Opinion: Civil service impartiality is not enough for legitimacy
When governments push the boundaries of democratic legitimacy, keeping calm and carrying on is not the only option for civil servants, says Stefan Czerniawski
Brexit, and the constitutional questions it has raised, have dominated UK politics for three years. One question which has so far remained in relative obscurity is the implications for the future of a non-political civil service. The ethical foundations of the civil service have some distinctive characteristics. Civil servants subordinate their personal preferences to the greater good of a wider political system. They work to support goals they may not share and ministers whose party they may not have voted for. They do so because they place high value on an effective and professional bureaucracy.
That approach requires answers to three fundamentally important questions. Firstly, what makes the decisions which civil servants implement legitimate?
The straightforward answer is that those decisions are legitimate because they are made by ministers who are members of a government which enjoys the confidence of the House of Commons. The support of a majority of the Commons is accepted as a sufficient test of democratic legitimacy. In practice, it is now unheard of for a single party with a majority of seats in the Commons to have won them with the support of a majority of the electorate, but that has not created a crisis of democracy. Opposition parties have not in general attacked such governments’ decisions for want of legitimacy – which is a pretty strong indication of losers’ consent to the underlying system.
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That tacit agreement not to notice that there is a problem is now breaking down. Much of the political debate since the Brexit referendum has been polarising rather than unifying – “you lost, get over it” – with little attempt to win losers’ consent. Meanwhile, the chain of democratic accountability has been broken by the tension between direct and representative democracy, and the unintended consequences of the Fixed-term Parliaments Act 2011, resulting in a government with very uncertain parliamentary support.
What then should the civil service do? The simple answer is to carry on regardless: so long as the government is still the government, it is not for the civil service to question its authority.
That position has some attractions: we don’t want civil servants to take it upon themselves to decide whether they like a government enough to do its work. But there is also a profound weakness: if this is not enough attenuation of authority to require questions to be asked, what would be? That brings us to the second question: where are the boundaries of democratic legitimacy, and how can they be detected?
There is no shortage of states which have kept the forms of democratic government while edging towards authoritarianism. There is a very understandable temptation to see the continuity of what is legitimate and fail to see the discontinuity to what is illegitimate. But it’s necessarily a matter of judgement – and by the time the risk is unmistakable, it’s generally too late to do much about it.
I do not assert that there is a single, objective test of whether a boundary has been crossed, nor that any such test has been met. Instead, my assertion is that civil servants have an ethical duty to look for that boundary and avoid complicity in crossing it.
The dominant political myth in the UK is that its political system is inherently stable, bending and adapting to changing times, but never breaking. If that myth were well founded, we could safely treat current events as part of the routine ebb and flow of politics. But if the political system is more brittle than that myth allows, we should look out for signs that we may be passing the point at which everything just springs back to normal.
In their study of How Democracies Die, Steven Levitsky and Daniel Ziblatt suggested four warning signs for recognising authoritarian leaders. We should worry when a politician: rejects, in words or action, the democratic rules of the game; denies the legitimacy of opponents; tolerates or encourages violence; or indicates a willingness to curtail the civil liberties of opponents, including the media.
They stress that a politician who meets even one of these criteria is cause for concern.
The government’s attempt to pass the European Union (withdrawal agreement) bill in October provides an example of how form and substance can diverge. The bill was due to go through all the normal parliamentary procedures. But the government proposed that this complex bill with substantial constitutional implications should go through all Commons stages in three days, starting only hours after it had been published. MPs prevented this happening, but it is reasonable to ask whether a bill passed in that way would enjoy the same depth of democratic legitimacy as one given time for reflection and fuller debate.
If we accept that there is a boundary on legitimacy, however imprecise and hard to discern, we come to the third question: what should civil servants do if those boundaries are reached and crossed?
In principle, the answer is simple. If any civil servant judges that ministers’ democratic legitimacy has broken down, they must accept that their ethical authority has also broken down. Whatever they do next, they do as an independent moral agent, personally responsible for their decisions and actions. They may choose to continue, accepting that responsibility, or to walk away.
My point is not to dictate a course of action, but to argue that choices should be deliberate and conscious. They won’t be easy choices, but civil servants must recognise their responsibility to bear these issues in mind, and the civil service needs to be much more ready to support them in doing so.
The institution will remain. Authoritarian governments have civil services, just as democratic ones do. But the surface form hides a profound difference. In such a civil service, loyalty is ultimately to the holders of power, not to the idea of good government.
Perhaps all this is unnecessary fearmongering. Perhaps the political and democratic institutions of the UK are not only not at risk of immediate harm, but far from danger. The general election may deliver a strong government which pushes these issues into the background. But even that will not change the need for civil servants – and indeed civil society – to keep asking whether the links in the chain of democratic legitimacy and accountability remain intact.
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