Oral evidence: Civil Service impartiality and referendums, HC 1149Tuesday 6 May 2014

Oral evidence, 6 May 2014.

Witnesses

David Maddox, Westminster Correspondent, The Scotsman, Michael Settle, UK Political Editor, The Herald and Professor James Mitchell, Professor of Public Policy and International Relations, University of Edinburgh, gave evidence.

Chair

Can I welcome our second panel of witnesses for today’s session? I invite each of you to identify yourselves for the record.

Professor Mitchell

James Mitchell, chair in public policy, Academy of Government at the University of Edinburgh.

Michael Settle

Michael Settle, UK political editor of The Herald.

David Maddox

David Maddox, Westminster correspondent for The Scotsman.

Chair

Thank you very much for joining us. I understand that Professor Mitchell has to leave at 11.30 in order to catch an aeroplane; that might be one of the advantages of us going to Scotland for a future evidence session. Can I first ask each of you—I think you all heard the first session—whether there are any particular reactions you want to give us to what you heard?

Michael Settle

The points that you raised regarding Sir Nicholas Macpherson, his memo and the White Paper by the Scottish Government reflect the high stakes that we have in this referendum and the strain that is being put on the Civil Service Code and the civil servants who have to work under it. It is not a normal circumstance, this referendum. As a newspaper man, we are being very careful to be very even-handed on how we report each twist and turn in the referendum story.

David Maddox

I would agree with that. As you say, the issues of Sir Nicholas and the White Paper do highlight that this is very different. I have certainly not seen this sort of thing before from the Civil Service. I have never seen such public engagement from the Civil Service before. Whether it is appropriate or inappropriate is something for you to conclude on, but it is certainly very different. Likewise, The Scotsman is also trying to get a very balanced view of what is going on.

Professor Mitchell

The one observation I would make, which was maybe implicit in the last session but that needs to be made explicit, is that one of the main constraints on Civil Service neutrality and behaviour is not just the Civil Service Code. The code really only codifies past behaviour. I have been studying this subject and my doctoral thesis was on the consolidation of Scottish central administration historically. Many of the things that are in the code would have been recognised by the Civil Service in the past. One of the key constraints is the assumption, the understanding, within the Civil Service that a change of Government can come along. Civil servants probably respond to that better than anything else. The knowledge that a new Government could come into office prevents politicisation of the office. However, in the context of devolution, we have an unusual situation that did not exist pre-devolution. That is that there is really no prospect, I suspect, of an SNP administration in London or of it even being part of the administration in London. So, to come back to the Treasury Permanent Secretary’s intervention, I guess he was not constrained in that way. I suspect—to pick up on the question you asked, Chair, with regard to the EU referendum—any civil servant operating at the time of the EU referendum will be very conscious that, at some stage in the future, they may well be serving a different political master. That, I suspect, will be an important constraint. I am not suggesting that the Civil Service Code is unimportant, but I do think one has to put that alongside other considerations.

Lindsay Roy

From the evidence you have heard today, to what extent are you clear about the test of exceptional circumstances?

David Maddox

I was not clear at all.

Lindsay Roy

Neither was I.

David Maddox

James has just highlighted the only exception is that, in Sir Nicholas’s case, there was no prospect of an SNP Government down here, so he was not bound by those circumstances. But I was not clear at all, and I have not been clear since he published his advice.

Lindsay Roy

Can you foresee exceptional circumstances in relation to defence and security or other issues that might be raised?

Michael Settle

There may be exceptional circumstances, but we have not seen them yet. Sir Nicholas’s publication of his memo shows just how worried the UK Government is about the prospect of the markets reacting before the referendum if the Scottish Government ups its threat about not taking the debt, because that could have an impact on borrowing costs for the UK. That was the exceptional circumstance I think he was implying.

Lindsay Roy

What challenges do you believe the Civil Service faces in maintaining its impartiality?

Professor Mitchell

In the context of the referendum, one of the key points about the referendum is that it is like an election except that it is lasting a very long time. The duration of the campaign is a factor. That said, I am not convinced that there is anything particularly novel in the current situation. If we look back over a long period of time, these tensions have always existed; I think they will always exist. I would be wary of making any strong recommendations on the basis of what may be a unique event. Hard cases do not always make good law. I am not saying that we should not. We need to investigate, as your Committee rightly is doing, this particular circumstance, but I would be nervous about jumping to conclusions on the basis of this one case. I am not convinced there is anything particularly novel about the current situation that would not be found in previous decades.

David Maddox

There is possibly an attempt to replace parties within an election scenario with Governments. This is characterised by some—whether accurately or not—as the UK Government against the Scottish Government. In that sense, they become the parties in an election, so the Civil Service quite possibly is under extra pressure as agents of those two parties within this referendum.

Lindsay Roy

You will be aware of allegations of breaches of the code of conduct. Which ones have been raised with you and what credibility has your press given them, Michael and David?

Michael Settle

I can only speak from personal experience of the civil servants I engage with. I have never felt, through my engagement with them, that they have crossed the line on a personal level. How would I recognise a civil servant being partial? Presumably it means that they either are overly enthusiastic—taking you to one side and saying things to you without the consent of their Ministers—or they are arguing against the Government line that they should be adopting. That has never happened thus far in my experience.

Lindsay Roy

The allegation in particular I was referring to was that it is not just a White Paper but, partly, a manifesto.

Michael Settle

The White Paper is a prospectus for independence. The Government of the day, if there is independence in March 2016, will on that day be an SNP Government for a few weeks until the election. Does it come as a surprise that the White Paper is not usual in terms of a White Paper and goes beyond, seeking to suggest what would happen beyond March 2016? I do not think it does, really.

Lindsay Roy

So it goes beyond what you would normally expect into party politics about the programmes.

Michael Settle

Given the context of where we are—we are talking about a fight for survival in terms of the UK—it does not strike me as particularly unusual.

David Maddox

In terms of the White Paper, one of the issues that has been raised is the language of the White Paper, which is very different from what we would normally expect.

Lindsay Roy

Pejorative language?

David Maddox

Certainly some would say it is such by describing this place as the “Westminster Parliament” and the “Westminster Government.” For some in that particular sphere of politics, “Westminster” has a very negative—deliberately negative—overtone to it, and it can be used as a disguise for criticism of anything south of the border. One has to be careful because we, as newspapers, use “Westminster” as a shorthand all the time. Within that context, describing this Parliament as the “Westminster Parliament” within a White Paper seemed to be a bit odd.

Lindsay Roy

Are there any other examples of language, Professor Mitchell?

Professor Mitchell

I think there can be too much sensitivity. This is the Westminster Parliament. I have never seen that as a pejorative term at all. One of the things I would comment on with White Papers is that they have changed over a long period of time. There was a day when they were literally White Papers—I remember that—and they were read by very few people. Now, of course, they are glossy documents and, over the course of time, they have become a very different type of document. The most significant thing about the White Paper is its length rather than its style. Its style of writing is not so terribly different. I was listening to the earlier session and reflecting on some of the White Papers of the past which I recall. I remember “New Life for Urban Scotland”, which was published after the 1987 election. The issues in there were not included in the Conservatives’ manifesto, but they were very welcome. I am not sure that the childcare issue is such a significant change from the past. It may be to some extent, but I am struggling with that one, frankly. I do not think it is. There is also no doubt that most people who have read the document or are aware of it—very few have probably actually read it—probably see it as an SNP Government document, rather than a Civil Service document anyway. That is quite an important point.

Lindsay Roy

Is it fair to say that it is a wish list without a price list?

Professor Mitchell

That would be one way of expressing it. I would not want to take sides in how it should be expressed. That is obviously one way of expressing it; another might be that it is a set of aspirations. I will leave it for the debate between the two sides to determine how it should be expressed.

Lindsay Roy

How do the Scottish public view Civil Service impartiality, from your perspective?

David Maddox

I am not sure the Scottish public take much interest in it; I have to be honest. In a sense, they may do—well, some of them may do—when we put it in our newspapers. Other issues in the debate have caught the interest a lot more. Professor Mitchell is right: how they view this is that they do not think of the civil servants doing this and that; they think of it as an SNP Scottish Government document or statement, or a coalition Government document or statement down here.

Lindsay Roy

So it has been the contribution of politicians from one side or another that has made the most impact.

Professor Mitchell

In terms of the public’s perception of the Civil Service in Scotland, we have to remember that there are more than 40,000 civil servants in Scotland, most of whom are UK Whitehall Department civil servants. The public’s engagement with them is not at the level that we are talking about here today. For many of the people who engage with civil servants that I work with in terms of everyday public policy matters, these high political issues are really not matters that concern them. Even most of the 5,000-plus core Scottish Government officials are not involved in these matters. I suspect the public—we have to be very careful here because the public consists of many different groups, as you are well aware—will perceive the Civil Service in multiple different ways. For the most part, it will be in terms of their everyday experiences, their lived experiences, although, in truth, the public’s engagement with officialdom mostly is with local government, health boards and suchlike.

David Maddox

One issue that has been raised in various evidence sessions—at least, before other Committees here—is that of businesses. There has been some suggestion that businesses have felt threatened or intimidated. I have to say I have never seen any hard evidence of that, but it has been claimed down here. Whether that goes through the Civil Service or it is through politicians is a different matter.

Michael Settle

The public concentrates on the policies and the personalities, not the civil servants.

Kelvin Hopkins

Although the public may not be concerned about what might seem constitutional technicalities, they are still fundamentally important. Once a White Paper is published, it becomes the creature of the politician—the First Minister or whatever—and the civil servant is an anonymous character. He/she may sit next to the Minister, may have written every word of what has been read, but it is the Minister’s statement, not the civil servant’s. The civil servant should remain an anonymous servant of the Government. If a new Government gets in and the policy changes, they write another speech saying the opposite. That is their job; it is not to be a high-profile political figure. Is that not the case?

Michael Settle

Yes, I think it is. That is the normal case.

Kelvin Hopkins

Are we on a slippery slope towards a new world where civil servants become politicised and politicians, to an extent, hide behind them?

Professor Mitchell

I think that is right, although it is worth noting that understandings of leadership across the public and private sectors now have changed. There is an expectation that leaders—including Civil Service leaders—should have a more public profile. What we are now seeing—this is not just in the UK Civil Service; this is across the globe—are senior officials who are very anonymous, unknown, who write blogs and so on. In a sense, that may not necessarily be a bad thing if it involves greater accountability, for example. While anonymity has its place, the notion of neutrality is far more important.

Kelvin Hopkins

You seem to be relaxed about it, and I certainly am not relaxed about it because I see a fundamental change in our constitutional affairs. Politicians are elected and we can get rid of politicians; civil servants have a job. I spent 23 years of my life working in a political bureaucracy so I know how it works. I used to write speeches, but they were the President’s speeches. They were not my speeches, and I knew my place. If the policy changed, I wrote a different speech. That is what civil servants should do. If we want to move to a different kind of constitution, come up and say that, but we cannot just let it drift and slide towards that kind of world.

Professor Mitchell

Can I rephrase or take back anything I said that gave the impression that I was in favour of a politicised Civil Service? I would very much be on your side in that respect. I would not want to see civil servants standing up there making speeches. That is for sure.

Chair

That is what Scottish civil servants are more or less doing at some of these public meetings.

Professor Mitchell

I have not attended any of these meetings, but I am not aware of them making the case for independence.

Chair

They are answering questions.

Professor Mitchell

You would have to put it to them, not me. I have not attended these meetings.

Chair

How much do you recognise a danger that we are sliding towards a more politicised Civil Service, which will bring in its wake the desire of politicians to have the civil servants that they want rather the ones they inherit?

Professor Mitchell

We have been moving for some time in that direction. There is something in that. A case can be made for that and, if we are going to make the case, we need to hear it fully and properly and hear a robust defence of that approach. I read the IPPR report that came out last summer, which I think made a very interesting case for it. I was not entirely convinced, I have to say, but let us hear it. There is a difference, however, I want to stress between greater accountability, which involves greater visibility, and the abandonment of neutrality. I would be very worried if greater visibility damaged that neutrality, and I could hear a case that that might happen. That is something I would want to see investigated.

Chair

I would like to come back to the neutrality issue in a moment, but Mr Roy first.

Lindsay Roy

The Scottish press, as you know, is dominated by referendum issues. How challenging is it to get a balance, particularly from the readers’ point of view and the comments that come in about the Paper and its production?

Michael Settle

It is very challenging. I do not think I have ever been in a time where the sensitivities have been so intense. You are being watched every step of the way to be balanced and fair. We bend over backwards to try and be that. You are not going to please all of the people all of the time because it is a very divisive issue. You only have to read the comments online after a piece that you have written to see just how strong and divisive people’s views are. This is pretty much a black and white issue, and people are very passionate about it, so you have to be really careful and tread a very fine line.

Chair

Can I ask about the neutrality of the conduct of the machinery of government itself? It is quite surprising, some would say, how quiet many in the business community have been in Scotland—that they are reluctant to speak out because of the way they feel under pressure. Have you any evidence of how pressure is applied to businesses to keep them quiet? I remind you that you are speaking under privilege here. You can say anything without fear or favour; indeed, you have an obligation to tell us the truth.

David Maddox

The only evidence I have come across are statements that have been made here by people like Admiral Lord West, for example, and various claims that have been made. No businesses have actually come forward and said to us that this is happening to them: that they cannot speak because they are being directly intimidated or they are being told that they will not get a contract. There is a lot of suggestion that it is happening, but I am not seeing any actual evidence of it happening. If it were happening, there probably would not be a paper trail anyway.

Chair

So it may be happening.

David Maddox

It may be. Certainly, it has been mentioned enough to suggest that it might be happening, but there is no evidence to support it.

Chair

Nobody has come forward, even off the record.

David Maddox

No.

Michael Settle

Politicians have mentioned this from time to time, particularly those on the pro-UK side. They are very frustrated that businesses have not spoken out. They say things to them privately, so they say, but publicly they will not speak out. Like David, I have never come across any business suggesting that this is the case. It is just what people are claiming.

Chair

Professor Mitchell.

Professor Mitchell

I have nothing to add. I have certainly not seen any evidence. I hear the claim that is frequently made that there is pressure; whether there is or not, I am not sure. I do not know, but I have certainly not seen any evidence.

Chair

How confident are you that it is not happening?

David Maddox

I could not say one way or the other. In the recent controversy over CBI Scotland declaring for the “no” camp, one of the reasons suggested for that was it was acting as a public face for many of the businesses who felt too intimidated—I think that was the word used to me—to come forward. But, again, there has not been any actual hard evidence to suggest it is true or not.

Chair

Mr Settle, how confident are you that it is not happening?

Michael Settle

I honestly do not know. All we have are claims and counterclaims.

Professor Mitchell

One observation I would make is that, if one looks at the powers of the respective Parliament’s Governments north-south of the border, it would seem odd to think that the Scottish Government would be in a position to put much pressure on business. Equally, the UK Government would be very unlikely to do so as well. I wonder, frankly, if this is just part of the froth of the referendum.

Chair

Understood. What impact has the publication of Sir Nicholas Macpherson’s advice had on the debate in Scotland?

Michael Settle

The currency union issue, the issue of the pound sterling, has been the dominant issue thus far. There is no question about it. I go back to what I said in the beginning: it is reflective of how high the stakes are.

Chair

What impact has the publication of that particular advice had on the debate?

David Maddox

The publication of that advice plus the three Chancellors and Shadow Chancellors coming out certainly saw a widening again in the opinion polls in favour of the “no” side. Then there was a narrowing, again, when there was that off-the-record briefing of the Minister to The Guardian. On the evidence of polls, there did seem to be some impact.

Chair

How essential do you think it has been for this advice to be published in terms of the conduct of an objective debate?

Professor Mitchell

There was much media coverage of the advice and the BBC majored on this and the fact it was the permanent secretary. Now, I suspect very few members of the public remember that particular detail. People are aware of the issue. As Michael rightly said, it has been a very important issue, but, in terms of the impact of the Permanent Secretary, I am afraid the public do not engage in that way in politics.

Chair

So how helpful was it?

Professor Mitchell

It may have helped among the opponents of independence to sustain the case, and no doubt they were making this point—repeating this point—in their speeches, but I am not convinced it has had a huge impact. The evidence suggests that it has not had a huge impact at all in the polls.

Chair

I am going to go back to Professor Mitchell before he rushes out to catch his aeroplane. What precedent do you think it sets? Obviously, the two senior civil servants before us earlier were very keen to suggest that it had not really set any kind of precedent, it was all part of the same continuum and there has been no change. Do you see it as setting a precedent?

Professor Mitchell

Potentially, it could be a precedent in terms of the behaviour of civil servants in relation to the Scottish question. I do not think of it as a major precedent in terms of the EU referendum for the reasons I gave at the outset. I think Sir Nicholas and other senior officials would be wary of engaging in this way in a referendum or any other matter, knowing that there might be a Government taking a different view coming into office at some stage in the future. I would be wary of making many assumptions about it as a precedent.

Chair

Are there any other questions for Professor Mitchell?

David Heyes

I was really attracted to your view, if I have understood it correctly, that the Civil Service Code is based on the idea that we do things this way because we have always done things this way. It seems to me that this has served to expose the flimsiness of the Civil Service Code. I wondered if you would expand a little on that.

Professor Mitchell

It was a codification of past practice, frankly. I look at it and I think back to civil servants I have known over many, many long years and I am not convinced it has fundamentally altered the behaviour of the Civil Service. That said, it may be flimsy, but trying to find an alternative is extremely difficult. It may not be perfect, but I would be wary of suggesting an alternative. It should be called a code because it codifies past practice.

Lindsay Roy

Professor Mitchell, to what extent are you surprised that neither the Head of the Civil Service in the UK nor in Scotland were aware of any breaches of the Civil Service Code, given the number of people employed in the Civil Service?

Professor Mitchell

That is an interesting question. By breaches, I think they would probably have interpreted that as major breaches that were highly sensitive and suchlike. I guess there probably have not been very many, if any. If there were, we would be aware of it. Frankly, the role played by yourselves and these gentlemen has a huge part in ensuring there are not breaches. The slight worry would be that there is an assumption that all is well in garden and we should not worry about it.

Lindsay Roy

It is complacency.

Professor Mitchell

I would not want to go as far as to suggest that, but we would always want to guard against the dangers that you rightly identify.

Kelvin Hopkins

I have to say, Professor Mitchell, that I think you have been blurring together two issues: what has been said and who said it. Had the Macpherson letter been spoken in exactly the same terms by the Chancellor of the Exchequer, it would have been legitimate. The fact that such a political statement was made, including references to the European Union, by the Permanent Secretary to the Treasury was the significant political point. Blurring those two together is not helpful.

Professor Mitchell

No, I agree with that. Sir Nicholas’s intervention was highly unusual. It did go beyond that which should have happened. I do not doubt that, but I do think that it is an exception. What I have set out to do is to try and explain why I believe it happened and why I believe it is unlikely to happen in the future, but I do think he overstepped the mark on that, yes.

Chair

Were you surprised that Sir Peter had never read the Northcote-Trevelyan report or the Haldane report?

Professor Mitchell

No, I was glad to see that he was honest about it. In a sense, it does not worry me either. As someone who has read it many years ago, I am very much aware of the evolution of thinking and, in a sense, I would suggest that the Civil Service Code can be traced all the way back to that. Of course, Northcote-Trevelyan were concerned more with issues of patronage than the kind of issues that you are talking about today. No, I would not be at all concerned about that. I would be much more worried if he was unaware of the current concerns than unaware of Northcote-Trevelyan. I do not think we are likely to go back to the patronage problems.

Chair

Is there not a danger—or how great is the danger—that if politicians increasingly want civil servants to say in public what they want, they are going to feel increasingly entitled to have a say over who those senior officials are and how they are appointed.

Professor Mitchell

Yes. Again, to come back to the point I made earlier, a case can certainly be made for that. The IPPR report, which is an extremely good report, although I am not convinced, makes that case. There is something to be said for that. It comes down to some very tricky decisions. It is not a black and white issue; there are a lot of grey areas. Acknowledging that there are grey areas is a very important first step. If one tries to create a black and white area around these issues, it will lead to all sorts of difficulties.

Chair

I must let you go, but, finally, on the argument that we still have a unified Civil Service in the United Kingdom excluding Northern Ireland, what did you make of the defence of that position that we heard earlier?

Professor Mitchell

The first observation is that, in a sense, we have never had a unified Civil Service. If you go back to the pre-devolution period, the Scottish Office was almost a law unto itself. Indeed, different parts of Whitehall have been baronies; Heclo and Wildavsky, two American political scientists who wrote on Whitehall many years ago, commented on this. We can overstate the extent to which devolution has affected things. That said, yes, I think things have progressed further and, informally, there is a distinct Scottish Civil Service. There always has been, but it is more distinct now than it was in the past.

Chair

Is it any surprise to you that the Civil Service in London is unable or unwilling to attempt to regulate the code in Scotland?

Professor Mitchell

That is a pragmatic decision and probably a sensible pragmatic decision.

Chair

Which reflects a political reality, if not a legal reality?

Professor Mitchell

Yes. One of the things we did not do when we established devolution was to pay sufficient attention to issues of governance, including issues of the Civil Service. I am not saying here that we should have an independent Civil Service. I can understand why that was not wanted at the time, but we may have to revisit that issue at some stage in the future.

Chair

With that thought, I am most grateful to you. Thank you very much for joining us. I hope you have enjoyed the morning. It has certainly been interesting from our point of view and we are very grateful for your contributions. Oral evidence: Civil Service impartiality and referendums, HC 1149 38