What is the primary duty of the civil service?
Speaking last month after an employment tribunal agreed she had been unfairly dismissed, FCDO whistle-blower Josie Stewart argued this should not be “to protect their political masters; it should be to serve government but also the public interest. Truth and accountability matters”.
The tribunal found that Stewart had been reasonable to believe there was a public interest in disclosing at least some of the information she shared with the BBC about the 2021 withdrawal from Afghanistan. Her case shows it can sometimes be lawful for a civil servant to share unauthorised information directly with the media under whistleblowing protections.
Some 40 years ago, the legal landscape was rather different. In the trial of Clive Ponting (a former official being prosecuted under the Official Secrets Act) the judge directed the jury not to acquit him, arguing that “the public interest is what the government of the day says it is”.
Despite this, the jury did acquit Ponting, which led then-cabinet secretary Robert Armstrong to draft a memorandum firmly rebutting the idea that civil servants have any duty to the public interest except indirectly through ministers.
The Armstrong Memorandum famously asserted that the civil service “has no constitutional personality or responsibility separate from the duly elected government of the day” and that the “duty of the individual civil servant is first and foremost to the minister of the crown who is in charge of the department”.
The position that officials serve only the government and not the public is the basis of the civil service code, even if many members of the public believe otherwise.
Stewart’s case adds nuance to this position. And soon there will be another legal context in which to explore the balance between confidentiality, duty and public interest. The government is soon expected to publish legislation – known as the Hillsborough Law – which will place a duty of candour on government organisations and civil servants, requiring them to be truthful and to proactively cooperate with investigations and inquiries.
Campaigners hope the duty will improve government’s ability to learn from mistakes, and prevent the years-long fight for justice which too often follows major disasters and scandals.
As Elizabeth Gardiner, CEO of the whistleblowing charity Protect, argued at a recent IfG event, such a duty may present challenges but the prize of a more open and accountable public life is well worth fighting for.
Yet the duty raises questions about the purpose of the civil service. At the same event Sir Robert Francis, interim chair of the Infected Blood Compensation Authority, asked: “Is the civil service there to protect the reputation of a government, or is it there to serve the public?”
Armstrong would have had a clear answer for him, but is it still the right one? The last few years have exposed many cracks in the rules and understandings between ministers and officials. Fixing those cracks need not mean returning to exactly how things were in the past. But we must tread carefully. Change may be needed, but without clarity it will be harder for civil servants already navigating complex ethical and legal questions.
Stewart went to the press because she felt internal whistleblowing procedures in the FCDO were inadequate. She is backing a call by Protect for an independent statutory commissioner for whistleblowing. The FDA is calling for independent ethics tsars who can advise civil servants on sensitive questions around their duties and responsibilities. Both of these would be helpful additions, but to support these independent advisers perhaps it is also time for leaders to clarify and if needed restate exactly what those duties and responsibilities are.