How Do You Solve a Problem Like the Civil Service?

On the deep state and the constitution

[I]t is highly necessary that the conditions which are common to all public establishments…should be carefully considered, so as to obtain full security for the public that none but qualified persons will be appointed, and that they will afterwards have every practicable inducement to the active discharge of their duties.

-The Northcote-Trevelyan Report, 1855

Across the developed world, it is increasingly common to hear people complaining about the existence of a ‘deep state’: an entrenched ‘permanent government’ of civil servants, bureaucrats, quangocrats, regulators, and so on who pursue their own agenda irrespective of (and often in flat opposition to) the policies of whatever democratically representative government is in power.

Nowadays the people who make this complaint tend to be on the political right, and they often to talk in apocalyptic terms about the consequences of a Gramscian ‘long march through the institutions’. For what it’s worth, the truth is I think both more mundane and more depressing than that; it is simply that anybody who has entered the civil service in the past twenty years or so has probably never encountered a good faith elucidation of conservative values or conservative political philosophy, and therefore tends towards a fairly unreflective, knee-jerk opposition to conservatism itself as a ‘boo word’. Civil servants don’t exactly deliberately oppose Tory government policy in their daily work, then, so much as they are unmotivated and recalcitrant when a Tory government is in power.

But it was not ever thus. Traditionally, in Britain at least, it was in fact Labour politicians and their advisers who complained most about the obstacles which civil servants threw in the way of their attempts at reform. They saw Whitehall mandarins as a layer of Establishment obstructionism designed chiefly to maintain the status quo. Writing in 1959, Thomas Balogh, a future economic advisor to the Labour Prime Minister Harold Wilson, described the civil service as mired in laissez-faire ideology - ‘an administrative personnel for a Nightwatchman State’ - created by the Victorians ‘to presid[e] over the breath-taking expansion of private industrial capitalism’. He made his feelings quite clear: ‘one of the most essential and fundamental preconditions’ for socialist government was radical civil service reform. Richard Crossman, a member of Wilson’s Cabinets of 1964-1970, meanwhile called the upper echelons of Whitehall simply an ‘oligarchy’ and a ‘conspiracy’. (All of this is amusingly and interestingly detailed in Kevin Theakston’s ‘The 1964-70 Labour Governments and Whitehall Reform.’)

And although Wilson was himself a qualified fan of civil servants, having once been one, he loathed the Treasury’s ‘Old School Tie wallahs’ (see link above) and complained regularly about the Oxbridge-educated elite administrative class who dominated Whitehall. He wanted the Prime Minister to be able to act as an ‘executive chairman’ in order to drive policy - and indeed it was he who established the Civil Service Department as a separate government Department in 1968, with himself as the head (the Prime Minister has remained the Minister for the Civil Service ever since; more on this shortly). This hardly improved things, though; over forty years later Tony Blair is reported to have told one of David Cameron’s advisors:

You cannot underestimate how much [senior civil servants] believe it’s their job to actually run the country and to resist the changes put forward by people they dismiss as ‘here today, gone tomorrow’ politicians. They genuinely see themselves as the true guardians of the national interest, and think that their job is simply to wear you down and wait you out.

The fact that this complaint - that civil servants are politicised and biased, and form a barrier to implementation of government policy - has been present across the political spectrum for a very long time suggests there is rather a lot more to the story than a mere conservative whinge or feature of the modern day culture war: this is an issue in which we all have a stake. One cannot of course dismiss the argument that, as Harold Wilson himself once put it, ‘civil servants do what is required once they get a clear lead’ and that it is therefore ultimately weak political leadership that is to blame. And nor can one dismiss the observation that being able to blame quangos like the Office for Budget Responsibility for their failings is quite handy for politicians, at least in the short term. But there does seem to something deeper going on: a fundamental and antagonistic division in the enterprise of modern democracy between politicians, who have been elected and feel that they derive legitimacy from that fact, and civil servants, who are certain that, due to their own expertise, they simply ‘know best’ and should be left to their own devices (and given a cushy ride to boot). Where the interests of the two align, things get done. Where they don’t, there is conflict at worst (as appeared to be the case with the defenestrations of Dominic Raab and Liz Truss), or at best half-heartedness and working to rule - ‘chaos and dysfunction’ as at the Home Office and its oversight of immigration, or ‘foot-dragging’ reluctance as with respect to Brexit.

This is one of the most pressing problems that could face a modern democracy. If politicians cannot see their policies implemented effectively then democracy itself becomes practically pointless and theoretically unjustifiable, and this is in the long-term an even bigger issue than which party happens to be in a position to form a government. I cannot think of a person I would have least wished to have become Prime Minister than Jeremy Corbyn, for example, but if he had been elected in 2017 or 2019 it would have been intolerable for his government’s programme not to have been properly put into effect; for democracy itself to survive, governments have to be able to function effectively as governments once they have been elected - if nothing else, so that their ideas can be shown to be wrong, and not merely badly implemented.

What then is to be done? First of all, we need a bit of analytical clarity, and chiefly with respect to the constitutional issues at stake. This, I intend to show here, leads us to a legal case from the early 1980s with which anybody who has studied law at undergraduate level since 1985 will be familiar, but which is - outrageously - barely known to the layperson. The case in question is Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374, often referred to as the ‘CCSU case’ or the ‘GCHQ case’ (you can read the judgment of the House of Lords here).

The GCHQ Case: Background

As almost everyone knows, Margaret Thatcher’s governments, particularly her first two, were dogged by battles with trade unions, including some to which civil servants at Government Communications Headquarters (GCHQ), the UK government’s signals intelligence organisation, belonged. Between 1979 and 1981, various strikes and other forms of industrial action took place at GCHQ, with the result that on one occasion at least its monitoring of foreign signals communications was compromised. If you think relations are bad between government and civil service now, you only have to read the literature put about by CCSU - the umbrella organisation for civil service unions - at the time to get some perspective on these matters. As cited in Lord Fraser of Tullybelton’s judgment in the case, the CCSU’s newsletters were reporting things like:

‘Our ultimate success depends upon the extent to which revenue collection is upset, defence readiness hampered, and trading relations disrupted by this and future action.’

‘Walk-outs in key installations have affected Britain's defence capability in general, and crippled the UK contribution to the NATO exercise “Wintex.”’

‘another vital part of the Government's Composite Signals Organisation … is to be hit by a strike from Friday, 3 April.’

‘48-hour walk-outs have severely hit secret monitoring stations belonging to the Composite Signals Organisation. The Government is clearly worried and will be subject to huge pressure from NATO allies.’

‘Defence plans have been upset by the continuing action at naval supplies depots, dock-yards, and other crucial establishments.’

This was dangerous: the Cold War was still on; Britain was of course shortly to be involved in a significant ‘hot war’ in the Falklands (although nobody predicted this at the time); left-wing activism was therefore in a position to severely undermine national defence. And it was quite flagrant: Sir Brian Tovey, who had been director of GCHQ, gave evidence to the House of Commons in early 1984 that one of his subordinates had tried to get one of the trade unions not to disrupt certain key elements of GCHQ work during the 1979-81 period and had received the reply from its general secretary: ‘Thank you. You are telling me where I am hurting Mrs Thatcher the most.’

The fact that GCHQ had a role in monitoring foreign signals intelligence was not publicly acknowledged at that time, so the government kept its powder dry. (There is a lesson for conservative politicians in this: Margaret Thatcher knew how to pick her battles.) In 1983, however, an espionage case resulted in GCHQ’s role in intelligence being publicly revealed, and there was no longer therefore a reason not to take on its unions. A rumbling dispute about, of all things, polygraph testing provided the pretext: a decision was rapidly taken in Cabinet in December 1983 that the Minister for the Civil Service - that is, the Prime Minister herself - would announce in the House of Commons on January 25th 1984 that the conditions of service for staff serving at GCHQ would change and that they would simply no longer be allowed to be members of trade unions - and therefore to initiate or join industrial action.

This decision was communicated to the staff at GCHQ with immediate effect and the announcement to the Commons was duly made, and the CCSU and various other claimants rapidly commenced with a claim for judicial review, on the basis that staff at GCHQ had been allowed to join unions for decades and that, in any case, they had always previously been consulted about changes to conditions of service. This, the claimants argued, had created a ‘legitimate expectation’ that they would always be so consulted, and since the Minister for the Civil Service/Prime Minister had not carried out any consultation, her instruction was unlawful on the grounds of procedural impropriety.

The judgment delivered by the House of Lords on appeal is one of the most central to the study of administrative law in the UK. It is also a classic illustration of the judiciary’s ability to deliver what appears to be a ‘small “c”’ conservative outcome, but in such a way as to gesture towards potentially very radical future developments; the government ultimately won, for reasons which I will come to, but the judgment nonetheless paved the way for a very different constitutional structure to that which had previously prevailed - one indeed that, as we now see, is much less democratic, much less accountable, and much less transparent.

The Decision

The core of the dispute concerns what in the UK constitution are called ‘prerogative powers’ - the powers which at common law reside in the monarch, and which can therefore be exercised without approval of Parliament. In the modern constitution, any power which the monarch has is used subject to the ‘advice’ of government, of course, and the convention is that he or she will never go against that advice. So this is tantamount to saying that the prerogative powers are those powers which government may exercise without Parliamentary approval.

One of the most important prerogative powers is the power to appoint, regulate and remove civil servants. Traditionally, the king could hire and fire civil servants as he saw fit, and it is the case even to this day that the government may do this (more on this below). But this was not quite the power that Margaret Thatcher was exercising. She was not directly appointing or dismissing anyone; she was rather altering their terms of service. This had to be done on the basis of a delegated power - an instruction made pursuant to an Order in Council, which is a piece of legislation created as an emanation of the crown prerogative, and which (in this instance) provided that the Minister for the Civil Service could control conditions of service for civil servants.

The important question legally about the exercise of the prerogative powers is their ‘reviewability’. Judicial review is the means through which the judiciary determines whether decision-makers are making their decisions lawfully. It is very longstanding practice that prerogative powers are used at the discretion of the monarch (acting under advice from government, as we have seen) and therefore cannot be made subject to judicial review. Courts can inquire into whether the power exists at all, and its extent, but they cannot review its propriety. The Order in Council under whose authority Margaret Thatcher was acting could therefore not be challenged.

But the House of Lords decided that her instruction, which was given on the basis of a power that had been ‘conferred’ by the Order in Council, could. The courts, in other words, could inquire into whether the instruction had been given lawfully. They could determine as a matter of law whether the proper procedure had been followed: had the employees of GCHQ been entitled to being consulted, in accordance with their ‘legitimate expectation’, before their terms of service had been amended?

The answer, it turned out, was both yes and no. Because the national security issues were so pressing, the court held, the government was entitled to change GCHQ staff’s terms of service without prior consultation. But this would not have been the case generally. The law lords were all agreed: if there had been no national security implications, the instruction that Margaret Thatcher had given would have been found to have been unlawful on the basis of procedural impropriety. She would have needed to have consulted the relevant trade unions beforehand.

Lord Diplock’s Judgment

The government won, then, but the case is nowadays mostly remembered for the remarks given by Lord Diplock concerning the prerogative powers and the role of the courts. His judgment is the kind of thing that brings tears of pride and common feeling to the eyes of constitutional law scholars, but I find it both tendentious and deeply irritating - not to mention blithely misleading - and I will explain why afterwards. The passage that everybody always cites reads in part as follows, with emphases added:

My Lords, I intend no discourtesy to counsel when I say that, intellectual interest apart, in answering the question of law raised in this appeal, I have derived little practical assistance from learned and esoteric analyses of the precise legal nature, boundaries and historical origin of ‘the prerogative,’ or of what powers exercisable by executive officers acting on behalf of central government that are not shared by private citizens qualify for inclusion under this particular label. It does not, for instance, seem to me to matter whether today the right of the executive government that happens to be in power to dismiss without notice any member of the home civil service upon which perforce it must rely for the administration of its policies…should be ascribed to ‘the prerogative’ or merely to a consequence of the survival, for entirely different reasons, of a rule of constitutional law whose origin is to be found in the theory that those by whom the administration of the realm is carried on do so as personal servants of the monarch who can dismiss them at will, because the King can do no wrong.

…My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review…. As respects ‘procedural propriety’ I see no reason why it should not be a ground for judicial review of a decision made under powers of which the ultimate source is the prerogative…what procedure will satisfy the public law requirement of procedural propriety depends upon the subject matter of the decision, the executive functions of the decision-maker (if the decision is not that of an administrative tribunal) and the particular circumstances in which the decision came to be made.

The essence of these remarks is straightforward. What Lord Diplock was saying was that, since when Parliament enacts a statute which delegates powers to a Minister, those powers are subject to judicial review, the same should be true when powers have been delegated to a Minister by an Order in Council (as was the case here). He, to repeat, could see no reason why the two things should be treated differently just because of, basically, fusty historical distinctions of purely academic interest. So (as the other Lords all agreed), there was no reason why the Minister for the Civil Service/Prime Minister’s instruction could not be subject to judicial review.

And the consequence of that review was also straightforward:

National security is the responsibility of the executive government; what action is needed to protect its interests is, as…common sense itself dictates, a matter upon which those upon whom the responsibility rests, and not the courts of justice, must have the last word. It is par excellence a non-justiciable question. The judicial process is totally inept to deal with the sort of problems which it involves.

The executive government likewise decided, and this would appear to be a collective decision of cabinet ministers involved, that the interests of national security required that no notice should be given of the decision before administrative action had been taken to give effect to it. The reason for this was the risk that advance notice to the national unions of the executive government's intention would attract the very disruptive action prejudicial to the national security the recurrence of which the decision barring membership of national trade unions to civil servants employed at GCHQ was designed to prevent.

The essence of that is clear enough, and is indeed common sense, as Lord Diplock put it. You can’t have courts second-guessing decisions which the executive makes about national security, both because it would be impractical and because the judiciary is not equipped to make such assessments. And in this respect at least the decision was impeccably correct.

But there are three respects in which Lord Diplock (and indeed all of their lordships) were very badly wrong.

Failing to Think

The first stems from a strange refusal to grasp constitutional basics, epitomised in Lord Diplock’s repeated refrain: ‘it does not…seem to me to matter’; ‘I see no reason why’. Well, let’s think for a moment why English law before the GCHQ case insisted that any and all powers emanating from the royal prerogative, even powers delegated by Orders in Council, were not reviewable. And let’s consider why therefore our legal system drew a distinction between statutes, enacted by Parliament, and Orders in Council, issued by the monarch (meaning the government). The substance of a statute is not reviewable; and nor is the substance of an Order in Council; but at the time Lord Diplock was writing, powers delegated to a Minister by the former were reviewable, while those delegated by the latter were not. Why?

The most obvious thing to say about the difference is that statutes are created by a law-making body (i.e, the legislature), while Orders in Council are issued by a decision-making body (i.e., the executive), and the legislature and executive do not do the same things, and are not subject to the same constraints. The whole point of a legislature in a democracy is to make rules that are representative of the people’s existing or desired norms. Therefore, if a statute, made by the legislature, delegates powers to a Minister, then he must be constrained by the judiciary to exercise those powers lawfully. To do otherwise would undermine the rule of law, of course, but more importantly, it would permit such a Minister to subvert the rules which the representatives of the people had made by doing things which those rules did not permit. Since in the UK Parliament is sovereign because the people are sovereign, this would be tantamount to subverting British democracy itself. It is therefore crucial that the use of powers delegated to Ministers by the legislature be subject to judicial review.

The executive, though, is different: the point of executive powers is precisely that they are not representative, but are, rather, reserved for certain activities which it is thought should be unconstrained by legal nicety or detailed oversight. This is why the decision to make war was always - traditionally at least; Blair’s governments rowed back a little on this - an exercise of a prerogative power. The people don’t get to decide whether to go to war, but the government. And this means that prerogative powers need to be treated differently to rules made by the legislature - they are quintessentially political, and therefore to be constrained not by the judiciary but by political means, which is to say electorally. If a prerogative power is exercised in a way that the people don’t like, they will vote for a different party to take the reins of government. It is not that the power is unconstrained because ‘the king can do no wrong’, as Lord Diplock was implying; it is constrained by the electorate, who in the modern day can in effect vote out their ‘king’ in a general election.

One must be truly learned in the law, it seems, to fail to understand the difference between powers delegated by statutes and those delegated by Orders in Council. What is very strange is that Lord Diplock was clearly unconsciously alive to the distinction. As we have seen, he was prepared to say - very sensibly - that ‘National security is the responsibility of the executive government [and therefore] a matter upon which those upon whom the responsibility rests, and not the courts of justice, must have the last word.’ Why could he not see that this is necessarily true of all areas falling within the scope of prerogative, i.e. executive, powers? And why could he not see the logical extension of his remarks, which was that in fact the ultimate ‘last word’, as it were, must in the modern democratic country which we inhabit be the electorate?

The second misconception in Lord Diplock’s speech concerns the civil service itself. Why is regulation of the civil service a prerogative power in the UK constitution? Well, it’s because the civil service is itself part of the executive - it implements the decisions of government on policy. Government must therefore be able to appoint the civil servants it wants, get rid of those it does not want, and determine their conditions of service. This is not, as Lord Diplock dismissively asserted, founded on the ‘theory that those by whom the administration of the realm is carried on do so as personal servants of the monarch who can dismiss them at will.’ It is founded on the notion that civil servants, like every other element of the framework of British government, must be answerable to somebody, and since under our existing constitutional arrangements this cannot be the legislature, the judiciary, or indeed the electorate, then it has to be those most well-equipped to exercise oversight - which is to say the government.

The regulation of the civil service, in other words, is political, in the same way that the decision to go to war is political, and it is therefore precisely in the same category as national security - it is ‘a matter upon which those upon whom the responsibility rests, and not the courts of justice, must have the last word’. And this of course means that the procedures by which that regulation takes place are also inherently political - and that, indeed, such procedures should be outside of the purview of the judiciary. As with all of the prerogative powers which still have import (such as the war power, the power to dissolve Parliament - the decision in the 2019 Miller 2 case notwithstanding - the power to regulate the Armed Forces, and so on) the regulation of the civil service must be political in the most elementary sense: it is the constitutional role of the electorate to eject governments which abuse it, and therefore it is an usurpation of the electorate when the judiciary imposes its own view.

Third, Lord Diplock was unable to resist the temptation to - as is always the wont of modern judges - blur the boundaries between what is properly judicial and what is properly political. Courts are in the end supposed to apply rules. And they are supposed to do this for two reasons: because they lack the ability, resources and legitimacy to make political decisions, and because having a clear, coherent, certain and stable set of rules is so socially important. A bit of flexibility is always going to be required, but the opportunities for judges to exercise discretion should be as limited as possible. Discretion is a dangerous thing, because when you are in the zone of discretion, you are in the zone of extra-legal considerations (which is to say, politics).

Setting all other considerations to one side, then, the great virtue of UK administrative law as it was understood prior to 1985 was that we knew what was reviewable and what wasn’t. Neither statutes nor Orders in Council were subject to review; delegated powers under statutes were reviewable, but delegated powers under Orders in Council weren’t. That is legal certainty. Thanks to Lord Diplock’s judgment in the GCHQ case (and those of his brethren), though, a totally different picture emerged; now, the question of whether a decision to exercise a power can be reviewed for procedural propriety ‘depends upon the subject matter of the decision, the executive functions of the decision-maker…and the particular circumstances in which the decision came to be made’. In other words, it comes down to judicial discretion: a recipe for uncertainty, and a recipe, as we have seen, for political considerations to enter the mix. Judges love this sort of thing, it goes without saying, because it makes them seem so much more important and allows them to think of themselves as doing something more significant than just applying rules, but the rest of us have great cause to regret it, because we are suspicious of unelected judges performing assessments about when and how discretion should be exercised.

Re-Emphasising the Constitutional Role of the Civil Service

The GCHQ case, then, was a constitutional mess. And, in holding that civil servants at GCHQ would ordinarily have a legitimate expectation of being consulted about changes to their terms of service, it had the deeply undesirable consequence of cementing in the legal landscape the idea that civil servants are basically like ordinary employees in any given profession, and are therefore to be treated on the basis of ordinary employment law principles.

It is still the case that, strictly speaking, it is for the government (acting in the stead of the king) to appoint and sack civil servants as it desires: a civil servant cannot sue for wrongful dismissal, meaning a dismissal in breach of contract (normally meaning a dismissal without notice). But the Civil Service Management Code currently provides notice periods which ‘in practice’ will ‘normally apply’, and it is hard now to imagine circumstances in which a government Minister would be able to simply sack a civil servant on the spot (without later being sued). Much more importantly, developments since the GCHQ case have established that civil servants can also bring an action for unfair dismissal, which would mean for example dismissal for joining a trade union, dismissal for engaging in industrial action, dismissal after asking for flexible working arrangements (such as WFH requests), and so on. Much more importantly still, civil servants can of course bring claims for discrimination, even indirect discrimination (perhaps the most prominent recent example being Naeem v Secretary of State for Justice [2017] UKSC 27, in which Home Office skills tests were held to have been indirectly discriminatory because they produced worse results for older and BAME employees than the average). They are to all intents and purposes as well-insulated from dismissal and changes to terms of service, and therefore political control, as employees in any other public sector organisation (which is to say, very well insulated indeed).

To argue against these developments would be King Canute-like, and would in any case situate you somewhere to the right of Atilla the Hun in polite society in 2024. But it is worth pointing out that it was not so very long ago that politicians had a better handle on what was at stake in regulating the civil service - and what, indeed, was so wrongheaded about behaving as though civil servants are just employees like anybody who happens to have a job. No less a figure than Franklin Delano Roosevelt - hardly the type of person to engage in conspiratorial thinking about the ‘deep state’ - laid this all out very clearly in a letter of August 16th, 1937 to a Mr Luther C Steward, President of the National Federation of Federal Employees, who had invited him to attend a ‘Jubilee Convention’ for the National Federation.

Government employees, said FDR in this letter, were no different to any other type of worker in that they naturally want ‘fair and adequate pay, reasonable hours of work, safe and suitable working conditions, development of opportunities for advancement, facilities for fair and impartial consideration and review of grievances’ and so on. But they needed to realise that ‘the process of collective bargaining, as usually understood, cannot be transplanted into the public service’. This was because, since ‘[t]he employer is the whole people’, it was they who got to decide - through their elected representatives - ‘laws which establish policies, procedures, or rules in personnel matters’.

The necessary implication of this was that collective bargaining and, particularly, strike action, should not be permissible for government employees:

Upon employees in the Federal service rests the obligation to serve the whole people, whose interests and welfare require orderliness and continuity in the conduct of Government activities. This obligation is paramount. Since their own services have to do with the functioning of the Government, a strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government until their demands are satisfied. Such action, looking toward the paralysis of Government by those who have sworn to support it, is unthinkable and intolerable.

The reasoning, eighty-five years on, is still fundamentally sound. Nobody has a problem with private sector workers unionising and trying to bid up their wages if they wish to do so. At the end of the day it’s their employers’ money, and only that, which is on the line. But civil servants are appointed in accordance with government policy, paid for through taxation, and have public duties accordingly. Unionisation for that kind of employee, which necessarily acts orthogonally or antagonistically to government, is therefore anti-democratic, extorts the public, and corrupts the spirit of public service.

What goes for unionisation goes across the piece: thinking of civil servants as ordinary workers, who have the same kinds of rights and protections as employees in ordinary lines of work, is inimical to good government, because it necessarily sets the needs and desires of the individual civil servant against those of government itself. Civil servants are not employees in the same sense as the rest of us; they are intrinsic to government, because constitutionally they are the means by which executive decision-making finds effect. They are, indeed, to be understood precisely as part of the executive itself, and therefore requiring not of employment rights, but of legal and political constraints so as to prevent their interference with the internal functioning of the government. And since it is government to which they are answerable and government which is best place to do it, it is government - not the legislature, and not the courts - which should determine their working conditions and terms of employment.

This is not, to be clear, an argument for dismantling the civil service, nor an argument for government treating civil servants like indentured servants or dealing with them in discriminatory ways. Rather, it is an argument for clarity about their constitutional role, and about government’s duties and powers in respect of them. Any future government serious about grappling with civil service reform will have to think carefully about how to present its case in this regard to the public, and about how to act accordingly once that case has been properly made. That begins with dispelling the foolish idea that they are employees like any other, and re-emphasising their position within the executive.