Official Advice, Bored Ministers, and Europe’s Roadblock
Sir Ivan Rogers’ resignation has stimulated a debate about the role of senior civil servants and their relationships with ministers. Given the encomia that Sir Ivan has received from many people whom I respect, I have no doubt about his ability, expertise, knowledge, and diligence. I am, moreover, assured by friends who know him that he is no Europhile, and is fully alive to the defects of the EU’s institutions and its policies. He is not a stereotypical diplomat from central casting, but rather a Treasury official who did a stint in Sir Leon Brittan’s Cabinet in the Commission, then returned and became the Prime Minister’s private secretary. He was the UK ambassador in Brussels who instinctively understood Euroscepticism. Yet his professional career illustrates several lessons about the practicality of transacting UK Government business in an EU context, the professional relationship between civil servants and ministers, and the approach that British ministers take to Europe.
Membership of the EEC fundamentally changed the British constitution…
Before I go any further, let me make it clear that, having been a politically-appointed special adviser in Whitehall departments, I remain an unambiguous supporter of a permanent and politically-neutral civil service. But that is not the real issue raised by Sir Ivan’s resignation. Membership of the EEC in 1973 changed the British constitution in fundamental ways. The present litigation in the Supreme Court, and the divisional court judgment delivered by the Lord Chief Justice in the Miller case, illustrate this for any lawyer, politician, or journalist harbouring lingering doubts about what accession to the Treaty of Rome, in practice, involved. That accession also changed the practical working of Britain’s institutions, the relationship between the legislature and the executive, and the role of civil servants and ministers.
… thus empowering the executive
The role of the executive was massively extended and enhanced. Whole areas of policy were taken out of domestic policy, and placed in a supranational context where decisions affecting the UK were made by councils of ministers. UK ministers could participate in and attempt to shape the agenda, but they could not control it or, in practice, block something they did not like. A huge range of detailed decisions were taken in Brussels and reported back to parliament as a fait accompli.
In all EU countries, this process transferred effective power from legislatures to executives. It is at the heart of the democratic deficit that the EU has exhibited from its start. One of the first countries to recognise this was Denmark. Danish ministers had to adjust to an unwelcome popular reaction to EU legislation. This popular dissatisfaction eventually led to Denmark rejecting the Maastricht Treaty in 1992. This was the first clear evidence that the central European political project of creating a federal political union had neither popular support nor the convenience of being quietly accomplished by technocratic stealth.
Transacting EU business bores British ministers
Transacting business at the various councils of ministers changed life for British ministers. A UK secretary of state within their department in Whitehall is cock of the walk. When they attend an EU council of ministers they are one of 28. Very often, neither they nor their officials know what is happening, or, alternatively, find themselves wrong-footed. Deals done with other governments have a habit of being undone and traded away with the Commission for other, often unrelated, but more important interests to the governments involved. Few British ministers have been effective at EU ministerial councils. Among the effective is Michael Gove, who took an engaged and alert interest in the preparations for the UK negotiating position whenever he was involved with a council. Most ministers are bored by them. As Chancellor, Gordon Brown grumbled that he could not control the agenda, and made little active effort to engage with them.
Official advice is delivered from a playbook inspired by the Book of Job
Much of the work is, in practice, done by UK officials going over to Brussels and reporting back on the limits of what can be achieved — and, more often than not, what has gone wrong. From their perspective, officials operating within a highly-constrained environment, report on a job that has been done well, even though it may not satisfy the political agenda of their government, and may be contentious in parliament and with the public at large.
There is nothing new in this. It is how I remember life at the Department of Employment and the Treasury from the late 1980s. There was a litany of issues where this was played out: European monetary union, the ‘hard ECU’, the Social Chapter, the Working Time Directive, and the management of the Common Agricultural Policy. Sometimes, spending departments thwarted the Treasury by losing in the Council. One morning we woke up to discover that Ministry of Agriculture had agreed for environment payments to farmers to be placed within the CAP. This was something that the Treasury had resisted, because it meant that even more farm spending would be out-with UK financial control. I never quite got to the bottom of what really happened. Was it the naughty handiwork of a minister using the EU to circumvent Treasury control, or ministers and officials simply being overcome by the constrained environment in which they operate at the European Council?
This constrained environment means that officials often explain to ministers how limited their policy options are, given EU obligations. There is no doubt that some officials are temperamentally inclined to take on a ‘Job’s comforter’ role when helping their minister to appreciate the facts of life. In delivering these home truths, they can display a certain malicious professional satisfaction in explaining the constraints of EU obligations. With other officials, it is simply an accident of personal manner. For many years, a delightful person had responsibility for UK labour-market policy in Europe, who was a civilised, former modern-languages teacher, kindly, and very even-tempered. Yet when explaining the isolation and practical difficulty of the UK’s position in the Council of Social and Employment Affairs, this official could not avoid luxuriating over how, in practice, it would be impossible to achieve the department’s agenda — and more importantly, for the Secretary of State, the agenda of the Prime Minister. Indeed, advice was almost oblivious to domestic political imperatives, even when they were expressed by the Prime Minister herself.
The limits of professional expertise in the context of EU institutions
In all the tributes published to celebrate the contribution of Sir Ivan, none of them appear to have noted the limits of what he and his colleagues — with all their experience, professionalism, expertise, and acumen — could hope to achieve. The British civil service has been pursuing Britain’s interests in Europe since 1973. Yet what has been achieved? The farm policy still absorbs about 40 per cent of the EU budget; the so-called veto has been exposed as useless; and significant parts of day-to-day ordinary policy, that governments get right and wrong, are passed into EU single-market legislation, and, in practice, take on the characteristics of entrenched legislation more usually associated with constitutional rules. The roadblocks are a lack neither of ministerial will nor official expertise, but of the institutions of the EU itself.
Hyperbole and the right of a minister to change the permanent secretary
Much of what has been written and said about Sir Ivan’s resignation is hyperbole. He was no more a euro fanatic sabotaging the government’s plans to leave the EU, than his resignation represents the end of the neutral civil service in the Northcote-Trevelyan tradition. As Sir Douglas Wass — the long-serving permanent secretary at the Treasury who died this week — said in his 1983 Reith Lectures Government and the Governed, ministers and civil servants have to get on, and ‘if incompatibility does arise, a minister should be able to remove his permanent secretary’.