Devolution created a constitutional difficulty for the civil service in Scotland – it irrevocably split the loyalties of Her Majesty’s civil servants. Despite devolution, the core of the relationship between civil servants and ministers remains unchanged since the seminal Northcote-Trevelyan report of 1854 into the operation of the Home Civil Service. The Civil Service Code confirms that the permanent and impartial civil service owe their loyalty to the government of the day and membership of the Home Civil Service connects those civil servants in Scotland with their colleagues in London; it is a bond which persists irrespective of the administration in which they serve. This situation raises fundamental constitutional issues: civil servants attached to the Scottish Government have two masters, one in Edinburgh and another in London. Civil servants owe loyalty to the administration in which they serve, yet the political and administrative heads of the Home Civil Service are in London. The geographical and growing political divide between Edinburgh and London has failed to change the constitutional nature of the relationship between the civil service and ministers.

The Civil Service and Devolution

Section 51 of the Scotland Act 1998 makes statutory provision for administrative support to be provided to the Scottish Executive by the Home Civil Service. Beyond this, the 1998 Act is silent on the role the civil service should play in a devolved Scotland. The view of the Government prior to devolution was explained by Henry McLeish, during debates on the Scotland Bill were it was stated that, ‘Clearly, the civil service will remain a unified service, but civil servants working in Scotland will work through the First Minister to the Crown. They will swear allegiance in the same way as Ministers at Westminster. The process is not complex’. (HC Deb 11 November 1998, vol 318, cols 439-440). The Civil Service Code was duly amended to reflect this change in loyalty. Hence, the current structure of the Home Civil Service dictates that the civil service will remain a unified service, unless specific provision is made, with civil servants in Scotland working through the First Minister to the Crown. The complexity of the constitutional arrangements only manifested themselves as devolution became operational.

The Civil Service and the Scottish Government

The rise of the SNP to power in Scotland has caused Scottish civil servants, who follow the direction of the Civil Service Code and serve the Scottish Government loyally, to become involved in projects of constitutional significance which are at odds with the constitutional position of the remainder of the Home Civil Service (i.e. Scottish independence). The propriety of using Crown servants on projects such as the SNP’s National Conversation project and in planning for independence should, therefore, be questioned. Civil servants within the Scottish Administration, as confirmed by the Civil Service Code, are there to serve the government of the day in the devolved administration and this is where their loyalties lie. Hence, their assistance in the constitutional reform projects is not outside the boundaries of orthodoxy, although it is submitted that it toes a very fine line between propriety and impropriety. The constitutional challenge of squaring a civil servant’s obligations in Scotland of supporting the SNP government, whose ultimate goal is independence and destruction of the Union, with their position as UK ‘home’ civil servants seems an impossible situation. In sum:

In their quest for legitimacy, democratic regimes find themselves having to balance the values that can be in some tension: fair and non-politically partisan public service delivery, and, subject to the law, the responsiveness of public servants to the policies of the current executive (Matheson, A, et al, 'Study on the Political Involvement in Senior Staffing and on the Delineation of Responsibilities Between Ministers and Senior Civil Servants', OECD Working Papers on Public Governance No 6, 5)

Therefore, the problem of remaining part of the home civil service and of responding to the policies of the Scottish administration encapsulates the difficulties facing the unified home civil service today. Neutrality is often seen to be a function of the public service but I would suggest that such neutrality is only an illusion, for the line between party politics and policy implementation is a fuzzy one; as the current constitutional debate eloquently demonstrates. 

The Civil Service and Further Devolution

As Scotland’s political and constitutional journey continues, the future of the settlement, and of the civil service within this settlement, will be shaped by two important events: (i) the full implementation of the Scotland Act 2012 (the “2012 Act); and (ii) the outcome of a referendum on Scottish independence in 2014. Should Scotland vote “No” in the forthcoming referendum, the proposed timetable for implementing the Act will be followed and the full fiscal effects of the Act realised. When fully operational, the 2012 Act will see significant fiscal powers transferred to Edinburgh. Furthermore, there is also the possibility that, following a “No” vote, Scotland may seek to negotiate further devolution of power from Westminster and expand its legislative and policy remit – known as “devolution-max”. Therefore, as Edinburgh wields more power, Scottish ministers expand their portfolios, and civil servants strive to fulfil their constitutional role of loyally serving the government of the day, it is vital that this fresh exercise of power and new fiscal autonomy is effectively held to account. For the civil service, this will involve questioning whether, given the growing divergence between Scotland and the rest of the UK, the current ‘Home Civil Service’ model is workable and if legislating for the civil service is now the most appropriate course of action to ensure its continued existence. This questioning of the civil service’s purpose in the UK could, of course, potentially lead to wider consideration of the constitutional position of the whole Home Civil Service. Further devolution to Scotland may act as a catalyst for wider constitutional change within the UK. A separate Scottish civil service could be created while simultaneously providing the civil service with a clear statutory basis. Although the Constitutional Reform and Governance Act 2010 placed aspects of the civil service on a statutory footing, the Act failed to define precisely what a civil servant is or clearly specify their constitutional role. Given the lack of appetite for civil service reform in Westminster, and despite a 2004 recent attempt by the Public Administration Select Committee to produce a draft civil service bill, devolution of further powers to Scotland may provide the required impetus for change.  

That said, there is little desire for a separate Scottish civil service. Yet, the role of civil servants in Scotland is in danger of becoming increasingly political in appearance as they fulfil their constitutional role of supporting the government of the day by implementing policy surrounding the referendum, to the detriment of their constitutional position as Her Majesty’s civil servants. This divided loyalty has no immediate practical consequences, the inherent flexibility of the constitution allows such deviation, however it represents a threat to the traditional impartiality of the civil service. However, should further powers be devolved to Scotland following a “yes” vote in the referendum, the transference of further power, and hence responsibility, will continue to impact upon those civil servants in Scotland. 

One final consideration is whether the civil service in Scotland, as it currently stands, it properly equipped to meet the demands that will be placed upon it as a result of the devolution of further powers. The current generalist format of the civil service, combined with the regular circulation of civil servants through departments, means that the civil service lacks specialists in many critical policy areas. A key question for any future reform of the civil service should also examine the current recruitment and training policies of the civil service and ask whether a trend towards specialism would serve both politicians and the Scottish population in a more efficient way. 

The Civil Service and Scottish Independence

Finally, should the proposed referendum on Scottish independence return a “Yes” vote; the architects of Scotland’s new constitution will face a choice. Political scientists, constitutional lawyers and think tanks will undoubtedly propose differing formats. However, the basic choice can be distilled down to one of two options: (i) an impartial civil service; or (ii) a politicised civil service. In constituting a Scottish Civil Service they will be required to decide whether they wish to create a civil service whose values reflect those of the impartial civil service to which those civil servants once belonged; or create a new, politicised civil service.  

A politicised civil service would, presumably, be modelled upon a version of an administrative bureaucracy which reconstitutes itself with each new government. Politicians would have control over their administrative team, surrounding themselves with their choice of political advisers. Of course, the major advantage in having a permanent civil service is the continuity which this provides and in the alternative, a politically impartial Scottish Civil Service could be created. The familiar values of the civil service would be codified in Scotland’s new written, legally enforceable constitution. No longer would non-legal codes and constitutional conventions solely govern the administrative heart of the state and the points outlined above could be addressed with confidence and clarity. Regardless of the political feelings about a referendum, from a purely constitutional perspective, the opportunity to rewrite Scotland’s constitution, to implement a considered and legally prudent approach, would address many of the anomalies that currently exist within UK constitutional law.

Henry McLeish was wrong; the process is nothing if not complex.

Caroline Hood is a PhD student in the School of Law at the University of Aberdeen