Bernard Jenkin is Chairman of the Public Administration and Constitutional Affairs Select Committee and MP for Harwich. He is a former Shadow Defence Secretary.
The Cabinet Secretary’s guidance issued to civil servants last week has sparked a debate, but this is not a new issue. Following the Scottish Referendum in September 2014, the committee I chair, then called the Public Administration Select Committee, conducted an inquiry into this topic (the report is here). Following controversy about the Scottish Executive’s white paper, ‘Scotland’s Future’, and the highly unusual decision by the Treasury Permanent Secretary to publish his advice to ministers concerning the currency question, we recommended that the Civil Service Code be revised to include a simple new paragraph, so that the provisions which apply in respect of parties in elections in the Code also apply in respect of the “yes” and “no” campaigns in referendums, and so that any future referendum would not give rise to the same uncertainty and controversy. Alas, this recommendation was rejected.
By the time we were debating the purdah provisions of the EU Referendum Bill in July last year, it was becoming plain that some people in Downing Street had even less fair-minded ideas about the role of government machinery in this EU referendum than anything we had seen in 2014.
The House of Commons defeated the government’s proposals to dilute Section 125 of the Political Parties and Referendums Act 2000 (PPERA), so at least we have the last 28 crucial days when the Government cannot deploy its whole machinery to make their case in the referendum debate, but until then it is not a fair fight at all. However, at least we are having this referendum (thank you, Prime Minister!) and at least he has realised that it is preferable to suspend collective responsibility on the EU referendum question than to see perhaps a fifth of his ministers resign over the issue. This is not unprecedented. Harold Wilson allowed exactly the same thing to avoid losing Peter Shore, Tony Benn and Barbara Castle from his cabinet in 1975, except today there is rather a different atmosphere.
Last week, the Cabinet Secretary issued a letter of guidance to civil servants. It was always expected that the Civil Service would continue to support the position of the Government until the last 28 days. The Q&A guidance goes much further than the letter. It says ministers may not see any papers “that have a bearing on the referendum question or are intended to be used in support of their position on the referendum.” This is very open-ended and would leave civil servants making difficult distinctions. But ministers were still surprised to be told by their officials that they are to be denied sight of information “relating to [the] referendum question” which is requested by Number 10 or Downing Street during the referendum. You won’t find this in any letter or guidance, because this instruction has been given only by word of mouth.
The letter says that “…Departments may check facts…” But as civil servants have also been told they cannot “provide new arguments or new facts”, the implication is that some “facts” are to be withheld. The unwritten instruction, which effectively carries the authority of the Prime Minister, contravenes the rules established by the Cabinet Manual, the Ministerial Code, Section 6 of the European Referendum Act 2015 and the precedent set by the 1975 referendum.
This also goes way beyond the limits placed on dissenting ministers during the 1975 campaign. The then Industry Secretary Peter Shore’s Permanent Secretary, Sir Peter Thornton, was quoted as saying: “it was jolly difficult putting forward anti-Common Market briefs to Mr. Shore, but I hope we did what he asked”. What a different atmosphere pervades this issue today.
Both the Pensions Minister, Priti Patel and the Work and Pensions Secretary, Iain Duncan-Smith, have stated that this measure is unconstitutional. Not only is this instruction highly irregular, it is also disruptive to the day-to-day business of Government. How do you draw the line between European business that is relevant to a referendum on our entire membership of the EU and that which is not?
In an email to staff in her department, Clare Moriaty, the Permanent Secretary at DEFRA said that: “Given that EU business accounts for 80 per cent of Defra’s activity, and 25 per cent of all EU legislation relates to issues that we are responsible for, many of you will find yourselves in situations where you are unsure about how best to proceed”.
This highlights the difficulty of the position that many civil servants are now going to face. It now seems as though Permanent Secretaries and other civil servants are being told to block information to dissenting ministers, despite the fact that the same ministers are constitutionally accountable to Parliament for the conduct of their departments. This is known colloquially as ‘the Carltona principle’, which expresses the idea that in UK law the acts of government departmental officials are synonymous with the actions of the minister in charge of that department. The point was established in a 1943 case before the courts, Carltona Ltd v. Commissioners of Works.
This leaves the Government in an absurd position. Departments will find they are drafting answers to Parliamentary questions or responding to FoI requests with information which the responsible minister has been blocked from seeing. It reflects a kind of logic, but taken to unreasonable extremes. Nobody denies that the Government has the right to make its case, and that civil servants have a role in that until the 28 day ‘purdah’ period. (The Electoral Commission argued rightly that ‘purdah’ should be much longer, but be that as it may.) And nobody thinks it would be in anyone’s interests not to suspend collective responsibility. But there is going to have to be a bit of give and take to make things work.
It is to be hoped, while we are still so early in the referendum campaign, that these are but teething problems, and things will settle down. The biographer and historian Philip Zeigler once referred to the British constitution’s capacity for “instantly invented precedents”, but that is not an excuse just to make things up as you go along. Today, PACAC (the Public Administration and Constitutional Affairs Select Committee) will be asking the Cabinet Secretary to explain himself, to ensure that doctrine of “support for the government of the day” is not being pursued at the expense of all the other considerations which ensure that the Civil Service is one of our great and impartial institutions and a safeguard in our still great British constitution.