22
Examination of witnesses
Jeremy Quin and Simon Case.
Q124 The Chair: Good afternoon and welcome. This afternoon, the Constitution Committee is taking evidence in its inquiry into the appointment and dismissal of Permanent Secretaries and other senior civil servants. The committee today will hear from the right honourable Jeremy Quin MP, Minister for the Cabinet Office, and Simon Case CVO, Cabinet Secretary. Good afternoon, gentlemen. You are welcome and we look forward to hearing what you have to say. I know that you are time constrained today, so I will dispense with the normal pleasantry of asking whether you want to make some opening comments and, for the purposes of utility, go straight to the questions.
I hope you have had an indication of the kind of questions that we want to ask. The opening question is an issue that we have been considering. Is there a risk that greater ministerial involvement in the appointment of senior civil servants would undermine the continuity provided by the Civil Service, particularly given the high degree of ministerial turnover that we have seen in recent years?
Jeremy Quin: I will set out what currently operates, and I think that it operates well. I have not been involved in the appointment of a Permanent Secretary, but there have been many DG and other appointments that I have been involved in.
Getting the brief and the job description right at the outset is absolutely something that Ministers are involved in. That kicks off the process, and Ministers can then meet all or none—invariably, my colleagues would want to meet all—of the candidates before a final selection is made. That is their opportunity to ensure that the right questions are asked and that their concerns or positives are reflected and tested through the interview process before, in the case of a Permanent Secretary, the PM makes a final decision. That is the process as it operates.
I think that has a good balance. The vast majority of Ministers want to be certain that they have someone who can make the system work with the experience to challenge and support them in their roles. That system works well. I have not had any intimation from colleagues of a requirement or a desire to change that process, and so, from my perspective, it is a slightly academic question. I understand why it is being asked. I suspect that Lord Maude will touch on this in his report. He might have other insights that we will be able to consider in due course, but it is not something of active debate at present.
The Chair: I do not think that Lord Maude had a problem with the level of involvement; it was about Ministers being aware of what the existing process was and what they could do, so there is a synergy between your points of view in that respect.
Jeremy Quin: On awareness, in my experience of recruiting below Perm Sec level, I used to get a positive confetti of submissions from colleagues regarding appointment processes. The system, to use that phrase, was extremely keen to get ministerial involvement. From my experience, you would have to make an active decision as a Minister, if you so wished, not to be engaged with an appointment process. The emphasis was that people were keen to get ministerial involvement, from my personal perspective.
Simon Case: There is a clear expectation that Permanent Secretaries will talk to their Secretaries of State, at the outset of a process when recruiting for a DG appointment, about the manner of that recruitment and how they get involved. When it comes to Permanent Secretary appointments, I will always make sure that I have an early discussion with the Secretary of State about how they will get involved. I know from the evidence you took from Gisela Stuart as First Civil Service Commissioner that she also has early conversations to make sure that people are aware.
Q125 Lord Hope of Craighead: When considering our report, we will have to look at and decide what to say about the process itself. Jeremy, does the process by which senior civil servants are appointed give sufficient confidence to Ministers that people are being chosen who will be delivering on Ministers’ priorities?
Jeremy Quin: They have every opportunity to influence that. Although not at Permanent Secretary level, I have certainly amended job descriptions that have been put in front of me. For example, if I felt that there was a particular requirement on a board or for a particular post to have more of a commercial angle, I would say so, and that would be reflected in the job description. There is an opportunity to influence the nature of appointment and the type of person one might want, without going into specific individuals, and skills that you would need to have to make certain that the post was filled particularly well.
Through the formal process of meeting each of the candidates, they get an opportunity to ask questions of the Minister, which is often important for them, but the Minister gets the opportunity to test whether this would be the type of person with the type of skills that would be able to deliver to their priorities. That is transparently not from the point of view of asking, “What do you think our policy should be on X?”, but a matter of deciding, “Would this person be able to galvanise colleagues and deliver across the public and the private sector? Do they have the skill set to ensure that this project gets done on time and to budget? What experience will they bring to bear to ensure that I can be comfortable that this individual will be able to do it?”
When I had concerns about individuals, I would flag them during the interview process, and they would then be able to test and probe those particulars. I will not speculate on what they thought about my observations, but the fact is that you can make them, and then it is up to the interview panel to test them and test the candidates.
Lord Hope of Craighead: So the job description comes first and you need to establish that. How does the process of putting the job description together operate? Who starts that and how is it refined before the interviews begin to take place?
Simon Case: If it is a pre-existing role, you take the last job description from the role of the predecessor and start from there. Usually, for both Permanent Secretaries and DGs, the Civil Service would put that together and discuss it with the First Civil Service Commissioner. Then it goes to the Minister for agreement. Both the job description and the make-up of the panel doing the interview go in front of the Minister.
Lord Hope of Craighead: The Minister then has an opportunity, as I think you were explaining, to make adjustments to the job description. Of course, we are conscious that the word “merit” appears in the relevant paragraph. Presumably, when considering merit, you look at what the job description is telling you about the post that is being filled. Would that be right?
Jeremy Quin: Certainly, from my perspective, yes.
Lord Hope of Craighead: The aim is to find somebody who is not only, generally speaking, of suitable merit but suitable for this particular post.
Jeremy Quin: Absolutely, yes.
Q126 Baroness Andrews: Good afternoon. We were discussing this with Lord Maude in the context of the possibility that, if you had more ministerial involvement, you might have a rather chilling or inhibiting effect on the confidence of civil servants to challenge Ministers or to tell them, “You’re not quite right, Minister; there is a better way”. He referred to it as the ability to give challenging, independent and dispassionate advice to Ministers. You cannot put that in a job description, but how do you test for it? What do you look for when making such a senior appointment, given the importance of that capacity to tell it as it is?
Simon Case: Actually, we do put that in the job description, because a core part of the role of any civil servant is to give that sort of advice without fear or favour.
Baroness Andrews: How do you articulate that?
Simon Case: Why do we not just provide you with an example? We are happy to send over an example of the language we use, but it is pretty close to the language Lord Maude was using.
There are a couple of ways in which we look to test this, as Baroness Stuart would have touched on. First, it is always a topic that we test and press in interview, looking for very specific examples of where individuals have had to do this and how they managed it, because it is part of the job. Secondly, we will sometimes do case study exercises with the candidates to test their performance in a scenario in which they have to turn up and give Ministers or external stakeholders difficult news. That is something that I and Baroness Stuart have agreed on. We are using those scenarios more and more as part of the recruitment exercise now.
Jeremy Quin: I would not want the committee to think that there is a groundswell of Ministers desperate to have someone who is going to agree with them the entire time. When a policy is determined and agreed, and it is a priority that is going to be delivered, everyone would expect the Civil Service to absolutely deliver on it. It does and, to my experience, it does so well.
In that period of working out exactly the nuance of the policy—“Is this the right thing?”—my colleagues and I want to have proper challenge and proper debate, and Civil Service colleagues who will be able to present properly constituted, fair and proper advice. Ministers are there to decide, but we want to have that push-back and to make certain that there is constructive criticism, so you know that what you are doing is going to stand the test of time.
Q127 Baroness Finn: Good afternoon. Several of our witnesses have noted in their evidence sessions that the departure process for senior civil servants is not formalised in the same way that the appointments process is. I should add that opinion is split as to whether it should be. In your view, is there a case for greater formalisation of the departure or redeployment process, akin to the Civil Service Commission recruitment principles? If the Civil Service Commission were to have a greater role in regularising this process by which civil servants move in and out of the service, how could it best work alongside the Advisory Committee on Business Appointments—ACOBA—and the senior leadership committee?
Simon Case: On formalisation, we have formal processes around performance management and conduct and discipline issues, but there is a particular set of cases that the committee has been interested in where it is not quite so formal. I know that Lord Sedwill talked about those cases in which it is about personality fit and the challenges around that.
I would be more open to that formalisation, just because, exactly the same as with recruitment, it would benefit everybody to have absolute transparency around the departure. I note that the First Civil Service Commissioner was pretty cautious about the Civil Service Commission getting involved in this, but a little more structure and format around it would probably be a confidence-building exercise for everyone involved.
As for the interaction with ACOBA and the senior leadership committee, the Government are shortly going to produce their response to various recommendations on ACOBA, so it is slightly challenging to get ahead of that. One of the conversations that we have been having through the senior leadership committee with the Civil Service Commission is about precisely how to make the “external by default” policy work.
That has involved conversations with ACOBA about potential processes, such as making sure that, on appointment, people’s contracts spell out clearly and up front what the restrictions would be on them when they leave, so that there is absolute transparency for those individuals, as they come from the private sector or elsewhere into government, and they know what the restrictions will be afterwards. They are then taking, for some of them, very serious career decisions in full knowledge of the consequences.
Jeremy Quin: As I understand it, there are formal processes if you have issues around performance, conduct or discipline, but we are talking about a very rare scenario here. The only issue about giving more formalisation—and I cannot believe that the committee would suggest this—is if you said, “On the arrival of X, you then have to go through a process to reconfirm”. Work to formalise a situation is quite rare and is handled by existing processes where it arises, rather than perhaps setting in stone complex but routine scenarios that might create an expectation that this is used more often.
Simon Case: If I may add one point, which Baroness Finn will remember from her time in government, there are things such as machinery of government changes where we need to move quickly in terms of redeployment of Permanent Secretaries. With anything we did, we would want to make sure that it did not hinder our ability to move at pace in such scenarios.
The Chair: I take the point that you need to move quickly on occasions and that chemistry between the parties might be a problem. Does that mean you do not have any process in place? Where is that balance between formalisation and too much formalisation, given a need for speed or poor chemistry?
Simon Case: An individual’s core employment rights, set out both in statute and in precedent, are clear. These slightly complicated things that Lord Sedwill talked about, concerning personality fit, come into this, but none of this affects an individual’s basic employment rights.
Permanent Secretaries can leave for a number of reasons. There is retirement; there is resignation. In cases of redeployment or voluntary exit, this process has not changed over many years. Lord Sedwill gave quite lot of evidence on this to your sister committee in the House of Commons back in March 2020, when he outlined the process himself, quoting Robin Butler, and talked about the role for the Cabinet Secretary in this. When he was in front of you, he expanded on that in questions 67 and 69. There are basic processes. In the end, in politics there are questions about personal fit, but it is certainly advisable to make sure that those are dealt with in an open, transparent and proper way.
The Chair: Minister, where would you set those basic processes, in responding to Mr Case’s point that there are basic processes, even allowing for chemistry or a fast-moving situation?
Jeremy Quin: Where would I set them? I am trying to understand the question.
The Chair: If there have to be basic processes in place for the redeployment or removal of someone, even in a fast-moving situation or one of poor chemistry in the relationship, what should they be?
Jeremy Quin: It is not a question that I have explored, because I have not been seeking to find a solution to that particular issue. It is not something that comes up routinely or regularly. I do not have a definitive answer as to whether you would use, for example, the Civil Service Commission or go elsewhere. As the Cabinet Secretary set out, in fast-moving scenarios we want to be able to get to a resolution swiftly rather than having a long, drawn-out process. If a new process was to be put in place, it should be able to deal fairly and transparently, but also swiftly, with a breakdown of that nature.
Simon Case: There are two sorts of criteria that you would definitely want to see in there. The first is fairness to the individual while protecting their rights properly. The second in these cases is trying to capture what the evidence is for a breakdown in relationship. Lord Sedwill talked about personality and fit. Often, when you drill into specific examples, you can turn those quite dispassionately into what you might call normal performance issues. It could be the way that you present your evidence: “I would prefer that you did it like this”. As in any sensible work environment in the private as well as the public sector, it is about giving people feedback on their performance and the opportunity to change and adjust their style to fit their boss. The process would have to involve a proper evidence base.
The Chair: Some of my colleagues want to drill down into the role of the Cabinet Secretary and head of the Civil Service in managing departures. We have a suite of questions that we would like to put directly to you, Mr Case.
Q128 Lord Mancroft: Does occupying the roles of Cabinet Secretary and head of the Civil Service simultaneously have any implications for your capacity to manage the departure of a senior civil servant? Does that create a conflict for you?
Simon Case: I do not think so. I confess that I have not thought deeply about it. Through the ages, there have been a number of arguments for keeping the Cabinet Secretary and head of Civil Service roles together or separate. I know that that debate has played out in front of the committee already.
I do not think that this question of managing the departure of individuals presents a particular conflict. If anything, I suggest that being able to advise the Prime Minister as Cabinet Secretary on the government programme and effectiveness of getting things done is a rather good combination with the head of the Civil Service when it comes to these questions. As Cabinet Secretary you have a really good sense of what the Prime Minister is trying to achieve, so when these questions of hiring and firing come up, you can attach them to what the Government are trying to deliver. That is slightly off the top of my head, but it has not occurred to me that there is a conflict.
Q129 Lord Falconer of Thoroton: I declare an interest that my son was a senior civil servant until December. Mr Case, in describing the basic fundamentals of the departure of Permanent Secretaries, you talked first about fairness. Secondly, you said that there should be a capture of what the evidence is for justifying a departure. What is your role in ensuring that those two basic principles are complied with when one is dealing with the departure of a Permanent Secretary? I have particularly in mind the departure of Tom Scholar.
Simon Case: It will not surprise the committee to hear that, for good reasons of policy and practice, I am not going to go into individual cases, but I am very happy to spell it out, because it is exactly the same answer as Lord Sedwill gave when asked the same question. You would expect to be intimately involved between a Secretary of State and a Permanent Secretary. When there are issues around performance, you would expect to be consulted early to try to help bring the parties back together, to identify the particular issues, and to put together improvement plans, whether formally or informally, to try to make that work.
If, in the end, you cannot make the relationship work to both parties’ satisfaction, you begin the discussion about either redeployment or what we call voluntary exit, which is a conversation that I would be involved with, as would the Prime Minister.
Lord Falconer of Thoroton: You have talked about being intimately involved in questions of performance. There is no question, is there, of bad performance by Tom Scholar?
Simon Case: None whatever.
Lord Falconer of Thoroton: So that bit did not apply in relation to Tom Scholar.
Simon Case: This is very difficult because, for very good reasons, we do not go into the specifics of HR cases, but I am happy to confirm that there were no issues around his performance.
Lord Falconer of Thoroton: Are we right to look at this as an HR case? HR deals with the issues of an individual employee. The way this was presented by the politicians was that they wanted a change of direction in the Treasury, which is completely different from HR issues. If it was the position that it was a politically motivated departure, what would you see your role as being in relation to protecting a Permanent Secretary?
Simon Case: Whatever the manner of somebody’s departure, it is an HR issue. These people have individual employment rights and need to be supported.
Lord Falconer of Thoroton: Let me be clear about my question. There will be legitimate reasons of an HR nature as to why Permanent Secretaries leave; for example, they are not performing well, they do not have the right capacity, or there is a legitimate breakdown in relationship. None of those issues, which I would describe as HR issues, applied in relation to Tom Scholar’s case. Therefore, there must have been some other reason, which I would describe as not HR. That is my language, and you are right to pick me up on it, but we are not dealing with any of those issues here, so how do you, as the Cabinet Secretary, deal with that sort of situation?
Simon Case: Lord Sedwill addressed this. He said that, in the end, the Cabinet Secretary can and should give their best advice, but, in the end, if the Prime Minister has decided, all we can do is advise. We do not have the authority to prevent.
Lord Falconer of Thoroton: Should Permanent Secretaries look to you, as the Cabinet Secretary, or to the Cabinet Secretary generally, to try to protect them from what might be described as purely political dismissals?
Simon Case: Those of us who care about the institutions in this country, including Members of both Houses and public experts, should make clear how we want to protect and preserve the really quite precious role that an impartial Civil Service plays in this country. We should all be part of wanting to protect that. As you will understand well as a former Minister, some of it can play out in public. Some of it has to play out in private for those of us who are in service at the time.
Lord Falconer of Thoroton: Tom Scholar’s dismissal or departure played out in public and there is no understanding of what happened, except that it was politics. We are interested in this committee to know whether further protections are needed to prevent that happening again. There is a widespread view that it was a disastrous move.
Simon Case: The person who really has to explain why they thought that this was a good idea is the former Chancellor. Perhaps you will have the chance to ask him that question. I have already answered this question about whether I think there should be greater protections in place; I think it is a good idea. I recognise that Baroness Stuart is cautious about bringing the Civil Service Commission into that, but my view is that it would provide greater protection.
The Minister has made the very important point that this is an extremely rare circumstance. I am not sure that many of us have seen many of these instances in our lifetimes, but a little more transparency around the process for managing them would provide the assurance that many people would want about the management of these issues.
Lord Falconer of Thoroton: Can you elaborate on what you mean by greater transparency about the process? What do you think it would have involved in the Tom Scholar case?
Simon Case: There is always going to be a limit on what you can put into the public domain about an individual departure. That has long been the case and is considered best practice inside government and in the public and private sector.
Lord Falconer of Thoroton: Who are you trying to protect? Where there is an issue about why somebody has been dismissed, it is legitimate, in the HR case, to keep it private because nobody wants to know, but this was a most public removal of a Permanent Secretary for stated political reasons. Explain who you are trying to protect. There may be an answer to this.
Simon Case: It is the individual at the centre of the case.
Lord Falconer of Thoroton: Tom Scholar.
Simon Case: I mean in any instance.
Lord Falconer of Thoroton: On this occasion, it is Tom Scholar you are trying to protect.
Simon Case: You want to keep talking about an individual case. I am trying to be general, because I have to keep coming back to this point that we cannot get into the specifics. It is really very important that, as far as we can, we protect the privacy of an individual. However an individual feels about the manner of their departure, they could have very good reasons for not wanting all the detail of that put into the public domain. There are other instances of that, including from Lord Sedwill’s time, when there were public departures, but all the details were not put out into the public domain, by agreement.
What I am really trying to protect is the individual. You might think of them as a wronged party but, even if they are, they may still want their privacy protected. They may not want to become a cause célèbre or take to the nearest microphone to explain. They may care so much about their service that they are saying to everybody, “Please don’t make a fuss about this. Get on and put good people in place to make sure that the organisations I care deeply about continue to run. Please don’t make more of a political fight about this”.
Lord Falconer of Thoroton: That is a completely fair view, but the problem is that, in this case, there was the departure of Tom Scholar, and so the damage is done to the institution. The institution is damaged because the senior civil servant can be flicked to one side for no good reason. That is how it appears. Would you like to comment on that?
Simon Case: It is a very interesting case, because your line of questioning and the general way that it was received suggest that it has potentially strengthened the position. It was seen as such an unusual and potentially unwise act that it has cemented and rather brought together the coalition of people who think that this remains the sort of thing that should not be done.
Lord Falconer of Thoroton: We hope so. Tell me what your transparency suggestions were.
Simon Case: As you will know better than most, you would have to go through with lawyers exactly what you could say. We already explain when people retire, “In your press notice, you say that this person is retiring”. There may be specific examples where perhaps you are talking about contentious departures. There is a way of sharing more information, potentially in private, with the relevant scrutiny body, for example the Civil Service Commission, but I note that Baroness Stuart is cautious about it getting more involved.
Q130 Baroness Andrews: We had your predecessors in front of us in a very interesting session. There was a very evident sense of shock at the departure of Tom Scholar. When asked whether they had any powers to protect him, they said that they had none. It was a rather bleak moment for everybody involved. When we pursued that question with Lord Maude—and this comes back almost directly to the language you have just used, in fact—he said, “You would want the head of the Civil Service to be someone of sufficient personal authority and gravitas to be able to interrogate the reasons for it and whether there is a way of resolving it”.
I know that you cannot talk about the individual case, but is that what you would expect to have happened normally? Can you say anything about whether that did not happen and whether you were surprised?
Simon Case: While I cannot comment on the individual, it is exactly what I expect to happen.
Baroness Andrews: That is an illuminating answer in itself. You did agree that it would be a good idea for more protection to be available to someone who was vulnerable to a dismissal that was not on performance grounds or anything that fell into the HR category. Apart from transparency, which is post hoc, in a way, is there anything that you, as the Cabinet Secretary, could acquire or suggest for yourself as head of the Civil Service, outside the Civil Service Commission process, that would enable you to step in and say, as Lord Maude suggests, “Can we have a cooling-off period and think about this?”.
Simon Case: We already have that ability to advise. We already have a good deal of HR advice, legal advice and what have you, which points to all that as the thing that should happen wherever possible. As I said, where you are getting into individual questions about performance or fit, you would normally expect those processes play out over weeks, if not months, so that they can be properly interrogated and recorded. That is, indeed, what we would want to do in all cases.
On the question about an external body doing it, it is dangerous territory to get into disagreeing with the First Civil Service Commissioner. We have not had the chance to explore it, but there would be an argument that maybe the Civil Service could not and should not be doing this alone, because people would say that that is us marking our own homework too much. A body such as the Civil Service Commission might be a sensible place to go, because, after all, it is part of protecting and preserving the Civil Service, its impartiality and the role of “on merit”. Perhaps “on merit” ought to apply to departures. I note, with all due respect, that Baroness Stuart was very cautious about bringing the Civil Service Commission into this process.
Baroness Andrews: From what you are saying, the situation, although abnormal, may not have been exceptional. We may have another instance in the future. There still seems to be nothing that anyone can do to intervene in what was an unfair process.
Simon Case: As Lord Sedwill said to you, if the Chancellor decides, in the end the Cabinet Secretary can only advise and we do not have the authority to prevent. The ultimate backstop is an individual’s employment rights, and there is a good deal of particularly case law around that. It is extremely rare. We have had other instances, long into the past, where Ministers and Permanent Secretaries have not got on and they have been removed.
I was interested in some of the advice that you had, from academics and people with a historical take on this, that perhaps, in the past, it happened, but not in a particularly public way. People were moved on, took early retirement or were shuffled into different jobs in a different way. It is extremely rare, as the Minister said.
The Chair: I know that you do not want to talk about personal cases, but I am not sure that you answered Baroness Andrews’s point. Were you consulted—yes or no—notwithstanding the details of the person’s case?
Simon Case: I cannot get into the details of the individual case, but I have set out that the normal process we would follow for managing these things would play out over weeks, probably months.
The Chair: In this situation, were you consulted?
Simon Case: I cannot comment on an individual case, sorry.
Q131 Lord Mancroft: As you have said, these cases are very rare, few and far between, and are not the ideal. The HR side of it is taken into account, but it must be right—and Lord Sedwill agreed with this in his evidence—that ultimately, if the Prime Minister, the Chancellor of the Exchequer or somebody right at the top of the tree, under fire, as politicians are at all times, wants to make a change, they must be able to make it. Because of the nature of the job at the top of the pyramid, it has to be done as rapidly as possible, so the idea of some sort of drawn-out process is desirable but, frankly, not practicable. Whether this or any other case is right or wrong, the Prime Minister, the Chancellor or whoever it may be has to retain that power. Is that not right?
Simon Case: Just to be specific, it needs to be the Prime Minister. It cannot be the Secretary of State on their own. The Prime Minister, as Minister for the Civil Service, is the one responsible for appointing Permanent Secretaries and, therefore, for removing them.
We talked about this earlier. There are times when you need to move quickly, and Lord Sedwill went through instances where you can have, as it were, a mutually agreed breakdown in relationships. In those instances, you want to move quickly. No process could get in the way of doing what all parties think is the sensible and right thing to do.
To come back to the question that Lord Falconer was asking, it needs to be done in a way that can retain confidence in the overall system, which is the point about this process. It probably ends up as being some sort of agreement about post hoc explanation. The way that it is done, in assuring that proper process has been followed, albeit rapidly, may help preserve that key question, which is at the heart of this, about maintaining the integrity of an impartial Civil Service.
Q132 Lord Falconer of Thoroton: You referred to the Permanent Secretary as being able to rely on their employment rights.
Simon Case: Yes.
Lord Falconer of Thoroton: Who employs them?
Simon Case: Their own departments do. They are the individual employers.
Lord Falconer of Thoroton: So the Prime Minister cannot fire them under employment rights.
Simon Case: I am going to follow up in writing on that question. For Permanent Secretaries we issue contracts centrally, but I just need to check whether that leaves the Cabinet Office as the employer or whether it is the individual department. I will confirm that to you in writing.
Lord Falconer of Thoroton: The basic principle that we have always had—and this may not be right—is that Secretaries of State and Prime Ministers cannot hire and fire civil servants, because it is done separately. Of course, there are cases in which Permanent Secretaries do not perform well or there are HR issues, and there will be cases in which there is a falling out or a mismatch in characters.
What do you do when there is not a mismatch in characters and there are no performance issues but, just to make a political point, the Prime Minister wants to fire a Permanent Secretary? He or she cannot do so legally, I think, and surely the Cabinet Secretary should step in to try to prevent it. When Lord Sedwill says that he cannot do anything about it, is that right, given that you keep referring back to employment rights?
Simon Case: An individual has their employment rights, and you cannot just discount those. That means that, even in circumstances that look to the world like somebody has been fired, when you get into employment law, you are really talking about voluntary exits with people being appropriately recompensed for that and what have you.
Lord Falconer of Thoroton: Do Permanent Secretaries look to the Cabinet Secretary as a matter of principle to protect them from this sort of capricious behaviour?
Simon Case: Yes, they do, along with a lot of other people.
Lord Falconer of Thoroton: Do you see it as part of your role to protect Permanent Secretaries from capricious Ministers?
Simon Case: Yes, I do, as I believe my predecessors have done. There are limits to what you can do. As Permanent Secretaries understand better than most, as much as people might like it to be played out in public, a lot of that role has to be played out in private. This comes back to the point about why you want to protect civil servants. That role must play out in private so that you can maintain the confidence of Ministers that the advice you give, where they might disagree, is given in private and in confidence, whether they take it or whether they dismiss it. That is an important part of maintaining our system and our impartial Civil Service.
Lord Falconer of Thoroton: What do you do when a senior Minister, a Prime Minister or a Chancellor says, “I want to get rid of the Permanent Secretary to the Treasury because he is part of the economic blob”, when that is something you do not agree with and would be unfair, to use your basic premise? Surely the Civil Service can hit back in those circumstances, can it not?
Simon Case: In my view, we do not hit back in public. I know that is quite shocking, but it is part of the whole envelope in which we operate. We give fierce and frank advice, but we must do it in private.
Q133 The Chair: Accepting the primacy of the Prime Minister’s decision, and the points made that one has to move at speed from time to time in life and that the Tom Scholar situation was, we hope, a one-off, the impact of Tom Scholar went beyond not adhering to the best processes for removing a senior civil servant and had an impact on market confidence. We put that point to other witnesses of ours, but I do not particularly want to put to you whether you thought that there was an impact on market confidence.
The resilience of the governance structure under pressure is a legitimate parliamentary issue. Just to say that it is a one-off is not to say that you cannot interrogate whether that one-off showed, under pressure, that there is a lack of resilience, given our evidence that it had an impact on market confidence. Do you accept that that is a legitimate question for Parliament to interrogate?
Simon Case: Yes. On the first part to your question, I would definitely point you back to Lord Macpherson, who is an eminently more qualified person to comment on the consequences. The resilience of the system is one of many questions that I am sure Parliament should be asking and making recommendations on as you see fit.
The Chair: I just have one final point that I cannot let pass. You say that you definitely see your role as being to protect the Civil Service, because it is an important institution as part of our democratic settlement. In your evidence to PACAC—I am quoting here, because we managed to get the transcript—you said, “The last five years or so have seen an increased number of overt attacks on civil servants, individually and collectively, by significant political figures, which has undoubtedly undermined the good functioning of Government”.
You refer later to the reference to “blob” as “a characterisation that is insulting, dehumanising and totally unacceptable”, and cowardly because civil servants “cannot answer back”. You made that statement very clearly. Given events and given comments from previous Permanent Secretaries that we have heard, why did you not feel that you could make that statement earlier?
Simon Case: There are relatively few examples and instances where I get the opportunity to, as it were, speak in my own voice, parliamentary hearings being one. It was the opportunity to say it and I was asked, so I said it.
The Chair: Did you not feel that you had a previous opportunity? It might have been quite influential in moderating behaviours and thinking.
Simon Case: You are asking me a hypothetical. I do not know. I was asked the question, so I answered it.
Q134 Baroness Suttie: Good afternoon. Mr Case, can you describe the process by which you were recruited to the position of Cabinet Secretary?
Simon Case: As I think you know, the scripture on this one, set out in the Cabinet Manual, is that the Prime Minister appoints on the advice of the outgoing Cabinet Secretary and the First Civil Service Commissioner. In this instance, the former First Civil Service Commissioner Ian Watmore recommended that the process be the same as was followed in 2005, when Gus O’Donnell was appointed. Candidates submitted a manifesto, if you will: “These are the key things that I’m going to do in the job”. I was then involved in a two-stage interview process, first with the First Civil Service Commissioner and then with the Prime Minister.
Baroness Suttie: Could it benefit from being updated or regularised?
Simon Case: It is set out in the Cabinet Manual, which we are looking at. I have not talked to Ministers or the Prime Minister about being more specific. I hope that, in practice, that approach of a process and a competition, which was taken in 2005 and then for my appointment, would be the minimum done in the future. In the past, it has not always involved a competition, but I hope that it will in future.
Baroness Suttie: Is it sufficiently transparent as a process at the moment?
Simon Case: We will come back to that as part of updating the Cabinet Manual. I have not had the chance to talk to Ministers, the Prime Minister predominantly, about whether it should be updated. The more transparency there is in these things, the better.
Lord Falconer of Thoroton: Should a more detailed process be published for the appointment of the Cabinet Secretary?
Simon Case: It is certainly something that we can look at.
Lord Falconer of Thoroton: Do you think there should be?
Simon Case: I said it is certainly something that we can look at. You are now asking me to play out to you things that I have not had the chance to discuss with Ministers. As you know, I appear representing the Government, so I do not want to get ahead of Ministers on this one.
Lord Falconer of Thoroton: In looking at this, to what extent would the advice that you give be motivated by you wanting a process that gives people confidence in the appointments process?
Simon Case: That is the purpose of setting it out and of transparency. It is why the recruitment principles that we have more broadly from the Civil Service Commission are important in maintaining the integrity of the system that we have already talked about.
Lord Falconer of Thoroton: Is there any reason why those principles do not apply to the appointment of the Cabinet Secretary?
Simon Case: Certainly, in the process that I went through, Ian Watmore made sure that they did, so I believe they do.
The Chair: I am conscious of the time. We would like to move on to the issue of the senior leadership committee. This is a body that some of us are perhaps not very knowledgeable on, and we thought that you might be able to help us out with our understanding of it.
Q135 Baroness Andrews: I would go slightly further than that, Chair. It is one of the great mysteries that we have been presented with. We have been instructed by Lord Maude that, if we could find out exactly what it does and how, he would be very grateful to know for the review that he is conducting.
Simon Case: Why do I not just share the terms of reference and membership of said committee with you?
Baroness Andrews: That is exactly what I was going to ask you to do.
Simon Case: Of course you can have it.
Baroness Andrews: Thank you very much. It has been quite interesting. I would not say that there has been great contradiction in what we have heard about the way in which it operates in terms of the external or internal routes, but the nuance that we have heard has slightly changed from the various witnesses that we have had.
Simon Case: Yes, I have noticed.
Baroness Andrews: There has been a certain degree of uncertainty about where accountability lies, so that is one thing that I would like you to address. I would also like to clarify the nature of the advice it gives and to whom it gives that advice. It is really about placing it in the whole geopolitics of the process.
Simon Case: As I say, I am very happy to share the full terms of reference and membership with you. We will just start publishing it to avoid some of this mystery in future. Its fundamental purpose is to provide advice to me, as head of the Civil Service, on talent management, predominantly the director general population. It does not make individual recruitment decisions, which is one of the areas of confusion that I have seen.
At the moment, the individual department is the employer. The question has come up as to who takes the decision about whether we are going to managed-move a DG, and whether there is going to be an external competition or an internal conversation. That decision is taken in the first instance by the Permanent Secretary consulting their Secretary of State. The senior leadership committee will then endorse or challenge that decision.
The department of the Permanent Secretary is then responsible for making that DG appointment, with ministerial involvement, as the Minister described in earlier answers. It is then the Prime Minister who authorises the final appointment of any DG. Whether you are doing a managed move or whether it is an internal or external competition, in the end the Prime Minister authorises all appointments at DG level and above.
Baroness Andrews: So the Permanent Secretary will make his or her recommendations to the Secretary of State and, at that point, the SLC.
Simon Case: They will say, “This is the type of competition that I plan to run”, and the SLC will usually say okay or, if it is not a full external competition, ask why not. We have an “external by default” policy, as I know you have discussed with Baroness Stuart, so part of the SLC’s role is to say, “Hold on a minute; please give us the explanation for why you’re not going for a full external competition”. That is the sort of challenge that the SLC would bring.
Baroness Andrews: At that point, if it challenges, it is challenging the decision of the Secretary of State. How much power would it have to influence the final decision, or would it simply be making a comment?
Simon Case: It gets sent back to the Permanent Secretary to think again. There are instances where the Permanent Secretary says, “Having thought about it, maybe I have a bit more time than I thought” or “Perhaps I could do this rather than that”. To see it as a world of ticks and crosses, it does not quite work like that. The SLC is there to make sure that we have a good pipeline of DGs coming through and that we are opening ourselves up to bringing in talent from elsewhere, where we can. That is really what the SLC is doing.
Baroness Andrews: That is quite a significant job, is it not? It is more than managing a process, either external or internal. It is about knowing whether you have a good pipeline.
Simon Case: Yes, it is a very significant job.
Baroness Andrews: Can you say something about the structure? Does the SLC sit permanently or is it ad hoc? Does it meet regularly?
Simon Case: It meets in person once a month, but in addition it is operating permanently by correspondence. There is a big team that operates it. We have a dedicated team that is there to support the senior appointments. The SLC will either be commissioned by me or recognise for itself that there are certain areas. For example, a few months ago, the SLC concluded some work to look at the talent pipeline in what we call our operational delivery profession, where you would look to ask, “What is the pipeline coming through? What sort of individuals have we got through at the rungs below? How are we succeeding in bringing in people from relevant sectors outside?” We then say, “Here are the recommendations about what we need to do to strengthen the pipeline”.
Baroness Andrews: If you felt that there was a lack of digital competence, for example, you would be looking at that.
Simon Case: That is exactly the sort of thing that we would look at.
Baroness Andrews: Essentially, it is advisory but not accountable. It is accountable to itself.
Simon Case: It is accountable to me, and then to the Prime Minister, as the Prime Minister is the person who signs off all DG and Permanent Secretary appointments.
Baroness Andrews: If you thought it was getting things seriously wrong, you could say so.
Simon Case: If the Prime Minister, especially a Prime Minister like the current one, who has long and deep experience of the Civil Service, said, “Hold on a minute; there are no good-quality people coming through for these important appointments”, we would say, “We have to strengthen the pipeline”.
Q136 Baroness Finn: I just want to challenge the point that individuals are not necessarily discussed at the SLC, because I am not sure that is strictly correct from my experience. Individuals were put forward for promotion, and Ministers were sometimes a bit surprised by moves made in their name and were not totally aware. Just in the interest of transparency, it would be very helpful to have the membership published, because that is not the full recollection of how the SLC operated and there is a degree of opacity.
On the issue of the First Civil Service Commissioner challenging the decisions of the SLC, I am slightly puzzled by that, because, when Baroness Stuart gave evidence, as I recall—and I could be wrong—she described herself as more of an observer on the SLC than a full participant. I just want a bit of clarification about the various roles. Should the First Civil Service Commissioner role be strengthened?
Simon Case: I think that first one was a statement rather than a question, but, as I said, I am very happy to share the terms of reference. I have been on the SLC for three years now and have never known the SLC to take decisions about individual cases that contravene ministerial wishes. It does not work legally, because the department is the employer of these individuals.
On the role of the First Civil Service Commissioner, was the question whether the role should be strengthened?
The Chair: What is it and should it be strengthened?
Simon Case: Baroness Stuart described the role. The Civil Service Commission has a very particular role to play in the individual director general competitions. In fact, it chairs and leads the vast majority of them. As for how it has played out in practice, on “external by default”, say, which was agreed between government and the Civil Service Commission, the First Civil Service Commissioner is there to check the overall health of the approach we are taking. For example, in our approach to recruiting directors general, are we staying in line with the recruitment principles, including more recent ones such as “external by default”? Are we fulfilling our commitments on “external by default”?
Q137 Lord Falconer of Thoroton: What are you going to give us in the way of documents on the SLC? Are you going to give us the terms of reference and the membership?
Simon Case: Yes. I will not provide a back catalogue of each competition, but I am very happy to let you see what topics it has discussed and that sort of thing, just to give you a flavour of what it does.
Lord Falconer of Thoroton: That would be very helpful. Thank you for that. I did not quite follow where in the system a decision would be made as to whether it is a managed move, an internal competition or an external competition.
Simon Case: The Permanent Secretary discusses with the Secretary of State. That is then endorsed or challenged by the SLC. Ultimately, the Permanent Secretary takes the decision as the employer.
Lord Falconer of Thoroton: Is the present position in relation to Permanent Secretaries that it should be an external competition, unless there is a good reason not to?
Simon Case: That is correct. “External by default” applies to Permanent Secretaries.
Lord Falconer of Thoroton: Who decides whether it should be an exception?
Simon Case: The exception has to be authorised by a Minister. In reality, it could go to the Prime Minister, but the type of competition that we will run is one that I will discuss with the Secretary of State before. If necessary, I will consult the Prime Minister, but usually it is just with the Secretary of State.
Lord Falconer of Thoroton: Does the SLC have a role in considering whether it should be something other than an external competition?
Simon Case: For Permanent Secretaries, no. For directors general, yes.
Lord Falconer of Thoroton: So the SLC has a role in relation to DGs, but not Permanent Secretaries.
Simon Case: That is correct.
The Chair: It is very helpful that you will write to us. The clerk will write with precisely which answers, because we like to proceed on a basis of accuracy. In that request, if you could put some flesh on how the issue is settled between managed move, external and internal, that would be helpful.
Simon Case: That is no problem at all.
The Chair: Minister, turning the spotlight on to you, although it is a question for you both, we are going to the territory of Scotland and Wales.
Q138 Lord Foulkes of Cumnock: I have been unusually quiet because I was hoping we would get to this. In the devolved Administrations, the Permanent Secretaries are members of the UK Civil Service and responsible to you administratively, but responsible to their devolved Administrations politically. Does this create particular problems?
Simon Case: There is a unique set of circumstances that go with it. For example, in the performance management that I do with the Permanent Secretaries in Scotland and Wales, rather than specifically judge, as I would with other Permanent Secretaries, whether they are delivering the political objectives set by the Government, I have to look much more at whether they have the systems and processes in place that allow them to deliver.
Of course, as part of their performance process, I get feedback from their First Ministers, so they do input, like a Secretary of State would. There is a slight oddity there. There are one or two other Permanent Secretary-level appointments that are similarly unusual. For example, the Director of Public Prosecutions is a Permanent Secretary-level appointment but, because of the delineation of responsibilities, I do not judge him or her on their prosecutorial performance.
Lord Foulkes of Cumnock: Can I take a particular example of spending taxpayers’ money? Quite rightly, Ministers have said to me on a number of occasions that it is up to the devolved Administration how to spend their money on their devolved areas. When they come to spending money in reserved areas, should you not be doing something about it?
Simon Case: Civil servants must abide by the Civil Service Code and the law, and that means that civil servants in Scotland and Wales can spend their money only on areas that are within their competence.
Lord Foulkes of Cumnock: The constitution is a reserved area, is it not?
Simon Case: That is correct.
Lord Foulkes of Cumnock: There are, responsible to a so-called Minister for Independence, I believe, 20 civil servants who are supporting him. Is that right?
Simon Case: We are looking at some of these specifics with Ministers as we speak to see whether we need to issue further guidance and clarification to civil servants about what is and is not appropriate spending. I do not want to prejudge the outcome of that.
Lord Foulkes of Cumnock: I am very reassured that you are doing that, but the principle would be that, normally, they should not be spending money and using their time on reserved areas. Just to take a stupid example, if they were doing defence issues, that would clearly be crazy, but surely the constitution is an equally important area. If civil servants are, effectively, supporting Ministers who want to break up the United Kingdom, and these are United Kingdom civil servants paid for with taxpayers’ money, it would be a bit unusual and a bit worrying, would it not?
Simon Case: I agree with you that it would be unusual and a bit worrying, which is why we are looking at the specifics of cases that you and other Members raise regularly in correspondence.
Lord Foulkes of Cumnock: I am grateful to you.
Q139 Lord Keen of Elie: Cabinet Secretary, good afternoon. Just to follow up on that point, we had a recent letter from the Advocate General for Scotland, which you may have seen, in which he said, “It is for the Scottish Government to decide how it spends money received from the block grant, and it is for the Civil Service to ensure compliance with the Civil Service Code”, and you have just explained what that might mean in the context of spending in Scotland.
The Permanent Secretary has a responsibility for the implementation of policy in devolved areas. Over and above that, the Permanent Secretary has an obligation to ensure that the boundary with reserved matters is reserved, and that the integrity of that boundary is maintained. Politically, the Permanent Secretary in Scotland is answerable to the First Minister, not to No. 10.
Just to take one example, if you had an instance in which the Attorney General, on behalf of the United Kingdom Government, stated that a matter was reserved, the Lord Advocate, as adviser to the Scottish Government, also reiterated that the matter was reserved, and the First Minister in Scotland then instructed the Permanent Secretary to pursue that policy, am I right in understanding that the Permanent Secretary, having regard to the Civil Service Code, would simply have to refuse that instruction?
Simon Case: Yes is the short answer to that. In such an instance, we would, of course, want to go through the specifics, et cetera, to be clear about the decision taken.
Lord Keen of Elie: What would be the mechanism employed in circumstances where the Permanent Secretary was met with that demand from the First Minister? Would you expect the Permanent Secretary to then refer that matter to you as Cabinet Secretary, or would the matter simply rest with the Permanent Secretary in Scotland, given that that Permanent Secretary has no political obligations to No. 10?
Simon Case: This is, as it were, not what I expect but what happens in practice. We are in constant dialogue with civil servants in Scotland about these matters, and I am very sure that the Permanent Secretary would raise such a matter with me.
Lord Keen of Elie: You will be aware that the issue of expenditure by the Scottish Government in matters regarded as reserved has been alive for a number of years.
Simon Case: Yes. There were some discussions about it back in 2014 in the context of the referendum. I remember my predecessor but one being involved with the then Permanent Secretary, Peter Housden, in these discussions.
Lord Keen of Elie: Why is it only now that we are addressing the question of further guidance for civil servants in Scotland?
Simon Case: Because specific instances have arisen that need looking at. We thought that the guidance was clear, but we have had reason to look at various instances and uses of money, so we are looking at it now.
Lord Keen of Elie: Yes, but, as you say, it goes back to 2014 at least. We have had instances of so-called embassies being set up abroad. We have had instances of policies being pursued with regard to independence and, therefore, within the area of reserved matters. Why is it, as I reiterate, only now that the question of further guidance is being addressed? Why was it not addressed years ago?
Simon Case: I cannot answer for years ago. I assume that it is because predecessors thought the guidance that was there was adequate. It has been brought to my attention in a number of instances now, so I am now discussing with Ministers the propriety and ethics of it. Indeed, if necessary, I will consult with the Civil Service Commission about it, because, to come back to the rather important point that flows through all this, we all want to protect the integrity and impartiality of our Civil Service. That is why I want to make sure that civil servants operating in Scotland have very clear guidance about what they can and cannot do, because they deserve, and the whole Civil Service requires them to have, that protection and guidance.
Lord Keen of Elie: The Permanent Secretary and civil servants in Scotland need to know when they are still operating within the requirements of the Civil Service Code.
Simon Case: They certainly do, and they want to. To be clear, I believe that they have been looking at these edge cases diligently, but, as I say, I want to go back around them all with colleagues in Scotland and with Ministers to make sure that we are doing absolutely what we should to protect and preserve that impartiality.
Lord Keen of Elie: That is very helpful. When are we going to see the guidance?
Simon Case: I hope that it will be weeks.
Q140 The Chair: Before we leave the question, Minister, senior civil servants in Scotland and Wales form part of the UK Civil Service, and the relationship is clearly there with the Prime Minister. I am not asking for negatives or positives, as it is a fairly neutral question, but has the Cabinet Office reflected at all on that challenge between senior civil servants in Scotland and Wales supporting the Government and Ministers in Scotland and Wales, and their role as part of the UK Civil Service? Are there any challenges that that may pose for the constitutional settlement? Have you given any thought to that issue? Has it been contemplated, even if you do not want to tell me what the contemplations were?
Simon Case: We are having a discussion on this very question with Ministers at the moment.
The Chair: So that relationship is an active question for you.
Simon Case: It is so active that I might be late for my next meeting to discuss it.
The Chair: We should see it coming out from that. You were very clear that you were going to run out of time, and we have managed to fit in the Scotland and Wales question. Thank you very much indeed.
There are some questions that, if we may, because of the time constraints, we will write to you on and ask you to provide a written answer. We are very interested in the particular committee that we discussed. Thank you very much indeed. I am most grateful.
