When Whitehall shuns statutory scrutiny

By Tony Collins

In some ways central departments are deeply accountable.

They provide volumes of statistics and reports to the centre of government (Cabinet Office and Treasury) – as far as their limited management information systems will let them – and senior officers will sometimes answer questions from MPs on Parliamentary committees. Their permanent secretaries will meet colleagues in other departments every week.

At the same time, on things that really matter, some central departments – and councils – can be infinitely unaccountable. 

A report by the National Audit Office – which it says was researched and written unusually quickly, partly in response to parliamentary concern – gives a glimpse of how unaccountable central departments (and councils) can be.

When they don’t want to provide information they simply don’t – and nothing it seems can be done to force disclosure.

Power to ignore

With explicit and written approval from David Cameron the Cabinet Office has the power to mandate change in central departments. But senior officials can, if they wish, when faced with central requests for information, ignore, reject, deliberately misunderstand, confuse or minimise answers, or delay until the request no longer need be answered.

This ability of central departments to evade democratic and even statutory scrutiny surfaces in the NAO report Confidentiality clauses and special severance payments.

The report is into the gagging of public servants when they receive payments for ending their employments early. Rightly, the media’s coverage of the report focuses on the NAO’s concerns over gagging clauses that stop officials becoming whistleblowers. The FT said on Friday (21 June 2013)

“More than a thousand civil servants have signed gagging clauses that could stop them speaking out about problems, a system the [NAO] condemned as “unacceptable”.

What the national media apparently did not notice was that the NAO was unable to obtain all the information it had requested of departments.

“Despite the NAO’s statutory access rights, it received only 60 per cent of the compromise agreements requested from departments,” says the NAO.

The NAO has statutory rights of access to information held by departments. Indeed its Comptroller and Auditor General Amyas Morse certifies the accounts of all government departments and many other public sector bodies. The NAO says he has “statutory authority to examine and report to Parliament on whether departments and the bodies they fund have used their resources efficiently, effectively, and with economy”.

Avoiding NAO scrutiny

But some departments have not complied with the NAO’s requests, and one, the Department of Culture, Media & Sport, formally requested not to be involved in the NAO’s investigation.

Says the NAO report

“Unfortunately, some departments did not respond promptly to our requests, and were delayed by their legal teams’ questioning of our access rights.

The NAO adds

“The Department for Culture, Media & Sport requested not to be involved in this piece of work, a position which could not be resolved until after our fieldwork window had closed.

“We found it challenging to gain a complete picture of the use of confidentiality clauses as, by their nature, they are not openly discussed. Our work was also hampered by incomplete records, and access to data as outlined above.

“It took several attempts to identify the appropriate individuals within departments responsible for compromise agreements and the associated payments. We experienced delays in receiving data, and what departments provided was frequently incomplete or in a format that was difficult to collate and analyse.”

So what can the NAO do now it has been snubbed or, to put it in Whitehall-speak, has encountered departmental non-compliance with statutory access requests?

Little or nothing. The NAO has no power to punish. Through MPs on the Public Accounts Committee it can admonish. That is all.

Says the NAO:

“Given the innovative nature of this work, some initial difficulties were anticipated. We will continue to work with departments, the Treasury and Cabinet Office to explore ways in which we can obtain the evidence on a timelier basis. It is important that departments are able to respond more quickly to these investigations in the future.”

Councils too can evade democratic accountability. The NAO has no access rights to local authorities but councils are, in theory, subject to the Freedom of Information Act. In practice they can all but ignore the FOI legislation if they wish.

In March 2010, the Audit Commission published a report on severance payments to council chief executives. The study found that:

• agreed severance packages for 37 council chief executives totalled £9.5 million, 40 per cent of which were in pension benefits;

• three in every ten outgoing council chief executives received a pay-off;

• the average cost to councils of each severance package was almost double the annual basic salary, but in four cases was more than triple; and

• 79 per cent of mutually-agreed severance payments had a confidentiality clause.

But the NAO found that, in a recent survey of councils by a member of the public under the FoI Act, 52 councils refused to disclose information on their use of compromise agreements.

The good news

The NAO says: “Some organisations have chosen to be transparent about severance packages, such as NHS National Services Scotland, who agreed to the disclosure of a director’s remuneration package, despite a confidentiality agreement being in place, following consultation with legal advisers.”

Comment:

How is Francis Maude to reform central government, particularly IT, if officials in central departments can apparently do what they wish?

The NAO found cases of payments that were higher than contractual entitlement, where there was the apparent reward for failure, and no attempt to seek Treasury’s approval.  Is all this lawful? 

On top of this there are departmental officials who avoided the NAO’s statutory requests for information.

If they can circumvent the law they can probably resist any central demands for change. Resistance seems to be regarded within departments as honourable.

One irony is that bureaucrats in Russia probably have little choice but to respond to central demands – whereas officials in Whitehall departments don’t have to.

Radical reform to change Whitehall’s outdated and costly ways is unlikely to happen while senior officers in departments run the system and have the final say.

NAO report “Confidentiality clauses and special severance payments“