I'm sorry, minister, but that's a swindle

THE APPEARANCE of Margaret Thatcher, Alan Clark and others before the Scott inquiry has shown that the conventions governing relationships between minister and civil servants are becoming increasingly unworkable.

The central principle governing these relationships is ministerial responsibility. It rests on the premise that the Commons is provided with sufficient information to make government accountable. But suppose ministers seek to prevent that information reaching Parliament. Increasingly, it seems, ministers are taking it upon themselves to decide what information they should supply. In 1989, they ruled against publicising changes in the guidelines governing the sale of arms to Iraq; more recently, they decided that they were under no obligation to reveal there had been official contacts with the IRA.

Such attempts to avoid ministerial responsibility pose serious ethical problems for civil servants if they are not themselves to become compromised. What should an official do if a minister misleads Parliament? The only redress, under the Armstrong Code of 1987, is to consult the permanent secretary of the department and then the head of the Home Civil Service, Sir Robin Butler. The Scott inquiry has shown how ineffective this procedure is. That is hardly surprising. It cannot be realistic to expect an ambitious civil servant to complain to the head of the Civil Service, who is also, as Cabinet Secretary, in effect an adviser to the Prime Minister.

Earlier this year, giving evidence to the Treasury and Civil Service Select Committee, Sir Robin declared that he had received only one such complaint in five years. Yet the First Division Association, representing senior civil servants, has declared that it receives inquiries from its members 'on a fairly regular basis about being asked to do work which they believe to be inappropriate to the status of politically neutral civil servants'.

The Armstrong Code restates the standard conventions of the constitution, such as ministerial responsibility, but fails to outline any effective remedy when the conventions are no longer observed. As Joe Haines, a former press secretary to Harold Wilson, has said, it was 'like a plea for the retention of the amateur captain in county cricket. It is romantic and unrealistic. It deals with a situation which no longer exists. Cricket has become professionalised . . .'.

Our current arrangements deny the possibility of any constitutional reference point above that of the government of the day. Yet civil servants are servants of the state, not of the government; and a moment's reflection is enough to show that, while it may be in the interest of the government to mislead Parliament, it is not necessarily in the interest of the state. While, in general, the interests of the state and the government will coincide, officials deserve proper guidance as to how they should act when a divergence arises.

The Armstrong Code should be replaced by a new statement of the principles needed to enable the constitutional relationship between ministers and civil servants to work effectively. This statement would offer guidance not only to civil servants but also to ministers, specifying the duties that ministers owe to their officials, and above all the duty of respecting the political

neutrality of civil servants.

At present, the document Questions of Procedure for Ministers declares merely that ministers have a 'duty to refrain from asking or instructing civil servants to do things which they should not do'. That is a tautology rather than guidance.

In addition to a modern code of ethics, there needs to be a point of appeal beyond the Civil Service to an independent arbitrator, who can adjudicate when the conventions have been broken. There is already an independent Civil Service Appeal Board to which officials can appeal on matters of discipline; should there not be a similar independent appeals procedure covering ethical matters?

Sir Douglas Wass, a former Permanent Secretary to the Treasury, has proposed that an 'Inspector General' or Ombudsman for the Civil Service might fulfil this function, operating in a quasi-judicial capacity and irremovable by ministers. Where there was a finding of improper behaviour against a minister, the minister would be invited to correct it. If he or she declined to do so, the Inspector General would have, in the last resort, the right to report the minister to a Commons select committee.

Like the parliamentary ombudsman, an Inspector General for the Civil Service would serve to strengthen rather than weaken ministerial responsibility. The ombudsman strengthens responsibility by identifying maladministration and inviting the minister to take corrective action. The Inspector General would strengthen ministerial responsibility by ensuring that ministers would no longer be able to shuffle responsibility on to civil servants, as Baroness Thatcher and some members of her administration have sought to do at the Scott inquiry.

The first head of the Civil Service, Sir Warren Fisher, declared in 1930 that he wanted in the Civil Service, 'men who will have the guts to stand up to their ministers. We shall find ministers more and more disposed to do shady things - and the civil servants of that day will have to possess the courage to say to their political chiefs, 'That is a damned swindle, sir, and you can't do it'.'

The Scott inquiry has shown the prescience of Sir Warren's remarks. But we shall only secure civil servants of guts and courage if we give them the constitutional protection which can alone enable them to serve the state, and not just the government of the day.

Vernon Bogdanor is Reader in Government, Oxford University and a Fellow of Brasenose College.