Grammar Schools, Green Papers, and Government Spin Doctors

The publication of the ‘Schools That Work For Everyone’ Green Paper*, the consultation period for which closes very shortly, and the recent discussions about how the DfE is choosing to promote the proposals on social media, have exposed an (understandable) lack of recognition both as to what government consultation documents are for, and what role communications and press teams play in the modern civil service.

First of all, the Green Paper itself. The Parliament webpage defines Green Papers as documents which “set out for discussion, proposals which are still at a formative stage”. This is in contrast to White Papers, which are more advanced, and contain specific proposals for legislative change.

So a Green Paper is written when thinking is less developed, and seeks views on a number of different proposed options, or even asks open ended questions about which other options which could be considered. But what it does not do — at least not explicitly — is ask for views as to whether a policy should be pursued in the first place. A Green Paper is only produced once a decision has been taken, in principle, to enact a change — the Green Paper asks ‘how’. Of course, Ministers may change their minds, and indeed responses to Green Papers often put forward the view (politely, or less politely) that none of the options are suitable and the Government should think again. But to express confusion as to why there is no specific question in this Green Paper as to whether the Government should do any of this in the first place, misunderstands the constitutional purpose of these documents.

Secondly, then, the role of communications from civil servants. As far back as the Fulton report into the civil service in 1968, it has been recognised that a distinction that only Ministers pronounce and explain government policy, whilst civil servants remain entirely anonymous, wasn’t tenable. The Fulton committee concluded that

“the convention of anonymity should be modified and civil servants, as professional administrators, should be able to go further than now in explaining what their departments are doing”

This is very much the case in 2016. It is now relatively commonplace for senior civil servants to be questioned publicly by Select Committees, for example. Increasingly, civil servants also accept public speaking engagements to conferences and seminars where they can explain the government’s thinking, and some individuals (for example in education, the National Schools Commissioner Sir David Carter, or the DfE’s Chief Analyst and Chief Scientific Adviser Tim Leunig) run social media accounts. But the most notable way in which the DfE communicates ‘officially’ and publicly is via its own Twitter account — with 225,000 followers. And here’s where the second controversy and confusion occurs.

Recently, the DfE account has been enthusiastically tweeting out statistics and arguments in favour of the Green Paper proposals. In one instance, as noted in one of the weblinks above, they have been forced to delete a tweet after the UK Statistics Authority ruled it an improper use of data. But there is also a wider view that has been taken by many that the promotion of policy in any way, in such a politically contentious area, goes beyond what is permissible from officials.

To get an understanding of this admittedly very grey area requires understanding two documents — the Civil Service Code, and the Civil Service Propriety Guidance. The former sets out the four key duties of all civil servants:

‘integrity’; putting the obligations of public service above your own personal interests
‘honesty’; being truthful and open
‘objectivity’; basing your advice and decisions on rigorous analysis of the evidence
‘impartiality’; acting solely according to the merits of the case and serving equally well governments of different political persuasions

Taking the ‘objectivity’ principle further, the Code makes clear that

You [i.e. civil servants] must:
· provide information and advice, including advice to ministers, on the basis of the evidence, and accurately present the options and facts
· take decisions on the merits of the case
· take due account of expert and professional advice
You must not:
· ignore inconvenient facts or relevant considerations when providing advice or making decisions
· frustrate the implementation of policies once decisions are taken by declining to take, or abstaining from, action which flows from those decisions

However, what is vital to understand is that this conduct relates almost entirely (with the exception of the last bullet) to confidential advice from civil servants to Ministers. This is where speaking truth to power is not just advisable, but required. A civil servant who does not privately present all the relevant information and advice, including accurately summarising all facts, even inconvenient ones, is indeed acting contrary to the code**.

However, once Ministers have made a decision in principle to pursue a course of action — even one that may be thought to run contrary to the information and facts — civil servants are then under an equally strong obligation to implement that decision. The last bullet point of the objectivity principle, indeed, specifically bars civil servants from ‘frustrating the implementation of policies once decisions are taken’.

This is not just a theoretical issue; indeed I experienced it many times during my time in government. I was under a duty to present my best opinion as to the way forward on questions asked of me by Ministers — and indeed, had (sometimes prolonged) discussions with them as to how to proceed. But when decisions were made — even if they were not what I had recommended — I was under a duty to help enact those. ‘Advisers advise, Ministers decide’, to quote my A Level Politics textbook (and Margaret Thatcher).

The propriety guidance then sets out how civil servants must act when taking forward a decision. It is particularly salient when it comes to civil servants who have an external facing role, particularly press and communications officers. This says:

“It is the duty of press officers to present the policies of their department to the public through the media, and to try to ensure that they are understood. The press officer must always reflect the ministerial line clearly, even where policies are opposed by opposition parties. As part of the Government’s duty to govern, it needs to explain its policies and decisions to the electorate. The Government has the right to expect the department to further its policies and objectives, regardless of how politically controversial they might be.”

Furthermore, press officers are told that they should:

Present, describe and justify the thinking behind the policies of the minister.
Be ready to promote the policies of the department and the Government as a whole.
Make as positive a case as the facts warrant.

In other words, it is not wrong for a civil servant to work, in good faith, to put a positive case on any government policy, no matter how contentious. Indeed, they are not only allowed, but required, to promote such policies.

And that is what civil servants speaking publicly do — whether in briefing journalists or speaking on a conference platform. Their role is to act as spokespersons for elected Ministers’ decisions. To the extent that they acknowledge downsides, or trade offs, or weaknesses in arguments, they should only do so when reflecting what the government more generally has acknowledged (and indeed, to return to the subject of this blog, as the Green Paper itself does).

This is not to say, of course, that confidentially, in ongoing discussions and formulating of policy, they don’t reflect on the points made to them and amend the advice they give to Ministers. But such discussions are private and must not be acknowledged publicly.

This is, as noted above, a grey area. There is a fine line between making as positive a case as the facts warrant, and going beyond this by misrepresenting statistics (which was at the heart of Jonathan Portes’ complaint to UKSA) or to in effect make a party political statement, which is not allowed. As the UKSA upholding of Portes’ complaint shows, government actions are not always the right side of this line. But it is important to note that it is not wrong, in principle, for a neutral civil service Twitter account to enthusiastically promote in-principle government decisions — and nothing wrong in Green Papers not asking whether such ideas are a good idea.

– – – – –

*Karen Wespieser and Louis Coffait have correctly pointed out that DfE no longer call it a Green Paper, as it is not a ‘command paper’ which has received royal assent (or royal command) to be presented to Parliament as a formal document; it is instead just a consultation document (or condoc). But the title of this piece relies on alliteration — and exactly the same arguments apply as to why such documents only ask “how”, not “whether”, regardless of what they’re called— so I’m not changing it.

** the whole issue of the confidentiality of advice from civil servants to Ministers is now slightly more complex since the advent of Freedom of Information. Two of the exemptions to the Act are sections 35 and 36, which relate to the ability of such bodies to refuse requests on the grounds that such information is part of the government policymaking process, or is prejudicial to the effective conduct of public affairs, respectively. However, such exemptions are known as qualified exemptions, which require a public interest test to be undertaken. If it is felt that the public interest in releasing such information outweighs the need to keep advice confidential, then the Act says it should be released. It is therefore no longer true to say that automatically, all advice from officials to Ministers is confidential.