Lessons Learned from the EU Referendum Contents

Annex 4: Issues raised by the Cabinet Secretary’s guidance of 23 February

The Clerk to the Public Administration and Constitutional Affairs Committee, 29 February 2016

1. In his letter of 23 February 2016 the Secretary to the Cabinet and Head of the Civil Service has issued guidance to civil servants and special advisers about their conduct during the EU referendum. This follows a letter of 11 January from the Prime Minister to his Ministerial colleagues on the matter.

2. In issuing the guidance, the Cabinet Secretary acts on behalf of the Prime Minister. The Prime Minister, as Minister for the Civil Service, is entitled to give instructions as to the conduct and running of the civil service. In so doing, the Prime Minister is not exercising any prerogative power exclusive to the Crown, but is in effect exercising a common law power of an employer to give directions as to how work should be done by employees (in this case Crown servants). Although it is the duty of the civil servant to give impartial advice to Ministers, the civil servant is not neutral on a question which the Government has decided. In such a case, it is the duty of the civil servant to assist, and not obstruct, the Government’s policy (so far, of course, as this remains lawful.

3. In this context, the guidance letter of 23 February largely sets out the orthodox position: as the Government has reached a view on whether the UK should remain a member of the European Union, the Prime Minister (as the Minister for the Civil Service) is entitled to remind civil servants of their duty under the Civil Service Code (provided for under s.5 Constitutional Reform and Governance Act 2010) to support the duly-elected government of the day.

4. As the letter explains, a ‘wholly exceptional arrangement’ has been made by which individual Ministers are permitted to take a different personal position on the issue of the EU Referendum (whilst remaining Members of the Government). The arrangement is to apply only to the question of whether the UK should remain within the EU or leave, and the letter (at least) makes clear that all other EU or EU-related business, including negotiations in or with EU institutions or the Member States, and debates and votes in Parliament on EU business ‘will continue to be subject to the normal rules of collective responsibility,’241 and that this is also to apply ‘to policy discussions within Government’. Indeed, the letter emphasises that ‘the existing machinery of government for making policy on EU business will continue to function in the normal way’.

Access to papers and information

5. From this it might reasonably be assumed that a Minister who takes a different position from that of the Government on the question to be submitted to a referendum will continue to receive papers and briefing from the Civil Service on all questions relating to the normal run of EU or EU related business. This would be an aspect of the normal functioning of the machinery of government for making policy on EU business.

6. That something different is intended is apparent from the succeeding two paragraphs of the letter. The first of these deals with access to official papers:

“As set out in the Prime Minister’s letter it will not be appropriate or permissible for the Civil Service to support Ministers who oppose the Government’s position by providing briefing or speech material on this matter. This includes access to official departmental papers, excepting papers that Ministers have previously seen on issues relating to the referendum question prior to suspension of collective agreement. These rules will also apply to their special advisers.”

7. The second paragraph deals with handling requests from dissenting Ministers for facts to be checked, as follows:

“In line with usual practice, Departments may check facts for such Ministers on request. And civil servants should continue to support such Ministers in undertaking all official government business in the usual way.”

8. Quite how differently dissenting Ministers are to be treated is not clear, since the drafting is at best ambiguous. In particular, it is not clear what is meant by the reference to ‘this matter’. Since the ‘wholly exceptional arrangement’ applies only to the referendum question (all other EU business being dealt with normally) one might again reasonably assume that ‘this matter’ is confined to the referendum question. On the other hand, there appears to be a general prohibition on 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’. The necessary implication of this is that subsequent papers which ‘relate’ to the referendum question are to be withheld. The letter does not give any assistance on how to deal with papers which ‘relate’ to the referendum question, but which nevertheless concern normal EU or EU related business and where, it is said, the existing machinery of government for making policy on EU business is to continue to function in the normal way.

9. The Q &A briefing attached to the Cabinet Secretary’s letter does not define what is meant by papers which ‘relate’ to the referendum but appears to suggest an even more restrictive approach to the supply of information and papers to dissenting Ministers. In reply to the questions “can dissenting Ministers see departmental papers/information relating to the EU referendum?” and “what kind of factual advice can they have?” it is said in reply that such Ministers (and their special advisers) may see papers they have already seen prior to the suspension of collective responsibility, and may ask officials “to verify the factual accuracy of speeches etc.” but may not ask them “to provide new arguments or suggest new facts”. As with the Cabinet Secretary’s letter, the necessary implication is that dissenting Ministers may not be shown papers ‘relating’ to the EU referendum. It is not clear from the Q&A briefing how a civil servant is to verify the factual accuracy of a speech if some ‘new facts’ have rendered the speech inaccurate.

10. In reply to the question “can dissenting Ministers see departmental papers on matters that aren’t directly about the Referendum, but may have a bearing?” it is said that such Ministers “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.” From this, it appears that dissenting Ministers may not see papers which ‘have a bearing’ on the referendum question. In the context it appears that ‘have a bearing’ may cover a wider class than papers ‘relating to’. At the very least the matter is ambiguous: no doubt the guidance is not to be interpreted as if it were statute, but the question arises of why the words ‘have a bearing on’ have been introduced in place of ‘relating to’ if no difference were intended. Secondly, it is not clear how the civil servant is to establish whether papers are ‘intended’ to be used in support of the dissenting Minister’s position. As a matter of drafting (although it is possible this was not intended) a paper which is intended to be so used need not be one which has a ‘bearing’ on the referendum question, so the restriction could conceivable apply to any paper dealing with an EU matter.242

11. It may fairly be concluded that the letter, taken with the Q&A briefing, has the effect that a dissenting Minister will not continue to receive papers and briefing from the Civil Service on all questions relating to the normal run of EU or EU related business. The normal functioning of the machinery of government for making policy on EU business is to be qualified by denying access by dissenting Ministers to Departmental papers except;

12. As far as concerns the Civil Service, it may verify the factual accuracy of speeches etc. However, the civil service may not provide new arguments or suggest new facts (seemingly, even where the ‘new facts’ point up factual inaccuracies in such speeches).

The obligation of civil servants to follow the instructions of the Cabinet Secretary

13. The instructions must be assumed by the Civil Service to have been given by and with the authority of the Prime Minister as Minister for the Civil Service. For so long as those instructions are lawful and reasonable, a civil servant is be bound to comply with them as would any employee be bound to follow the lawful and reasonable instructions of his employer. It is quite possible, nonetheless, that the observance of the instructions could bring the civil servant into conflict with the Minister responsible for his Department. No doubt, arrangements will be made within Departments to address such conflicts, but in an extreme case the civil servant would be entitled to raise his or her concerns with the Civil Service Commission if it is though that compliance with the instructions would breach the principles of the Civil Service Code and the civil servant does not consider he has received a reasonable response to his concerns when they have been raise within the Department.

14. Whilst the duty of the civil servant is to serve the duly elected government of the day (rather than a particular Minister) it is possible to conceive of situations where the duties of honesty and objectivity under the Code could conflict with the instructions. The duty of honesty requires the civil servant to “set out the facts and relevant issues truthfully, and correct any errors as soon as possible”. In addition, the civil servant “must not ignore inconvenient facts or relevant considerations when providing advice or making decisions”. The duty of objectivity requires the civil servant to “provide information and advice, including advice to ministers, on the basis of the evidence, and accurately present the options and facts”. It is obvious that if certain facts are deliberately withheld, then the duties of honesty and objectivity would be put in issue.

15. It might be said against this that the duties under the Code must prevail in any case where the Minister is called on to take a decision as part of the normal Departmental business. One would wish for more confidence in such a case that the relevant papers and facts would neither ‘relate’ to the referendum question, nor have a ‘bearing’ on it, but would only relate to the decision in hand and therefore be outside the scope of the prohibition. In the absence of any examples in the Cabinet Secretary’s letter or the Q&A briefing, it is difficult to see how this will be worked out in practice.

Accountability and legal responsibility of Ministers

14. It is commonplace that a Minister will be both accountable to Parliament, and amenable to judicial review and other forms of legal challenge, in respect of decisions he may not have taken personally, but which have been taken by civil servants within his Department. The well-known ‘Carltona’ doctrine (from the leading case of Carltona Ltd v. Commissioners of Works [1943] 2 All ER 560) recognises that decisions may be taken by civil servants as the alter ego of the Minister, but this is because the Minister remains accountable to Parliament for such a decision.

15. In the event of proceedings in Parliament, the responsible Minister will need to be informed by his civil servants of all the facts on which a decision has been taken in his behalf. In my view, a civil servant cannot properly be instructed to deny such information to the responsible Minister where it is needed for the purposes of assisting that Minister to discharge his responsibilities to the House.

16. As far as legal responsibility is concerned, it is normally not necessary for the Minister to bring his own mind to bear upon a matter entrusted to him, but may act through a duly authorised officer. If the person taking the decision on behalf of the Minister is in possession of the relevant facts, that would be a sufficient answer to a challenge based on grounds of Wednesbury unreasonableness (in this case, that the Minister failed to take into account a relevant fact).

17. There is an exception to this general principle where the Minister is required by statute to act personally. In such a case, the relevant Minister’s decision is vulnerable to judicial review if it has been taken in the Minister’s personal ignorance of a relevant fact. One would hope that the instructions recently issued would not be interpreted as preventing full disclosure to the Minister of all the relevant facts in such a case, not least because they would not ‘relate’ to the referendum question, but to the matter in hand. Moreover, the civil servant has a duty under the Code to comply with the law and uphold the administration of justice. An instruction not to do so would be unlawful.

Michael Carpenter, Speaker’s Counsel

241 The letter also refers to ‘party discipline’, which (I would have thought) was not the concern of the Head of the Civil Service in writing to his colleagues.

242 It is also not clear whether the intention here is to exclude access to papers the Minister has already seen prior to the suspension of collective responsibility.

11 April 2017