The rules setting out what support officials are allowed to give to ministers who want to leave the European Union are “confusing” and “irregular” and must be withdrawn, according to the MP whose commons committee oversees the work of the civil service.
Conservative MP Bernard Jenkin — chair of the Public Administration and Constitutional Affairs Committee (PACAC), and a prominent eurosceptic — raised concerns in February when cabinet secretary Sir Jeremy Heywood published guidance for civil servants in the upcoming vote on whether Britain should remain in the EU.
While prime minister David Cameron has taken the unusual step of allowing ministers to campaign against the government’s official position of remaining in the EU, the rules make clear that ministers who do back Brexit will face curbs on the civil service support they can draw on. Eurosceptics argue that this puts the ‘leave’ camp at a significant disadvantage and risks politicising the civil service.
Jeremy Heywood says civil service rules on pro-Brexit ministers will stop Whitehall “tying itself up in knots” over the European Union
“A step back to the Alastair Campbell days” – Committee chair Bernard Jenkin questions fresh guidance for special advisers
EU referendum, then and now: Former cabinet secretary Lord Butler remembers the last time Britain went to the polls over membership of Europe
But Heywood told Jenkin’s committee at the start of the month that pro-Brexit ministers would get “the same civil service support as usual”, with the restrictions tightly limited to “briefing material or speech material” that would be used to make the case for Britain to leave the EU. The guidance would, he said, stop the civil service from "tying itself in knots" by putting officials in the position of campaigning against their own government.
That reassurance has not placated Jenkin, however, and following an exchange of letters with Heywood since that hearing, the PACAC chair says he continues to fear that civil servants could be left exposed by the guidance in its current form.
While Jenkin welcomes the fact that Heywood “helpfully set out his clarification of the situation” before the committee, the PACAC chair says there is now a mismatch between the “clear words” at that session and the February guidance and subsequent Q&A issued by the Cabinet Office — with potential legal ramifications for officials who rely on Heywood's evidence and not the official document.
“This situation is highly irregular, remains confusing, and could even cause an injustice, because the words of Sir Jeremy in evidence to PACAC are subject to Parliamentary Privilege, and therefore not available to any employment tribunal or court, in the event of a employment dispute involving a civil servant’s compliance with the guidance,” Jenkin said.
“I am also asking this matter to be raised in the Liaison Committee because other select committee chairs are raising concerns about how the government can operate safely and effectively with this confusion. I believe it must be the prime minister who has placed the cabinet secretary in this impossible position, and it would not be for the first time.”
Heywood: "nothing in the guidance is at odds with the Civil Service Code"
In Heywood’s letter to Jenkin (available to read in full below), the cabinet secretary stresses that he is “not aware that there has been any misunderstanding in practice” over the meaning of the rules as currently drafted, and rejects the call to withdraw or amend it, warning that to do so “would simply create uncertainty and confusion”.
“The guidance makes clear explicitly that civil servants can check facts for ministers who have dissented from the government’s position on the referendum,” he says.
“Departments will also provide all ministers with factual information relating to the work of that department. Where new factual informational is available within the department and would (to take your example) render a draft speech inaccurate, civil servants would of course make a minister aware of the correct information in the usual way. There is no suggestion in the guidance that civil servants should withold such information.”
While Heywood says he would be willing to make some changes to future version of the Q&A document issued to help officials interpret the formal guidance, the cabinet secretary says there is “nothing in the guidance that is at odds with the Civil Service Code or that would require a civil servant to act in a way that is at odds with the Code’s requirements”.
Jenkin: There is a legal reason for reissuing the rules
But Jenkin’s own letter to Heywood argues that officials who rely on the cabinet secretary testimony to PACAC could be left exposed at an employment tribunal, and he urges the cabinet secretary to issue the rules “in a redrafted form that is consistent” with his evidence to the committee.
“We are advised that there is a legal reason for so doing,” Jenkin tells Heywood.
“The Civil Service Commission could look at your evidence before PACAC in interpreting your guidance, but an employment tribunal could not do so. The Commission is not a ‘court or place outside Parliament’ for the purposes of Article IX of the Bill of Rights, but an employment tribunal clearly is.
“The principle behind these (apparently arbitrary) distinctions is that a body exercising judicial powers must not sit in judgment on proceedings of the House or of its committees. Therefore the clarifications given in your evidence to PACAC will not avail the civil servant as they should, so it is necessary that a new letter or amendment is issued.”
Letter From Bernard Jenkin to Jeremy Heywood 08-03-16
Sir Jeremy Heywood letter to Bernard Jenkin MP