Conflict between Ministers and Civil Servants has recently been highlighted as an issue by the resignation of Dominic Raab. In this blog John Powell reflects on his time as part of the Defra Bill Team that helped to design the Commons Act of 2006, and the need for good working relationships at the heart of government in order to effectively address complex policy issues.
One of the most difficult tasks in government is designing policy to address new situations, or old problems that have not been adequately dealt with in the past. In many ways it is akin to being in a darkened room where you must feel your way around with no sense of where the obstacles lie, or even whether you are going in the right direction. There are sometimes a few clues when your hands recognise a chair or a table, but you know nothing about how they are positioned in relation to other objects in the room. Designing policy is similar, it requires an approach that enables one to feel the way forward without crashing into objects, becoming disoriented, or going off in the wrong direction. Avoiding mistakes demands deep knowledge of the context, of what has gone before, and of what has (and has not) worked elsewhere. It also requires an understanding of how those affected by a policy will be impacted, how different stakeholders might react, and what the unintended affects might be.
From the outside policy development appears to be a slow and tedious process, for those involved it is an intense, complex, time and resource limited process of gaining understanding, in order that the desired policy objectives can be delivered in the most efficient manner, without causing unnecessary damage. Ministers and civil servants involved in the policy processes are not operating in a vacuum. There is almost always some kind of precedent, earlier attempts at tackling the problem, studies and reports, and in many cases previous legislation partially or inadequately addressing the issue (some of which may go back hundreds of years). The relative importance of a particular issue to the government in power is also a factor. There might be good reasons for creating new legislation but if other issues are considered more important, then the time and resources to legislate may not be granted. Legislative time in Parliament is limited, and getting a slot in the Parliamentary timetable is the first battle to be won.
As a civil servant the perception of the task appears straightforward – how to design policy that will operate in a variety of local contexts, that will endure over a reasonable time period without the need for amendment or new legislation, and will minimise costs and resource requirements. In practice it is much more difficult. There is plenty of scope for conflict as desired policy objectives meet the reality of what will work in practice, and what it will cost.
Developing new legislation for common land
In developing new legislation for common land (which became the Commons Act 2006) we, as civil servants based in Defra, were charged with ensuring there was no opposition to the Bill going before Parliament. Initially, it seemed an onerous imposition by Government Ministers but was undertaken to avoid potential conflict over the use of state power in relation to land-use rights. The complexity of common rights required three years of dedicated work by civil servants and Ministers to design and enact new legislation. This was in addition to the previous half-century of attempts to deal with problems first identified by a Royal Commission in 1956.
The outcome was a more participatory approach and much stronger engagement with stakeholders. The Defra Commons Bill Team spent time visiting common land across England and Wales, talking to common rights holders, landowners and their representative bodies, and to other interests in (including: access and recreation, water, military, forestry, and ecological). Discussion groups and active stakeholder workshops were held to understand current issues and how different interests overlapped, where conflict and complementarities lay. The final result was a more considered piece of legislation with widespread support. It did not resolve all conflict, but it created a new approach to registration of rights, it dealt with problems of severance and it improved protection of commons (and Town and Village greens). In addition, through enabling the creation of ‘commons councils’ (a new form of organisation that can be established in local areas where desired), it provided a flexible form of governance with the capacity for enforcing management rules. Not radical enough for some, perhaps, but certainly more than an incremental change in direction, resulting in an approach based on balancing the rights of ownership with rights of use to common land.
The team of civil servants working with the Minister included both subject and legal experts because once the detailed policy objectives and overall approach were agreed, the text had to be converted into legal language, creating additional scope for mis-understanding. A final step converted the legal text into legislation, requiring further detailed analysis to ensure that the text as written, would deliver the policy objectives. In addition, regulatory impact analysis was required, as well as exploration of existing legislation that would require repeal or some form of revision. Only then did the Bill enter the Parliamentary process where it received detailed scrutiny. Good legislation does not come easy, quickly, or cheap. In contrast, poor legislation, often the result of rushed attempts at change, lack of impact analysis, and limited stakeholder engagement, tends to create more problems than it fixes, taking additional time, resources, and public money, as well as failing to effectively address the original issue. One example was the Commons Registration Act of 1965, which was a rushed attempt to register common land and rights of common. The failures of the Act required the establishment of a body of Commons Commissioners which operated for four decades dealing with the mistakes created.
Individual Civil Servants are only human and cannot help having political opinions, and where government action is likely to remove rights, or make people worse off they may well disagree on a personal level, especially if evidence is ignored or rejected. The role, however, requires helping whichever government is in power to achieve their objectives in the best possible way. Advising Government Ministers why a particular approach might not work is part of the job, and must be backed up by evidence and rational argument (‘speaking truth to power’). Conflict between Ministers and Civil Servants also concerns process and the best way to achieve policy change. Explaining to Ministers why a particular approach will or will not work, requires evidence, tact, and respect. For politicians, listening to Civil Servants requires patience, a need to engage with an extraordinary level of detail, and respect for the experience and subject expertise applied to the issue. If either side loses respect for the other then the task of governing becomes much harder, and optimum solutions are unlikely to be found.
Civil Servants are often blamed for not being able to adapt to radical change, or for only being capable of making small incremental change. This is a handy excuse for politicians to use when they fail to deliver needed policy change. Incremental versus radical change has been a long running battle in the political literature. In my (very limited) experience, however, it is the Civil Servants that explore issues in depth and come up with alternative proposals for what will work. It is the Civil Servants with experience of what might work in a particular context that provide a range of options for tackling an issue. Radical suggestions are examined in order to identify the boundaries of what is possible within time and resource constraints, and to analyse their wider and unknown impacts. Being radical sounds wonderful when presenting ideas to voters of how things could change. In practice, radical approaches often have unintended consequences, require more extensive action for which there are no resources, create uncertainty, and need time for testing to understand their effectiveness and impacts.
Ministers want to achieve change rapidly within the limited time frames they serve in government. Civil Servants are feeling their way forward ‘in the dark’ of the unpredictable. There will always be scope for conflict in such a relationship. What is identified as blocking, or failure to change, is more likely caution based on prior experience, a desire to not make people worse off, to avoid poor quality legislation, and to not waste government resources and public money.
Civil Servants spend their time, and in many cases their whole careers delivering various forms of public service. Ministers serve through implementing government policies demanded by those who voted them into power, and through addressing new problems as they arise. There is an obligation on both Ministers and Civil Servants to work together. The role of the Minister is to provide the goal and to work with Civil Servants to identify the best way to reach it. When either side loses the respect of the other, then they no longer serve effectively and everyone suffers. Good working relationships are essential for good governance. No-one benefits when needed change is stymied, and no-one benefits when evidence is ignored or overridden to achieve ideological goals. Ultimately, the role of the Civil Servant is to serve, not be servile.
 The Royal Commission on Common Land in 1955-56, which published its report in 1958, made three main recommendations: for registration of commons and common rights, for public access, and for improved management. These issues were not fully addressed until the Countryside and Rights of Way (CRoW) Act 2000, and the Commons Act 2006 (which repealed the 1965 Commons Registration Act in its entirety because it was such poor legislation).
 When the proposals written by the policy team were first ‘translated’ into legal text it created significant mis-understandings between policy and legal elements in the team, taking numerous meetings and several weeks before we started to understand each other.
 There are endless articles about the problems associated with the old saying: ‘legislate in haste, repent at leisure’. https://www.opendemocracy.net/en/digitaliberties/legislate-in-haste-repent-in-leisure/ ; https://www.standrewslawreview.com/post/legislate-in-haste-repent-at-leisure-anti-strike-laws-in-the-united-kingdom
 https://www.oss.org.uk/abolition-of-the-commons-commissioners-our-response/ ; https://www.oss.org.uk/about-us/our-history/saving-open-spaces-commons-registration/
 The term has been widely used since its origin in the title of a Quaker pamphlet published in 1955. For example: Wildavsky, A. B. (1979). Speaking truth to power. Transaction Publishers. More recently: Ginsberg, B., & Paschall, C. (2022). Speaking Truth to Power: Expertise, Politics and Governance. Edward Elgar Publishing.
 There has been a long-running discussion in the policy literature over the respective benefits of ‘incremental’ and ‘rational’ approaches to policy making going back to the 1950s. See the following two examples: Lindblom, C. E. (1979). Still Muddling, Not Yet Through. Public Administration Review, Vol. 39, pp. 517-526; Hayes, M. (2022) Incrementalism and Public Policy-Making. Published online: 26 April 2017. Revised 23 March 2022. https://doi.org/10.1093/acrefore/9780190228637.013.13