I’ve had a very hectic day today, but one thought has been plaguing me all day.

First the hectic bit: I’d already agreed to come to Leuven (Belgium) for a workshop in honour of Christopher Pollitt’s retirement from the University here. For those of you who don’t know him, Christopher is both an ex-civil servant himself and one of the world’s foremost public management scholars.

I’d booked the flights and then, last week, I got asked to go to a ‘closed’ seminar for the House of Lords Constitution Committee, chaired by Baroness Jay, to discus “civil service accountability”. Apart from the Committee there were going to be a number of academic experts, think-tankers, etc to enliven the proceedings. So not something I wanted to miss. So I ended up going from Manchester to London and back again and thence to Brussels and on to Leuven. The highlight of the days many trips was the taxi driver from Brussels airport stopping on the motorway to take an impromptu leak in the bushes.

Small diversion: someone asked me via twitter why it was a closed session at the Committee today, which is a good question. I’ve been involved in several of these with different Select Committees and they are usually used simply as a way of getting Committee members ‘up to speed’ or at least ‘on the same page’ around a specific issue. I even did one for the Treasury Select Committee where I was the only outsider, briefing them on some technical issues about how governments measure efficiency. Today we operated on ‘Chatham house’ rules, which means nothing cn be attributed to any individual. this allows people to say stuff they wouldn’t necessarily say in public (and they did today, believe me). This all seems a perfectly reasonable thing to do, to me, but others might disagree.

So, I can’t report who said what and to be fair to the Committee I can’t even give an overview of what was said. But there was one issue that was brought up that got me thinking: the Committee asked in their brief for the day “should the civil service act as a constitutional check on the actions of ministers?”.  I feel free to talk about this because it didn’t actually get discussed today (although I did raise it at the end).

My answer would be an unequivocal “yes” both in terms of “ought” and “do”. Civil servants both should and do constrain ministers from doing unconstitutional, illegal and immoral things. But my question is, to whom are they accountable when they do (or when they don’t) exercise this constraint?

Let me give a trivial, but instructive, example. Under the last Tory government an (unnamed) Tory minister asked the head of the Passports Agency (as it was then) for a small favour. Their passport was coming up for renewal and they asked (I kid you not) if they could have a passport number issued ending in 007? Seriously. The Passports Agency Chief executive said firmly “no Minister”.

Most of us would think that was right, but on what basis did he do it and what would have happened if he hadn’t? On a much more serious note, the Head of the Civil Service has been asked to pass judgement several times in recent years on ministers behaviour (most recently Liam Fox).

Obviously, the normal doctrine that Civil Servants are solely accountable to ministers can’t apply in cases like these. So if not ministers, who are they accountable to for this important function. The late Larry Terry, an excellent American wrote a good book on this – Leadership of Public Bureaucracies: The Administrator as Conservator. His argument was that this is an essential role of public bureaucrats in a democracy, protecting democratic politicians and the public from abuse. But to whom are they accountable when they are doing this?

Are they, perhaps, acting in a sort of quasi-judicial capacity – judges are after all independent of both the executive and legislative branches of government. If they are, how does this sit with their other roles? And who could call them to account for malpractice? Say a future Head of the Civil Service examined a Ministers conduct and wrongly found them guilty, or more likely acquitted them of wrong-doing when in fact they were plainly guilty? There is no Court of Appeal, or Supreme Court, to overturn their mistake. No Crown Prosecution Service to lodge an appeal.

I confess not to having instant answers to this dilemma, but I think it does raise a very important issue that does need investigating. Having asked the initial question, I do hope the Constitution Committee pursues it.