The decision of Sue Gray – a Senior Civil Servant – to leave the Service and accept a job offer from the Labour Party to become Sir Keir Starmer’s Chief of Staff has sparked a great deal of controversy. All sorts of allegations have been thrown around. What is the actual constitutional, legal, and conventional position regarding someone making such a move?
PRINCIPLES
For decades the position of civil servants was mainly a matter of convention. These were often elaborated in authoritative statements by senior Civil Servants. In the post WWII period, the two most significant of these were Portrait of a Profession – The Civil Service Tradition, by Sir Edward Bridges(1950), and the so-called Armstrong Memorandum, by Sir Robert Armstrong (1986).[1][2]
Bridges described how the current system of a permanent civil service arose:
“Patronage, in regard to first appointments to the Civil Service, continued until towards the end of the nineteenth century. But a characteristic convention was established that, while Ministers could use their patronage to appoint to official posts persons who had some claim upon them, such appointments, once made, were regarded as permanent and were not disturbed by subsequent administrations. More important still, by a process of instinctive good sense, it came to be accepted that permanence carried as a corollary a certain standard of conduct and discretion – namely conduct compatible with loyal service to whatever Government is in power.” (page 7)
The crucial point here is one that encapsulates most of what has subsequently evolved into the rules and procedures governing the modern Civil Service: “a certain standard of conduct and discretion – namely conduct compatible with loyal service to whatever Government is in power.”
The Armstrong memorandum – published after the Clive Ponting Affair – set out to restate and elaborate the constitutional position of the civil service and of civil servants. He states:
“Civil servants are servants of the Crown. For all practical purposes the Crown in this context means and is represented by the Government of the day.” (Emphasis added)
He goes on to say:
“The Civil Service as such has no constitutional personality or responsibility separate from the duly constituted Government of the day. It is there to provide the Government of the day with advice on the formulation of the policies of the Government, to assist in carrying out the decisions of the Government, and to manage and deliver the services for which the Government is responsible.” (Emphasis added)
THE RULES
The statements by Bridges and Armstrong were authoritative as to the constitutional conventions on the civil service, but they were not law. Instead, it was the Constitutional Reform and Governance Act 2010 that gave legislative force to some of these conventions on the civil service, in particular, section 5 of the Act put the ‘Civil Service Code’ onto a stautory footing for the first time.
Civil Service Code
The section of the current Civil Service Code that is most relevant in the Sue Gray issue is that covering ‘political impartiality’.
Political Impartiality
You must:
- serve the government whatever its political persuasion, to the best of your ability in a way which maintains political impartiality and is in line with the requirements of this code, no matter what your own political beliefs are
- act in a way which deserves and retains the confidence of ministers, while at the same time ensuring that you will be able to establish the same relationship with those whom you may be required to serve in some future government
- comply with any restrictions that have been laid down on your political activities
You must not:
- act in a way that is determined by party political considerations, or use official resources for party political purposes
- allow your personal political views to determine any advice you give or your actions.[3]
Directory of Civil Service Guidance
One further small piece of guidance that is relevant comes in the Directory of Civil Service Guidance Volume 2: Collected Guidance, covering contacts between Senior Civil Servants and the Opposition:
“As a general principle, there is no objection to contacts between senior civil servants and leading members of the Opposition parties if the latter wish to inform themselves about the factual questions of departmental organisation or to keep abreast of organisational changes. Such contacts should always be cleared with departmental Ministers.” [4]
ACOBA
The Advisory Committee on Business Appointments (ACOBA) considers applications under the business appointment rules about new jobs for former ministers, senior civil servants and other Crown servants. ACOBA is an advisory non-departmental public body, sponsored by the Cabinet Office. ACOBA advises on specific cases within the rules laid down by the Cabinet Office.[5]
A key point from the guidance is that:
“It is in the public interest that people with experience of public administration should be able to move into other sectors, and that such movement should not be frustrated by unjustified public concern over a particular appointment. It is equally important that when a former civil servant takes up an outside appointment or employment there should be no cause for justified public concern, criticism or misinterpretation.“
The whole propose of the ACOBA process is to ensure that no concerns of the type mentioned arise.
“It is important to note that ACOBA does not have any power to “veto” an appointment. The strongest sanction it has is to recommend a delay in an appointment being taken up, with the maximum delay being two years from the last day in service.”[6]
For a Senior Civil Servant like Sue Gray this means that they have to apply for permission to take up any appointment within 2 years of leaving the service.
SUMMARY
An apt phrase to describe the constitutional position of the Civil Service is that they are “serial monogamists”, or at least behave as if they are. They must be loyal to “the Government of the day”, whatever its political colours. So how does this apply to Sue Gray? Let’s ask, and answer, some of the issues that have been raised.
Was Sue Gray’s work on the breaches of Covid rules in No 10 affected by her subsequent decision to accept future employment with the Leader of the Opposition?
If she had behaved in any way that was not with integrity, honesty, objectivity and impartiality she would have clearly breached Civil Service rules.
Although allegations are now made that she must have been biased against the Government of the day, there is no evidence of this. Indeed, at the time of her appointment to the role the main criticism was instead that as a Civil Servant working within the very tight rules about loyalty to the Government of the day it would be very difficult for Gray to be objective (as I said myself at the time). And some have criticised her subsequent report as being biased in favour of the Government.[7]
It is probably worth noting that had Sue Gray remained in the Civil Service and Labour won the forthcoming General Election, it is entirely possible she could have become Prime Minister Keir Starmer’s Chief of Staff in Downing St, as a Civil Servant.
Is it unusual or wrong for Senior Civil Servants to go to work for the Opposition, or indeed the Governing Party?
This is the most important and substantive question which goes to the heart of whether or not there are any constitutional issues involved.
Many senior Crown Servants – Civil, Diplomatic and Military – leave government all the time. Ministers also leave government. They are all bound by broadly similar rules and subject to the ACOBA process.
Many go on to work in other capacities for a wide variety of public, private and voluntary organisations. When they do, even in a voluntary capacity, they have to adhere rigidly to the rules about non-disclosure of confidential information from their previous employment in Government.
On a personal note, as someone who worked as advisor to one of our intelligence agencies for almost a decade I am well aware of these rules and the seriousness with which Civil Servants take them.[8]
In the UK there are quite a few former Crown Servants in both Houses of Parliament – as MPs, Lords and in some cases Ministers.
Some prominent examples – Conservative and Labour – are:
- Lord Frost left the Diplomatic Service to later become a Special Adviser to the Foreign Secretary (Boris Johnson) and later still a Minister in the House of Lords.
- Tom Tugendhat MP and Johnny Mercer MP are both current Ministers and both former Crown Servants in the Army.
- Sir Keir Starmer MP was a former Civil Servant as Director of Public Prosecutions.
- Lord Kerslake, former Head of the Civil Service, has advised both Jeremy Corbyn and Keir Starmer as leaders of the Labour Party,
In none of these cases has it ever been suggested that their later political engagements have somehow invalidated their former politically neutral roles as Crown Servants.
So there is no constitutional objection to former Crown Servants taking on political roles once they have left Crown service.
Does Sue Gray accepting this position damage the image of civil service impartiality?
As we have already seen, it is not unheard of for former Crown Servants to take on political roles after they have left through retirement or resignation.
There has not, to my knowledge, been a single case where a senior Crown Servant making the transition into politics has been accused of political bias in their previous role. Until now.
The main allegation that has been made is that Sue Gray was somehow colluding with Labour to bring down a Conservative Prime Minister when she was charged with investigating the ‘Partygate’ affair.
There is zero evidence to support this allegation which is based on the false logic that if she is committed to Labour now, then she must have always been secretly working for them. If anything it is these groundless allegations that are undermining the impartiality of the Civil Service by alleging they have been politically biased without any evidence.
What about allegations that Sue Gray may have had contacts with Labour whilst she was conducting the #Partygate inquiry?
It is important to say that although this speculation (allegation?) has been made, no evidence has been presented that this was the case.
It is entirely possible – given her various roles in Government – that Sue Gray may have had contact with members of the Opposition on matters entirely unrelated to that inquiry. As was pointed out above, guidance says that this is not an issue as long as it was reported in the usual way.
Sir Keir Starmer has said that there were no contacts between himself and Sue Gray during the Partygate inquiries.
Has Sue Gray broken ACOBA guidance by allowing her potential future role to become public before going through the ACOBA process?
The ACOBA guidance says “Before accepting any new appointment or employment, whether in the UK or overseas, which they intend to take up after they have left the Civil Service, individuals must consider whether an application under the Rules is required.”
It continues “If it is required, they should not accept or announce a new appointment or offer of employment before it has been approved.” (Emphasis added)
Whether or not Ms Gray has formally accepted the job is unknown. If she had that would have been wrong. But it was clearly made public before the ACOBA process has even begun.
But by whom? And how? If it was her, that was clearly wrong. But it is not clear it was her who ‘announced’ it – the Labour Party or Leaders office may have leaked or announced the proposed appointment? If so Ms Gray is guilty of nothing.
Even if she were guilty of both accepting and announcing the post, it is a relatively minor infringement of the process. It might result in ACOBA recommending a ‘pause’ before taking up the role. Which could last for up to two years. In any case a short ‘pause’ of three months or more was almost certain to have been recommended.
The central point is that there are no ‘constitutional’ issues as such with Sue Gray becoming the Leader of the Oppositions Chief of Staff. It may be a slightly novel move, but it’s hardly out of line with many other Crown Servants who have gone over to politics. And having that experience of public service represented in politics is, I would argue, no bad thing. Alongside other non-political experiences in business, trade unions and civil society.
Colin Talbot.
Colin is Emeritus Professor of Government, University of Manchester. He also has relationships with the Cambridge Judge Business School and the Federal Trust. Colin has worked extensively with all levels of British government and public services, including being an advisor to two House of Commons Select Committees and appearing as an expert witness over two dozen times in both Houses of Parliament, the Scottish Parliament, and the Welsh Assembly. He has also advised more than a dozen other governments, from the USA to Japan.
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.
[1] Cambridge University Press, 1950
[2] Original circulated in 1985, amended in 1996.
[3] https://www.gov.uk/government/publications/civil-service-code/the-civil-service-code accessed 04/03/23
[4] https://www.gov.uk/government/publications/directory-of-civil-service-guidance accessed 04/03/23
[5] https://www.gov.uk/government/publications/business-appointment-rules-for-crown-servants/business-appointment-rules-for-crown-servants
accessed 04/03/23
[6] https://www.parliament.uk/globalassets/documents/commons-committees/public-administration/written-evidenceBA2.pdf ACOBA written evidence to the House of Commons Public Administration Select Committee
[7] https://thecritic.co.uk/the-plot-against-boris/ accessed 04/03/23
[8] Nothing too exciting – it was on managerial and organisational matters.