We appear to be witnessing an attempt to create a new taboo. Lord Turnbull, former Cabinet Secretary under Tony Blair, has likened accusations of bias on the part of Treasury officials to attempts to blame Jews, socialists, communists, liberals and civilians for Germany’s defeat in the First World War (“Brexit attacks on civil service are worthy of 1930s Germany”, The Observer, 3 February 2018). Lord Turnbull’s stern adjuration was swiftly parroted by Chuka Ummuna MP, who described attacks on the civil service as a dark and dangerous attack on democracy, with a strong whiff of the 1930s (“A direct threat to British democracy: Tory Brexiteers denounced by Labour MP”, The Independent, 3 February 2018). These views were expressed in response to Jacob Rees-Mogg MP’s accusation that Treasury officials were drawing up economic models deliberately to undermine Brexit.

So, one may not attack the civil service. This is on top of the taboo in the wake of Miller/Daily Mail against intemperate attacks on the judiciary. Overly-vigorous criticism, or perhaps indeed any criticism, of the State’s non-elected officials will, so the story goes, send us down the road of becoming a semi-fascist state.

This argument does not, however, really stack up viewed against the backdrop of constitutional history, which is littered with accusations of the political bias of the civil service, more often from the Labour Party than from the Conservative Party.

For example, Marcia Williams, Political Secretary to Harold Wilson, commented on the 1964-70 Labour government that “the electorate believes that on Polling Day it is getting a chance to change history. The reality is that in many cases the power remains with the civil servants who are permanently ensconced in Whitehall.”

Williams gave short shrift to the claim of civil service neutrality: “Are they really neutral as they so often claim with such sanctimonious self-satisfaction?  But what is neutrality anyway, within a body with such immense power over so many lives?” Reflecting on the civil service’s class nature, Williams reflected that “it is small wonder too that their whole background is so conservative in origin that their inclinations must be more to the Right than to the Left…. Without reform at the roots the vicious social circle will preserve the status quo.” As such, Williams claimed that the civil service favoured Conservative governments over Labour ones (Marcia Williams, Inside Number 10, London: New English Library, 1972: 274-281).

Williams’ sentiments are corroborated by The Crossman Diaries in which Richard Crossman chronicles the “running battles” which he had with “the Dame” – top civil servant Dame Evelyn Sharp – and the way she continuously tried to sabotage or emasculate legislation which she herself detested, such as that on leasehold reform.  (R. Crossman, Diaries of a Cabinet Minister, Volume 1: Minister of Housing 1964-6, London: Book Club Associates, 1975: 620).

As for civil service political bias in favour of European integration, Tony Benn sensed its emergence during the 1974-79 Labour government: “If British officials had to choose between the waning powers of British ministers and the British Parliament and the growing strength of the European bureaucracy, they would choose the latter.  …  Every minister who has a big volume of European business is represented on a whole host of committees in Europe by officials.  … This move towards official control is a shift from Parliament to officials.” (T. Benn, Arguments for Socialism, Harmondsworth: Penguin, 1979: 165-6).   Benn’s argument would, of course, make the civil service judges in their own cause on matters of Brexit.

As mentioned earlier, the present controversy is reminiscent of the earlier fracas over whether it was acceptable to call judges “enemies of the people”. Establishmentarians argued that such exercise of free speech would lead to a semi-fascist state. The fact that this country’s most famous law monograph – J.A.G. Griffith’s The Politics of the Judiciary – argues that judges have been precisely the enemies of Britain’s underprivileged majority, was conveniently ignored. History was rewritten in favour of deference to the Establishment. In fact the political nature of the judiciary and the political nature of the civil service have much in common. It is human nature that people do not live their lives in a series of hermetically sealed containers and that their political views are bound to seep out into their work, be it judicial or governmental. The question of the social class of people who become top judges and top civil servants is also pertinent in this regard.

Given the track-record of the civil service, the question of whether Treasury officials are indeed being politically biased is a controversy which deserves to be debated on its merits.  Such debate might well involve consideration of the detailed content of the Treasury’s reports, of the Treasury’s track-record in making economic predictions (e.g. the banking crisis 2008), and of the broader role of officialdom in fashioning Treasury policy. The political impartiality of the civil service cannot credibly be “taken as read”. Rather, it should be the subject of vigorous analysis and argument, by political actors, commentators and scholars alike. Attempts to stifle such argument at birth, by cocooning the civil service from criticism and likening its critics to Nazis, should therefore be resisted.

Danny Nicol, Professor of Public Law, University of Westminster

(Suggested citation: D. Nicol, ‘Civil Service Impartiality, Free Speech and the Nazi Comparison’, U.K. Const. L. Blog (6th Feb. 2018) (available at https://ukconstitutionallaw.org/))