Try to imagine what life is like now in the civil service. You have spent the summer explaining to your family and friends that holidays have been put off so you can work on no-deal planning – you need to understand and manage the customs issues, supply chains and other business requirements, plus readiness to ensure smooth running at our ports. In addition you have been told to prepare a spending review, a budget and a programme for the next session of parliament to be announced in the Queen’s speech. And, of course, some of you are working on getting a deal so we can leave the EU in an orderly fashion.
My guess is that you have been thinking creatively about how to resolve the backstop issue but must have been disheartened to hear that many ERG members now say that even this will not be enough to gain their support. They want other changes that may be even harder to get approval for from the EU. For some of them – and clearly Nigel Farage is in this camp – the only acceptable Brexit is a no-deal version.
My message to my former colleagues is one of thanks for all this work and a reminder that it is their number one job to implement the government’s programme, having advised on its merits and accepted whatever decisions are made. We are very fortunate in having an excellent civil service that is highly regarded around the world, but its capacity is being severely tested by Brexit, which is a much bigger problem than anything I had to deal with.
Some have suggested that the civil service should down tools and resist the instructions of ministers: when exactly does speaking truth to power mean that you say “No, Minister”?
Obviously, the first instance is when the proposals are illegal. You don’t implement the programme to kill the firstborn as part of a drive to reduce the cost of nursery provision. Sometimes there are proposals of questionable legality, for example something that might be seen to restrict an individual’s freedom, or favour one company over another. In such cases you need to advise ministers that it will be for the courts to decide if this is appropriate, and until then you tread carefully.
Then there are government plans that are a terrible waste of public money. In these cases permanent secretaries have the power to request a direction. This can then be examined by parliament through the Public Accounts Committee. All permanent secretaries will be facing some tough choices about seeking directives on issues related to Brexit. Many have already done so. This is not about the government’s policy of leaving the EU itself – but whether it is pursuing that policy in a way that represents value for taxpayers’ money.
In my experience, there are always grey areas: in a country with no written constitution, that is inevitable.
A great strength of our political system is that parliament provides a check and balance on the executive. For highly controversial issues such as going to war, or indeed leaving the EU, this is crucial, and why it is so dangerous to attempt to bypass parliament. Imposing anything against the explicit wishes of the elected parliament could be seriously destabilising to our system of government, based as it is on the ultimate sovereignty of parliament.
However, such action is not obviously “a constitutional outrage” – as some have claimed – while the courts can decide whether it is legal. Regardless, it is extremely hard to justify proroguing parliament for so long when it is just coming back from a lengthy recess and faces a very demanding workload.
It is for parliament to sort out these issues, not the civil service. If parliament’s actions or inaction lead to a no-deal Brexit, it is the civil service’s job to make no deal as successful as possible. I have every confidence it would do so with professionalism and integrity. One of the ironies of a potential no-deal Brexit is that the hardliners who advocate it are also relying on the brilliance of a civil service they have so enjoyed disparaging to mitigate the damage that would be caused by their no-deal dreams.
Since the parliamentary wrangling over Brexit began, many have wondered how resilient our constitutional arrangements will prove. Since the prorogation announcement, senior government ministers have been at pains to stress how robust the constitution is. Only time will tell if they are right. But our constitutional conventions are undoubtedly being severely tested.
Alongside the Queen, the one institution that is unambiguously living up to its constitutional responsibilities is the civil service. It is in all our interests that this continues.
• Gus O’Donnell was Cabinet Secretary and head of the civil service from 2005 to 2011