House of Commons - Lessons for Civil Service impartiality from the Scottish independence referendum

Lessons for Civil Service impartiality from the Scottish independence referendum - Public Administration Contents

3 Lessons from the referendum

25. The constitutional scholar A.V. Dicey wrote that referendums could "by checking the omnipotence of partisanship, revive faith in that parliamentary government which has been the glory of English constitutional history".[26] The historic vote in Scotland tested some people's faith in government and the Civil Service and has given cause to consider how the Government should administer referendums in modern Britain.

Background

26. Our Report Truth to power, how Civil Service reform can succeed, said that the impartiality of the Civil Service remained "the most effective way of supporting the democratically elected Government and future administrations in the UK, and of maintaining the stability of the UK's largely uncodified constitution."[27]

27. The Constitutional Reform and Governance Act 2010 confirmed the Civil Service Commission's long-standing responsibility for promoting and protecting the Civil Service's impartiality.[28] In its written evidence to us, the Commission explained that it is responsible for investigating and considering complaints under the Code. Civil servants can complain to the Commission if they believe they are being required to act in a way that conflicts with the Code value of impartiality, or if they are aware of the actions of another civil servant that breach impartiality.[29] The Commission does not have the power to initiate investigations itself.[30]

Acting with impartiality?

28. John Swinney MSP, the Deputy First Minister of Scotland and formerly the Cabinet Secretary for Finance, Constitution and Economy, acknowledged to us that the referendum had created a "very sensitive political environment" but he went on to defend the work of civil servants in Scotland who were "simply acting for their ministers in the fashion that civil servants in the United Kingdom Government are working for United Kingdom Government ministers".[31] He insisted that there was "no difference in the approach they have taken".[32]

29. Professor Jim Gallagher told us that political impartiality is "quite difficult to define". He explained that it required civil servants to behave in a manner that would sustain "the confidence of the minister you presently work for and an alternative minister. That is what impartiality means".[33]

30. In a debate on Civil Service reform in the House of Commons on 3 April 2014, the Rt Hon Francis Maude MP, Minister for the Cabinet Office, explained what he believed impartiality to mean:

31. Evidence submitted to this inquiry by Sir Bob Kerslake, then Head of the Home Civil Service, stated that civil servants were obliged to serve and support ministers as fully as possible with their objectives, in a way that maintains political impartiality and the other core values in the Civil Service Code.[35] With specific reference to the Scottish independence referendum, he told us:

32. In written evidence to us in 2013 the Scottish Government Permanent Secretary Sir Peter Housden cited the "two-fold" responsibilities of civil servants in Scotland, which include both acting with impartiality, but also delivering the policies of the elected Government of Scotland.[37]

IMPARTIALITY AND POLITICISATION

33. The political impartiality of the Civil Service is highly valued. As the Better Government Initiative explained to us:

Akash Paun, Fellow at the Institute for Government, has examined the challenges facing the Civil Service in coalitions, some of which relate to politicisation and impartiality. His report Year Five: Whitehall and the Parties in the Final Year of Coalition, published in May 2014, focused on how the Civil Service should work with the two Westminster coalition partners as the next election approaches. The report concluded that, without effective action and clarification of the rules, there were growing risks including "public perceptions or accusations that Civil Service resources are being used improperly, or that particular officials or teams have become politicised for one side or other of the Coalition".[39]

34. Keith Howell, a member of the public, wrote in evidence to this inquiry that the referendum had presented a challenging situation for both the Scottish Government and the Scottish Civil Service, "in which their integrity, objectivity and honesty were always going to be tested".[40] He also said that "the impartiality of the Scottish Civil Service should have provided fundamental checks and balances that the people of Scotland could have relied upon".[41] However, University of Edinburgh Professor and former Minister Susan Deacon put accusations of politicisation into context for us:

35. Simon Johnson of the Telegraph had "some concerns" but told us he thought it would be "going too far to say the entire Civil Service is corrupt or politicised".[43] The Rt Hon Peter Riddell, Director of the Institute for Government, said of impartiality that:

IMPARTIALITY OR NEUTRALITY?

36. During our inquiry we discussed whether civil servants were expected to be politically impartial or politically neutral. The Minister for the Cabinet Office, told us that:

37. We asked Mr Maude if there was an injunction on civil servants not to be as passionate about a Government's policy as to lose the potential trust of a minister of a different political persuasion. He replied:

38. The Civil Service Code states that "impartiality is acting solely according to the merits of the case and serving equally well Governments of different political persuasions.[47] The Code does not define 'neutrality'.

MAINTAINING IMPARTIALITY

39. Both the UK Government and Scottish Government circulated guidance to their civil servants on the Scottish independence referendum. Intentionally, the two sets of advice closely follow each other, and were the subject of close consultation at official level.[48] The advice was rooted in the Civil Service Code and offered guidance on the Code's application in the run-up to the referendum. The Cabinet Office guidance says it is "both legitimate and necessary for civil servants to support ministers as fully as possible in pursuit of those objectives".[49] The Scottish Government's advice states that the requirements of the Code "apply to work on constitutional reform as much as in any other area of the respective Governments' work".[50] This advice applies whether the two Government's objectives are aligned or opposed.

40. The Cabinet Secretary for Finance, Constitution and Economy (and now Deputy First Minister) John Swinney MSP explained to us that "the Scottish Government has a policy position. The United Kingdom Government has a policy position. On this they happen to be different. Our respective civil servants work to provide advice to us in respect of the policy positions that we respectively take and ministers make decisions accordingly".[51] However, Simon Johnson of the Telegraph described a blurring of Government, campaign and party on both sides of the campaign, saying that a change happened in 2007 following the success of the SNP in the Scottish Parliament elections:

41. The Deputy First Minister told us that, during the referendum campaign, the Civil Service were asked to operate within the terms of the Civil Service Code and to "fulfil their responsibility to their respective ministers where their priorities were different."[53] This method of operation was "what the Civil Service Code envisages" and also:

White Paper: Scotland's Future

42. In November 2013 a White Paper was published by the Scottish Government titled Scotland's Future: Your guide to an independent Scotland.[55] David Clegg of the Daily Record told us that, "if you lined up all the White Papers over the last 15 to 20 years and put them in a row, the one on Scotland's future would feel very different in content and style".[56] The paper made the case for an independent Scotland and was consequently labelled by commentators as a Scottish National Party "manifesto".[57] John McTernan, a political adviser, was among those who criticised the document, in an article in the Scotsman. He confirmed in his written evidence to us his view that civil servants had written a party political manifesto in contravention of the Civil Service Code.[58] He set out the logic for this assertion:

In the words of the BBC: 'As well as making the case for independence, the White Paper also set out a series of policy pledges which the SNP said it would pursue if elected as the government of an independent Scotland.'

43. It was heavily criticised for having been written and produced by Scottish civil servants and at the taxpayers' expense, and this resulted in complaints to Sir Peter Housden, Permanent Secretary of the Scottish Government. The FDA, a trade union for senior public servants, said the White Paper controversy demonstrated the awkward position in which civil servants, especially senior civil servants, can find themselves.[60] Alan Cochrane, Scottish Editor at the Telegraph, for example, wrote that there was a "continuing and growing unease about the part played by Scotland's civil servants" and the alleged use of the Civil Service by the SNP.[61] He said that "many [civil servants] are deeply unhappy about the way their work has been politicised".[62] The Sunday Herald published a letter on 20 April 2014 from a member of the public, Brian McGarry, who had worked in the Scottish Civil Service for 40 years. In it he wrote that he had often "had to assist with the development and implementation of certain government policies that I personally found disagreeable […] But that was the nature of the job and the choice was either to accept the situation and get on with it or to find another career."[63]

44. The use of civil servants to write and produce the paper was raised in the House of Lords in December 2013, in which Lord Forsyth of Drumlean asked why civil servants had been asked to write the document, "putting the bill for an SNP manifesto on to taxpayers."[64] In a later House of Lords debate in January 2014 Lord Kerr of Kinlochard suggested that "we have not yet lost the apolitical, independent, expert public service but it is in danger".[65]

45. During our inquiry we questioned whether Scottish civil servants had in any way abandoned impartiality through supporting the Scottish Government in producing its White Paper on independence. Professor Susan Deacon discussed the status of the document:

Simon Johnson of the Telegraph described the process for producing such a document:

46. The Deputy First Minister did not reassure us that civil servants were excused from working on the more party political propositions the document contained:

Lindsay Roy MP: You said the report had been substantially written by civil servants. Who wrote the other parts?

47. The Rt Hon Peter Riddell, Director of the Institute for Government, did not see civil service support for the White Paper as "dramatically different from what would happen within Whitehall with a White Paper".[69] A number of our witnesses suggested that, while politicians might object to policies pursued by devolved administrations, the actions of the Civil Service in developing such policies did not in themselves call into question the impartiality of the Civil Service.[70] As the Minister for the Cabinet Office explained, the key test is whether the same level of commitment can be transferred to another party pursuing a different policy agenda in the event of a change of government. He quoted the Civil Service Code, which states that:

48. Professor James Mitchell described the idea that Scottish Government officials would be unable to provide the appropriate level of support to a different Scottish governing party or parties as "fanciful".[72] Michael McCann MP wrote in evidence to this inquiry that:

49. The Deputy First Minister told us that "civil servants provided a very comprehensive amount of advice to ministers about the document [the White Paper]. Civil servants would have written, very substantially, the material within the White Paper, but ultimately the decisions about what was in the White Paper and the signing off of the White Paper were taken by ministers".[74]

50. The Deputy First Minister was clear that the Scottish Government was aware of the importance of operating "utterly consistently with the Code", he said that:

51. The Deputy First Minister did not accept that Scotland's Future went beyond "what one might consider to be the norm".[76] He said that it was very common for UK governments to set out policy material of what is going to happen beyond the term of a Parliament.[77]

52. Our witness Simon Johnson of the Telegraph newspaper had other reasons for doubting the White Paper (see Box 1):

Box 1: Arguments made in the Scottish Government's White Paper, Scotland's Future

The White Paper, Scotland's Future, contained the expected arguments in favour of Scottish independence. However, it also contained such material as contained in Chapter 2, under the heading, 'Early priorities for action within sound public finances'. These 'priorities' were not just contingent upon a "yes" vote in the referendum. These were a description of the SNP's proposed programme for government contingent upon their winning the 2016 Scottish Parliament elections-
'This Government intends to raise revenue and reduce spending by:
·  reducing defence and security spending to £2.5 billion per year (which is still more than Westminster spends on defence in Scotland)
·  ending the married couples tax allowance, planned for introduction in 2015
·  cancelling the Westminster Government's Shares for Rights scheme in Scotland
·  providing for a streamlined system of overseas representation focused on Scottish citizens and priority business sectors
There will also be savings from no longer having to fund the Westminster Parliament.
We expect these changes to deliver savings or increases in revenue totalling around £600 million in a full year.
This will provide scope to take action in the first budget of an independent Scotland to create a fairer and more successful country. The priorities of the current Scottish Government for that first budget will be to:
·  maintain a commitment to protecting free personal care, free prescriptions, free higher education tuition for Scottish students and free concessionary travel
·  abolish the "bedroom tax"
·  extend the period of the triple lock for uprating of state pensions
·  reduce energy bills by moving the cost of the Energy Company Obligation and Warm Home Discount Scheme to the Scottish Government
·  provide 600 hours of childcare to around half of two year olds, as part of a longer term plan to deliver a transformational expansion in childcare
·  equalise the earnings disregard between first and second earners for those already in receipt of Universal Credit
·  increase tax allowances, tax credits and benefits in line with inflation
·  meet international commitments to spend 0.7 per cent of Gross National Income on international aid
We expect these commitments to cost around £500-600 million per year in total to deliver.
Over the course of the first term of an independent Scottish Parliament, the Scottish Government proposes to work with Scotland's tax authority, Revenue Scotland, to simplify the tax system to reduce compliance costs, streamline reliefs and help to reduce tax avoidance, with a target revenue gain of £250 million per year by the end of the first term.
Alongside simplification, this Government plans for Revenue Scotland to deploy modern digital collection technologies to help ensure that all taxpayers pay their fair share of taxes, bearing down on the amount of revenues which are lost to error, avoidance and evasion.
Within our framework for robust and sustainable public finances, we propose to deliver the following measures to boost Scotland's competitiveness within the first term of an independent Scottish Parliament:
·  provide childcare for 30 hours per week for 38 weeks per year - equivalent to primary school hours - for every three and four year old and vulnerable two year old, as part of a longer-term commitment to provide this level of provision to all children from age one until they start school
·  cut Air Passenger Duty by 50 per cent, with a view to eventually abolishing it
·  provide a clear timetable for cutting corporation tax by up to three percentage points for businesses paying tax in Scotland
We will also examine an increase in the National Insurance Employment Allowance to help small businesses, and will commence negotiations to return Royal Mail in Scotland to public ownership.

53. The Deputy First Minister compared the commitments made in the White Paper Scotland's Future to those made in the 2010 Budget, which was published "about six weeks before the United Kingdom general election". He noted that the contents of that Budget were largely about what the then Government would do after the forthcoming election, which would require the Government to be re-elected for the Budget to be put into effect.

54. The Deputy First Minister went on to defend the tone of White Paper, pointing out that the document "is caveated to make it absolutely crystal clear what is material that would be incumbent on the election of a Government of a particular colour and makes it expressly clear that that is not a given outcome as a consequence of a "Yes" vote in the referendum in September".[79]

55. When asked if civil servants had expressed concerns to their ministers during its drafting, the Deputy First Minister told us that "the process of producing the White Paper was carefully considered by ministers in dialogue with civil servants and we received no concerns that we were in any way taking an approach that was beyond what was appropriate in the circumstances".[80]

56. Other issues during the referendum campaign also gave rise to accusations of breaches of impartiality by Scottish Government and UK Government civil servants. For example, former civil servant Andrew Inglis wrote to tell us about what he saw as breaches in impartially and neutrality in tweets by the Scotland Office, in particular, criticism of the Scottish Government and First Minister, and similarities with tweets by the Better Together campaign.[81]

57. Many of the ministers and senior civil servants from whom we heard were keen to emphasise the professionalism of civil servants working in Scotland and Westminster during the referendum process. Our witnesses highlighted the dedication and hard work of many officials in both the devolved administrations and the UK Government. We wish to pay tribute to all the civil servants involved for their contribution to the process of the referendum.

58. The contents of the Scottish Government White Paper, Scotland's Future, included a description of the SNP's proposed programme for government that was contingent upon their winning the 2016 Scottish Parliament elections. This did not uphold the factual standards expected of a UK Government White Paper and therefore raised questions about the use of public money for partisan purposes. Civil servants serving the Scottish Government are obliged to serve the objectives of their Government. We recognise that the exceptional circumstances of the Scottish referendum placed some civil servants in a challenging position, which would have been difficult for them to express publicly.

59. Parts of the White Paper should not have been included in a Government publication. Civil servants should always advise against the appearance of partisan bias in Government documents—and they should not be required to carry out ministers' wishes, if they are being asked to use public funds to promote the agenda of a political party, as was evident in this case. At the very least, Sir Peter Housden, Scotland's Permanent Secretary, should have required a letter of direction.

60. We recommend that the Civil Service Code should be revised to specifically refer to referendums and provide civil servants across the UK with clear and definitive guidance on their role in respect of referendum campaigns. We have provided a suggested amendment to the code in the Annex to this Report.

Impartiality and the publication of advice to ministers

61. Criticism has also been directed at the Civil Service in respect of its impartiality and objectivity. Sir Nicholas Macpherson, Permanent Secretary to the Treasury, gave a speech to the Mile End group in January 2014 that set out reflections on economic policy based on his personal experience and Treasury history. In this speech Sir Nicholas said:

[…] just as the Treasury has played a leading role in setting out the implications of Scotland leaving the free trade area that is the United Kingdom, so would I expect it to play a critical role in setting out the economic implications of the options of staying in or leaving the EU, should there be a referendum on our membership in the next Parliament.[82]

The Daily Mail reported that after the speech, MPs accused the Treasury of "attempting to scare the public in favour of a 'yes' vote".[83]

62. On 11 February 2014 Sir Nicholas wrote to the Chancellor of the Exchequer with advice on the possibility of a currency union with Scotland, should Scotland become independent.[84] In the letter Sir Nicholas wrote that a currency union with an independent Scotland would be "fraught with difficulty". On this advice, the Chancellor ruled out the First Minister's preferred option of a currency union between an independent Scotland and the rest of the UK.

63. In what Sir Nicholas himself described as "a highly unusual" decision the letter he wrote was made public.[85] As a consequence Sir Nicholas' impartiality was called into question. The then Cabinet Secretary for Finance, Constitution and Economy, John Swinney, for example, said Sir Nicholas had "crossed the line" of civil service neutrality in his advice.[86] He added that it was "perfectly permissible for civil servants to provide advice to ministers on all sorts of questions."[87] To enter a debate in the fashion that Sir Nicholas entered the debate, which was a partial entrance, I thought was entirely over the line."[88]

64. George Parker writing in the Financial Times questioned the wisdom of publishing the advice, stating:

65. The Rt Hon Peter Riddell, Director of the Institute for Government, published a statement on the publication of the letter:

66. In evidence to this inquiry, Michael Keating, Professor of Politics at the University of Aberdeen and Director of the Scottish Centre on Constitutional Change, said that it was "very unusual that ministers should now rely on the advice of a named civil servant as an argument, rather than taking Civil Service advice and then making their own argument on the basis of it".[91] He went on to say that might not be a "bad" precedent: "ministers are even more responsible, because we know what advice they have been given. If they have overridden what turns out to be good advice, they have to answer for it."[92] David Clegg of the Daily Record told us that:

67. However, Sir Bob Kerslake, Head of the Civil Service, defended the Permanent Secretary to the Treasury and told us that "I do not think it is the case that Nick crossed the line of neutrality, because he is there to give advice to the Government of the day".[94] Sir Bob also said that this example did "not constitute a change in rules or practice, and there have been precedents where Civil Service advice has been published in the past, but not very many".[95]

68. In evidence to this inquiry, Sir Nicholas cited 'reassuring the markets' in his explanation of the reasons for publishing the letter:

69. The circumstances of the Scottish referendum, where the very existence of the British state was at stake, were exceptional. However, the case presented in Sir Nicholas Macpherson's advice on a currency union with an independent Scotland could have been presented in other ways and just as powerfully. The only purpose was to use the impartial status of a Permanent Secretary to give authority to the advocacy of a political argument. There were other ways of 'reassuring the markets'. In any case, we do not accept that this was the primary reason for publishing this advice, because entering a currency union with an independent Scotland is a decision for government, not the Civil Service. The advice should not have been published. Its publication compromised the perceived impartiality of one of the UK's most senior civil servants.

70. It remains the view of this Committee that civil service advice should remain protected. The decision to publish will have unintended consequences for advice given to ministers on future major issues—including referendums.F

71. We recommend that guidance regarding the publication of Civil Service advice should be reiterated and if necessary revised to ensure that a civil servant's advice to a minister cannot be published in future, in order to protect the impartiality of the Civil Service in accordance with the Northcote-Trevelyan settlement.

72. The publication of this advice only occurred because it suited ministers' political objectives in respect of the Scottish referendum. The Government in response to this Report must make it clear that this will never recur.

26 Dicey, A. V. (2013 [1885]) The Law of the Constitution. Oxford University Press. Back

27 Public Administration Select Committee, Eighth Report of Session 2013-14, Truth to power: how Civil Service reform can succeed, HC 74 [incorporating HC 664-i-x, Session 2012-13], September 2013 Back

28 Civil Service Commission [SIR16] Back

29 As above Back

30 As above Back

31 Q 581 Back

32 As above Back

33 Q 6 Back

34 Hansard (2014) 3 April : Column 1112 Back

35 Head of the Civil Service [SIR13] Back

36 As above Back

37 Scottish Government, Future of the Civil Service written evidence, May 2013 Back