136.While collective responsibility was suspended on the question of the UK’s continued EU membership the Government’s official position during the referendum campaign was in favour of the UK remaining within a reformed European Union, under the terms of renegotiation agreed at a meeting of the European Council on the 18 and 19 February 2016.
137.Both prior to, and during the referendum campaign, the role of the machinery of government would be the subject of controversy. Indeed, the Government suffered its first defeat in the House of Commons, following the 2015 General Election, over proposals to modify purdah rules for the purposes of the EU referendum. As this chapter details, concerns were also raised about the advice given to Civil Servants on the support they could provide Ministers dissenting from the Government’s position on EU membership, the publications issued by the Government during the referendum campaign, as well as the Government’s prohibition on contingency planning.
138.On 23 March 2015, our predecessor Committee, PASC, published its report entitled Lessons for Civil Service impartiality from the Scottish independence referendum. Based on the experience of that referendum, PASC identified that the experience of the Scottish independence provided an “opportunity to strengthen and clarify the Civil Service Code … so that future referendums do not give rise to the same uncertainty and controversy”. In particular, the Committee recommended that explicit guidance should be provided for officials, to govern the conduct of the Civil Service during referendum campaigns. PASC recommended that such guidance should draw upon “existing guidance on conduct during elections and the guidance drawn up for officials in advance of the Scottish independence referendum”. The Committee concluded that the resulting guidance should be sufficiently generic to serve all foreseeable future referendums.
139.Furthermore, PASC recommended that the Civil Service Code be revised to include a 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 to ensure that that any future referendum does not give rise to the same uncertainty and controversy. The new paragraph would read as follows:
The obligations in this Code apply to your conduct towards a referendum, and towards any possible answer to a referendum question, in general, and in respect of any political party, belief or persuasion. In particular, you are to have regard to any special restrictions upon Ministers, or your organisation, which may apply during all or part of a referendum period (as defined in the Political Parties, Elections and referendums Act 2000), concerning the release of information or material, or otherwise.
140.However, in its response to the report, the Government disagreed with the Committee’s recommendation for a change to the Civil Service Code. It noted that the Code is “a short, high level statement setting out the core values and standards of behaviour expected of all civil servants. The nature of the Code enables it to adapt flexibly to a wide range of circumstances including referendums”. It concluded that it was satisfied that the “existing arrangements to raise awareness and support civil servants in understanding and abiding by the core principles and standards of conduct during a referendum campaign are sufficient”. The Government stated clearly, that while it was “committed to issuing guidance to civil servants nearer the time on their conduct during referendum campaigns”, it did not “believe there is a need to insert a specific new paragraph on referendums into the Civil Service Code”.
141.During the run-up to the EU referendum, there were many occasions when it appeared to many that civil servants were being drawn into referendum controversy. This damaged the reputations of the Civil and Diplomatic Services for impartiality. It is a matter of some regret to this Committee that the Government did not accept the recommendation of our predecessor Committee, PASC, in relation to the provision of a new paragraph in the Civil Service Code, which would have served to clarify the role and conduct of civil servants during a referendum campaign. This proportionate and sensible step, would have served to promote clarity and a clear understanding of the role for civil servants at the very outset of the EU Referendum campaign, thereby avoiding some of the controversies which arose during that campaign.
142.Though the Government’s official position was in favour of the UK remaining within the European Union, the then Prime Minister, as in 1975, agreed to suspend collective responsibility in relation to the referendum question. On 11 January 2016, the Rt Hon David Cameron MP announced, in a letter to ministerial colleagues, that there would be a “special arrangement to permit individual Ministers to take a different personal position from the official position of the Government”. This agreement to differ only applied to the question of the UK’s continued EU membership, with “all other EU or EU-related business, including negotiations in or with all EU institutions and other Member States, and debates and votes in Parliament here on EU business will continue to be subject to the normal rules of collective responsibility and party discipline”. Again as with 1975, this also meant that when speaking from the Front Bench, Ministers (including those differing from the Government’s position on EU membership) would be expected to support official government policy.
143.Importantly, the Prime Minister’s letter made clear that as the Civil Service is duty bound to serve the government of the day, it would “not be appropriate or permissible for the Civil Service or individual civil servants to support Ministers who oppose the Government’s official position by providing briefings or speech material on this matter”.
144.On 23 February, the Cabinet Secretary, Sir Jeremy Heywood, issued guidance to Civil Servants and Special Advisers on their conduct during the referendum and the support they could provide to Ministers during the campaign. This guidance reiterated the key principle that the Civil Service supports the Government of the day in developing and implementing its policies, which included “supporting the Government to make the case for the UK to remain in a reformed EU”.
145.According to Sir Jeremy Heywood, Departments should continue to provide support “in the normal way” to Ministers operating in their ministerial capacity. However, the guidance stated that it would not “be appropriate or permissible for the Civil Service to support Ministers who oppose the Government’s official position by providing briefing or speech material on this matter”. This included access to official departmental papers, with the exception of papers that Ministers have previously seen on issues relating to the referendum question prior to the suspension of collective agreement.
146.This guidance was supplemented by a ‘Q&A’ note, which provided further detail on the Ministerial support and access to papers:
Q: Can dissenting Ministers see departmental papers/information relating to the EU referendum? What kind of factual advice can they have?
A: Ministers can see papers that they have already seen prior to the suspension of collective responsibility. The same rules apply to their special advisers. They can ask officials to verify the factual accuracy of speeches etc., but not ask them to provide new arguments or suggest new facts.
Q: Can dissenting Ministers see departmental papers on matters that aren’t directly about the Referendum, but may have a bearing?
A: They can see or commission any papers produced by their departments in the normal way except those that have a bearing on the referendum question or are intended to be used in support of their position on the referendum.
The ‘Q&A’ also made clear that should No.10 ask for material from a Department headed by a dissenting Secretary of State, then said material should be provided to the Prime Minister.
147.This guidance raised concerns that Cabinet Ministers campaigning for a Leave vote would either be by-passed, or even banned from using, the Civil Service. One particular line of concern was that Sir Jeremy Heywood’s guidance would conflict with the responsibilities laid out for ministers in the ministerial code and with the Carltona principle which outlines that officials in a department work “under the authority of ministers”.
148.During an evidence session with PACAC on 1 March 2016, Sir Jeremy Heywood defended the guidance issued to civil servants. According to Sir Jeremy Heywood, the guidance had been based “very closely” on the 1975 precedent and on the guidance issued to Civil Servants during the Scottish independence referendum, suggesting that the guidance had been misunderstood. Sir Jeremy Heywood claimed that the area where the Civil Service would not be providing support to pro-Leave Ministers was “very specific [ … ] that area is the provision of briefing material and speech material”. That, Sir Jeremy Heywood argued, would be the material denied to Ministers dissenting from the Government’s official position, “for all the material that they need to answer parliamentary questions and to handle European business that is not related to the question-normal European business-we will of course continue to provide the usual limousine service”.
149.There nonetheless remained some uncertainty as to whether the reference in the guidance to preventing access “to official departmental papers, excepting papers that Ministers have previously seen on issues relating to the referendum question prior to the suspension of collective agreement”, constituted a more restrictive level of support to pro-Leave ministers than Sir Jeremy Heywood’s evidence implied.
150.On 8 March, Bernard Jenkin MP, Chair of PACAC wrote to Sir Jeremy Heywood, calling for the guidance and the Q&A to be withdrawn and fresh guidance provided, as a means of removing any lingering ambiguity and uncertainty. The letter was based on legal advice from the then Speakers Counsel, which stated that the guidance was “at the very least … ambiguous” as to which papers Ministers who intended to campaign for Leave would be able to see. The full text of this advice is attached in Annex 4 to this report.
151.On 1 April 2016, the Chair of the Liaison Committee, the Rt Hon Andrew Tyrie MP, wrote to the Prime Minister raising concerns that the guidance could result in the “unacceptable situation whereby Secretaries of State were unable to fulfil their duties under the Ministerial Code, their statutory responsibilities set down in legislation, and their constitutional responsibilities to Parliament to account for the work of their Departments”. Noting that the ministerial code recognises that ministers can delegate authority to their officials, Mr Tyrie claimed that the guidance appeared to delegate the Minister’s authority, “without their consent, to unaccountable and unelected civil servants. Civil servants will decide what a minister may or may not see”.
152.In their responses to Mr Jenkin and Mr Tyrie, the Cabinet Secretary and the then Prime Minister both defended the existing guidance. Sir Jeremy Heywood, for example, refused to accept that the guidance “could be read to imply that briefing or documentation relating to issues outside of ‘the question of whether the UK should remain in a reformed EU-or-leave’ should be withheld” and was confident that the guidance did not raise any confusion as to its intent. The Prime Minister, in his letter to Mr Tyrie, stressed that ministers would continue to “have access to all information necessary in order to fulfil their official duties as a Minister” and claimed that the Government was “not aware of any difficulties caused by the current guidance and would not expect it to interfere with any Minister’s statutory or constitutional responsibilities”.
153.Following this exchange of correspondence, Mr Tyrie reiterated his concern that the guidance undermines the authority of Secretaries of State and their responsibility for all of the business of their departments, “until such time as another minister is allocated the specific responsibility at issue”. According to Mr Tyrie, the guidance instead “attempts to delegate this authority, without the minister’s consent, to unaccountable and unelected civil servants”.
154.Overall, Mr Tyrie considered the regime established by the guidance to be “an unsatisfactory arrangement and could turn out to be unsustainable”. Nonetheless, he did suggest that it “could command somewhat more confidence with a simple change”, namely a commitment “to publish a list of the official departmental papers which will not be made available to pro-Brexit ministers” (or, in the event that confidential material is involved, to provide such a list privately to Mr Tyrie in his capacity as Liaison Committee Chair).
155.Relaxing Cabinet collective responsibility on the question of the UK’s EU membership was a sensible decision. However, the Cabinet Secretary’s guidance to Civil Servants on their conduct during the referendum, was ambiguous and caused unnecessary uncertainty as to the support civil servants could provide to Ministers supporting a Leave vote. We recommend that, in the event of a future referendum where Cabinet collective responsibility is relaxed, any guidance should be more precise as to the support that civil servants should not provide to dissenting Ministers, including a list of official departmental papers that would not be made available to those Ministers. All Ministers should continue to receive factual information in relation to the work and remit of their departments.
156.In the months leading up to the referendum, the Government published a range of different documents relating to aspects of the UK’s membership of the European Union, including alternative models of relationships with the EU and Treasury analysis of the immediate impact of withdrawal from the UK and the long term impact of the UK’s membership of the EU and the alternatives. These reports, particularly those from the Treasury, and the Government’s decision to spend £9.3m on a leaflet advocating a Remain vote, sent to households across the United Kingdom in the run-up to the referendum, were the subject of some controversy during the referendum.
157.In their written evidence, the UK in a Changing Europe project suggested that while these documents were clearly not “neutral”, the quality of the analysis in these documents was similar to most government documents produced to support policy. In particular, the Treasury documents “used standard, accepted methodologies and produced results that were qualitatively similar to those produced by respected independent economists”.
158.However, they suggested that while the analysis in these documents was “couched in relatively sober terms, the public presentation by the Remain campaign, including by serving Ministers, was not”. For example, while the Treasury analysis contained a number of scenarios for the potential economic impact of a Leave vote (forecasts which incorporated the large amount of uncertainty as to which scenario (if any) will materialise), “the Chancellor and others made a number of statements that “Britain would be poorer by £4,300 per household”, a level of certainty that was not justified by the underlying analysis”. Furthermore, the UK in a Changing Europe’s evidence suggests that there was one case where “the Treasury clearly overstepped the bounds of normal practice”:
When the report on the short-term impacts of Brexit was published, just a month before the referendum, the front page of the Treasury website had a banner headline reading “UK economy would fall into RECESSION if Britain leaves the EU” This both misrepresented the analysis and was very obviously partisan in the context of the campaign.
This was, they argue, “entirely improper on any possible reading of the Civil Service Code”, with the UK in a Changing Europe project expressing disappointment that “senior Treasury civil servants, including the Permanent Secretary, allowed it to happen”. Such an incident, they suggest, was “deeply corrosive of impartiality–both actual and perceived–and should not be allowed to recur”.
159.During his appearance before the Committee, Dr Alan Renwick also criticised the Government, suggesting that the documents that were published by the Government “particularly by the Treasury, should not have been published”. According to Dr Renwick, these documents “contained claims that were clearly not justifiable” and even if they had only contained justifiable claims, “the fact that they were being made by the Government and, particularly, where money was being spent on sending that pamphlet out to all households, I think was inappropriate”.
160.The importance of the distinction between public information and campaign material is highlighted by the Government’s Command Paper, ‘The Process of Withdrawing for the European Union’. Paragraph 2.5 of that document states:
The complexity of the negotiations, and the need for the UK to negotiate adequate access to the Single Market after it leaves the EU, would make it difficult to complete a successful negotiation before the two year deadline expired. Any extension to the two year period set out in the Treaty would require the agreement of all 27 remaining EU Member States.
However, the Government’s White Paper, “The United Kingdom’s exit from and new partnership with the European Union”, published in February 2017, sets out a different position. This raises the question of whether the 2016 White Paper could be classified as campaigning material rather than an objective publication, and whether civil services resources should be used to produce such material.
161.The Government was legally obliged to publish reports on aspects of the UK’s membership of the EU. However, the presentation of these reports, particularly those from the Treasury, and the decision to spend £9.3m on sending a leaflet, advocating a Remain vote, to all UK households, were inappropriate and counterproductive for the Government. These incidents strengthen the case for the purdah provisions of section 125 to be extended to the full length of a referendum campaign.
162.In 1975, Whitehall prepared for a possible UK exit from the ‘Common Market’ with a “fairly intensive” programme of Cabinet Office led contingency planning. The contingency planning focused on the length of time required for withdrawal to be negotiated, the financial consequences of leaving and issues such as subsidy payments to farmers, tariffs and future trading arrangements with Europe.
163.However, unlike in 1975, the Government’s official position during the 2016 EU referendum was that there would be no contingency planning, the only exception being planning within the Treasury to anticipate the likely impact of a Leave vote on the UK’s financial stability.
164.The Government’s refusal to undertake contingency planning has been the subject of criticism, both before and after the referendum. In April 2016, the Foreign Affairs Committee’s report Implications of the referendum on EU membership for the UK’s role in the world bemoaned the “regrettable” lack of contingency planning by the Government. Their post-referendum report, Equipping the Government for Brexit was particularly critical of the Government’s approach to contingency planning.
165.According to the Committee, “the previous Government’s confidence that basic planning for the practicalities of implementing Brexit could be undertaken at a leisurely pace after the vote now appears at best naïve and at worst negligent”. Noting the scale of the challenge posed by a withdrawal from the EU, the Committee went to on to contend that “the absence of any planning both for the key challenges and opportunities that the UK will now face and for the structures that will need to be put in place to manage them constitutes a major setback for the new government”.
166.However, in his evidence to our inquiry, the Cabinet Secretary, Sir Jeremy Heywood, claimed that the discussion regarding contingency planning had “become a very odd debate”. In addition to the work that had been undertaken between the Treasury and the Bank of England, Sir Jeremy Heywood pointed to “the extensive work” that had been undertaken, at Parliament’s behest (as a result of the European Union Referendum Act 2015), on documents covering “alternatives to the European Union’s membership, an outline of the deal, something on the rights and obligations, and so on”.
167.According to Sir Jeremy Heywood, the work undertaken on these documents was, and remains, “extremely valuable” to the Civil Service:
Obviously there is no particular model that the Prime Minister is looking to adopt. We want a British model, not a pre-existing model that does not work for us. Obviously getting our heads around EA membership, WTO membership, all the different sorts of trading agreements that other countries have managed to negotiate, was really valuable work. It required a lot of work by the Civil Service. Some of that was captured in the documents that we produced, but all of that background work and the economic analysis the Treasury did around it is valuable work for us now.
168.Furthermore, Sir Jeremy Heywood claimed that during the final 28 days of the referendum, the Civil Service looked “at what was being said by people advocating Leave and try to understand what were the issues-the policy issues-that were likely to immediately arise on 24 June in that case”. Indeed, he revealed that the Civil Service held an away day “to discuss the sorts of issues we would have to confront on 24 June”, including what organisational changes would be required. This away day was held without the Prime Minister’s knowledge, while Sir Jeremy Heywood denied that the preparatory work, listed above, was contingency planning on the grounds that “there was no plan”.
169.One question that arose during the course of our inquiry was whether there should have been contact, during the last few months of the referendum campaign, between the two designated campaigns and the Civil Service, along the lines of the pre-General Election contact between civil servants and opposition parties. Vote Leave’s Matthew Elliott said that this would have been a practical proposal, suggesting that had the Civil Service contacted Vote Leave to discuss their proposals for leaving the EU, they would have “been very happy to give any briefing to any government department they wanted”.
170.While Dr Simon Usherwood saw some merit in the suggestion of pre-referendum contact between campaigners and the civil service, he suggested that one problem with that proposal is that a referendum is not an election “and so there will not necessarily be a change of personnel in the event that that non-government campaign wins”. This raises the question of whether a winning, non-government campaign will “be in a position to then require or oblige the Government [ … ] to follow that advice [provided by the winning campaign to the civil service]”. Dr Renwick agreed, arguing that as Vote Leave was not going to form a government, the status of any briefing or advice to civil servants would be different from that provided by opposition parties before a General Election. Nonetheless, he felt that the campaigns “should have done as much as possible to clarify what they wanted to happen” in the event of their preferred outcome being successfully.
171.Sir Jeremy Heywood also expressed caution at this suggestion, on the grounds that the comparison between General Elections and referendums was “not a precise analogy”. While Sir Jeremy Heywood said that the civil service looked at the outputs of the Leave campaign, for example, the Leave ‘roadmap’ produced by Vote Leave on 15 June, he stressed the differences between a referendum campaign and a General Election:
You need to know you are talking to. A political party has a leader, has a manifesto, and has a clear set of promises. Then you have a campaign that has many different strands. We could have put our eggs in that particular basked and ended up doing a whole pile of work on something that turned out to be completely irrelevant.
Indeed, Sir Jeremy Heywood commented that in the case of the points outlined in the roadmap issued by Vote Leave, “very little of that has come to pass”.
172.While the Government did not support a Leave vote, they nonetheless had a constitutional and public obligation to prepare for both outcomes from the referendum. In 1975, Whitehall undertook contingency planning for a possible vote in favour of withdrawal from the European Communities and there was no adequate reason for a refusal to prepare for either eventuality in 2016. Though we were relieved to learn that work was undertaken within the Civil Service on the potential implications of a Leave vote, Civil Servants should never have been asked to operate in a climate where contingency planning was formally proscribed by the Government. Such preparation would negate the need for the Prime Minister to resign. The UK Government failed to learn the lessons from the Scottish referendum in this respect.
173.We recommend that in the event of future referendums civil servants should be tasked with preparing for both possible outcomes. While we recognise the important distinctions between General Elections and referendums, these preparations should include pre-referendum contact between the two designated campaigns and the Civil Service, along the lines of pre-General Election contact between opposition parties and the Civil Service. It should be reasonable to presume that the sitting Prime Minister and his/her administration will continue in office and take responsibility for the referendum result in either eventuality.
183 European Council, European Council meeting (18 and 19 February) - Conclusions: The United Kingdom and the European Union, EUCO 1/16, 19 February 2016.
184 House of Commons Public Administration Select Committee, Lessons for Civil Service impartiality from the Scottish independence referendum, Fifth Report of Session 2014–15, HC 111, 23 March 2015.
185 House of Commons Public Administration Select Committee, Lessons for Civil Service impartiality from the Scottish independence referendum, Fifth Report of Session 2014–15, HC 111, 23 March 2015,
186 House of Commons Public Administration Select Committee, Lessons for Civil Service impartiality from the Scottish independence referendum, Fifth Report of Session 2014–15, HC 111, 23 March 2015, para.77.
187 House of Commons Public Administration Select Committee, Lessons for Civil Service impartiality from the Scottish independence referendum, Fifth Report of Session 2014–15, HC 111, 23 March 2015, para.78.
188 Public Administration and Constitutional Affairs Committee, Second Special Report of Session 2015–16, , HC 725, 12 January 2016.
189 Public Administration and Constitutional Affairs Committee, Second Special Report of Session 2015–16, , HC 725, 12 January 2016.
190 HM Government, , 11 January 2016.
191 HM Government, , 11 January 2016.
192 HM Government, , 23 February 2016.
193 HM Government, , 23 February 2016.
194 HM Government, , 23 February 2016.
196 This is the principle that permits civil servants to act as the Secretary of State. The principle was recognised by the courts in Carltona v Commissioner of Works  2 All ER 560.
197 Public Administration and Constitutional Affairs Committee, , HC 792, Tuesday 1 March 2016, Qq3–4.
198 Public Administration and Constitutional Affairs Committee, , HC 792, Tuesday 1 March 2016, Q4.
199 Public Administration and Constitutional Affairs Committee, , HC 792, Tuesday 1 March 2016, Q4.
200 , 8 March 2016.
201 , 1 April 2016.
202 , 1 April 2016.
203 , 14 March 2016.
204 , 12 April 2016.
205 House of Commons Liaison Committee, , 4 May 2016.
206 House of Commons Liaison Committee, , 4 May 2016.
207 House of Commons Liaison Committee, , 4 May 2016.
208 HM Government, The process for withdrawing from the European Union, Cm 9216, February 2016; HM Government, The best of both worlds: the United Kingdom’s special status in a reformed European Union, February 2016; HM Government, Alternatives to membership: possible models for the United Kingdom outside the European Union, March 2016; HM Government, Rights and obligations and European Union membership, April 2016; HM Government, HM Treasury analysis: the long-term economic impact of EU membership and the alternatives, Cm 9250, April 2016; HM Government, HM Treasury analysis: the immediate economic impact of leaving the EU, Cm 9292, May 2016.
209 HM Government, Why the Government believes that voting to remain in the European Union is the best decision for the UK, 6 April 2016; White, I. and N. Johnston, The Government leaflet on the EU Referendum, House of Commons Library Briefing Paper, No.7579, 4 May 2016, pp.5–8.
210 The UK in a Changing Europe ().
211 The UK in a Changing Europe ().
212 The UK in a Changing Europe ().
213 The UK in a Changing Europe ().
214 The UK in a Changing Europe ().
215 The UK in a Changing Europe ().
218 FCO, The process for withdrawing from the European Union, Cm 9216, February 2016, para 2.5.
219 HMG. , Cm 9417, February 2017.
220 For records of the contingency planning undertaken in 1975, see the following collections at The National Archives: T 355/273; T 355/274; T 355/275; BT 241/2752; BT 241/2753.
221 Mance, H. , The Financial Times, 8 April 2016.
222 House of Commons Treasury Committee, The economic and financial costs and benefits of the UK’s EU membership, First Report of Session 2016–17, HC 122, 27 May 2016, para.89.
223 House of Commons Foreign Affairs Committee, Implications of the referendum on EU membership for the UK’s role in the world, Fifth Report of Session 2015–16, HC 545, 26 April 2016, para. 33.
233 Gay, O. , House of Commons Library Standard Note, SN/PC/03318, 22 May 2014.
239 Vote Leave, A framework for taking back control and establishing a new UK-EU deal after 23 June, 15 June 2016; .
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