The constitutional status of civil servants in the United Kingdom
The thesis is an attempt at a comprehensive discussion of the legal and constitutional rules that apply to civil servants considering the current changes experienced in the UK Home Civil Service. The research focuses on three main areas, namely; the legal aspects of the relationship between civil servants and the Crown as employer, secondly, the rights of civil servants to associate and the right to freedom of expression, and thirdly, the constitutional aspects of the minister-civil servant relationship. Changes in the Civil Service manifested by Next Step Agencies, market testing and contracting out public services has resulted in the fragmentation of the uniform structure of the Civil Service. Question is raised, for instance, whether a more coherent legal definition of a civil servant is needed, whether these changes are affecting the security of tenure of civil servants, and whether the quest for job security should turn to, for example, judicial review. The introduction of contracts of service for civil servants is applauded but insufficient consideration has been given to its compatibility with the Crown's power to dismiss at pleasure. In the sphere of the right to associate and trade unionism generally, the advent of Whitleyism in the early 20s was the main reason for the development of trade unions in the civil service. Since 1979, the government's interventionist policy resulted in more restrictions for trade unions in pursuance of their activities. The GCHQ affair was a classic situation when the policy of restriction was at its extreme. Nonetheless, trade unions continue to exist and industrial actions are cautiously tolerated by the government. Article 11 of the European Convention on Human Rights lay down a standard of proportionality as to any restriction imposed on the freedom of association. Yet the failures of the GCHQ unions appeal in Strasbourg indicates a strong acceptance of the need for restrictions in freedom of association in the civil service. The unions' success at ILO appeared ephemeral. Despite the concern that civil servant's neutrality will be affected if they are allowed to engage in political activities, the Masterman and the Armitage Committee viewed that certain amount of freedom should be given to civil servants in this area. So far political activities of civil servants have not caused substantial controversy. The formation of Next Steps Agencies should provide more rooms for flexibility in giving permission for civil servants to participate. Civil servants are also subject to the duty of confidentiality in civil law as well as in criminal law under the Official Secrets Acts. The amendment to section 2 of the 1911 Act have removed the draconian effect of unauthorised disclosure by civil servant. Yet the 1989 Act has left out the need to protect civil servants who disclose in the public interest. In their interpretation of Article 10 of the European Convention on Human Rights, the European Court and Commission were also not in favour of protecting whistleblower or would-be whistleblower in the public service. The first report by the Nolan Committee inquiring the standards in public life recommended a form of whistleblower's charter. This is a welcome change and the government should adopt the committee's proposal. Ministerial accountability to Parliament is the corollary to civil service anonymity. It has been accepted that civil service anonymity has not been properly protected. There were occasions when civil servants are being asked to do unethical, unconstitutional and sometime illegal acts. The Armstrong Memorandum was an attempt to provide an independent line of appeal but its failure was clearly illustrated when there was only one appeal brought by a civil servant for the last eight years. The new Civil Service Code includes a new line of appeal to the Civil Service Commissioners but only after the internal appeal procedure has been exhausted. It is only hoped that the failure of the Armstrong Memorandum is not repeated. The fact that senior civil servants are playing a more prominent role vis-a-vis Parliament, a rethinking of the present arrangement of accountability should be made. Such a rethinking need not lead to giving a constitutional personality to civil servants. It must however be an acceptance that they are carrying heavier responsibilities and therefore they should be given a proper recognition of their role in Parliament.