The government's request to the Treasury for opposition costings would have been released at the last possible moment before election campaign restrictions kicked in and well after the parties had already started campaigning in earnest. It therefore risked the very thing the election guidance is supposed to avoid – the perception that government resources were being used in inappropriate ways.
Strictly, the government was within its rights to ask the Treasury to cost opposition policies – and to have them published – up to the date of the start of the formal campaign on 6 November.
Costing opposition policies isn’t new. The civil service has been doing this at ministers’ request since at least the 1950s. Both Conservatives and Labour when in government have used this resource, publishing throughout the parliamentary calendar and particularly in the run-up to an election.
The government’s right to do so is based on the grounds that the civil service provides advice to the government on its own costings and can provide some factual information to MPs and peers about government policies. Costing opposition policies is seen as a continuation of this function and one of the benefits of being in office. As the directory of civil service guidance says, "since departments provide factual answers to MPs and peers about the costs of identifiable changes in activities or benefits, there is no objection to officials providing ministers with similarly factual information about clearly identified opposition policies."
Governments from both parties have used this resource in the run-up to an election. Between 2008 and 2010, the Treasury was asked to undertake 38 such costings by the Labour government, although only about half were completed. They covered Conservative policy ideas such as marriage tax breaks, changes to stamp duty, and proposals for high-speed rail.
Governments do release such costings right up to the dissolution of Parliament. In 2015, Treasury costings continued up until 27 March – with the dissolution of Parliament on 30 March. Importantly, however, these were the last of the costings produced by the Treasury because the election date, thanks to the Fixed-term Parliaments Act, was long-expected.
But government access to this resource ceases when the formal election campaign gets underway with the dissolution of Parliament and the guidance about the civil service's role during the campaign period is issued by the Cabinet Office.
There are good reasons why ministers are told not to ask the civil service for opposition costings during an election campaign. The 2017 guidance sets out that during an election departments "should not undertake costings or analysis of opposition policies". Nor, too, should they be asked to "devise new arguments or cost policies for use in the election campaign" by the government. The guidance is intended "to avoid any criticism of an inappropriate use of official resources".
Sir Mark Sedwill seems to have taken the view that releasing these costings a few hours before the formal election period started, and when all the parties including the government had already started campaigning, would have risked offending the spirit of the guidelines.
The dilemma for Sir Mark Sedwill was that either publishing the costings or refusing to do so risked dragging the civil service into a political row. Allowing them would have risked accusations throughout the campaign that the civil service had been used for political purposes. Not doing so has meant a row with the chancellor and heavy criticism that he has breached precedents.
For all the storm around this decision, there is no clear right and wrong. His decision was in line with the spirit of the principles although not the letter. What is more, it came after several years of intense political heat when the impartiality of the civil service over Brexit has been called into question by both sides when they did not like civil service conclusions. His judgement was to come down on the side of protecting civil service impartiality and it is no bad thing that a cabinet secretary displays that reflex.
The dilemma does show the need, however, for more clarity in the rules – and when precisely an election campaign is thought to start. The reality is that once Parliament has voted for an election, politicians, both opposition and government, start campaigning. In 2017, Jeremy Heywood, then cabinet secretary, told civil servants to be more careful on sensitive issues as soon as the vote went through. This week’s controversy shows why it would be worth making that the basis of the guideline.