Bureaucracy and Distrust: The Civil Service in the Constitution

Faith in democracy and established institutions seems at a particularly low ebb. Democratic backsliding—the weakening or evisceration of institutions designed to sustain democracy—appears to be spreading. ‘Intermediary’ institutions like the bureaucracy are seen as obstructing populist politicians, who portray themselves as direct representatives of the people. We are in danger of forgetting that no successful state can function without a bureaucracy. In such a context, we should ask: what is the role of the civil service in a democracy? What are the limits of this role? The civil service has largely been effaced from the constitution in public law theory. That is partly because of a general aversion of public lawyers to the Executive, but it is also because the doctrine of ministerial responsibility remains the dominant constitutional principle underpinning the role and work of the civil service. What matters are ministers. Ministerial responsibility means that the primary duty of civil servants is to support the incumbent government. That crowds out other institutional norms and practices that the civil service have quietly maintained, but whose basis has been kept deliberately ambiguous—in particular, by ministers and the civil service itself. This leaves the bureaucracy vulnerable in the face of a government intent on democratic backsliding.