In recent years concern has been expressed because of their involve-

ment in government news management. This was illustrated in 2002 by

the simultaneous resignation of two civil servants in the Transport

Department, one a special adviser, the other the regular head of the

department’s press office.

Although there is a model contract for special advisers and a Special

Advisers’ Code, the scope and limits of the role of special advisers is not

clear. In particular, the constitutional balance may have been upset

when the government used prerogative powers to confer executive

powers on special advisers to give instructions to regular civil servants

(Civil Service (Amendment) Order in Council 1999). The Wicks Com-

mittee on Standards is currently reviewing the position of special

advisers. Both main parties support a Civil Services Act entrenching

the non-political status of the Civil Service.

The political activity of civil servants is restricted according to the

status of the individual. The majority are unrestricted except while on

duty or in uniform or on official premises. An ‘intermediate’ group can

take part in political activities with the consent of their head of depart-

ment. This includes officials performing non-political jobs. A ‘restricted’

group of senior officials directly involved in policy-making cannot take

part in national politics but can indulge in local politics with the

consent of their head of department. However, whole departments can

be exempted (see Civil Service Pay and Condition of Service Code).

There is also a code of practice prohibiting civil servants from taking

gifts or doing other things that could create a conflict between their pri-

vate interests and their official duties. A retired civil servant requires

government approval before accepting employment with private sector

organisations that are likely to have dealings with the government.

14.6.3 Civil service functions

A Civil Service Code (1999) emphasises the role of the civil service as

that of giving independent and objective advice to government, of

332 General Principles of Constitutional and Administrative Law

providing information without deceit and of impartially carrying out

the policies of governments of whatever political complexion. The

code also emphasises that the duty of a civil servant is to ministers and

not to Parliament. Apart from the day-to-day task of running govern-

ment departments and administering public services, civil servants

have the following general functions.

1. To advise ministers upon policy matters. This includes attending

committees, drafting speeches, preparing answers to parliamentary

questions and preparing legislation. In theory there is a distinc-

tion between party-political advice, which is not the civil servant’s

concern, and government advice as such. However, the line between

the two is often blurred. For example, in recent years there has been

emphasis upon the achievement by departments of positive politi-

cal goals. The idea that senior civil servants should be ‘politicised’

is not generally accepted, although ministers are entitled to play

an active part in choosing senior civil servants. It is often believed

that because ministers, being temporary, necessarily rely upon the

accumulated knowledge and experience of the civil service, the civil

service forms policies of its own which it persuades ministers to

adopt. The influence of civil servants may reach ministers through

the cabinet office and through the private office of each depart-

mental minister. The private office is staffed by regular civil servants

and has been described as ‘the gear box’ between ministers and their

departments (Thompson, 1987, 50 MLR 498). It is arguable that the

hierarchical civil service machine works most effectively by respond-

ing to initiatives from the top.

2. To manage the use of government resources. The head of each depart-

ment – the permanent secretary – is the departmental accounting

officer. The accounting officer’s activities can be directly examined

by Parliament by means of the Public Accounts Committee and the

Comptroller and Auditor General (see Chapter 12).

3. To make decisions in individual cases under powers conferred by

particular statutes upon ministers. Most decisions are made by civil

servants in the name of the minister, for example determining

planning appeals, allocating grants and other benefits, dealing with

immigration and deportation matters. Under the Carltona doctrine

(see Carltona Ltd v. Commissioner of Works (1943)), a minister can

lawfully exercise any of his statutory powers through a civil servant

in his department and need not personally exercise any power,

unless statute specifically so requires. It is not clear whether the

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Ministers and Departments

courts can control the delegation arrangements made by a minister.

In Olahinde v. Secretary of State (1990) the House of Lords held

that a deportation decision could be made by an immigration

officer on behalf of the Secretary of State. However, Lord Temple-

man remarked (at 397) that the person exercising the power must be

‘of suitable seniority in the Home Office for whom the minister

accepts responsibility’ (cf. Re Golden Chemical Products Ltd (1976)).

In law and by convention the decision remains that of the minister

(see also Bushell v. Secretary of State for the Environment (1981);

R. (Alconbury) v. Secretary of State (2001). Occasionally a statute

states or assumes that a minister shall personally exercise a power

(see, for example, Immigration Act 1971 s. 13 (5); Regulation of

Investigatory Powers Act 2000).

4. To carry out the day-to-day administration of government depart-

ments. The overwhelming majority of civil servants are concerned

with this, in many cases operating within quasi-autonomous execu-

tive agencies. In Williams v. Home Office (No. 2) (1981) the Court

drew a distinction between acts done by civil servants in the exercise

of statutory functions conferred on ministers, and routine manage-

ment matters, saying that the latter are not to be regarded as the act

of ministers. This is questionable in terms of the traditional doc-

trine of ministerial responsibility, but perhaps represents a more

realistic view of the nature of modern government. In particular it

is questionable whether the Carltona principle should apply to civil

servants working in executive agencies who are not directly under

the control of a minister (see Freedland, 1994). The 6th Report of

the Committee on Standards in Public Life (2000a) has recom-

mended placing the civil service on a statutory basis in order to

protect its distinctive role as a permanent aspect of the executive.

14.6.4 Civil servants and ministerial responsibility

The classical doctrine has been that there is no direct link between

civil servants and Parliament. Civil servants are responsible to their

permanent secretary who is responsible to the minister. Sir Edward

Bridges, the Permanent Secretary to the Treasury, expressed this in

1954 after the Crichel Down affair (quoted in the Second Report of the

Public Service Committee, 1995–6, HC 313, para. 8). He stated that a

minister is responsible to Parliament for the exercise of all executive

powers and every action taken in pursuance of those powers. As civil

servants have no powers of their own, and so cannot take decisions or

334 General Principles of Constitutional and Administrative Law

do anything except and in so far as they are subject to the direction

and control of ministers, a civil servant has no direct responsibility to

Parliament and cannot be called to account by Parliament (although

ministers were never expected to defend official action of which they

either disapproved or had no prior knowledge.

In particular advice given to ministers by civil servants cannot be

disclosed without the permission of ministers and civil servants appear

before parliamentary committees only with the consent of their min-

isters. Ministers therefore shield civil servants from Parliament. In

return, civil servants are loyal to ministers and owe no other allegiance

thus emphasising the minister’s own accountability to Parliament (see

7th Report of Treasury and Civil Service Committee (19856) HC 92 and

Cmnd. 9841 (1986) – government’s reply). Where issues of propriety or

conscience arise, a civil servant may appeal to the independent Civil

Service Commissioners, who report directly to the Queen (see www.

cabinet-office.gov.uk/OCSC). The Commissioners also monitor senior

civil service appointments.

The Scott Inquiry revealed how civil servants have sometimes acted

independently of ministers, or in the expectation of subsequent minis-

terial ratification of their actions (Scott, para. D3.40). Civil servants

concealed important questions from ministers and may even have defied

ministerial instructions (Scott, paras D2.398, Lewis and Longley, 1996).

In these circumstances the classical doctrine of ministerial responsibility

masked where real responsibility for governmental decisions lay. More-

over, as we saw above, ministers have attempted to limit the doctrine of

ministerial responsibility, firstly by distinguishing between policy and

operational matters and secondly by distinguishing between ‘account-

ability’ as a duty to explain and ‘responsibility’ as liability to take the

blame (5th Report from Treasury and Civil Service Select Committee,

HC 27, 1993–4, para. 120).

Select committees cannot force civil servants to attend to answer

questions, but should they do so they appear subject to ministerial

direction (para. 37, Departmental Evidence and Response to Select

Committees (Cabinet Office, January 1997) which replaced the so called

‘Osmotherly Rules’). This document exhorts civil servants to be as

forthcoming as possible in providing information under the Code of

Practice on Access to Government Information. Information can, how-

ever, be withheld, in the public interest, which should be determined

in accordance with the law and the exemptions set out in the Code.

On the other hand it has long been accepted that, as accounting

officer, the permanent head of a department must appear before the

relevant parliamentary committee.

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Ministers and Departments

14.7 Executive Agencies and the ‘New Management’

In recent years the delivery of many public services has been restruc-

tured by hiving off executive agencies (‘next-steps’ agencies) from the

central executive. These remain part of the civil service but are free-

standing structures with substantial operational independence and

each with its own chief executive. The devolved decision makers are

therefore outside the traditional heirarchical mechanism of political

accountability through ministers to Parliament. Nevertheless it appears

to be assumed that executive agencies do not raise constitutional

issues (see Next Steps, Cm. 524). However, as with other decentralising

changes, executive agencies cast doubt on the role of Parliament as the

ultimate source of accountability and make it difficult to identify clear

lines of responsibility.

As we have seen, the traditional view that civil servants only provide

advice to ministers was seriously questioned after the Scott Inquiry.

The reorganisation of government has further placed the classical

model under strain. This is most notably the case in the relationship

between ministers and chief executives of EA. Framework agreements

made between the agency and the sponsoring department (sometimes

with the Treasury as a party) constitute the relationship between

the two. The framework agreement contains the corporate strategy

and financial arrangements under which the agency will work. The

Citizen’s Charter sets standards for service delivery against which the

actual performance of the Executive Agency will be monitored as part

of the drive for efficiency and value for money. A chief executive is

appointed (as a temporary civil servant) to be responsible for the day-

to-day management of the agency, which is staffed by civil servants.

The principle underlying the respective functions of the agencies

and the departments is that autonomy for service delivery should

reside with the agency, whilst policy matters should be reserved for the

department acting under ministerial control. According to the govern-

ment, the minister remains responsible for general policy, and the chief

executive for operational matters, which are essentially matters of

implementation. This is a significant realignment of the traditional

doctrine of ministerial responsibility. However, ministerial responsi-

bility was intended to apply equally to the work of Executive Agencies

which remain subject to the scrutiny of the PCA and the relevant select

committees. The chief executive is responsible to the minister but, as

accounting officer, also appears before select committees to answer

MPs’ questions about the functioning of the agency over which they

have day-to-day management. Controversially, this suggests that a

336 General Principles of Constitutional and Administrative Law

convention may have been emerging under which agency chief execu-

tives are directly responsible to Parliament in their own right (but see

below). This possible dual line of responsibility would radically have

altered their position as civil servants.

Diverse forms of accountability have been introduced although they

are weak because they have no enforceable sanctions and are mainly

policed within the executive itself (see Lewis, 1994). These are mainly

copied from the practices of private businesses. Regulatory controls

under the new public management take the form of performance stan-

dards or targets, contracts, financial mechanisms and incentives, audits

and disclosure duties (see Willet, 1996, Ch. 4). In the case of the priva-

tised utilities and railway companies, statutory regulators appointed by

ministers but not directly accountable to Parliament have the power to

impose penalties and negotiate. The government has also published

a series of ‘Citizen’s Charters’ which attempt to set out standards

of service which citizens, envisaged as individualistic customers, are

entitled to expect from government but these have no legal status as

such (see White Paper, The Citizen’s Charter. Raising the Standard

(1991) Cm. 1599).

In principle, the extent of ministerial control depends on the terms

of the framework agreement. In practice, chief executives are often

required to take management initiatives independently of ministers.

The traditional assertion that civil servants advise ministers and act on

their behalf has been radically altered. MPs have also been encouraged

to approach chief executives directly on behalf of their constituents, and

chief executives answer written parliamentary questions. The answers

are published in Hansard to avoid the bypassing of Parliament which

might have occurred if chief executives responded direct to individual

MPs (see, e.g., Fifth Report of the Treasury and Civil Service Com-

mittee, The Role of the Civil Service, HC 27 (1993–4) col. 53 para. 170).

In the context of the agencies ( just as in former nationalised indus-

tries from which the dichotomy originates) the policy/operational

dichotomy has been exposed as problematic. Indeed, the two are often

so inextricably interconnected that they cannot be distinguished. The

effect has been to make it more difficult for Parliament to find out who

is to blame when problems arise. For example, is prison overcrowding

policy or operation? Further, even if a matter can be classified ab initio

as ‘operational’ as soon as adverse political consequences arise the

same matter may mutate into one of policy, causing confusion as to

whether (and if so when) responsibility shifts from a chief executive

to a minister. An example of this concerned the computer problems at

the Driver and Vehicle Licensing Agency which caused unexpected

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Ministers and Departments

failures in producing driving licences. The involvement of ministers

when the matter acquired a political dimension converted an appar-

ently operational failure into a policy matter. The example of the Child

Support Agency illustrates some ministerial reluctance to accept blame

where inadequate agency performance is partly attributable to such

matters as inadequate funding (a matter for ministers under Taking

Forward Continuity and Change). This exposes a fundamental gap in

accountability.

Moreover, ministers can exploit confusion over these vague labels

by categorising any political embarrassment as ‘operational’, or by

intervening in ‘operational’ matters where there are electoral risks in

not being sufficiently involved. This has been identified as a problem

in the prison service and in particular emerges from the events leading

up to the dismissal of Derek Lewis. (See the Learmont Report, Cm.

3020, Oct. 1995; the House of Lords Public Service Committee Session

(1997–8) 55 para. 341.) Ministers may also interfere in ‘operational’

matters whilst declining to answer questions about them, claiming that

such matters fall within the responsibility of the chief executive. More-

over, since it is the minister who decides what is policy and what is

operation, ministers can effectively determine the extent of their con-

stitutional responsibilities.

The House of Lords Select Committee on Public Service recently

concluded that it was not possible effectively to separate policy from

operations and that such a division was not desirable (ibid. para. 348).

The Committee identified a need for a re-examination of the relation-

ship between ministers and civil servants, but expressed their own clear