PACAC (Public Administration and Constitutional Affairs Select Committee) House of Commons · 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 SW1A2AS

8 March 2016 ~~ EU Referendu:::::ifor 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 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 ­ "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 prior 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 have a bearing on the referendum question or are 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 'relating 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 making 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 existing 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 at 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.

3 We would normally publish a letter to you such as this on our website immediately, but in this circumstance, we would prefer you to have an opportunity to consider our letter first, so we will wait for a response before doing so, though I hope that you will be able to respond within a day or two.

May I take this opportunity to remind you of the other matters about which you committed to informing us in writing:

1) Do you intend that your guidance should apply to all public servants, including those who are not civil servants, such as to departmental non-executive directors and to those appointed to boards of public bodies? 2) Did anyone in Number 10 or the see and/or approve HRH Prince William's 16 February 2016 speech at the Foreign and Commonwealth Office, before it was delivered? 3) Why was a Freedom of Information request, submitted by Jonathan Portes, for the number of active National Insurance numbers held by EU migrants withheld by HMRC on renegotiation-related grounds? As the renegotiation has been concluded, will this information now be released? 4) You suggested that the Government document, The Process of Withdrawing from the European Union (Cm 9216), had been cleared by the Department of Business, Innovation and Skills, but the Secretary of State and by the Minister of State for Trade and Investment prior to its publication. Can you let me know when this White Paper was sent to both of them and when each cleared it?

I look forward to receiving your response to these questions and this letter in due course.

Bernard Jenkin MP Chairman of the Public Administration and Constitutional Affairs Committee

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