6 Creating an investigatory capacity
19. The current arrangements lack a clear and well-defined
system of independent investigation into alleged breaches of the
Ministerial Code. The conventional argument against the use of
an independent investigator is that it would constrain the Prime
Minister's right to exercise what are, in the end, political judgements
about the conduct of his ministers, and introduce a quasi-juridical
element into what is essentially a matter of political practice.
As the Ministerial Code states:
Ministers only remain in office for so long as
they retain the confidence of the Prime Minister. He is the ultimate
judge of the standards of behaviour expected of a Minister and
the appropriate consequences of a breach of those standards…[19]
20. Professor King warned that an independent investigator
might turn into an arbiter of conduct, and so fetter the Prime
Minister's discretion:
…it seems to me that whether or not a Prime
Minister keeps a minister in place is a political judgment to
be made by the Prime Minister. If one gets into a situation that
looks rather juridical and somebody out there is seeing whether
the Ministerial Code has been broken one gets into a situation
in which a Prime Minister might have good reasons for wanting
to keep the Minister there, even though he had broken the Ministerial
Code, but that would now be very difficult. Equally, there might
be a situation in which the Sir John Bourn figure went away
and said that the Ministerial Code had not been broken, in which
case the Prime Minister might nevertheless have had good political
and governmental reasons for wanting the Minister to depart.[20]
21. We do not believe that some form of independent
investigator would undermine the doctrine of ministerial accountability
to Parliament. Governments can and do commission individuals to
undertake inquiries on their behalf about their conduct when the
political demand is overwhelming. We agree that, ultimately,
the Prime Minister must judge what the right course of action
is and account for it to Parliament. However, we remain
convinced that an independent investigatory capacity can be created
which does not undermine the Prime Minister's right to decide
whether a minister has breached the Ministerial Code and what
the consequences might be. It would also promote public confidence
in the Ministerial Code as a handbook on propriety.
22. We described how such a mechanism might function
once before.[21] We still
find much to commend in this approach and consider that its underlying
rationale is still sound. However, we recognise that in light
of subsequent developments the practicalities of such a proposal
could be the subject of further consideration. The following key
factors would need to be addressed:
i. It would be better if responsibility for independent
investigation was shared with Parliament. If ministers are accountable
to the House, then Parliament should have an effective means of
putting its demands for an inquiry in place. However, it must
be made absolutely clear that the role of such an investigator
would be to establish the facts, not to judge what sanctions,
if any, should be imposed. The system should recognise the Prime
Minister's right to form his Cabinet, and Parliament's right to
hold it to account.
ii. The ethical regulatory landscape is already
well-inhabited. We should not seek to create any new regulators.
In our last report on the Ministerial Code we proposed that the
Parliamentary Ombudsman should take on this job. We welcome the
fact that the Government, in appointing Sir John Bourn, has now
accepted the principle that an Officer of the House can undertake
this sort of role. It is a precedent that should be built on.
iii. Independent scrutiny should not mean that
every complaint, however frivolous or vexatious, would have to
be investigated. Indeed, one advantage of an independent investigator
would be that they would be able to advise on whether a complaint
merited further examination.
23. Two former Cabinet Ministers and members of CSPL,
Lord Smith of Finsbury and Lord King of Bridgwater, favoured the
sort of arrangements we describe above. Lord Smith said to us:
I should go for an independent body, which is
in fact what the Committee on Standards in Public Life recommended,
probably small, say three people of eminence and standing and
unimpeachability who would be appointed for the duration of a
parliament and, as [Lord King] was hinting at, it would be sensible
to have them reporting to a committee of Parliament. Now whether
that is this Committee or the Committee on Standards and Privileges
might be up for discussion, but reporting on their work and answering
questions in public on their work would be sensible.[22]
24. Given these considerations, there are a number
of possibilities as to who should take this task on. CSPL recommended
the setting up of a panel of advisers. However, this would create
a further regulatory body, contrary to its own earlier view, and
its members would not necessarily enjoy a particularly close relationship
with Parliament. A good case could be made for each of the three
'regulators' accorded the status of Officers of the House. Most
straightforwardly, Sir John Bourn, the Comptroller and Auditor
General, could have his current role as ministerial adviser clarified
and extended to enable him to undertake inquiries into breaches
of the Ministerial Code. The Parliamentary Commissioner for Standards
would be another possible candidate, with experience in handling
complaints about the conduct of Members and reporting to the Committee
on Standards and Privileges. We suggested in our previous report
that the Parliamentary Ombudsman might be the right official because
she has a right of access to papers, including Cabinet papers,
and is used to investigating and putting together the evidence
on cases of alleged maladministration by departments drawing on
other sources of expertise as required. A precedent for this is
the way in which the Ombudsman took on the policing of the Government's
compliance with the Code of Conduct on Access to Government Information
from 1994 until the full entry into force of the Freedom of Information
Act 2000 in 2005.
25. Whatever the final form for such an investigatory
machinery it should:
- be manifestly independent
of the Executive;
- not involve the creation of yet a further
regulatory office and, ideally, should be undertaken by an official
connected to the House;
- concern itself only with establishing the
facts of the case;
- make its findings available to Parliament
and the public;
- reserve to the Prime Minister the right to
judge whether the facts amount to a breach of the Ministerial
Code and what the consequences should be;
- avoid the proliferation of frivolous or vexatious
complaints.
19 Ministerial Code, para 1.4 Back
20
HC (2005-06) 884-vii, Q 399 [Professor King] Back
21
HC (2000-01) 235, para 30 Back
22
Oral evidence taken before the Public Administration Select Committee
on 16 March 2006, HC (2005-06) 884-iii, Q 131 [Lord Smith] Back
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