The accountability of senior civil servants, and how far they should be independent of politicians or responsible to them, has been a recurrent theme of recent British political history.
During the Blair years, retired mandarins muttered darkly of sofa government and presidential politicisation; later, rumbling tensions between coalition government ministers and senior civil servants broke out into the open over reforms to the appointment and accountability of Whitehall’s top brass. MPs, most notably Margaret Hodge, flexed the muscles of newly strengthened select committees to press for greater accountability of senior civil servants to Parliament.
There has been relative peace on these issues since the 2015 general election. But the calm has been abruptly broken by the eruption of eurosceptic fury at cabinet secretary Sir Jeremy Heywood’s guidance to civil servants working for Brexit ministers that they must not provide advice and support that could be used to campaign against the government’s agreed position.
EU referendum row: DWP minister Priti Patel says Jeremy Heywood’s guidance on pro-Brexit ministers “threatens the reputation of the civil service” – as Gus O’Donnell leaps to his defence
EU referendum: Jeremy Heywood to face MPs over civil service guidance on dealing with pro-Brexit ministers
Eurosceptic ministers denounced this as an “unconstitutional act”; UKIP’s Douglas Carswell even called for Heywood to be sacked after the referendum. It is a classic process story, designed to steal headlines, and it is no surprise that Vote Leave has led with it - there is little love lost between its key protagonist, Dominic Cummings, and the cabinet secretary.
In House of Commons questions to the Cabinet Office minister, Matthew Hancock, eurosceptic MPs took various tacks at proving that constitutional impropriety had taken place. Bernard Jenkin, chair of the Public Administration Select Committee, argued that ministers are responsible and accountable for their departments, appointed by the Crown, and by implication that civil servants must always serve their departmental minister, even where he or she departs from the collectively agreed position of the government.
This was a reference to the Carltona principle — so-called after a 1943 court judgment — that officials are nothing but the creature of their ministers, and must act on their authority. If the Crown appoints a minister, his or her authority holds sway over a department and cannot be countermanded by instructions from the cabinet secretary.
Liam Fox tried a different angle: surely ministers could not be held to account by democratically elected MPs if those ministers did not have full knowledge on an issue? Bill Cash tried arguing that the cabinet secretary’s guidance was incompatible with the legislation governing the referendum itself. David Davis even asked on what authority the cabinet secretary was acting: if it wasn’t Parliament, was it Royal Prerogative?
Hancock had little trouble batting all this off. His case was simple. The government of the day has a policy, and civil servants have to support it, even if their departmental ministers are provided with dispensation to disagree with it personally, from the backbenches or in public.
True, the famous Armstrong memorandum — named after Sir Robert Armstrong, the Head of the Home Civil Service who penned it in 1985 - states that, “The duty of the individual civil servant is first and foremost to the minister of the crown who is in charge of the department in which he or she is serving.”
But that sentence is preceded by another which says clearly that: “The civil service serves the government of the day as a whole, that is to say Her Majesty’s ministers collectively, and the prime minister is the minister for the civil service.” This is the core of the Civil Service Code, given statutory backing in the 2010 Constitutional Reform and Governance Act. When the government has an agreed position, civil servants must support it.
In the absence of a written constitution, it is precedents, scattered pieces of legislation and various court judgements that form the rulebook. They are to open to interpretation and dispute, and never more so than when sovereignty is at stake (and as the row over the nomination of a US Supreme Court judge to replace the late Antonin Scalia demonstrates, politics cannot be wholly excised from these processes, even where the constitution is written down).
In this case, there is the added complication of obvious grey areas — what happens, for example, when a Brexit minister needs advice for conducting European Union business that clearly pertains to the agreement the prime minister has reached with the UK’s partners?
Still, much of this is simple sound and fury. Civil servants are often drawn into the firing line. It goes with the territory. The Treasury permanent secretary became embroiled in a bitter row over his neutrality during the Scottish independence referendum, and for better reasons than those for which Sir Jeremy Heywood is being criticised (in this case, the UK government has a policy; then it was supposed to be a sovereign matter for the Scottish people alone). Contemporary eurosceptics view the mandarinate with the same hostility that Tony Benn did in 1975, as an establishment antagonist, whether because it is pro-EU or pro-capitalist, or both.
Yet even after the row over Heywood’s guidance subsides, and becomes a matter of the historical record rather than the UK’s future status, the issue of the relationship between senior civil servants and ministers is unlikely to go away. Just last week, the National Audit Office was criticising permanent secretaries for being too responsive to the political demands of ministers, and insufficiently attentive to their duties as accounting officers — the very reverse of the charge being labelled this week.
Sensible reforms enacted in the last parliament (many of which were based on a report commissioned from myself and others at the Institute for Public Policy Research), such as allowing the prime minister to choose between a list of candidates for a permanent secretary appointment, have enabled incremental improvements to be made. But in an era of distrust of established power, and with demands for accountability multiplying in tandem with expectations of government, it is likely that the senior civil service will continue to come under scrutiny. The relationship between ministers and mandarins, and the public they serve, will evolve; it won’t simply to settle down.