Table of Contents
In 1953 the Scottish legal scholar, DM Walker published an article entitled ‘The Legal Theory of the State’.[1] Professor Walker was concerned by the lack of ‘an adequate legal theory of the State which takes account of modern social, political and economic developments as well as of the true legal position’.[2] Although there were many philosophical and political theories of the state, his aim was to develop a purely legal one. In developing a ‘juristic theory of the State applicable to British conditions since 1947’,[3] Professor Walker drew upon the private law concept of the corporation. According to Professor Walker, the state was ‘a corporation aggregate’ consisting of all people connected with the United Kingdom. He continued:
This corporation has ‘a managerial body’ called the Government which comprises (i) an hereditary official variously called The Queen, the Sovereign, the Monarch, the Crown, and (ii) a body of directors chosen from the legislative assembly called variously the Government, the Cabinet, or the Heads of State. The managerial body acts in the interests of the persons who form the corporation through (a) a legislative assembly partly hereditary and partly elected by the adult members of the corporation, (b) a body of executive and administrative officials with departments and subordinate staff, and (c) a number of individuals empowered to adjudicate on disputes and apply to individuals the rules of law.[4]
For a distinguished private lawyer, the topic of Professor Walker’s lecture seemed counter-intuitive. At a time of an expanding state and an expanding public sector, it seemed curious to locate a theory of the state in a private law model which at the time was politically contestable, with some of its commanding heights vulnerable to requisition by the state through nationalisation.[5] As social democracy was to expand in the years immediately after the article was published, it was to look even more curious. It now seems remarkably prescient.
The simile of the corporation now has a very contemporary ring in an era of active privatisation and outsourcing of state activity. But it also has a contemporary ring in terms of the changes that are taking place to the process of government and to the relationship between the government and the people, who ‘have periodical opportunities to change the elected element in the legislative assembly and such changes may result in changes in the body of directors and in the policy of the board’.[6] Privatisation has been associated mainly with the sale of public corporations, notably the utility companies. But there has been a different kind of privatisation of central government itself, though here the privatisation has taken a different form. The privatisation of public corporations took the form of a series of events whereby they were sold to privately owned companies, albeit subject to public regulation.[7] In the case of central government activity, privatisation has been a continuing process. This process has seen the adoption of private sector attitudes in which the state is viewed as a corporation with many of the attributes of a corporation. The adoption of these private sector attitudes has had major implications for the role of the civil service within the structure of government, and coincides with a renewed emphasis on efficiency and delivery. The purpose of this chapter is to document the recent privatisation of the civil service, which has at least six dimensions. These relate to civil service focus, civil service structure, civil service values, civil service employment practices, civil service law and civil service regulation.
The civil service occupies only part of the public sector. Public sector workers include those employed by local authorities responsible for roads, schools, fire, police, and rubbish collection and by bodies such as the National Health Service, said to be the largest employer in the world.[8] Workers employed by these authorities are not civil servants, a group who are employed directly by central or devolved governments. The closest we have to a legal definition is to be found in the Crown Proceedings Act 1947 which defines a civil servant as ‘a servant of the Crown working in a civil capacity’, though there are a number of exceptions.[9] The civil service has thus operated beyond the scope of transparent legal rules, and to this day is governed by royal prerogative.[10] It is by virtue of the prerogative and not legislation that the Crown has authority to appoint, determine terms and conditions of employment, and has authority to dismiss at pleasure. But this is not to deny that there is also legislation (such as the Official Secrets Act 1989) which has a particular (though not exclusive) application to civil servants.[11] There are now about 500,000 civil servants in Britain, representing about 1.7 per cent of the labour force, with the public sector generally accounting for some 18 per cent of Britain’s 24 million or so workers. The role of civil servants varies enormously, from direct contact with ministers, to the delivery of service in benefit offices, to the collection of taxes.
There is a growing sense in which the role of the civil servant is changing, though this may simply obscure the fact that civil servants have historically provided a range of functions.[12] At one end are the civil servants engaged in advice to ministers and the development of policy. To this end civil servants were supposed to be politically neutral in order to provide independent advice to ministers of any political party.[13] Although their legal status was one of great vulnerability, in practice civil servants enjoyed great security of tenure, designed to enhance this sense of the civil servant as a fearless provider of advice.[14] There are some who would argue that political neutrality was not the same as ideological neutrality, with political sociologists contending that civil servants were part of the institutional structure of the state and one of the great forces of conservatism. As explained by Miliband, ‘[s]enior civil servants in Britain constitute a formidable bloc of power, more cohesive and resourceful than any other element in the state, with the possible exception of the cabinet, but only if the cabinet is united, and determined to have its way’.[15] In recent years, many senior civil servants have become much more highly visible for a number of reasons related to the changes in the structure and organisation of the civil service. It is also the case that civil servants are now brought into the limelight as a result of investigations by parliamentary committees.[16]
It is perhaps curious to encounter concerns from the Left about the loss of civil service independence and impartiality. Yet there is a growing concern about the ‘politicisation’ of the civil service at the highest level, as revealed in the following exchange between the Cabinet Secretary (Sir Andrew Turnbull) and a backbench Labour MP. The occasion was a meeting of the House of Commons Public Administration Committee, one of the scrutiny committees of the House, and earlier in the proceedings Sir Andrew had denied that the civil service was becoming ‘politicised’.[17] In what follows, neither side gave much ground, and in boxing terms we might say that the match ended in a draw. For the record it went like this:
Q133 Mr Hopkins: If I could just turn to another article in The Guardian about the politicisation of the Civil Service. John Chapman, one of your former colleagues, wrote an article this week in The Guardian saying that the Civil Service is so politicised that its impartiality is just a myth. Do you think that is fair comment?
Sir Andrew Turnbull: No, I do not think it is fair comment. I do not think things have changed. This implies that there has been some sort of sea change, that we now behave in some completely different way, but it does not feel like that. The kind of people who get to the top of departments are the same kind of people who used to get to the top of departments. Out there in the field in the work of Job Centre Plus, this whole politicisation debate just does not arise. They are getting on with their work. It is a Whitehall issue and I do not think that the change in the special adviser cadre is capable of producing the sea change that is described there.
Q134 Mr Hopkins: He goes on to describe how it works and how people have been gradually moved out and replaced, not by this broad range of views that you suggest, but actually by people whom he describes as minimalist free traders who believe in a very minimal role for Government. I think that would fit a description of your good self.
Sir Andrew Turnbull: No. The Civil Service has been expanding over the last four years. The Government are not pursuing a minimalist policy. They believe that public services can do good for society and economic performance. I just do not see where this minimalist argument comes from. Most people argue that the Government are actually too intrusive. This does not capture the reality of what is going on.
Q135 Mr Hopkins: Can I just take you back to a question I asked at a previous meeting of the Committee. When you appeared before us before I asked about privatisation and contracting out of public services where, in future, the provision of these services would be done by people in the private sector. You said that this was the way of the world and that there were just a few remaining areas of Europe where social democracy still has a little bit of a grip. That was your view and you seemed to be quite enthusiastic about it. It certainly fits in with the Government view.
Sir Andrew Turnbull: The Prime Minister has a slogan that what matters is what works and that the duty of the state is to see that certain services are provided. He adopts a quite pragmatic view of, who do we enlist to deliver on behalf of the state? If you look at what is happening in the Health Service, first of all the whole of primary care is done by enlisting private contractors. These are all self-employed people. Diagnostic and treatment centres are a mixture, some of them are profit-earning dividend-distributing companies, some of them are different kinds of NHS establishments. He is saying that, if someone will deliver education services, prison services or schools, we are prepared to look at them whether they are private sector, voluntary sector, local government or central government.
Q136 Mr Hopkins: We know the Prime Minister’s view and the drift of Government. I am concerned about the Civil Service and what John Chapman is suggesting is that, over a long period, there has been a squeezing out of anyone who has fuddy-duddy social democratic views. He uses the example of one of his friends who was moved out and he never heard of him again. Indeed, later on, he himself was offered a regional job or resignation. It sounds like Mr Malenkov going to manage a small power station in Siberia!
Sir Andrew Turnbull: I do not know who Mr Chapman is and I cannot comment on it. My experience over 30 years is that ministers are looking for people who can make things happen, they are not interested in whether you have worked with a minister of a different political persuasion in the past or what your political view is. The question is, are you capable of delivering whatever the department —
Q137 Mr Hopkins: Yes but, if I may interject, lower down the Civil Service, these appointments are not made by ministers, they are made within the Civil Service. Is it not the case and has it not been the case over a prolonged period that an ideology has taken over the Civil Service which fits in very much with the ideology of recent Governments which is for the minimal state, for the privatisation and marketisation of public services, and that anybody who disagrees with that at a lower level is gradually being moved out?
Sir Andrew Turnbull: But that is an inaccurate description of the present Government’s policies.
Q138 Mr Hopkins: I perhaps exaggerated slightly but not very.
Sir Andrew Turnbull: They do not believe in ‘big state’ either. They believe that public services contribute value in various ways to society. They have actually increased public spending. They have increased the number of civil servants and they have increased the number of public servants.
Although there are recent studies which indicate the continuing political influence of civil servants in the legislative process,[18] this is a function which is being challenged by a number of developments. The first and most important of these is the centralisation of government, the growth of so-called joined up government, and the reduced autonomy of individual government departments as a result.[19] In the words of Sir Andrew Turnbull,
[t]he Prime Minister wanted to create a stronger centre and also make it a richer mix of special advisers as against civil servants. That is the interesting part of the constitutional change.[20]
Under New Labour we have seen a huge expansion of the Prime Minister’s Department staff, some of whom were previously employed by the Labour Party. According to the current Cabinet Secretary, ‘there has been roughly a doubling of the number of special advisers from 36/37 to 70-something’, with ‘most of that increase, 24 of the 36 increase’ being accounted for by Numbers 10 and 11 Downing Street.[21] Number 10 now orchestrates the government’s agenda and sets targets and priorities for every other department. In doing so it works with the Treasury, which initiated Public Service Agreements with individual departments.[22] These departments are required to identify their objectives and targets on a three-yearly cycle, with accountability to the Treasury for performance. Performance appraisals are published on departmental websites. According to the former Cabinet Secretary and Head of the Civil Service, Lord Butler, ‘there is too much central control and there is too little of what I would describe as reasoned deliberation which brings in all the arguments’.[23] Related to this is the growth in the number of Specialist Advisers to ministers,[24] with uncertainty about the boundaries of their role: is it to advise and assist or do they operate as ‘a layer at the top of the Civil Service between the minister and the rest of the Civil Service’?[25] Whatever the answer, this is a matter also addressed by Lord Butler who said that ‘what happens now is that the government reaches conclusions in rather small groups of people who are not necessarily representative of all the groups of interests in government, and there is insufficient opportunity for other people to debate, dissent and modify’.[26]
These developments reflect the growing pre-occupation of government with delivery, particularly with the delivery of public services. Although associated with Blair, this is a feature of government that can be traced back to the Major years.[27] As Bogdanor explains:
There came to be less concern with constitutional principles and procedures, the emphasis being placed instead on the effectiveness of the public sector, its output. Indeed, the dominant theme of the public management reforms of the 1980s and 1990s may be summed up in a phrase often used by John Major, the privatisation of choice. The aim was to give the consumer the same rights in respect of the public services as were enjoyed by the shopper at Marks & Spencer or Sainsbury’s.[28]
There is a sense in which policy is developed by No 10 and the No 10 Policy Unit, and that the function of the civil service is more clearly related to delivery. This is reflected by the establishment of the Prime Minister’s Delivery Unit in June 2001, with an ‘over-riding mission’ to ‘ensure the delivery of the Prime Minister’s top public service priority outcomes by 2005’.[29] According to the government, the Unit reports to the Prime Minister and
works in partnership with the Treasury, No. 10, other parts of the Cabinet Office and stakeholder departments, to assess delivery and provide performance management for key delivery areas, and has a shared responsibility with the Treasury for the joint Public Service Agreement (PSA) target.[30]
It is important to note here the extent to which departmental activity is subordinated to ‘ruthless prioritisation’ and the enhanced focus ‘on the Prime Minister’s highest priority public service delivery areas’. According to Downing Street,
a team of around 40 people, drawn from the public and private sectors, carry out the Unit’s work. The Unit also draws on the expertise of a wider group of Associates with experience of successful delivery in the public, private and voluntary sectors.[31]
The influence of the private sector is one that is to be repeated as this story of change unfolds, but it takes place in an environment in which the Prime Minister is said to be ‘operating as chief executive of … various subsidiary companies’.[32]