Should I stay or should I go?

By: Martin Stanley

I apologise to Alexandra Hall Hall (and The Clash) for recycling the title of her recent paper (which is well worth reading in full) analysing the circumstances in which a permanent US or UK civil servant might be driven to offer their principled resignation. 

Alexandra resigned from the Foreign Office because she felt that she was asked to lie about the likely consequences of the UK leaving the EU Single Market and Customs Union. Her second paragraph will resonate with every public servant that has considered resigning because they are unhappy with what they are being asked to do. In it she draws a helpful distinction between resigning because you do not agree with a policy, and resigning because you believe that a policy is unethical or even illegal.

‘My resignation came after many months of internal struggle. As I agonized over my decision, I grappled with many of the same dilemmas that have faced other public servants, in both the United States and the United Kingdom, when tasked with implementing a policy with which they do not agree, or that they consider unethical or even illegal. Is our primary duty to the elected government of the day, even when it may be breaking the law or wilfully deceiving the public? Or is our duty to some broader notion of the “public good”? If the latter, how is that to be defined, and by whom? If we stay silent in the face of wrongdoing, do we become complicit ourselves? But if we speak out, are we breaking our pledge of impartial service to the government of the day and undermining the foundation of trust between politicians and officials? If we resign, do we let down our colleagues and institutions? Do we merely allow others with fewer scruples to fill our shoes? But if we stay on, are we knowingly violating our duty to provide ethical public service to our fellow citizens?’

Edging towards authoritarianism?

Let’s look first at resignations in protest at unethical/illegal policies. 

Stefan Czerniawski offered a fascinating analytical framework in Civil Servants Civilly Serve, which starts by considering the boundaries to the legitimacy of politicians’ decisions. He then considers how civil servants might respond if and when previously legitimate governments develop clear authoritarian tendencies. Here are some extracts:

‘There is a simple answer, which is to carry on regardless. That is the answer still being assumed, based fundamentally on the idea that the government remains the government until it stops being the government and that, for as long as it does so, it is not for the civil service to look behind the formalities of its continuing existence or to question its authority.

That position has some attractions: we don’t want to be in a world where the civil service takes it on itself to decide whether it likes a government enough to be prepared to work for it. But there is also a profound weakness … There is no shortage of examples, historical and modern, of states which have kept the forms of democratic government while edging towards authoritarianism. The difficulty is that when those forms fall away, it’s generally too late to do much about it. Before that point, though, there is inevitably judgement and ambiguity, with a very understandable temptation to see the continuity of what is legitimate and fail to see the discontinuity to what is illegitimate.

What should civil servants do if those boundaries are reached and crossed? In principle the answer to that is simple. At the point any civil servant judges that the democratic legitimacy of ministers has broken down, they must also accept that their ethical authority has also broken down. Whatever a civil servant does after that, they do as an independent moral agent, personally responsible for their decisions and actions. They may nevertheless choose to continue, accepting that responsibility. Or they may choose to walk away.

The institution, of course will remain. Authoritarian governments have civil services, just as democratic ones do. But the surface form hides a profound difference. In such a civil service, loyalty is ultimately to the holders of power, not to the idea of good government, and the consequences are very different. Those who choose to be part of them are choosing to accept those consequences.’ 

The need for such resignations is thankfully rare, at least in the US and UK. But I would put Jonathan Jones’ resignation in this category. He was the chief civil service lawyer who resigned in September 2020 over the government’s announcement that it intended to breach international law “in a limited and specific way”. 

He said in a subsequent interview that he was “perfectly satisfied that I did the right thing by me, and I did what I had to do.” However, he added, “I never, for a moment, tried to persuade anybody else that they should go. Plenty of people provided moral and personal support but in the end this was a highly personal decision for me, and others took their own decisions. Because the business of government has to go on.”

Ministers behaving badly

Let’s now look at the resignations of those who feel that their (non-authoritarian) government’s systems have begun to break down, or felt that they themselves could no longer operate effectively and/or ethically.

There are of course plenty of frustrated ministers in non-authoritarian governments, embittered by constant criticism and questioning from the Opposition, from the media, from the Lords, from lawyers, and from sceptical civil servants. It is hardly surprising that they sometimes respond by trying to bulldoze policies through, and hiding the fact that they are doing so. It is in consequence hardy surprising that their officials are sometimes asked to behave unprofessionally. What are they then to do?

Some do resign. Richard Haviland, for instance, has recently released his resignation letter which stresses that his decision was ‘based not on Brexit, but on what has ensued from it [including Theresa May’s] refusal to be honest with the British population about the implications of [her post-referendum policy] choices’. 

In most cases, however, the resignation decision is taken out of their hands. Dissenters will typically begin by politely refusing to acquiesce in dubious policy decisions, and/or gently challenging what they are being asked to do. But their dissent will be noted and – unless strongly backed by their bosses – their ‘corridor reputation’ and hence promotability will be negatively impacted. They will – rather sooner than later – find themselves in jobs where they are no longer (in the view of their permanent secretary) rubbing ministers up the wrong way. And if they are themselves permanent secretaries they will find themselves out of a job – accompanied by a good deal of taxpayers’ cash, as has happened to quite a few of them since Boris Johnson became Prime Minister.

It is rather harder to sideline or dismiss someone who questions the very legality of a government policy. Alexandra Hall Hall points to the example of Carne Ross who resigned from the FCO in 2004, after giving then-secret evidence to the Butler Inquiry – a review set up by the British government to examine the intelligence on Iraq’s weapons of mass destruction. He had concerns about the legality of the basis for war, that the case for war was being exaggerated, and that no serious effort was being made to explore alternatives to war.

Alexandra’s next example is another lawyer. Elizabeth Wilmshurst, former deputy legal adviser in the Foreign and Commonwealth Office, also resigned over Iraq, in March 2003. Her resignation letter made her reasons clear: ‘I regret that I cannot agree that it is lawful to use force against Iraq without a second Security Council resolution to revive the authorisation given in SCR 678.’ She noted that this was in contravention of the advice that her office had consistently provided. Although she made clear her readiness to resign, Wilmshurst sought and was eventually approved to take early retirement instead.

Not everyone who feels conflicted over government policy chooses to leave. Some make the decision to stay, and try to be a force for good from within. Alexandra Hall Hall quotes ex-US Ambassador Volker who does not think it is appropriate for civil servants to resign simply as a way of protest. He reserved his strongest criticism for those whom he believes tried to undermine the Trump administration from within, because in his view that only exacerbated distrust and fed the narrative of the existence of a deep state. ‘The only reason to resign is as a matter of personal choice. It’s not about changing the world but whether in good conscience you can continue what you are doing. The U.S. and U.K. are democracies, and the people who are elected have the right to decide. They have the right to make policy. If you don’t like it, that’s your issue. You can express yourself and have a clear conscience, but you can’t expect it to change policy.’

As well as lawyers, UK Diplomats and overseas development officials seem to hate being asked to talk nonsense or tell lies – at least when the lies are easily exposed. The dismissal of UKRep’s Ivan Rogers, for speaking truth to Prime Minister Theresa May is an excellent example, as is Alexandra Hall Hall’s own resignation. 

The effectiveness trap

Finally, let’s think about the essential question: can an unhappy official achieve more by leaving, perhaps with significant publicity, or by staying, and seeking to improve things from within?

James Thomson famously described ‘the effectiveness trap’ in his analysis of the disastrous Vietnam War, How Could Vietnam Happen? An Autopsy. It makes for both entertaining and sobering reading:

The effectiveness trap is … the trap that keeps men from speaking out, as clearly or often as they might, within the government. And it is the trap that keeps men from resigning in protest and airing their dissent outside the government. The most important asset that a man brings to bureaucratic life is his ‘effectiveness’, a mysterious combination of training, style, and connections. The most ominous complaint that can be whispered of a bureaucrat is: “I’m afraid Charlie’s beginning to lose his effectiveness.” To preserve your effectiveness, you must decide where and when to fight the mainstream of policy … . The inclination to remain silent or to acquiesce in the presence of the great men – to live to fight another day, to give on this issue so that you can be “effective” on later issues – is overwhelming.

Former FBI Director James Comey also summarised the problem very well:

It starts with your sitting silent while [President Trump] lies, both in public and private, making you complicit by your silence. In meetings with him, his assertions about what “everyone thinks” and what is “obviously true” wash over you, unchallenged …  because he’s the president and he rarely stops talking. As a result, Mr. Trump pulls all of those present into a silent circle of assent. … I must have agreed that he had the largest inauguration crowd in history because I didn’t challenge that. Everyone must agree that he has been treated very unfairly. The web building never stops. From the private circle of assent, it moves to public displays of personal fealty at places like cabinet meetings. While the entire world is watching, you do what everyone else around the table does — you talk about how amazing the leader is and what an honor it is to be associated with him.

So, you are well and truly trapped. A pathetic courtier if you stay. A hypocrite if you eventually leave.

Martin Stanley, was a Senior Civil Servant in the Business Department and Cabinet Office. He then became Chief Executive of the Better Regulation Executive, the postal industry regulator Postcomm, and the Competition Commission. He edits the Understanding the Civil Service website and is the author of Speaking Truth to Power and How to be a Civil Servant

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.