Minister rejects call for written directions to be expanded to policy amid Internal Market Bill concerns

Civil servants told that go-ahead from new cabinet secretary is only assurance they need to work on controversial legislation
Lord Nicholas True

By Jim Dunton

18 Sep 2020

Cabinet Office minister of state Lord Nicholas True has dismissed a call for the expansion of the “written ministerial direction” system to cover policy advice given by civil servants amid concerns that elements of the government’s Internal Market Bill are at odds with the Civil Service Code.

The proposal was made by Baroness Dianne Hayter, who sparked a House of Lords debate yesterday with an urgent “private notice” question on the predicament faced by civil servants in dealing with elements of the bill that would break international law.

Northern Ireland secretary Brandon Lewis has acknowledged the illegality issue, and the controversy about it prompted the resignation of Government Legal Department head Sir Jonathan Jones last week.

Hayter told peers yesterday that Jones’ decision suggested that work on the bill could breach the civil service code’s requirement to comply with the law – despite an assurance from new cabinet secretary Simon Case last week that “notwithstanding the breach of international law” all was fine.

Hayter sought assurances from True that no civil servant would be asked to breach the code and called for extra protections for staff through the extension of the ministerial-direction system for spending proposals considered to break propriety or value-for-money guidelines.

Currently, ministerial directions are focused on financial concerns of regularity, propriety, value for money, and feasibility. The latter test was introduced by the Treasury in 2011, in the words of a Public Accounts Committee report, “to remove doubt about when a direction should be sought”.

The first direction was sought on these grounds by former Department for Education permanent secretary Jonathan Slater, who sought a direction from then-education secretary Damian Hinds to go ahead with the planned rollout of the T-Levels qualification.

However, there have been long-standing calls for perm secs to be able to seek directions more explicitly on policy developments, and Hayter said yesterday: “Would the government extend the directions mechanism from expenditure to policy work so that ministers can be asked to provide a direction to work on clauses 42-45 [of the bill]?” she asked.

True said that civil servants were not being asked to act in a way that conflicted with the Civil Service Code.

“The situation should not arise because the new cabinet secretary has confirmed that he is content for civil servants to work on the bill and to support ministers in their duties as it passes through the house,” he said.

Lord William Wallace of Saltaire said the civil service code said clearly that civil servants had to comply with the law, and that the withdrawal agreement – which passed both houses earlier this year – was part of domestic law.

“If the cabinet secretary is now telling civil servants that they can disregard this part of the civil service code, is it not appropriate that the minister for the civil service should make a statement to parliament on that?” he asked.

True replied: “No. The cabinet secretary has made the position clear. All civil servants are asked to carry out their role with dedication and commitment to the civil service as the noble lord has said, set out in legislation: integrity, honesty, objectivity, impartiality. In my experience, every civil servant rises to that high level required.”

The Cabinet Office minister said there were clear procedures for civil servants who believed they are being required to act in a way that conflicted with the civil service code.

“That system does exist and it is set out in writing in a way that is available to the house. I’m quite happy to circulate that to members,” he said.

Lord Indarjit Singh said he had seen reports about “re-educating civil servants on how to comply with the law and the administration of justice" and that that they had “somewhat Orwellian connotations”.

True said he was “not familiar” with the reports Singh was referring to but said that neither he nor any other minister was “auditioning for a part in an Orwell drama”.

"Some officials will be considering their position'

The Lords debate came as Institute for Government programme director Alex Thomas said that ministers were “putting civil servants in an impossible position”.

In a blog post on the think tank’s website, Thomas said that government breaching its legal obligations takes the civil service code close to breaking point

“Civil servants are required to ‘comply with the law and uphold the administration of justice’. Lawyers have additional obligations through their professional regulators to act with independence in the interests of justice and to uphold the rule of law.”

He said that the decision by the Case “provides professional cover but not everyone will agree, and many civil servants will still feel extremely queasy about the legality and ethics of this work”.

He added: "Some employed directly on the bill will ask to move to different duties. Others will be considering their position in government service altogether.

“They will be balancing the extent of the breach against their loyalty to the civil service, their personal circumstances, a natural desire not to be forced out by a government intent on challenging institutional norms and protections and – perhaps above all – whether their resignation would simply mean someone less qualified, and more prepared to compromise, would replace them. One consequence of Sir Jonathan’s resignation is that his successor as head of the Government Legal Department will be implicitly indicating that they are comfortable with the government’s approach to the UKIM Bill.”

Thomas added that the “the situation must ultimately be resolved at a political level”.

He said: “The resignation of one top lawyer had little effect on the government’s behaviour, which shows the hollowness of the argument that the civil service can in these circumstances be a constitutional bulwark. The civil service has no independent legitimacy, and ministers in the end get their way.

“The constitutional protections around the rule of law rely on the lord chancellor and attorney general rather than the civil service code. These law officers – aside from Lord Keen, the advocate general – have so far shown themselves unwilling to step in, though the lord chancellor, Robert Buckland, has said that ‘if I see the rule of law being broken in a way that I find unacceptable then of course I will go’.

“The only effective and legitimate constraint is parliament, and in particular the House of Commons. Recent government softening on some of these matters suggests that pressure from MPs is having some effect, but in the end the 'line' that matters is the one that ministers and parliamentarians choose to draw.”

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