Baroness Stuart of Edgbaston.

Q90 The Chair: Good morning, everyone, and welcome. This morning, the Constitution Committee is taking evidence into its inquiry into the appointment and dismissal of Permanent Secretaries and senior civil servants. The committee will hear from the Right Honourable the Baroness Stuart of Edgbaston, the First Civil Service Commissioner.

Good morning, Baroness Stuart. We are delighted that you could join us. We have lots of questions to ask you, but hopefully you have a flavour of what we are likely to raise. Before we start, are there any opening comments that you would like to make?

Baroness Stuart of Edgbaston: If you would allow me, I would very much welcome that. Thank you for asking me to come along.

The nature of your inquiry is appointment and dismissal, and as First Civil Service Commissioner I only have a role in the first part of your inquiry, not the second. I was appointed last year in March, so I have just completed the first year.

The most impressive array of witnesses have already given evidence, or are about to give evidence, and I reflected on the most helpful things that I can contribute to your inquiry that you might not get from other contributors, and those are probably insights into what have been some of the most tumultuous 12 months this country has ever gone through, involving three Prime Ministers, the change of sovereign on the back of a pandemic, and a war in Europe. That has meant that some processes that have been normalised and formalised have responded to crises. Part of our job in the Civil Service Commission as a regulator is to normalise and to bring back to a stable state as much as possible.

However, I wanted to share one particular reflection with you. In a very tight labour market, good people have choices. We need to reflect that when we talk about entry into the Civil Service. As a commission, we are finding more competitions where no one is appointable. Indeed, as commissioners, we are reflecting on whether we should not, on occasions, halt a competition on the basis that it is quite clear that there are not sufficient applicants. I have data. In 2020-21, there were only eight occasions when no one was found appointable. Last year, it was 12. When you look at the senior grades, that is a troubling reflection.

Secondly, if you do not mind me saying this, we regulate the senior Civil Service entry at Director-General and Permanent Secretary level—by a commissioner chairing the competition, in most cases. For directors it is about two-thirds. Of course, the Civil Service itself is a much larger organisation, and we oversee and audit the appropriateness of its processes, so my first-hand experience will be one of a very tight top layer, and it is important to remember that the Civil Service is a much larger organisation.

Lord Falconer of Thoroton: You gave a figure of eight and 12. Could you tell us what those figures are?

Baroness Stuart of Edgbaston: The most recent figures are at the deputy director level. I can send you those figures if you want me to. It would be easiest if I do, because figures only mean something in relation to “out of how many”, and it will get rather tiresome if I start reading out columns to you. They show a trend, and the conclusion I draw is that we are probably not doing enough to shout from the rooftops that Civil Service jobs can be really exciting and are good jobs, rather than making that assumption.

The Chair: Any quantitative figures you can give us would be welcome, because we are trying to get a sense of what has actually been happening. I take your point about the tumultuous last couple of years. One issue we have been looking at is whether the practices and processes around the appointment of civil servants have survived the stress test that they are being put under, or whether they are just exceptional one-offs. That is a relevant point. We are conscious that we want to make our questions relevant to you as the First Civil Service Commissioner, and we look to interrogate some of your opening comments, so thank you for that.

Baroness Stuart of Edgbaston: May I just add one other dimension to the last 12 months? The relationship between the Civil Service and politicians, when it is working, is based on mutual trust and respect. That requires time, and the many changes in the last 12 months have probably not provided time for the mutual trust and respect for each other's boundaries to develop.

Q91 The Chair: Yes. Mutual trust and respect, the constitutional position, the Civil Service concept of merit are all things that we are keen to drill down into and on which your knowledge is valuable.

In opening, based on your own knowledge and experience could you run us through how, in practice, the recruitment and departure processes work? You are going to tell me that you do not have any involvement in departures, so we will come back to your views on that later, but how, in practice, is the recruitment process carried out for senior civil servants?

Baroness Stuart of Edgbaston: I will use just the Perm Sec and director-general level for a moment, because it is slightly different but otherwise very much the same.

The process needs to be chaired by a commissioner, so, as and when a vacancy arises, the department will get in touch with the commission and we will allocate one. We currently have 10 commissioners. We will allocate a particular commissioner, and that is when the involvement of the commission starts.

The first and most important meeting is the planning meeting, which agrees the job specification, whether to use a search agency, timetables. You start talking about who is on the interviewing panels, you start preparing all that, but it is always overseen by a commissioner. Usually, then, you go through the normal process of longlisting, shortlisting, talking to executive search agencies.

The presence of a commissioner makes a difference to the job specification, for example. If the job is externally advertised, we watch out for certain things. For example, you do not define the job in such a way that only an existing civil servant could apply. If you put as an essential requirement a qualification that could be acquired only by a civil servant, we then say, “or equivalent”. You cannot specify someone who has worked closely with Ministers, because if you are not a civil servant you have probably never worked closely with Ministers. The phrasing of those things is really important.

There are various points at which Ministers can get involved, but that always has to be in the presence of a commissioner. The two absolute red lines in this whole process are, first, that Ministers cannot see candidates without the presence of a commissioner or representative of the commission; and, secondly, that special advisers must play no role in the entire process.

At the end of the process for the director-general role and below, the commission will submit a report on its findings and lists who is appointable and who is not appointable. That is a bar that cannot be moved. Once someone is found to be not appointable, that is the end of that process. If they are appointable—let us say there are three candidates—the commission will say, “We hereby grant permission for candidate A to be appointed. Should candidate A not accept the job, you may appoint candidate B, and if candidate B does not accept, you can work your way down the list”.

The difference with Permanent Secretaries is that the report on who is appointable goes to the Prime Minister. I have chaired all the Permanent Secretary appointments in the last year, and there will be an expression of preferences and reasons why the panel thought that one person was a more likely candidate. Or you may say, “Both candidates have strengths and weaknesses, but they vary, and, Prime Minister, you will have to decide what is more important”. Ultimately, the Prime Minister then decides which candidate to choose.

The Chair: On the issue of meeting the standard of being appointable, no candidates go forward on a list to the Prime Minister unless they are appointable, so the decision that they are appointable is owned by the Civil Service Commission, is it not?

Baroness Stuart of Edgbaston: Yes.

The Chair: How high do you set that bar? Can you give us a feel for how high it is set? For example, Lord Macpherson said in his evidence that he felt that Ministers put pressure on the panel to ensure that their people make it above the line. Could you take us through a sense of the integrity around setting that appointable bar?

Baroness Stuart of Edgbaston: I will go back to the dynamics of the commission. We are all appointed on five-year non-renewable terms, so there has to be that cohesion—that we all share the same standards.

On the issue of appointable and non-appointable, the danger is much more that you want to be kind to someone. You have three candidates and you want to say that they just missed it; you are tempted to be kind. I say no, if you would not feel comfortable waking up tomorrow morning having given that person that position, you should not make them appointable.

Strictly speaking, it is not something I have come across. Ministers at that stage would be aware of where the discussion is on whether someone is appointable, because you have it at the end of the interview. As a panel, you may sometimes say, “Look, this is really finely balanced. Shall we reconvene the panel tomorrow morning?” Then we draw that line. That is where hybrid meetings are really useful. In the days when you only met in person, reconvening the panel just to make a final decision would have been more cumbersome.

Genuinely, I have not come across ministerial pressure to make someone appointable. I would have expected any commissioner, if they had come across it, to raise it and find it inappropriate.

The Chair: If the Prime Minister does not consider any of the candidates presented as suitable for filling the vacancy, what can happen then? What is allowed to happen then?

Baroness Stuart of Edgbaston: We give permission to appoint. It is not a duty to appoint. If no one is appointed, that is the end of the process, and you have to start again.

The Chair: You repeat the process again.

Baroness Stuart of Edgbaston: Yes. Just for clarity, when I talk about ministerial pressure I should say that I have not come across it at Permanent Secretary and director-general level. I can imagine it being different at deputy director level, at SCS 1 level, and when Ministers wish to decide who comes into their private offices there may be a sense that they have that desire. We theoretically have a process whereby a Minister could challenge the decision whether someone is appointable or not appointable, but as far as I know it has never been used.

The Chair: In your knowledge and experience, how many Permanent Secretary appointments have followed the process set out in the recruitment principles and how many have not? You may want to write to us on that point, but we are trying to get a sense of when the recruitment principles have been applied and when appointments have been made that have not been bound by those principles.

Baroness Stuart of Edgbaston: The only exception is when it is a managed move—where you have a Permanent Secretary coming into a position and it is not part of a competition and is therefore outwith the recruitment principles. That can be done with someone who is already a Perm Sec at an existing level, and it does not fall within the commission's remit.

That can happen for a number of reasons. Again, I have figures that I am happy to share with you, should you wish. There is data on Permanent Secretary appointments and when they have left, for whatever reason, up to 2018. In the last year, there were only four managed moves. Sometimes they are because of machinery-of-government changes, such as when the department for Brexit ceased to exist. I am not aware that a Permanent Secretary has been appointed otherwise, and if I were, we would find that a very serious breach.

The only other thing I want to draw attention to is that the recruitment principles have a whole set of exceptions, instances where we can grant exceptions, and we keep a record. They are very specific. During the pandemic, the use of those exceptions went up considerably, and that is right. I talked about returning us to a steady state. The commission’s current position on exceptions is that it is trying to limit interim appointments to six months—an interim appointment is made because a vacancy has arisen—because we feel that people should be able to recruit in that period.

The Chair: Would it be possible to provide us with figures on the number of instances of use of the exceptions provisions?

Baroness Stuart of Edgbaston: We are just coming to the end of our auditing process in preparation for the next annual report. Would you like the provisional figures or the final figures? They are definitely going down and I can share them with you. We prepared them for when I appeared in front of PACAC. I can do that.

The Chair: Thank you.

Q92 Lord Falconer of Thoroton: I declare an interest, which is that my son was a senior civil servant until December of last year.

Just for clarity, you referred to “managed moves”. We know that Tom Scholar was fired. We know that the replacement was appointed. Was the replacement appointment, Mr James Bowler, done in accordance with the recruitment principles or was it a managed move, and what engagement in the process of the appointment of Mr James Bowler did the Civil Service Commission have?

Baroness Stuart of Edgbaston: I remember it well because of the unusual set of circumstances: the Treasury was actually recruiting for a second Permanent Secretary, so I was already involved.

After Tom Scholar left, I made absolutely sure that all the job description processes were followed and that the then Chancellor of the Exchequer saw the candidates who applied. I was there, and we had the interviews, which I oversaw. The only difference was that normally it would take us probably a weekend and the rest of the week to do a report that spells out the exact processes and who is appointable and who is not. On that occasion, at the end of the first day, when the interviews were completed, I made sure that a preliminary report from the commission went out to the Prime Minister to say, “These are the appointable candidates, and further explanation will follow in the following days”. The appointed candidate went through the process as appointable.

Lord Falconer of Thoroton: So it was not a managed move—

Baroness Stuart of Edgbaston: No.

Lord Falconer of Thoroton:—it was in accordance with the principles. Just for clarity, and I am sure there is a straightforward answer to this, the Government announced in 2022 that senior Civil Service appointments, which would obviously include the Permanent Secretary of the Treasury, would be external by default. In the process, was consideration given, and if so by whom, as to whether that one should be external by default? If it was, could you tell us why it was decided that it would not be external?

Baroness Stuart of Edgbaston: The phrase “external by default” needs a bit of unpacking. Do you want me to go into that now?

Lord Falconer of Thoroton: We will come to it later, but I am keen to focus on how the process of the appointment of Bowler took place.

Baroness Stuart of Edgbaston: I will say more on that. There are certain government positions for which an external candidate would be exceptionally unlikely to be successful, and I would have thought that the Permanent Secretary of the Treasury would be one of those. So there was theoretical consideration, but provided that reasons are given and it is signed off by Ministers that a position will not be advertised externally, that is perfectly within the rules.

Lord Falconer of Thoroton: I completely get that. I am just trying to work out who made that decision, which may well have been perfectly reasonable, in the context of the appointment of the replacement for Tom Scholar.

Baroness Stuart of Edgbaston: The procedural answer is that it would be the vacancy holder, which in that case would be the Cabinet Secretary.

Lord Falconer of Thoroton: Okay. Thank you.

Q93 The Chair: Just finishing off this series of questions, and staying with the Cabinet Secretary, we were on the normal processes for recruitment, and the exceptions. How does that process differ or apply when it comes to the Cabinet Secretary? What are the particular characteristics of the process around the appointment of a Cabinet Secretary?

Baroness Stuart of Edgbaston: My predecessor, Ian Watmore, was very keen that the process of Cabinet Secretary appointments should be more open and transparent. You have talked to a previous First Civil Service Commissioners—.

The Chair: Baroness Prashar.

Baroness Stuart of Edgbaston: Yes. I remember having a conversation with her before I took up post in which she said that it was really important that we started having a job description as part of the process. Previously, there were expressions of interest—candidates were asked whether they were interested in the position, and they almost had to write their own manifesto of what they would do—and interviewing processes.

The Cabinet manual says that the Cabinet Secretary is appointed by the Prime Minister on the advice of the outgoing Cabinet Secretary and the First Civil Service Commissioner. I would certainly expect a more open process, which Ian Watmore started and it is my intention to continue, to be furthered until it matches the other appointments, but, at the end of the day, I do think it is the Prime Minister's right to make the final decision amongst the candidates who are appointable.

The Chair: It is the Prime Minister's right to make the final decision, but is it automatic that the Civil Service Commission would be involved in the process for the selection of suitable appointments?

Baroness Stuart of Edgbaston: Yes, because the Cabinet manual states that it is on the advice of the First Civil Service Commissioner and the outgoing Cabinet Secretary. Now, given the precedent, it would be very difficult not to make sure that the Civil Service Commissioner is fully involved.

The Chair: If a vacancy is not for a senior civil servant, for a Permanent Secretary, and is not advertised externally, strictly speaking the Civil Service Commission has no independent oversight of or any probity around the appointments process.

Baroness Stuart of Edgbaston: This is where it is like explaining the rules of chess.

For Permanent Secretaries and directors-general, it is actually enshrined that the Civil Service Commission chairs that competition, irrespective of whether it is externally advertised or not. We now chair about two-thirds of director-level appointments, and that was an extension of the principle that was negotiated, I think, during the premiership of Theresa May. Since Jacob Rees-Mogg’s letter of last May, which said that “external by default” is now to apply all senior Civil Service roles, theoretically the Civil Service Commission could ask to chair all of those, but I think it would be an inappropriate use of resources, and ineffective.

The challenge for us is how we become a more effective and intelligent regulator. The commission also audits the recruitment processes across all grades. That is part of our annual report, so the commission has a dual role of chairing and of auditing the recruitment processes.

The Chair: Do you publish that audit?

Baroness Stuart of Edgbaston: Yes. This is last year's annual report, and I recommend the new one. We have moved our principles for how we grade how well departments are doing. We are introducing an element of risk, because some departments are much more complicated, but we also know just how big departments are. The Queen Elizabeth Centre, for example, employs about 40 people and is one of the organisations, and we have the DWP, which probably employs about 96,000 people. So you will see a slightly different auditing process in the next annual report, but at the end of the day it will give you a pretty good analysis of how compliant departments are.

Q94 Lord Falconer of Thoroton: Just to be clear on the Chair’s questions, even assuming that it is not an externally advertised post, is your job, or the commission's job, to ensure that it is a fair and open competition? Take Permanent Secretaries, for instance.

Baroness Stuart of Edgbaston: It is fair and open, and the appointment is according to merit, yes.

Lord Falconer of Thoroton: Does that apply in every appointment, whether externally advertised or not?

Baroness Stuart of Edgbaston: At director-general and Permanent Secretary level, the commission will chair it.

Lord Falconer of Thoroton: So it would have applied in relation to the appointment of the successor to Tom Scholar, for example.

Baroness Stuart of Edgbaston: Yes.

Lord Falconer of Thoroton: Does it apply in relation to managed moves?

Baroness Stuart of Edgbaston: No. The control on the managed move is that you can only move at the level at which you have been found appointable, so if you are a director-general you cannot have a managed move to become a Perm Sec.

Baroness Finn: Could I just ask for clarification on the managed move? Does the managed move have to be approved by a Minister? What is the oversight? Are you asked to approve a managed move?

Baroness Stuart of Edgbaston: No. That is the Senior Leadership Committee. The Civil Service Commission has no role in that at all.

Baroness Finn: So nobody else has any oversight, other than who is deciding to make that managed move within the department?

Baroness Stuart of Edgbaston: The leadership committee will look at that, but not the commission. I think your other witnesses will be able to give you more detailed answers than I can.

Q95 Lord Thomas of Gresford: Is there a case for increasing or decreasing ministerial involvement in the appointment or redeployment of Permanent Secretaries and other senior civil servants? You may be aware of an article written by Lord Maude of Horsham in the Observer, in which he said that we need to be more robust and less “mealy-mouthed about politicisation”. He called for a move towards an Australian situation, where Permanent Secretaries and senior civil servants have a political tie to the Minister. What is your view on that?

Baroness Stuart of Edgbaston: Can I unpack your question? Do you want me to compare our system with other systems, or do you want me to talk about the Civil Service Commission view of ministerial involvement?

Lord Thomas of Gresford: It is the principle that I am more concerned with.

Baroness Stuart of Edgbaston: Ministers already have quite considerable scope for being involved in the process. I am not often in the habit of recommending legislation as being very helpful and very good, but CRaG—the Constitutional Reform and Governance Act—is a really helpful piece of legislation, because it creates frameworks and is quite permissive: it tells the commission that it has to have recruitment principles, but not what is in them.

If you go back to the recruitment principles of 2018, which we own and enforce, and look at the involvement of Ministers, as long as Ministers think about it early enough, it comes from the job description to the processes, to seeing the candidates, to spelling out what they think is really important, to recommending areas they want candidates to be probed on. There is scope, and the recruitment principles define that.

I wish Ministers would see that as an empowering tool, because it defines the process: we know where each other's boundaries are. Problems occur when people have not thought about it sufficiently beforehand or sometimes when a particular civil servant is very good and you find several Secretaries of State wishing to offer them a job and then feeling that something is going wrong with the process.

If you were to increase ministerial involvement, that would have knock-on effects on where individual boundaries are. We can talk about that. I checked with my fellow commissioners before appearing here, and I do not think there would be any appetite in the commission for increasing it, but that does not mean that the transparency and accountability of processes should not be greater.

Lord Thomas of Gresford: As I understand it, the Minister has input into the job description—

Baroness Stuart of Edgbaston: Yes.

Lord Thomas of Gresford:—and can tailor it, if he or she so wishes, towards a particular candidate they may have in mind. Is that how it works?

Baroness Stuart of Edgbaston: It rarely works if people actually try to do that. As I said, the commissioner oversees the job description, so you want to make it likely that it can apply to a number of people. You look for skills, so you do not narrow it down too much or make requirements that only one person could have.

I will give you a concrete example. There is a competition going on at the moment for a second Permanent Secretary in the FCDO that has an international development side advertised. It is absolutely right and proper that the Permanent Secretary and the relevant Minister have a clear understanding of what that role should be and how it should be filled. You will find a handful of people who may just fit that role, and that is the point in the process where you make the recommendation.

There is one area where I have been troubled, because the job description—created, by the way, by statute—is very difficult to fulfil. An Act of Parliament makes the position of the National Statistician, who is also the Permanent Secretary at the ONS, one role. I always look at it and think, “That should be two roles”. You need a National Statistician who is the head of the profession, and yet, by statute, that job description combines the two.

Lord Thomas of Gresford: Coming back to the Minister's input into the job description, are you allowed, as First Commissioner, or is another commissioner allowed, to alter a job description that the Minister is happy with? Who has the last say in the construction of that job description?

Baroness Stuart of Edgbaston: It is the commissioner who oversees the competition. They have to sign off the job specification, the final pack, the process. We own that. There will be negotiations—should we, for instance, ask for someone who is a qualified economist, or ask for some other particular qualification? —but it is the overseeing commissioner who, in the end, will say, “That is what goes out”.

Lord Thomas of Gresford: So there are discussions between the Minister and the commissioner appointed to that particular competition—

Baroness Stuart of Edgbaston: Yes.

Lord Thomas of Gresford:—and the commissioner has the final say on the job description.

Baroness Stuart of Edgbaston: The commissioner will have the final say in ensuring that it is fair and open and allows an appointment to be made based on merit. That will be the test. As to whether the Ministers wish to have a second Permanent Secretary, or what the function is, that is a decision by the vacancy holder and the responsible Minister, but we decide what ends up in the job description, the way it is advertised, and that proper timing is allowed, and that if you have executive search agencies there is a proper briefing and due diligence, all those kinds of things. The commission owns that process.

Lord Thomas of Gresford: So the bottom line is that, as a commissioner, you would be against appointing the Minister's favourite just because he is the favourite or has the same political view, or whatever.

Baroness Stuart of Edgbaston: The process should not even allow that question to arise, because at the end you are longlisting, shortlisting, doing interviews, having staff engagement exercises, and quite often you do an individual leadership assessment. There is a whole process, after which you arrive at a conclusion.

Lord Thomas of Gresford: So Lord Maude’s reference to Australia, for example, where they do have politicised heads of department, is not going to happen in our system.

Baroness Stuart of Edgbaston: Just be careful here, because when you compare those different systems, a continuous question for the commission and the commissioners is: to what extent do we stray into the HR function? We do not. We are a regulator. In the Australian system, they have permission to recruit, and the whole HR function, the whole Government Chief People Officer, would be one. The commission plays no role in that. We talk to each other. I will share with the Chief People Officer and the Senior Leadership Committee my observation that we are increasingly finding positions not being appointable, but that is an HR function.

The only area where the commission gets involved in something that is close to the HR function is when jobs are advertised at a particular salary and then offered. Our appointment letter always has at the bottom, “This is permission to appoint at this salary”. There is leeway of about 20%, but if they want to appoint that position at a higher salary, they have to write to us for further permission and make a business case.

That is not because we are making a fiscal decision as to whether the department can afford it. I like to think of us as being a guardian of the transparency of processes. Without wishing to lead you too much astray, I said that we have no role to play in the dismissal and exiting of Permanent Secretaries, but a case could be made that the processes are not sufficiently transparent, and perhaps, just in a guardianship role, you would want the commission to do more on that, but that is a wider and a longer debate.

The Chair: We have strayed a little into the criteria in the job description, which we want to come back to and drill down into a bit more deeply.

Q96 Lord Hope of Craighead: I will do that now. My first question has been answered in your discussion with Lord Thomas. It was whether there are safeguards in place to prevent Ministers from tailoring job descriptions towards a particular preferred candidate. I think your answer is yes, that is indeed your function.

Baroness Stuart of Edgbaston: Yes. It is a bit of a chimera in a sense. If I were to do an exercise in which I matched the length of Ministers’ incumbency in their positions and the length of time it takes to put teams together, you will find that by the time the dream team is assembled there have been three ministerial reshuffles. It really is in their own interest to ensure that it is the competence we are looking at: can people do the job? That is what should matter.

Lord Hope of Craighead: I follow that, and I will come back to it in a moment. I just want to understand the first point about safeguards. Can you take us through the stages of the Minister's involvement? Am I right in thinking that it is not just a question of designing the job description, that there is more to it than that?

Baroness Stuart of Edgbaston: By the way, Ministers can also choose not to be involved at all.

Lord Hope of Craighead: Yes, but assuming they are—.

Baroness Stuart of Edgbaston: If a Minister is very involved, our recruitment principles say, “The relevant Minister has an interest in the appointment. The chair of the panel must ensure that the Minister is consulted on, and agrees, the final role and person specification and the terms of the advertisement”. The Ministers have to agree. The principles go on to say that the Minister “should also agree the composition of the selection panel, in particular to ensure that there is sufficient external challenge from outside the Civil Service”.

I have always very much encouraged the lead NED, or one of the NEDs, of the departmental board to be represented on the selection panel, because they are ideally positioned. They have been appointed to the board because they know the outside world, but because they are on the board they understand the inside as well. The principles go on to say that, “The Minister may ask to be kept in touch with the progress of the competition, and any views the Minister may have about the expertise, experience and skills of the candidates must be conveyed to the selection panel”.

So the Minister has the right to see all shortlisted candidates, and it has to be all. They cannot say, “Oh, you have shortlisted five, and I will only see three”. In that case we would say, “Terribly sorry. You either see all five or none”. The commission representative is there, and as part of that conversation they may come back and say, “Could you just test how good they are at making or defending difficult decisions?” Then the commission representative takes that back to the selection panel and says, “Ministers would really like to have that tested”, and you make sure that it is tested properly.

The Minister may meet each of the shortlisted candidates and discuss his or her priorities, and again, feedback to the panel. Meetings between the Minister and candidates must be attended by a representative of the Civil Service Commission. As I said, it is at that moment when it can be uncomfortable. I think it is when Ministers, or private offices, are not sufficiently aware of the rules. That is the moment when we have to be absolutely vigilant that special advisers, who usually have a very close relationship with Ministers, play no role in this at all. They cannot be in the room, and that can be tricky.

Lord Hope of Craighead: We have the document as part of our papers, but it leads to the next point, which arises out of something that was mentioned to us by Lord Sedwill. Talking about the level of Permanent Secretary, he said that job descriptions may not look very different from one appointment to another, but what does matter is personality. I imagine that the personality aspect emerges at the point at which the Minister—accompanied by a commissioner, of course—sees the candidates. Is that right? If so, what part does that play, and what safeguards are there, if any, to prevent the personality aspect playing too big a part?

Baroness Stuart of Edgbaston: I have been part of one competition where something like that happened. It was during Covid, so the ministerial meeting was remote. We had candidates who had come through staff engagement exercises and individual leadership and had been very thoughtful and very responsive in the interview, but when suddenly caught in this 15-minute remote call with a Minister had acted quite out of character and appeared remote. I found it my job to say to the Minister, “Look, this was not a typical performance, and this is not just me saying it. Go and look at the staff engagement exercises”. The more points of triangulation you have to arrive at the decision, the more you can push back if a Minister has a different view.

Lord Hope of Craighead: It is quite a delicate exercise, because, as you mentioned earlier in your evidence today, the relationship between the Minister and the Permanent Secretary is built on trust, so personality will matter quite a lot. That surely has to play a part in the final decision that is taken as to which of a selection of candidates should be appointed.

Baroness Stuart of Edgbaston: Up to a point. That is why discretion is allowed at the Permanent Secretary level, where the Prime Minister has a choice. I have no problem with that, because the relationship at that top level is so close. Below that, it must be on merit. I have to say that it would be a very brave interviewing panel that appointed someone who, following the staff engagement exercise, seven members said of them, “No, that person would not make a good leader”, and who the individual leadership assessment said has a very abrasive style: “Not collegiate. Absolutely brilliant intellectually. but very difficult to work with”. That is probably something you would say in your assessment: “These are some shortcomings”. This is how you have to work around this.

Q97 Lord Hope of Craighead: That plays a part in my next question. What about a change of Minister? There is an emphasis on continuity at the level of Permanent Secretary, on the value of the continuity for serving the new Minister as he or she comes along. Does that drive one back to the idea that the really important element is the published criteria, over which ultimately the commissioner has the final control?

Baroness Stuart of Edgbaston: If you move away from professional competence as the driving force, you are into courtiership. I would like our top civil servants to excel in their competence and have the trust of Ministers because they can deliver.

Reverting slightly to a previous life, the trust element, at its most important, comes in when you, as a Minister, ask your civil servants to do something and it does not happen. Somewhere in the back of your mind you ask yourself, “Is it because they don’t want to, or is it because it can’t be done?”. That is where, if it really cannot be done, you have to have the confidence to say, “Look, there was a flaw in the instruction”. It is a relationship of boundaries and trust. That is really important, because Ministers will, on occasion, ask for something to be done that cannot be done. At the same time, they will sometimes ask for things that can be done, contrary to initial responses.

Lord Hope of Craighead: The job description is crucial to an understanding as to whether the individual will do the job on offer.

Baroness Stuart of Edgbaston: I would not put it as bluntly as that, but my view is that every interview has to start with the question, “Why do you think you can do the job?”

Lord Hope of Craighead: Thank you very much. Obviously, we have other questions to come on to.

The Chair: Lord Foulkes and Lord Falconer want to come in on ministerial involvement, but I just want to settle this issue of criteria in job descriptions. Lord Strathclyde has a question.

Q98 Lord Strathclyde: First, thank you very much for coming along and for being very clear in your answers. I for one find myself greatly reassured by what you have said. My sense is that you are the guardian of various procedures and policies running the Civil Service Commission and you do not fundamentally see any great problem. Does that mean that you act as a long stop to make sure that there is no abuse by a Minister of your policies and procedures? Following on from what Lord Hope said about continuity, if a Minister wants a particular person whose personality you do not feel will fit in with a successor Minister, do you step in at that stage and say, “This person wouldn’t really do, because the candidate is so aligned to a particular Minister”?

Baroness Stuart of Edgbaston: Can we unpack that? Do you mean that a Minister finds someone who we find is not appointable?

Lord Strathclyde: No, the Minister finds somebody who is appointable–

Baroness Stuart of Edgbaston:—but takes one look and says, “I really can’t work with this person”.

Lord Strathclyde: They could work with him, but you do not think they could work with anybody else. In other words, the Minister is not going to be there for very long. Are you creating a problem for the future, or does it never really arise?

Baroness Stuart of Edgbaston: I would be really surprised if it happened at that level. There can be occasions—for very specialist jobs, for example—when we have appointments for particular jobs for which the military could apply, and you get someone coming into the Civil Service who is used to command structures. You would say, “They are just the right person for dealing with something that requires those command structures”. That is about as specific as you will get, rather than individuals who would not work otherwise.

For clarity, can I also add the provision that has not yet been used but which is in the recruitment principles? If the Minister is not satisfied with the panel's recommendations, the Minister may ask the panel to reconsider, setting out the reasons. The panel may revise its order of merit. The reasons for it must be recorded and the panel must obtain the approval of the commission board before any appointment can be made. That is where things have broken down quite seriously. There is a process to deal with it. You always need these fallback positions to deal with a breakdown and to hold up the merit to people of saying, “Let us think about what it is you are after”. With proper reflection, you get the right people.

I also remember one occasion where I said to a Secretary of State, “I think you have some really good candidates here. Let me run the process, and if, at the end, you do not think we have the right person for you, you don’t have to appoint”—for six weeks—“but I think you will find some”, and it worked out. Sometimes you have to be enabling, and the decisions can be made.

Q99 Lord Foulkes of Cumnock: Good morning from Edinburgh, Baroness Stuart. You said in your evidence to PACAC that friction had emerged when Ministers tried to exceed their permitted role in appointments. I wonder if you could expand on that and give us some examples, not necessarily mentioning names, so that we can understand how it arises.

Baroness Stuart of Edgbaston: I can only speak for my time as First Civil Service Commissioner. First, when you have roles with very specific requirements of professional competence, you sometimes have to say, “The Chief Medical Officer has to be respected in their profession. The National Statistician has to be respected in their profession”. The difficult conversation, which is not a politically difficult one, is about saying, “Yes, Minister, running the department is really important, but you have some stakeholders out there whose trust and confidence in that appointment is also really important”. They have to be seen as right.

The biggest area of difficulty is appointments to private offices. That should be a wider conversation at a different point, because “external by default” now also covers SCS 1 deputy director level. That brings in more of that grade, and at the moment departments only oversee that themselves.

I will tell you where my unease comes from. We do not do talent management at that level sufficiently well. Ministers are always aware of what people are available at that level. That is where the overlap between special advisers, which Ministers bring with them, is most critical. At the same time, Ministers must have a significant say in who they work with.

Lord Foulkes of Cumnock: In the time that you have been senior commissioner, how many examples of this kind of friction arising have you seen because Ministers have tried to exceed their role?

Baroness Stuart of Edgbaston: I have seen two occasions of friction. On both occasions we managed to resolve it.

Lord Foulkes of Cumnock: Were they both in the private office?

Baroness Stuart of Edgbaston: They were in the private office, yes.

Lord Foulkes of Cumnock: Is that not where Ministers have the right to more involvement because they work so closely with a principal private secretary, for example?

Baroness Stuart of Edgbaston: Absolutely. In one case, the frictions arose out of the private office itself not fully understanding the rules. That is why the politicians and the civil servants do not necessarily always appreciate each other's boundaries. That is why I said that it is SCS 1 deputy director level where the departments had the freedom to do their own recruiting and, occasionally, where we come in. So yes, you are right. I found that the frictions that arose were more to do with a lack of awareness of the rules than a wilful non-compliance. On the one occasion when there was a real difference of opinion, we managed to have a frank exchange of opinions and resolved it.

Lord Foulkes of Cumnock: If there have only been two during your term as senior commissioner, and they have been in the private office, it is not really a major issue, is it?

Baroness Stuart of Edgbaston: It is the principle. The running of private offices, the role of special advisers and the support that Ministers get have to be seen in the round rather than as just a Civil Service Commissioner issue. For the Civil Service Commissioner, it is actually fairly straightforward.

Lord Foulkes of Cumnock: I must say that I am on the side of Ministers here. You used to be a Minister, so I am sure you can understand that.

Baroness Stuart of Edgbaston: I am saying that you can be on the side of the Ministers. If we go back to Northcote-Trevelyan, what was that about? It was about saying that you should not appoint your cousin, particularly not if your cousin is useless. It was about an end of political patronage that undermined effectiveness and competence of government. Ministers should be properly supported. There are processes in place so that it can be done, and then you can do it within the rules. Ministers can have their say within rules.

My problem is that very often, when Ministers are coming into a position, they deal with Civil Service appointments. They will have public appointments on boards. They do not know what their powers are. They have informal conversations with candidates. I have now learned that when I go into a room I should say, “Minister, you are seeing these candidates. They have been shortlisted. They have not been interviewed. The purpose of me being here is this: tell me what you would like me to take forward”.

I have not come across a single Minister who would wilfully do something different. It is just that we have not spelled out sufficiently their “can and cannot do”. An incoming Minister—this may be theoretical; he may want to ask other things—may well have little idea of what you can and cannot do. Sometimes the reluctance to write things down also tells you something.

Lord Foulkes of Cumnock: That is not theoretical; that is very sensible. The turnover of Ministers at the moment will keep someone busy. Thank you very much. Those are really helpful replies.

The Chair: You have pushed back on the point about what Ministers want. Are you saying that Ministers’ needs should not undermine the principles—these are my words—of merit and impartiality in the Civil Service? What are the principles that come into play if Ministers go too far in pushing their personal requirements?

Baroness Stuart of Edgbaston: I am not quite sure what you mean. Would you like to help me a little more?

The Chair: You said that when Ministers were, in your view, raising issues of tension or friction in the appointment of someone who meets their needs, there were issues of principles that came into play. I was trying to understand what those principles were.

Baroness Stuart of Edgbaston: Giving undue weight to a particular skill and other skills being absent is sometimes where the tension comes in, and how what they need is assessed.

Lord Falconer of Thoroton: Thank you for those answers. It is very clear. You are indicating that Ministers can have more of a role than perhaps many of them think. That is what you are saying. The Minister behaving properly can improve the choice, because the Minister can make it clear what he or she wants out of the Permanent Secretary. The more Ministers get involved—I am not saying it is a good or a bad thing—the more you end up with a courtiership approach to the very senior appointments. When I say the very senior appointments, I have in mind the Cabinet Secretary and Permanent Secretaries. To what extent do you think the sense of prime ministerial involvement and senior ministerial involvement in the appointment of Permanent Secretaries has led to a courtiership attitude in the very senior civil servants today?

Baroness Stuart of Edgbaston: There are two aspects to your question. One is that if we have a system that rewards mere survival unduly and therefore does not allow people to take risks, occasionally fail or say, “Yes, we can try that”, you become so risk averse that as little as possible happens and you end up with a bad administration and not so much with the courtiership. That is a wider question.

Avoiding courtiership has to come from the top. It has to come from both the Cabinet Secretary and the Prime Minister and the extent to which they are involved. I have noticed that under the current Administration, in terms of how many decisions go to No. 10, if you make a rational case, that case is accepted and the Prime Minister does not wish to get further involved. He takes the rational advice, and that is what I would want to look for. On the courtiership issue, there is a wider problem. At the moment, I am not sure that we sufficiently test people's ability to carry forward, defend and enforce uncomfortable decisions—to make really tough choices.

When it gets to the Permanent Secretary role, I am now very keen on not just testing whether you are a team player and have sufficient leadership to take people with you. Quite frankly, by the time you get to that level, people have the right to expect that you would not become a director-general if you did not have those skills. Once you are Permanent Secretary and the decision has to be made at three o'clock in the morning, you cannot ring a friend; you have to make a decision. More to the point, you have to defend it the next day and it will offend some people. That is probably what Lord Maude had in mind when he said that we need to become a bit tougher. These are big, tough jobs. We ought to be much more up front about that and then reward them for being able to fulfil big, tough jobs.

It is interesting how people describe their leadership style. There are phrases such as whether people are “humble leaders” or “incomplete leaders”, and all kinds of things. I feel like saying, “If you’re an incomplete leader, could you come back when you’re complete?” That may sound frivolous, but at that top level these are big jobs. No interviewing panel, and certainly none of the commissioners, will step back from saying that this has to be tested at that level. It throws up a completely different question as to whether the process of a panel interview for that level of job–if you had an equivalent in industry–is actually the right process. If you were in private industry for that kind of high job, you would probably have 23 conversations over coffee that we do not label interviews but, actually, that is what they all are.

I know that the Senior Leadership Committee is looking at whether we could have different processes—I am talking about appointments at the lower levels—while having a system that a regulator could oversee to ensure that all the candidates go through the same processes and that they are open and fair. These are the questions I am much more worried about: do we test and reward the ability to make difficult decisions?

Lord Falconer of Thoroton: Coupled with this, Lord Sedwill is effectively dismissed as the Cabinet Secretary. Does that not make the replacement much more of a courtier? Jonathan Slater is dismissed as the Secretary of State for Education's Permanent Secretary and replaced by the head of the Courts Service. Does that not make her more of a courtier? Tom Scholar is dismissed by the Government and replaced by James Bowler. Does that not make him more of a courtier to the Government? Are you not worried about that?

Baroness Stuart of Edgbaston: It comes back to the very early question of who, or what, is appointable. I had a long conversation with Jonathan Slater about that. If you look at the list of Permanent Secretaries at that time, that was a period of a larger exodus, but I would not be as pessimistic as you are, for the simple reason that these things happen in industry as well.

For one particular job, I remember taking a job reference for someone who had left their last position. They were a very strong candidate, but I could not quite work out why they had left that last job. I asked the executive agency to get some more references and we had a refreshingly honest reference back from the person saying, “Look, he was a really strong leader, the team really liked him. I came into the organisation and wanted to change things. I knew they would follow him rather than me, so he had to go”. That was in the finance sector. What you then come to, at that level, is proper HR processes. If you look at exit structures, it becomes all about HR functions.

Lord Falconer of Thoroton: The one thing you could say about the dismissals that I have just gone through is “HR process, absolutely not”.

The Chair: Certainly not with Tom Scholar.

Lord Falconer of Thoroton: Or any of them.

Q100 Baroness Finn: I want to follow on from your point about impartiality and merit. Presumably the difficulty in a fair, open competition, with the final decision being made on the merit of the candidate, is that obviously merit is a subjective assessment. At the end of the day, who is best placed to decide the merit? Saying that Ministers cannot have a role is saying that a Minister does not have the final judgment on merit or, rather, that the panel has the final judgment on merit. Where would you stand on that? Judging merit is not a straightforward objective. You can say, “Look, are you capable of doing the job?”, but that is very different from, “Are you the best person for the job?”

Baroness Stuart of Edgbaston: The more points of reference you have to triangulate the various parts, the better. An example of where judging merit becomes most difficult is when you have particular jobs that, if you look at the job description, have seven key elements. It is very unlikely that any candidate will make more than five, because it is such a big ask. We had a recent case of two strong candidates, but each of them had a very particular area where they were lacking. One was lacking, and with the other there was a risk factor involved.

You then write a hopefully very thoughtful report and spell out the choice that has to be made, the trade–off. Do you want to bring about change? Candidate A may be a very solid continuity candidate with no surprises or fireworks. Candidate B may move this role forward, although there are risks involved with that. The vacancy holder has to decide. That is where the report becomes really important in outlining and describing the merit and the foundation for that. That is why the panel composition is really important, because you find those outside voices really helpful.

The Chair: We will drill down into this concept of merit later. Lord Mancroft has a question on the formalisation of dismissal and redeployment.

Q101 Lord Mancroft: We touched on it a minute ago when you were discussing with Lord Falconer whether there is a case for formalising all the processes of dismissal or deployment in the same way that the Civil Service Commission recruitment principles have done? Should there be dismissal and deployment principles?

Baroness Stuart of Edgbaston: I would be very cautious about that, because it gets you into HR functions. The commission oversees the processes, but the management should be left to the Civil Service.

The one thing I would question is whether the career management of senior civil servants at deputy director and director level should not be strengthened. Once you become a director-general or a Permanent Secretary, there is a system in place that supports you with leadership, which can do managed moves and much more. There is an oversight of those layers. The career management of the two layers below is either within departments or left to the individual. I would argue that we probably need to have greater coherence, not least because it is part of a career structure. If we want people to come in and see a career to some extent, we ought to manage that.

I would also want to see us encouraging people at that level to leave the Civil Service for a bit and work in local authorities, in devolved administration, in industry and then come back in again. That is much more my concern than a formalisation of the exit process.

Lord Mancroft: If Lord Falconer is to be believed—and, of course, I always believe every word he says—the HR process for Permanent Secretaries is clearly not working.

Baroness Stuart of Edgbaston: It becomes about the right to do something and the manner in which things are being done. The manner in which things were done could have been considerably improved, but that should not suggest that the process itself is not in place.

Q102 Baroness Finn: My question relates to the role of the Senior Leadership Committee and its part in the appointment, departure and redeployment of senior civil servants. You have already touched on the fact that they have a role in managed moves. You have also mentioned that the quality of the succession planning, and maybe the talent management of the layers underneath those top levels is not good enough and that we are not getting good enough candidates for the top-level roles, as you outlined in your introduction.

Where do the Civil Service Commission and the Senior Leadership Committee coincide on internal/external appointments, et cetera? The Senior Leadership Committee is one of those rather opaque bodies. It is very difficult to find the composition of it. It is referred to in the 2011 Civil Service Senior Appointments Protocol. On the question of reforming the role, does it have any external composition, or is it Permanent Secretaries?

Baroness Stuart of Edgbaston: It is a very interesting question. In my conversations with the two previous First Civil Service Commissioners, it was interesting how much significance one put on it, while the other questioned whether First Civil Service Commissioners should be on it at all, because there is a level at which you discuss individual careers. You may be chairing that panel and you try to do things without bringing knowledge to it.

As to who is on it, at the moment there is a group of Permanent Secretaries, and the external members are there by invitation. The membership includes: the First Civil Service Commissioner, one of the government lead NEDs—the current one is from the MoD, one of the big departments; the Chief People Officer; and the representative senior Civil Service talent team.

My view is that there are a whole lot of decisions on which the Civil Service Commission has no view, so I neither offer a view nor ask for my view to be sought. If the Senior Leadership Committee wishes to create extra DGs, extra Permanent Secretaries or all those things, I know it. However, when it comes to such things as “external by default”, whether there are different processes for interviewing or my observation about candidates coming forward, just like the Government’s Chief People Officer the Civil Service Commission should be there and should have an input.

There is one thing that I would recommend. The committee is currently not chaired by the Cabinet Secretary. Before I joined that committee, I instinctively felt that, given that it is such an important committee, it should be chaired by the Cabinet Secretary.

Baroness Finn: Who is it accountable to?

Baroness Stuart of Edgbaston: It will be a classic one. I have the terms of reference here. Part of its remit is to provide advice to the Cabinet Secretary and head of the Civil Service. I think it is an internal Civil Service organisation. My bedtime reading is to read the terms of reference again and maybe I can come up with an answer, although I understand that you will be seeing the Cabinet Secretary, who may be able to answer.

Baroness Finn: Yes, thank you for that.

Baroness Stuart of Edgbaston: I am a member of the committee by invitation.

Q103 Baroness Finn: In which case, my supplementary goes to the statutory requirements for appointments on merit, applying only to externally advertised competitions, but that is not quite true, because you also chair the internal appointments of DGs and Permanent Secretaries. The question is about senior internal recruitment, and you have touched on it a fair amount. How much more would you support the Civil Service Commission having an oversight role over internal appointments?

Baroness Stuart of Edgbaston: At this stage, the conversations we have with the Chief People Officer are simply about data. Sometimes it is difficult even to get an organogram of an organisation. What we are trying to do in the commission at the moment is to have alignment and make sure that we can get real-time figures, particularly on how “external by default” will work, not three months and six months later but at the time, and who is signing off exceptions for that. I am much more exercised with just getting real-time data out of departments rather than having oversight of the decisions, because the data can sometimes show you trends. At that moment, the commission can always do an audit and a deep dive on something. We always have that right to do it.

Baroness Finn: It also goes to the heart of the talent management, though, which you touched on: that internally, given that there have been competitions where no candidates were appointable, that is not necessarily being looked after either. This is not necessarily the role of the Civil Service Commission, but it is surely something that should be looked at to make sure that those coming through the internal ranks are being looked at for a succession plan later on in their careers.

Baroness Stuart of Edgbaston: You touched on something really important, which is the variability of the quality of HR in the different departments. In our dealings with them, it is very obvious that some are exemplary, but others have staff turnover or there is insufficient management. It has always been a source of surprise to me how an organisation like the Civil Service, whose assets are its people, has not paid more attention to the talent management of the whole range of its people. At a time of tight labour markets now, I hope that will focus minds. It is the variability that troubles me more than anything else.

Q104 Lord Falconer of Thoroton: In your evidence, you have identified that there are three ways in which you could appoint a Permanent Secretary: by an external competition, by an internal competition, or in a managed move. I am interested to know who decides in a Permanent Secretary appointment which of the three it would be. You said in answer to an earlier question on the replacement for Tom Scholar that it would be the vacancy holder who would decide which of the three it was, and you described the vacancy holder in relation to the Treasury Permanent Secretary as being the Cabinet Secretary.

Baroness Stuart of Edgbaston: And the Prime Minister.

Lord Falconer of Thoroton: Okay, I did not realise that. Am I right in saying that when one is looking at Permanent Secretaries, the vacancy holder is the Prime Minister and the Cabinet Secretary?

Baroness Stuart of Edgbaston: Ultimately, yes.

Lord Falconer of Thoroton: It is the Prime Minister and the Cabinet Secretary who decide which of the three processes is adopted?

Baroness Stuart of Edgbaston: In consultation with others.

Lord Falconer of Thoroton: Who are the others?

Baroness Stuart of Edgbaston: In the time I have been in post, I have not come across an occasion when the initial desire was always to go for a proper campaign to replace someone if a vacancy arises. You go through the proper interviewing processes. Sometimes you will find that a position has to be filled pretty quickly. We currently have 48 Permanent Secretaries. Forty-four of those positions were filled by competitions and four were managed moves.

Lord Falconer of Thoroton: Over what period?

Baroness Stuart of Edgbaston: That was in the last year. I will tell you what the managed moves were over the last year. One was Tim Barrow, the National Security Adviser, Tim Barrow. Matthew Rycroft went from DfID to the Home Office as a managed move because there was a merger, so there was reorganisation—

Lord Falconer of Thoroton: Hold on, just explain that a bit more. There was a merger?

Baroness Stuart of Edgbaston: DfID merged with the FCDO.

Lord Falconer of Thoroton: You said that he moved to the Home Office.

Baroness Stuart of Edgbaston: Yes.

Lord Falconer of Thoroton: There was a man spare, so they—

Baroness Stuart of Edgbaston: As you move round, you try to ensure that you use people with the most talent. That is why I am not decrying managed moves; you sometimes need them. So far, I have not seen an unwillingness to run through the proper processes, not least because they actually test your assumptions.

Lord Falconer of Thoroton: Could we have those figures? I do not want to go through them now, but if you could send them to the committee I would be really interested in them. Just to close this off, in May 2022, which was two months after you arrived, the Government said that senior Civil Service appointments would be “external by default”. Could you give us the figures for the senior Civil Service appointments that have been made since May 2022? How many of them have been “external by default”? I am not asking for them now, but if you could provide those to us, that would be really helpful.

Baroness Stuart of Edgbaston: Yes, I can do that.

Lord Falconer of Thoroton: On the basis of what you have told us—namely, that it is the vacancy holder who would decide whether it was “external by default”—as I understand it, it would be the Prime Minister and the Cabinet Secretary in relation to Permanent Secretary appointments. The Senior Leadership Committee does not really play any role in determining which of the three methods that we looked at is to be applied to the appointment of a Permanent Secretary.

Baroness Stuart of Edgbaston: No, the Senior Leadership Committee will decide whether it will be externally advertised or not.

Lord Falconer of Thoroton: I think I understood your answer, but I may have misunderstood it, so correct me if I am wrong. The person who decided whether it would be a managed move, an internal competition or an external competition was the vacancy holder. That is what you said, but are you in fact saying that it is the Senior Leadership Committee that decides?

Baroness Stuart of Edgbaston: They will do that in consultation. They will tell the Senior Leadership Committee that that is what they are doing.

Lord Falconer of Thoroton: It would be the Prime Minister and the Cabinet Secretary who would decide.

Baroness Stuart of Edgbaston: No, you know how political processes work.

Lord Falconer of Thoroton: Well, yes, sort of.

Baroness Stuart of Edgbaston: Let me turn this question on its head. When the letter went out last May about making all SCSs “external by default”, this was followed by a period of silence, which rather surprised me. I then realised that some people were saying, “We were already doing it”, so they felt, “What is new here?”

There is one department that managed to persuade the Secretary of State to give it a nine-month blanket exemption after this letter, which said that everything should be advertised externally unless the Secretary of State says, “No, it can be internal only”. We are currently in the process, through our allocation of link commissioners, of drilling down more into the departments and saying, “How are you doing it?”, going down the various levels and asking, “Why are you signing off exemptions? Could we please have that in real time?”

Some departments are really wonderful. When I introduced the link commissioner and said, ”How are you doing on ‘external by default’?”, one department, without naming it, gave some stats that showed that between June and January 2023 there were a total of 19 exemptions, as well as business-critical redeployments, temporary cover and Civil Service knowledge—“And, by the way, for interim appointments we work our usual practice of six months”. I said, “That is exactly the kind of data I would like”, but that is just one department. I regard the really big job for our commissioners, and the role of the link commissioners and us working with the Chief People Officer, as getting that kind of granularity from the departments so that we know what is being done.

Baroness Finn: Just one small point. This “external by default” edict came out in 2022. It was written into the Civil Service reform plan update in 2014 at the request of the then Cabinet Secretary, Jeremy Heywood, and it was obviously not consistently applied. It does not mean that it is necessarily always the right thing to do, which is why there can be valid cases for everything else. I worry that these things are said as the norm and are then disobeyed, which is more dangerous than not having it in the first place.

Baroness Stuart of Edgbaston: That is why the only way you can get compliance on these things is if you have the figures.

There is a slight anomaly, by the way, in relation to the Diplomatic Service, because it would be quite shocked by the concept of “external by default”, although, to be fair to FCDO, the commission is involved as much as it can be. I would suggest that we look properly at that at some stage, but that is not a commission decision to be made.

I know we are getting really technical here, but until “external by default” was extended to all four grades, departments had complete autonomy over the deputy director level and the level of some directors in how it was advertised. We in the commission are now trying to develop a concept of earned autonomy which they can continue to use, provided that in the audits and all the other processes we are satisfied that they are open and that merit and all those things are done properly. Of course, the resistance comes because they say, “You are offering us earned autonomy for something that we so far had autonomy over”.

Encouraging compliance will be quite a job of diplomacy. It requires the kind of ministerial support that is rarely seen, because, at the top level, given the principles of “open and fair” and “according to merit”, it is actually a pretty compliant system. I hope I will be able to say the same lower down, but I am as yet missing the evidence for it.

Lord Falconer of Thoroton: That is most interesting. Does the 2011 senior appointments protocol mean something to you?

Baroness Stuart of Edgbaston: Yes.

Lord Falconer of Thoroton: Is that a document you refer to a lot?

Baroness Stuart of Edgbaston: As it happens, I saw it this morning lying next to my printer. I confess that I did not take it with me.

Lord Falconer of Thoroton: I am not asking about your daily reading. Is that the bible, as it were, that you use to determine what the right process is? The 2011 senior appointments protocol says, “The Senior Leadership Committee will decide which route for an appointment should be adopted”, but that does not appear to be the practice currently. Is the senior appointments protocol redundant? Does it apply? Is it being amended? Could we look at the current document?

Baroness Finn: There are references to Ministers in it.

Baroness Stuart of Edgbaston: These are really valid questions. They are just not the right questions to put to me.

Lord Falconer of Thoroton: Tell me if it is the wrong question, but—

Baroness Stuart of Edgbaston: The Civil Service Commission cannot provide you with the answer for that one. As a regulator, once the decision has been made, it goes on the record, so it is about openness and transparency. We can come back and say, “Now you have to make the case for it not being externally advertised”. By the way, it is not in itself sufficient that you make sure that you attract external candidates. The commission will say, “There is a minimum amount of time you have to leave these competitions open”.

For some of these jobs, you really do need external search agents to bring forward the talent. Who looks after the external candidates who are narrow misses? That is the role of the Chief People Officer, and the commission can spell these things out. It can tell them, “This is something in your HR function that I really think you should be doing”. At the end of the day, I go back to our recruitment principles and the Act of Parliament, which go beyond what we were set up to regulate.

The Chair: Let us now turn to the concept of merit and fair and open competition.

Q105 Lord Hope of Craighead: The legal requirement, as you know, is for appointments to be made on merit and on the basis of fair and open competition. That applies at all levels, from the very bottom to the very top. Do you detect a difference in the application of that principle between appointments at the very senior level and those at the bottom? If I can enlarge on that question, the fair and open competition is easy enough, but when you come to the concept of merit, are you looking at something different at the very senior levels compared to lower levels? This leads to the further question: is the concept of merit itself sufficiently clearly defined for use at the very senior level?

Baroness Stuart of Edgbaston: Let me start with the easy answer to the question of merit. We define merit in the recruitment principles to mean the appointment of the best available person judged against the published criteria for the role. No one should be appointed to a role unless they are competent to do it, and the appointment must be offered to the person who would do it best. That is as far as we go on the definition of merit. Australians and others go further, but I think this is a really good working definition.

Lord Hope of Craighead: Can I ask you to pause there? This applies all the way from the very bottom up to the very top, and the word “available” appears there, which is an important point. Do you find a different sensitivity in the application of that definition as you move higher up? When you have reached that top level, these are people who, on the basis of merit, will score very highly because they would not have got there without it, but you are looking for something more when you are looking at the levels of Permanent Secretary or Cabinet Secretary.

Baroness Stuart of Edgbaston: You are, and that is why if you go back to job description of what a Permanent Secretary is—

Lord Hope of Craighead: You mean the published criteria.

Baroness Stuart of Edgbaston: A Permanent Secretary or Chief Executive “acts as a chief non-political adviser, building an effective and trusted relationship with Ministers, demonstrating sound judgment and acting as a thought leader in their field, and is recognised by the sector as such”. The higher up you go, the less easy it is to narrowly define and describe what you are looking for. However, one challenge is that we will increasingly need sectorial skills at a very high level, and the extent to which the days of the generalist are numbered is a live question, as is the extent to which we appreciate and reward and are able to attract those skills into the Civil Service. That will be the real challenge.

Lord Hope of Craighead: Does that suggest to you that this definition, which you quoted to us, is lacking something, or are you content with the definition as it stands?

Baroness Stuart of Edgbaston: It is a question of which problem we are trying to solve. At the moment, it is that people with very specialist skills are not attracted to coming into government. Our definition of merit would demonstrate that they are better equipped to do the job, so it is not the definition that is troubling me; it is that the very specialist skills that our modern Government increasingly require, and the management thereof, are not sufficient.

To digress slightly for a moment—this is getting so technical that even I may lose the thread, so forgive me—the Crown Commercial Service looks after the functions, such as whether you need people who can do purchasing, which is a very recognised commercial function. The service has an assessment centre that you go to where you have to show a level of skills throughout the day. It is very impressive. I spent a day shadowing what it was doing. It came back and said, “We herewith give you a ticket to say that you are professionally competent to do X, Y and Z”. The Civil Service used to have something like that, and the Diplomatic Service to some extent. We have less of that now, and we probably need to focus more on the functional skills.

Lord Hope of Craighead: It has been suggested to us that one way of doing it is to add the words “at that particular time” to the definition of merit, so it would be the appointment of the best available person judged against the published criteria for the role at that particular time. There may be a time when particular skills are needed, and the addition of those words would direct attention to a particular aspect that you are looking at. Would you go along with that?

Baroness Stuart of Edgbaston: I am not just saying this, but I am very attracted to that idea. The recruitment principles were last revised in 2018. We know that in the light of open competition, which is external by default, we will have to revisit some of that. I am rather taken by that suggestion. Thank you.

Lord Hope of Craighead: Thank you very much. It does direct attention to an aspect that could be very important at the higher levels. Would you agree with that?

Baroness Stuart of Edgbaston: Yes.

Q106 Lord Keen of Elie: I would like to return to the matter of special advisers, which has been touched upon briefly. Section 8 of CRaG prohibits special advisers from exercising any power in relation to the management of the Civil Service, and the code of conduct for special advisers bars their formal involvement in the recruitment and dismissal process for civil servants. However, we have heard, and perhaps it is not surprising, that they become informally involved through advising Ministers. They have the ear of their Ministers. Do you perceive this to be a problem in the current process, or is there perhaps too much concern about how such informal advice might be received and used?

Baroness Stuart of Edgbaston: I have the suspicion that the antecedents of CRaG were the rise of the special adviser and therefore a need for clarification. It is remarkable how the numbers of special advisers have increased. Preparing for this, I read that in 2016 there were 83, and in June 2022 there were 126.

Lord Keen of Elie: I am more concerned about their influence than their numbers, but I understand that the two will be linked.

Baroness Stuart of Edgbaston: The numbers matter, because to my mind there are three red lines that have to be managed. First, special advisers, when used properly, have a very important role to play in better government. Their loyalty is to their Minister, and they advise their Minister. If you have too many, they compete with each other. Then you come to what Lord Falconer said about when special advisers become courtiers. A special adviser can sometimes tell a Minister that something will not work, so they have an important role, but the special adviser becomes a temporary civil servant. They still have standards of integrity and honesty, but they are not bound by impartiality and political objectivity. If there are too many, it just blurs lines.

When it comes to the appointment of civil servants, it is right that special advisers should have no say in that, but that is not going to stop. If I am a Minister facing a really difficult problem that is politically very active, I will have a discussion about the kind of person I am looking for. You could not exempt that from the conversation. If you put down rules that you know are not enforceable and you could not have sanctions, I am not comfortable with that.

With special advisers at the moment, the rule that they should not be involved in the recruitment process is absolutely right. There is a lack of understanding—sometimes it is simply forgotten—that the special adviser cannot be in the room when these decisions are made. As commissioners, we go into a room with the Minister and look around and say, “Who are you, and what do you do?” If there is a special adviser, you say, “Can I invite you to leave now?” They will say, “Oh, I didn’t think of that”. “You will now”. The numbers of special advisers cause many more problems than the rules do when properly followed.

Lord Keen of Elie: Would you tend to agree with the evidence of Lord Sedwill, the former Cabinet Secretary, that it is simply unrealistic to think that a Minister would not take advice from a range of people over such appointments, including his special advisers?

Baroness Stuart of Edgbaston: They will listen to a lot of what is said, but in the end the decision must be made by the Minister. When a Minister tries to decide between shortlisted candidates, and what should be pursued and what the commission will take away, if a special adviser had anything to say in that room, that would be the most egregious breach of that boundary. That is what we police and are very insistent on. You cannot control who Ministers talk to the rest of the time, but they have to own the decision. I would also expect that the Minister's offices and Ministers themselves would have proper procedures in place as to who has access to what papers.

Q107 Baroness Suttie: Thank you for that. As a former special adviser, I rather agree with your analysis. Back in 2010, at the beginning of the coalition Government, there was an attempt to limit the numbers, which, as ever, mount up for a variety of sometimes political reasons. Do you think the existing code of conduct is sufficient, or should it be updated to better protect against the sort of influence you are talking about? Is it just a question of enforcement of the existing code of conduct? Do you have any thoughts on how you could enforce the existing code of conduct more effectively?

Baroness Stuart of Edgbaston: At the risk of sounding rather dull, I think the rules are clear. What is not clear, and what I am much more troubled about, is whether each side understands each other's boundaries and responsibilities, and not just understands them but is respectful of them. That becomes a real cultural issue.

Varying interests meet at No. 10 and in the Cabinet Office, and sometimes there will be conflict and clashes. The system has to enable those conflicts and tensions to be resolved. When a Minister takes on a special adviser, I would put a big onus on them to say that they do not expect their special advisers to do anything that is not compliant with the conduct, and to say, “This is the relationship”. At the end, if things go wrong on this, I would firmly put it back to the Ministers, because the special advisers come in and go out with the Minister, so we put the onus on that rather than on rewriting a document.

Baroness Suttie: That is clear. Thank you.

Q108 Baroness Finn: I do not have a huge amount to add. I tend to agree, though, with Lord Sedwill when he says that it would be foolish to put too many rules in place that say that if a Minister has a role in the appointment at all—you have acknowledged that he or she does—then their special adviser, who might give advice on the best person to fulfil quite a critical role in running something in the department and therefore responsible for implementation…

I do not know whether you would agree with this, but we can get too hung up on the rules around everything rather than addressing the really important part of trying to find and getting the right people in place. It goes a bit more to the heart of whether the Civil Service Commission sees itself as the guardian protecting the Civil Service, or whether it wants to encourage really good people to come into the Civil Service, because one can get too hidebound with the rules.

Baroness Stuart of Edgbaston: I do not disagree with you. The Northcote-Trevelyan report was about efficiency and getting the best people. If you have a process where you advertise, you get your 30 candidates, you whittle them down to six, you put them through staff engagement exercises, and you make them do the interview, what makes a special adviser think that they have better judgment on the outcome? That is really my problem. Prove to me that at the end of that process your judgment is better.

The second point that is a real problem, and it comes back to Lord Falconer’s courtier point, is that if someone has come from the police force or the armed services, they are much more confident in saying, “You just go in and tell them what to do. You order X, Y and Z, and it will be done. Of course next Friday is just fine”, whereas someone from a health and social care background might say, “Of course, we have to make sure the patient consents, and we have to have these discussions”. A Minister can end up thinking, “I like that clarity of it being done by next Tuesday”, and, “The number to aim for will be 35, rather than it being explained to me and then I have to bring all sorts of other people on board who may not agree”.

There is a particular style of presentation in what very often are not very deep encounters, which may make people like special advisers think, “They’re really good”. You say, “How do you know? They’re very good at making the case, but at that level do you know if that is what really happens? Can they take it through and actually complete things, and then is it really good?” That is where the commission sees its role: that it oversees that rigorous process of assessing someone's capability to do the job.

Lord Falconer of Thoroton: I agree very much with Baroness Finn, Lord Strathclyde and Lord Keen of Elie that it is not the rules; it is the anxiety that somebody like Dominic Cummings thinks he knows better than anybody and any process, and he becomes a dominant figure in the appointment of Permanent Secretaries. That is the example that has been much commented on in the press and is referred to in Sir Anthony Seldon's book. To what extent do you, as Civil Service Commissioner, have concerns about the fact that Ministers might, on the face of it, make the decision, but overpowerful special advisers are in fact making decisions—for example, about senior service appointments?

Baroness Stuart of Edgbaston: It is more a question of the existence of a deliberate disruptor inside the system. I think that is what happened in that case. I was not in the room. We all read the same books, and we have all been in situations where three people are in the same room and all three go out and have a different recollection of what happened. We can probably agree that this was a period where disruption, and being a disruptor, was seen as a desirable quality, and it was exercised as such. On reflection, we have generally concluded that disruption on a managed scale can sometimes be very helpful, but when overdone is probably best not repeated.

Lord Falconer of Thoroton: Do you think that disruption affected senior Civil Service appointments?

Baroness Stuart of Edgbaston: This was a period that affected the whole of government. It was incredibly disruptive. It comes back to the robustness of the system. If I look back on the ability of our system to survive, in 2010 there was a hung Government. Suddenly, we managed to form a coalition, which is not in the tradition. You had a coalition for five years that delivered pretty stable government, because the political tensions of the system were played out with a Lib Dem Minister in virtually every department. The system was enormously robust. The fact that the electorate was pretty cruel, you could say, about rewarding the stability the system delivered is a completely different matter. Then 2016 happened, and there was a rupture where, between 2016 and 2019, if Oliver Cromwell had stepped off his little pedestal and gone into the Houses of Parliament, he would have felt pretty much at home.

This was a big disruption combined with a pandemic. We should look back at the last few years and say, “What have we learned?” The institutions have been remarkably resilient. We have managed to have resilient institutions because we have rules, but the rules are enablers. The exception principles in recruitment mean that we want to get the numbers down, but, during the whole period of recruitment, if you were to talk to Ian Watmore or Rosie Glazebrook they would say that there was never an occasion when there were urgent requirements for appointments when we have not found that we could do it within a transparent and accountable system.

That tells me that these are pretty good rules. We have to bring people back to saying, “Now the emergency is over, can we start coming back to normal services?” That is really where I would want to see the focus. It comes back to saying that merit has to be based on whether you can you do the job, and whether you can prove that you can do the job.

The Chair: Lord Foulkes has a question on the appointment of Civil Service Commissioners.

Q109 Lord Foulkes of Cumnock: It has become increasingly clear from your excellent evidence over the last couple of hours that the Civil Service Commissioners are very powerful when it comes to the appointment of senior civil servants. How were you appointed? What is the process, and what are the criteria, for appointing Civil Service Commissioners?

Baroness Stuart of Edgbaston: The Civil Service Commissioners are public appointments. I said earlier that sometimes even Ministers do not know the difference between a Civil Service appointment and a public appointment. Essentially, you have a Minister responsible for public appointments, which is currently Baroness Neville-Rolfe. The positions have to be advertised against criteria. We are just going through the process of wanting to recruit some more Civil Service Commissioners.

The job description, which I think is what you are looking for and which we are currently working on for the next round, states that we want skills and expertise gained at senior level in large and complex organisations, leadership skills, and experience in recruitment and in regulation, particularly in supporting ethical standards in governance. We look to diversity, inclusion and commitment to broadening expertise, and opening opportunities to people outside London. This time around we have added one other desirable criterion which, if someone has, we would be very keen on, and that is an understanding of Wales.

The Civil Service—I feel an application from Baroness Finn coming on—is a UK Civil Service, so Scotland and Wales are part of it. We have an excellent link commissioner for Scotland, but the one for Wales came to the end of her term and we have not yet found an appropriate replacement. If the process from advertising to interviewing works well, it should take 16 weeks. It usually takes longer than that, but it is in essence a public appointment.

Lord Foulkes of Cumnock: There is a bit of circularity here, because these public appointments are made by the Minister for the Civil Service on the advice of Simon Case, who is head of the Civil Service. He is advising on who should be appointed to make the appointments of him and his colleagues. I have looked at the names, and, with respect, they are all the great and good but they are all the usual suspects. There may be public advertisement, but you are not getting a wide variety of people. Five or six of you are NEDs already. You have already made these appointments. Have we not ended up with the usual suspects?

Baroness Stuart of Edgbaston: I would take slight issue with you in that the charge used to be that the Civil Service Commission was part of a system where civil servants protected the Civil Service, and that we were too heavy on Civil Service backgrounds. The charge now is that we may have gone too far by currently only having one person with a Civil Service background.

Lord Foulkes of Cumnock: No, that is not my charge. My charge is that even though there is public advertisement, there is no ex-trade unionist member. Paul Gray comes from Scotland. You do not have a Welsh person. Okay, you are going to try to get one. The rest of them all seem to be from the south-east of England. It is the usual suspects, non-executive directors. It is all jobs for the boys and girls.

Baroness Stuart of Edgbaston: I chaired the last round, so I know that a trade unionist did not apply. Can I issue you with a challenge? Can you help me to get trade unionists to apply in the next round? You cannot be a regulator of a system that you do not understand. That does not mean that you have to be an insider. NEDs are very important, because they can hold up the mirror. Impartiality is not the same as irrelevance or being frozen out. You have a public appointment system that is then limited to just five years and is non-renewable.

A charge I would have against the Government is that they are not making those appointments in a timely fashion. For the Civil Service Commission to be in a position where we know that everybody is on non-renewable five-year contracts and to end up having to have an interim First Civil Service Commissioner and, last year, getting to the point where we were almost falling below the statutory minimum of seven is the thing I would complain about, not your perceived circularity. In a sense, you always have to come back to the fact that your independence does not mean that that is the end of the road with no reference points.

Lord Foulkes of Cumnock: There is a bit of a cloud over public appointments at the moment, following the appointment of the chairman of the BBC. Could it not be argued that your appointment, for example, was similar to the appointment of the chairman of the BBC?

Baroness Stuart of Edgbaston: You have tried to argue along those lines before. I would say that I have gone through a proper process. I appeared in front of a pre-appointment hearing at PACAC, and I returned to that a year later to give my evidence.

Lord Foulkes of Cumnock: Do you not think that it was maybe helpful to your appointment that you were chair of the Vote Leave campaign?

Baroness Stuart of Edgbaston: When I was interviewed, I went through processes where nobody asked about that or mentioned it. Process and pre-appointment hearings are really important, and that is what happened.

Lord Foulkes of Cumnock: There are some of us who think that the whole process of public appointments needs review, not just the chairmanship of the BBC, but I will leave it there.

Baroness Stuart of Edgbaston: I think that is for another commissioner. I am sure you will invite William Shawcross and have a very useful discussion.

The Chair: I take the point that there is no succession planning in place at the moment, but 10 of the 11 commissioners now do not have a Civil Service background, according to the note I have. How, in your view, has that shift impacted or changed how the Civil Service Commission has discharged its role? The argument was that it was too Civil Service-centric. How is the role discharged as a consequence of having that mix?

Baroness Stuart of Edgbaston: I would be troubled if the Civil Service was not very strongly represented on the interviewing panels and during the whole process, but at the moment there are really helpful conversations about how to proceed. We look at innovation and encourage departments to find different ways of doing things. I have found it to be a fruitful exchange of the different experiences. Sometimes that has been challenging, but if you want to bring about change—this comes back to merit—you sometimes have to turn to departments and say, “Do you really think that is the best way of doing it?”

We have this continuous debate about how we can increase diversity of backgrounds, ethnicity and experiences at a higher level of the Civil Service. We have to look at the pipeline in order to get to deputy director and director level and to ensure you have the progression path. Maybe sometimes you should do clustered appointments, so rather than just appointing one person you take them in threes or fives. That tends to bring in greater diversity.

I always use Barbara Castle as an example. She became the woman MP for Blackburn, because in those days you had multiple constituencies. Once they had their man, which they thought was safe, they said, “We can take a bit of a risk by having a woman as the second one”. Quite often, having a breakthrough requires a willingness not to take comfort in the status quo and to take a bit of a risk. That is what we are trying to encourage departments to do in their recruitment. That is why I think the skills mix at the moment is a good one.

I take the point that, particularly in the next round, we need a greater understanding of the health service and of local government. There is a lot of secondment from the health service, but I also want greater movement between Whitehall civil servants and local authorities, so an understanding of local government would be really helpful.

The Chair: Seniors civil servants occupy a particular constitutional position, albeit that that position is slightly in flux at the moment. A senior executive in the private sector does not have the same sorts of restraints and is working for the interests of their company, full stop. How is that cultural, or organisational, difference conveyed to the commissioners to influence their thinking about merit and the best person for the job in the context of the Civil Service, which can be a combination of knowledge, skills and particular expertise? How are they informed about that, as opposed to just wanting to appoint a director of marketing from a FTSE 100 company?

Baroness Stuart of Edgbaston: That is something that we address collectively as a commission. For example, all our appointments letters, or even exception letters, make reference to the Civil Service Code. After our monthly board meetings, we now increasingly have what we call commissioner professional development. Lord Evans came and talked to us about his report. Baroness Falkner came and talked about her work. We also realise that, in our conduct as a group, we have to keep reminding ourselves of these matters. In terms of chairing competitions and overseeing the processes, I would not be worried that a private sector culture in any way undermined the values of the Civil Service in that sense.

Q110 Lord Falconer of Thoroton: Do you have any reflections on how the Civil Service Commission's role compares to equivalent bodies in other countries such as New Zealand, Canada, Australia, and Singapore?

Baroness Stuart of Edgbaston: I did a quick cook’s tour of those countries. Last week, we were in Dublin, and I managed to talk to the Irish system. All these systems come out of a history, and you have the greater divergence in the matter of how much of the HR function you want to take over as a commission. I noticed that Canada has a better definition of the meaning of merit. New Zealand has a Public Service Commission. Comparisons are useful, but because I have seen 30 years of German-British relations I always have to guard against going to another country and saying, “That looks good”, and thinking that you can transplant this one thing into a wider context. You suddenly realise that, no, there are knock-on effects.

The bit I like about our system as it stands is that it is very flexible and enabling. I do think we need to look at other countries in relation to the rules, which are currently under the Advisory Committee on Business Appointments. If recruitment is external by default and we want greater porosity—we want people to come into the Civil Service, move out and come back in again—that will work only if, at the moment of joining, you know exactly what the rules of leaving will be, and if there is a record of what they were, and of re-joining. There are some countries we could learn from that we ought to look at, because some of those models would essentially have the Government Chief People Officer and the Civil Service Commission in the same organisation. You could do it, but I am not sure what question that would be the answer to.

Lord Falconer of Thoroton: One of the features of Civil Service Commission that gives it strength is its independence from the existing Civil Service and from the political government. Do you think that is demonstrated enough in our system? In particular I have in mind that, in the Australian system, if the equivalent of your commission disagrees with an appointment, it publishes its report to that effect. Would some degree of reporting, where you disagree with the appointment that is being made, be appropriate to demonstrate your independence?

Baroness Stuart of Edgbaston: For any of the appointments that we play a role in, it would be difficult for them to make an appointment that we disagree with, because we would declare the candidate to be appointable. If the candidates are not appointable, that would be a clear breach, and we would state that.

Lord Falconer of Thoroton: Are you are saying that you can block any inappropriate appointment, so you would never disagree with the appointment?

Baroness Stuart of Edgbaston: If we found a candidate to be not appointable, they could not be appointed.

Lord Falconer of Thoroton: Yes, exactly.

Baroness Stuart of Edgbaston: When Ian Watmore was First Civil Service Commissioner, there was one occasion when they went to the extent of declaring an appointment illegal.

Lord Falconer of Thoroton: Was that after the appointment had been made?

Baroness Stuart of Edgbaston: Yes. Something emerged afterwards. But we are moving into an area where employment law would cover a lot of these things. There is one thing I go back to when we make these comparisons, particularly when we look at letters of instruction and the like. There is some merit in how the performance assessment of Permanent Secretaries is done, but also in how you measure the performance of Ministers. There is huge scope for that, rather than just using the regulatory role of the Civil Service Commission.

Having said that, if you want the Civil Service Commission to do more, you have to resource it more. Then you have to give it operational independence of the Cabinet Office. What is currently not very satisfactory—I hope our new framework agreement will be able to address this—is that we use only the back office functions of the Cabinet Office for doing payroll and other things. We have the ability to decide the grade at which we appoint the staff, and we probably have more guarantees about what the budget is.

Baroness Finn: Do you have sufficient operational independence with your secretariat? They are secondees, as I understand, from the Civil Service rather than your own staff. Would your chief executive be accountable to you or to some official in the Cabinet Office?

Baroness Stuart of Edgbaston: We have to negotiate a different relationship, because at the moment the chief executive’s line manager is at Propriety and Ethics.

Baroness Finn: That is not fully independent.

Baroness Stuart of Edgbaston: There is a huge risk when you give evidence to a committee that in the last few minutes you say something and everybody then goes, “Oh, I didn’t know that”, but it is important to know in relation to the commission that three organisations [1] are served by one chief executive. That makes it a very demanding role to fulfil, so we require greater operational independence and security over the budget. If you want to be independent, how can you be controlled? How can you control a regulator to whom, in the statute, you have given independence? According to CRaG, we could employ our own staff. I would ask for a guaranteed budget, the ability to decide which grade it is, and a commitment from government that commission vacancies are filled in a timely manner. Then you can function better.

Q111 The Chair: This is literally the final question, so you will be relieved. Is there a case for bringing civil servants who whistleblow to the Civil Service Commission within the protections of whistleblowing laws?

Baroness Stuart of Edgbaston: I would need a lot of persuading before I said yes to that question. In one of our documents, we say that there is often confusion between the Civil Service Code, whistleblowing, and the Public Interest Disclosure Act. In the presence of some very eminent lawyers in this room, I do not want to pursue the legal differences between the protections of breaches of the code and whistleblowing, but I think that this area, which is covered by employment law, should be covered by the HRs of the departments, and I would expect them to deal with that properly. Again, if you go back to why the Civil Service Commission was set up, I cannot see that this additional function would give you a better-quality outcome and merit of appointments.

The Chair: You are very clear in your view. I have just one clarification. I think we know the answer, but, just for the record, is it correct that under the Civil Service Code only civil servants can bring complaints about other civil servants?

Baroness Stuart of Edgbaston: Current civil servants can bring complaints, but if they are not current civil servants, they cannot.

The Chair: That was quite a marathon session. I am sorry about that, but we had lots of detail to ask you. Thank you very much indeed for joining us. It is appreciated. You have given us lots to think about.

[1] Note by the witness: the three organisations referred to here are the Civil Service Commission, the Office of the Commissioner for Public Appointments and the Advisory Committee on Business Appointments.