On 8 September 2022 Tom Scholar was removed from his position as Permanent Secretary to the Treasury by Liz Truss and Kwasi Kwarteng. It was widely reported that the sacking of Scholar was a politically driven decision intended to rail against so called ‘Treasury orthodoxy’. In the wake of his sacking, many commentators and former senior civil servants criticised Truss and Kwarteng’s actions, warning that their behaviour was constitutionally inappropriate and threatened the perceived political neutrality and impartiality of the Civil Service.
Scholar’s departure was the latest in a long line of high-profile and controversial exits by several senior civil servants over recent times. In February 2020 Sir Philip Rutnam left his position as Home Office permanent secretary after allegations of bullying were raised against Priti Patel, whilst in August 2020, Jonathan Slater, the then permanent secretary over the Department for Education, was seemingly scapegoated and removed from post following a political row relating to the use of an algorithm to generate A-level and GCSE results.
Questions have also been raised in relation to the role that Special Advisers have played in the appointment of senior civil servants. In May 2021 Dominic Cummings claimed that he had personally appointed the current Cabinet Secretary, Simon Case, stating before a parliamentary select committee, ‘I brought in Simon Case to be permanent secretary at Number 10 because I thought the prime minister is not listening to me on this whole subject.’ Not only is the appointment of a senior official by an unelected adviser wholly constitutionally inappropriate, but it also undermines the perceived political neutrality of the official.
Against this backdrop of growing tension between successive Conservative governments and the Civil Service, the House of Lords Constitution Committee announced their intention to conduct an inquiry into the appointment and dismissal of senior civil servants. Their report, ‘Permanent secretaries: their appointment and removal’, was published in October, 2023. This blog will take a closer look at the report, summarising its content and highlighting the conclusions and recommendations proposed by the Committee. In order to provide context, though, I’ll begin by offering a brief summary of the role permanent secretaries and the Cabinet Secretary, and outlining the legal framework that governs the appointment of senior civil servants.
The role of senior civil servants
Permanent secretaries are the chief officials in each government department. They are responsible for the day-to-day management of their department, including oversight of the departmental budget, as well as providing impartial policy advice to the relevant secretary of state. As the accounting officer for their department, permanent secretaries are themselves directly accountable to Parliament. If a minister intends to pursue a policy that infringes any of the key civil service principles, the permanent secretary may request a public ‘ministerial direction’ that the policy should be pursued regardless. Other roles including the Direction of Public Prosecutions, First Parliamentary Counsel, National Security Adviser and the heads of the intelligence services are also of permanent secretary rank.
The Cabinet Secretary is the most senior civil servant in the UK and directly advises the Prime Minister and the Cabinet. The current Cabinet Secretary is Simon Case.
Legal and constitutional framework for the appointment of senior civil servants
Above all else, the UK’s civil service should operate following key principles: integrity, honesty, objectivity and impartiality. Any loss of confidence in the impartiality of appointment and removal processes may be said therefore to threaten the integrity of the entire civil service.
Whilst the general procedure for appointing civil servants has remained the same for some time, the Constitutional Reform and Governance Act 2010 (CRAG) codified the processes involved. All senior civil servants are formally appointed by the Prime Minister as s.3 of CRAG states that ‘the Minister for the Civil Service [invariably the Prime Minister] has the power to manage the civil service.’ Crucially, s.10 of the Act requires that all appointments must ‘be on merit on the basis of fair and open competition’, whilst s.2 places the Civil Service Commission (the body responsible for ensuring that appointment and recruitment is ‘merit based’) on a statutory footing. In reality, the Civil Service Commission oversees recruitment generally and is involved closely in senior appointments. S.11 of the CRAG also requires the Commission to publish the ‘Recruitment Principles’ which provide additional detail on recruitment and regulate ministerial involvement in the process. For example, the relevant minister must be consulted on the person specification for a vacancy, but they cannot sit on the selection panel.
The Recruitment Principles do not apply to the appointment of the Cabinet Secretary. Instead, the Cabinet Secretary is ‘appointed by the Prime Minister on the advice of the retiring Cabinet Secretary and the First Civil Service Commissioner’.
S.8(5)(b) of CRAG explicitly states that special advisers cannot ‘exercise any power in relation to the management of any part of the civil service of the State’ and the Recruitment Principles also state that special advisers ‘may not be involved in the recruitment of civil servants.’ Consequently, it would be entirely constitutionally inappropriate for special advisers to be directly involved in the recruitment or appointment of senior civil servants.
The House of Lords Constitution Committee Report
The Constitution Committee’s report begins by noting increased tension between ministers and civil servants since their last report on the Civil Service in 2012 and by acknowledging recent controversies regarding ministerial involvement in high-profile dismissals and appointments. At the outset, the Committee states:
‘The impartiality and perceived impartiality of the civil service is a central and uncontested tenet of our constitution. Any fundamental changes to the civil service—including changes to the constitutional balance of the appointment and departure processes for civil servants—should not take place through unscrutinised evolution of practice. Instead, changes should be made consciously and openly and should be implemented only following careful scrutiny.’
The Committee heard evidence from both constitutional experts and senior civil servants (both former and current) and arrived at the following key conclusions:
- In relation to the role ministers play in the appointment process of senior civil servants, the Committee believe the current statutory regime ‘strikes an appropriate balance, allowing ministers input into the job description, the person specification and the composition of the panel while preventing them from engineering the process in favour of a preferred candidate. This balance preserves the principle of merit, and it is important that ministers have proper regard to that principle throughout the process.’
- They saw no reason to alter the current practice of providing the Prime Minister with the final choice for a permanent secretary role.
- In relation to the appointment of the Cabinet Secretary, the Committee believe the appointment process should become more transparent and regularised. The Recruitment Principles should be updated to reflect a strengthened recruitment process for the Cabinet Secretary and Head of the Civil Service (if the roles are to be separated).
- In regard to the role played by special advisers, the Committee note that although private discussions between minsters and their special advisers are hard to regulate, ‘special advisers should not be formally involved in the appointment or departure processes.’ Statements made to the public by special advisers regarding the appointment or dismissal of senior officials are ‘unacceptable’ as they give the impression that special advisers are managing officials, which is not the case. It is the responsibility of the relevant minister to prevent this impression being given.
- Ministers must provide permanent secretaries with the opportunity to establish a productive working relationship before dismissing them. It is ministers that value expertise, and that, crucially, ‘removal on the grounds of a poor working relationship must not become cover for arbitrary removal of permanent secretaries on political or ideological grounds’.
- If the relationship between a secretary of state and a permanent secretary has broken down irrevocably, the Head of the Civil Service must be given the opportunity to manage the permanent secretary’s transfer elsewhere, or manage their retirement.
- The Committee conclude that due process was not followed relating to Tom Scholar’s dismissal. Such recent examples may be an indication that there are insufficient safeguards around the departure of civil servants, as such, a formal departure process should be set out in writing. The Prime Minister and relevant minister should be required to explain their decision to the Civil Service Commission in writing.
- ‘Under no circumstances should civil servants be dismissed on purely political or ideological grounds’.
- The small number of recent incidents relating to the removal of permanent secretaries on ideological grounds does not amount to a trend. But as the high-profile removals were conducted in the public eye, it creates the impression that ministers are personalising appointments. This practice should be avoided.
- Broad political alignment between ministers and civil servants is not necessary for officials to conduct their jobs effectively and with honesty and impartiality. Politicising appointments would undermine civil servants’ ability to work with further governments.
The committee’s conclusions and recommendations appear to be sensible and logical throughout. Their hard stance on the role of special advisers is welcome, as is their desire for the appointment of the Cabinet Secretary to become more transparent. It is interesting that the Committee concluded that there is not an apparent trend developing in relation to political dismissals. However as Jill Rutter notes, Rishi Sunak’s administration does ‘appear to have established calmer relations between ministers and civil servants’, so perhaps this conclusion is an accurate one. That said, a new government led by Keir Starmer could actually heighten tensions given the Party has been out of power for a long time. Labour are reliant on the advice of a select few advisers, and with former senior civil servant Sue Grey promising reform of the Service, it is possible that acrimony may follow.
Ultimately it is a question of observing what happens over time. In any case, the Committee’s conclusions and recommendations are welcome. The Government itself is yet to issue a formal response to the Committee’s report, but a spokesperson commented: ‘The government is grateful to the committee for its report and will carefully consider its findings.’ So far, however, there is no definite indication that substantive changes relating to the Committee’s recommendations are to follow. Should this prove to be the case, it would be disappointing.
Kate is a Graduate Teaching Fellow and PhD candidate at the University of Liverpool School of Law and Social Justice. She is a contributing writer for the Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.