Robin Mountfield: If the Civil Service is to survive, it needs the security of legislation

'Much more worrying than the politicisation of people is the way the service itself is being side-lined'

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The latest press stories have shown that the Sixsmith question is not going to go away. Nor is the issue of special advisers and the politicisation of the Civil Service.

The issue is not new. People worried about the role of Harold Wilson's Hungarian economists, Lords Balogh and Kaldor, in the Sixties. It was a live issue under Mrs Thatcher ("Is he one of us?"). But since 1997, things have reached a new pitch. That is why the need for a Civil Service Act has become urgent.

How has this state of affairs arisen? Is it the consequence of systemic failure by the Civil Service – and if so, in what respect: failure to give competent, or congenial, advice; or failure to "deliver", which is the complaint of the present Government? Is it because of corrosive contempt by politicians (of both parties) for the fine checks and balances in the British constitutional convention? Or is it some secular shift, occurring in at least all the main Westminster-style administrations – certainly in Australia and New Zealand, for instance

The British Civil Service is now, apart from Canada's, virtually the only major civil service in the developed world to remain genuinely unpoliticised in its upper reaches. The case for political – or ministerial – appointments to the most senior and the most critical posts is by no means negligible. It is natural for politicians to hanker for senior officials who espouse their policies with open enthusiasm.

Equally, there are powerful reasons for retaining the non-political principle: continuity in work over timescales far longer than the political cycle, professional expertise and the instinct for sceptical analysis as a counterweight to political enthusiasm.

But if we are to move away from political neutrality, it should be only after public debate and not by default.

The first concern is about political influence on appointments – the political jobbery and personal patronage that the Northcote-Trevelyan reforms of 1854 were meant to stop.

There are certainly dangers of this kind. There was concern after the 1997 election about Labour ministers wanting to appoint their own press officers. The inquiry that I chaired (and in which Alastair Campbell took part) reasserted the conventional neutrality of the civil service press officer and set down clearly the fact that that ministers had no power to influence the appointment of press officers, or indeed any other civil servant, from outside. And on the whole they have not done so (though it is said Mr Byers tried to do so over the appointment of Mr Sixsmith's deputy). What they have done, however, exercised influence not on appointment but on dismissals – as the miserable Sixsmith affair and the total departure of pre-1997 heads of information show.

Ministers, however, have not so far tried systematically to put their own people into permanent secretary posts. So far, worries about subversion of the appointments process are about things that might happen rather than what has happened.

What is much more worrying than politicisation of the people in the Civil Service is the way the Service itself is being sidelined: the politicisation of the processes of government. This Government has used special advisers far more intensively than its predecessors in press communication, side-stepping the official machine. The role of special advisers is to provide an additional strand of advice, not to exclude others. At the heart of government, the position of special advisers is becoming more powerful and potentially dangerous, particularly in Number 10, the Cabinet Office and the Treasury. The effect is not so much interference in civil servants' impartiality, as the virtual marginalisation of orthodox civil service advice. No one now envisages a civil service monopoly of advice, but the present danger is the reverse – its effective exclusion.

More widely, there is a danger that "advice" merges into something like executive authority, often presented as the conveying of ministers' (or the Prime Minister's) wishes, though in practice often an interpretation of what Ministers' wishes would be if they were asked. Conveying, and carrying out, the decisions of ministers is the role of accountable civil servants; making decisions that of accountable ministers. If the Government wishes to give anything approaching executive authority to politically appointed individuals, the constitutional way of doing so is to make them accountable by appointing them as ministers. As advisers, they are, in effect, unaccountable. Although nominally under the disciplinary control of the permanent secretary, in practice it is almost impossible for the permanent secretary to exercise any real sanction over people who hold their positions by appointment of the minister.

This is the context in which a possible Civil Service Act needs to be considered. Both the main parties are committed to a Civil Service Act. The last Conservative government gave such a commitment before the 1997 election, and the Labour Party endorsed it at that time and has repeated its intention since.

The intended content of an Act, however, has not been made clear by either party. Both have implied they would seek to entrench the non-political status of the Civil Service. But in practice they are tempted in office to nibble at this acceptance. The case for a Civil Service Act is that it might limit that temptation.

What should it contain? Much is already written down quite adequately in sacred texts – the Civil Service Code and the new parallel one for special advisers, and the Ministerial Code, in particular. These need to be given new authority.

The basic provisions might include:

* Entrenching the present obligation in the Ministerial Code (which now has no legislative backing ) to observe the non-political status of the Civil Service, and to "give fair consideration and due weight to informed and impartial advice from civil servants";

* Entrenching the status of the civil service commissioners, with their existing powers over recruitment, and their power to consider appeals against improper ministerial behaviour, at present held only by virtue of Orders in Council;

* Requiring ministers to include the present Civil Service Code in civil servants' contracts of employment. The code would thus become enforceable on the individual civil servant not directly under statute, but indirectly under general employment law;

* Requiring ministers to impose in a similar way the new Code of Conduct for Special Advisers, and to enforce it – including the prohibition on their going beyond advising ministers. This code, too, would be in a schedule. There is a strong case for limiting the number of special advisers in or under the Act as suggested over the weekend by Iain Duncan-Smith;

* Dealing with the problem of who controls civil service management – by law, the secretary of state, by clear convention the permanent secretary (as the Sixsmith affair has highlighted).

What good would it do? Ministers and officials cannot be made virtuous by Act of Parliament. What a declaratory Act can do, however, is strengthen the restraints, by giving critics a basis of challenge when things go wrong. The sooner an Act on these lines is brought forward, the better for all parts of the body politic.

The writer was Permanent Secretary of the Office of Public Service, 1995-98, and of the Cabinet Office, 1998-99