I beg to move amendment 12, page 1, line 13, leave out paragraph (c).
Clause 1 simply relates to the scope of the civil service part of the Bill, following on from the draft Civil Service Bill in 2004 and the draft of this Bill in 2008. The first question that arises from our amendment is whether the Bill should apply to GCHQ. The Bill excludes the coverage of all the security services, the Secret Intelligence Service, the Security Service and GCHQ, but, in the case of the latter in particular, there is a history that suggests that the Government, at least, have not always been of the opinion that GCHQ should be excluded.
In the 2004 consultation on the draft Civil Service Bill, the Government said that there were no obstacles to including GCHQ within the scope of the statutory basis of the civil service. They then said:
"The Government has no objection in principle to having civil servants who work in the field of intelligence covered by the draft Bill. Because there is no operational impediment to their inclusion, GCHQ staff will be within scope of all the provisions of the draft Bill."
But, in the 2008 draft Constitutional Renewal Bill, GCHQ was quietly removed, and the Bill before the House today retains that position.
From what the Government have said to the various Committees that have discussed the Bill before us, I gather that their justification for excising GCHQ from this legislation is that GCHQ should be treated
"in the same way as the other Security and Intelligence Agencies."
The trouble is that that was not the thinking in 2004, when the Government were prepared to treat GCHQ differently, and it is far from clear why the change of policy has occurred.
During the Public Administration Committee's investigation of the Bill, the First Civil Service Commissioner expressed concern about the exclusion of GCHQ employees, especially about the fact that they would neither have the right to be appointed on merit nor be able to access any statutory complaints procedure. The Government, in reply to those concerns, merely said that
"appointments to GCHQ will, as a general rule, continue to be made on merit," which implies that some appointments to GCHQ will not be made on merit. Given the extraordinary level of technical skill and knowledge that is required to work at that agency, it seems extraordinary that anyone could ever be appointed to work there except on merit.
The amendment would change the 2004 proposal, which has not been properly justified and, in terms of the employees themselves and other regulatory aspects of the civil service, is not justified. I ask the Government to correct this omission at this stage of the Bill's proceedings.
I am concerned about the exclusion of GCHQ from the definition of what is a civil servant for the purposes of this part of the Bill. It is hard to see why GCHQ employees should not be covered by such provisions. Why should GCHQ not be managed by the Minister but by a civil service employer? Why should there not be a code of conduct that requires integrity, honesty, objectivity and impartiality? Why should the Civil Service Commission be unable to set appointment rules that mean that appointments are on merit? Why should an employee who feels that he is being asked to do something that is in breach of the code of conduct be unable to go to the commissioners and ask for redress? It seems odd that the Government would want to exclude that particular institution from the Bill.
I can understand that slightly different considerations apply to the Secret Intelligence Service-MI6-because it has its own statutes that provide similar protections, and it might seem inappropriate to want to legislate to repeal completely those provisions, which are presumably, for these purposes, adequate. However, GCHQ is not in the same position, as the Government recognised in 2004. What has changed that makes the Government suddenly feel that GCHQ must be treated differently from the rest of the civil service? I am sure that if somebody who works there was asked, "Who do you work for?", they would say either the Ministry of Defence or the civil service; they would not want to call themselves employees of anything else. Given that it is logical that GCHQ should be covered by the Bill and given that there is no real reason why the prerogative powers should be used instead of management being exercised under this legislation, I would be therefore be interested to hear the Minister's explanation.
I am worried that this may be one of those cases that we get from time to time when Ministers and civil servants say, "We don't want to fetter GCHQ in any way", and that what is proposed is just the product of a defensive approach that is against the spirit of the age, which is to be as transparent as possible. In that case, I believe that there is no real reason why the amendment should not succeed.
I want briefly to add my questions to those that have been asked. I have not heard an explanation as to why GCHQ was to be included in these provisions back in 2004 and why it is now excluded; I do not know what thought process or consultation has produced that change. I do not know why it would be thought appropriate that promotion on merit would not apply to the employees of GCHQ. I do not know why it would be thought that it was not appropriate for those employees to have the right to appeal to the civil service commissioners. I do not know whether the staff who work at GCHQ have been asked where they would like to sit. There may be good reasons for those exclusions, but none has yet been produced, so I anticipate the Minister's answers to those questions.
I am grateful to the hon. Gentleman for giving way. Does he share my concern that this may be another case of, "Let's be neat and tidy and keep all the secret bits together", ignoring the fact that the two secret services have their own Acts of Parliament with similar provisions to those in the Bill? It is completely wrong to look at it in that way, because it is not neat and tidy.
I was recently privileged publicly to welcome Her Majesty the Queen to GCHQ, along with the mayor of Cheltenham. I would not like to inflate my own importance in that, given that the mayor and I were almost the only people present who could be publicly photographed. During that visit, I jokingly asked whether Her Majesty needed security clearance, and was told, I think equally in jest, that she did not, because by definition GCHQ was almost part of her household. Although that might have been said in jest, it highlights the anomalous position in which the secret agencies find themselves, which was identified by the Joint Committee on the draft Constitutional Renewal Bill.
GCHQ is a large organisation that employs thousands of people-thousands of my constituents-and we are dealing with important employment rights in terms of the right to be recruited on merit, and important procedures in terms of having the right to complain to the civil service commissioners. In his evidence to the Joint Committee, the Cabinet Secretary gave some absurdly extreme examples of how those rights might be applied, suggesting that GCHQ might have to place equal opportunities job advertisements in Pravda or that the civil service commissioners could be allowed public and unlimited access to personnel files at GCHQ, which would be equally inappropriate. It is equally possible to imagine circumstances in which a proper complaints procedure, with statutory force, to bodies such as the civil service commissioners might be helpful to GCHQ employees. Better that disgruntled staff have the right to appeal in confidence to the commissioners than that they take their complaints to the media, for instance. An intelligence agency is different from the rest of the civil service, but it cannot be beyond the wit of Government to propose amendments that might accommodate the concerns of the Cabinet Secretary and others while still bestowing on my constituency workers at GCHQ statutory rights very similar to those of other civil servants.
If the Government will not accept the amendment tabled by my hon. Friend David Howarth, how do they propose to place GCHQ on a similar footing to the other secret intelligence agencies? That question must be asked. I understand that GCHQ staff would like to be treated increasingly in the same way as those at the other intelligence agencies, and I am sure that that is an appropriate desire. If they are excluded from the terms of the Bill, it is not clear how that aim will be achieved.
The battle for GCHQ's trade union rights, so disgracefully denied by Mrs. Thatcher's Government, was won under this Government, and they should be rightly proud of that. In seeking to extend what are proper rights and entitlements to GCHQ employees-
I think that that is broadly what I said. The Conservative Government's actions at that time damaged morale in the intelligence services considerably and, if anything, weakened national security instead of strengthening it.
Can the Minister clarify whether GCHQ is now being considered in the same way as the other intelligence services? As we have heard, that has been sought for some time. Its inclusion in this part of the Bill would be a clear indication that the Government have looked again at how it is seen in the context of the intelligence services. What exactly is GCHQ's position? It looks as though there has been a turnaround, or change, in Government policy with the result that GCHQ is now linked with the other two intelligence services; otherwise, I cannot think why it is included in the exclusions listed Bill.
Can the Minister clarify what will happen to civil servants who have been seconded to GCHQ from other Departments or agencies? Will they be protected in any way? They obviously have to sign the relevant documentation and the Official Secrets Act, but there are civil servants who are seconded to GCHQ from other Departments and other agencies around the world. What will be their position? Will they be covered by the Bill?
I thank hon. Members for their comments. I shall first set out the scope of the amendment and then address their questions.
Clause 1 sets out the scope of the provisions relating to the civil service and specifies the parts of it to which they will not apply, such as the Northern Ireland civil service, the Northern Ireland Court Service, the Security Service, the Secret Intelligence Service and GCHQ. The Bill also makes it clear that staff employed overseas, known as locally engaged staff, are not covered by its provisions.
The amendment tabled by David Howarth would bring GCHQ within the scope of the Bill. I can reassure hon. Members that staff who work at GCHQ are civil servants, and I understand that Members wish to explore the Government's reasons why those civil servants are not to be treated in the same way as those who are covered by the provisions in question.
Hon. Members said that GCHQ staff were included in the 2004 Bill. Recent world events have, of necessity, driven the three UK agencies in question-GCHQ, the SIS and the Security Service-to work together more closely and in a more dynamic and joined-up way. They share intelligence and resources to meet ever-changing priorities in their operational work. By responding to threats and attacks as a joined-up community, they can act more effectively and efficiently.
GCHQ works closely with the other agencies, and all three already operate under statutory provisions that cover their activities and conduct-in the Security Service Act 1989, the Intelligence Services Act 1994 and the Regulation of Investigatory Powers Act 2000. It therefore makes sense for all three to operate on a similar footing, and the Joint Committee on the Bill endorsed that approach. The three agencies also have robust and independent staff complaints procedures, and the funding for them is grouped together.
The Select Committee on Public Administration commented that
"unlike most of the rest of the civil service, GCHQ and the other Agencies are already established in statute, and...they have to operate under particular conditions that do not apply to most of the rest of the civil service. The legislation covering the Agencies sets out to ensure that their activities remain within set purposes, and it establishes complaints mechanisms for the public if they are concerned about these activities."
It went on to suggest that the Joint Committee may wish to explore the issues of staff raising complaints and whether staff should continue to be recruited on merit in future.
Hon. Members have mentioned the need to treat GCHQ staff in the same way as those at the security and intelligence services. The Joint Committee agreed with that but asked for assurances that GCHQ staff would be given the same right of access to an independent complaints mechanisms as those at the other agencies and that, as a general rule, staff at GCHQ would be recruited on merit. In the Government's response, we gave both those assurances.
But is not the point that there is no statutory basis for those promises, whereas there is for staff in the other services in the legislation that she mentioned?
The Government have given assurances that staff will have an independent complaints mechanism and that they will be recruited on merit, and I can repeat those assurances to the hon. Gentleman and the Committee today.
I am grateful to Martin Horwood for mentioning the rights of GCHQ staff. If he had not, I would have done. It was this Government who gave trade union rights to GCHQ staff, as my hon. Friend Mr. Winnick mentioned, and we are proud of that. I hope that hon. Members are reassured by my repeating our assurances on protection for staff.
Does not the right hon. Lady understand that the whole purpose of part 1 of the Bill is to put on a statutory basis the protections that civil servants have had? It is not good enough for her to say, "I am making an assurance", because the whole purpose of part 1 is to put things into law, not have them on the basis of assurance. I do not know whether she has understood that, but it is what the whole campaign for a civil service Bill has been about.
The assurance that I can give hon. Members is that the same right of access to complaints procedures will be available to GCHQ staff as to staff of the other agencies. I understand that GCHQ staff were consulted about that and raised no objections.
I would expect only in very rare and exceptional circumstances, because appointments are made on merit. As the general public would understand it, all appointments are made on merit and the person most appropriate for a post is chosen. The Joint Committee asked for an assurance that in general appointments would be made on merit, and the Government gave that assurance. I therefore ask the hon. Member for Cambridge to withdraw the amendment in the light of the assurances that I have given the Committee.
I was hoping that the Minister would provide an answer to the question that we have all been asking, which is why the Government have changed their stance since 2004. We have not received any explanation of that at all. I was also hoping that she might be able to provide chapter and verse about the statutory protection of GCHQ staff that would put them on the basis that the Bill offers to other civil servants. She was not able to do that, either.
It seems to me that the Minister's only argument is that she is offering assurances from the Dispatch Box, but they are exactly the sort of assurances that would apply were the whole civil service still to be established merely on the basis of the royal prerogative. They seem to me simply a repetition of what is in the Bill.
I do not know, and that point is by far the strongest case for the amendment that has been established in the debate. Appointments to positions at GCHQ must be on merit, because they are technical jobs. What does it mean for an appointment not to be made on merit?
I shall attempt to answer the question, and then my right hon. Friend might provide a better answer.
It seems to me that an appointment not on merit would be an appointment on political grounds, and I cannot see under what circumstances there could be an appointment to GCHQ on political grounds. My right hon. Friend might enlighten us.
I was going to put it to my hon. Friend that I was as baffled by the Minister's reply as he was. I am looking around the Chamber, and I believe that it happens that I have spent more time than anybody else who is in their place inside GCHQ talking to people there about precisely what they do. I have never met anybody there at any level who did not appear to have been appointed on merit.
I am sure that that is the case, so why the Government desire to have this loophole is entirely mysterious to me. Because of that, I wish to press the amendment to a vote.
(5) (a) Within two months of this section coming into force, the Minister for the Civil Service shall issue a list of all bodies and organisations that are to be treated for the purposes of this Act as part of the Civil Service.
(b) The Minister for the Civil Service shall from time to time review the list referred to in (a) and shall issue an amended list if he believes it appropriate to do so.'.
With this it will be convenient to discuss the following: New clause 33- Civil Service annual report-
'(1) The Minister for the Civil Service must publish and lay before Parliament an annual report on the functioning of the civil service of the state.
(2) The Minister for the Civil Service may publish separate reports covering civil servants who serve the Scottish Executive or the Welsh Assembly. Before publishing these separate reports the Minister must consult the First Minister for Scotland or the First Minister for Wales (as the case may be).
(3) Such a report must include but is not limited to-
(a) details on the numbers of civil servants by each government department and agency;
(b) the costs of civil servants by each government department and agency;
(c) a comprehensive definition of the civil service of the state for that year.
(4) The First Minister for Scotland must lay before the Scottish Parliament any report under subsection (2) that covers civil servants that serve the Scottish Executive.
Clause 1 stand part.
The Committee will know that the list of amendments selected is provisional. Having had time to reflect on the matter, I thought that it might be for the convenience of the Committee if I included clause 1 stand part in this grouping, as the remarks that I sense hon. Members may wish to make would not then be restricted.
A central issue in this Bill is the question: to whom does it apply? Who counts as a civil servant? There has been debate for many years on the merits of a civil service Bill, and about the importance of giving statutory protection to civil servants, so that they do not rely simply on the good will of the Government of the day in important aspects of their working lives. Obviously, once one accepts the principle of statutory protection for civil servants, the question of who counts as a civil servant becomes very important.
In this Bill, the Government have simply not attempted any definition, or even any description, of what counts as the civil service. The Minister may be able to point me to a part of the Bill where I can find such a definition, but I have not been able to find it. Clause 1(1) simply states that:
"this Chapter applies to the civil service of the State."
It makes no further attempt to say what that means.
In contrast, in the Government's consultation on the 2004 Bill, they said:
"Because there is no satisfactory, authoritative and comprehensive definition of the term 'Civil Service', in order to achieve the necessary clarity and certainty about coverage, the draft Bill proposes that there should be a comprehensive listing of every part of the Civil Service to which the Bill is to apply."
Then, the Government accepted the fact that it is difficult to define the civil service in abstract terms, so the solution was to list in the Bill the organisations and bodies that would count as part of the civil service for the purposes of the Bill. The 2004 Bill included that list in a schedule. That is an important list, because it includes organisations that, if the only definition in the Bill was
"the civil service of the State", could be defined as being in or out of the civil service.
For example, is ACAS in the civil service or not? Are the people who work for ACAS civil servants or not? The 2004 Bill included ACAS. I do not want to go through the entire list, but there is ambiguity about other similar bodies. For example, does the civil service include regulatory organisations such as Ofwat, the Office of Rail Regulation and Ofsted, or the various inspectorates such as Her Majesty's fire service inspectorate, or the Health and Safety Executive? Are the people who work for those bodies civil servants or not? In every case, the answer according to the 2004 Bill is yes. All those organisations were covered. Are they covered by the present Bill? The problem is that we do not know.
This amendment asks the Government why, if in 2004 they thought that it was not satisfactory to leave the question alone and that we needed not only a vague general definition but a list of the organisations to which the Bill would apply, they have now suddenly changed their mind, and say that the lack of an authoritative and comprehensive definition is satisfactory. This is not an abstract point. It is important, because on this question turns who counts as a civil service employer-and that is important because it is the only way we have of telling whether the various rights in the Bill apply. In particular, clause 9 includes the right to an investigation by the Civil Service Commission. How can it possibly be a matter of dispute whether someone is entitled to invoke that right?
I hope that at some stage in our discussions we will consider the duties of civil service employers and Ministers to act impartially towards their employees. We do not know whether that will apply to some sets of employees unless we know who counts as a civil servant. The important issue of appointment on merit was raised in the previous debate. Does the requirement of appointment on merit apply to a particular job? If we cannot tell whether that is the case, the Bill collapses into unacceptable uncertainty and vagueness.
Many of the bodies that the hon. Gentleman mentions, over which questions as to whether they are part of the civil service may arise, perform functions that can be controversial-such as regulators or the Health and Safety Executive. It is all the more important that it should be clear whether civil servants working in those organisations will have the protection of the Act, and can make complaints if an attempt is made to interfere with a controversial decision.
That is an important aspect of the question. Are civil servants protected from improper pressure, for example? Do they have the protection of the code? If they do not, what is their protection? The hon. Gentleman is right. Many of the bodies concerned are charged with making judgments with which the Government of the day might not agree, which makes it even more important for us to know whether they are covered.
On amendment 10, I hope that the Government can provide a better explanation of their position than they did on the previous amendment. I shall not comment now on new clause 33, which has been grouped with my amendment, except to say that we agree, of course, with the part of it that demands that the Government tell us who counts as a civil servant.
I apologise, Sir Alan, for being a little previous in attempting to intervene during the last grouping. I have worked out that I last led for my party during the Committee stage of a Bill in 1992-so perhaps I am a little rusty. However, I hope that I shall get the hang of it before long.
The Conservative party supports the proposal in amendment 10, but new clause 33, which stands in my name and in those of my hon. Friends, goes further. The Bill has been in gestation for 150 years: it has taken a long time to get here. It does some very good things, and we support its purpose of putting the civil service on to a statutory basis-but it is deeply eccentric that after 150 years, we have a Bill to put the civil service on to a statutory basis that does not say what the civil service is. This is a moveable feast-and one that is broadly at the discretion of the Government. It seems to be almost at the whim of the Government, too.
I am always astonished that if a Member of Parliament puts down a parliamentary question to the Cabinet Office about civil service numbers, answer comes there none. The question is referred to the Office for National Statistics, as if the number of civil servants were an external phenomenon that the Government tried to track out of interest, but they had no concept of its being a crucial management tool. In truth, at this stage, it is a management tool of considerable bearing on reducing Britain's ballooning budget deficit.
The fact is that the numbers of civil servants have varied enormously. The Government claim that they have reduced the size of the civil service. They claim to have "achieved 86,700 work force reductions" as part of the Gershon programme. Civil service employment was 522,000 in 2008. I accept that that was down from the 2004 peak of 570,000, but it was still higher than the 516,000 level of 1997.
The recent fall is deceptive. There has been a significant expansion in the size of the quango state, which is not shown up in civil service head-count figures, and there has been a growth in the number of quangos classified as public corporations, rather than as part of the civil service. In 1996, 89 such bodies were classified as public corporations, but by 2008 that number had doubled to 178. Staff in public corporations are generally not classified as civil service employees for civil service head-count purposes. No fewer than 568,000 staff are now employed by public corporations, compared with 525,000 civil service employees. Mysteriously, only 31,000 of those public corporation staff are included in the civil service head count.
There has also been a shift of bodies from the civil service into public corporations. For example, the Forensic Science Service became a Government-owned company in 2005 and was transferred out of the Home Office, so was no longer counted in civil service head counts.
My right hon. Friend will have seen that part 1 of the Bill sets up, as a body corporate, the Civil Service Commission. Will the people who work there be civil servants?
I look forward with interest to the Minister's response to that question- [Interruption.] She is looking anxiously to the civil servants Box for advice on that important matter-so at least it should come from the horse's mouth.
Executive non-departmental public bodies, with the exception of three Crown NDPBs, are not counted within civil service head counts, and regional development agencies are not deemed to be part of the civil service either. In the last year for which there are numbers, there were more than 200,000 NDPB employees. Furthermore, a series of what are effectively public bodies are not deemed to be part of the public sector at all-the Carbon Trust, Envirowise, the Energy Saving Trust, Network Rail and UK Financial Investments Ltd are not counted as civil service, central Government or even the public sector, yet all are funded by the Government.
Of crucial importance, at a time when it is enormously important for the health of the country that the Government can, in the years to come, get more for less, given the pressing demands of the budget deficit, is the fact that the growth in the number of employees has been accompanied, sadly, by a productivity decline. The ONS's own figures show that between 1999 to 2006 there was an average fall of 0.7 per cent. per year in education productivity and a decrease of 2.1 per cent. per year in social care productivity, and that between 2001 and 2005 there was a decrease of 2 per cent. in health care productivity.
We would like a more transparent and efficient civil service that is a better place in which to work. Many extremely capable people, imbued with a public service ethos-we value that enormously-work in the civil service, but morale is very low. That is partly the result of a lack of transparency, efficiency and productivity. Public accountability is crucial, which is why we think that there should be a civil service annual report clearly laying out the definition of the civil service. That is what new clause 33 would achieve. We support amendment 10, which was moved by David Howarth, but if that does not proceed to a vote, we will want a Division on new clause 33 at a later stage.
It is important for there to be a proper definition of the civil service, and for the numbers and costs associated with civil servants, in each Department and agency, to be laid out. The civil service has been waiting since, I think, 1854-not the current crowd of civil servants, clearly-for a civil service Bill, and it would be almost an insult were this eventual enshrinement in statute to be without any attempt to define it. It would then remain in the gift of the Government to decide arbitrarily and at whim who is to be covered. We therefore wish there to be the possibility of a Division on new clause 33, if amendment 10 does not proceed to a vote.
I want to address the narrow point about the precise definition of a civil servant in clause 1(1). As hon. Members have pointed out, that subsection states that
"this Chapter applies to the civil service of the State."
Clause 1(4) says:
"In this Chapter references to the civil service...are to the civil service of the State".
It then excludes the parts mentioned in subsections (2) and (3) that we have discussed already.
If we then seek further guidance by going, as one normally would, to the definitions in the Bill, we find, in clause 18, the following definitions:
"In this Chapter...'civil servant' is read as stated in section 1(4)", and
"civil service" is read as stated in section 1(4)".
We are therefore returned to the start, rather in the manner of one of those telephone calls when someone tries to get through to pay their electricity bill, but is returned to the number that they first dialled, without any satisfaction of their complaint. It is not just that the Bill apparently contains no extensive definition, but that such definitions as it does contain are completely circular.
That concerns me; indeed, I raised the matter on Second Reading in an intervention on my right hon. Friend the Secretary of State for Justice. In answer to my question about whether the Bill's provisions cover the civil service as it is now, as opposed to its undifferentiated form after Northcote-Trevelyan, he said:
"I hope they do, but as my hon. Friend raises this point let me add that I am happy to ensure that they do. There is an issue to do with the growth of next steps agencies and non-departmental public bodies, which have arisen since the reforms introduced by the previous Administration in the early 1990s. It is certainly of concern to me that NDPBs can appoint their own staff and that they are not public servants; that creates difficulties and can lead to unacceptable and unjustifiable levels of pay and wage drift, as well as other anomalies and conditions."-[ Hansard, 20 October 2009; Vol. 497, c. 803.]
My right hon. Friend has clearly thought about the matter in depth and considers there to be some anomalies and problems, as well as some issues relating to the question of when a civil servant is not a civil servant.
If we are to place the civil service on to a statutory footing, as I hope we will, in respect of requirements for its practice and all that that entails, which I warmly welcome, the most elementary starting point would be to know who we are putting on to a statutory footing. I appreciate that that is a difficult problem. I also appreciate, on the basis of the precise points that the Secretary of State made in reply to my intervention on Second Reading, that the issue has arisen to some extent as a result of the differentiation over time, and substantially so relatively recently, of what one might describe in common-sense terms as the civil service. Hon. Members have already given examples of boards and bodies that one might consider to be part of the civil service in common-sense terms, but which turn out not to be. There are also examples of bodies that one would think were not part of the civil service, but which turn out to be just that. It is therefore important to find, one way or another, a mechanism for the Bill to perform that service of defining who is and who is not a civil servant for the purposes of the rest of the legislation.
Incidentally, a little while ago I tabled a written question that sought to define that point in terms of NDPBs, agencies and various other things. I regret to say that my question has not yet been answered, but perhaps any answer that might be provided in the fullness of time could provide some illumination of what we are discussing in connection with the Bill.
Amendment 10 might not quite fit the bill in that respect. However, at the very least, I would like my hon. Friend the Minister to provide in her reply to this debate an assurance that the definitions in the Bill will be urgently considered, and that some thought will be given to introducing some mechanisms, whether in the Bill or associated with it, to clarify what we are talking about in the rest of the Bill as it proceeds through the House.
I am not sure that new clause 33 fits the bill. Although it says that the Minister for the civil service
"must publish and lay before Parliament an annual report on the functioning of the civil service of the state", it does not really take us any further on the fundamental question of what the civil service of the state is. Although "the civil service of the state" might indirectly be defined in the laying of a report on its functioning before Parliament, that is not necessarily the case.
I hope that my right hon. and hon. Friends on the Front Bench will consider how a mechanism might be found to supply that definition more satisfactorily, accepting, as I think everybody in the House does, that this is by no means an easy task and that any definition would by no means be constant, but that such a definition is nevertheless important for the integrity of the Bill as it leaves this House.
I am grateful for that ruling, because some of my remarks will range more widely than those that we have heard hitherto. I agree with everything that I have just heard, in a typically thoughtful and interesting speech from Dr. Whitehead.
When Lord Falconer described the Bill in his evidence to the Joint Committee not as a constitutional reform or renewal Bill, but as a "Constitutional Retreat Bill", he was basically correct. The radicalism of the early prime ministerial statement in 2007 has been virtually entirely lost in this legislation. The removal of the clauses on the Attorney-General, among many other things that have been referred to today, is a reflection of that.
However, Lord Falconer was wrong about one thing: civil service reform, as embodied in clause 1. The clause applies part 1 of the Bill to the civil service of the state, on which new clause 33 would give us an annual report. Clause 1 is radical, but in a curious way: it is a triumph for the status quo. Indeed, in places it even offers the possibility of restoring the status quo ante for the civil service. The clause entrenches the principle of an independent, impartial and permanent civil service recruited on merit. In doing that, we need to recognise that, by comparison with the civil services of many other major democracies, we are at one extreme in our levels of impartiality and impermanence. It is on such issues that I am at my most conservative, and I welcome this triumph of the status quo.
We have had-and to a large degree we still have-a civil service that works. The history books suggest that since Northcote-Trevelyan dealt a blow to patronage, we have been well served by the people who have come into the civil service, and we are still well served. Anybody who has worked there will know the sense of duty, commitment and loyalty that the civil service can show to the Government of the day. There is still such a thing in this country as a public service ethos, and the best of them in Whitehall have it in bucketfuls. If clause 1 makes a contribution to reaffirming that ethos, the Bill will have been worth while. The civil service is an important pillar of our constitution. This legislation will strengthen that pillar, if only a little.
In this triumph of what I have described as the status quo, we need to realise that we are setting aside many other approaches to the relationship between elected Ministers and, on the one hand, Parliament and, on the other, the appointed civil service. One of those approaches, which has often been discussed, would be to make the civil service more directly accountable to Parliament, as the Institute for Public Policy Research has suggested. Another approach, favoured by the think-tank Reform, would be to give Ministers more say over the direction of the permanent civil service establishment. That would take us in the direction of the United States. A third approach would be to keep most of the civil service as it is, but to superimpose at the top a cabinet system in each Department.
I will not linger on those approaches, except perhaps briefly on the third one. My guess is that one reason that support for civil service legislation has gathered pace in many quarters, especially in Whitehall itself, is that we have, de facto, tried the cabinet system over the past decade and, having tried it, found it wanting. I wonder whether that is why Lord Butler, among others, changed sides on this issue. He was a former opponent of a civil service Bill; now he is a supporter.
When people refer to the growth of presidentialism under Tony Blair, what they mean is the growth of a cabinet of advisers, largely temporary and party political, right at the heart of No. 10 and No. 11. Their position was reinforced by Orders in Council in 1997, giving advisers direct authority over civil servants. That was a profound mistake that has rightly been reversed. Cabinets should not be allowed to become part of our political culture. The bypassing of the civil service that came with that, and the impact of sofa government, were both disastrous for us. Clause 1 and its companions do not guarantee that that will not happen again, but they send a clear legislative signal that that is not how our civil service should operate. That is why I said earlier that this chapter of the Bill will entrench not only the status quo but, to some degree, a status quo ante.
When I was in Whitehall, I was not a supporter of proposals for a civil service Bill. I thought that such legislation would be a waste of parliamentary time. However, I then sat on these Benches in the early years of the Blair Administration watching the new Labour Government bypassing officials and prejudicing the ability of the civil service to offer impartial advice to the Government, and that led me to conclude that we might need legislation to protect the civil service from the new culture of advisers and to signal Parliament's support for the ethos of public service set out in the civil service code of conduct, which had recently been improved prior to the arrival of the Blair Administration.
This part of the Bill lays the ground on which a proper relationship between the civil service and politicians can be maintained for the future. That relationship requires Ministers to provide strategic direction to the civil service. It also requires the civil service, led by permanent secretaries, to implement that direction, having warned Ministers-and having been given a reasonable opportunity to be heard by Ministers, a point that Robin Mountfield has made on numerous occasions-if those officials think that the direction of a policy is deeply flawed or would result in a failure of delivery.
I do not pretend that the lack of leadership that we have seen from time to time recently is a uniquely Labour disease. It has afflicted previous Governments as well. It is, however, reasonable to ask how things have operated recently. For example, how much strategic direction can have come from the merry-go-round of ministerial reshuffles that we have had? I think that we have had four Secretaries of State for Transport in three years, four Defence Secretaries in four years, and four Home Secretaries in five years. John Reid takes the record, having held seven Cabinet posts in eight years. He described the Home Office as "not fit for purpose", but it was ministerial leadership, not the civil service, that was not fit for purpose.
From what I have seen, the civil service aches for good leadership. It wants to implement the plans of elected Governments, not to thwart them. It is when politicians fail it-and only then-that some civil servants are transmogrified into a caricature of Sir Humphrey. This is not just about a failure of strategic leadership, however. Ministers have also used the civil service in ways that they should not have. The Neill Committee warned, as early as 2000, that Ministers were pushing senior civil servants to the margin in the provision of advice, while interposing their own advisers. The role of the adviser was being transformed into that of a spin doctor, a fact reflected most notoriously in the Jo Moore affair at the Department for Transport, Local Government and the Regions. Imagine the state of morale when the permanent secretary in that Department was quoted as saying-I shall not use his exact language; I shall just use the first letter of some of his words-the following:
"We're all f***ed. I'm f***ed. You're f***ed. The whole department is f***ed. It's the biggest cock-up ever. We're all completely f***ed."
Morale must have reached a terribly low level for that exchange to have taken place, and that applied right across Whitehall, not just in that Department.
The Better Government Initiative-a group of Britain's most senior civil servants-stated in a recent report, which is available on the web:
"Providing candid advice has always been a difficult and potentially risky task for the civil service. There are suggestions"- that phrase is typical mandarinese-
"of a loss of confidence amongst civil servants that this is a part of their job."
We need this legislation. It was envisaged in the 1850s, and it is typically British that it should have taken us 150 years or so finally to get round to it. There have been several periods in which having the civil service on a statutory footing might have helped it, including periods during the past decade. Let us now get the job done.
I can say that the Minister of State, Cabinet Office, Angela E. Smith is a friend of mine, as I have known her for many years, but by the time we get to the end of this part of the Committee stage, I might be stretching that friendship an awfully long way. I shall be doing that not out of spite, however, but because I want the Bill to be successful. It is an enormously important Bill, and we have waited an awfully long time for it. That is why I rise to support amendment 10 and new clause 33. I accept the point made by Dr. Whitehead that, on their own, neither does everything that he and I are looking for, but together they are a damned sight better than what is in the Bill at the moment.
I am very suspicious of why the Government have not defined what they mean by the civil service, and perhaps the Minister will explain that to me when she responds to the debate. We have heard that earlier legislation specified all the way through which organisations were part of the civil service. That was excellent for Parliament, as well as for the employees of those agencies and Departments, who knew exactly where they stood. On the day before an important report is due to be published on MPs' expenses, the need for trust in this Chamber and in the Government is paramount. So why on earth have the Government not set out in the Bill what a civil servant is, and what the civil service is?
An organisation that comes under my shadow remit is the Food Standards Agency. I do not know whether it is part of the civil service or not. It rightly tells me that it is an arm's length organisation set up by Parliament, with a chair, and that it is an independent advisory body. As far as I understand it, however, its employees are civil servants. We would never know such things from looking at the Bill.
I am suspicious about where all the civil servants might have gone. My shadow responsibilities involve the Department of Health, and if I am lucky enough to become a Minister of the Crown in that Department, I shall want to know how many civil servants I am responsible for, where the money is going and what departments within that structure are accountable. The Bill, as it is structured, gives me absolutely no idea. I have asked people who come to visit us from the various agencies whether they are civil servants. Some say yes, and some say no. The public, and the civil service, want these arm's length organisations to be set out in the Bill, right at the start, so that we know where we are.
My right hon. Friend Mr. Maude spoke earlier about the size of the civil service. Under Gershon, the civil service should have shrunk; actually, however, we find that it has not. Perhaps the Government are worried that if they build the numbers into the Bill, we would all know just how big the Government payroll is within the civil service.
We know that there has been a huge increase in the number of consultants in the civil service and Departments. Do they fall under the remit of the Bill? Do they have its protection? Some of them have very senior roles in Departments. Senior consultants are working in the Department of Health, for instance, with civil servants working below them. Such people do not have civil service contracts; they are consultants in a Department. Are they covered by the Bill? If they are not, how do the civil servants working below them know where they stand?
I suspect that there has been some smoke and mirrors in the civil service, so that numbers have been lost from the payroll but people have come back in through another door as consultants. There is some evidence of that. We need to know the exact costs involved in the civil service-new clause 33(3)(b) would make the Government come forward each year with those exact costs-but how can we calculate them if we have no idea which Departments, which quangos, which arm's length organisations are part of the civil service?
It is important that both amendment 10 and new clause 33 are agreed to in order to take the Bill forward. They are not perfect-I accept what the hon. Member for Southampton, Test said-but they are a lot better than what we have now and we might be able to build on them as the Bill goes through the House.
I want to follow the remarks of my hon. Friend Mr. Tyrie in saying how welcome it is that chapter 1 applies to the civil service of the state and that there is protection for the impartiality and objectivity of our civil service, which I believe to be precious. During the early years of the Labour Government, that was damaged by a change in the way in which the Government did their business. Some of the traditional, formal methods by which we had ensured good government came to be damaged during that period. It is right to say that there is a different climate for the civil service generally today, with more people entering it at a later stage rather than trained civil servants moving up the grades. That also impacts on why it is necessary to have a civil service Act.
There is a long history to this issue-my right hon. Friend Mr. Maude went back 150 years-but as recently as 1996 the Liberal Democrats and the Labour party had a joint commission and pledged themselves to a civil service Act. The commission said in clear terms before the 1997 general election that a civil service Act should
"give legal force to the Code"- the civil service code-
"which should be tightened up to underline the political neutrality of the Civil Service" and
"clarify lines of Civil Service and ministerial accountability and responsibility."
Soon after the election, in July 1998, in response to a House of Lords report, that commitment was confirmed.
In 2000, the Committee on Standards in Public Life, on which I sit-albeit not on the current Kelly inquiry into Members' expenses-produced its sixth report and called for a timetable for a civil service Bill. In their response in July 2000, the Government confirmed their commitment to a civil service Act. In 2001, the Committee on Standards in Public Life asked whether the Government were going to go ahead, and Sir Richard Wilson, giving evidence, said yes. Ministers again provided the commitment.
In 2002, Mr. Prescott, then deputy leader of the Labour party and the Deputy Prime Minister, said that the Government would "produce the Bill". Needless to say, nothing happened. The Public Administration Committee produced its excellent report towards the end of 2002 or early in 2003 and subsequently a draft Bill, but again nothing happened. In fact, I promoted the Bill and presented it to the House. We had a debate on
It is somewhat surprising that it has taken these 13 long years to get to the point where we are now. The issue of who is a civil servant and how the problem should be dealt with was raised in a debate on
My hon. Friend's point about the courts is an important one. As I understand it-I am not a learned gentleman-the courts look at Parliament's intent when an Act is brought into being, but we do not know what Parliament's intent is because it is not built into the Bill. How, then, will the courts be able to judge it, when we do not know the Government's exact intentions?
My hon. Friend makes the point exactly-what are the courts to make of it? That is worrying if we look at the problems of recent years, which my hon. Friend the Member for Chichester mentioned. Let us take the concern that Alastair Campbell and Jonathan Powell had executive authority over civil servants, were more powerful than the Cabinet and were able to tell civil servants right across Whitehall what to do-the key concern that they had executive powers. The concern about the inquiry into Dr. David Kelly is another example, as Lord Hutton found it difficult to piece together exactly what had happened because there were no records or minutes kept of meetings with civil servants, as they had been conducted in "sofa government" ways.
That had an effect on the formal, traditional ways of doing things. Certainly when I was a Minister, the idea that a civil servant would fail to make a note of a meeting, or even of a ministerial telephone call, did not occur; civil servants would listen in and make notes of the discussions. A record was kept and everyone was protected by it. By the time we get to the Hutton report-this is also true of the Butler report into the war in Iraq-there had been a breakdown in those traditional ways of doing things, which had previously safeguarded the impartiality and objectivity of the civil service, while also being for very good for Ministers, because they provided some formal structure and pattern to the way in which they carried out their work.
It is the breakdown in standards, together with some further changes in the civil service, that led senior former civil servants to say that some form of legislation must be enacted. It is welcome that the Bill is where it is, but it is sad that we have not been able to find in it a definition of a civil servant that is capable of holding water. We want to see protections enshrined in statute partly because, as I alluded to earlier, the nature of the civil service is changing.
There was a time when there was a very standard entry procedure and individuals would move up through the grades, being educated as public servants as they went. In a world where many people are now rightly coming into the civil service without that background, it is important to have more structure than we had before. Over the years, it has been said that we need a provision that clearly defines the role of Ministers' special advisers and the formal civil service. I am glad that the Bill does that, but I also want a proper definition of what a civil servant is, so that we do not end up with a lot of court cases and a mess instead of what should be a major reform.
I thank hon. Members for their thoughtful contributions and I hope to deal with the points that they have raised.
Most of the debate seems to have revolved around amendment 10, but clause 1 lists the parts of the civil service to which the Bill will not apply. That approach was supported by the Joint Committee that considered the draft Constitutional Renewal Bill. Hon. Members have suggested that the approach in our 2004 draft Civil Service Bill was to define the parts of the civil service to which the Bill applied by providing general descriptions and then listing particular inclusions as well as exclusions.
My hon. Friend Dr. Whitehead asked whether the Government would continue to try to find the best way of dealing with the matter. The Government have done that on numerous occasions since 2004, which is why we are in our current position. After consideration, it was felt that more frequent amendment of primary legislation would be required if we were to ensure the maintenance of an accurate list. The Bill therefore lists the parts of the civil service to which the provisions do not apply, a move that was supported by the Joint Committee.
Concern was expressed about who would and would not be defined as a civil servant. Mr. Heald said that it would be difficult for civil service commissioners to have to decide, in each case, who was and who was not a civil servant. In all the years in which they have operated, they have never raised that concern; nor have they raised it in the context of the Bill. I understand and am grateful for the hon. Gentleman's concern on behalf of the commissioners, but they have expressed no such concern themselves.
I explained the exclusions in our debate on an earlier amendment. However, I can tell the hon. Gentleman again that the civil service, ministerial and non-ministerial Departments, executive agencies and non-civil servants are not covered. [Interruption.] I am trying to be helpful.
David Howarth asked what was meant by
"civil service of the State".
I can tell him that exactly the same term was used in the Superannuation Act 1972, and no problems have arisen from that.
I use the term merely for the purpose of clarity.
I was surprised that Mike Penning was not embarrassed to ask his question. I assure him that it does not test our friendship, because, as always, I am happy to help. However, he admitted that, as a shadow Minister, he does not even know whether, were he ever to be a Minister, one of the bodies that would come under his responsibility would consist of civil servants. I can tell him that it would, and that I should be happy to help him in the future.
The hon. Gentleman is completely wrong. As I have made clear, civil servants who are not excluded will fall within the Bill's ambit.
Mr. Maude mentioned those employed by non-departmental public bodies. As he said, they are not part of the civil service. They have deliberately been placed at arm's length, and it has deliberately been ensured that they are not part of Government Departments.
The Minister may have just answered the question. A list was drawn up in 2004. Is she saying that all employees of the bodies that were on that list on 2004, on which there had been consultation, are civil servants, and that the only people who are not are those employed by the security services-as the Bill says-and by non-departmental public bodies?
Everyone who is a civil servant is obviously included unless he or she is specifically excluded. Everyone who signs the civil service code is included unless he or she is specifically excluded.
The right hon. Member for Horsham asked an interesting question-whether commissioners themselves were civil servants. The answer is that they are not, because they are appointed by the Queen.
New clause 33 would require the Minister for the Civil Service to publish an annual report giving details of the structure, cost and state of the civil service, and proposes that separate reports may also be published in respect of the devolved Administrations. Currently, each Department and agency, along with the devolved Administrations, publishes an annual report setting out in detail its work, performance, structure and financial position. The Office for National Statistics is responsible for publishing, each quarter, the number of civil servants employed by each Department and agency. The ONS also produces annual statistics that provide for more detailed information on the composition of the civil service. The detailed information, published by the ONS as "Civil Service Statistics", contains more than 40 different tables, and a range of demographic and other information.
Does the Minister not find it slightly embarrassing that the Cabinet Office, where she is Minister responsible for civil service matters, has shrugged off any knowledge of civil service numbers, and regards the information as something to be tracked randomly by the ONS? Is that information not central, and should not the centre of Government be in possession of it?
Mr. Winterton-[Hon. Members: "Sir Nicholas."] I am sorry; Sir Nicholas. I should have thought that the ONS would be quite insulted-as I hope you are not by my mistake-by the word "randomly", and by being dismissed in such a way. I can think of no more authoritative body to provide statistics for the Government, the House and the wider public.
The civil service commissioners publish an annual report on their activities, which could include comments on the state of the civil service. I would argue that comprehensive information is already available. If new clause 33 were accepted, it would duplicate current practice. It would impose additional burdens and costs that would be disproportionate to any perceived benefit-which I cannot identify-and it is really not necessary.
This has been a very frustrating debate. Whenever the Minister has been asked whether a certain body is part of the civil service, she has asserted with absolute certainty that she knows the answer, and has given an answer. If the answer were as clear as that, the Government would surely be in a position to provide a definition, so why have they not done so?
The Minister has said that anyone appointed by the Queen is not a civil servant. That is a good start, but why? She has said, although I was not too sure about this, that everyone who is employed by a non-departmental public body is not a civil servant-or was it every member of one? Again, I was not too sure. Why? Perhaps the members are appointed by the Queen, but obviously the employees are not. I am not sure why that is so clearly the case. Either the Government have at the back of their mind a definition that they are not revealing to us, or they do not have one and are simply trying to look certain about something of which they are not really certain.
This has been an interesting debate. Many points were raised about the general principle of the Bill, which I support for the reasons given by Mr. Tyrie. The most important part of the debate on this amendment and new clause, however, was initiated by Mr. Heald, who asked what would happen if it was not clear, in a particular case, whether the Civil Service Commission should act or not. If a person complained to the commission that activity within Government was in breach of the code, would the commission have jurisdiction or not? In the first instance, that is an important question for the commission, but what happens if the applicant disagrees with the commission's decision and goes to court? Are the Government saying that they are giving up on the question of what counts as a civil servant and that they will leave it up to the courts, and are doing so in circumstances where, if one were looking for parliamentary intention, it is not possible to tell what that is, because we in this Committee do not know what it is?
Mike Penning gave the example of the Food Standards Agency. The FSA was included in the 2004 draft Bill, but the other FSA-the Financial Services Authority-was not, so the question is this: which FSA are we talking about? The answer to that is unclear.
Does the hon. Gentleman agree that the courts will use Pepper v. Hart? They will look at what has been said here, and they will find what I think was the only clear definition, which is that anybody who has signed the civil service code is a member of the civil service. That seems to suggest that anybody who decides they want to sign it can then call themselves a civil servant.
I am glad the hon. Gentleman raised that point, because that appeared to be the import of what the Minister said. Since the civil service code is on the web, I presume anyone can print it off and sign it, and thereby define themselves as civil servants. This does not make any sense at all.
That is a very good question. Judging by the Minister's account, it depends on whether the person wants to sign it, and if they do want to sign it, then they are a civil servant. This is not at all satisfactory. The problem in terms of the courts is that they will try to work out the intention of Parliament and we are trying to get the Minister to put on record what her intention is, but she seems entirely incapable of doing so. She gives the impression that she has some sort of definition to hand, but we cannot work out what it is. She gives examples, but if one attempts the normal case law technique of joining them together to produce a rule, one cannot work out what the rule is that lies behind those examples. This seems to me to be entirely the wrong approach, and if the Joint Committee supported that approach, it could not have been in a position to work out what it was doing.
I have some sympathy with what has been said, but as someone who has sat through countless discussions of this issue over the years I have to say that the conclusion the Government have arrived at is the conclusion most people have arrived at: that this is the only simple way to deal with the matter.
If the distinguished Select Committee Chairman is saying that the only way to deal with this is to leave it to the courts, that is a counsel of despair, especially in circumstances such as these in which we are not offering the courts any guidance. The approach in the 2004 Bill seems to me to be better. If one cannot offer a coherent definition, the next best thing to do is not to do nothing, which is what the Government are doing, but to provide a list. The 2004 Bill did that, and amendment 10 would require the Government to go down that road. It would also give them the power to change the list from time to time.
I do not want the Committee to divide twice on the same issue, and I recognise that new clause 33 includes within it the same idea that the Government should be under an obligation effectively to tell us who they are counting as being in the civil service. New clause 33 would also goes further than amendment 10 by requiring important information about costs, and I fully support what was said about that. Therefore, if an opportunity arises to support new clause 33 in the Lobbies, I will urge my hon. Friends to do so, but I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 ordered to stand part of the Bill.
Clause 2 ordered to stand part of the Bill.