House of Commons Public Administration Select Committee The Prime Minister’s adviser on Ministers’ interests: independent or not? Twenty Second Report of Session 2010–12 Report, together with formal minutes, and oral and written evidence Ordered by the House of Commons to be printed 14 March 2012 HC 1761 Published on 17 March 2012 by authority of the House of Commons London: The Stationery Office Limited £11.00 The Public Administration Select Committee (PASC) The Public Administration Select Committee is appointed by the House of Commons to examine the reports of the Parliamentary Commissioner for Administration and the Health Service Commissioner for England, which are laid before this House, and matters in connection therewith, and to consider matters relating to the quality and standards of administration provided by civil service departments, and other matters relating to the civil service. Current membership Mr Bernard Jenkin MP (Conservative, Harwich and North Essex) (Chair) Alun Cairns MP (Conservative, Vale of Glamorgan) Michael Dugher MP (Labour, Barnsley East) Charlie Elphicke MP (Conservative, Dover) Paul Flynn MP (Labour, Newport West) Robert Halfon MP (Conservative, Harlow) David Heyes MP (Labour, Ashton under Lyne) Kelvin Hopkins MP (Labour, Luton North) Greg Mulholland MP (Liberal Democrat, Leeds North West) Priti Patel MP (Conservative, Witham) Lindsay Roy MP (Labour, Glenrothes) Powers The powers of the Committee are set out in House of Commons Standing Orders, principally in SO No 146. These are available on the Internet via www.parliament.uk Publications The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the Internet at http://www.parliament.uk/pasc Committee staff The current staff of the Committee are Steven Mark (Clerk), Charlotte Pochin (Second Clerk), Alexandra Meakin (Committee Specialist), Paul Simpkin (Senior Committee Assistant) and Su Panchanathan (Committee Assistant). Contacts All correspondence should be addressed to the Clerk of the Public Administration Select Committee, Committee Office, First Floor, 7 Millbank, House of Commons, London SW1P 3JA. The telephone number for general enquiries is 020 7219 5730; the Committee’s email address is [email protected]. The Prime Minister’s adviser on Ministers’ interests: independent or not? 1 Contents Report Page Summary 3 1 Introduction 5 Our inquiry 5 The history of the post of independent adviser 5 This Report 7 2 Lessons from Fox-Werritty 8 Lessons for the Civil Service 8 Lessons in relation to the independent adviser on Ministers’ interests 10 Should the independent adviser have been involved? 12 Possible changes to the independent adviser’s processes 13 3 The appointment of the new independent adviser on Ministers’ interests 16 The recruitment process 16 Career background of the appointee 16 4 Conclusion 19 Conclusions and recommendations 20 Formal Minutes 22 Witnesses 25 List of printed written evidence 25 List of Reports from the Committee during the current Parliament 26 The Prime Minister’s adviser on Ministers’ interests: independent or not? 3 Summary The person referred to in the Ministerial Code as the ‘independent adviser on Ministers’ interests’ is responsible for investigating, at the request of the Prime Minister, alleged breaches of the Code. We considered the role and remit of this post, and have recommended changes to the role to enable the adviser to carry out short, preliminary investigations and also to instigate his own investigations. Such changes would help prevent a recurrence of the events preceding the resignation of the Rt Hon Dr Liam Fox as Secretary of State for Defence in October 2011, when the independent adviser on Ministers’ interests was not called upon to investigate the breach of the Code. The retirement of Sir Philip Mawer as independent adviser shortly after Liam Fox’s resignation provided the Prime Minister with an extremely timely opportunity to appoint a candidate with a proven record of independence to ensure and promote Ministerial propriety. We are disappointed that this opportunity was not taken, and that instead, a closed recruitment process was used to appoint Sir Alex Allan, a career civil servant, to the role. An open appointment process is essential to inspire public confidence in the independence of the role of the adviser on the Ministerial Code. Sir Alex has had a distinguished career working for his country in public service, and has clearly been an outstanding civil servant. We felt, however, that he was unsuited to this role because he did not convince us that he would be able to demonstrate the independence the post requires. In fairness, it is unlikely that many retiring civil servants will have had the opportunity to demonstrate the necessary independence from Government in their career to date. We regret that we were not given the opportunity to express these views before Sir Alex took up his post. We also sought to consider the role of the Civil Service in helping to prevent breaches of the Ministerial Code and recommended a revision to the Civil Service Code to ensure that officials are clear about their obligation to advise Ministers on matters relating to the Ministerial Code and how to act when matters remain unresolved. There is a strong case for more structured co-ordination of the work of the various regulators of propriety in public life and we will consider in our future work how this might best be achieved. The Prime Minister’s adviser on Ministers’ interests: independent or not? 5 1 Introduction Our inquiry 1. The Prime Minister’s independent adviser on Ministers’ interests is responsible for advising Ministers on how to comply with the Ministerial Code, and, at the request of the Prime Minister, investigating alleged breaches of the Code. 2. This role has been held since 1 November 2011 by Sir Alex Allan. In January 2012 the Committee questioned Sir Alex about the recruitment process he had undergone, and how he planned to undertake his duties. We also took evidence from his predecessor, Sir Philip Mawer, about his time in post, and how the role might be strengthened. 3. We had previously taken evidence on the remit of the independent adviser as part of our inquiry into the role of the Head of the Civil Service in November and December 2011, hearing from the new Head of the Civil Service, Sir Bob Kerslake; the former Head of the Civil Service and Cabinet Secretary Lord (Gus) O’Donnell; and five other former Heads of the Civil Service, as well as from academics, journalists and commentators. This evidence explored the decision not to ask the independent adviser to investigate an alleged breach of the Ministerial Code in relation to the access by Mr Adam Werritty to the former Secretary of State for Defence, the Rt Hon Dr Liam Fox MP, and also touched on the role of the Civil Service in the events leading up to Liam Fox’s resignation. 4. We have not taken evidence from Liam Fox, Adam Werritty or the Permanent Secretary at the Ministry of Defence, Ursula Brennan, nor have we sought to examine the specifics of the case. We do not therefore seek to make any judgement about the conduct of any individual in relation to this matter, nor do we invite any such conclusions to be drawn from this Report. We have examined whether there are lessons to be learnt for the Civil Service and how any future alleged breaches of conduct by Ministers should be addressed more effectively. The history of the post of independent adviser 5. The need for a strong and independent examiner of alleged breaches of the Ministerial Code was a recurring concern for PASC in the 1997–2001, 2001–2005 and 2005–2010 Parliaments. In February 2001, before the post existed, PASC recommended a twin-track approach to resolving this issue, with the Parliamentary Commissioner for Standards advising ministers on compliance with the Code and the Parliamentary Ombudsman conducting independent investigations of alleged breaches of the Code.1 This recommendation was rejected by the Government in December 2001, which argued that: there was no single approach to the investigation of allegations of ministerial misconduct that would be helpful in all cases, and that it would be undesirable to 1 Public Administration Select Committee, Third Report of Session 2000–01, The Ministerial Code: Improving the rule book, HC 235, para 30 6 The Prime Minister’s adviser on Ministers’ interests: independent or not? fetter the Prime Minister's freedom to decide how individual cases should be handled.2 6. The Committee on Standards in Public Life (CSPL) recommended the establishment of a post of independent adviser on Ministers’ interests in its 9th Report, published in 2003.3 The Government response to this Report accepted this recommendation, “to provide Ministers and Permanent Secretaries with an additional source of professional advice as required on the handling of complex financial issues”.4 7. The first independent adviser on Ministers’ interests, Sir John Bourn (previously Comptroller and Auditor General), was appointed in March 2006. His terms of reference stated that the Prime Minister “may ask the independent adviser to establish the facts in certain cases concerning the Ministerial Code and to provide private advice to him”.5 8. The remit of the independent adviser was extended by the then Prime Minister, the Rt Hon Gordon Brown MP, on taking office in 2007. Sir Philip Mawer took up this role in January 2008.