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Investigating the Conduct of Ministers House of Commons Public Administration Select Committee Investigating the conduct of ministers Seventh Report of Session 2007–08 HC 381 House of Commons Public Administration Select Committee Investigating the conduct of ministers Seventh Report of Session 2007–08 Report and appendices, together with formal minutes Ordered by The House of Commons to be printed 29 April 2008 HC 381 Published on 12 May 2008 by authority of the House of Commons London: The Stationery Office Limited £0.00 The Public Administration Select Committee 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 Commissioners 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 Dr Tony Wright MP (Labour, Cannock Chase) (Chairman) Mr David Burrowes MP (Conservative, Enfield Southgate) Paul Flynn MP (Labour, Newport West) David Heyes MP (Labour, Ashton under Lyne) Kelvin Hopkins MP (Labour, Luton North) Mr Ian Liddell-Grainger MP (Conservative, Bridgewater) Julie Morgan MP (Labour, Cardiff North) Mr Gordon Prentice MP (Labour, Pendle) Paul Rowen MP (Liberal Democrats, Rochdale) Mr Charles Walker MP (Conservative, Broxbourne) Jenny Willott MP (Liberal Democrats, Cardiff Central) 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), James Gerard (Second Clerk), Pauline Ngan (Committee Specialist), Louise Glen (Committee Assistant), Anne Woolhouse (Secretary) and James Bowman (Senior Office Clerk). 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 3284; the Committee’s email address is [email protected]. Public Administration Select Committee: Investigating the conduct of ministers 1 Page Contents Report Page Summary 3 1 Introduction 4 2 The Ministerial Code 5 Ministerial interests 6 3 The new investigatory role 7 The scope of the role 7 Publishing the findings of investigations 8 Instigating investigations 9 4 Improving the investigatory capacity 10 Securing independence 12 Ensuring credibility 13 5 Conclusions 14 Conclusions and recommendations 16 Appendix 1: Note from Catherine McGrath on changes to the Ministerial Code in 2007 18 Previous Codes 18 2007 Code 18 Key Additions and Amendments 19 Summary of the 2007 Code: Principles, Additions and Omissions 21 Appendix 2: Correspondence between the Chairman and the Cabinet Secretary 23 Formal Minutes 24 Witness 25 List of Reports from the Committee during the current Parliament 26 Public Administration Select Committee: Investigating the conduct of ministers 3 Summary The post of Prime Minister’s Independent Adviser on Ministerial Interests was created in March 2006, and extended by the incoming Prime Minister in July 2007. Part of the new Independent Adviser’s role is to investigate allegations that the Ministerial Code has been breached. We and our predecessor Committees have been calling for an investigator into alleged ministerial misconduct for some time. It does not seem fair that the media can claim to take the place of due process when ministers are accused of misconduct. It also seems disproportionate that the only effective sanction for non- compliance with the Code (however minor) is dismissal. This Report considers the suitability of the new mechanism for investigating alleged breaches of the Code. We welcome the creation of an investigatory capacity as an important step. However, we have identified limitations on the Independent Adviser’s powers which cast doubt over the effective ability of any holder of the post to secure public confidence. In particular, the Independent Adviser should be free to instigate investigations. As it is, he is dependent on being invited to do so by the Prime Minister. The Prime Minister should also undertake that findings of investigations into the conduct of ministers will routinely be published. Constitutional watchdogs such as this new investigator need to be demonstrably independent of those they regulate—in this case, ministers, including the Prime Minister. The post of Independent Adviser meets none of the criteria we associate with independence. The holder of the post, Sir Philip Mawer, has been appointed by the Prime Minister on a non-specific term of office which can be terminated by the Prime Minister at any time and on any grounds. He has no staff of his own, no office and no budget, but relies on the Cabinet Office for all these things. There has been no open advertisement process and no parliamentary involvement in the appointment. Until these defects are remedied, we have difficulty accepting the suggestion that the new investigator can meaningfully be considered to be independent. 4 Public Administration Select Committee: Investigating the conduct of ministers 1 Introduction 1. The Ministerial Code is now established as the rule book on ministerial conduct. Our predecessor Committee first considered the Code in a report of February 2001.1 That report considered questions around the status and ownership of the Code, its purpose, and whether there should be a distinction between principles of ministerial conduct and simple procedural guidance. It also highlighted the need for an independent investigatory capacity to give fair consideration to any claims that the ethical standards in the Code were not being met. 2. The Committee on Standards in Public Life (CSPL) has also had occasion to consider the Ministerial Code on more than one occasion. Most recently, that Committee recommended in 2003 that two new offices should be created to ensure that standards of ministerial conduct were acceptable. The first proposal was that there should be, as our predecessors had recommended, independent investigation of alleged breaches of the Ministerial Code. The second proposal was that there should be an independent office- holder, called an Adviser on Ministerial Interests, to provide advice to ministers on compliance with those sections of the Ministerial Code which cover the avoidance of perceived and actual conflicts of interest. The CSPL also suggested that a list of ministerial interests should be published.2 3. The Government accepted the case for an adviser on ministerial interests, but not for an investigator of alleged Code breaches.3 After a lengthy delay, in March 2006 the then Prime Minister appointed Sir John Bourn (the then Comptroller and Auditor General) as the first Independent Adviser on Ministerial Interests. His terms of reference included the suggestion 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”.4 However, several controversies around the conduct of various Cabinet ministers had already led us to inquire once again into how ministerial misconduct was investigated. In July 2006, notwithstanding the recent appointment of Sir John Bourn, we found that there was a definite need for an investigator with sufficient independence from government to secure public confidence: Making provision for an independent investigatory mechanism for alleged breaches of the Ministerial Code is long overdue. Its establishment would benefit not just public confidence but also the interests of the Prime Minister, the government and especially those at the centre of allegations who deserve a fair hearing.5 1 Public Administration Select Committee, Third Report of Session 2000–01, The Ministerial Code: Improving the Rule Book, HC 235 2 Ninth Report of the Committee on Standards in Public Life, Defining the Boundaries within the Executive: Ministers, Special Advisers and the permanent Civil Service, Cm 5775, April 2003 3 The Government’s Response to the Ninth Report of the Committee on Standards in Public Life, Cm 5964, September 2003, pp. 1–4 4 Cabinet Office, Independent Adviser on Ministerial Interests: Terms of Reference, 16 May 2006 5 Public Administration Select Committee, Seventh Report of Session 2005–06, The Ministerial Code: the case for independent investigation, HC 1457, para 42 Public Administration Select Committee: Investigating the conduct of ministers 5 4. One of the first acts of the Rt Hon Gordon Brown MP on coming into office as Prime Minister was to re-announce the post of Independent Adviser on Ministerial Interests. In July 2007 the Government published a Green Paper entitled The Governance of Britain.6 The text of the Green Paper implied that the post had been expanded: • a new Independent Adviser will be appointed to advise on Ministers’ interests. He or she will be able, at the Prime Minister’s request, to investigate alleged breaches of the Ministerial Code; • the Independent Adviser on Ministers’ Interests will publish an Annual Report and List of Ministers’ Interests. Subsequent lists will be published with the Independent Adviser’s Annual Report; • the Annual Report will be laid before Parliament to ensure proper scrutiny of ministerial conduct.7 5. Subsequently, the Prime Minister appointed Sir Philip Mawer, previously the Parliamentary Commissioner for Standards, to serve as his Independent Adviser. Sir Philip took up office early in 2008, and we took evidence from him a few weeks into his role on 28 February. We used this evidence session to examine the detail of the role to which Sir Philip had been appointed, and to discover whether it satisfied the need for independent investigation which we and others had identified in the past.
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