Conclusions and recommendations
Is the Civil Service still unified?
1. In practice the single unified Civil Service
has become something of a constitutional fiction, since civil
servants in Scotland are expected to serve the Scottish Government
in the same way as civil servants in Whitehall departments serve
the UK Government. However, the advantages that flow from having
a single Home Civil Service justify the retention of a single
UK Civil Service. (Paragraph 24)
White Paper: Scotland's Future
2. 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. (Paragraph 57)
3. 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. (Paragraph 58)
4. 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. (Paragraph 59)
5. 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. (Paragraph 60)
Impartiality and the publication of advice to ministers
6. 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. (Paragraph 69)
7. 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.
(Paragraph 70)
8. 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. (Paragraph 71)
9. 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. (Paragraph 72)
Revising the guidance
10. There is now an opportunity to strengthen
and clarify the Civil Service Code based on the culture and practice
of government since the advent of devolution, as highlighted by
the referendum, so that future referendums do not give rise to
the same uncertainty and controversy. (Paragraph 76)
11. The issues and concerns raised in the course
of this inquiry suggest the need for explicit guidance for officials,
to govern the conduct of the Civil Service during referendum campaigns.
Such guidance would draw upon existing guidance on conduct during
elections and the guidance drawn up for officials in advance of
the Scottish independence referendum. The resulting guidance must
be sufficiently generic to serve all foreseeable future referendums.
(Paragraph 77)
12. We recommend that the Civil Service Code
be revised by including 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 does not give
rise to the same uncertainty and controversy. (Paragraph 78)
The role of Special Advisers and campaigning in by-elections
13. A Special Adviser is a civil servant, who
is provided with specific and limited exemptions so that he/she
can support the work of their minister and their department with
political advice and in managing their minister's relationship
with their political party. We accept that (in the words of the
Cabinet Secretary) "The purpose of the political party activity
rules in the Code" (and, by implication, in the Model Contract
of Employment) "is therefore not to uphold political impartiality
but to ensure that official resources or public funds are not
used, or seen to be used, for party political purposes."
We agree "this is an important principle…" and
we agree "it is one which has been adhered to." We therefore
see no intrinsic objection to the notion that Special Advisers
should have a "strictly limited" role in political campaigning
which is "non-public, carried out very clearly in a Special
Adviser's own time, and with no use made of government resources
or facilities." However, we do not accept that this is compatible
with the Code of Conduct of Special Advisers, or the Model Contract,
which are currently in force. (Paragraph 84)
14. We accept Speaker's Counsel's advice that
to rely on the principles quoted above as the basis for interpretation
to permit telephone canvassing by Special Advisers represents
"too narrow an approach" that disregards the "general
prohibition on canvassing in Article 19" of the Code; and
that telephone canvassing by a Special Adviser represents "the
crossing of the Rubicon". (Paragraph 85)
15. We therefore conclude that any direction
to a Special Adviser to conduct telephone canvassing was misguided,
and that advice that such a direction or such canvassing was permitted
under their Code and contract of employment was wrong in law.
We also find it unacceptable for ministers and civil servants
as employers of Special Advisers to be complicit in such directions
or permissions, while refusing to provide any written assurances
to Special Advisers that they would not be in breach of Article
19 of their Code or of their contracts of employment by complying
with such directions or permissions. We cannot understand why
the Special Advisers' Code was not altered to reflect the wishes
of Ministers and officials, rather than insisting on a reinterpretation
that was at variance with the text. (Paragraph 86)
16. We recommend that Special Advisers should
never again be confronted with directions or informal pressure
that puts them in breach of the Code and of their contracts of
employment. To forestall a reoccurrence of this situation, interpretations
of the Code should be issued in writing and subject to the Law
Officers' advice. We also recommend that either: the Special Advisers'
Code and employment contracts should be amended to reflect what
ministers and the Cabinet Secretary would prefer them to mean
in respect of telephone canvassing, or it should be made clear
that Special Advisers must comply with their Code and contracts
of employment as they are written. (Paragraph 87)
17. We are not concerned to blame any particular
individual or individuals for what occurred, since ministers appear
to have sought advice and the advice given by officials appeared
to give what they believed to be the best advice under the circumstances,
and which may have reflected past practice. We are concerned however
that there should be proper reflection in order to understand
what attitudes and expectations allowed this situation to develop.
(Paragraph 88)
18. We therefore recommend that the Cabinet Secretary
convenes a meeting of relevant officials, including appropriate
legal advice, and an independent-minded Special Adviser, to reflect
upon how the situation arose, without seeking to find blame, to
review the impact of what happened and to learn how the attitudes
and expectations which contributed to these events should be changed.
We would request the findings of this reflection and review to
be included in the Government's response to this Report. (Paragraph
89)
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