Line to take - LTT131 - Risk to the role and integrity of Civil Service
- FOI/EIR: FOI, EIR
- Section/Regulation: s35, s36, reg 12(4)(e)
- Issue: Risk to the role and integrity of Civil Service
- Source: Information Tribunal
- Details: DfES / The Evening Standard’ February 2007); Scotland Office (08 August 2008); Scotland Office (05 August 2008); DCMS (29 July 2008); MOD / Evans (20 July 2007)
- Related Lines to Take: LTT43, LTT61, [LTT104]], LTT127, [[LTT128], LTT129, LTT130, LTT132, LTT133
- Related Documents: EA/2006/0006 (DfES), EA/2007/0070 (Scotland Office), EA/2007/0128 (Scotland Office), EA/2007/0090 (DC MS), EA/2006/0027 (MoD), “How to be a civil servant”
- Contact: LA
- Date: 03/11/2008
- Policy Reference: LTT131
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
Arguments about the risk to the role and integrity of the civil service have been made on the following grounds
- If information were to be released that identified individual civil servants with policies, the co-operation between civil servants and ministers would be lost, leading to poorer quality advice and decision making.
- If the advice from, or discussions of, civil servants are disclosed, then politicians will react by seeking advice from other sources or adopting other less formal mechanisms for decision making, thus undermining the role of the civil service.
- Disclosure of the role and identity of the civil servant carries the further risk that accountability for decisions might be seen as passing from the minister, the elected representative, answerable to Parliament, to the unelected official.
The weight to be given to such arguments will vary from case to case as discussed below, how these arguments will often carry little weight and / or have limited application.
With regard to the naming of officials, whilst fairness to the individual civil servant may be relevant from a section 40 FOIA or DPA perspective, the focus of s35 arguments in this respect should be on the extent to which the role and integrity of the civil service might be undermined by accountability for Government policy and political decisions being seen as passing from minister to official.
It is possible that information that would not be exempt under s40 could be withheld under the public interest test. Conversely information that would be released following the section 35 public interest test, might be considered as exempt under section 40.
Arguments about the risk of compromising the role of the civil service are usually made in relation to the public interest test under s35 FOIA. However (as per LTT128 wider impact of disclosure on good government) they may also apply to some s36 cases and to some information falling under Regulation 12(4)(b) of the EIR. The arguments are summarised in Scotland Office v The Information Commissioner (EA/2007/0070) as concerning “the risk to the role and integrity of the civil service by, inter alia, identifying Officials with policies which were no longer in favour thus alienating them from future political masters.”
The guiding principles (see LTT43) most relevant to these arguments are (viii) junior officials, (ix) relationship between officials and politicians, (xi) names of civil servants.
The various risks to the role and integrity of the Civil Service that have been argued, and the Tribunal’s response to them are provided below.
Public Identification of civil servants with policies
The argument here is that if information were to be released that identified individual civil servants with policies then this would undermine the impartiality and neutrality of the civil service. Cooperation and engagement between civil servants and ministers would be lost and the integrity the civil service would thus be compromised, leading to poorer quality advice and decision making.
In the DFES case Lord Turnbull, formerly Cabinet Secretary and head of the civil service and appearing as a witness for the DfES “referred to the suspicion, sometimes exhibited by ministers in an incoming administration or even a new minister of the same administration towards an official apparently identified with a policy which was no longer in favour. He asserted that full identification of officials would make it “that much more difficult” (para 30)
Another witness for the DfES, Mr Paul Britton, Director General of the Domestic Policy Group in the Cabinet Office “reiterated the perceived danger that identification of a civil servant with a policy alienate him from a new team of political masters.” (para 36)
The DfES Tribunal’s response to this evidence was given at paragraph 75, principle (ix) of its decision, where it said “we are entitled to expects of our politicians..., a substantial measure of political sophistication and, of course, fair-mindedness. To reject or remove a senior official because he or she is identified with a policy which has now lost favour..., would plainly betray a serious misunderstanding of the way the executive should work. It would, moreover, be wholly unjust. We should therefore proceed on the assumption that ministers will behave reasonably fairly towards officials By the same token, new ministers can expect from that official the same level of engagement with the policies they now wish to pursue”
In Scotland Office v The Information Commissioner (EA/2007/0070) the Scotland Office argued “Inappropriate disclosure of advice would also undermine the impartiality of the civil service. Civil servants would become publicly associated with unpopular or controversial Ministerial polices with the result that they would no longer be seen as politically neutral and may not be able to command the confidence of future Ministers” (para 53)
In Scotland Office v The Information Commissioner (EA/2007/0128) the public authority made the same argument as set out in relation to EA/2007/0070 and additionally argued that "Inappropriate" disclosure of the advice of civil servants to Ministers, and communication between officials containing the views of Ministers, has the capacity to undermine the relationship of trust and confidence that exists between Ministers and civil servants and risks compromising both the convention of ministerial accountability and civil service neutrality. “ (para 39).
The Tribunals in both of these Scotland Office cases referred to the DfES Tribunal’s approach in relation to these arguments and did not add any further comments of significance in this respect.
Even in the Department for Culture Media and Sport v The Information Commissioner where the Tribunal ultimately ordered disclosure of the information in question, the importance of the standards expected from civil servants was acknowledged (para 40) “some emphasis was placed in cross examination on the role of professional integrity and the standards required in the Civil Service code as a bulwark against possible degradation of relationships between Ministers and civil servants caused by the possibility of their communications being disclosed under FOIA, including the integrity of advice and record keeping. We agree that integrity and good standard have a part to play and that they must be viewed in the context of the legal framework in place from time to time” The witness for the DCMS had conceded in cross examination that “there had not been any discernable deterioration in the standard of good conduct of civil servants since the [DfES] decision was published” (para 35).
The Commissioner’s position is that whilst he would accept that the consequences set out above would compromise the effectiveness and neutrality of the civil service if they were to occur (and thus not “ulterior considerations”) he agrees with the Tribunal’s position that the standards that should realistically be able to expect from both officials and politicians should limit this effect. In summary, the risk as argued by public authorities to date is overstated. Consequently (unless more convincing, information specific arguments are provided in any particular case) arguments of this nature should be afforded little weight in the public interest test.
Increased use of special advisers - sofa government - government by cabal
In broad terms the phrase ‘sofa government’ or ‘government by cabal’ refers to a reliance on political advisers appointed directly by politicians for advice rather the professional, politically neutral, civil service (The term was used in the Butler Report on the Intelligence on the Weapons of Mass Destruction). The suggestion is that if the advice from, or discussions of, civil servants are disclosed, then politicians will react by seeking advice from other sources or adopting other les formal mechanisms for decision making, thus undermining the role of the civil service.
In the DfES Tribunal case the Tribunal referred to Lord Butler’s description of ‘sofa government’ as “the increase in influence of special political advisors, working independently of senior civil servants and free of public scrutiny, supplanting and undermining the normal processes of policy-making (para 31). This danger was “forcefully highlighted by both Lord Turnbull and Mr Britton, supported by quotations from cabinet ministers from the present and former administrations.” (para 31). Mr Britton “warned the Tribunal with a particular vigour of the danger of more “sofa” government” (para 36).
The Tribunal’s response to these arguments was given at paragraph 82 of its decision as follows: “We recognise the dangers of increasing “sofa government” or “government by cabal” as it was termed by Mr Britton. The use of political advisors rather than career civil servants goes back at least to Churchill and represents a growing trend, lamented by oppositions of whichever political complexion. Whether it is likely to accelerate if there is a greater risk of disclosure of the dealing of civil servants with each other and with ministers we do not feel confident to predict. It will certainly not be curbed by any decision of ours.
As can be seen from the above the Tribunal did not completely dismiss this point. It concluded ‘sofa government’ will occur with or without FOI disclosures, but left open the question as to whether such disclosures will “accelerate” the use of political advisors rather than civil servants.
Implicit in the Tribunal’s recognition of the dangers of increasing ‘sofa government’ is its acceptance that it is not in the public interest to undermine the role of the civil service in this way. This point was also implied in paragraph 72 where the Tribunal said “We accept without question their [the witnesses] assertion as to the vital importance of the principles listed in the last paragraph and others which they cited.
The ICO view is that it does not necessarily follow that the increased use of political advisors undermine the political neutrality or impartiality of the civil service, although it may arguably undermine the importance of its role as the primary provider of ministerial advice — in other words the danger is that although the civil service will remain politically neutral, ministers will increasingly look elsewhere for the provision of advice and identification of policy options. If it is accepted that politically neutral and impartial advice ultimately leads to better quality decisions and more robust and effective polices, then the increased use of sofa government carries the risk of less robust decisions and policy formulation.
In later Tribunal cases little comment has been made on this issue beyond referring to or adopting the DfES guiding principles.
Where arguments of this nature are made by the public authorities, the ICO position would be to follow the approach discussed above. It should be taken into account when applying the public interest test that the increased use of political advisors was already evident prior to the introduction of FOIA, so it is only any additional effect resulting from disclosure under FOIA that will be relevant. However, if a public authority is able to make convincing arguments that such an additional effect (or acceleration) would result from the disclosure in question then this may be taken into account is the extent to which the role of the civil service would be additionally undermined by any additional increase in the use of political advisors flowing from disclosure under FOIA, and the extent to it is accepted that this would adversely effect the quality of Government decision and policy making, that is relevant here.
Accountability seen to pass from minister to official
The argument here was first expressed at Tribunal in the DfES case. Lord Turnbull argued (at para 33) that “Disclosure of the role and identity of the civil servant carried the further risk that accountability for decisions might be seen as passing from the minister, the elected representative answerable to Parliament, to the unelected official.
The Tribunal responded to this argument at paragraph 84 of its decision stating that “We recognise the importance of maintaining the constitutional position that Ministers, not civil servants, are answerable to Parliament and public for the actions of their department. We also recognise that officials should be able to have robust and honest discussions with their ministers without fear that such frank discussions will make them a political football with possible adverse consequences for their careers. As we have already said, that is not, of itself an argument for withholding the name of civil servants but the wider impact point may require consideration in some cases.
At paragraph 75 the Tribunal had already stated that:
- “The most senior officials are frequently identified before selec t committees, putting forward th department’s position whether or not it is their own. “, and that
- “On other hand, there may be good reason in some cases for withholding the names of more junior civil servants who would never expect their roles to be exposed to public gaze. These are questions to be decided on the particular facts, not by blanket policy.” , and that
- “A blanket policy of refusing to disclose the names of civil servants wherever they appear in departmental records cannot be justified because in many cases disclosure will do no harm to anyone There must be a specific reason for omitting the name of the official where the document is otherwise disclosable.”
It should be remembered that the relevance of these arguments in relation to the section 35 public interest test, is the extent to which the role and integrity of the civil service would be undermine accountability for government policy and political decisions being seen as passing from minister to official. Whilst fairness to the individual civil servant may be relevant from a section 40 FOIA or DPA perspective, the focus here is the public interest in maintaining the constitutional position that Ministers rather than civil servants are accountable to Parliament for Government Policy or political decisions. The full “wider impact” argument would be that if civil servants rather than ministers become seen to be accountable for government policy or political decisions then the political neutrality of the civil service and the constitutional position of ministerial accountability are undermined, leading to a less effective policy making or decision making process.
In light of this, the DfES comments shouldn’t be taken to mean that civil servants have no accountability at all. In the case of MOD v the ICO & Evans (a section 36 case), MOD argued that civil servants, as distinct from Ministers, are not accountable to the public, and relied on the DfES judgment to support its position (para 60). The Tribunal in this case accepted that as a matter of constitutional principle the concept is correct, but was clear that, “Questions of competing public interests raise issues which of necessity go beyond pure considerations of constitutional accountability. Those persons who expend public money must in general terms be expected to stand up and account for the activities they carry out on doing so” (para 60)
It made reference to the Nolan Committee’s seven principles of public life, in particular that, “Holders of public office are accountable for their decisions and must submit themselves to whatever scrutiny is appropriate to their office.” Accepting that this level of scrutiny may vary according to office, it was clear that, “there is certainly no immutable principle that civil servants should never be held accountable in the way contended for.” (para 62).
In “How to be a Civil Servant” by Martin Stanley (* link provided below) the author states that
- "Servants are accountable upwards through audit and Parliamentary scrutiny, and outwards through transparency and openness to stakeholders and the public at large.”
The Commissioners considers that there is an important distinction to be made between accountability for Government Policy and political decisions, which clearly lies with Ministers (the elected officials), and non-political decisions for which holders of public office are accountable. Civil servants may be held accountable for the quality of the advice and options they provide, but Ministers will take ultimate responsibility for the political decision as to which option (if any) is taken forward.
Further, as noted in HM Treasury v the Information Commissioner (where the information in question was for “all the relevant papers relating to the decision to reduce income tax by one pence in the pound announced in the budget in 1999”) it may be possible to address concerns about responsibility being seen to pass from minister to official by providing some context when the information is disclosed. The Tribunal in this case commented at paragraph 62 that “We were wholly unpersuaded by Mr Neale’s further point, that the public might wrongly assume that a measure was adopted or rejected by reason of the rationale used by the Civil Servant as a working assumption for the provision of advice, whereas the Ministers actual reason for adopting or rejecting it might be different, and that would lead to difficulties. Any Minister in that position would be able to explain the status of the official’s assumption and what his own thinking was”.
Case officers should always take care to relate accountability arguments to the public interest inherent in the exemption being considered. Section 40 arguments, about fairness to individuals and breaches of the DPA should be considered under section 40. (for the Commissioner’s approach to these issues see the various LTTs provided on s40) Arguments about risks to the and integrity of the civil service, and the knock-on effect on effective policy formulation and decision making are relevant to section 35 (and where relevant s36 and reg 12(4)(e)).
In relation to section 35 issues, the ICO view is that, in accordance with the Tribunal’s comments in DfES, “each decision will depend on the facts of the case” (para 75, (xi)). Where it is accepted linking advice or opinion to a particular official would lead to accountability for government policy or political decisions being seen to pass from minister to official, thus undermining the concept of ministerial accountability and the effectiveness or neutrality of the civil service, then this will be public interest factor in favour of maintaining the s35 exemption. However, where this is not accepted as a likely consequence of disclosure, or where it can be addressed by putting the information into context, this public interest argument will not apply.
It may be that information of this nature that would not be exempt under section 40 (because release wouldn’t breach a DPA principle) could be withheld under the public interest test for set 35 for the reasons discussed above. Conversely information that would be released following t section 35 public interest test, might end up being withheld under section 40, because although release wouldn’t undermine ministerial accountability or compromise the neutrality of the civil service, it would be considered unfair to the individual concerned. This will depend on the individual circumstances of the case.
(*) Martin Stanley is Chief Executive of the Competition Commission, and author of “How to be a Servant” — a text about Civil Servant’s professional skills duties and responsibilities.