Is the Civil Service Accountable to Parliament? Hodge vs O’Donnell spat opens a can of worms.

Is the Civil Service accountable to parliament?

Margaret Hodge MP, the formidable chair of the powerful Public Accounts Committee of Parliament says “yes”. Sir (now Lord) Gus O’Donnell and other ex-Mandarins say firmly “no”. (For details see the Guardian website here). Ironically, emerging in the week that Norman St John-Stevas (Baron St John of Fawsley) died, this dispute dates back to the introduction of the modern Select Committee system he initiated back in the early 1980s.

So who’s right? The answer turns out to be not clear-cut, and something that needs addressing.

The spat arose because Hodge’s Committee summoned an HMRC official, Anthony Inglese, and put him under oath when he refused to reveal to the Committee what advice (as HMRC legal counsel) he’d given about the legality of a tax deal for Goldman Sax.

Tax evasion by Big Finance could hardly be more politically ‘hot’ at the moment.

The position set out by Lord O’Donnell, supported by Lord Butler (another former Civil Service head) is simple. Civil Servants are accountable to Ministers, who are in turn accountable to Parliament – not directly to Parliament. The only exception is the role of ‘Accounting Officer’ – i.e. Civil Servants who are in charge of a departmental or agency budget – who are accountable but only for the proper administration of public funds. If and when they or other civil servants appear before Parliamentary Committees they do so merely as representatives of their Ministers and can say only what their Minister allows them to say.

O’Donnell is basing himself on a tradition enunciated by Lord Armstrong (then Sir Robert, Head of the Civil Service), known as the ‘Armstrong Doctrine’, a memorandum circulated in 1985 after the Clive Ponting Affair. In that Armstrong stated that “The Civil Service as such has no constitutional personality or responsibility separate from the duly elected Government of the day.” (Hennessy, 1989, p346). In other words, they are solely responsible to Ministers.

When it comes to answering to Parliament this position was set out clearly in something known as the “Osmotherly Rules” (Memorandum of Guidance for Officials Appearing before Select Committees, May 1980, by E B C Osmotherly). These were (and still are) an attempt by the Civil Service to stymie the new Select Committee’s (Hennessy 1989, pp 361-363). Osmotherly stated baldly that “Officials appearing before Select Committees do so on behalf of their Ministers.” It went on to say that officials “would remain subject to Ministerial instructions as to how he should answer questions.”

As Peter Hennessy put it “In short, elected MPs were to be denied any real knowledge of the inside workings of the Whitehall machine and any chance of making the bureaucratic brokers of concealed power accountable to the sovereign parliament.” (p362)

So Margaret Hodge is apparently wrong when she says Civil Servants are accountable to Parliament – as far as the Civil Service and successive government’s are concerned they are not. But here’s the thing – none of this is laid down in law, it is merely a ‘convention’ invented by the Monarchy in the 13th century and continued to this day. Mandarins can assert it is so as much as they like, but that does not actually make it part of our law or constitution.

The truth is these quaint, anti-democratic, conventions have been eroding for years. A big change occurred when ‘Executive Agencies‘ were invented in 1988 and suddenly the number of ‘Accounting Officers’ quadrupled. Some of the more independent minded Chief Executives of the new Agencies were only to happy to be more accountable to Parliament on a range of issues, bit just their finances. The erosion was compound by investigations around things like Arms to Iraq and the subsequent Scott Inquiry (1996) that delved into the heart of the Whitehall machine and held individual civil servants to account.

In most other democracies the permanent civil service is much more accountable to both the legislature and the executive branch of government. Britain, or rather Whitehall, lies at one (extreme) end of a spectrum of such relationships, with accountability of the Civil Service to Parliament being very weak in comparison.

Lord Fawsley’s reforms of the early 1980s were meant to redress the balance, and to some extent they have. The big barrier and challenge was then, and remains now, breaking down the mythical status of the ‘Armstrong Doctrine’ and the ‘Osmotherly Rules’ and consigning them to a museum, which is where they belong in a democracy.

Reference: Peter Hennessy, Whitehall, 1989, The Free Press.

5 thoughts on “Is the Civil Service Accountable to Parliament? Hodge vs O’Donnell spat opens a can of worms.

  1. What is considered to be ‘part of our constitution’ if things that are ‘merely’ conventions dating back to the C13 are excluded? Very convenient with an unwritten constitution to pick and choose as suits the situation.
    Regarding accountability to select committees, maybe the changing status of CSs shouldn’t be looked at in isolation. We seem to be seeing a shift in the level of power of select committees these days (e.g. hacking) as ours look to Washington and the influence and visibility legislature committees can retain. In a world where everyone, within Whitehall or without, is accountable to select committees, not surprising that they want civil servants covered in the same fashion.

  2. The key point in relation to HMRC is that it is a non-ministerial department (no minister because of concerns about political interference in taxation decisions) – but with no minister in Parliament to answer questions and no accountability of civil servants – who then is to be held to account? In any event, the senior civil servants here were also hiding behind the doctrine of taxpayer confidentiality, which the PAC disputed because HMRC and the PAC adopted different interpretations of the relevant provision in the Commissioners for Revenue and Customs Act 2005.

  3. How about an assumption of corruption bill? Since power corrupts, those with power, both Ministers and Permanent Secretaries should be assumed to be corrupt until they prove otherwise. Every year they will have to go to prison and prove their innocence before they are let out.

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