They play an increasingly important part in parliament’s scrutiny of government and can inspire dread in even the most experienced perm sec. Forty years on from the creation of the modern select committee on 25 June 1979, Richard Vize looks at how they affect policy – and the lives of civil servants
Four decades after its creation, the modern select committee system has become the most public test of civil service skill. Live broadcasts of these inquisitions by MPs and peers can build or wreck reputations and expose departments to relentless political and media assault.
According to the House of Commons Liaison Committee of select committee chairs, they are there “to require ministers and civil servants to explain and justify their actions and policies, to subject them to robust challenge, and to expose government – both ministerial decision-making and departmental administration – to the public gaze”.
This means scrutinising how they take decisions, spend public money and run their operations, and what they achieve.
Since 1980 the approach of successive governments to the relationship between civil servants and select committees has been framed by the Osmotherly Rules, named after the civil servant who wrote them.
Alice Lilly, senior researcher at the Institute for Government, says the key principle behind the rules is that “ministers are directly accountable to parliament, and governments over time have taken that to mean that civil servants, when they appear before committees, do so under the direction and instruction of their ministers. Governments have always been concerned not to undermine that principle of ministerial accountability.
“There is a sense in the rules that civil servants are expected to be helpful to committees, to give facts, to explain policy, but they are not expected to discuss the merits of government policy.”
The Osmotherly Rules have never been endorsed by parliament – they are a government document. This is more than an academic distinction. According to the rules, ministers have the final say on whether a select committee can hear evidence from a particular official, including special advisers. The Liaison Committee disagrees, insisting that committees should be able to question any official they want, even if they have moved to another job, because “officials owe a direct obligation to parliament to report on matters of fact and implementation”.
The civil servants most exposed to committee scrutiny are those who are directly accountable to parliament as accounting officers – permanent secretaries, agency heads and those leading multi-departmental programmes. They have to answer for spending decisions and programme and project management, the quality of the advice they gave, assumptions they made, the risks they identified and how they managed them, and how they monitored delivery.
A civil servant’s select committee performance has a big influence on their reputation and career prospects. Former cabinet secretary Lord Gus O’Donnell says: “It is an important test as you become more senior. When politicians are trying to get a particular angle or get you to say a specific quote, it does require a degree of training and understanding of how to perform publicly, and that’s part of the skill set of the modern civil servant.”
Former head of the civil service Lord Bob Kerslake says judgments can be unforgiving: “Appearances are definitely watched and assessed by ministers and special advisers: you can do 90 minutes perfect and one small thing that is perceived to be wrong, and that’s what’s remembered.”
Dame Helen Ghosh had just such an experience as Home Office perm sec when she appeared before the Public Accounts Committee. Discussing security plans for the London Olympics due to take place the following summer, she described the original and subsequently discredited estimate for the number of security guards needed as a “finger in the air” exercise. This did nothing to improve her relationship with then home secretary Theresa May.
With such high stakes, civil servants undertake ferocious amounts of preparation before a committee appearance. Permanent secretaries have been known to dedicate several days to mugging up for a single hearing.
“The effort that goes in is incredible – many hours of massive files,” Kerslake says. “And that is just your time. Many others put in many hours to prepare you, particularly if it’s the Public Accounts Committee.”
PAC members tend to prepare well and ask penetrating questions, drilling down hard on the numbers. Ministerial appearances at that committee are rare – it is almost always civil servants. Not all MPs along the committee corridor are as thorough as their PAC colleagues, but no civil servant is going to take that chance.
“It is an important test as you become more senior. When politicians are trying to get you to say a specific quote, it does require a degree of understanding of how to perform publicly, and that’s part of the skill set of the modern civil servant” Lord Gus O’Donnell
When appearing in front of a committee, civil servants need to remember the stipulation in the Armstrong Memorandum on civil servants’ duties that they have “no constitutional personality or responsibility separate from the duly elected government of the day”. It is not the place to air personal opinions or give full rein to your wit.
Kerslake deploys a cricket analogy to describe the best approach: “Are you Boycott or Botham in front of a select committee? As a civil servant, it is better to be Boycott. You are not there to make it exciting. On the whole, you are playing the dead bat. There should not be anything coming out of select committees which is ‘surprising’ to ministers, if I can put it that way.
“Clearly you have to tell the story as it is, but you are trying to reassure and confirm rather than excite and alarm.”
O’Donnell agrees: “Often the committee are looking for you to say something which will embarrass the minister or create problems – that’s why you’ll hear a lot of people say that the best result you can get is a nil-nil draw.”
But, of course, it is not just civil service reputations that can be made or broken. O’Donnell says: “Select committees, particularly now they are televised, create opportunities for political grandstanding, so often it’s as much about the politician’s profile as the answers.”
This encourages MPs to try to push civil servants into political territory: “There are still some issues about some of them who, deliberately or not, confuse the accountabilities of ministers and civil servants, but the best ones don’t, and do a good job holding us to account.”
He singles out Tony Wright, former chair of the public administration committee, as exemplifying effective questioning of civil servants: “Here was someone who genuinely wanted to know what you thought and wanted to help the civil service improve.”
November 2011 Public Accounts Committee chair Margaret Hodge forces HMRC lawyer Anthony Inglese to swear an oath on the Bible to tell the truth while he is being questioned on corporate tax deals.
November 2011 former head of UK Border Force Brodie Clark tells the Home Affairs Committee “I never went rogue”, a week after resigning in a row over risk-based passport checks. He had quit on the grounds that comments by home secretary Theresa May amounted to constructive dismissal.
December 2011 When asked how the security resources needed for the 2012 Olympics had originally been estimated, home office permanent secretary Helen Ghosh describes it to the Public Accounts Committee as a “finger in the air” exercise.
April 2016 Keith Vaz, chair of the Home Affairs Committee, terminates questions to Home Office second permanent secretary Olly Robbins after 20 minutes, accusing him of “unsatisfactory evidence” over the Border Force budget.
December 2017 The Commons Liaison Committee unanimously accuses national security adviser Mark Sedwill of obstructing the Defence Committee by refusing to appear.
April 2018 Home secretary Amber Rudd wrongly asserts to the Home Affairs Committee that her department does not have targets for immigration removals, precipitating her resignation. A subsequent inquiry into the advice she received from civil servants finds incompetence but no wilful misconduct.
O’Donnell provides a powerful example of how timely questioning of officials can have an impact. Shortly before the 2010 general election – with polls predicting a tight race – he was called before the Justice Committee to talk about the guidance on hung parliaments. “That allowed us to put out the draft chapter of the cabinet manual which basically laid out the rules,” she says. “That made the transition to a coalition much easier because everyone understood what everybody’s role was. They were trying to understand a difficult situation in a way that would make government work better.”
As a former local government chief executive, Kerslake feels council scrutiny committees – which can often be rough on officials – were good preparation for appearing in front of MPs. “After those you are pretty well prepared for anything a select committee may throw at you,” he says.
Select committees are most readily associated with the Commons, but the Lords also has a number, covering issues such as the constitution and economic affairs. O’Donnell says: “The Lords committees in general tend to be far more interested in evidence, are much less political and to my mind are therefore rather more constructive.”
When it comes to playing to the cameras, few select committees can challenge the moment in 2011 when Public Accounts Committee chair Dame Margaret Hodge forced HM Revenue and Customs lawyer Anthony Inglese to swear an oath on the Bible to tell the truth, while questioning him on tax deals with Vodafone and Goldman Sachs.
Hodge describes it as “fantastic theatre. It was very funny… It took them 20 minutes to find a Bible”. Her real target was not Inglese but the growing scandal of corporate tax avoidance: “We used drama for a purpose, it wasn’t just grandstanding – it put that whole tax avoidance and evasion and financial crime right on the agenda. If I hadn’t done that I wouldn’t have had whistleblowers coming to see me. It started the whole journey on exposing tax avoidance. I know it has had a lasting impact.”
Inglese remembers: “I was told in advance that they understood and respected the fact that I wouldn’t be able to answer [certain questions] for reasons of confidentiality and my legal position, so it was a bit of a surprise – to say the least – when they took that particular line. I put it down to them wanting to do their job and also getting some theatre. Getting me to take the oath gave them the crucial thing they wanted.”
He says that sticking to his position “was actually quite easy, because you know what you can’t do as a lawyer, and if you breach your obligations you’re done for. If you’re going to be beaten up for not breaching them that’s actually quite an honourable position to be in, even if it makes you look an idiot”.
O’Donnell’s interpretation of that “totally inappropriate” piece of theatre was that it was symptomatic of the Public Accounts Committee getting itself “into a situation where rather than thinking about how they try to improve the value for money of public spending, they want to be a jury and judge and highlight failures”.
“I have long taken the view that if I was running the Public Accounts Committee, I would want to learn from both success and failure,” he says. “They fail to do the first. I would want them to think much more about the prevention of failure rather than blowing the whistle far too late.”
Former clerk of the House of Commons Sir Malcolm Jack probably reflected the views of many civil servants on giving evidence under oath when he said in a 2012 lecture that if a select committee “really wants to pick a fight, that should ultimately be done with the minister, not his civil servants”.
“We used drama for a purpose, it wasn’t just grandstanding – it started the whole journey on exposing tax avoidance. I know it has had a lasting impact” Margaret Hodge
But Hodge has more than just tax secrecy in her sights. She wants to open up civil servants’ role in the entire policymaking process to select committee scrutiny.
“We have to revisit the whole issue of accountability in central government, because the code of ministerial accountability… inhibits the ability of civil servants to be directly accountable to parliament. I think it is a convention which is broken,” she says.
She sees the downfall of Amber Rudd as home secretary after she had been wrongly briefed on immigration removals as an example of where the convention obstructs effective accountability: “If you had civil servants directly accountable for their actions you would open up the policymaking. The argument is always that the advice to ministers should be private. I don’t see why. Think of all the policies that Chris Grayling has come up with – they are not substantiated by advice and they all go wrong.
“If that was more open to public account you could nail him. Taxpayers now expect much more accountability. You can’t hide behind this secrecy.”