The unwritten British constitution as it affects Civil Service accountability – especially to Parliament – is going through an incremental, but very significant, change, argues Professor Colin Talbot.

At the heart of the British constitution lies the concept of separation of the administrative elite from the political elite. This is very different from other countries such as France and Japan, where it is common for senior administrators to become senior ministers.

But in Britain the boundary between administration and politics is shifting in three significant ways. Firstly, the executive part of the political elite is seeking to by-pass the administrative elite more and more through the use of ‘Politically Appointed Counsellors’ as I argued in my previous blog post. Secondly, Parliament is very slowly and incrementally accruing more administrative power itself, distinctly separate from the executive. Thirdly, Parliament is increasingly seeking to exert greater control and accountability over the civil service administrative elite. This post deals with the second and third trends.

The creation of Parliamentary select committees from the early 1980s created a new layer of Parliamentary staff whose primary remit is to support committees in scrutinising the work of the executive – both political and administrative.

The creation of the National Audit Office (NAO), also in the 1980s, as a Parliamentary body run by the Comptroller and Auditor General, an officer of Parliament, was a qualitatively important development. The NAO – with 850 staff – performs two functions. It audits the accounts of all civil service and national public agencies and also carries out ‘value for money’ studies. But the NAO’s relationship with Parliament has shifted, incrementally but significantly, over the past decade or so.

Where previously the NAO worked only for the Public Accounts Committee, gradually it has begun to work with all select committees. For example, the NAO was asked by the Foreign Affairs Select Committee to conduct a review of the work of the British Council. In 2010/11, the NAO ‘provided 20 select committees with a wide range of support’, producing ’performance briefings to assist select committees’ annual oversight of departments’ performance’.

Parliament has also established an internal resource to support its scrutiny work – the Scrutiny Unit, set-up in 2002, helps with legislative and financial scrutiny matters. In 2008 Parliament acquired responsibility for the Office of National Statistics (ONS) from the executive part of government. ONS is at ‘arms-length’ from Parliament, but is now a Parliamentary body instead of a government quango. It remains unclear how far its role is changing as a result and if Parliamentary supervision will make a difference.

These changes taken together mean that Parliament has considerably more administrative resources directly and indirectly at its disposal than it did three decades ago. It has its own ‘administrative elite’, separate from the civil service, and greater resources with which to challenge the political and administrative executive elites. It is still small relative to, say, the US Congress’s resources, but these are significant changes.

What has not changed in the past 30 years is the constitutional position of the administrative elite – the Civil Service – vis-à-vis Parliament. This was famously set out as the ‘Armstrong Doctrine’ in a memo by Robert Armstrong, in which he stated: “The Civil Service as such has no constitutional personality or responsibility separate from the duly elected government of the day.”

Ministers alone are accountable to Parliament and civil servants to ministers. These principles go back to the Northcote-Trevelyan Report of 1854 and the Haldane Report of 1918. The ‘Osmotherly Rules’ were (and are) an attempt by the civil service to stymie the select committees. Osmotherly stated baldly that “Officials appearing before Select Committees do so on behalf of their Ministers.” Any official “would remain subject to Ministerial instructions as to how he should answer questions.”

As Peter Hennessy put it: “In short, elected MPs were to be denied any real knowledge of the inside workings of the Whitehall machine and any chance of making the bureaucratic brokers of concealed power accountable to the sovereign parliament.”

Whilst the administrative elite is in theory ‘accountable’ to ministers, in practice and also in theory there is no clear mechanism by which ministers can hold them to account, without being accused of ‘politicisation’ of the civil service.

There are various informal ways in which members of the SCS can be partially held to account by ministers – although the usual ‘punishment’ is simply to be moved away from the minister who complains.

The convention of permanent secretaries also being designated as ‘Accounting Officers’ partially circumvents the ministerial accountability doctrine by making them directly accountable to Parliament, usually through the Public Accounts Committee, for their stewardship of public money.

Parliamentary accountability has been greatly extended in recent years with the creation of Executive Agencies within the civil service (from 1988 onwards), with every agency CEO also being designated an Accounting Officer (AO). The number of AOs rose from a couple of dozen to almost two hundred at one point.

In practice, the Osmotherly Rules are breaking down as select committees have called more and more civil service witnesses and some of them have clearly not kept to these conventions when giving evidence. For example, several Agency CEOs have gone beyond what their ministers would wish them to say in their evidence to select committees.

This culminated in a public clash between the Chair of the Public Accounts Committee, Margaret Hodge MP, and the then Head of the Civil Service, Gus O’Donnell, over how far civil servants were accountable to Parliament. Several Parliamentary committees are questioning the traditional ‘ministerial accountability’ model.

In the mid-1990s the then Conservative government published two White Papers on civil service reform with the phrase ‘continuity and change’ in their titles. Whilst Ministers were after ‘change’, the civil service thought they had successfully defended ‘continuity’.  Meanwhile, the perception that the administrative elite is not ‘fit for purpose’ has been growing since at least the 1960s and many would argue this is now reaching crisis proportions.

Whether these forces of criticism will stimulate fundamental change remains to be seen. What is clear is that there has been, as yet, much more continuity than change in these fundamental relationships and the nature of the British administrative elite. But we may be reaching that unpredictable juncture where accumulating small changes reach a tipping point into more radical change.