pressure of the Brexit negotiations and preparations, and the CIVID-19 pandemic. There will have been tensions, too, resulting from Dominic Cummings’ determination to centralise decision making in Number 10.  These issues are explored at greater length in a separate blog.

Comment

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 does not appear that Prime Minister Johnson has any interest in or loyalty towards the civil service as an institution of which he is, of course, supposed to be the custodian as Minister for the Civil Service.

It was, of course, also the case that the 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 (Sir Mark’s successor) will be able to withstand pressure from the Prime Minister and his aides, or whether he was chosen for his willingness to bend to Prime Ministerial will.

Let’s not forget, though, that this is not the first time that Whitehall has got excited about minister/Permanent Secretary relations. One persistent theme, as the 2010- LibDem coalition passed the mid-point of its term in office, was ministers’ dissatisfaction with Permanent Secretaries.  There were several ‘fallings-out’ and Perm Sec resignations, which at least went to show that Minsters did weald considerable power in this area if they chose to use it.  Indeed, there was by 2013 only one Perm Sec in post who had been in post in 2007, and 19 out of the 20 Perm Secs had either left or been moved between departments since the 2010 general election.  The downside, of course, was that the 19 were often inexperienced and/or working in departments whose issues, strengths, weaknesses and organisation they did not understand at all well – a fact which was all too apparent to their staff.  It was probably also a significant contributory factor in the poor performance of the coalition and subsequent governments.

Ivan Rogers resignation in 2017 was an example of a less-than-amicable but nevertheless necessary departure. His disagreement with the government’s Brexit negotiation strategy was so profound that he resigned before he was dismissed.

Martin Stanley

Editor – Understanding Government

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