V. R. (1896)). This is consistent with the view that there is no contract.

On the other hand, it has been held that there can be a contract between

the Crown and a civil servant but that as a matter of public policy the

contract can be overridden by the Crown’s power to dismiss the civil

servant at pleasure (Riordan v. War Office (1959), but see Reilly v. R.

(1934)). On this second analysis other terms of the employment such as

pay and conditions are enforceable against the Crown.

Modern cases have stressed that there is no inherent reason why the

relationship cannot be based on contract (see Kodeeswaren v. A-G for

Ceylon (1970); R. v. Civil Service Appeal Board ex parte Bruce (1988);

R. v. Lord Chancellor’s Department ex parte Nangle (1992)). The

Employment Act 1988 s. 30, deems there to be a contract between the

330 General Principles of Constitutional and Administrative Law

Crown and a civil servant for the purpose of making a civil servant

liable for industrial action. Whether or not there is a contract it seems

clear that the Crown can still dismiss at pleasure and that a contractual

term which says otherwise is not enforceable (CCSU case (below) at

950 per Lord Diplock). This can be regarded as a matter of public

policy. Rules controlling the civil service are sometimes made by

prerogative Orders in Council which have the status of primary law

but also take the form of instructions issued by the Treasury.

Civil servants, like other citizens may be protected by judicial review

although in Nangle (above) it was held that judicial review did not

apply to internal disciplinary matters (cf. Bruce (above) and R. v. Civil

Service Appeals Board ex parte Cunningham (1991)). Most civil servants

are also protected by statutory unfair dismissal rules administered

by industrial tribunals (Employment Rights Act 1996 s. 191). ‘Unfair

dismissal’ is not the same as unlawful dismissal and the only enforce-

able order that an industrial tribunal can make is one of compensation.

Special machinery applies to security issues. A minister can by

issuing a certificate remove any category of Crown employee from the

employment protection legislation on grounds of national security

(Employment Rights Act 1995 s. 193). A civil servant who is suspected

of being a security risk is given a special hearing, but without the

normal rights of cross-examination and legal representation, before a

panel of ‘three advisers’. These usually comprise two retired senior

officials and a High Court judge.

14.6.2 Civil service impartiality

Since the Northcote–Trevelyan Report (1854), civil servants have

been regarded as politically neutral. The constitutional justification

for this is to provide continuity and stability and a source of accumu-

lated knowledge and experience. However, the notion that political

neutrality is possible is contested and elected politicians may regard

civil servants as frustrating the democratic process, famously satir-

ised in the television series Yes Minister. Civil servants are, however,

under a duty to obey ministers in relation to the implementation of

policy and, in return for impartiality, are not subject to accountabil-

ity to Parliament without the permission of ministers. Their advice

to ministers is confidential (see Notes of Guidance on the Duties and

Responsibilities of Civil Servants In Relation to Ministers, Cabinet

Office, 1987).

Most countries have politicised their civil service. In the USA for

example the ‘spoils’ system operates under which about 3000 senior

331

Ministers and Departments

civil servants are appointed by the incoming president thus securing

commitment to the elected regime. It is, however, widely recognised

that co-ordination between the political and permanent elements of the

public service is necessary. In the UK this is attempted by the appoint-

ment of special advisers attached to ministers and holding office for the

duration of a government. Although they are civil servants paid from

public funds, special advisers are not required to be politically impar-

tial. They are relatively few (currently about 83, 25 of which are in

the prime minister’s office) but are gradually increasing in number.