Executive Powers and Civil Service Bill [HL]

House of Lords

Session 2003 - 04
Internet Publications
Other Bills before Parliament

Executive Powers and Civil Service Bill [HL]

Executive Powers and Civil Service Bill [HL]
Part 1 — Parliamentary authority for executive powers
1

A
Bill
To
place under the authority of Parliament executive powers exercisable by
Ministers of the Crown by virtue of the Royal prerogative; to make provision
relating to the appointment and conduct of, and general duties relating to,
civil servants and special advisers; to establish a procedure for the making of
certain public appointments; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Part 1
Parliamentary authority for executive powers
1
Meaning of “executive powers”
In this Act “executive powers” means rights and powers under Her Majesty’s
prerogative, but does not include—
5
(a)
any rights and powers that belong to Her Majesty in her personal
capacity or to any member of the Royal Family; or
(b)
any rights and powers which belong to Her Majesty in right of the
Crown or the Duchy of Lancaster, or to the Duchy of Cornwall, and
which are necessary to allow Her Majesty to continue to act as The
10
Queen in Council or as Head of State.
2
Executive powers to be exercisable under authority of Parliament
(1)
With effect from the end of the relevant period, no executive powers may be
exercised unless Parliament has provided appropriate authority.
(2)
But nothing in this section affects—
15
(a)
any method or procedure in use before the passing of this Act with a
view to exercising executive powers; or

HL Bill 15 53/3

Executive Powers and Civil Service Bill [HL]
Part 1 — Parliamentary authority for executive powers
2

(b)
the continuing validity, operation or enforcement of any Orders in
Council made under Her Majesty’s prerogative before the end of the
relevant period.
(3)
“Relevant period” means the period of 9 months commencing with the passing
of this Act.
5
3
Appropriate parliamentary authority for executive powers
(1)
In respect of any particular exercise of executive powers, the general rule is that
appropriate parliamentary authority shall be regarded as provided by virtue
of this subsection.
(2)
But the general rule does not apply—
10
(a)
in any case falling within subsection (3);
(b)
in any case to which subsection (4) applies, unless the requirements of
Schedule 1 are met; and
(c)
to the extent that, following a review by the Executive Powers Review
Committee under section 4, anything done in exercise of executive
15
powers ceases to be lawful by virtue of any provision of Schedule 2.
(3)
Appropriate parliamentary authority is not to be regarded as provided for any
step taken, or proposed to be taken, in exercise of executive powers in any case
where that step, or the result to be achieved by it, could be taken or achieved
by virtue of any provision contained in any primary or secondary legislation,
20
whenever enacted (including any provision in Part 2 or 3 of this Act).
(4)
This subsection—
(a)
applies to circumstances in which—
(i)
a treaty to which the United Kingdom is a party is to be ratified;
or
25
(ii)
it is proposed to commit the United Kingdom to direct
participation in any war, international armed conflict or
international peace-keeping activity; but
(b)
does not apply to such circumstances in any case where the Prime
Minister—
30
(i)
considers that exceptional considerations require immediate
action to be taken;
(ii)
notifies each House of Parliament accordingly; and
(iii)
as soon as reasonably practicable, provides each House with a
statement of his reasons for taking the view referred to in sub-
35
paragraph (i).
(5)
In this section—
(a)
“treaty” means an international agreement, however designated, that—
(i)
is concluded between States, or between States and
intergovernmental organisations;
40
(ii)
takes written form;
(iii)
is governed by international law; and
(iv)
contains provision (however expressed) that the parties intend
to show consent to the treaty by ratifying it; and
(b)
references to ratify, in relation to a treaty, are to the international act
45
whereby a State indicates its consent to be bound by the treaty.

Executive Powers and Civil Service Bill [HL]
Part 2 — The Civil Service and special advisers
3

4
Executive Powers Review Committee
(1)
There shall be a Committee to be known as the “Executive Powers Review
Committee”.
(2)
It shall be the duty of the Executive Powers Review Committee to keep under
general review, and report to Parliament on, circumstances in which executive
5
powers are exercised.
(3)
Schedule 2 makes provision in connection with the Executive Powers Review
Committee and its reviews and reports.
Part 2
The Civil Service and special advisers
10
Interpretation
5
Interpretation of this Part
In this Part—
“civil servant” means any individual who is a permanent, short-term or
seconded member of the Civil Service who is vested with public
15
functions to assist Her Majesty’s Government in the United Kingdom,
the Scottish Executive or the National Assembly for Wales in the
formulation of policies, the carrying out of decisions and the provision
of public services;
“Civil Service” means—
20
(a)
Her Majesty’s Home Civil Service;
(b)
Her Majesty’s Diplomatic Service;
(c)
the Security Service;
(d)
the Secret Intelligence Service; and
(e)
the Government Communications Headquarters within the
25
meaning of the Intelligence Services Act 1994 (c. 13);
“Civil Service Code” has the meaning given in section 13(1)(a);
“Civil Service Commission” means the Civil Service Commission for
England, Wales and Scotland;
“Recruitment Code” means the Recruitment Code for the Civil Service
30
published and maintained in accordance with section 8;
“Special Advisers’ Code” has the meaning given in section 13(1)(b); and
“special adviser” means an individual appointed personally by a Minister
of the Crown (whether in a paid or unpaid capacity) to provide advice
and assistance informed by views of the political party of which that
35
Minister is a member.
Appointments to the Civil Service
6
Appointments to the Civil Service
(1)
No person may be appointed as a civil servant unless the first and second
conditions are met in relation to him.
40
(2)
The first condition is that a person who is appointed to any post—

Executive Powers and Civil Service Bill [HL]
Part 2 — The Civil Service and special advisers
4

(a)
is selected for appointment on merit on the basis of fair and open
competition; or
(b)
falls within an exception to paragraph (a) that is contained in the
Recruitment Code for the Civil Service published by the Civil Service
Commission under section 8(1)(b).
5
(3)
The second condition is that a person who is appointed to any post satisfies all
the requirements having effect in relation to that appointment which are
specified in regulations made by the Minister for the Civil Service.
(4)
Regulations under subsection (3) shall be subject to annulment in pursuance of
a resolution of either House of Parliament.
10
7
The Civil Service Commission
(1)
There shall be a body corporate to be known as ‘the Civil Service Commission
for England, Wales and Scotland” (but referred to in this Part as “the Civil
Service Commission”).
(2)
The Civil Service Commission shall consist of the First Commissioner and not
15
less than six nor more than twelve other Commissioners.
(3)
The Commissioners shall be appointed by Her Majesty upon the
recommendation of the Minister for the Civil Service.
(4)
In relation to any person to be appointed as the First Civil Service
Commissioner, the Minister for the Civil Service shall, before making a
20
recommendation under subsection (3), consult with the leader of each
qualifying political party.
(5)
“Qualifying political party” means any registered political party to which, for
the time being—
(a)
two or more members of the House of Commons belong;
25
(b)
two or more members of the Scottish Parliament belong;
(c)
two or more members of the National Assembly for Wales belong.
(6)
Schedule 3 makes provision about the constitution and status of the
Commission.
8
Duties of the Civil Service Commission
30
(1)
It shall be the duty of the Civil Service Commission—
(a)
to ensure that appointments to the Civil Service are made in accordance
with section 6;
(b)
to publish and maintain the Recruitment Code for the Civil Service
(“the Recruitment Code”);
35
(c)
to approve the appointment of senior officials in accordance with the
Recruitment Code;
(d)
to audit the recruitment systems of government departments and
agencies for compliance with the Recruitment Code;
(e)
to audit, and periodically report on, the operation of the Civil Service
40
Code issued under section 13(1)(a);
(f)
to hear and determine any appeals made to it in accordance with that
Code; and
(g)
to carry out any other functions conferred on it by this Part.

Executive Powers and Civil Service Bill [HL]
Part 2 — The Civil Service and special advisers
5

(2)
The Recruitment Code is a code—
(a)
relating to the interpretation and application of any conditions
specified by, or by virtue of, section 6;
(b)
specifying exceptions to those conditions in such circumstances as the
Commission thinks fit;
5
(c)
relating to the interpretation and application of exceptions specified
under paragraph (b); and
(d)
containing such other provision as to recruitment to the Civil Service as
the Commission thinks fit.
(3)
In this section—
10

“audit” means any review carried out by or on behalf of the Civil Service
Commission; and

“senior official” means a member of the Senior Civil Service or a member
of the Senior Management Structure of Her Majesty’s Diplomatic
Service.
15
9
General duty of persons making Civil Service appointments
In making any appointment to the Civil Service, is shall be the duty of the
person making the appointment to comply with the Recruitment Code.
Impartiality of the Civil Service and Civil Service Commission
10
Duties of Ministers and special advisers to uphold impartiality
20
(1)
It shall be the duty of—
(a)
each Minister of the Crown; and
(b)
each special adviser;

to uphold the integrity and impartiality of the Civil Service.
(2)
It shall be the duty of each Minister of the Crown to uphold the independence
25
and impartiality of the Civil Service Commission.
Civil servants and special advisers
11
Civil servants and special advisers: duties and restrictions
(1)
It shall be the duty of each civil servant at all times to act with honesty,
integrity, impartiality and objectivity.
30
(2)
It shall be the duty of each special adviser at all times to act with honesty and
integrity, and in accordance with his terms of service.
(3)
No special adviser may exercise executive powers.
12
Information relating to special advisers
(1)
At least once a year the Prime Minister shall lay before each House of
35
Parliament a general report on the appointment, role and responsibilities of
special advisers.
(2)
A report under subsection (1) shall state—

Executive Powers and Civil Service Bill [HL]
Part 2 — The Civil Service and special advisers
6

(a)
the total number of paid advisers in post during the year;
(b)
their names;
(c)
the Minister of the Crown responsible for their appointment;
(d)
their roles and areas of responsibility;
(e)
any other Minister of the Crown to whom they have provided
5
assistance during the year and the nature of it;
(f)
the total salary cost by government department; and
(g)
all available comparison figures for a minimum period of ten years
immediately preceding the year to which the report relates.
Codes of conduct
10
13
Codes of conduct for civil servants and special advisers
(1)
The Minister for the Civil Service shall prepare, issue and maintain—
(a)
a code of conduct for civil servants (“the Civil Service Code”); and
(b)
a code of conduct for special advisers (“the Special Advisers’ Code”).
(2)
Each Code shall set out —
15
(a)
the constitutional framework of responsibilities within which civil
servants and special advisers are to work; and
(b)
the values they are expected to uphold.
(3)
Each civil servant shall comply with the Civil Service Code.
(4)
Each special adviser shall comply with the Special Advisers’ Code.
20
14
Codes of conduct: procedure
(1)
This section applies in any case where the Minister for the Civil Service
proposes—
(a)
to issue a new Civil Service Code or the Special Advisers’ Code; or
(b)
to make an amendment to either Code.
25
(2)
The Minister for Civil Service shall—
(a)
seek preliminary views on the proposal from the Civil Service
Commission;
(b)
publish a draft of the proposal, together with—
(i)
an explanation of its purpose;
30
(ii)
an explanation of the Minister’s reasons for believing that
issuing or amending the code in accordance with the proposal
is compatible with the duties imposed by sections 10 and 11;
and
(iii)
notice that representations about the proposals may be made to
35
him within a specified time; and
(c)
lay a draft of the proposal before each House of Parliament.
(3)
Before issuing the proposed code or making the proposed amendment, the
Minister shall have regard to any representations made by the Civil Service
Commission or any other person in accordance with subsection (2)(b)(iii).
40
(4)
If the Minister issues the proposed code or makes the proposed amendment,
he shall publish an account, in general terms, of—

Executive Powers and Civil Service Bill [HL]
Part 2 — The Civil Service and special advisers
7

(a)
the representations made to him in accordance with subsection
(2)(b)(iii); and
(b)
his response to them.
(5)
The Civil Service Code and the Special Advisers’ Code, or any amendment to
either of them, shall be issued by order.
5
(6)
An order under subsection (5) shall be subject to annulment in pursuance of a
resolution of either House of Parliament.
Investigations by the Civil Service Commission
15
Power to investigate contraventions relating to the Civil Service
(1)
Subsection (2) applies if it appears to the Civil Service Commission that there
10
are circumstances suggesting that—
(a)
an appointment to the Civil Service may have been made in
contravention of any provision made by, or by virtue of, this Part; or
(b)
a person may have contravened any provision of the Civil Service
Code.
15
(2)
The Civil Service Commission may conduct such investigations as it thinks fit.
(3)
An investigation under subsection (2) may be conducted either—
(a)
in response to a reference to the Commission of any matter in
accordance with the Civil Service Code; or
(b)
on the Commission’s own initiative.
20
16
Investigation procedure
(1)
If the Civil Service Commission proposes to conduct an investigation under
section 15, it shall give to every person whose affairs it intends to investigate
notice of the proposal.
(2)
A notice under subsection (1) shall set out the scope and purpose of the
25
investigation.
(3)
The Commission shall invite every person to whom a notice under subsection
(1) is given to comment on the matters to which the proposed investigation
relates.
(4)
If the Commission decides to conduct the investigation, it shall invite every
30
person whose affairs are to be investigated to make oral or written
representations to it on the matters under consideration.
(5)
The Commission may make such inquiries and call for such reports as it thinks
fit, including reports by officers of the Commission or inquiries or interviews
conducted by them on the Commission’s behalf.
35
(6)
The Commission may by notice in writing require any person who is the
subject of the investigation, or any other person who in the opinion of the
Commission is able to provide information or produce documents relevant to
it—
(a)
to provide specified information or information of a specified
40
description;