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The EU referendum – the role of ministers and the Civil Service during the campaign

Today marks the beginning of the formal EU referendum campaign period. As the official campaign begins, Dr Catherine Haddon looks at the restrictions on the role of the Civil Service and how they affect government.

Alongside the rules for the official campaign groups on how they can act, what money they can spend and what publicity they are able to put out, the next 28 days also sees a change in the role of the Civil Service in supporting the Government over the question of the UK’s membership of the European Union.

Cabinet Secretary Sir Jeremy Heywood has now issued guidance for the period leading up to the EU vote. Over the next 28 days, ministers will not be able to call on civil servants for referendum-related publicity, help write speeches for the campaign, organise referendum events, put out new arguments or provide other similar support.

The overall message of the guidance is similar to other guidance issued before local and European elections and before the Scottish referendum, and the Civil Service Code, that ‘public resources are not used for party political purposes’ and that civil servants should not ‘undertake any activity which could call into question their political impartiality’.

However, there are a few areas where the guidance is focused on some of the key concerns that have been expressed about the role of the Civil Service more generally in supporting the government over the EU referendum campaign.

Unlike previous guidance, this one places more emphasis on publishing material on referendum-related topics. In other elections, while restrictions on publicity exist, most of the conventions around civil service conduct and support to ministers are based on the Civil Service Code, not statute. But the statutory restrictions in the 2015 EU Referendum Act and the heated atmosphere of the debate mean that the Civil Service needs to be even more careful.

For instance, the new guidance emphasises that statutory restrictions about publicity are defined widely to include ‘both the spoken and written word, and all forms of communication, including social media’. The use of social media and websites has been a murky area. Last year the Government argued that the restraints caused too many complications, for example over ministers’ use of their twitter accounts. Concerns have also been raised about websites. In the period before a general election government websites remain in place, but are not used for new announcements or for publications that would conflict with the guidance. Criticisms have been raised about the existence of an EU referendum website on gov.uk and the degree to which other parts of the Government’s website directs people towards it. The guidance suggests that website will be considered ‘part of the public record’ and remain in place, but that online links, presumably from the rest of gov.uk, should be removed.

Likewise, the guidance is more specific than previously on support for external events, which ‘should be handled by ministers without official resources’ and that Civil Service or special adviser support should only be provided through ‘factual briefing and fact-checking of speech material and diary logistics’ (the latter including close protection support).

Getting to this point has been a long and complicated journey. The previous debates on what role the Civil Service should play in supporting the Government to make their case, or not supporting pro-Leave ministers, helps explain the guidance that’s now been issued.

The Government initially attempted to forego any pre-referendum restraints on Civil Service support, arguing that a referendum was wholly different from an election campaign and remaining in the EU was the Government’s official position. But Leave campaigners argued that this would unfairly prejudice the campaign and the Government agreed to keep the 28-day period for special restrictions. The Government did retain the right to use official resources to make the case before the formal campaign period and so has published two papers in recent weeks setting out the Government’s economic arguments for remaining. This was similar to the position before the Scottish referendum campaign, where both the Scottish and UK governments were able to use their respective civil services to make their case.

Matters were complicated further by the suspension of collective Cabinet responsibility on the EU referendum topic. The Prime Minister set further constraints on support dissenting ministers could get in order to make their case. That caused a robust response from pro-Leave campaigners, including the Head of the Public Administration and Constitutional Affairs Select Committee, Bernard Jenkin, that more clarification was needed about what precisely was being denied to pro-Leave ministers.

Sir Jeremy’s latest guidance should now help separate out the campaign from the ongoing course of government. For the majority of civil servants the restrictions are not onerous and, unlike general elections, won’t affect day to-day government business (though in practice, ministers may be just as distracted).

Civil servants might give a sigh of relief that they may now be kept out of what has become a heated contest. But with ministers sitting on both sides of the battle and continuing arguments over whether the game is being played fairly, both the Prime Minister and the Civil Service will need to be alive to the dangers of overstepping the boundaries that the guidance provides.

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