House of Commons - Public Administration

Select Committee on Public Administration Third Report

THIRD REPORT

The Select Committee on Public Administration has agreed to the following Report:—

THE MINISTERIAL CODE: IMPROVING THE RULE BOOK

1. Recently the Prime Minister told the House of Commons that 'no one will be better governed through fine-tuning the Ministerial Code. Those are good issues for academics and constitutional experts, but they are not the big issues that Parliament should debate when we consider our role in the modern society and our relationship with the Executive today.'[11] There is clearly much truth in this. Yet the Code does involve significant issues for Parliament, and its relationship to the Executive, and it is therefore right for them to be examined by this Committee. They also have a role to play in securing the trust of the people in the integrity of the political process.

2. The Ministerial Code is a compilation of notes detailing the arrangements for the conduct of Ministers. These notes are intended to give guidance by listing the principles and precedents which may apply. The Code provides an explanation of the operation of Government and prescribes how it is to be undertaken. It is issued by the Prime Minister of the day to the members of the Government. It is a key document for the maintenance of good public administration, but it has no formal status within our constitutional framework and for a long time was unpublished. The informal status of the document has allowed it to evolve and to be variously interpreted. What began as notes largely relating to narrowly procedural matters now encompasses issues of ethics and accountability. It has become the ministerial rule book. As such it deserves the attention of this Committee, and of the House.

3. We heard evidence from a number of witnesses with expert knowledge of the history and operation of the Ministerial Code: Rt Hon John Major, CH, MP(former Prime Minister); Lord Neill of Bladen, QC (Chairman, Committee on Standards in Public Life); Professor Peter Hennessy (Professor of Contemporary History, Queen Mary & Westfield College); Amy Baker (author of an academic study of the Code); Peter Riddell (Associate Editor, The Times); and Lord Butler of Brockwell, GCB, CVO (Cabinet Secretary 1988-1998). We also invited the Prime Minister to appear, but he felt that the established precedents meant that he should decline (see Appendix 4).

DEVELOPMENT OF A MINISTERIAL CODE

4. Directives on procedures for cabinet Government were issued by the Prime Minister during the Second World War. These directives were then assembled in a single document as Questions of Procedure for Ministers (QPM), which was issued by Clement Attlee in 1945 to all incoming Ministers. This was the first instance of Ministers receiving a consolidated version of prime ministerial directives. Developments since 1945 to QPM have been on an incremental basis. Additions and revisions have been made by subsequent administrations. John Major described this process of accretion to us: 'As people perceived problems they tried to deal with it and they added things. It is in the nature of life that once you have something in the Code it is very difficult to get it out, it does grow like Topsy.'[12] However, QPM remained a secret document of which there was little public knowledge or discussion. When asked what was the most important addition he had made to QPM, John Major replied that 'the most obvious thing that I did was to publish it.'[13]

5. In 1992 John Major became the first Prime Minister to publish QPM. When we asked him why he had decided to publish it, he told the Committee: 'Frankly, I saw no good reason for it not to be published... it would have been rather odd for me to have kept it secret because I had talked about openness in Government'.[14] He also referred to Cabinet discussions about publication: 'There always is a minority view that it is better not to open Government. If you are in Government there is always someone who will suggest that you ought not to open it any further than it has historically been opened.' He added that 'the discussions we had were about whether the Code should be published, not about the contents of the Code. The contents of the Code were determined by me.'[15]

6. John Major described the publication of QPM as one of a number of related initiatives he took to improve public confidence in the political system. The Citizen's Charter was 'concerned with openness, performance standards as well as to jack up public service'.[16] The Committee on Standards in Public Life, established in 1994, under the chairmanship of Lord Nolan, was to 'examine current concerns about standards of conduct of all holders of public office'.[17] Ministerial conduct, in terms of the provisions of QPM, was an early object of consideration by the Nolan Committee, in its First Report in 1995. In 1999, the Committee, now chaired by Lord Neill, returned to the issues covered in the First Report to review progress, including developments with respect to QPM (now the Ministerial Code). The Committee published its Sixth Report (Reinforcing Standards) on 12 January 2000, including recommendations on the Code, and the Government responded in July.

7. In 1995 our predecessor committee, the Public Service Committee, undertook a major inquiry into ministerial accountability and responsibility. In its report the Committee accepted that it was for the Prime Minister to set out the standards expected of Ministers, but argued that QPM was not only a prime ministerial document. In effect the Government was setting the standards for its own conduct, especially in relation to its parliamentary obligations, and this was unsatisfactory. The Committee's Report therefore included a recommendation that the House pass a resolution which underlined the obligations on Ministers to the House, and produced a draft resolution for the House to consider.[18] The Major Government accepted this recommendation and in March 1997 the House of Commons passed a Resolution on Ministerial Accountability to Parliament, agreed by all the main political parties (see Appendix 1).

8. After becoming Prime Minister in 1997, Tony Blair renamed QPM as the Ministerial Code. The new Code incorporated the House Resolution of 1997 and included other amendments resulting from the Nolan recommendations. The Prime Minister also added his own personal foreword (see Appendix 2) in which he declared his 'strong personal commitment to restoring the bond of trust between the British people and their Government' with the revised Code as evidence of this. It is now an established expectation that the Ministerial Code will be published at the beginning of each new administration, although this remains only a convention. The Code will have to be further re-drafted in light of the Government Response to Lord Neill's report and the undertakings given by the Home Secretary during the passage of the Freedom of Information Act 2000.

9. The growth in size of the Ministerial Code reflects the developing character of Government in the post-war period. The Attlee version of QPM contained sixty-five paragraphs, most of which related to points of procedure rather than conduct. The latest version of the Ministerial Code, issued in 1997 by Tony Blair, contains one hundred and thirty-five paragraphs and includes guidance on procedure, conduct and accountability. Such expansion has created what Professor Hennessy described as 'a very British document where you throw in all the new bits as they come along. The beauty of drafting is that it covers up for the fact that it is an amazing mish-mash of things.'[19] The Nolan Report regarded the Code as 'a miscellany: a mix of immutable principles with housekeeping practicalities'.[20]

10. We welcome the fact that the Government has responded positively to a number of the Neill Committee's recommendations on the Code. It has undertaken to give more prominence to the ethical framework. It has agreed to make amendments to clarify the fact that Ministers cannot substitute the advice of officials for their own judgement and responsibility, and to make the reference to special advisers (a matter on which this Committee will shortly publish a separate report) reflect the contemporary reality. We endorse the Neill Committee's view of the need for the Code to be amended on these points, and welcome the Government's response. However, there remain issues that deserve attention.

THE KEY ISSUES

11. We have identified a number of issues which seem to us to be of particular importance. These are:

Status: what is the Code's constitutional position?

Ownership: to whom does the Code belong ?

Accountability: where does the buck stop?

Investigation: who investigates alleged breaches?

Separation: does it need splitting?

Publication: does this need formalising?

STATUS

12. The status of the Ministerial Code remains the subject of debate. We heard evidence both that the Code represents a statement of fundamental constitutional importance and that it has little constitutional significance. Amy Baker, noting that the Code 'has no statutory basis... this is an area of Government which has historically been regulated by constitutional convention',[21] said that 'its status has elevated it both as a permanent non-party repository of all the conventions, practices and prime ministerial instructions that have gone out but also... it now serves a further function as the yardstick of ministerial conduct'.[22] Professor Hennessy told us that it is 'the only set of guidelines that we have that cover the essentials of central Government'.[23] The present and previous Cabinet Secretaries have expressed an alternative view: that the Code does not have formal constitutional force. Lord Butler told us that he preferred to describe the Code as 'lore not law' and added "I do not like the phrase 'rule book'".[24] In his foreword to Amy Baker's book on the Ministerial Code, he said that he 'disagrees with the notion of the code as a rule book let alone elevating it to be part of the constitution' adding that 'it is neither comprehensive nor absolute. Ministers are accountable to Parliament, not a piece of paper.'[25] In his evidence to the Neill Committee, the current Cabinet Secretary, Sir Richard Wilson, said that 'the Code is not a set of rules but a set of principles set out by the Prime Minister to provide guidance to Ministers.'[26]

13. When we asked John Major about the status of the Code, he replied that 'while it is constitutionally correct to say an incoming Government may tear it up and begin again, I think it is unlikely to the point of being dismissed that an incoming Government... could tear up what has now been seen as pretty clear guidelines.' He added: 'I do not myself think it could readily be disposed of, and nor should it.'[27] While Lord Butler expressed his reservation on the Code's constitutional significance, he did nevertheless agree with John Major's assertion on this point, stating that 'I think it would be unwise for a prime minister to tear it up and dispense with it'.[28]

14. John Major told us that the Code is seen by 'some as rules, some as guidelines, it is a hybrid, if truth be known, between the two.'[29] While all witnesses believed that the Code, in its current format, is a hybrid document, the diverse nature of its contents (with a mixture of ethics, accountability and housekeeping, rules and guidelines) is a source of debate. For those who view the Code's hybrid nature as an advantage, it allows for flexibility which a rigid set of rules would preclude. When breaches were alleged, John Major told us that he preferred 'to leave a large glass of brandy and a pistol in a darkened room for the minister to make up their mind... the implied threat was there that they would be removed by the Prime Minister if that was necessary'.[30] Lord Butler told us that 'I would never take the view that because a minister's actions are in some jot or tittle inconsistent with these guidelines that they have, therefore, broken the rules in some way. It is for them to justify their action.'[31] Alternatively, there are those who believe that the Code's hybrid nature dilutes its significance. In response to Lord Butler, Professor Hennessy said 'I can see why the desire to retain flexibility and avoid prescriptive paragraphs is a concern', but argued that 'you cannot rely upon the good chap theory of Government whereby the good chap of either sex knows what he or she has to do in order not to transgress an unwritten line... things have got a little bit more complicated'.[32] Amy Baker thought that 'the status of the important bits is actually being watered down by its retention within a document which does not give it enough status.'[33] It may suit the needs of Government to maintain such flexibility, but we question how far this serves the cause of public and parliamentary accountability.

15. Other developments have focused attention upon the status of the Ministerial Code. Publication of the Code in 1992 provided the public, and the media, with a text which could be referred to and quoted in connection with ministerial conduct. Amy Baker observed that after QPM was made public it 'was very quickly propelled into the public arena by journalists and politicians as the authoritative set of rules and principles for ministerial office.' [34] The fact of publication increased public and parliamentary expectation of it. Further, since its publication, a number of further codes have been drawn up for other areas of public life. The Committee on Standards in Public Life drew up its Seven Principles of Public Life;[35] and codes of conduct have been introduced separately for Members of Parliament, civil servants, councillors in local Government and board members of quangos. John Major told us that, as a result of codes for other public bodies and associated developments, 'the need for there to be a Ministerial Code is extended.'[36] Following devolution, ministerial codes of conduct with a clear status have been introduced by the Scottish Parliament and the Welsh and Northern Ireland Assemblies. We believe that the development of such codes of conduct across public life reinforces the need for the constitutional status of the Ministerial Code to be properly recognised. It is not a legal document but a set of guidelines. It does not necessarily cover all aspects of what should be considered acceptable Ministerial practice or behaviour and should not substitute for the Prime Minister's judgement, for which he must account to Parliament. It is unsatisfactory for its status still to be in doubt. It is the rule book for ministerial conduct, including the responsibilities of Ministers to Parliament, and its status should reflect its importance. It may have developed in a private and ad hoc way, but it is now an integral part of the new constitutional architecture. It is time for it to be recognised as such.

OWNERSHIP

16. Who owns the Ministerial Code? It is issued by the Prime Minister of the day, but this is not a complete answer to the question of ownership. Lord Nolan's First Report recommended that QPM be amended to say 'It will be for individual Ministers to judge how best to act to uphold the highest standards. It will be for the Prime Minister to determine whether or not they have done so in any particular circumstance.'[37] The then Government was not prepared fully to accept this recommendation as it 'would go too far towards suggesting that the Prime Minister's relationship with his ministerial colleagues is that of invigilator and judge'.[38] Lord Neill's Committee returned to this issue when reviewing his predecessor's report. The Committee's Sixth Report stated that the Government's Response to Lord Nolan on the issue of prime ministerial ownership had 'diluted the clarity of the real position.'[39] The Committee recommended that Section 1 of the Code be amended to say 'The Prime Minister remains the ultimate judge of the requirements of the Code and the appropriate breaches of it.'[40] In replying to Lord Neill, and rejecting this recommendation, the Government repeated the view of the previous administration that 'it must be for individual Ministers to judge how best to act in order to uphold the highest standards'.[41] When questioned in the House on 24th January if the Ministerial Code should be reviewed, the Prime Minister replied 'I do not believe it is necessary to review the Code; it is necessary to make judgements under it.'[42]

17. We asked John Major why he had decided not to follow Lord Nolan's recommendation that it would be for the Prime Minister to determine whether Ministers had upheld the highest standards. He replied that the Nolan formulation at the time was not appropriate because 'I was very keen to bring Cabinet Government back. It is not easy... if you act in a fashion that suggests you are judge, jury, invigilator and executioner.' He added that 'I preferred the implied threat of dismissal if they did not retain the confidence of the Prime Minister.'[43] He went on to say that times have changed since his period of office and that he would now accept the wording of Lord Neill's recommendation: 'I think that it is delphic enough to bridge the gap between the invigilator concern I had before and to leave the option open to resign... that is something that I would be prepared to live with were it now my responsibility'.[44] We note the Neill Committee also raised the question about the extent to which the Code applies to the Prime Minister.

18. Although issued by the Prime Minister, the ownership of the Code is disputed. Peter Riddell expressed the view that, as a result of the publication of the Code, 'it ceased to be solely Whitehall property',[45] while the greater focus on public ethics and accountability prevents it 'being solely a document of the Prime Minister.'[46] We note that during the Report Stage of the Freedom of Information Bill last year, the Home Secretary proposed that the Ministerial Code would be amended to include guidance on the procedures for any ministerial veto on disclosure.[47] We have yet to hear if the drafting will be done by the Home Office or the Cabinet Office, but it does raise questions about whether Cabinet Ministers, as well as the Prime Minister, can amend the Code, whether this makes it a collective document rather than the personal property of the Prime Minister, and whether Parliament should have at least a share in its ownership.

19. There was general agreement among our witnesses that the Ministerial Code currently belongs to the Prime Minister. Lord Neill told us that 'it comes from the Prime Minister... and the version of the Code is very much a statement by the Prime Minister... in the language of the foreword he claims authorship for it.'[48] Lord Neill's report reiterated the recommendation of his predecessor to amend the Code in order to emphasise prime ministerial ownership. John Major was clear that 'responsibility ultimately for the Code lies with the Prime Minister', adding that: 'Only one person can decide and that is the Prime Minister. He promulgates the Code.'[49] He further observed that the Code 'deals with many things that are internal to Government, about relations between Ministers. That is another reason why it has to be the Prime Minister's document and cannot be under the control of anybody else.'[50] John Major's acknowledgement that he would now accept the revised wording of the Code by Lord Neill reflected its ownership by the Prime Minister. The current Cabinet Secretary, Sir Richard Wilson, told the Neill Committee that he agreed that the Prime Minister is the author, and potential amender, of the Code.[51]

20. We considered whether the Ministerial Code should belong to Parliament. Though we argue below for a role for Parliament, we concluded that it was essentially a Prime Ministerial document, setting the ground rules for each administration. The Prime Minister 'hires and fires' Ministers and it is clear that a minister cannot remain in office without the Prime Minister's confidence. The personal foreword to the Ministerial Code emphasises its character as a prime ministerial document. However, ownership implies responsibility. This imposes obligations on the Prime Minister, as well as on Ministerial colleagues. In 1996 the Public Service Committee recommended that the Prime Minister has to be the final judge of Ministerial conduct and performance.[52] We repeat our predecessors' view and recommend that prime ministerial ownership should be both explicitly acknowledged and reflected in the wording of the Code.

ACCOUNTABILITY

21. Prime Ministerial ownership, or authorship, of the Code does not preclude a role for Parliament (as we argue later). Nor should it impede accountability. We considered whether the current arrangements are adequate in this respect. Lord Neill told us that 'the powers of Parliament must be adequate to ask the Prime Minister to account for the contents and administration'[53] of the Code. He pointed out that the Prime Minister is answerable to Parliament, notably through Question Time. However, John Major conceded that Prime Minister's Questions was 'a bear garden', adding that 'it is not an ideal forum for disseminating information and for intellectual, thoughtful and constructive debate.' He therefore thought that 'it would be a good idea for the Prime Minister to accept Select Committee invitations. I do not think it would be right for Select Committees to invite the Prime Minister to attend every month and turn it into a political forum but I do think on a staged basis once or twice a year it would be in everyone's interest'.[54] Prime Ministers have traditionally rejected such requests on the ground of precedent. We believe that if it is appropriate for a Prime Minister to appear on television to answer an audience's questions on Government policy then it is surely right that the same consideration is extended to Parliament. We do not believe that Prime Minister's Question Time is an adequate or sufficient forum for considered probing of Government policy and recommend that an annual meeting should be arranged between the Prime Minister and the Liaison Committee, representing the chairs of all the select committees, under strict terms of agreement, using the Government's Annual Report as its basis. Questions might include the Prime Minister's responsibility for the Ministerial Code, and any alleged breaches, while the Prime Minister's own duty to account to Parliament in this way should be included as a provision of the Code.

22. The Government's Response to the Neill Committee's Sixth Report asserts that 'there is no gap in the lines of accountability.'[55] We asked Lord Neill if he thought there were any gaps in accountability. He expressed his concern about the issue of circularity. He explained that there had been occasions when complaints about ministerial conduct had been made to the Prime Minister of the day who had responded by asking the Ministers to answer the claims themselves. The answer from the minister in each case did not satisfy the original complainant. Lord Neill said 'That is what I call the circularity route and that was the end of the story, that was the end-game'. He added that 'it does seem to the Committee [on Standards in Public Life] that if the Prime Minister is taking a position, as he clearly is, as the author of the Code... he is saying you cannot remain a Minister without retaining my confidence. We want language put into the front of the Code to make it absolutely clear that it is his document and he is the ultimate judge and circularity is not an appropriate way for dealing with the sort of situation I have described.'[56] Professor Hennessy likened circularity to a 'Get-Out-of-Jail-Free card'[57] for Ministers, whereby they judge their own actions. John Major told us that 'it is only a Get-Out-of-Jail-Free card if the Prime Minister of the day does not impose his will upon the Ministerial Code.'[58] We believe that this problem of circularity does represent a gap in accountability. The responsibility of Ministers to Parliament is enhanced, not diminished or diverted, if it is reinforced by the Prime Minister's responsibility for ensuring that the provisions of the Ministerial Code are met. It is the Prime Minister's document; and it is with the Prime Minister that the buck must finally stop. This closes the accountability gap and resolves the problem of circularity. We therefore recommend that the Government reconsider its response to Lord Neill's report and implement fully recommendations 13 and 14 in order to establish the final and clear responsibility of the Prime Minister for ministerial conduct under the Code.

23. The Neill Committee identified an additional failure in the Code in relation to Ministers accounting for their contact with outside interests. Its report observed that 'The Ministerial Code is silent on the specific issue of contacts with lobbyists'[59] and recommended that 'For Ministers, the basic facts about official meetings with external interests should be recorded in their office diaries, which should be retained. The Ministerial Code should be supplemented accordingly.' [60] In reply the Government said that: 'It is not convinced that there is a need to include a reference to the recording of basic facts relating to meetings with outside interest groups in the Ministerial Code.' However, the response added that the Government does 'keep the Ministerial Code under review, and will revisit this suggestion when the Code is next revised.'[61] We agree with Lord Neill that the accountability of, and public confidence in, Ministers would be strengthened if external contacts of this kind were recorded. This would not prove burdensome to Departments, as many such records are currently made, and would help Ministers to establish the facts of a case at an early stage when questions are asked. We therefore recommend that, when next revised, the Ministerial Code should be amended to include a reference to contacts with lobbyists.

24. There is one respect in which the accountability requirements of Ministers in relation to Parliament have been weakened over the lifetime of the Ministerial Code. This concerns policy announcements to Parliament. The 1949 version of the Code provided that: 'When Parliament is in session, important announcements of Government policy should be made, in the first instance, in Parliament.'[62] However, in the 1997 version the formulation has become: 'When Parliament is in session, Ministers will want to bear in mind the desire of Parliament that the most important announcements of Government policy should be made, in the first instance, to Parliament.'[63] This represents a reduction in parliamentary accountability. We recommend that when the Ministerial Code is next revised the spirit of the original wording should be restored in respect of announcements of important Government policy.

INVESTIGATION

25. If the Code is to be credible, there have to be effective mechanisms for the investigation of alleged breaches of its provisions, certainly in cases where the allegations are serious, rather than the spurious and frivolous allegations that form part of the daily political game. When asked about the present system for investigation, John Major described it as 'not perfect but I think it is the least imperfect system I have come across.' He added that 'there is an infinity of circumstances'[64] and explained that the nature of the particular allegation would suggest the appropriate investigatory steps to be taken. He explained that the Prime Minister can call upon a wide variety of sources for advice and assistance and choose whichever is appropriate. These sources included the Cabinet Secretary, the Chief Whip, parliamentary colleagues, legal advisers and the police. Lord Butler told us that 'I do not think it is the case that there is a complete absence of means of inquiry, there is a vast range of them, but no one of them is suitable for every purpose.'[65]

26. An issue which was examined by the Neill Committee was whether there was a case for an independent ethics commissioner. Peter Riddell, a long-standing advocate of such a post, raised the issue in evidence both to Lord Neill and to this Committee. He told us that 'there is no one-fits-all solution,'[66] but an independent official could not only provide advice to the Prime Minister on allegations of breaches but would also provide a continuous source of reference for Ministers. In his view 'it is actually in the Civil Service's interest, the Prime Minister's interest and certainly in the Ministers' interest to have someone like that to provide an adviser. I know from my own conversations that some senior civil servants and some Ministers believe that an ethics adviser would have avoided some quite severe difficulties.'[67] This view is supported by Professor Hennessy, who told us that 'one of the purposes for having this... is if you curb the anxious who give us all such headaches and produce such difficult cases for the Cabinet Secretaries and Prime Ministers and there were systems that increased the chances of it not getting out of hand and of deceit having to be undone.'[68]

27. However, we also heard evidence that there was no real advantage in creating a new post of this kind. The Neill Committee came to the firm conclusion that 'no new office for the investigation of ministerial conduct should be established.'[69] Lord Neill told us that the Prime Minister 'has available to him a whole armoury of investigative procedures and we saw no particular advantage in having one official called the ethics adviser or ethics commissioner, because the cry would always go up: Why have you not referred this issue to the ethics adviser?... it would become a sort of political football game and we did not see any great advantage.'[70] John Major told us that 'I do not think that an external ethics commissioner would be the right way forward.'[71] The Government welcomed the Neill Committee's recommendation that no new office for the investigation of ministerial conduct should be established.[72]

28. The role of the Cabinet Secretary and Permanent Secretaries in investigating allegations of ministerial misconduct has received particular attention. Peter Riddell described the role of the Cabinet Secretary in this respect as 'invidious',[73] while 'Permanent Secretaries are in a difficult position in relation to their political masters.'[74] He cited an example, from his own journalistic contacts, of a permanent secretary feeling 'very uneasy about being an adviser.'[75] When asked about the role of the Cabinet Secretary in investigations, Lord Neill agreed that 'this is not really a role for a Cabinet Secretary...it is an impossible situation'.[76] John Major told us that 'It is the job of the permanent secretary to provide information that is readily available from within the Government. It is not the job of the permanent secretary to investigate.'[77] Although the Cabinet Secretary clearly has a pivotal role, if such a role were to be extended to include responsibility for conducting independent investigation of alleged breaches of the Code, this would require fundamental changes to his existing position, including his relationship to Parliament.

29. We gave careful consideration to the conflicting arguments on this question of advice and investigation. Clarifying where the buck stops and establishing a requirement that the Prime Minister must answer for the Code to a Select Committee of Parliament would go some way to ensure that it is adequately policed and to reassure the public that breaches have been properly investigated. However, there is a case for going further, while avoiding a legalistic approach, and for bringing an independent element into the process. The Neill Committee asked the Parliamentary Commissioner on Standards if her office had a role to play in providing independent advice and investigation. The current Commissioner, Elizabeth Filkin, replied that 'the offer would be there, but I am agnostic about it'.[78] We also considered whether there might be a role for the Parliamentary Ombudsman in investigating complaints of alleged ministerial misconduct. When we put this to the Ombudsman, Mr Buckley explained that under the current legislative framework he 'could not investigate unless some member of the public claimed to have sustained some injustice as a result... of malpractice by a minister'.[79] However, when pressed further on a possible extension of his role, he added 'I can think of some similarities with the Local Government Ombudsman, who indeed investigates complaints involving suggestions that councillors have breached a local authority code of practice. It is not unthinkable but, obviously, I work within the statute as it is now and that is pretty much off limits... ministerial conduct as such is not a matter for me.'[80] Mr Buckley also acknowledged that in other countries the work of ombudsmen 'is devoted to investigating complaints of corruption of all sorts of levels in the public service.'[81]

30. We do believe that having an independent parliamentary mechanism for advice and investigation would prove beneficial in strengthening accountability. Parliament lacks an investigatory officer to act on its behalf when there are allegations of ministerial failure or misconduct. It routinely demands inquiries, but has no effective means to put one in hand. This has been a concern of Select Committees for a number of years. In 1996 the Trade and Industry Committee, in their report on export licensing, agreed in principle that parliamentary commissions should be established to conduct thorough investigations. The Committee considered that such a system would strengthen the House's ability to call the executive to account and recommended that the Procedure Committee should consider their proposal.[82] Also in 1996, the Public Service Committee, in its report on Ministerial Accountability and Responsibility, welcomed the proposal of the Trade and Industry Committee and endorsed its recommendation.[83] Parliament should not have to rely upon the executive to initiate inquiries into the executive's own alleged failings. We believe that the role of the select committees in scrutiny and accountability needs to be strengthened by an investigatory officer capable of finding out the facts of a case on Parliament's behalf. Equally, fairness to Ministers accused of breaching the Ministerial Code, and therefore subject to great political pressure, requires that they have the assurance of an independent investigation before there is a premature rush to judgement. A possible approach would be to create a new post of Ministerial Code Commissioner. Two precedents for such Commissioners already exist in the First Civil Service Commissioner and the Commissioner for Public Appointments. The first polices the Civil Service rules, the second the Nolan rules. The Commissioner might operate both by providing ex ante advice to Ministers thereby relieving Permanent Secretaries of this responsibility, and also have responsibility for ex post investigations. We do not, however, believe that a new office needs to be created. Parliament already possesses officers with the capacity to do what is required, both in terms of continuing advice and independent investigation. We recommend that the remit of the Parliamentary Commissioner for Standards be expanded to include the provision of independent advice to Ministers on their responsibilities under the Code. We further recommend that, on referral from the Prime Minister, or by a resolution of the House proposed by the chair of the Liaison Committee, the Parliamentary Ombudsman should be empowered to conduct independent investigations on alleged breaches of the Ministerial Code and to report to the Prime Minister and to the House. Such reports should be published.

SEPARATION

31. The Committee on Standards in Public Life, under both Lord Nolan and Lord Neill, recommended that the Code should be redrafted in order to produce a free-standing code of conduct. The Neill Committee declared that greater clarity on the essential principles was an important device for improving the Code.[84] While Lord Neill accepted that elements of Lord Nolan's original recommendation were included in the 1997 version of the Code, he nevertheless thought it remained weak 'presentationally' in that the current wording and structure does not appear to be 'the equivalent of a code of conduct'.[85] The Government agreed with Lord Neill and have undertaken to bear his recommendations in mind when redrafting Section 1 of the Code prior to its next publication.[86]

32. We heard evidence regarding the feasibility of separating out different sections of the text of the Code. When we put the question directly to Lord Butler, who as Cabinet Secretary helped draft both published versions, he replied that 'I think it would be a very difficult thing to do. I think it would be very difficult to categorise particular parts of it as hanging offences.'[87] Peter Riddell agreed with Lord Butler: 'I think it is very difficult to have a check-list. It is entirely relative to circumstances.'[88] When asked if there was sufficient clarity within the Code, John Major told us that 'I am not at all sure it ever could be because the circumstances facing Ministers are so diverse I do not think you could write a rule book which is explicit in every circumstance... I would not care to go through the code for Ministers saying this is a rule, this is a guideline, I think it would be unnecessary and I do not think we would gain a great deal from it.'[89]

33. However, we also heard evidence that the Ministerial Code requires a fundamental review of its structure and purpose. Professor Hennessy told us that 'I do not think we can resolve the constitutional ambiguity of it unless we can move towards something of a resolution by winnowing out those bits which are beyond the housekeeping, etiquette and transient.'[90] He added that 'we are dealing with a complicated, multi-faceted, kaleidoscopic document which needs looking at in many ways. Perhaps we do need to start again'.[91] Amy Baker thought that 'it would be helpful to split the Code in order to separate out the fundamental constitutional conventions...and the other issues ought to be left at the discretion of the Prime Minister as how best to run his own administration.'[92] She agreed with Professor Hennessy that splitting the Code would be helpful in enhancing its importance and clarity, and believed that the fundamental conventions would include 'individual accountability to Parliament, the proper relationship between Ministers and civil servants and conflicts of interest in relation to business interests.' The housekeeping practicalities may include 'tips on how to present Government policy decisions and actions to the media.'[93]

34. While we accept that there might be practical drafting difficulties we believe there is a strong case for splitting the Ministerial Code, clearly separating out the fundamental constitutional principles from the rest. The most important aspect of the Code relates to ethical principles. The Committee on Standards in Public Life has consistently regarded Section 1 (see Appendix 3) as the most significant element of the current version of the Code. A recommendation of the Nolan Report was that codes of conduct in public life should routinely include the Seven Principles of Public Life adumbrated by the Committee (Selflessness, Integrity, Objectivity, Accountability, Openness, Honesty, and Leadership).[94] The Northern Ireland Act 1998 placed a statutory obligation on Ministers in the Assembly, through the 'pledge of office', to follow the Seven Principles which are incorporated in the Code of Conduct.[95] If it is appropriate for Northern Ireland Ministers, it is surely not less appropriate for the Ministerial Code to include the Seven Principles. Currently Section 1 of the Ministerial Code does not include, either explicitly or implicitly, these Seven Principles - although the Government reply to the Committee's report mistakenly claims that it does - and we recommend that they are prominently included in the next version of the Code. The Nolan report further recommended that 'The Prime Minister should put in hand the production of a document drawing out from QPM the ethical principles and rules which it contains to form a free-standing code of conduct'.[96] When reviewing the Code in 1999, the Neill Committee recommended that 'the Ministerial Code should be improved to reflect its importance as a statement of the ethical principles governing ministerial conduct.'[97] We concur with the Committee on Standards in Public Life and recommend that a free-standing code of ethical principles is devised. We further recommend that the Committee on Standards in Public Life should be formally consulted on the drafting of such a code.

35. The cause of greater clarity and definition would also be served if other sections of the Ministerial Code were more strongly identified. The House Resolution of 1997 embodies ministerial responsibility to Parliament. We recommend that all those aspects of the Ministerial Code relating to parliamentary accountability should be included in an up-dated version of the House Resolution. In its response to the Neill Committee, the Government confirmed its intention to introduce a Civil Service Act,[98] although no detail of content or timing was provided. Professor Hennessy told us that a Civil Service Act would place 'a chunk of the Code on a statutory basis.'[99] If matters currently contained within the Code were placed on a statutory basis there would be no need for them to be duplicated in the Code, merely to be referenced. Conversely, those aspects of the Code relating to procedures for Cabinet business are internal to the workings of the Executive. In the cause of transparency the Government might wish to publish the arrangements for the operation of Cabinet, but they are primarily the concern of Government. It makes sense to treat such matters separately.

36. It is not possible for a Ministerial Code to cover all possible cases and circumstances. Nor should that be its purpose. It should identify the basic ethical principles of Ministerial conduct, and their application to particular areas of responsibility and to issues of potential difficulty. As new issues arise, they can and should be included; but the ethical principles provide the permanent framework. We believe that it is time to give greater coherence and clarity to the Code by a fundamental restructuring of its contents in order to identify its constituent parts. Like Topsy, the Code has just grown. It now requires putting into a shape that properly reflects its status as the Ministerial Rule Book. We recommend that when the Code is next revised the opportunity is taken to give greater coherence and clarity to its structure.

37. A clearer separation of the Ministerial Code into its constituent parts would enhance accountability. We have already considered aspects of this. As the owner of the Ministerial Code, ultimate accountability for its provisions and enforcement rests with the Prime Minister. Ministers are answerable for their own actions in Parliament, but the Prime Minister should be directly responsible to Parliament for the integrity of the Code. A free-standing code of ethical principles should emanate from the Prime Minister, whose accountability to Parliament should be strengthened in the way we have recommended (para 21). Matters concerning the procedural workings of the Cabinet and the associated housekeeping issues are the province of the Cabinet Secretary, who is accountable to Parliament through the Select Committee system. Different considerations arise in relation to the section of the Code dealing with the conduct and duties of Ministers in relation to Parliament. This is not the exclusive concern of the executive, nor of the Prime Minister, and Parliament needs to share in the ownership of this part of the Code. The House Resolution on Ministerial Accountability should be debated and approved at an early stage in each Parliament, thus providing Members with the opportunity positively to endorse the standards by which it expects Ministers to conduct themselves in their dealings with Parliament. This section of the Ministerial Code needs to be owned by Parliament, rather than seen as a grant from the executive. In May 1999 the National Assembly for Wales formally approved the Welsh version of the Ministerial Code. Such endorsement by the legislature enhances accountability and we recommend that the section of the Code incorporating the House Resolution is formally debated and approved in each Parliament.

PUBLICATION

38. Whatever the structure and presentation of the Code, we believe that its status and importance requires a formal basis for its publication. At present there is no requirement for the Ministerial Code to be published: only convention dictates that it is issued by each new administration. Furthermore, its contents may be added to or amended during the lifetime of a Government without such changes having to be published or consulted upon. If, as John Major and Lord Butler agreed, it would be unwise for a Prime Minister to seek to dispense with the Code, then it is appropriate that it should be published on a formal basis. We therefore recommend that the proposed Ministerial Code is presented to Parliament within three months of a new administration taking office. Although the Code contains issues of prime importance for Parliament, no debate on its contents is held in the House and there is no public or parliamentary consultation on its contents prior to publication. As we argue above, this is unsatisfactory with respect to its provisions on the responsibilities of Ministers to Parliament. We therefore recommend that a debate be held on the Ministerial Code immediately following its publication, prior to the approval process we recommend above, that any subsequent revisions to it are also published, and that any revisions relating to parliamentary accountability should be considered and approved by Parliament.

CONCLUSION

39. In our view the Ministerial Code has an important contribution to make to good Government. It is not merely an arcane subject of esoteric interest. Rules of conduct for Ministers, and their responsibilities to Parliament, are fundamental to sound public administration and effective accountability. Indeed, the Prime Minister's personal foreword to the Code endorses this view. Beginning as private guidance to Ministers on assorted matters, the Code has now become a public document of constitutional significance.

40. This is why it deserves attention. It is time to give it more shape and coherence. This is what our recommendations are designed to achieve. Its status should be properly recognised. Its Prime Ministerial ownership should be clearly acknowledged and tied to responsibility. The lines of accountability should be strengthened. There should be proper investigation of alleged breaches. Its key elements should be clearly identified, and endorsed by Parliament. Its publication should be put on a formal footing. The Government has put in hand important constitutional changes, with positive implications for enhanced accountability. The Ministerial Code, improved in the way we suggest, has a significant contribution to make to this process.

11 HC Deb 13 July 2000 col 1098 Back

12 HC (821-i) 1999-2000 Q 57 Back

13 Ibid Q 57 Back

14 HC( 821-i) 1999-2000 Q 2 Back

15 Ibid Q 3 Back

16 Ibid Q 2 Back

17 HC Deb 25 October 1994 col 758 Back