Volume 15: Government and Public Administration
8. Standards and accountability
The constitutional role of the civil service

8.30 The role of the civil service - to advise Ministers of successive administrations on policy options and to implement their decisions - was underpinned by the principles of impartiality, neutrality and objectivity. These rested largely on convention and precedent. The relevant statutory provisions were restricted to affirming, for example, that civil service appointments would be on merit and that their recruitment would be based on fair and open competition.

8.31 In the 1980s, following the Ponting case ¹ and the Westland affair, ² there was considerable debate about the nature and extent of civil servants' duty towards Ministers. In 1985, Sir Robert Armstrong, then the Head of the Civil Service and Secretary to the Cabinet, drew up guidance on The Duties and Responsibilities of Civil Servants in Relation to Ministers, often known as the 'Armstrong Memorandum'. It said that:

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 . . . The civil service as such has no constitutional personality or responsibility separate from the duly elected 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 . . . The civil service serves the Government of the day as a whole, that is to say Her Majesty's Ministers collectively . . . The duty of the individual civil servant is first and foremost to the Minister of the Crown who is in charge of the Department in which he or she is serving. ³

It continued:

The determination of policy is the responsibility of the Minister (within the convention of collective responsibility of the Government for the decisions and actions of every member of it). In the determination of policy the civil servant has no constitutional responsibility or role distinct from that of the Minister. Subject to the conventions limiting the access of Ministers to papers of previous administrations, it is the duty of the civil servant to make available to the Minister all the information and experience at his or her disposal which may have a bearing on the policy decisions to which the Minister is committed or which he is preparing to make, and to give to the Minister honest and impartial advice, without fear or favour, and whether the advice accords with the Minister's view or not. Civil servants are in breach of their duty, and damage their integrity as servants of the Crown, if they deliberately withhold relevant information from their Minister, or if they give their Minister other advice than the best they believe they can give, or if they seek to obstruct or delay a decision simply because they do not agree with it. When, having been given all the relevant information and advice, the Minister has taken a decision, it is the duty of civil servants loyally to carry out that decision with precisely the same energy and goodwill, whether they agree with it or not. ⁴

8.32 There was some criticism of the Memorandum because of its apparent emphasis on the absolute nature of the duty owed by civil servants to the Government of the day and to their departmental Ministers; and because of the absence of any similar statement about the obligations of Ministers towards civil servants, in particular about what they might properly ask officials to do for them given the presumption of civil service impartiality, neutrality and objectivity. This view of the 'Armstrong Memorandum' was countered in a Cabinet Office memorandum to the Scott Inquiry, ⁵ which was quoted in the Report (November 1994) of the Treasury and Civil Service Committee on The Role of the Civil Service:

. . . the Armstrong Memorandum cannot be given the interpretation that a civil servant has no duties except to the Government of the day...civil servants have a number of [other] duties including, like any other citizen, a general duty to obey the law and to deal honestly. They may also have specific professional duties . . . equally they may have dictates of conscience which are individual to them. The Armstrong Memorandum fully recognises that all these exist and is indeed designed to give guidance on what to do if civil servants feel that they are being given instructions which conflict with them. ⁶

8.33 Having considered this memorandum and other evidence, the Treasury and Civil Service Committee recommended that:

1. a new Civil Service Code should be drawn up;
2. this should incorporate a new appeals procedure to strengthened and independent civil service commissioners, which would be available to a civil servant who was asked to do work which he or she believed to be incompatible with political neutrality; and
3. this should be done by statute and a new Civil Service Act introduced accordingly. ⁷

8.34 The Government accepted the need for a new Civil Service Code, including a right of appeal to independent civil service commissioners, ⁸ and such a code came into effect in January 1996. It maintained the position that civil servants were servants of the Crown, which meant in effect servants of the Government of the day, and that it was to the Ministers of that duly constituted Government that civil servants owed their duties. But this was set in the context of a broader duty on civil servants to act 'with integrity, honesty, impartiality and objectivity'. ⁹ The Code also said that it should be seen 'in the context of the duties and responsibilities of Ministers', which included:

1. the duty to give Parliament and the public as full information as possible about the policies, decisions and actions of the Government, and not to deceive or knowingly mislead Parliament and the public; and
2. the duty not to use public resources for party political purposes, to uphold the political impartiality of the Civil Service and not to ask civil servants to act in any way which would conflict with the Civil Service Code. ¹⁰

8.35 Thus the Code explicitly recognised the reciprocal nature of the duties laid on civil servants and Ministers. It also set out what a civil servant should do if required to act in a way which:

1. was illegal, improper or unethical;
2. was in breach of constitutional convention or a professional code;
3. might involve possible maladministration; or
4. was otherwise inconsistent with the Civil Service Code. ¹¹

First, the official should report the matter internally under the procedures laid down in his or her Department's own guidance for its staff. If the response was not reasonable, he or she might report the matter in writing to the Civil Service Commissioners. Where a matter could not be resolved in a way which the civil servant concerned could accept, the Code was clear that 'he or she should either carry out his or her instructions, or resign from the Civil Service'. ¹²

8.36 The Code formally recognised that civil servants had broader responsibilities to the public and Parliament as well as to their departmental Ministers. However, it was published less than three months before the end of the period with which the Inquiry is concerned. Although the issue of the role, duties and behaviour of civil servants was a matter of public debate throughout that period, 1986-96, it was the 'Armstrong Memorandum' which during that time constituted the formal guidance to civil servants.