EU Referendum: Civil Service Guidance

Bernard Jenkin Excerpts

Monday 29th February 2016 Commons Chamber

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

(Urgent Question): To ask the Prime Minister if he will make a statement about the instructions issued by the Cabinet Secretary to permanent secretaries in respect of EU referendum guidance for the civil service and special advisers.

[The Minister for the Cabinet Office and Paymaster General (Matthew Hancock)]

The referendum on 23 June on the European Union represents the biggest constitutional decision for the nation in a generation. The Government’s position is clear: Britain will be stronger, safer and better off remaining in a reformed European Union. Today’s Government document setting out the process of leaving underlines that case, showing that a vote to leave could lead to up to a decade or more of damaging uncertainty, with real consequences putting jobs and investment at risk. I concur with that assessment.

Because of the significance of the referendum, as the House knows the Prime Minister took the decision to allow collective responsibility to be suspended on the referendum question. This approach was discussed and agreed by the Cabinet on 20 February. The process is clear: Ministers may depart from the Government position in a personal capacity on the specific question of the referendum. On all other matters, including on other EU business, the Government will operate as normal, and in all things the civil servants support the Government position.

Guidance on how this will work in practice was set out and published by the Cabinet Secretary last week. The guidance is clear. Other than on the specific question of the referendum, all Ministers can commission and see all documents, as normal. On the question of the referendum—and on this question alone—Ministers who disagree with the Government position naturally cannot commission policy work on the in/out question or see documents setting out details of the case to remain. All Ministers can ask for factual briefing, and for facts to be checked in any matter. All Ministers can see documents on EU issues not related to the referendum question, as normal.

The guidance is clear and has been published. The process was agreed at Cabinet as the best way to manage the unusual situation of Ministers who disagree with the Government remaining in post. I hope that this clarity will allow Members on both sides of the House to focus on the main debate about whether Britain will be better served by leaving or remaining in a reformed European Union and then let the people decide.

[Mr Jenkin]

Clarity on this issue is one thing that we do not have. Nobody objects to the Government making their case in the referendum, but most people expect the civil service to be impartial in carrying out its support for Ministers. It is established in law that Ministers are accountable for their Departments. Voters expect Government facts and figures to be impartial and accurate, whether they are used by Ministers who support remain or leave.

Why does the Cabinet Secretary’s letter go far beyond the limits that were placed on dissenting Ministers in the 1975 referendum? Sir Peter Thornton, the permanent secretary of the then Secretary of State for Trade, Peter Shore, 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 from today!

Worse than that, a Q and A briefing that has been circulated following the letter states that 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”.

That has been described by one Minister, the Minister for Employment, my right hon. Friend the Member for Witham (Priti Patel), as “unconstitutional”. How can such a wide ban be justified?

How does my right hon. Friend the Minister for the Cabinet Office reconcile this with his comment on Radio 4 this morning that

“the Government is functioning on all questions, other than specifically the in/out question, in an entirely normal way”?

He also said:

“There are no rules other than those set out last Monday in the letter from Jeremy Heywood.”

What about the Q and A briefing?

Does the Minister deny that permanent secretaries have been instructed to conceal information requested by Downing Street or the Cabinet Office from a dissenting Minister? The Cabinet Secretary’s letter states that “Departments may check facts”, but civil servants have also been told that they cannot

“provide arguments or new facts”.

How is that consistent with the duty of honesty in the civil service code, which requires a civil servant to

“set out the facts and relevant issues truthfully”?

Does the Minister agree that where any guidance or instruction conflicts with the code, the code must prevail?

How does this situation best serve the democratic process if Ministers on opposing sides of the debate finish up disagreeing about information from the same Department which is meant to be impartial and accurate information provided by professional civil servants?

[Matthew Hancock]

Let me answer those points in turn. First, the Government are functioning perfectly well—in fact, I came to this House from a meeting with the Minister for Employment, my right hon. Friend the Member for Witham (Priti Patel), on childcare policy, and it was carried out in an entirely normal way. On Friday I visited a prison with the Justice Secretary, and those two points demonstrate that things are functioning as normal.

The civil service code, and the Constitutional Reform and Governance Act 2010, makes it clear that it is the duty of civil servants to support the position of the Government of the day, and it is only because the Prime Minister is allowing Ministers to remain in government while disagreeing with a single policy—the in/out position—that this situation arises at all. The letter from the Cabinet Secretary makes it clear that factual briefing is allowed.

Finally, the 1975 guidance made it clear that no briefing or draft speeches contrary to Government consideration were allowed to be drafted by civil servants. In fact, it went further because it said that if someone wanted to oppose the Government position, they had to inform No. 10 of any invitations to appear on the radio or TV. We have not put that provision in place. On all these things, the clarity in the guidance from the Cabinet Secretary that was published on Monday last week shows the rules, and those rules are consistent with the civil service code and, indeed, the law.