A new Constitution Unit report by Meg Russell, Hannah White and Lisa James, published jointly with the Institute for Government, provides a menu of constitutional reform options ahead of political parties’ manifesto preparation. Its chapters appear on this blog throughout August, with this first excerpt identifying potential changes to the executive branch.

In recent years there have been significant concerns about the functioning of central government, including but not confined to ethical standards. Perennial tensions in the relationship between ministers and the civil service have been exacerbated by the political stresses of the Brexit process and the Covid pandemic, culminating in some politicians’ attacks on the civil service, and some high-profile removals of permanent secretaries under the Johnson and Truss premierships. Since becoming Prime Minister, Rishi Sunak has repeatedly missed opportunities to match his actions to his widely welcomed assertion on the steps of Downing Street that he wanted to lead a government of ‘integrity, professionalism and accountability’. Various episodes have also raised questions about whether the UK’s standards regulators have the status and powers required adequately to perform their roles.

Yet public opinion research by the Constitution Unit shows that people give great emphasis to the importance of honesty and integrity in their politicians, and want independent regulatory mechanisms that punish bad behaviour. Reforms in these areas could help both to increase public trust in politics and promote good governance. The Committee on Standards in Public Life (CSPL), parliamentary committees and external experts have made various recommendations for specific changes. While these are partly targeted at stabilising the situation, experts also agree that there is scope to go further to strengthen constitutional regulators, and to clarify the role, duties and accountability of the civil service. Some changes in this area lie squarely in the government’s power and could be quickly and easily implemented. Some others would require legislation, or benefit from wider consultation. There are also some larger questions which remain more controversial.

Quick wins

• The Prime Minister should commit to treating civil servants and constitutional regulators with respect and avoiding negative public briefing against them, requiring members of the Cabinet and governing party to abide by the same principle. Impartial civil servants and other independent officials serve the public interest, and can rarely answer back. They should not be beyond constructive criticism, but undermining confidence in them risks damaging trust in the political system as a whole.
• The Independent Adviser on Ministers’ Interests should be given the power to open his or her own investigations into alleged breaches of the Ministerial Code, and publish their findings, without requiring the Prime Minister’s authorisation to do so. This has been recommended by CSPL and numerous other bodies.
• The UK’s other constitutional regulators should be strengthened. Partly this is a matter of legislation (discussed below) but some improvements could be made purely by ministers. For example, the recruitment processes for the heads of key watchdogs should require a majority of fully independent members on the appointments panel to minimise partisan influence over the appointment of ethical regulators.
• Another matter that lies in the Prime Minister’s power would be to reduce ministerial turnover (‘churn’) – which has long been identified as a challenge to effective policymaking. The results would not be seen immediately, but a commitment to this principle would be welcome.

Moderate changes

The civil service

The civil service currently lacks a clearly defined remit and responsibilities, and faces managerial challenges which can contribute to tensions between ministers and officials – notably a lack of effective accountability mechanisms, and problems with churn.

• The Institute for Government has recommended that the government should commit to passing a new Civil Service Act. This would underpin the permanence of the civil service, and more clearly lay out its objectives – to implement the government’s programme and respond to events as directed by ministers, as well as maintaining the long-term capability of UK governments.
• A new Act would also provide an opportunity to establish clearer accountability mechanisms for the civil service. The Institute for Government recommends a new Civil Service Board and more direct reporting to parliament to fulfil these functions.
• As with ministers, it is desirable to address the widely-recognised damaging effects of civil service ‘churn’. The rapid movement of staff between teams and departments has got worse in recent years and threatens the ability of the civil service to act as a keeper of institutional memory, and to advise ministers effectively. The Head of the Civil Service should be required to address the perverse incentives in the current pay and promotion practices that incentivise civil servants to move rapidly between jobs and often departments for career progression.

The Cabinet Manual and Ministerial Code

• The Cabinet Manual has not been revised since its original publication in 2011. As the Lords Constitution Committee has pointed out, numerous constitutional developments have taken place since that time – including further devolution, the repeal of the Fixed-term Parliaments Act, and the UK’s exit from the European Union. An incoming government should commit to updating the Cabinet Manual at the beginning of the new parliament, in consultation with parliamentary committees, external experts, and the wider public.
• The Ministerial Code – unlike the Codes of Conduct which govern MPs’ and peers’ behaviour – combines ethical expectations of ministers with more process-focused material on the workings of government. CSPL and the Institute for Government have recommended that, to make the ethical standards expected of ministers clear and unambiguous, these functions should be split, with the Ministerial Code becoming a purely standards-focused document. This could be conducted alongside revision of the Cabinet Manual. A revised Ministerial Code should emphasise ministers’ need to respect, and not brief against, the civil service.

Longer-term strengthening of ethics regulators

Some regulators currently have no basis in primary legislation, leaving them vulnerable to abolition or significant weakening at the discretion of ministers. This particularly relates to the Independent Adviser on Ministers’ Interests, the Commissioner for Public Appointments and the Advisory Committee on Business Appointments.

• There is widespread agreement – for example between CSPL, the Institute for Government and the Commons Public Administration and Constitutional Affairs Committee – that these important ethical regulators should be put on a statutory footing. This should also give a statutory basis to the codes that they oversee – as currently proposed in the Public Service (Integrity and Ethics) Bill by Crossbench peer Lord (David) Anderson of Ipswich. The House of Lords Appointments Commission also lacks a statutory basis, as indicated in the parliament chapter of this report – this might be rectified separately, or in the same legislation.
• Lobbying scandals have drawn attention to the need to revise the processes governing the movement of former civil servants and ministers into other sectors. There are currently no sanctions for non-compliance with the Business Appointment Rules, or for failure to consult the Advisory Committee on Business Appointments (ACOBA). As well as putting ACOBA on a statutory basis, it needs to be given effective enforcement powers. (Since publication of this report, the government has agreed to introduce legal commitments for ministers and officials to abide by the Business Appointments Rules.)

Public appointments

Public appointments are a perennial topic of controversy, and recent scandals – particularly surrounding Paul Dacre’s candidacy for the chair of Ofcom and Richard Sharp’s appointment as Chair of the BBC – have increased attention to this area. There are a number of reforms that could strengthen and safeguard the system.

• The government should commit to streamline and more tightly regulate public appointments. Problems have included attempts to ‘pack’ appointment panels and influence the process by naming favoured candidates in advance; these practices have been strongly criticised by former Commissioner for Public Appointments, Peter Riddell.
• The government’s ability to appoint candidates judged unappointable by appointment panels should be far more restricted. Currently the Governance Code on Public Appointments allows ministers to do this, subject to an ill-defined requirement to justify their decision publicly (though the power has never yet been used). At minimum, the Code should specify that in such instances ministers should appear before the relevant select committee to explain their decision (as the government has since publication agreed). Alternatively, such power could be surrendered altogether.
• There should be greater transparency and parliamentary oversight about the number, nature and duration of so-called direct ministerial appointments (i.e. those not subject to the Governance Code for Public Appointments, such as departmental Non-Executive Directors). For example, the Institute for Government has recognised that some ‘tsar’ appointments offer useful speed and flexibility for the government, but has proposed greater transparency about their terms. CSPL, PACAC, the Institute for Government and Peter Riddell have all recommended that government departments should publish lists of unregulated appointments. (Since publication, the government has committed to publishing certain details.)

Larger, more controversial reforms

• The most significant and controversial debates relating to the civil service concern the continued requirement for civil service impartiality, and whether a greater degree of politicisation at the top levels would be appropriate or desirable. Most experts would argue for the benefits of impartiality (but also that the civil service needs to do more to demonstrate its capability to deliver for ministers and the public), and recent public opinion research suggests far greater support for an independent than a politicised civil service. The debate continues and the question has recently been raised again by former Conservative minister Francis Maude.
• With respect to standards, there is a question of whether there should be significantly greater consolidation, with a possible merger of existing bodies into an overarching Ethics and Integrity Commission. CSPL has expressed scepticism about such a move, but Labour frontbencher Angela Rayner has laid out some initial thinking on the potential remit and powers of such a body, and the principle was endorsed by the commission chaired for the Labour Party by Gordon Brown. 

This is the first of five chapters to be published in blog form from the recent joint Constitution Unit and Institute for Government report Rebuilding and Renewing the Constitution: Options for Reform. Future posts will look at parliament, the territorial constitution, courts and the rule of law, and elections and public participation. A summary post marking the report’s publication is available on this blog, and the full report is available for download on the Constitution Unit and Institute for Government websites.

About the authors

Meg Russell FBA is Professor of British and Comparative Politics at UCL and Director of the Constitution Unit.

Hannah White is Director of the Institute for Government.

Lisa James is a Research Fellow at the Constitution Unit.

Featured image credit: UK Government announces the expansion of the GOV.UK Coronavirus Information Service on WhatsApp (CC BY-NC-ND 2.0) by Telemedia online.