letter from bernard jenkin to jeremy heywood 08-03-16

8/19/2019 Letter From Bernard Jenkin to Jeremy Heywood 08-03-16

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PACAC Public Administration and

Constitutional Affairs Select Committee

House of Commons · London SW1A OAA

Tel

020

7219

3268 Email [email protected]/pacac

Sir Jeremy Heywood

Secretary

of

the Cabinet and Head

of

the Civil Service

70 Whitehall

London

SW A2AS

8 March 2016

EU

Referendu

for

the

Civil Service

Thank you very much for giving oral evidence to PACAC last week.

We

did appreciate

you agreeing to come

at

such short notice.

I am also grateful for your clarification of what had become a serious misunderstanding

arising both from the letter of guidance of 23 February to the Civil Service, and from the

Q&A brief.

In

terms

of

precedent for this guidance, you quoted the letter from the then Prime

Minister in 1975, as follows -

Civil Servants may provide normal office facilities and factual information on

European matters on request to the ministers who differ from the Government's

recommendation, but they should not be asked to provide briefing or draft

speeches contrary to the Government's recommendation (Referendum on

membership of the European Community: Guidelines on the procedure for

Ministers: Note by the Prime Minister, 10 Downing Street SW1 , 3 April 1975).

You made it clear that your own guidance is intended to convey the same meaning but

in your "own words

".

You helpfully made clear that the Government "are not going to

deny ministers the information they need to run their departments" and confirmed that

the only material being denied to a Minister is "material they could use to attack the

Government position". As our session further clarified, this material would take the form

of briefing and speech material, rather than "pure facts" which, as you explained, "we

wouldn't expect to withhold" from Ministers. Indeed, you stated that "there has been no

intention of withholding key facts from Ministers who are arguing a different way [from

the Government's position]".

During your appearance, you said you are always happy to receive feedback, so I

make no apology for explaining why we

think your clarification is so necessary.

It resolves the ambiguity in your letter

of

23rd

February, which said -

mailto:[email protected]/pacac

mailto:[email protected]/pacac



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.

Though the letter goes on

to

say:

In

line with usual practice,

Departments

may

check facts

for

such

Ministers

on request. And civil

servants

should

continue

to

support

such

Ministers

in undertaking all official government

business

in the usual

way.

This drafting is at best ambiguous and thus left civil servants in some doubt about how

dissenting Ministers should be treated .

In

particular, it was not clear - and it remains

unclear from your letter alone -

what

was meant by the reference

to

'this matter'. Was

this intended to refer only

to

the referendum question

or

to a general prohibition

on

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'?

The

necessary implication

of

this was that subsequent papers which

'relate'

to

the referendum question were

to

be withheld. Moreover, the letter did not give

any assistance on

how

to deal with papers which 'relate' to the referendum question,

but which nevertheless concern normal

EU

or

EU related business and where, it is

said, the existing machinery

of

government for making policy on EU business is to

continue to function in the normal way.

The

Q&A

briefing suggests an even more restrictive approach to the supply of

information and papers

to

dissenting Ministers. In reply

to

the questions can

dissenting Ministers see departmental papers/information relating to the EU

referendum? and what kind of factual advice can they have? the briefing says that

such Ministers (and their special advisers) may see papers they had already seen pri

or

to the suspension of collective responsibility, and may ask officials to verify the factual

accuracy of speeches etc. but may not ask officials to provide new arguments

or

suggest

new

facts

.

The

necessary implication was that dissenting Ministers could not

be shown papers 'relating ' to the EU referendum. It was not clear from the

Q&A

briefing - and the Q&A brief remains unclear - how a civil servant was to verify the

factual accuracy

of

a speech

if

some 'new facts' have rendered the speech inaccurate.

In reply

to

the question can dissenting Ministers see departmental papers on matters

that

aren't directly about the Referendum, but may have a bearing? the briefing said

that such Ministers can see

or

commission any papers produced by their departments

in the normal way except those that h ve be ring on the referendum question

or

re

intended

to be used in support

of

their position on the referendum (emphasis added).

From this, it appeared that dissenting Ministers would be denied papers which 'have a

bearing' on the Referendum question. In the context it appeared that 'have a bearing'

would cover a wider class than papers 'relating to'.

At

the very least, the wording was

ambiguous.

2



This raised two questions. First, why were the words 'have a bearing on' introduced,

in

place of 'relati

ng

to ', if no difference were intended? Second, it was not clear how the

civil servant was to establish whether papers were 'intended' to be used in support of

the dissenting Minister's position.

So overall , before you had cleared up the matter, the letter, taken with the Q&A

briefing, had given the impression that a dissenting Minister would not have continued

to receive papers and briefing from the Civil Service on all questions relating to the

normal run of EU or EU related business. The normal functioning of the machinery of

Government for making policy on EU business was to be qualified by denying access

by dissenting Ministers to Departmental papers except;

(a) those which did not relate to the referendum question,

(b) those which such Ministers had already seen prior to the suspension of

collective agreement,

(c) those which had no 'bearing' on the referendum question,

(d) those which the Minister did not intend to use in support of his or her

dissenting position.

It was also important that you confirmed that where your guidance or the Q&A conflict

with the Civil Service Code, the Code would prevail. As I pointed out at your hearing

with PACAC, the duty

of honesty requires the civil servant to set out the facts and

relevant issues truthfully, and correct any errors as soon as possible . In addition , the

civil servant must not ignore inconvenient facts or relevant considerations when

providing advice or maki

ng

decisions

.

The duty

of

objectivity requires the civil servant

to provide information and advice, including advice to ministers, on the basis of the

evidence, and accurately present the options and facts . It was obvious to us that

if

certain facts were to be deliberately withheld, then the duties of honesty and objectivity

would be put in issue.

So I again express my thanks for your being so clear in your oral evidence. I do

however reiterate on behalf of PACAC that it would be sensible to withdraw your

existi

ng

letter and Q&A brief and reissue them in a redrafted form that is consistent with

that evidence.

We are advised that there is a legal reason for so doing . The Civil Service Commission

could look

t 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.



Wewouldnormallypublishalettertoyousuchasthisonourwebsiteimmediately,but

inthiscircumstance,wewouldpreferyoutohaveanopportunitytoconsiderourletter

first,sowewillwaitforaresponsebeforedoingso,thoughIhopethatyouwillbeable

torespondwithinadayortwo.

MayItakethisopportunitytoremindyouof theothermattersaboutwhichyou

committedtoinformingusinwriting:

1)

Do

you intendthatyourguidanceshouldapplytoallpublicservants,includingthose

whoarenotcivilservants,suchastodepartmentalnon-executivedirectorsandto

thoseappointedtoboards

of

publicbodies?

2) DidanyoneinNumber10ortheCabinetOfficeseeand/orapproveHRHPrince

William's16February2016speech

t

theForeignandCommonwealthOffice,

beforeitwasdelivered?

3) WhywasaFreedomof Informationrequest,submittedby JonathanPortes,forthe

number

of

activeNationalInsurancenumbersheldbyEUmigrantswithheldby

HMRConrenegotiation-relatedgrounds?Astherenegotiationhasbeenconcluded,

willthisinformationnowbereleased?

4) YousuggestedthattheGovernmentdocument,

The Process o Withdrawing from

the uropean Union

(Cm9216),hadbeenclearedbytheDepartmentof Business,

InnovationandSkills,buttheSecretary

of

StateandbytheMinister

of

Statefor

TradeandInvestmentpriortoitspublicat ion.CanyouletmeknowwhenthisWhite

Paperwassenttobothof themandwheneachclearedit?

Ilookforwardtoreceivingyourresponsetothesequestionsandthisletterindue

course.

BernardJenkinMP

Chairmanof thePublicAdministrationandConstitutionalAffairsCommittee

4

letter from bernard jenkin to jeremy heywood 08-03-16

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