COMMONS

EU referendum: Prime Minister's response on civil service guidance

04 May 2016

Rt Hon. Andrew Tyrie MP, Chairman of the Liaison Committee – the Committee of Committee Chairs – publishes a response from the Prime Minister to his letter asking for clarity over the guidance for civil servants and special advisers on the EU referendum.

Chair's comments

Commenting on the response, Mr Tyrie said:

"The Committee appreciates the Prime Minister's assurance that he would not expect the guidance to interfere with any Minister's statutory or constitutional responsibilities. But he cannot be confident about that in every case; this guidance applies to all 24 ministerial departments across Whitehall.

Secretaries of State are – and should remain – responsible for all the business of their Departments, until such time as another minister is allocated the specific responsibility at issue. The Cabinet Secretary's guidance does not provide this. On the contrary, it attempts to delegate this authority, without the minister's consent, to unaccountable and unelected civil servants.

This is an unsatisfactory arrangement and could turn out to be unsustainable. It could command somewhat more confidence with a simple change. The Prime Minister – and the public – would benefit from a commitment to publish a list of the official departmental papers which will not be made available to pro-Brexit ministers. In the event that even the existence of certain papers needs to remain confidential, the list of such papers should be made available to me.

Given the uncertainties about the implementation of this guidance, the Cabinet Secretary should publish his specific guidance for the 'purdah' period as soon as possible.

The Liaison Committee may ask the Prime Minister about this this afternoon."

Background

On 1 April 2016, the Chairman wrote to the Prime Minister to ask him to clarify how guidance to civil servants and special advisers in their dealings with Ministers who support Brexit will work in practice. As part of the letter, the Chairman asked the PM to keep a list of the official departmental papers, not made available to pro-Brexit ministers.

In a letter to Sir Nicholas Macpherson, Permanent Secretary to the Treasury, on 23 February 2016, Sir Jeremy Heywood wrote:

"As set out in the Prime Minister's [previous] letter, it will not be appropriate or permissible for the Civil Service to support ministers who oppose the Government's official position by providing briefing or speech material on this matter. This includes access to official departmental papers, excepting papers that Ministers have previously seen on issues relating to the referendum question prior to the suspension of collective agreement. These rules will apply also to their special advisers."

On 1 March 2016, Sir Jeremy Heywood, Cabinet Secretary, appeared in front of the Public Administration and Constitutional Affairs Committee (PACAC) to answer questions on the recently published guidance provided to Civil Servants and Special Advisers on their role in the referendum and the support they can provide to Ministers in light of the Prime Minister's decision to suspend cabinet collective responsibility on the subject of the EU Referendum.

During the session, Sir Jeremy Heywood said:

Sir Jeremy Heywood: There has been a misunderstanding, if I may say so, about the denial of information to Ministers who are not supporting the Government's position. The area where the civil service is not going to be providing advice to Ministers in that position is very specific. It is set out in the Prime Minister's letter and it is set out in my guidance to permanent secretaries. That area is the provision of briefing material and speech material, because we do not think it is appropriate—the Prime Minister does not think it is appropriate and I do not either; they didn’t have it in '75 and it is very much the same precedent—to provide material to Ministers who want to argue against the Government's position so that they can make that case against the Government. That is the material being denied to them. For all the other material that they need to run their Departments, to answer parliamentary questions and to handle European business that is not related to the question—normal EU business—we will of course continue to provide the usual limousine service.

[…]

Q51 Ronnie Cowan: So then you are presuming that the Minister who wants to leave would use that information as part of his campaign to leave Europe, even if he thought it was more important to perform his duty as a Cabinet Minister.

Sir Jeremy Heywood: I do not see any clash. We are not going to deny Ministers the information that they need to run their Departments.

Chair: That is very reassuring.

In a letter to the Cabinet Secretary, Sir Jeremy Heywood, Bernard Jenkin MP, Chair of PACAC, repeated his demand that the Cabinet Secretary should withdraw and redraft his EU referendum - Guidance for the Civil Service and Special Advisers set out in his letter of 23 February 2016, and the subsequent Cabinet Office Q&A Guidance (PDF PDF 26 KB) issued by the Cabinet Office.

Commenting on publication of the correspondence on 21 March 2016, Mr Jenkin said:

"Since Sir Jeremy Heywood, Cabinet Secretary and Head of the Civil Service, appeared before PACAC on Tuesday 1 March, we have had an exchange of letters, which leaves a highly unsatisfactory situation.  Sir Jeremy's letter of 23 February left civil servants and ministers in a quandary of confusion about what information civil servants may give to Brexit ministers up until the referendum date. This confusion was compounded by the Q&A paper issued by the Cabinet Office. In oral evidence, Sir Jeremy helpfully set out his clarification of the situation, quoting precedent from 1975 (quoted in the PACAC letter to Sir Jeremy). Unfortunately, these clear words do not appear in his letter of 23 February and are contradicted by the Q&A. 
 
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 an employment dispute involving a civil servant's compliance with the guidance. I am also asking for 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."

Further information

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