House of Commons Public Administration Select Committee Political Special Advisers

Written Evidence

List of written evidence

1 Professor David Richards, Professor Martin Smith and Mr. Patrick Diamond (SPAD 01) 2 Lord Butler of Brockwell (SPAD 02) 3 Committee on Standards in Public Life (CSPL) (SPAD 03) 4 Civil Service Commission (SPAD 04) 5 Professor Francesca Gains (University of Manchester) and Professor Gerry Stoker (University of Southampton) (SPAD 05) 6 Mr Simon Cramp (SPAD 06) 7 Michael Jacobs (SPAD 07) 8 Democratic Audit (SPAD 08) 9 Professor Robert Hazell, Dr Ben Yong, Peter Waller and Brian Walker – The Constitution Unit, University College London (SPAD 09) 10 Zoe Gruhn & Felicity Slater (SPAD 10) 11 RTHon Harriet Harman QC MP (SPAD 11) 12 Steve Bates (SPAD 12) 13 Cabinet Office (SPAD 13)

Written evidence submitted by Professor David Richards, Professor Martin Smith and Mr. Patrick Diamond1 (SPAD 01)

1. The preamble to this Inquiry highlights the initial position adopted by the current Coalition Government towards special advisers [SpAds] quoting the Rt Hon Francis Maude MP, Minister for the Cabinet Office in July 2010: ‘Too often in recent years the Service has been marginalised, either through the spread of SpAds or the over-use of expensive consultants.’ We would take issue with the notion that Whitehall has been marginalised by the relative growth of SpAds, most notably after 1997. In many ways this is both a misrepresentation and misunderstanding of the role played by SpAds within the British political system. Indeed, in terms of numbers and relative influence, there are very few special advisors in relation to permanent senior civil servants.

2. First, it is important to establish why SpAds should be regarded as playing a necessary, indeed crucial, part in the effective operation of good governance within the UK. The current Cabinet Office Code of Conduct for Special Advisers [June 2010] states that: ‘In order to provide effective assistance to Ministers, SpAds should work closely with the ministerial team and with permanent civil servants, and establish relationships of confidence and trust’. (Cabinet Office 2010: Para 7). In many ways, this is a reaffirmation of the core tenet underpinning minister-civil servant relations throughout the last one hundred years, as set out in Lord Haldane’s 1918 Report of the Machinery of Government: Ministry of Reconstruction. This Report formulated the view that the relationship between ministers and officials is in essence a symbiotic one, from which stems the convention that there should be no separation in the personality of ministers from their officials. Following the 1974 Wilson reforms, this principal was de facto extended to include SpAds, the three operating together effectively as a Holy Trinity.

3. This arrangement required that ministers, civil servants and SpAds be expected to work in a mutually beneficial and co-operative relationship based on a co-dependent rather than conflictual understanding of the governing process. From this perspective, the question as to ‘who benefits from SpAds’ is something of a misnomer. SpAds are a key resource in improving the overall quality of good governance, not actors who work to the benefit of just one group within the political system – be it ministers rather than civil servants.

1 David Richards and Martin Smith are both Professors of Politics at the Department of Politics, University of Sheffield. Mr. Patrick Diamond is a current doctoral student at the Department of Politics, University of Sheffield and formerly spent a decade as a special adviser in 10 Downing Street, the Cabinet Office and the Northern Ireland Office.

4. The introduction of SpAds in 1974 occurred at a point when the nature of the governing arena was entering a period of change. The emergence of a variety of forces - europeanisation, internationalisation, devolution, marketisation [alongside regulation] and managerialism within the public services - collectively led to a much more complex policy-making arena. The cumulative effect of these forces was evidenced by the subsequent eclipsing of the traditional hierarchical model on which Whitehall operated, a feature pick-up on by the former Cabinet Secretary, Andrew Turnbull in his 2005 Valedictory Lecture. He rightly applauded the plurality of voices now being heard in the policy-making process:

We [Civil Service] no longer have a monopoly over policy advice. Indeed, we welcome the fact that we are much more open to ideas from think-tanks, special advisers and frontline practitioners. In developing policy, we not only consult more widely than we used to, but involve outsiders to a far greater degree in the policy making process.

5. From this perspective, and as previous inquires addressing the role of SpAds have rightly highlighted, they have become a crucial, necessary and permanent part of the architecture of British Government. SpAds have an important role, particularly in terms of providing ‘political’ advice, developing alternative policy advice to the civil service, as a mechanism for testing policy advice and linking ministers to different constituencies from the normal Whitehall networks. Indeed, many of the policy innovations initiated within Whitehall over the last twenty years have resulted from strong working relationships between ministers, civil servants and SpAds. SpAds have helped to infuse the policy process with new ideas, for example by drawing on examples of best practice from other comparable countries and by drawing on the best recent evidence from research in the social sciences. The strength of the relationship between the British government and the UK social science community is partly the result of effective networking and dissemination by SpAds in Whitehall. Moreover, if they have a close relationship with the minister, SpAds can extend the Minister’s reach within a department by acting as a gatekeeper and as the Minister’s ‘eyes and ears’. By offering steers on the minister’s behalf, SpAds help to increase the efficacy of the policy-making process, particularly in large departments with complex and wide- ranging responsibilities where ministers are making dozens of crucial decisions on a daily basis. Indeed, many civil servants also acknowledge that SpAds play a crucial role in ensuring that the permanent bureaucracy in Whitehall is not politicised, and that civil servants do not have to cross the line between advising ministers, and engaging in political decision-making. This has helped to preserve the neutrality and probity of the British civil service, despite several decades of profound political and social change.

6. Of course, since 1974, there have been a number of well-documented individual cases where the actions of SpAds has led to tension either within an individual department or more broadly across government. Here, past examples might include: the political advisers, Frances Morell and Francis Cripps, during Tony Benn’s time as Secretary of State, first in Industry and then Energy; and a decade later, Alan Walters, Charles Powell and Bernard Ingham at No. 10 during the latter stages of the Thatcher Administration. Yet, up until 1997, for the most part, the political advisers working in departments beyond No. 10 and the Treasury did not draw any great criticism. Their role generated only a residual element of suspicion among some permanent Whitehall staff, and in the main an accommodating and mutually beneficial relationship tended to be the norm.

7. After 1997, as has been well-charted elsewhere, the role of SpAds changed, doubling in number from the Major years. SpAds during the Labour Government conformed to two types - policy advisers and public relations managers. In terms of the former, there was an increase in SpAds at the centre, particularly No. 10 to enhance strategy on policy and co-ordination. Elsewhere, the Labour Government’s view of the Government Information Service it inherited was that it was ill-equipped to deal with the pressures placed on it by a rapidly changing twenty-four hour, news-media industry. The response here was to increase the number of political communications advisers, one generally being allocated to each department. Where issues did arise over SpAds during this period, those implicated were predominantly drawn from the category of media advisers and included the likes of Charlie Whelan, Jo Moore and Damian McBride.

8. Yet, these incidents should be put into some perspective. An in-depth survey of SpAds spanning the Labour years revealed that the views of most ministers, civil servants and SpAds was that more often than not a productive and effective working relationship was established among this triumvirate in most departments (see Richards 2008). Where misgivings over SpAds within Whitehall arose, these tended to concern minor power-spats over control of access to ministers, alongside a broader unease on the part of some officials that their own monopoly as the ‘harbingers of expertise and knowledge’ was diminishing.

9. Here then it is important to dispel the myth that the greater use of SpAds inevitably leads to a ‘counter civil service’ or a ‘creeping form of politicisation’. Such views are often drawn from erroneous analogies with the US ‘spoils’ or the French cabinet systems. The notion that at their peak less than ninety-odd political appointees are capable of overwhelming or neutering the power and resources of a bureaucratic machine the size of Whitehall is ill-judged.

10. From this perspective, we urge caution against any moves to place a strict limit on the number of SpAds available to government. The perception is that these arguments tend to be formulated mainly by retired or former civil servants and ministers who wish to cling-on to a halcyon model of Whitehall that has long since been eclipsed.

11. At the same time, a special case should be made towards the central coordinating departments, in particular No. 10 and the Treasury which are somewhat different. The nature of the British political system affords substantial resources and power to departments, while the centre has historically always remained relatively under- resourced. During the last Labour Administration, what to departments sometimes appeared a heavy-handed and rather intrusive approach by No. 10, reflected its frustration having discovered that the institutional resources it had at its disposal were significantly less than those possessed by departments. In this light, it is understandable why that period witnessed an increase in the number of SpAds used in particular by Number 10, most notably in the Policy Unit, alongside other new, central capacity building units.

12. It is revealing that the current Coalition, while initially making much rhetorical play of their desire to cut SpAds as part of a broader efficiency-drive agenda and also to restore a more traditional Whitehall model of governance, nevertheless within eighteen months gradually shifted its position on this issue. This is an indication that the reduction in the number of special advisors in No.10 has curtailed the capacity of the current Prime Minister to oversee developments at departmental level and to be able to develop a critical review of departmental level policy. SpaDs under the Labour government allowed No. 10 to develop policy capacity and to intervene in much more detail into the role of departments. Of course with the development of coalition, the ability of the Prime Minister to intervene in the work of departments with Liberal Democratic Secretaries of State is much more circumscribed. Nevertheless, we would argue that the evidence suggests that a No. 10 Policy Unit with politically appointed, as opposed to permanent policy specialists, focussed on the Prime Minister’s Agenda is an important tool in enhancing coordinated policy across government.

13. Elsewhere, the events over the last six months in both the Ministry of Defence and the Department of Media and Culture highlight some valid concerns over the potential impact of any misconduct or impropriety by SpAds. There is certainly a case for improving the transparency of the appointments process for SpAds, and for delineating more clearly between special adviser roles so it is clear that an adviser is primarily giving media advice, specialist policy advice, or political advice. Some SpAds may perform all three functions, but this is relatively rare. It is important that there is clarity about what role is being performed, particularly within large government departments. Yet, beyond this, in our view there is no need to further strengthen the existing, already recently revised codes surrounding the role of SpAds. Enforcement of these codes though is a different matter and past evidence suggests that this issue tends to be driven more by the political exigencies surrounding individual cases, rather than on the weight of evidence alone. It is here that the Inquiry might wish to reflect further on revising how and by whom, the current codes are interpreted and implemented, in order to instil a greater sense of independence to the process and so restore greater public confidence.

14. At the same time, from a more practical perspective, the history of SpAds from Frances Morell through to Adam Smith, highlights the need to ensure against SpAds ‘going off-message’ and saying or writing things on behalf of their minister without having first received ministerial clearance. Here, the responsibility should rest with the relevant minister and permanent secretary to ensure SpAds act with due probity and more broadly that the relationship between political advisers and an individual department remains co-operative, rather than antagonistic. It is a fundamental element of the relationship that SpAds only operate on the ministers authority, allowing ministers to be fully responsible for their action. Beyond this, they should have no independent constitutional existence.

May 2012

Written evidence submitted by Lord Butler of Brockwell (SPAD 02)

1. I offer this evidence in a personal capacity, based on my experience.

2. Summary The gist of my evidence is that political special advisers should no longer be classified as civil servants. They should be treated as party staff like political advisers to opposition parties, which most of them have been. As such they should be financed by the extension of “Short money” to the Government party (or parties). This would have the additional effect of controlling the number of such advisers. (I distinguish political special advisers from expert special advisers, who should be appointed on merit under procedures supervised by the Civil Service Commission). In its Fourth Report for the 2000-1 Session, PASC recommended that such a scheme be considered but the then Government did not take it up.

3. Answers to the questions in the Committee’s Issues and Questions Paper

i. Are special advisers a necessary part of an effective Government and Civil Service?

Yes. Ministers have party political responsibilities for which civil servants cannot properly give support. Special advisers can give advice from a party political perspective, as well as providing liaison with the party and representing the Minister in party contexts.

ii. For whose benefit do special advisers exist?

Principally for the benefit of their Minister, but also for the Government generally and the Department in which they are located.

iii. Does (or should) the role of special advisers change under a coalition government?

I have no direct experience of coalition governments, but I would expect a coalition government to affect the role of special advisers in much the same way as it affects the role of Ministers. Within a coalition, policies need to be negotiated between parties. Special advisers can assist and, if necessary, represent their Ministers in such negotiations.

iv. How valid are concerns about the conduct and propriety of special advisers?

Special advisers have to operate in a dangerous space. They share to some extent the exposure of their Minsters to public and media scrutiny. Because they have the ear of their Minister and share confidences with him or her, they may become targets for lobbyists and journalists. They have to work closely with departmental civil servants and yet respect the latter’s obligations of impartiality. In my experience the great majority of Special Advisers obey the guidelines in the Code of Conduct for Special Advisers, but things inevitably go wrong from time to time, not least because political special advisers are often young and inexperienced.

v. Should special advisers be subject to pre-appointment hearings?

No. The appointment of special advisers is subject to the approval of the Prime Minister. Since their responsibility is primarily to the party, it seems to me sufficient that their appointment should be scrutinised by the Leader of their party. vi. Is a strict limit on the number of special advisers helpful?

I believe that the Prime Minister should have some flexibility to meet special circumstances. However, a plethora of special advisers is not helpful because they may then compete for their Minister’s attention with damaging consequences. Also, it is wrong in principle that the Government should be able to use public funds at will to employ people to do party political work. My proposal below addresses this issue. vii. How should special advisers be held accountable for their advice and actions? Are any specific changes needed to the Ministerial Code, or the Code of Conduct and Model Contract for special advisers to improve accountability?

There is a dangerous ambiguity about the accountability of special advisers. The Ministerial Code says (para 3.3):-

“The responsibility for the management and conduct of special advisers, including discipline, rests with the Minister who made the appointment”

That seems to me realistic. However the Model Contract for Special Advisers says (para 16a):-

“Disciplinary matters are dealt with in accordance with the Department’s disciplinary procedures, which are set out in the Departmental/Staff Handbook.”

This exposes the ambiguity because the Permanent Secretary, not the Minister, is invariably in charge of disciplinary procedures in the Departmental/Staff Handbook. So who is responsible for the conduct and discipline of Political special advisers —the Minister or the Permanent Secretary?

4. My proposal This ambiguity is created by treating political special advisers as if they were civil servants. They are not. They serve their parties. This would be recognised if they continued to be employed by their party and paid for by an extension of “Short money” in the same way as when the party is in opposition. It may be right that parties in Government should be allocated a higher level of “Short money” than Opposition parties: this is a matter which can be negotiated. A change on these lines would have the additional advantage of creating a clear borderline between political special advisers and non-political civil servants and of helping to prevent that distinction from being blurred.

May 2012

Written evidence submitted by Committee on Standards in Public Life (SPAD 03)

Introduction 1. The ninth report of the Committee on Standards in Public Life (CSPL), published in April 2003, examined in detail the boundaries between ministers, civil servants and special advisers.2 In the ten years since, revised guidance has been issued on several occasions - most recently in the revised Code of Conduct for Special Advisers published in June 2010, which reflected the provisions of the Constitutional Reform and Governance Act 2010 and the particular circumstances of coalition government. The CSPL has not undertaken any new research into the issues surrounding special advisers, but we hope our comments on the questions posed in the Issues and questions paper are of assistance to the Public Administration Select Committee (PASC) in its deliberations.

2. Question 1: Are special advisers a necessary part of an effective Government and Civil Service?

In our view it would be possible for Government to function without special advisers. But we agree with the sentence from our predecessors’ evidence to PASC’s 2001 inquiry quoted in the Issues and Questions paper: “We believe that special advisers have a valuable role to play precisely because they are free to act and advise in a way that a politically-impartial civil servant cannot.” Recent cases have demonstrated, however, that there are risks associated with the involvement of special advisers which, if not managed effectively, have the potential to damage the reputation of ministers or the functioning of government.

3. Question 2: For whose benefit do special advisers exist?

Effective special advisers who contribute to policy development by providing specialist knowledge, contacts or current awareness, are of benefit to both ministers and officials. More important, however, is the benefit they provide to public policy. Those special advisers whose role focuses on communications, facilitating contacts with the media and the wider political sphere, are of less obvious benefit to anyone other than the ministers who appoint them and the political parties they represent.

4. Question 3: Does (or should) the role of special advisers change under a coalition Government?

It seems logical to assume that the role of special advisers must change with the

2 Committee on Standards in Public Life, Ninth report Defining the boundaries within the Executive, Ministers, Special Advisers and the permanent Civil Service, April 2003 context in which they operate. We note that the revised code of conduct for special advisers published in June 2010 contains wording intended to ensure that special advisers serve the interests of the Government as a whole regardless of the party affiliation of the minister who appointed them.

5. Question 4: How valid are concerns about the conduct and propriety of special advisers?

The role of a special adviser is obviously a sensitive one. Consequently it is essential that there should be absolute clarity about what they can and cannot do. The Code of Conduct for Special Advisers sets out the activities which are and are not appropriate for special advisers to undertake. We welcome the inclusion in the Constitutional Reform and Governance Act 2010 of a list of specific activities which it would be inappropriate for a special adviser to undertake, namely authorisation of expenditure from public funds, managing civil servants or exercising statutory or prerogative powers (Section 8).

Other than exemption from the requirements to conduct themselves with objectivity and impartiality and to be appointed on merit, special advisers are expected to conduct themselves in accordance with the Civil Service Code and to act within the framework of the seven principles of public life upon which it is based. We welcome the introduction of a requirement for special advisers to refer any applications for employment after they have left the civil service to the Advisory Committee on Business Appointments. This will help avoid any implication that special advisers might inappropriately use any knowledge or contacts gained while employed in the civil service for personal gain. We see no reason why special advisers should be treated differently from other public office holders in this respect.

We also welcome the application to special advisers of rules on transparency about gifts and hospitality, which will help avoid any implication of undue influence or impropriety.

Recent concerns about the activities of a personal friend of the previous Defence Secretary demonstrate the importance of clarity and transparency about the role of individuals who advise ministers. Ministers are entitled to take advice from whoever they wish, whether or not they have been appointed as special advisers. But the position of such individuals needs to be clearly set out so that they themselves, ministers and civil servants are left in no doubt about the level of access they should be accorded and the activities it is legitimate for them to undertake, particularly where their decisions have implications for security or propriety. The recent resignation of the special adviser to the Secretary of State for Culture, Media and Sport presumably reflected his and his minister’s realisation that he had overstepped the boundaries of appropriate conduct. It is difficult to draw conclusions about any wider implications in the absence as yet of any independent investigation of the circumstances surrounding the case.

6. Question 5: Should special advisers be subject to pre-appointment hearings?

Special advisers are specifically excluded from the requirement for recruitment on merit which applies to the remainder of the civil service. Special advisers are, by definition, personal appointments. It is important for them to be appointed according to the rules set down in the Ministerial Code, using the Model Contract for Special Advisers provided by the Cabinet Office, and for there to be transparency about which individuals have been appointed. But we are not convinced that pre-appointment hearings are necessary.

7. Question 6: Is a strict limit on the number of special advisers helpful?

Special advisers undertake tasks which politically impartial civil servants cannot easily do, but are intended as a supplement to the Civil Service, not a substitute. It is therefore appropriate for their numbers to be restricted. However, any restriction should be sufficiently flexible to accommodate changing circumstances, such as the creation of a coalition government.

8. Question 7: How should special advisers be held accountable for their advice and actions? Are any specific changes needed to the Ministerial Code, or the Code of Conduct and Model Contract for special advisers to improve accountability?

We agree with the presumption set out in the Osmotherly Rules that requests from Select Committees to take evidence from special advisers should be met.

The Ministerial Code prescribes that responsibility for the actions and conduct of special advisers rests with the appointing minister: ‘Individual ministers will be accountable to the Prime Minister, Parliament and the public for their actions and decisions in respect of their special advisers.’ There should be a presumption that the Prime Minister will ask his Adviser on Ministerial Interests to investigate cases where there is concern that the actions of a special adviser may have led to a breach in the Ministerial Code. We have argued previously that the Prime Minister’s Adviser should have the power to initiate his own investigations where he believes there is a prima facie case to answer. In its Standard Note on Special Advisers published in December 2011, The House of Commons Library observed that ‘the responsibilities of, and limits on the activities of special advisers are contained in five separate documents. These documents collectively set the framework within which special advisers operate. The documents are: the Civil Service Order in Council; the Code of Conduct for Special Advisers; the Model Contract for Special Advisers; the Civil Service Code; and the Ministerial Code.’3 It was reported recently, following the resignation of the Special Adviser to the Secretary of State for Culture, Media and Sport, that further advice had been issued by the Cabinet Secretary to departments on the role of special advisers where ministers are involved in quasi-judicial decisions. On the face of it, it would be helpful for all concerned for the information contained in these documents to be consolidated in one place.

May 2012

3 SN/PC/03813

Written Evidence submitted by Civil Service Commission (SPAD 04)

1. The Civil Service Commission’s interest in the role of special advisers stems from our responsibilities for ensuring that civil servants are selected on merit on the basis of fair and open competition, and for upholding the Civil Service Code values of integrity, honesty, objectivity and impartiality in the way civil servants carry out their duties.

2. The Constitutional Reform and Governance Act 2010, of which the Commission was a strong proponent, put these principles and the role of the Commission into primary legislation for the first time, over 150 years after this was first proposed in the Northcote-Trevelyan Report of 1854. It therefore provided legislative underpinning for the Civil Service as we know it today: recruited on merit and committed to implementing the policies of the elected Government, whatever its political colour.

3. The importance of the Act in relation to the Public Administration Select Committee’s current inquiry is that it also established in legislation the distinctive role of special advisers. The Act effectively established in statute two distinct classes of people who would be appointed to support the Government:

i. civil servants, selected on merit on the basis of fair and open competition under rules laid down by the Civil Service Commission and bound by the principles in the Civil Service Code; and

ii. special advisers, selected by Ministers personally, appointed for the period of the Minister’s term of office, and specifically exempted from the Civil Service Code requirements of objectivity and impartiality.

4. In the Commission’s view this clear legal distinction in role and function is important. It protects the long held principle of an impartial Civil Service, while recognising that Governments often need support from personal appointees who share their political objectives and philosophy. Part of the Commission’s role in regulating Civil Service appointments, and in hearing complaints under the Civil Service Code, is to ensure that this distinction is maintained. Our responses to the Committee’s specific questions (see below) stem from our strong belief that the distinction is important and must not be blurred.

5. Question One: Are special advisers a necessary part of an effective Government and Civil Service?

A. Yes. We believe that the reality of modern government, recognised by Parliament in the 2010 Act, is that Ministers do need advice on the political implications of the policies and issues relating to their departments. As the Code of Conduct for Special Advisers puts it they are ‘an additional resource for the Minister providing assistance from a standpoint that is more politically committed and politically aware than would be available to the Minister from the permanent Civil Service’.

6. Question Two: For whose benefit do special advisers exist?

A. There are a number of beneficiaries:

• The Minister who can be sure that he or she has support from those who share the same political philosophy, that party political implications are getting their due consideration in the development of policy, and that there is informed support available when the Minister is taking part in activities with party political implications.

• The Civil Service which is thereby protected from being drawn into inappropriate political activity, caused by the natural desire to support Ministers. Where there are effective special advisers, civil servants know that the Minister is getting advice of a party political nature from an appropriate source and the line between the role of civil servants and the role of special advisers can be clearly drawn.

• There should also be a general benefit, to the public, Parliament, the media, and other stakeholders, in the reassurance that there is a proper provision of political advice to Ministers, leaving civil servants to provide advice impartially and objectively.

7. Question Three: Does or should the role of special advisers change under a coalition government?

A. This is not an area on which the Commission feels particularly able to comment. But we note that the Code of Conduct for Special Advisers emphasises that they are appointed to serve the Government as a whole and not just their appointing Minister. It follows that the role of special advisers should change as the nature of the Government changes.

8. Question Four: How valid are concerns about the conduct and propriety of special advisers?

A. Special advisers are temporary civil servants, and of course like all civil servants their conduct and propriety is of great importance. Special advisers are covered by the Civil Service Code (as well as their own detailed Code of Conduct). The Civil Service Code is part of the terms and conditions of all civil servants; and while special advisers are not bound by the Code’s requirements of impartiality and objectivity, they must observe the principles of honesty and integrity.

The Civil Service Commission has the responsibility to investigate qualifying complaints from civil servants under the Civil Service Code. 9. Question Five: Should special advisers be subject to pre-appointment hearings?

A. The Constitutional Reform and Governance Act 2010 states that special advisers are personally selected for appointment by the Minister, and that their appointment has to be approved by the Prime Minister.

Given the party political nature of their work, and the fact that the term of their contract is limited to the time the Minister is in office in the appointing department, special advisers do not appear to fall naturally within the category of appointments that would be expected to be subject to pre-appointment scrutiny.

10. Question Six: Is a strict limit on the number of special advisers helpful?

A. Some limit on the number of special advisers may be desirable. We think it is for the Prime Minister of the day to set and justify the limit; but in the Commission’s view there are dangers from a Civil Service point of view in setting it too low. If there are too few special advisers to provide the Government with political support, there could be pressure, as described above, to use civil servants in a political role, or to appoint civil servants to do work that should more properly be done by special advisers. In drawing up, and monitoring compliance with our Recruitment Principles, the Commission is alive to that risk.

11. Question Seven: How should special advisers be held accountable for their advice and actions? Are any special changes needed to the Ministerial Code, or the Code of Conduct and Model Contract for special advisers to improve accountability?

A. It is not clear that special advisers should be accountable to anyone but their appointing Minister for the advice they give. Advice is advice, and it is up to the Minister whether it is accepted or not.

The actions of special advisers are subject to their own Code of Conduct, to the seven principles of public life which are included in the Code as an annex, and, in part, to the Civil Service Code. This is a comprehensive set of requirements.

May 2012

Written Evidence submitted by Professor Francesca Gains (University of Manchester) and Professor Gerry Stoker (University of Southampton) (SPAD 05)

• Submission based on interviews/focus group with special advisers (SpAds) under previous administration;

• This research argued the SpAd role can provide a helpful and necessary aid to decision making through ability to contribute to political advice, through drawing in new ideas and as part of the ‘team’ around ministers;

• The balance between the number of SpAds at the centre and departments and the stipulation to ‘serve the Government as a whole’ are key issues currently.

1. This submission is based upon discussions with special advisers (SpAds) at the centre of Government and in departments, and a focus group conducted with 15 special advisers during the previous administration4 Our research, published in 20115 aimed to contribute to understanding the role of SpAds in modern government and provided the chance for advisers to reflect upon their experiences of working between ministers and civil servants. Discussions were held under Chatham House rules and therefore the illustrative contributions included here are anonmised to protect confidentiality.

2. We argue that in general special advisers have provided a necessary and helpful addition to the plurality of policy advice available to ministers. The multiplicity of stakeholders involved in contemporary policy development and delivery, and the extended scope of media scrutiny of decision making means that the special adviser role is necessary to bridge the political and administrative machinery of government. Without it ministers would be less able to operate effectively and the impartiality of civil servants would be subject to greater pressure.

3. We heard that the way SpAds work across the boundaries of the civil service and the political world has changed over time. Advisers are reportedly involved in discussions with ministers and civil servants and one adviser noted “a tendency for them to be more technocratic – in a way almost more like civil servants” (former special adviser in No 10). Yet the difference in the roles of civil servants and SpAds enhances the range and depth of policy advice available to Ministers. Notably in being freed from the requirement to be impartial so an adviser pointed out to us, in their policy advice SpAds can “keep the politics in policy”. Another pointed out “there are certain things you don’t want your civil servants doing and someone needs to do it…the party political thing specifically, but there is no doubt at least we would want that in play” (former special adviser at No 10).

4Professor Stoker would like to thank those who agreed to take part in the focus group and acknowledge the support of the ESRC (award Grant Number RES-051-27-0067-A). 5 Gains, F and Stoker G (2011). ‘Policy advisers and the policy primeval soup’ Policy and Politics. 39 (4) 485 - 498 4. Additionally special advisers can bring an independent perspective to bear on policy discussions. One departmental SpAd felt his job was to expose Ministers to ideas; “part of my job is to try and make sure that the Secretary of State is exposed to thinking and advice that is not the Department’s”. For those advisers appointed because they have specialized policy knowledge the advantage for Ministers is the adviser “really does know what’s going on and is willing to tell you the machine is broken” (former special adviser in No 10).

5. The inclusion of the alternative perspectives and partial advice provided by special advisers can contribute to effective government. One very senior adviser in No 10 described a ‘critical alliance’ of the No 10 special adviser, the key policy adviser for the Secretary of State, the Secretary of State and the Permanent Secretary “and if you have those four people in alignment you could achieve almost anything” (former special adviser in No 10). A former adviser in the centre of Government stressed “You get the connections right so that the civil servants know what the ministers are thinking. It may be that the political advisors are the people who make that link”. Sometimes a SpAd can support civil servants if “the civil servant needs to tell the Minister something unpalatable and the special adviser is an ally to the civil servant in terms of ‘don’t tell him for the next couple of days’ ”. For another former adviser in the Home Office “the best departmental and policy making happens when you do get that teamwork and people who know what their different roles and functions are”.

6. There is clearly the potential for tensions. According to one adviser we talked to “civil servants want special advisers to be either very weak, or very strong, so you can do a deal with them or they are so weak you can ride roughshod over them”. As in other relationships in government where there is a lack of clarity about roles and functions, or deliberate intent to act outside the formal and informal rules then tensions and problems arise. As one former adviser suggested to us “it’s all about connections, it’s when these don’t work properly that things go wrong”.

7. In relation to the Committee’s current investigation we suggest that the clarifications in the roles of special advisers and the new measures for reporting the number and cost of advisers in government introduced through the Constitutional Reform and Governance Act 2010 and the updated code of conduct have addressed many of the committees earlier concerns about the accountability and transparency of the special adviser role.

8. The number of special advisers currently has increased to 81. It is notable that the balance of advisers at the centre of Government, to advisers in departments, has shifted over time reflecting a strengthening of capacity supporting the centre of Government. The Committee may like to consider in its deliberations the impact of this balance on policy discussions. Also of interest might be how the new provisions brought in to address the necessary working relationships required during coalition for special advisers to ‘serve the Government as a whole and not just their appointing Minister’ are working in practice. There is no evidence that this provision has been problematic to date however it might be an area the Committee would like to probe as this provision could come under strain as the election date draws nearer. Francesca Gains (http://www.manchester.ac.uk/research/Francesca.gains/) and Gerry Stoker (http://www.southampton.ac.uk/politics/about/staff/gs1l06.page)

May 2012

Written evidence submitted by Mr. Simon Cramp (SPAD 06)

1. I'd like to formally submit evidence to your committee on special advisers in their political role to ministers.

2. I'd like to set out some background about me.

3. I am someone who is interested in politics and more recently I have been interested in the relationship between special advisers i.e. political civil servants and ministers of the Crown. I have submitted evidence to a number of committees of the Commons and Lords and joint committees where appropriate especially issues to do with civil servants and their political masters also lobbying and more recently evidence to inquiries for Leveson and other evidence to a range of committees in inquiries.

4. I'm also somebody who has three disabilities - I have a mild learning disability, I am dyslexic and am also dyspraxic - these conditions are quite difficult to manage at times in order to be able to contribute to public debate. Although I have in the past as I mentioned earlier given evidence to select committees I have also given oral evidence to a joint committee of both houses.

5. I am currently unemployed but have worked in the public sector and the voluntary sector over the last 20 years to October 2011 when I was made redundant - work in the voluntary sector/not-for-profit originally as a learning disability sector adviser for an organisation called dimensions - but this submission is in a private capacity. In the public sector I also worked at ofcom as adviser between 2004 and 2011 on older and disabled people advisory committee giving ofcom advice on communication issues to do with older and disabled people .

6. And finally as part of my introduction to this submission I just put finally on record that I have dealt with politicians and parliamentarians and within my freelance work during the last 12 years I have through arms lengths bodies that are funded by government but have an independent voice. I have sat round the table with junior ministers and civil servants debating policy changes within the framework of government bills before either the House of Commons or House of Lords as they start or continue their parliamentary passage to become law.

7. I turn to the questions you have laid out for witnesses to comment to help you get feedback and engagement with members of the public or industry experts to help you look at this area and use the findings to help make recommendations for your report to Parliament.

Questions

8.The Committee would like to receive written evidence on the following issues in particular: Are special advisers a necessary part of an effective Government and Civil Service?

For whose benefit do special advisers exist?

9. I'm not sure at the moment whether special advisers actually make a difference to the political system in relation to the relationship between a minister and his special adviser. The reason I say that is the current inquiry being conducted by Lord Justice Leveson on press ethics. I say this only in passing but it's important to me because as I write this some politicians from both past and current even former prime ministers where they had press secretaries as special advisers that could gave orders to i.e. non-political civil servants and where does this blur the boundaries of civil servants i.e. special advisers, because under successful governments of all political colours what do special advisers bring to the table apart from being political and is a hindrance not the effectiveness that question implies.

10 The only other point I would make to come on later is that the number has rocketed of special advisers in the last two governments.

11.Does (or should) the role of special advisers change under a coalition Government?

I think in answer to your question on does or should change under a coalition government I'm not sure for the reason that I'm 40 years old I was born in 1971 and since I got the vote when I was eligible in 1988 in the 2010 general election was the first time I have lived and witnessed a post-war peace time coalition government. I'm not sure it makes much difference in that Labour and Conservative as I said earlier created different special advisers in the form of senior civil servants with the power within government to give instructions on say the press office at number 10 , and other things that politicians have had to resign or special advisers have had to resign for example for sneaking out bad news on a quiet day. The only thing I would add to this part of my submission is it is not clear if special advisers are paid by the state or their political masters within their political party pay their salary, the reason I say this was with the current prime minister I was not clear with the former communications director who had previously worked for the Tory party then when the Tory party was the largest party but couldn't former governments and had to ask the Liberals to join them in coalition to have any effective government to implement the programme that both parties had agreed with give-and-take from their party manifestoes. When the communications director for the Tories was appointed by the current prime minister was he a civil servant or a special adviser - who paid his wages I don't know so it is difficult to be precise for me as a layperson to work that one out. I'm not convinced what special advisers actually give the Minister in terms of the old phrase goes within yes Minister you have a room down the other end of the building but gave the impression that you were far from the Minister in other words the perception was you were problem that made the Minister happy but the civil service wanted still control and apart from political speeches what to do special adviser bring to the table I simply don't know.

12.How valid are concerns about the conduct and propriety of special advisers?

13. I may have answered these questions in the wrong way round but I'm not sure what special advisers bring to the civil service and apart from the recent scandal that was made a big media story re the BSkyB bid that still being investigated in a different context but with the media and a current ongoing public inquiry and a special adviser resigning because it was deemed inappropriate or given the impression it was not called the communication between different parties then I think that's a blunt view and difficult one because not all civil servants i.e. special advisers will have contact with different parties as part of a bid in terms of competition takeover that a government department has to adjudicate on or refer to a appropriate authority.

14.Should special advisers be subject to pre-appointment hearings?

Yes they should but also if they resign they should be required to go in front of the select committee for the departments they worked for if it is deemed necessary i.e. they have potentially played a part in a scandal or some other wrong doing, that this may with the Cabinet Secretary’s approval be held in private and members of Parliament will deal with this on the Parliamentary privilege rules and make recommendations to the Cabinet Secretary but where sensitive information is required not to publish a report in full but redact where necessary sensitive information. Definitely if the communications director or press spokesman at number 10 on behalf of the Prime Minister should as a matter of course be expected to attend a pre-appointment hearing.

15.Is a strict limit on the number of special advisers helpful?

It doesn't matter because the Prime Minister of the day he or she will always find a way for arguing a limit was not sufficient or make promises in opposition that they don't fulfil within government.

16. How should special advisers be held accountable for their advice and actions? Are any specific changes needed to the Ministerial Code, or the Code of Conduct and Model Contract for special advisers to improve accountability?

Hopefully I outlined my opinions to questions that you are have asked within my submission. The ministerial code or a code ,a model contract a special advisers is a waste of time because the person that decides it and is the person that makes a decision about the ministerial code or code of conduct or a model contract a special advisers if the Prime Minister and if the number 10 say he or she is not going to sack or referred to the Cabinet Secretary is all hers appointments if he can help it or she can help it.

17. Finally I hope you find this submission useful. I have tried to answer all the questions you have asked and with the confines of my disabilities tried to make logical points and arguments to help facilitate discussion within your committee to help you make recommendations to Parliament and ultimately to government. 18. I hope you have found this useful - it is a subject area I am very interested in. I hope I give you food for thought and I look forward to seeing your report when it is published in due course. May 2012 Written Evidence submitted by Michael Jacobs6 (SPAD 07) Summary • Special advisers play a number of vital roles aiding good government which cannot be played, or are rarely played, by conventional civil servants. • Advisers add particular value when Ministers want to change the direction of policy, providing policy innovation and the generation of alternative options which officials in general find difficult. • The vague air of illegitimacy which hangs over special advisers should be dispelled by a clearer statement from the Cabinet Secretary of their value, roles and expected qualifications; pre-appointment hearings by a Parliamentary select committee; and appearances before select committees to account for their role and work. • A ministerial cabinet system should be established to extend the circle of advice to Ministers; cabinet members should include both special advisers and civil servants, with the latter allowed to play a more political role.

Background 1. I spent nearly six and a half years as a special adviser at the Treasury and No 10 from 2004 to 2010. My role was as a policy adviser. I did a small amount of media work related to my own fields of responsibility, and occasional party liaison activities (again, relating to my fields), but had no general political, ‘bag carrying’ or day-to-day media responsibilities.

2. I came into government as a policy specialist, with twenty years’ experience as an academic, consultant and head of a think tank. I had longstanding and widely published expertise in environmental policy, knowledge of a number of other policy fields, and general political experience around government and Whitehall.

3. As a special adviser in the Treasury and at 10 Downing St my role was somewhat different from those of advisers in the majority of departments. At the Treasury I was responsible not just for Treasury policy in my fields (environment, energy, health and social care, public sector reform, voluntary sector policy) but for the Chancellor’s and Treasury’s strong interest in other departments’ policies. At No 10 I had almost no direct policy responsibility, but represented the Prime Minister’s active interest in the policies of specific departments in my field (Defra, DECC, and the environmental policies of the Departments of Transport, Communities, International Development and the Foreign Office), and No 10’s role in coordinating policy between departments. I also wrote speeches in my subject areas for the Chancellor and the Prime Minister.

6 Michael Jacobs is Visiting Professor in the Department of Politics / School of Public Policy at University College London. He was a special adviser to Gordon Brown at the Treasury (as a member of the Council of Economic Advisers) from February 2004 to June 2007, and at 10 Downing St from June 2007 to May 2010. The role of special advisers 4. Special Advisers are a critical part of an effective Government and Civil Service. They play a number of roles which conventional civil servants either cannot, or are rarely skilled at. They:

• ‘lubricate’ the relationship between Ministers and civil servants, explaining what the Minister wants to his or her (and in the case of Treasury and No 10 advisers, other departments’) officials, and helping officials prepare advice for Ministers in the form which best enables him or her to make decisions; • help both civil servants and Ministers understand the political consequences of options and decisions, with a degree of knowledge, perception and sensitivity to these which civil servants can acquire but very often do not; • provide an independent ‘second opinion’ on the policy advice provided by civil servants, testing this with outside policy experts and stakeholders, and helping civil servants adjust their advice (where appropriate) in consequence • offer alternative policy options to those initially presented by civil servants, using intelligence and analysis gathered independently, from external stakeholders and policy experts; • broker agreements and compromises between departments where civil servants are unable, or do not have the ministerial authority, to do this; • help Ministers find the right language and ‘narrative’ with which to present policy to the public and to stakeholders; • manage relationships with external stakeholders (business, non-governmental organisations, members of the policy community) and the media in a more nuanced way than civil servants are able to, directly representing the Minister and his or her political views.

5. These roles and skills benefit both Ministers and the civil service (as most senior civil servants in Whitehall freely acknowledge). The idea that in some sense advisers ‘usurp’ or ‘marginalise’ the role of civil servants is mistaken (except, no doubt, in odd instances): on the contrary, their ‘political’ role makes it easier for officials to adopt the constitutional stance of impartiality which the civil service rightly prizes. Indeed, it is generally the combination of civil service impartiality and the political perspective of special advisers which provides Ministers with the best overall advice.

6. Special advisers play their most important role when Ministers want to change the direction of policy. If the civil service is a Rolls Royce, it is one with sticky steering. Departmental officials in general find it difficult to provide advice on new policy options. Understandably, they tend to believe that the policy already being followed is the correct one, and they are not by and large trained to be innovative. (I suspect that not many innovative personality types see the civil service as an attractive career option.) This creates a policy inertia in government which makes it difficult for Ministers who believe that present policy is flawed or altogether wrong to get good advice on alternative options. Ministers rarely have the detailed expertise (and certainly do not have the time) to develop new policy options themselves. Special advisers have a crucial role here in researching and thinking through alternatives, using their own independent networks of policy experts and stakeholders. Ultimately the advice that goes to Ministers must come from officials through the usual processes; but the initiation of alternative options often comes from special advisers.

7. (Personally, I regarded this function as the most important one I played in government. At the request of the Chancellor and Prime Minister, and working closely with the Ministers, special advisers and civil servants of the relevant departments, I initiated a number of new policies and initiatives in the fields of energy and climate change in 2005-10 which I do not believe would have happened had responsibility been given to the civil service alone.)

Increasing the legitimacy of special advisers 8. Discussion of special advisers in the media is generally accompanied by a vague air of distaste or impropriety. This no doubt arises from the lazy assumption that all special advisers are ‘spin doctors’, and an association in particular with a small number of advisers whose activities attracted controversy in recent years (some of whom clearly acted unethically and/or acted beyond their duties and responsibilities). More generally, a connotation of illegitimacy has hung over the role; it is this which led both of the last two Prime Ministers to declare on entering office that they would reduce the number of special advisers, only to find that they needed to increase it again a few months later.

9. This sense of illegitimacy comes partly from the idea that special advisers have too much power for people who are unelected and ‘unaccountable’. Advisers do have some power: not to make ultimate policy decisions, which always rests with Ministers, but to guide the process of developing the policy options from which Ministers choose. But if special advisers did not do this, it would still need to be done: regular civil servants would do it. But it is not clear why career officials – who are also unelected and unaccountable – should have greater legitimacy to guide the policy process than advisers. On the contrary, if officials ‘represent’ anyone it is their departments; advisers get their mandate from, and are accountable to, the elected Minister. In this sense political advisers could arguably be said to have greater legitimacy than officials in presenting choices to Ministers.

10. If special advisers actually play an important function in the effective working of government, the connotation of illegitimacy is clearly unhelpful. I would propose a number of ways of dispelling it:

• Distinguishing the role (and status) of policy and media advisers from that of general political bag carrier. Official guidance should state that policy and media advisers are expected to have policy and/or media expertise and a degree of political and wider life experience; I would suggest they would very rarely be under 30 years of age.

• A clear statement from the Cabinet Secretary acknowledging the importance of their role and setting out in a short statement what they should, can and must not do. (The code of conduct and model contract in themselves need little amendment, but a shorter statement would be helpful.) • Requiring all policy and media advisers to have pre-appointment hearings by a Parliamentary select committee to determine their fitness for the role.

• Allowing (and where appropriate requiring) special advisers to appear before Parliamentary select committees to explain their role, both in general and in the conduct of specific policy processes

Ministerial cabinets 11. If special advisers play an important role and should have greater legitimacy in doing so, there is no need arbitrarily to curtail their numbers. For smaller departments with a relatively narrow range of policy responsibilities, two or three is probably sufficient. But in larger, more diverse departments, three or four may be more appropriate. The cost should be contained by including them on the staff complement of the department and therefore constrained within overall departmental budget limits.

12. In fact I believe the circle of those offering direct advice to Ministers should be widened beyond special advisers. My view is that Ministers are currently under- advised. Too much policy is developed by officials with too little internal scrutiny and consideration of alternative options. It is simply impossible for Ministers and one or two advisers properly to examine alternatives in every area of departmental responsibility, and simultaneously to scrutinise policy implementation. I therefore favour the establishment of a cabinet system: a small circle of staff accountable directly to the Secretary of State (and other departmental Ministers). Members of the cabinet would have the authority and role of current special advisers, but they should not all be political appointees. I would favour a mix of political advisers and civil servants. In my experience the interaction of officials and advisers makes for good policymaking, bringing different perspectives and experience to bear.

13. All cabinet members, including those coming from the civil service, would need to be given the powers held by current special advisers, including the ability to carry out functions defined as ‘political’. Membership of a Minister’s cabinet would offer a good career route for high-flying and innovative civil servants who are not regarded as ‘suitable material’ for promotion to Grade 2 and Permanent Secretary positions. Such officials generally leave the civil service in mid-career, frustrated both its bureaucratic restrictions and by their own inability to progress to the most senior levels: appointment to a cabinet would provide an alternative career goal.

May 2012

Written Evidence submitted by Democratic Audit (SPAD 08)

Summary • Special advisers are a well-established and valuable component of the UK system of government, whose origins can be traced back as far as 1964, with various subsequent developments and expansions.

• They provide qualities which are absent from the career Civil Service, such as partisan commitment and close personal attachment to particular ministers; and can protect the impartiality of career officials through performing tasks it would be inappropriate for permanent civil servants to perform.

• Their most important relationship will always be with the particular minister who appoints them.

• Their temporary employment status inevitably calls for close attention to issues surrounding integrity and the perception of inappropriate motivation and behaviour. However, these issues are part of broader problems associated with UK democracy that do not just involve special advisers. Other individuals, including more informal aides to ministers, can give greater cause for concern because of their less regulated and defined nature.

• The precise number of special advisers is not the primary issue of concern, rather it is how they are appointed and what they do.

• Suitably adapted pre-appointment hearings for special advisers seem to offer a means of strengthening ministerial accountability for the actions of special advisers, and discouraging abuse of the system of patronage appointment, which is in itself probably necessary for the use of special advisers to retain value.

• Apparent contradictions exist between the rule that special advisers do not carry out management functions and the list of possible duties included in their Code of Conduct.

• The complete exemption for special advisers from the impartiality and objectivity requirements of the Civil Service Code is unsatisfactory, and while it is retained is a clear example of why special advisers should not be in any way involved in any quasi- judicial functions which their department may be required to perform.

Introduction 1. Democratic Audit is an independent research organisation, based at the University of Liverpool. We are grant funded by the Joseph Rowntree Charitable Trust to conduct research into the quality of democracy in the UK and have now completed our fourth full audit of UK democracy. The previous three Audits, which assess the democratic performance of the UK using a set of generic ‘search questions’, were published in 1996, 1999 and 2002. We welcome the Public Administration Select Committee’s inquiry into the important issue of special advisers and their role, which we consider from a democratic perspective in this submission.

2. An underlying principle of the UK Civil Service, which can be traced back as least as far as the so-called ‘Northcote-Trevelyan report’ of 1854, is that of political impartiality.

3. This concept is set out in the Civil Service Code, now issued under Section 5 of the Constitutional Reform and Governance Act 2010. The Code states that officials must ‘serve the Government, whatever its political persuasion’ to the best of their abilities, regardless of their own ‘political beliefs’. The Code also stresses that civil servants must ‘act in a way which deserves and retains the confidence of Ministers, while at the same time ensuring’ that they are able to form the same relationship with other ministers in the future. The Code also reminds civil servants that they must comply with restrictions that have been laid down on their party political activities; and should not act in a way which is determined by party political considerations, for instance in the giving of advice or the utilisation of public resources (Cabinet Office, 2010a, p.2).

4. Associated with this principle of impartiality is the rule, now provided with a statutory basis under Section 10 of the Constitutional Reform and Governance Act, that civil servants are recruited on merit on a basis of open competition – in other words, not on the whims of ministers. Their appointments are permanent and generally changes of minister in a particular department or in the party of government are not expected to lead to officials either leaving the service or the particular posts they occupy within it.

5. The considerable extent to which the UK Civil Service comprises impartial, permanent staff makes it an international outlier. In most other democracies – even those modelled on the UK system – a larger proportion of senior official appointments, including in overt management roles – are made on a basis of individual ministerial discretion and party political considerations. In the US, for instance, the entire top-tier of presidential staff tends to be replaced when a new incumbent takes office at the White House. In a number of European states such as France the cabinet system is used, whereby ministers choose their own inner teams of aides, which typically include both bureaucratic insiders and outsiders.

6. Arguments exist both in favour of and against the UK system.

7. It can be held to provide stability and facilitate smooth transitions from one minister or government to the next. Impartial civil servants are held to be able to provide ministers with advice that is not skewed towards considerations of narrow party political gain. Restrictions on the patronage available to ministers prevents substantial abuse of official appointments as a means of rewarding allies, regardless of their suitability for a particular post. The tradition of career-long appointment, rather than regular movement between the civil service and the outside (though it has arguably to some extent gradually been eroded) is a barrier to the development of conflicts of interest and the suspicion of corruption.

8. On the other hand, the UK Civil Service has in the past been criticised as – rather than being genuinely impartial – developing its own institutional agendas which it seeks to impose on ministers of different parties. Some on the political left have argued that the Treasury is naturally disposed towards laissez-faire economic policies; while on the right the view has sometimes been held that the Civil Service, as a public sector institution, has a vested interest in the maintenance of a social democratic state.

9. While these two criticisms place different emphases on the supposed orientation of the Civil Service, there does seem to be a strong case that, in a democracy, there are problems with the idea that regardless of changes in government, senior official posts should continue to be occupied by the same people. By extension there is a case for arguing that incoming ministers should at least be able to bring some staff with them to help implement the policy programmes on which they were elected.

10. Furthermore, there are certain tasks – such as liaison with the party of government within and without Parliament, producing speeches for party political occasions, and briefing the press on party political issues – for which ministers require assistance, but which cannot appropriately be provided by impartial permanent civil servants.

11. Moreover, another criticism of the permanent Civil Service has been its tendency not to recruit senior staff on a basis of specialist abilities in the different fields within which government operates, but to favour so-called ‘generalists’. Consequently, Whitehall has been said to suffer from a lack of appropriate skills amongst its internal staff.

1. Are special advisers a necessary part of an effective Government and Civil Service?

12. Special advisers were initially introduced under the first Harold Wilson government in 1964. They were expanded and placed on a more systematic basis by subsequent administrations, in particular when Wilson returned to office in 1974; and when New Labour came to power in 1997. Since 1964, all governments of different complexions have used them.

13. Special advisers have represented an attempt to correct to some of the problems with the permanent Civil Service identified above (Blick, 2004). Appointed on a basis of individual ministerial patronage (subject to a prime-ministerial veto), special advisers are often associated with the party (or one of the parties) of government. Their contracts are temporary and terminate when their appointing minister leaves office or there is a change of government. They may possess specialist knowledge or experience that their minister finds useful and possibly lacking within the Civil Service. They are not bound by the same impartiality rules as permanent civil servants and are permitted to a limited extent to operate on a basis of party political considerations.

14. The personal and party political nature of special adviser appointments has created a tendency for them – individually and as a group – to be associated with significant controversy over the decades.

15. However, special advisers can be seen as a ‘necessary part of an effective Government and Civil Service’ for a number of reasons. They provide ministers with support that they require and which is not necessarily available from the permanent Civil Service. They protect permanent officials from being asked to undertake duties which it might be inappropriate for them to perform. They also assist elected governments in the implementation of particular policy programmes to which career officials might not be as well attuned. Finally, while filling some of the gaps in what the career Civil Service can do, their relatively small numbers mean that they do not necessarily pose a fundamental challenge to its status, enabling the existing UK bureaucratic model and its desirable features as discussed above, to continue to function. However, alongside this general approval of the role of special advisers within the UK constitutional context, it is necessary to note certain reservations, discussed below.

2. For whose benefit do special advisers exist?

16. According to the latest version of their Code of Conduct, special advisers are ‘appointed to serve the Government as a whole and not just their appointing Minister’ (Cabinet Office, 2010b, p.2). This stipulation was inserted in the edition of the Code issued following the formation of the Coalition government in May 2010 (as well as the Ministerial Code). It was presumably motivated by concerns that special advisers would become engaged in destabilising intra-Coalition party factionalism.

17. However, this statement cannot alter the reality that the most important link for special advisers is with the particular minister who has appointed them and whom they serve directly. This relationship is confirmed by the Code itself in its numerous descriptions of the tasks that special advisers may undertake for ‘their Minister’. The political fates of ministers and their special advisers are clearly linked. According to whether the former prosper or fail, so the latter are likely to also.

18. Many cases can be identified of close and important relationships of this sort: between Roy Jenkins and John Harris in the 1960s; in the 1970s between Tony Benn and Frances Morrell and between Tony Crosland and David Lipsey; and Margaret Thatcher and Alan Walters in the 1980s. During the New Labour period of government, key bonds included those between Tony Blair and Alastair Campbell; and Gordon Brown and Ed Balls (Blick, 2004).

19. In this sense primarily special advisers exist for the benefit of the particular minister they support. This commitment can often supersede loyalty to political party, even if the special adviser is clearly linked to the party of government. However, political parties in office can be seen as another beneficiary of the existence of special advisers, in that it means their interests can be represented within Whitehall. Arguably those who voted for candidates of that party also thereby have an interest in the use of special advisers. Permanent civil servants can be seen as benefiting from special advisers, in so far as they help them to understand the policy intentions of ministers; and undertake tasks that career officials are not supposed to. Journalists who receive briefings from special advisers can also be regarded as beneficiaries.

20. Finally, the individuals who are employed as special advisers benefit from this practice. Increasingly, the path to frontbench politics involves a period serving as a special adviser. Many members of the present government, including the Prime Minister, David Cameron, numerous other Conservative ministers, and the Liberal Democrats Vince Cable and Lord McNally, were all special advisers earlier in their careers. All the contestants in the last Labour leadership contest except one were ex- special advisers. Two of them – Ed Miliband and Ed Balls – had been special advisers to the same minister, Gordon Brown, at the same time (while a third, David Miliband, worked for Tony Blair next door to them). Indeed, it is an issue of democratic concern that, in appointing special advisers, one generation of senior politicians is able to play a major part in determining who will comprise the next.

3. Does (or should) the role of special advisers change under a coalition Government?

21. As noted in the answer to question two above, there have been attempts to ensure that special advisers do not participate in damaging conflicts between the two parties in the Coalition. In fact, even in single-party governments, special advisers have been prone to involvement in intra-government struggles, such as the events leading to the resignation of Nigel Lawson as Chancellor of the Exchequer in 1990, who protested about the activities of Margaret Thatcher’s special adviser, Alan Walters; and the tensions between the respective camps of Tony Blair and Gordon Brown during 1997-2007. During the campaign leading to the 1975 referendum on continued membership of the European Economic Community, when divisions within the Labour government forced a Cabinet ‘agreement to differ’ over the issue, the special advisers to those ministers supporting a ‘no’ vote formed an informal secretariat to support them (Blick, 2004).

22. It seems likely that special advisers in a Coalition may at times become embroiled in struggles between the two parties which make it up; as well as other tensions, for instance between ministers of the same party. But a valuable role which can be played by special advisers in a Coalition – and which there is reason to believe they have been performing – is in ensuring that issues involving the respective positions of the two parties are resolved satisfactorily. This kind of task is precisely what special advisers are more suited to performing than career civil servants, since it involves liaison on overtly partisan issues, taking in not only ministers and officials in government but also two different parties within Parliament and nationally.

4. How valid are concerns about the conduct and propriety of special advisers?

23. Any practice of employing individuals within the Civil Service on a temporary basis – while not being wrong in itself – merits close attention from the perspective of propriety and integrity. Indeed, whether or not inappropriate behaviour has taken place in any given case, it is the appearance that it might do which is as much of a problem. There are issues about whether the advice special advisers give and decisions they help make while holding public office might be influenced by their prior employment and their possible future employment. The closeness of special advisers to ministers, along with their party political connections, also raises issues about party donors seeking inappropriately to influence government policy through contact with special advisers.

24. Yet in some instances it is the more informal advisers who – unlike special advisers – are not tied to specific terms and conditions who raise more concerns than special advisers, as demonstrated by events involving the resignation of the Secretary of State for Defence, Liam Fox, whose aide, Adam Werritty, was not formally employed as a special adviser. For instance, the Code of Conduct for Special Advisers states that they must not ‘authorise the expenditure of public funds, have responsibility for budgets, or any involvement in the award of contracts’ (Cabinet Office, 2010b, p.4). It is necessary, therefore, for the banned activities to be kept under review. Following circumstances leading to the resignation of Adam Smith, special adviser at the Department for Culture, Media and Sport (DCMS), it is clear that special advisers should be prohibited from involvement in any aspect of a quasi-judicial role that may be performed by their department.

25. Special advisers are part of a much larger picture, which takes in a number of complex areas of concern, involving the way parties are funded; the lack of transparency in lobbying; and the difficulties of regulating the large number of individuals holding public offices – of whom special advisers are just one group – whose career paths create the potential for conflicts of interest, including more informal aides, other officials and ministers. Some of these individuals, unlike special advisers, may have formally been involved in decisions about expenditure and the award of contracts.

26. Yet while special advisers are in theory more constrained than some others who operate within Whitehall, whether through their close personal relations with ministers they take part more informally in decisions with which they are not supposed to be involved, is difficult precisely to establish.

27. This uncertainty feeds into the other part of this question, on the conduct of special advisers. The Code prohibits a variety of activities, such as the use of ‘official resources for party political activity’ which are difficult to define in all possible circumstances (Cabinet Office, 2010b, p.3).

28. Moreover, it is reasonable to assume that in some instances ministers encourage special advisers to engage in prohibited activities such as ‘personal attacks’ on the basis that their advisers are unlikely to be clearly exposed ‘in the act’, but that if they are the minister will disavow them (Cabinet Office, 2010b, p.3). Suspicions that special advisers are being used as shields for their ministers are common, as with the recent case at the DCMS, though they may be difficult to substantiate.

5. Should special advisers be subject to pre-appointment hearings?

29. The way in which special advisers are recruited, which involves virtually no formal process other than a minister choosing them subject to prime-ministerial approval, is a cause for concern. In the case of prime-ministerial special advisers, there is no check on such discretion at all. It is reasonable to ask whether Andy Coulson, special adviser to David Cameron at No.10 from May 2010 until his resignation early the following year in the wake of growing interest in his role in the News International scandal, would have been employed at all had more regular recruitment methods been used.

30. It seems appropriate for pre-appointment hearings by Commons select committees, suitably adapted, to be applied to special advisers. Such a practice is particularly justified given that virtually all regular procedures used for recruitment in the public sector and elsewhere are bypassed for special advisers. Consequently the introduction of some kind of monitoring procedure – which would presumably not play any formal part in the process – would be welcome.

31. Before appointing a special adviser, the secretary of state or other minister concerned could provide documents to the select committee responsible for monitoring their department containing an account of who their proposed adviser was; how they became aware of them; why they wished to appoint them; and what work they intended them to do. The person who the minister intended to appoint could then appear before the committee to be questioned on such issues as their career background, qualifications and the type of job they envisaged performing for the minister. At the very least, such a system would discourage flagrant abuse of the special adviser system by ministers through appointing completely inappropriate individuals. One regular concern it could help address would be the idea that special advisers tend not to possess any particular expertise that is lacking amongst regular civil servants, supposedly one justification for their use.

6. Is a strict limit on the number of special advisers helpful?

32. A strict limit on the number of special advisers does not seem appropriate. It is more important that those who are employed are properly regulated. It is qualitative issues, not quantitative, that are most important. Were a cap introduced, it might have the unwelcome impact of encouraging the abuse of appointments to the regular civil service. Indeed there is some evidence that, in its desire to restrict numbers of special advisers, the present Coalition government has made partisan appointments to non-special adviser roles in the Civil Service.

33. It does seem peculiar, however, that while the Ministerial Code seeks to limit the number of special advisers that secretaries of state and other departmental ministers may recruit, it introduces no limit on the number that a Prime Minister and the Deputy Prime Minister may employ (Cabinet Office, 2010c, p.6).

34. Moreover, while a precise figure cannot be arrived at, it would clearly be inappropriate if a government sought to swamp the career civil service with special adviser appointments and therefore bring about a significant constitutional change without first initiating a wide debate on the subject.

35. A more radical approach to limiting the employment of special advisers could be possible. If the UK were to move to a full model of publicly funded political parties, opposition and government parties might be provided with ring-fenced sums allowing them to appoint their own officials. These staff might then replace both special advisers and the staff presently paid for by the Short Money and Cranborne Money. The limit would then be not on the number of advisers, but the budget available to pay for them. Indeed, the full public funding model was considered in the 1970s, but the special adviser/Short Money approach was favoured instead.

7. How should special advisers be held accountable for their advice and actions? Are any specific changes needed to the Ministerial Code, or the Code of Conduct and Model Contract for special advisers to improve accountability?

36. The line of accountability should remain as it is at present: through the appointing minister, bypassing the Whitehall hierarchy, on to Parliament. Accountability could be heightened through the process of pre-appointment hearings discussed above.

37. While this general approach is the most satisfactory, there is a problem with the present system, which requires attention if genuine accountability is to be achieved.

38. The general principle has always been that special advisers should not be responsible for managing permanent officials. Between 1997 and 2007 an exception to this rule was established through Order in Council applying to up to three special advisers in No.10. It was only ever taken up by two special advisers – Tony Blair’s Chief of Staff, Jonathan Powell and his media aide, Alastair Campbell. Up to a point, this arrangement was a recognition of the reality of the different environment of the Prime Minister’s Office, and that special advisers at No.10 had in practice managed officials long before 1997. But the Order in Council was revoked in 2007 by Gordon Brown.

39. At present, special advisers are required not to become involved in management by their Code of Conduct (which is required to include such a stipulation by the Constitutional Reform and Governance Act 2010). However, the Code also sets out a number of tasks which they can perform which appear – on any reasonable definition – to amount to management, such as conveying ‘to officials Ministers’ views and work priorities’ and holding ‘meetings with officials to discuss the advice being put to Ministers’. They may also have an ‘input to performance appraisals’ although they must be written by permanent civil servants.

40. Consequently, special advisers are in practice a part of the management hierarchy of their department, which raises difficulties on various counts. For instance, the impartiality of those officials who they are in effect responsible for may be undermined; and the measures intended to ensure they are not involved in decisions about resources and contracts may be vulnerable to being bypassed. There is a contradiction in their performing a quasi-management role while not fully being subject to the rules applying to permanent civil servants, including impartiality requirements and discipline procedures. It would seem appropriate to amend the Code of Conduct, removing the various management-type roles it refers to.

41. It is also problematic that the Code of Conduct for special advisers exempts them from ‘the general requirement that civil servants should…behave with impartiality and objectivity’. (Cabinet Office, 2010b, p.3). Surely it is possible for a responsible individual to combine party political commitment with these qualities. An amendment to the Code of Conduct, removing or at least qualifying this exemption, is desirable. It would not necessarily involve statutory alteration, and would introduce a new dimension to the standards of conduct that special advisers may be held accountable against.

42. It is particularly worrying that someone who was not required to be impartial or objective was used as a go-between with an outside corporation by the DCMS in relation to a quasi-judicial role being performed by the Department.

May 2012

Written Evidence submitted by Professor Robert Hazell, Dr Ben Yong, Peter Waller and Brian Walker The Constitution Unit, University College London (SPAD 09)

Executive Summary • Special advisers are now a fixture in British government, and Westminster governments generally. They help reduce the pressure on Ministers; they represent the Minister’s wishes to the Department, the rest of Whitehall, and the wider world; and Ministers see them as more dynamic than the permanent civil service. • There are at least three actors who benefit from special advisers: ministers, the government as a whole, and the civil service. • In other countries special advisers under coalition government will often play an important role in interparty negotiation. That has not so far been the case in the UK. • Incidents of misconduct by special advisers may indicate systemic problems of lack of training and supervision; but until our research is further advanced we cannot say. • There is no need for pre-appointment hearings for special advisers. Their roles are not as weighty as other senior public appointments; their numbers are too great; and at the start of a new government, when most special advisers are appointed, there is not sufficient time. • A strict limit on the number of special advisers is not necessary, and can be circumvented. The best discipline is transparency, with regular publication of all special advisers and their salaries. • Special advisers should not be held accountable for their advice, but should be held accountable for their actions. This would be easier to achieve if there was greater clarity, adviser by adviser, over the nature of their role.

1. Introduction 1.1. The Constitution Unit is just beginning a 15 month-long project looking at the role and functions of special advisers, funded by the Joseph Rowntree Charitable Trust. We want to know: who are the special advisers; what do they do; and how can we improve their effectiveness? Information on these three questions is surprisingly lacking.7 We aim to construct a database of all special advisers in the period 1997 to 2012, and to conduct interviews with former and current special advisers, their ministers, and senior civil servants. We are also examining the experience of political advisers in Australia, Canada and New Zealand.

1.2. We would be pleased to include in our research any questions which the Committee would like to explore. This submission sets out our initial views on special advisers, based on our reading of the experience in the UK and related Westminster systems.

Responses to Questions

7 The main exception is A Blick, People Who Live in the Dark: The History of the Special Adviser in British Politics (Politico’s, 2004). 2. Are special advisers a necessary part of an effective Government and Civil Service? 2.1. Special advisers have become a fixture of British government; and indeed in those Westminster countries we have examined (Australia, Canada, Ireland, New Zealand), ‘political staff’ are accepted as a necessary part of government. One sign of this is that numbers of political staff in these countries have increased significantly since the 1970s: in Australia and Canada ministers have far bigger political staffs than in the UK (see Tables 1 and 2).

2.2. The drivers behind the growing recruitment of political staff are many, but we identify two. The first is ministerial overload. Ministerial workloads have steadily increased, with the growth in government, its complexity, the growth of EU and international business, and relentless pressures of 24/7 media. Special advisers increase ministers’ capacity to cope.

2.3. The second driver is the desire for greater responsiveness from the ‘government machine’; and it is this aspect we focus on here. Special advisers provide that greater responsiveness that ministers see as lacking in the civil service. They are less encumbered by conventional thinking and institutional practice; they have political skills, and provide a link with the party; they bring into government wider perspectives, and links to the outside world. And because their fortunes are linked directly to their minister’s, they owe their minister total loyalty.

2.4. But the very attributes of special advisers which governments want are also the reasons why special advisers are treated with suspicion. Being ‘responsive’ may also mean prioritising the minister’s interests against those of his colleagues; favouring short-term political advantage over long term policy gains; selective briefing of the media; negative briefing against rivals and opponents; favouring some interest groups over others; and cocooning the minister from unwelcome advice or different points of view.

2.5. So against this desire for democratic responsiveness must be set other values which are also vital to the business of government: the civil service values of integrity, impartiality, objectivity and expertise. But the civil service can become inward looking and conservative. The trick is to find the appropriate balance: allowing the government to get the changes and dynamism it needs, without compromising these other values.

3. For whose benefit do special advisers exist? 3.1. There are at least three actors benefitting from special advisers. Primarily, they are there to benefit ministers: to provide a party perspective, to provide a channel for outside expertise, to deal with interest groups and the media, and generally to relieve the workload of the minister.

3.2. Following the formation of the Coalition, the Code of Conduct for special advisers was modified to make clear that special advisers have a duty not just to their individual minister, but also to the Government as a whole. This is a dilemma which also faces civil servants. But for special advisers the incentives remain structured in favour of immediate loyalty to the minister, rather than the government.

3.3. Special advisers may also be useful to civil servants. They may be more accessible to civil servants than a busy minister, and be able to indicate his views or wishes. This may often be without consulting the minister (‘I know he would want you to do x’). Civil servants can get a steer from the special adviser at an early stage of policy development, before putting a formal submission to the minister. Civil servants can also ask special advisers to be fixers, to unplug political blockages in other Departments, or at the centre of Whitehall. And they can look to special advisers to perform political tasks: to communicate with the party, to brief the media in an overtly political way, to draft political speeches.

3.4. Finally, there may be long term advantages for future governments if a number of their incoming ministers have had practical experience of working in Whitehall departments at an earlier stage in their career.

4. Does (or should) the role of special advisers change under a coalition Government? 4.1. In other Westminster countries, special advisers have had a key role in coalition management. New Zealand is a prime example, where successive multiparty governments since 1996 have been a key driver in the rise in numbers of special advisers. Multiparty governments require greater time for interparty negotiation. Such negotiations are highly political: special advisers play an important role, relieving the burden on their ministers.8

4.2. In our research on the current UK coalition government, we found that special advisers have not yet systematically taken on a role of this kind.9 That is partly because until 2012 most departments had special advisers from one party only; and partly because special advisers did not have sufficient seniority or experience to command the trust of their ministers, so ministers have chosen to negotiate coalition issues themselves. The additional recruitment announced in October 2011 of six special advisers to support Liberal Democrat junior ministers should make it easier to ‘coalitionise’ issues within Departments, because Conservative special advisers will now have Lib Dem counterparts.

4.3. Whether or not special advisers ought to have an ‘additional’ role in coalition governments (eg., in negotiation over coalition issues) is a decision for the ministers involved. Special advisers are a resource to be used. It may be that with growing experience and confidence, ministers are willing to delegate more inter-party negotiation to their advisers.

5. How valid are concerns about the conduct and propriety of special advisers? 5.1. Concerns about special advisers and their actions have been raised in all the Westminster countries we have examined. These concerns are similar to those raised in the UK:

• They exercise improper and/or disproportionate influence • They marginalise the civil service

8 C Eichbaum and R Shaw "Ministerial Advisers, Politicisation, and the Retreat from Westminster: The Case of New Zealand" (2007) 85(3) Public Administration 609-640. 9 R Hazell and B Yong, The Politics of Coalition – How the Conservative-Liberal Democrat Government Works. (Hart Publishing, June 2012). • They lack transparency and accountability.

5.2. It is difficult to evaluate the validity of these claims. There have been high profile incidents involving special advisers in the UK (for instance, Jo Moore, Damien McBride, Adam Smith) but it is not clear whether these are isolated incidents or examples of systemic problems. Since 1997 there have been some 70-80 special advisers at any one time, the majority of whom do not come to public notice. To put these figures in perspective, there are some 125 government ministers (including Whips), and since 1990 20 ministers have resigned because of financial or other scandals.10

5.3. In the Westminster jurisdictions we have examined, there have also been incidents involving special advisers and calls for closer scrutiny of their behaviour: in Australia the 2001 ‘children overboard’ case;11 in Canada, the 2004 sponsorship scandal.12 This has not led to tighter controls than those in the UK.

5.4. We should note again the double-sided nature of special advisers: that those characteristics which help ensure the government is more responsive are the same characteristics which mean special advisers are treated with suspicion. If we accept that special advisers are there to provide impetus and dynamism, to liaise with interest groups and the media, and generally to be the minister’s alter ego, then ministers will wish to employ those with skills which mirror their own. Ministers in a hurry are prone to get into trouble for cutting corners, and excessively zealous special advisers risk doing the same.

5.5. One separate question the Committee may wish to address is the issue of ‘informal’ special advisers. Under Blair and Brown additional advisers were appointed who were not special advisers: expert policy advisers, ‘czars’ and the like. Some of these policy advisers were appointed as temporary, and some as permanent civil servants; and sometimes special advisers have moved on to become civil servants. There have been suggestions that these appointments have been made to get round any limits on the number of special advisers; or that these practices may ultimately ‘politicise’ the civil service.

6. Should special advisers be subject to pre-appointment hearings? 6.1. We favour greater use of pre-appointment hearings for significant public appointments; but can see no case for such appointments being extended to special advisers, for reasons of principle and practicality.

6.2. In terms of principle, pre-appointment hearings are justified where the office holder holds genuine executive power. Special advisers hold no such power; and their role is advisory only – and Ministers seek numerous other sources of advice. There is a stronger case for pre-

10 G Subrahmanyam, ‘The first minister is forced out of the Cameron-Clegg team – does it fit recent trends in ministerial resignations?’ LSE Blog 3 June 2010. 11 Senate Select Committee on a Certain Maritime Incident report, available here: http://trove.nla.gov.au/work/16931377. 12 See the Gomery Commission Report, here: http://epe.lac-bac.gc.ca/100/206/301/pco- bcp/commissions/sponsorship-ef/06-02-10/www.gomery.ca/en/phase1report/default.htm. appointment scrutiny for Government Ministers; but at the beginning of a new government that would simply not be practicable, because it takes months for Parliament to elect new Select Committees.

6.3. A further difficulty in relation to special advisers is that Ministers use them in very different ways - whether focussing on policy development, communications, relationships with the party and so on – and there would be no easy job description against which any Select Committee could make judgements. Finally, Ministers spend a lot of time with their advisers, and personal chemistry is important. That is something which cannot be second guessed by a Committee.

6.4. In the Westminster countries we have examined, no country requires political advisers to be subject to pre-appointment hearings (see Table 3). In the US, political appointees to departments are subject to Congressional agreement; but that has its own disadvantages, not least serious delays (at the end of his first year, one half of Obama’s appointees were still awaiting Congressional approval).

7. Is a strict limit on the number of special advisers helpful? 7.1. Some limits on special advisers may be desirable - but it is a matter for each Prime Minister to decide how many special advisers his administration needs. What would not be helpful is a strict limit which constrains effectiveness and starts from the premise that special advisers are a necessary evil whose numbers must be driven down.

7.2. We believe it is a false economy to force down the number of special advisers to a point where Ministers find themselves short of political support and advice; and to a point where they and their special advisers are so overworked that the system can barely cope. Subject to our forthcoming research, we incline to the view that there are too few, not too many special advisers. In our recent research on the effectiveness of the Coalition in Whitehall, a large number of interviewees (including civil servants) said that the Coalition had cut back too much on special advisers, causing delays and ineffectiveness.

7.3. In other Westminster countries, the number of special advisers is significantly higher. In Australia there are over 400 ‘ministerial advisers’ for 40 ministers; in Canada, there were over 600 ‘exempt’ staff for 30-odd minister. The ratio is 10 political staff for every minister in Australia; and 20 in Canada (see Tables 1 and 2). The ratio in Westminster is two special advisers for each Cabinet minister (and one for those ministers attending Cabinet). There are no limits on the number of special advisers in these countries, save what the Prime Minister specifies and/ or political realities. In practice, the political staff in Australia and Canada now dominate the minister’s private office; and add significantly to the capacity of the Prime Minister’s Office.

8. How should special advisers be held accountable for their advice and actions? Are any specific changes needed to the Ministerial Code, or the Code of Conduct and Model Contract for special advisers to improve accountability? 8.1. A distinction should first be drawn between accountability for advice and actions. In broad terms, special advisers should not be accountable at all for their advice: it is only one source of advice available to Ministers, and part of their function must be to challenge conventional wisdom. But it is undeniable that special advisers should be held to account for their actions – and particularly where they appear to have gone beyond their brief as understood and laid down by their Minister.

8.2. Currently, the Ministerial Code states that ministers are ultimately responsible for the actions and behaviour of their special adviser(s).13 Where there are allegations about a special adviser’s conduct, in the first instance the relevant Permanent Secretary will investigate and make recommendations to the Minister, but the ultimate responsibility for initiating an investigation and disciplining a special adviser rests with the appointing Minister.14

8.3. The involvement of the Permanent Secretary stems in part from the fact that special advisers are classed as temporary civil servants. But the awkward position of the Permanent Secretary is illustrated by the reluctance of the DCMS Permanent Secretary Jonathan Stephens to offer a view on the conduct of Jeremy Hunt’s special adviser Adam Smith.

8.4. This is something we hope to explore further in our research. The range of possible solutions might include: • Reclassifying special advisers so that they are no longer temporary civil servants • Requiring the Permanent Secretary to seek a formal direction from the Minister whenever he has concerns about the activities of special advisers (similar to his Accounting Officer powers in relation to questionable expenditure) • Leaving discipline of special advisers solely in the hands of the appointing Minister; or moving it to the Prime Minister’s chief special adviser (making him responsible for the conduct of all special advisers); or to the Cabinet Secretary.

8.5. It would also help upon appointment to have greater clarity over the scope of the special adviser’s authority and duties. Secretaries of State set out the roles and responsibilities of the junior Ministers within their Department. It might be possible for the roles of special advisers to be set out in the same announcement.

Special advisers and their effectiveness 9.1. A key question in our research project is: how can we make special advisers more effective? If we accept that special advisers are necessary, then we need to think how to improve their performance. This raises questions about their recruitment; training; support and supervision.

13 Cabinet Office, Ministerial Code (May 2010), para. 3.2; Cabinet Office, Code of Conduct for Special Advisers (June 2010), para. 4. 14 This was made clear in the Government’s response to the Wicks Committee’s report Defining The Boundaries within the Executive: Ministers, Special Advisers and the Permanent Civil Service in 2003: see O. Gay, Special Advisers, House of Commons Library Std. note, SN/PC/03813 (4 November 2010), pp. 8-9. 9.2. We have only just begun to explore this, and we do not pretend there are easy answers. But the possibilities to be explored might include: • More selective recruitment (eg in Wales Rhodri Morgan ran an open competition for advisers to his first administration) • Encourage the political parties to undertake training for potential special advisers (eg., the ‘political advisers’ for shadow ministers). • A more specific, detailed job description identifying the skills they need • Proper induction training. Currently special advisers are given minimal or no induction. In 2010 the Institute for Government filled the gap by offering some initial training courses. Whitehall might devise its own induction training, led by the Cabinet Office, and drawing on former ministers, special advisers and civil servants. (This raises a wider question, about the lack of induction training for ministers). • Better support for special advisers, possibly by giving them a departmental Private Secretary to help them liaise with the Department. • Better supervision and annual appraisal. But it is not easy to identify who should do this: the appointing Minister? The PM’s chief special adviser? It relates to who should be responsible for the discipline of special advisers, raised in para 8.4.

Political Staff in Four Westminster Jurisdictions

Table 1: Political Staff Numbers15 Year United Kingdom Australia Canada New Zealand 2012 82 - - - 2011 75 - - - 2010 70 403 - - 2009 74 320 - - 2008 73 318 600 58 2007 68 428 513 53

Table 2: Minister/ Political Staff Ratios16 Country Numbers of Cabinet Ministers Average number of spads per (2007) minister (2007)

15 For Australia, Canada, New Zealand, see C. Eichbaum and R. Shaw, Partisan Appointees and Public Servants: An International Analysis of the Role of the Political Adviser (Cheltenham, 2010), pp. 73, 94-113, 117. For Australia see also N. Horne, ‘The Members of Parliament (Staff) Act 1984 framework and employment issues’, Parliament of Australia Research Paper, 26 (3 April 2009), p. 15. For Canada see also A. Smith, ‘Ministerial Staff: Issues of Accountability and Ethics’, Library of Parliament (1 December 2008), p. 3. For the UK see O. Gay, ‘Special Advisers’, House of Commons Standard Note, SN/PC/03813 (15 December 2011). 16 United Kingdom: BBC News, Brown unveils huge Cabinet revamp, reproduced at http://news.bbc.co.uk/1/hi/6247502.stm; accessed 22 May 2012. Australia: news.com.au, Kevin Rudd’s Cabinet in full, reproduced at http://www.news.com.au/features/federal-election/kevin-rudds-cabinet-in-full/story- e6frflo0-1111114994307; accessed 22 May 2012. Canada: CBC news, Stephen Harper’s first reshuffle, reproduced at http://www.cbc.ca/news/background/parliament39/cabinet.html; accessed 22 May 2012. New Zealand: Ministry of Justice, Ministerial List as at 31 October 2007, reproduced at http://www.justice.govt.nz/publications/global-publications/d/directory-of-official-information- archive/directory-of-official-information-december-2007/ministerial-list; accessed 22 May 2012. United Kingdom 22 (Brown Government) 3.1 Australia 38 (Rudd Government) 11.3 Canada 27 (Harper Government) 19 New Zealand 20 (Clark Government) 2.6

Table 3: The Accountability of Political Staff Country Statutory Pre- Political Staff Code of Accountable to Accountable to Limit? appointment Conduct? Minister? Parliament? hearing? United N N Y (since 2001) Y N Kingdom Australia N N Y (since 2008) Y N Canada N N N Y N NZ N N N Y N

May 2012

Written Evidence submitted by Institute for Government – Zoe Gruhn & Felicity Slater (SPAD 10)

Introduction

This submission sets out the Institute for Government’s response to the questions raised in your Issues and Questions Paper. It reflects work done by the Institute on the role of the centre, ministerial effectiveness and the workings of the Coalition, as well as our continuing research on special advisers and our involvement in the development of special advisers. Our publications to date in this area include: The Challenges of Being a Minister, Oiling the Machine, Taking the Helm, United We Stand, Transitions, and Balancing Act.

Special advisers, appointed by ministers, have become an established part of the Whitehall scene. They fulfil a number of important functions on behalf of ministers– within their own departments, with other departments, with supporters of the governing party in Westminster and beyond, with outside groups interested in a minister’s decisions, and with the media. They provide party political advice and support which civil servants cannot provide and as such protect civil service impartiality. At their best, they can help both ministers and civil servants to make policy better by acting as an effective conduit for ideas and a valuable sounding board. However, their position is inherently ambiguous and reflects a typically British compromise between wanting to maintain an impartial Civil Service and Ministers’ strong desire to have close access to political support.

In answering the Committee’s questions, we argue that: • special advisers should best be seen as part of increasing the capacity of ministers to perform their government role effectively; • the role should be acknowledged and accepted, as well as the understanding that the junior partner in a coalition requires more special adviser support to help ministers fulfil their cross-party role; • artificial limits on special adviser numbers ( which ministers then circumvent by appointing people to civil service roles), are undesirable– governments should be transparent on the numbers and roles of special advisers; • it would be desirable to have an explicit divide between the ‘classic’ special adviser acting as a minister’s eyes and ears and a specialist adviser providing policy advice; • a coalition government requires more special advisers • ministers should be held to account for the actions and views of their special advisers and should manage their performance; • more should be done at the centre and within departments to train, develop and induct special advisers.

Question 1. Are special advisers a necessary part of an effective Government and Civil Service? Question 2. For whose benefit do special advisers exist?

Government existed for many years without special advisers, relying instead on party machines for political advice. But in recent decades, special advisers have become indispensable to ministers, in complementing the role of civil servants. They provide an alternative, and more deliberately partisan, source of advice for ministers. Their prime benefit is for ministers, but also for civil servants in helping them advise ministers without being drawn into party politics. Since they are paid by the taxpayer, the justification for their existence must be that they help government function more effectively and in particular help ministers perform their roles.

Under the Labour government a system evolved where some special advisers had a specific media handling role, while others took on policy advice. In some cases political special advisers were supplemented by more expert specialist advisers – sometimes appointed as special advisers, sometimes as more conventional temporary civil servants. Specialist advisers can be helpful to ministers in formulating the agenda for a department – and it might be helpful to recognise their distinct role and status.

The Committee should also examine the case for strengthening support for senior ministers ,and look at the case for the creation of cabinets on the Continental model which mix politically appointed advisers and civil servants, as discussed in The Challenges of Being a Minister. Nick Clegg’s office has evolved more into this sort of model to reflect their need to operate across the whole of government and it would be worth examining the pros and cons of this. The IfG has not developed a view.

Question 3. Does (or should) the role of special advisers change under a coalition Government?

Yes. In United We Stand, published in September 2010, we argued that additional Liberal Democrat special advisers were needed to address imbalances across government that prevented the smaller coalition partner from having a proportionate voice and an effective role in government. Recommendation 6 in the IfG report stated that “additional special advisers should be appointed to support ministers of state in departments where the Secretary of State comes from a different party”. The Government accepted these recommendations, and appointments were made in October 2011. More special advisers were allocated to the Deputy Prime Minister, along with cross-departmental special advisers in order to make up for the absence of ‘conventional’ Liberal Democrat special advisers in most departments (proportionate to fewer Liberal Democrat secretaries of state). These new Liberal Democrat special advisers were appointed to preserve the Party’s identity and influence across Whitehall. These appointments reflect the importance of keeping an ear to the ground in the context of coalition when there is a particular need for good internal (government) communication and for reconciling different points of view. To enhance effective coalition working, it is necessary to be aware of what are sensitive issues for the other governing party, in order to manage conflict effectively and to secure positive outcomes.

Question 4. How valid are concerns about the conduct and propriety of special advisers?

Many special advisers act effectively and within the rules and provide advantages both to their ministers and the departments within which they work. But there have been high profile examples where special advisers have clearly breached acceptable standards and been forced to resign. The Special Adviser Code is not clear about a disciplinary process in cases of misconduct and impropriety, other than it being left to the responsibility of the minister. This does not suggest a transparent enough process and needs to be made more explicit. There could be a separate disciplinary body where cases can be referred. This is not an area that IfG has explored but it would be useful for this to be considered.

What is also clear is that many special advisers are “thrown in at the deep end” with little training or induction. The Cabinet Secretary has said that he thinks this is not necessary at a recent PASC inquiry. Our work with networks of special advisers suggests they would benefit from a more structured induction into how Whitehall works, covering some of the roles they need to play and, in particular, how to work effectively (and appropriately) with the Civil Service as well as much clearer guidance on appropriate conduct for a paid government employee. As the Leveson Inquiry has shown, this should include explicit guidance on appropriate actions when a minister is acting in a quasi-judicial capacity.

That said, ministers employ special advisers and must take full responsibility for the actions they undertake in their name.

Question 5. Should special advisers be subject to pre-appointment hearings?

No, since they are appointed by ministers as personal advisers. Pre-appointment hearings would confuse lines of accountability as argued in Balancing Act. The Committee might wish to consider whether there is any merit in enhancing the transparency around special adviser appointments, for example, through Public Appointments Committee being informed formally about appointments and why appointees are qualified to undertake their roles.

Question 6. Is a strict limit on the number of special advisers helpful?

The basic building blocks of our system are ministers who are advised by impartial, permanent civil servants. If we are to hold onto that system, there is a limited role for non- executive political appointments – otherwise it would turn into something very different. On this basis, the numbers of special advisers should be contained.

However, the track record of strict limits is that they are circumvented, which undermines transparency and confidence in the system. Rather than have limits, it is better to be transparent and thus avoid the need to recruit people who should have been appointed as advisers into what are nominally regular civil service posts. As we have explained above, we think it would be helpful to distinguish between party political advisers and specialist advisers.

From our continuing research in this area, some Conservative MPs have argued for much wider use of political appointments to top executive roles – as in the Mayor of London’s office or in the US. This would be a radical change to our system and we do not consider it further here.

Question 7. How should special advisers be held accountable for their advice and actions? Are any specific changes needed to the Ministerial Code, or the Code of Conduct and Model Contract for special advisers to improve accountability?

Codes are reference points but the key is the appointing ministers. Advisers of whatever kind operate in their ministers’ names, and ministers should be held accountable when an adviser is alleged to have strayed. Ministers do not need to micro-manage special advisers but they should be held responsible and accountable for any unacceptable behaviours and actions by them.

Conclusion

The Committee’s inquiry should look not only at accountability and conduct but also at the effectiveness of special advisers, in particular, what advisers are supposed to do and who monitors their performance. Are their levels of knowledge and expertise sufficient to enhance their ministers’ effectiveness or are they seen as a trusted, source of comfort with relatively limited policy knowledge? What is important over the longer term is to ensure that transparent processes are in place, to rationalise and improve the ways special advisers are prepared for their roles, and to make sure that they undergo ongoing training and development with regular performance evaluation. Special advisers have difficult and demanding jobs and a structure like this should enable them to operate more effectively, including managing relationships with the Civil Service. It should also help to avoid some of the high profile, negative examples which have coloured, probably unfairly, perceptions of what special advisers do and how they operate.

May 2012

Written Evidence submitted by Rt Hon Harriet Harman QC MP (SPAD 11)

Are special advisers a necessary part of an effective Government and Civil Service?

I think special advisers are necessary. They help not only the Secretary of State and the ministerial team, but also the departmental officials, liaison with Number 10, liaison with ministers in other government departments and with external stakeholders including the press. Your special adviser is the one person who you personally appoint and with whom there is a closer working relationship than civil servants. But it is precisely because of their closeness to the minister that they are authoritative and influential, and therefore it is right that there should be particular focus on ensuring that that authority and influence is exercised reasonably and in the public interest.

For whose benefit do special advisers exist?

See my answer to question 1.

Does (or should) the role of special advisers change under a coalition Government?

I don't think the role should change but I imagine that they have a particularly important role in a coalition government as they seek to interpret and take forward the coalition agreement.

How valid are concerns about the conduct and propriety of special advisers?

I think the concerns are valid and while the overwhelming majority work in an exemplary way and in the public interest, there have been well publicised examples where that has not been the case. Ultimately, as the Ministerial Code makes clear, that is the responsibility of the Secretary of State but that responsibility is meaningless if it is not taken seriously. It is simply not good enough for anyone in government who is responsible for a special adviser to say that they did not know what their special adviser was doing. The Ministerial Code demands that they should make it their business to know what their special adviser is doing and ensure that full reports back are made. If wrongdoing is so serious that it requires the special adviser to resign, then for it to have no implication for the Secretary of State renders that aspect of the Code meaningless.

Should special advisers be subject to pre-appointment hearings?

No. But I do think that before the special adviser is appointed their Secretary of State should take them through the Code of Conduct for Special Advisers, face to face, line by line, ensuring that they understand every aspect of it and explicitly undertake to abide by it, and that they understand the consequences both for themselves and their minister if it is breached. This should be done in the presence of a senior civil servant from the Cabinet Office. I think the Code is good. But it needs the explicit and emphatic backing of the Secretary of State at the start of the special adviser taking on their role.

Is a strict limit on the number of special advisers helpful?

Yes. This is very frustrating for Secretaries of State but I think it is necessary. Without it, Number 10 would be beset with requests for more special advisers from every minister and having the most special advisers would turn into a virility test for ministers and a ‘badge’ of power within government. Also, the role of the special adviser is dependent on a close relationship with the minister. If a Secretary of State had a multiplicity of special advisers it would negate that. And it would be unpopular with the public because of the cost to the public purse.

How should special advisers be held accountable for their advice and actions? Are any specific changes needed to the Ministerial Code, or the Code of Conduct and Model Contract for special advisers to improve accountability?

They should be held accountable through their Secretary of State. I don't think they should be directly accountable to Number 10. That would undermine the basis of their role with their Secretary of State, it would undermine their value in their department as a counterpoint to the power of Number 10 and it would dilute their singular accountability to their Secretary of State. It would mean less supervision of special advisers if Number 10 was responsible for all of them.

Further comments.

As Solicitor General I had to engage in a great many quasi-judicial decisions. And I had to liaise with ministers in other government departments when they were taking quasi-judicial decisions. It was inconceivable to me that a special adviser would be allowed anywhere near a quasi-judicial decision – even in meetings where they were discussed or seeing the relevant papers, let alone being a point of contact for external stakeholders. The whole point about the special adviser is that that they act politically and that is their difference from civil servants.

Indeed, paragraph 1 of the Code of Conduct for Special Advisers says that ‘The employment of special advisers adds a political dimension to the advice and assistance available to Ministers while reinforcing the political impartiality of the permanent Civil Service by distinguishing the source of political advice and support’, while paragraph 2 says they ‘are employed to help Ministers on matters where the work of Government and the work of the Government Party overlap and where it would be inappropriate for permanent civil servants to become involved’.

Even if they were not acting politically there would clearly be a perception that they were because that, fundamentally, is the nature of their role. I would strongly urge the Committee to propose that both the Ministerial Code and the Code of Conduct for Special Advisers are amended to provide that special advisers must play no part whatsoever in any quasi-judicial decision. Again, I think that is already implicit in the approach which a minister is expected to take when he/she is acting quasi-judicially, but perhaps it should be made explicit.

May 2012

Written evidence submitted by Steve Bates (SPAD 12)

I apologise for being late in the submission of evidence for your inquiry but thought there might be some perspectives I can offer as the Special Advisor who has been in the most departments of government in history (Northern Ireland, Cabinet office, Leader of the House, Department of Health, Ministry of Defence and Home Office) in the Blair administration.

I am of the view that political special advisors fulfil a vital role and should be supported better in the task they do, because good special advice helps deliver good government in line with manifesto commitments.

I am strongly of the view that some form of SPAD school should be set up - this should be compulsory for all incoming SPADs and be operated on an all party basis - perhaps in parliament - open both to those who senior politicians think might be asked to do this role, or individuals who wish to apply. Successful completion could be seen as a development/training opportunity for researchers etc - but not be seen as guaranteeing such a job.

As a new SPAD I learnt the job as I went along - and this puts an individual and a department at risk if a mistake is made. Different departments treat SPADs in very different ways. Working in a department is also a significantly different role to working in No 10 or a central function -a view you heard a lot of in your oral evidence.

SPAD school could also help SPADS who do not have a strong appreciation of party processes and structures understand the importance and structure of each party's constitution and policy process, this would best be done on a party by party basis.

The rudiments of what it is appropriate for departmental press offices to deal with, what it makes sense for an MP’s office to deal with and what is the remit of the SPAD in media work should also be taught.

I think it would be of use for SPADs to be assigned a mentor for their first year and this should not be a civil servant, so they can ask questions and understand boundaries.

I would be happy to provide my experience to any such endeavour and commend the committee for looking into this role.

June 2012

Written evidence submitted by Cabinet Office (SPAD 13)

At our recent evidence session on special advisers, I agreed to provide a written summary of the key issues we covered to assist the Committee with its consideration of this important topic.

Lines of Accountability and Responsibility As you are aware, the formal lines of accountability and responsibility for special advisers are detailed in the Ministerial Code and the Code of Conduct for Special Advisers. As I set out in my evidence, Ministers account for what special advisers do, but special advisers – like Ministers and permanent civil servants – are responsible for their own behaviour. People have personal responsibility for their own actions, but if the actions of a special adviser fall short of the standards required by their Code of Conduct then it is for the Minister to account for it. In terms of the role of the Permanent Secretary, if a Permanent Secretary becomes aware of an issue then they should raise this with the Minister. Permanent Secretaries and Ministers are able to take further advice about handling a concern from the Cabinet Secretary/Head of the Civil Service and the Head of Propriety and Ethics. Special advisers’ primary reporting line must remain to the appointing Minister.

I have reflected on your Committee’s question about whether there is a need for an additional person to advise on and/or investigate concerns about special advisers, and I believe that current arrangements, both within departments and centrally, are sufficient to ensure that any concerns are dealt with appropriately.

Pre-appointment Scrutiny Although not specifically covered in our evidence session, it might be helpful to cover the issue of pre-appointment scrutiny for special advisers. The Government does not believe that this would be appropriate. Special advisers are temporary civil servants appointed under an exception in Part 1 of the Constitutional Reform and Governance Act 2010 which means that they are excepted from the requirement that their selection is on merit on the basis of fair and open competition. Their appointments are personal to the Minister who made the appointment, and end when the appointing Minister leaves Government or moves to another appointment. Given that special advisers need to take up their roles immediately following a change of administration or Cabinet reshuffle, there would be significant practical difficulties with requiring pre-appointment scrutiny.

Induction, Training and Appraisal The induction process for new special advisers is shared by the appointing Minister, the relevant Permanent Secretary and the Propriety and Ethics Team in the Cabinet Office. This involves providing a detailed explanation of the issues covered in the , including the declaration of relevant interests and handling conflicts of interest, and the business appointments process. Special advisers have access to training in the same way as permanent civil servants to enable them to carry out their duties effectively. The Government has also introduced a voluntary appraisal system for special advisers to enable them to receive feedback on their performance.

The government is planning to further develop and strengthen the arrangements for the training and appraisal of special advisers, and would welcome the Committee’s contribution to this work.

Job Descriptions The sort of work that a special advisers may do is clearly set out in the Code of Conduct. As I said in my evidence, a set job description or template for all special advisers would not be practicable as individual Ministers require different things from their special advisers. Ministers’ requirements will vary over time depending on the changing pattern of priorities that a Minister has, so a job description would be out of date very quickly. The important point is that an appointing Minister is clear with his or her special advisers about what is expected of them. The Code of Conduct provides flexibility within a framework.

Numbers The number of advisers that Ministers may appoint is set out in the Ministerial Code. There are currently 81 special advisers in post (58 Conservative, and 23 Liberal Democrat). The Government now publishes online information on numbers, names and paybands of special advisers on a quarterly basis. As I said in my evidence, there has been an increase in the number of special advisers since the formation of the Coalition Government. However despite the unusual circumstances of a coalition the numbers are at present no higher than they were under the previous administration. The increase since the formation of the Coalition reflects a recognition of the importance of representing both coalition partners in every Department, as well as a desire to bolster support to Ministers where appropriate. The overall numbers of special advisers, as a proportion of the Senior Civil Service are, and will continue to be, very low. Out of a total Senior Civil Service of approximately 3,700 (as at October 2011), the 81 special advisers represent 2.25 of the total.

Special Advisers as Temporary Civil Servants The government does not believe that special advisers should lose their status as temporary civil servants, or be funded by an arrangement akin to “Short Money”. Special advisers provide a wide range of advice and expertise to Ministers, not just political input. In fact, although permitted to do political work, most of special advisers’ daily work will not be party political. Special advisers need to have access to departmental papers and to build strong relationships with officials, which they would not be able to do effectively if they were not civil servants.

I hope that this summary is helpful to the Committee.

July 2012