THE DUTIES OF CIVIL SERVANTS

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DEPARTMENTAL EVIDENCE AND RESPONSES TO SELECT COMMITTEES

(EXTRACTS FROM WHAT ARE COMMONLY CALLED THE "OSMOTHERLY RULES")

(Office of Public Service, 1980, as amended in 1997)


SECTION 3: ROLE 0F OFFICIALS GIVING EVIDENCE TO SELECT COMMITTEES

General

37 Officials who give evidence to Select Committees do so on behalf of their Ministers and under their directions.

38. This is in accordance with the principle that it is Ministers who are directly accountable to Parliament for both their own policies and for the actions of their Departments. Officials are accountable to Ministers and are subject to their instruction; but they are not directly accountable to Parliament in the same way. This does not mean, of course, that officials may not be called upon to give a full account of Government policies, or indeed of their own actions or recollections of particular events, but their purpose in doing so is to contribute to the central process of Ministerial accountability, not to offer personal views or judgements on matters of political controversy (see paragraphs 48-49), or to become involved in what would amount to disciplinary investigations which are for Departments to undertake (see paragraphs 70-74).

39. This Guidance Note should therefore be seen as representing standing instructions to officials appearing before Select Committees. These instructions may be supplemented by specific Ministerial instructions on specific matters.

Summoning of Named Officials

40. By the same principle, it is customary for Ministers to decide which official or officials should represent them. Select Committees have generally accepted this position.

41. Where a Select Committee indicates that it wishes to take evidence from a particular named official, Ministers will usually agree to meet such a request, but this is subject to two important qualifications:

(a) Ministers retain the right to suggest an alternative official to that named by the Committee if they feel that the former is better placed to represent them. While the Committee is under no obligation to accept the Minister's proposal, it is open to the Minister to appear personally before the Committee in the unlikely event of there being no agreement about which official should most appropriately give evidence.

(b) it has been agreed that it is not the role of Select Committees to act as disciplinary tribunals (see paragraphs 70-74). A Minister will therefore wish to consider carefully a Committee's request to take evidence from a named official where this is likely to expose the individual concerned to questioning about their personal responsibility or the allocation of blame as between them and others This will be particularly so where the official concerned bas been subject to, or may be subject to, an internal departmental inquiry or disciplinary proceedings. Ministers may, in such circumstances, wish to suggest either that he give evidence personally to the Committee or that a designated senior official do so on their behalf.

42. If a Committee nonetheless insists on a particular official appearing before them, contrary to the Minister's wishes, the formal position remains that it could issue an order for attendance, and request the House to enforce it. In such an event (so far unprecedented) the official, as any other citizen, would have to appear before the Committee but, in all circumstances, would remain subject to Ministerial instruction under the terms of this Guidance and of the Code.

Agency Chief Executives

43 Where a Select Committee wishes to take evidence on matters assigned to an Agency in its Framework Document, Ministers will normally wish to nominate the Chief Executive as being the official best placed to represent them. With Agency Chief Executives have managerial authority to the extent set out in their Framework Documents, like other officials they give evidence on behalf of the Minister to whom they are accountable and are subject to that Minister's instruction.

Position of Retired Officials

44. Given the above, it is extremely rare, but not unprecedented, for Committees to request evidence from officials who have retired. A Committee could, again, issue an order for attendance if it chose. However, retired officials cannot be said to represent the Minister and hence cannot contribute directly to his accountability to the House. It is primarily for these reasons, as well as for obvious practical points of having access to up to date information and thinking, that Ministers would expect evidence on Government matters to be given by themselves or by serving officials who report to them.

External Expert Witnesses

45 If Departments wish to include any external experts in the team of officials giving evidence, the Clerk should Be consulted with an explanation of the reasons. Most Committees are willing to agree to departmental requests of this kind but they are not obliged to do so.
 
 

SECTION 4. EVIDENCE TO SELECT COMMITTEES

4A. PROVISION 0F EVIDENCE BY OFFICIALS: CENTRAL PRINCIPLES

General

46. The central principle to be followed is that it is the duty of officials to be as helpful as possible to Select Committees. The Government's wider policies on openness to Parliament and the public are set out in the Code of Practice on Access to Government Information. Officials should be as forthcoming as they can in providing information under the terms of the Code, whether in writing or in oral evidence, relevant to a Select Committee's field of inquiry. Any withholding of information should be limited to reservations that are necessary in the public interest; this should be decided in accordance with the law and the exemptions as set not in the Code.

Accuracy of Evidence

47 Officials appearing before Select Committees are responsible for ensuring that the evidence they give is accurate. They will therefore need to be fully briefed on the main facts of the matters on which they expect to be examined. This can be a major exercise as a Committee's questions can range widely and can be expected to be testing. Should it nevertheless be discovered subsequently that the evidence unwittingly contained factual errors, these should be made known to the Committee, usually via the Clerk, at the earliest opportunity. Where appropriate, a correcting footnote will appear in the published transcript of the evidence.

Discussion of Government policy

48. Officials should as far as possible confine their evidence to questions of fact and explanation relating to government policies and actions. They should be ready to explain what those policies are; the justification and objectives of those policies as the Government sees them; the extent to which those objectives have been met; and also to explain how administrative factors may have affected both the choice of policy measures and the manner of their implementation. Any comment by officials on government policies and actions should always be consistent with the principle of civil service political impartiality. Officials should as far as possible avoid being drawn into discussion of the merits of alternative policies where this is politically contentions. If official witnesses are pressed by the Committee to go beyond these limits, they should suggest that the questioning should be referred to Ministers.

49. A Select Committee may invite specialist (as opposed to administrative) officials to comment on the professional or technical issues underlying government policies or decisions. This can require careful handing where Committees wish to take evidence from, for example, government economists or statisticians on issues which bear on controversial policy questions and which are also matters of controversy within the respective profession. Such specialists may find themselves in some difficulty if their own judgment on the professional issues has, or appears to have, implications that are critical of Government policies. It is not generally open to since witnesses to de scribe or comment upon the advice which they have given to Departments, or would give if asked. They should not therefore go beyond explaining the reasoning which, in the Govemment's judgement, supports its policy. The status of such evidence should, if necessary, be made clear to the Committee. If pressed for a professional judgement on the question the witness should, if necessary, refer to the political nature of the issue and, as above, suggest that the line of questioning be referred to Ministers.

Provision of Information Through Memoranda

50. The Government's commitment to provide as much information as possible to Select Committees is met largely throngh the provision of memoranda, written replies to Committees' questions and oral evidence from Ministers and officials. It does not amount to a commitment to provide access to intemai files, private correspondence, inciuding advice given on a confidentiai basis or working papers. Should a Committee press to see since documents, rather than accepting written or oral evidence on the subject, Departments should consuit their Ministers and Machinery of Government and Standards Group, OPS.

4B PROVISION OF INFORMATION

Conduct of Individual Officials

70. Occasionally questions from a departmentally-related Select Committee may appear to be directed to the conduct of individual officials, not just in the sense of establishing the facts about what occurred in making decisions or implementing Government policies, but with the implication of allocating individual criticism or blame.

71 In since circumstances, and in accordance with the principles of Ministerial accountability, it is for the Minister to look into the matter and if necessary to institute a formal inquiry. Since an inquiry into the conduct and behavior of individual officials and consideration of disciplinary action is properly carried not within the Department according to established procedures designed and agreed for the purpose, and with appropriate safeguards for the individual. It is then the Minister's responsibility to inform the Committee of what has happened, and of what has been done to put the matter right and to prevent a recurrence. Evidence to a Select Committee on this should be given not by the official or officials concerned, but by the Minister or by a senior official designated by the Minister to give since evidence on the Minister's behalf.

72. In this context, Departments should adhere to the principle that disciplinary and employment matters are a matter of confidence and trust (extending in law beyond the end of employment). In since circumstances, public disclosure may damage an individual's reputation without that individual having the same "natural justice" right of response which is recognised by other forms of tribunal or inquiry. Any public information should therefore Be cast as far as possible in ways which do not reveal individual or identifiable details. Where Committees need since details to discharge their responsibilities, they should be offered in closed session and on an understanding of confidentiality. Evidence on since matters should normally be given on the basis that:

(a) information will not be given about Departmental disciplinary proceedings until the hearings are complete;

(b) when hearings have been completed, the Department will inform the Committee of their outcome in a form which protects the identity of the individual or individuals concerned except insofar as this is already public knowledge;

(c) where more detail is needed to enable the Committee to discharge its responsibilities, since detail will be given but on the basis of a clear understanding of its confidentiality;

(d) the Committee will thereafter be given an account of the measures taken to put right what went wrong and to prevent a repeat of any failures which have arisen from weaknesses in the Departmental arrangements.

73. Select Committees have agreed that it is not their task to act as disciplinary tribunals. Accordingly, if in the course of an inquiry a Select Committee were to discover evidence that called into question the conduct (in this sense) of individual named officials, the Committee should be asked not to pursue their own investigation into the conduct of the person concerned, but to take up the matter with the Minister.

74. If it is foreseen that a Select Committee's line of enquiry may involve questions about the conduct of named officials, it should be suggested to the Committee that it would be appropriate for a Minister or a senior official designated by the Minister to give evidence, rather than the named officials in question. If an official giving evidence to a Committee is unexpectedly asked questions which are directed at His or Beer individual conduct, or at the conduct of another named official, the official should indicate that he wishes to seek instructions from Ministers, and the Committee should be asked to allow time for this.

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THE DUTIES AND RESPONSIBILITIES OF CIVIL SERVANTS IN RELATION TO MINISTERS

Note by the Head of the Home Civil Service - the "Armstrong Memorandum" 1985, as amended on 17 July 1996


1. This note updates and supersedes that first issued by my predecessor in February 1985 (see Written Answer by the Prime Minister to a Parliamentary Question on 26 February 1985, columns 130 to 132), and reissued in an amended form in December 1987 (HC Debates, Written answers 572, 2 December 1987). The constitutional principles set out in 1985 have not changed, but the note has been updated to take account of the Civil Service Code. The right of appeal to the Civil Service Commissioners which is created by that Code supersedes the right of appeal to the Head of the Home Civil Service formerly set out in the Armstrong Memorandum.

2. This note concerns the duties and responsibilities of civil servants in relation to Ministers. It should be read in the wider context of Ministers' own responsibilities, set out in Questions of Procedures for Ministers.

3. 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. There are special cases in which certain functions are conferred by law upon particular members or groups of members of the public service; but in general the executive powers of the Crown are exercised by and on the advice of Her Majesty's Ministers, who are in turn answerable to Parliament. The Civil Service as such has no constitutional personality or responsibility separate from the duly constituted 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. Some civil servants are also involved, as a proper part of their duties, in the processes of presentation of Government policies and decisions.

4. The Civil Service serves the Government of the day as a whole, that is to say Her Majesty's Ministers collectively, and the Prime Minister is the Minister for the Civil Service. 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. The basic principles of accountability of Ministers and civil servants are as set out in the Government's response (Cmnd 9916) to the Defence Committee's Fourth Report of 1985-86:

-Each Minister is responsible to Parliament for the conduct of his Department, and for the actions carried out by his Department in pursuit of Government policies or in the discharge of responsibilities laid upon him as a Minister.

-A Minister is accountable to Parliament, in the sense that he has a duty to explain in Parliament the exercise of his powers and duties and to give an account to Parliament of what is done by him in his capacity as a Minister or by his Department.

- Civil servants are responsible to their Ministers for their actions and conduct.

5. It is the duty of civil servants to serve their Ministers with integrity and to the best of their ability. In their dealings with the public, civil servants should always bear in mind that people have a right to expect that their affairs will be dealt with sympathetically, efficiently and promptly.

6. The British Civil Service is a non-political and professional career service subject to a code of rules and disciplines. Civil servants are required to serve the duly constituted Government of the day, of whatever political complexion. It is of the first importance that civil servants should conduct themselves in such a way as to deserve and retain the confidence of Ministers, and to be able to establish the same relationship with those whom they may be required to serve in some future Administration. That confidence is the indispensable foundation of a good relationship between Ministers and civil servants. The conduct of civil servants should at all times be such that Ministers and potential future Ministers can be sure that confidence can be freely given, and that the Civil Service will at all times conscientiously fulfil its duties and obligations to, and impartially assist, advise and carry out the policies of, the duly constituted Government of the day.

7.The determination of policy is the responsibility of the Minister (within the convention of collective responsibility of the whole 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 good will, whether they agree with it or not.

8. Civil servants are under an obligation to keep the confidences to which they become privy in the course of their work; not only the maintenance of the trust between Ministers and civil servants but also the efficiency of government depend on their doing so. There is and must be a general duty upon every civil servant, serving or retired, not without authority to make disclosures which breach that obligation. This duty applies to any document or information or knowledge of the course of business, which has come to a civil servant in confidence in the course of duty. Any such unauthorised disclosures, whether for political or personal motives, or for pecuniary gain, and quite apart from liability to prosecution under the Official Secrets Acts, result in the civil servant concerned forfeiting the trust that is put in him or her as an employee and making him or her liable to disciplinary action including the possibility of dismissal, or to civil law proceedings. He or she also undermines the that ought to subsist between Ministers and civil servants and thus damages colleagues and the Service as well as him or herself.

9. Civil servants often find themselves in situations where they are required or expected to give information to a Parliamentary Select Committee, to the media, or to individuals. In doing so they should be guided by the policy of the Government on evidence to Select Committees and by the requirements of security and confidentiality. In this respect, however, as in other respects, the civil servant's first duty is to his or her Minister. Thus, when a civil servant gives evidence to a Select Committee on the policies or actions of his or her Department, he or she does so as the representative of the Minister in charge of the Department and subject to the Minister's instructions (note below) and is accountable to the Minister for the evidence which he or she gives. The ultimate responsibility lies with Ministers, and not with civil servants, to decide what information should be made available, and how and when it should be released, whether it is to Parliament, to Select Committees, to the media or to individuals. It is not acceptable for a serving or former civil servant to seek to frustrate policies or decisions of Ministers by the disclosure outside the Government of information to which he or she has had access as a civil servant.

(Note: A Permanent Head of a Department giving evidence to the Committee of Public Accounts does so by virtue of his duties and responsibilities as an Accounting Officer as defined in the Treasury memorandum on The Responsibilities of an Accounting Officer,. but this is without prejudice to the Minister's responsibility and accountability to Parliament in respect of the policies, actions and conduct of his Department.).

10. The previous paragraphs have set out the basic principles which govern the relations between Ministers and civil servants. More detailed guidance can be found in the Civil Service Management Code (which includes the Civil Service Code) and departmental guidance derived from it.

11. Civil servants who believe that they are being asked to act in a way which would breach the Civil Service Code, or in a way which raises a fundamental issue of conscience for them should proceed in accordance with procedures laid down in departmental guidance or rules of conduct. They may also report other breaches of the Code of which they become aware and should report to the appropriate authorities evidence of criminal or unlawful activity.


©Clive Walker Last updated, 1 October 1997
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