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Brexit: Civil Service Code

Volume 805: debated on Thursday 17 September 2020

Private Notice Question

Asked by

To ask Her Majesty’s Government, in the light of reports that new guidance has been issued to civil servants working on Brexit, whether civil servants are expected to “comply with the law and uphold the administration of justice” as set out in the Civil Service Code.

My Lords, all civil servants are subject to the Civil Service Code in supporting the Government to put forward the United Kingdom Internal Market Bill for debate in Parliament. The previous Cabinet Secretary was clear at the time that civil servants could and should work on the legislation and its passage through Parliament, as set out in the Government’s legal statement.

Despite the resignation of the noble and learned Lord, Lord Keen, over the Government’s breach of international law, other Ministers seem to kid themselves that it does not conflict with their Ministerial Code. However, the resignation of Whitehall’s top legal officer, Sir Jonathan Jones, suggests that the work on the internal markets Bill could breach the Civil Service Code’s requirement to comply with the law—despite the new Cabinet Secretary’s apparent offering of safe harbour. Given that one senior civil servant, we hear, has advised colleagues uncomfortable with this to alert their superiors, 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 to 45? Can the Minister assure the House that no civil servant will be expected to breach their code?

My Lords, the situation should not arise because, as the noble Baroness has said, 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. Civil servants are not being asked to act in a way that conflicts with the Civil Service Code. That is the position.

My Lords, the Civil Service Code states very clearly, regarding integrity:

“You must … comply with the law”.

The Government’s legal position states that parliamentary sovereignty can override international agreements, but not domestic law. The withdrawal agreement was passed by both Houses of Parliament and thus became—less than nine months ago—part of our 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, given that the Constitutional Reform and Governance Act makes it clear that the Minister for the Civil Service is responsible to Parliament for the Civil Service Code?

My Lords, as I have said, the Cabinet Secretary has made the position clear. All civil servants are of course expected to carry out their role with dedication and commitment to the Civil Service and its core values of integrity, honesty, objectivity and impartiality, which are, as the noble Lord has said, set out in legislation. In my experience, every civil servant rises to that high level required. The Cabinet Secretary has said that he is content for civil servants to work on this Bill.

Does the Minister agree that reports on re-educating civil servants on how to comply with the law and the administration of justice have somewhat Orwellian connotations?

My Lords, I am not familiar with the reports referred to by the noble Lord, but neither I nor any other Minister is auditioning for a part in an Orwell drama.

My Lords, this goes much wider in terms of the pressure on the Civil Service to abandon that key element of impartiality. Does the Minister accept that there is a very real danger at the moment, with the Civil Service being asked to collude with procurement policies that not only lack transparency but border on nepotism? Margaret Thatcher’s phrase, about whether someone is “one of us”, is now applied to appointments inside and outside the system. In such circumstances, while we can get rid of a Government when they lose trust, once we lose trust in our institutions, in the application of our law or in the impartiality of our Civil Service, we will be seen by the rest of the world as a tinpot regime.

I do not agree with that and I regret that the noble Lord—with his enormous experience in government, which I hugely admire—takes that view. Everybody in this House and outside who has had experience of working with the Civil Service, as I have over many years, understands the relationship. Sometimes we each have to do things—even Ministers—that, in our heart of hearts, we do not agree with. There is a clear process for civil servants who believe that they are being required to act in a way that conflicts with the code. That system exists and is set out in writing; it is available to the House and I am happy to circulate it to Members. The safeguards are there.

My Lords, the Attorney-General is said to believe that the obligations under the Civil Service and Ministerial Codes apply to keeping domestic law, but not international law. Is that the Government’s position, or is their position, as set out by the noble Lord, Lord Faulks, when he was a Justice Minister, that:

“The obligations on Ministers under the law, including international law, remain unchanged.”—[Official Report, 3/11/15; col. 1522.]

My Lords, I am not going to repeat in detail any position that the Attorney-General may or may not have set out. There are traditional rules on that. The Government’s legal position has been set out and sent to the chairmen of the Select Committees. Do the Government maintain the position set out by previous Administrations that law includes international law? Yes, they do.

My Lords, what concerns me is how civil servants who might be involved in corruption trials relating to the substantial number of multimillion pound Government contracts let without competition to friends of a special adviser to the Prime Minister will be advised. Any advice from the Minister to them?

My Lords, I think it is mildly wide of the Question before the House. Also, some quite serious allegations were made by the noble Lord. I simply repeat that there are very clear procedures available for civil servants who believe that they are being required to act in a way that conflicts with the code. They can start by taking it to their line manager, and the process goes on. As I have said, I am happy to circulate the appropriate procedures to the House.

My Lords, noble Lords have focused on one particular aspect of the Civil Service Code, but there are many other requirements, one of which is that civil servants must not

“frustrate the implementation of policies once decisions are taken by declining to take, or abstaining from, action which flows from those decisions.”

Will my noble friend agree that the balancing of the different requirements in the Civil Service Code is best handled by the Civil Service under the procedures he has referred to, and not by a party-political Parliament?

Yes, I strongly agree with my noble friend. I do think this is a matter that should be left to the judgment of the leaders of the Civil Service—the Cabinet Secretary of the time being the main one. My noble friend is of course quite right to say that—and this was reinforced in the Constitutional Reform and Governance Act—certain duties and responsibilities do apply to civil servants.

My Lords, could the Minister indicate what discussions have taken place with the Northern Ireland Civil Service regarding the application of the Civil Service Code when there are suggestions of non-compliance with the law—both international and domestic—since the Internal Market Bill will directly impact Northern Ireland?

My Lords, I have not been advised on this specific matter within the devolved Administrations and in Northern Ireland, but I will write to the noble Baroness on the subject.

My Lords, given the Prime Minister’s foreword,

“we must uphold the very highest standards of propriety,”

do the remaining law officers intend to cling to office, where they are aiders and abetters of potential illegality? Has the Lord Chancellor any anxiety about interpreting his statutory duties to uphold the rule of law?

My Lords, the law officers act at all times in line with their duties and responsibilities, and I have every confidence that the law officers and this Government will continue to do so. For my own part, I cannot answer questions about the personal positions of other members of the Government.

The Question states,

“in the light of reports that new guidance has been issued”.

Could the Minister say whether new guidance has been issued? If it has, will he place a copy in the Library for us to consult? My second point is that it is now 59 years since I became an established civil servant. We have much more of a revolving door these days, and I fear that far too many senior civil servants and Ministers are looking at their next job in the private sector when they are interpreting the regulations. Could the Minister comment as to whether it might be time to review the whole principle of the revolving door? Incidentally, I notice that his colleague, Mr Grayling, went into a £100,000 job this morning, according to the Times.

My Lords, the last part of my noble friend’s question is again outwith the Question, but it is an important issue and one that the Government and Parliament turn their attention to from time to time. I am sure that people will note his remarks. As for the reports of a new communication, obviously I made inquiries, as was my duty, having seen the Question. We have not been able to locate this particular communication but if, as has been reported, it is a restatement of the long-standing position which is expressed in the Civil Service Code—that if civil servants ever believe they are being required to act in a way that conflicts with the code, they should raise it with their line manager, et cetera—I have already told the House that that is the position and it is unchanged. I do not know whether this alleged communication was saying that. If it was, in a sense I have already offered to put that before the House, but I will take it away.

It is extremely important that we do not let the idea be taken that there is conflict and distaste between Ministers and civil servants. That is not the case; it is partnership. Sometimes, things break out. I was reading Servants of the People the other day, in which Ministers are quoted as saying, “Civil servants are useless” and, “We expected to find Rolls-Royce service; we found a Reliant Robin”. People say things and there are moments of crisis in relationships, but my experience is that there is an outstanding relationship between the ministerial side and the Civil Service side under every Government, whatever one hears reported in the press.

My Lords, it seems to many of us that there is a less healthy relationship between certain special advisers and Ministers, and that there is a real difference between the code of propriety observed through the centuries by civil servants and the code observed by these more recent arrivals. Will my noble friend arrange for every special adviser and every Minister of the Crown to be sent a copy of the admirable article by our noble friend Lord Hague which appeared in the Daily Telegraph earlier this week?

My Lords, I am not personally responsible for the reading habits of every member of the Civil Service, the special adviser corps or the Government. I am sure people have noted what was said. Special advisers are subject to a code. I think that in public life we should all treat each other with grace and understanding, and every now and again there has to be a bit of give and take, of leave and understanding. The fundamental core of Civil Service impartiality remains. The Civil Service’s role as defined in law and practice is something that I and this Government profoundly respect and I am sure it will continue under whoever has the honour of acting as part of the Government in the future.