Appointing and removing permanent secretaries: Lords Constitution Committee report

1. Role of permanent secretaries

The most senior civil servant in a government department is the permanent secretary. ‘The cabinet manual’ describes their role as follows:

Each permanent secretary supports the government minister who heads the department and who is accountable to Parliament for the department’s actions and performance. In a limited number of departments, there may be more than one permanent secretary, or a deputy or second permanent secretary to deal with issues of operational or national significance, such as national security. Permanent secretaries are responsible to the cabinet secretary or the head of the civil service for the effective day-to-day management of the relevant department, or the particular issue for which they are responsible […]

The permanent secretary is normally the accounting officer for their department, with a personal responsibility directly to Parliament for the management and organisation of the department.^[1]

If an accounting officer objects to a proposed course of action of a minister on grounds of propriety, regularity or value for money relating to proposed expenditure, they are required to seek a written ministerial direction.^[2]

Some other positions are also at the grade of permanent secretary. These include the director of public prosecutions, first parliamentary counsel, the national security adviser and the heads of the intelligence agencies.^[3]

2. Constitution Committee inquiry

2.1 Background

The House of Lords Constitution Committee launched an inquiry into the appointment and dismissal of permanent secretaries and other senior civil servants in February 2023.^[4] It sought to explore “the degree of ministerial involvement in the recruitment process for these positions”, “the extent to which ministers and prime ministers have become more involved in the dismissal of post-holders”, and whether there had been a shift that indicated “a desire on the part of ministers to appoint candidates more sympathetic to their views”.

The committee highlighted that “several recent departures of very senior civil servants have been controversial”.^[5] It noted that in 2020, 12 permanent secretaries or civil servants of equivalent seniority had left their posts, including the then cabinet secretary Sir Mark (now Lord) Sedwill. It also recalled that when Sir Tom Scholar left his role as permanent secretary of the Treasury and Sir Stephen Lovegrove was moved from the post of national security adviser (a permanent secretary-level job) in September 2022, on the day Liz Truss became prime minister and Kwasi Kwarteng became chancellor of the exchequer, both departures were reported in the press as ‘sackings’. The committee said the “heightened” rhetoric in the wake of such incidents meant the issue of ministerial involvement in departures and appointments “warranted detailed attention”.

The committee published its report, ‘Permanent secretaries: Their appointment and removal’, in October 2023.

2.2 Current appointment process

The report described the current appointment process for permanent secretaries.^[6] In summary, the framework consists of:

• Constitutional Reform and Governance Act 2010 (CRAG): This act gave the minister for the civil service (effectively, the prime minister) a statutory power to manage the civil service.^[7] CRAG requires external recruitment to the civil service to be “on merit on the basis of fair and open competition”. It also established the Civil Service Commission on a statutory basis and set out a requirement for it to publish recruitment principles, after consultation with the prime minister. The recruitment principles could include provisions requiring the Civil Service Commission’s approval of certain selections and exceptions from fair and open competition.
• ‘Memorandum of understanding between the Cabinet Office and the Civil Service Commission’: This sets out the respective responsibilities of the government and the Civil Service Commission in recruitment. It was published in 2010. The cabinet secretary told the committee in August 2023 a new framework agreement was expected to be finalised in the coming months.
• ‘Recruitment principles’: These were issued by the Civil Service Commission under CRAG. The most recent version was issued in 2018. They set out in detail how recruitment to the civil service is to be conducted, including the Civil Service Commission’s role in senior appointments and how ministers are to be involved in competitions in which they have an interest.
• ‘Civil service senior appointments protocol’: This was agreed in 2011 between the then cabinet secretary, Sir Gus (now Lord) O’Donnell, and the then first civil service commissioner, Sir David Normington. It requires all director general, permanent secretary and equivalent level appointments (except for lateral managed moves) to be made on merit in accordance with the ‘Recruitment principles’, whether or not the post was advertised externally. It also states that the selection route (external or internal competition or managed move) is decided by a body called the Senior Leadership Committee. However, the committee heard from Simon Case, the current cabinet secretary, that the protocol did not “accurately reflect” current practice on permanent secretary appointments.

2.3 Key conclusions

The Constitution Committee stressed in its report that the “impartiality and perceived impartiality of the civil service is a central and uncontested tenet of our constitution”.^[8] As such, it warned that care should be taken in altering the existing arrangements:

Any fundamental changes to the civil service—including changes to the constitutional balance of the appointment and departure processes for civil servants—should not take place through unscrutinised evolution of practice. Instead, changes should be made consciously and openly and should be implemented only following careful scrutiny.

The committee reached the following key conclusions:^[9]

• The level of formal ministerial involvement in appointments, as set out in the Civil Service Commission ‘Recruitment principles’, strikes the correct balance in ensuring ministers could be confident in the quality of those appointed while maintaining an objective merit-based approach. Any move towards greater ministerial involvement risks upsetting that balance.
• Certain high-profile departures might have reflected a desire among ministers to personalise appointments and assert their authority. This is unhelpful, not least because it risks civil service turnover coinciding with ministerial churn, creating a perception of politicisation of appointments and damaging institutional knowledge. Political alignment should never be a factor in deciding on a permanent secretary and the cabinet secretary has a vital role to play in ensuring such changes in personnel, if necessary, are done with due process.
• Departure processes should be formalised to guard against the improper removal of civil servants: ministers, including the prime minister, should be required to explain any decision to replace a senior civil servant to the Civil Service Commission.
• The appointment process for the cabinet secretary/head of the civil service should be regularised, in line with that for permanent secretaries.
• The Civil Service Commission ‘Recruitment principles’, the ‘Senior appointments protocol’ and ‘The cabinet manual’ should be updated to reflect current practice.
• There should be more transparency over the role of the Senior Leadership Committee, which the Constitution Committee described as “an opaque body”, rarely mentioned outside the ‘Senior appointments protocol’.^[10]
• The roles of the Civil Service Commission, Senior Leadership Committee and ACOBA [the Advisory Committee on Business Appointments] in regulating moves in and out of the civil service, and how these bodies interact, should be reviewed.

3. Government response

The government responded to the committee’s report in January 2024.^[11] The government agreed with many of the committee’s findings and recommendations. It said it shared the committee’s belief that the “impartiality—and perceived impartiality—of the civil service is a central tenet of our constitution”. It agreed with the recommendation that “significant changes to the constitutional balance of the appointment and departure processes for civil servants” should not take place through “unscrutinised evolution of practice”. It also agreed that the current level of ministerial involvement in recruitment struck the right balance. In response to the committee’s observation that ministers may not be “sufficiently aware of the extent of their influence over appointments, or the limits on it”, the government said it would send a note to permanent secretaries and human resources directors reminding them of the opportunities for ministers to be involved in senior staff recruitment.

The government did not directly state whether it agreed with the committee’s recommendation for the process for cabinet secretary/head of civil service appointments to be strengthened and written into ‘The cabinet manual’. However, it said that “any process should be sufficiently flexible to enable the prime minister of the day to refine the selection approach as they wish”.

The government said that work to update the ‘Senior appointments protocol’ was already under way. The Civil Service Commission would consider any implications for the ‘Recruitment principles’ and consult the minister for the civil service on any proposed changes, as required by CRAG.

In relation to the transparency of the Senior Leadership Committee, the government said an annual update on its work would be provided to the first civil service commissioner and the Constitution Committee. Its membership and terms of reference would be published on the government’s website. This does not yet appear to have happened.

When it came to issues around departures, the government did not agree with the committee that there was a role for the Civil Service Commission in ensuring due process was followed when senior civil servants were dismissed on conduct or performance grounds. However, it welcomed the committee’s conclusion that the fixed five-year tenure for permanent secretaries had not had an adverse effect on churn. In cases where there was a poor relationship between a permanent secretary and their secretary of state, the government agreed that permanent secretaries should not be removed without process. It said that “swift action” would be needed if a relationship had broken down irrevocably and that in practice, the cabinet secretary, secretary of state and prime minister would be closely involved in such cases. Redeployment to an alternative role could be an option to resolve the situation, or “an exit on the grounds of workforce efficiency under the term of the civil service compensation scheme” could be sought if no alternative role could be found.

In response to the committee’s recommendation that formal departure processes should be set out in writing, with a requirement for ministers and the prime minister to explain to the Civil Service Commission their decision to remove and replace a senior civil servant, the government stated that formal human resources processes already exist around performance management, conduct and discipline issues. It said that issues about “personal fit and personal relationships” should be “dealt with in an open transparent and proper way”. The government welcomed the committee’s conclusion that “the small number of recent high-profile removals of senior civil servants on what appeared to be political or ideological grounds does not amount to a trend”.^[12] It also agreed with the committee’s conclusion that broad political alignment should not be a relevant consideration in the appointment of civil servants.

4. Independent review of governance and accountability in the civil service

In its response to the Constitution Committee, the government referred to an independent review of civil service governance and accountability published in November 2023.^[13] The review was commissioned by Boris Johnson’s government in July 2022 and carried out by Lord Maude of Horsham (Conservative).

On the appointment of permanent secretaries, Lord Maude concluded that there was “already ample opportunity for the prime minister and ministers in charge of departments to frame the candidate specifications, the interviewing panel, be kept abreast of the process at every stage, and to propose names of candidates they believe could be suitable”.^[14] However, like the Constitution Committee, he believed that ministers were not always made aware of the level of involvement they could have. He said the ‘Recruitment principles’ should be revised to “establish these elements beyond doubt”. He recommended that ministers in charge of departments should be made aware at an early stage of how they can choose to be involved in the selection process (he believed this was happening “inconsistently” at present) and that the panel should continue to submit to the prime minister the names of all candidates deemed appointable.

Lord Maude also found ministers had “ample opportunity” for involvement in the appointment of directors-general, the next civil service level below permanent secretaries.^[15] However, he proposed ministers should be able to have greater input into the appointment of senior civil servants at grades SCS1 and 2, the next levels below director-general. He recommended ministers should be notified in good time of any planned or expected personnel changes in the senior civil service and in any other posts they deem critical to the delivery of a policy priority. He said ministers should be able to choose to manage a civil service appointment directly and have the right to have an official removed from a role they consider to be critical to the delivery of a policy priority. In both cases, he said the agreement of the Civil Service Commission should be sought.^[16]

The government said when Lord Maude’s report was published that it would not take forward his recommendations on significant restructuring of the machinery of central government or altering the role of cabinet secretary.^[17] However, it described the review as a “welcome contribution”. The government repeated this when it referred to the review in its response to the Constitution Committee.^[18] It said it was considering Lord Maude’s recommendations carefully and would respond in due course.

In its comments on Lord Maude’s review, the Institute for Government said he was right to recommend that ministers should be encouraged to participate in the appointment of permanent secretaries.^[19] However, it feared his proposal for ministers to be allowed to remove civil servants at director or deputy director level and other officials in critical roles was “ripe for abuse”. The Institute for Government argued that simplifying existing civil service dismissal and disciplinary procedures would be the place to start to address poor performance that impacted the delivery of ministerial priorities.

5. Advisory Committee on Business Appointments response

Lord Pickles, the chair of ACOBA, also responded to the committee’s report.^[20] Permanent secretaries must seek ACOBA’s advice for all appointments or employment they wish to take up for two years after leaving the civil service.^[21] ACOBA provides advice to the prime minister, who makes the final decision on whether to approve the application.

Lord Pickles said he welcomed and endorsed the committee’s work “safeguarding the constitutional balance required” on the appointment and removal of permanent secretaries. He said that ACOBA had “long argued that [the business appointment] rules are not fit for purpose and require modernisation”. He therefore welcomed planned changes to the business appointment rules the government had announced in 2023. The government has said it intends to include more of the requirements about restrictions on future employment within civil servants’ contracts, which would make the restrictions more enforceable.^[22] However, he clarified that ACOBA was not involved in the recruitment process for civil servants at any stage. This was in response to a comment by the committee that the forthcoming work on modernising the business appointment rules might involve “the role of ACOBA in setting expectations for those seeking to enter the civil service”.^[23]

6. House of Commons Public Administration and Constitutional Affairs Committee ongoing inquiry

The House of Commons Public Administration and Constitutional Affairs Committee launched an inquiry in April 2023 into civil service leadership and reform, including examining whether “ministers’ role in the hiring, firing and promotion of civil service leaders is appropriate and conducive to effective government”.^[24] The inquiry is still ongoing. The evidence the committee has received to date is available on its web pages.^[25]

7. Read more

• House of Lords Library, ‘King’s Speech 2023: Constitution’, 1 November 2023
• Kate Dewsnip, ‘‘Politicisation’ of the civil service? The House of Lords Constitution Committee reports’, Constitution Society, 2 November 2023
• Institute for Government, ‘Permanent secretaries’, 12 March 2020
• House of Commons Library, ‘Civil service recruitment: Heads of departments’, 8 February 2018

Cover image by Hadyn Cutler on Unsplash