UK Constitutional Law Association

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Danny Nicol: Civil Service Impartiality, Free Speech and the Nazi Comparison

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/))

5 comments on “Danny Nicol: Civil Service Impartiality, Free Speech and the Nazi Comparison

  1. Pingback: Danny Nicol: Civil Service Impartiality, Free Speech and the Nazi Comparison | Top 100 Blog Review

  2. Jeb Bushell
    February 6, 2018

    Thanks for this. You’ve articulated something that’s been nagging at the back of my mind for a while. The USA seems to be in the same boat. Why not write an article for the New Yorker, or Bloomberg?

  3. Roger
    February 6, 2018

    I don’t think civil servants should be immune from criticism if there is a serious justification.

    In this case there is justification. Most of the “establishment” has been to put it extremely politely very reluctant to accept the outcome of the referendum (to their discredit) and act accordingly. That includes many (senior) civil servants and the BBC.

    As it happens, I think such recalcitrants are very slowly coming to realise Brexit will actually be healthy, I sense some softening in BBC output lately.

  4. Andrew David Thorburn
    February 6, 2018

    In the Queen’s speech of 2015 the following was said:

    “The purpose of the Bill is to:
    • Scrap the current 15 year time limit on the voting rights of British citizens living
    overseas for UK parliamentary and European parliamentary elections, including
    provisions relating to the registration of overseas electors.

    The main benefits of the Bill would be to:
    • End the disenfranchisement after an arbitrary 15 years of British citizens living
    abroad, enabling them to continue voting in UK Parliamentary and European
    Parliamentary elections.
    • Make it easier for overseas electors to cast their votes in time to be counted.
    • Encourage larger numbers of British citizens living abroad to register to vote in
    UK elections.”

    (the word arbitrary is only used once in the document)

    The above statements were made after a process (involving legal, political and moral theories) where civil servants were highly involved.

    So how come the civil servants allowed legislation to be used in the EU referendum that went against the “End the disenfranchisement after an arbitrary 15 years of British citizens living abroad, enabling them to continue voting in UK Parliamentary and European Parliamentary elections”?

    I’d like to hear that story.

  5. anyvoices
    February 7, 2018

    hi really enjoyed this blog would you consider allowing it and others to be shared on a free website http://www.anyvoice.co.uk would love to share you and your colleagues blogs on it . thanks

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This entry was posted on February 6, 2018 by in UK government and tagged , .
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