CORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 884-vii

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

PUBLIC ADMINISTRATION SELECT COMMITTEE

 

 

ETHICS AND STANDARDS

 

 

Thursday 8 June 2006

PROFESSOR ANTHONY KING and DR DAVID HINE

RT HON LORD MAYHEW OF TWYSDEN, QC, DL and MR TONY NICHOLS

Evidence heard in Public Questions 377 - 452

 

 

USE OF THE TRANSCRIPT

1.	This is a corrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.
2.	The transcript is an approved formal record of these proceedings. It will be printed in due course.

 

Oral Evidence

Taken before the Public Administration Select Committee

on Thursday 8 June 2006

Members present

Dr Tony Wright, in the Chair

David Heyes

Kelvin Hopkins

Mr Ian Liddell-Grainger

Julie Morgan

Mr Gordon Prentice

Paul Rowen

Jenny Willott

________________

 

Examination of Witnesses

 

Witnesses: Professor Anthony King, University of Essex, and Dr David Hine, University of Oxford, gave evidence.

Q377 Chairman: Let me welcome this morning our two witnesses, Professor Anthony King and Dr David Hine. It is very good of you to come and see us. As you know, we are carrying out an inquiry into what we call ethical regulation in government. As in the past, we may also stumble into adjacent areas, particularly with Professor King. Would either witness like to say anything by way of introduction, or shall we just get on?

Professor King: Perhaps I may make a few points before we proceed to questioning. I shall make them briefly and, with any luck, they may provide you with some hooks on which to hang questions. First, I should like to make an apology and really a disclaimer. Some people know that I served for exactly four years on the Nolan Committee and then the Neill Committee and I was released - I will not say "sprung" - in 1998, which is quite a long time ago. I confess that since then the kinds of issues with which this particular inquiry is concerned have been at the outer edge of my peripheral vision. My academic interests have changed and I have moved on to other things. You are really the experts and I am the amateur. Against that background I should like to make nine points. As any good professor should, I shall number them so you know where I am at and, best of all, when I get to the end. First, I emphasise that I believe in liberal democratic politics. I believe that the best way to maintain high standards in public life is by people being punished politically if they do not do so. As we all know, individuals can be deselected or not re‑elected as MPs. Ask Neil Hamilton and various other people. Ministers can lose their jobs and whole governments can be turfed out if people believe that they are not maintaining high standards. Ask John Major who could tell you a thing or two about that. I do not think there is any question but that voters in this country demand high standards. I do not believe they are cynical, or if they are it is because they see people in public office not behaving properly. At that point my belief in the central importance of democratic politics may sound like motherhood and apple pie, but I do not think it is. The reason I do not think that is the case is my second point. There is much talk at the moment, including in your issues and questions paper, about people called "watchdogs". Watchdogs, as I understand it, are dogs that bark when they see, hear or smell something that they find suspicious. I am happy to say that in this country we have thousands, probably millions, of watchdogs. I very much doubt that we need any more. We have ordinary citizens in their millions, news-hungry and scandal-hungry journalists and we have Members of Parliament, one of whose jobs I should have thought was to perform the role of watchdog. You will remember that Neil Hamilton - I am being historical and not trying to cause present controversy - got his political comeuppance before Sir Gordon Downey wrote his splendid and most enjoyable report on Mr Hamilton's activities. He was done for before the Parliamentary Commissioner for Standards did for him. That takes me to my third point. As you know better than I, there is a variety of individuals and bodies often called watchdogs. I am not sure what they should be called. Perhaps they should be referred to as "dog trainers", but certainly not "watchdogs". The Committee on Standards in Public Life, to take the obvious example, is not there to bark in my view but to give the people who should do the barking some guidance as to when they should bark and an indication of the kind of behaviour that deserves to be barked at. I think these bodies are useful. I spent four years serving on one - I would not have done that if I had not thought it useful - but I do not believe that they are central to the enterprise. I thought that when I served on the Committee on Standards in Public Life, and I still think that. I believe that if people can get away with misbehaving they will and there is nothing much that committees of that kind can do about it. That leads me to my fourth point, which I realise is highly controversial. I am very much of the view - this was the unanimous view of the members of the Nolan Committee - that we should not encourage the proliferation of formal rules. The trouble is that if people are confronted with a set of formal rules they are apt to come to the conclusion that if they find their way around them, that is to say if they do not break them, they are behaving perfectly properly. One then gets more rules and more attempts to get around them ad infinitum. I am in favour of general moral principles to be generally applied. We have all heard Saddam Hussein claim that his killing of Iraqis was in strict accordance with Iraqi law - for all I know it was - to which my response is: sod that! It is wrong. We should be concerned with general principles. On the whole, I believe that members of the public know what the relevant principles and the appropriate modes of behaviour are. I come to my fifth point very briefly. It seems to me that if there are large numbers of people and organisations in the business of developing rules that is precisely what they will do: they will develop more and more rules. If one looks at the rules of football one notices that a foul is defined in very general terms. It is up to the referee to decide whether or not a foul has been committed. Sometimes he gets it right and sometimes wrong, but if the rules of football were multiplied a hundredfold one would still need a referee making the judgment. Fortunately, in this country we have lots of referees - they are called voters - who take a pretty tough view of these matters. I come to my sixth point. I do not want to make too much of this point. To go back to general principles rather than rules, the Committee's issues and questions paper suggests that the seven principles of public life could perhaps usefully be tweaked. I could not differ from that. When I was involved in this enterprise I thought that there ought to be 10 principles of public life, for obvious reasons of a biblical kind, but I was talked out of that. We could not think of more than seven. Of course they can be tweaked, but I believe that detailed rule proliferation is a bad idea. With some diffidence, I find myself wondering whether the Committee on Standards in Public Life, many of whose members I know and all of whom I esteem, has not become a little like NATO. Having fulfilled its major purpose, it is looking around to find other missions to perform. I just wonder whether it would be better if the standards committee continued to exist with a chairman and members - I would be in favour of it - but be put on an "as and when" basis and be called upon or activate itself when occasion seriously demanded. Coming to my seventh point, I just register the fact, which I think I mentioned to the Committee on an earlier occasion, that what are called loosely the Nolan rules are on the whole a bad idea. I know that they were intended originally - I was involved in the enterprise - to apply exclusively to big non-governmental executive bodies, or whatever they are called, with big responsibilities and budgets. They have now spread like weeds all over the place. I noted that several Members of this Committee had an argie-bargie with Rennie Fritchie the other day. Every time I hear a regulator say that he or she will do something with a light touch I am deeply sceptical as I see documents that are a half-inch thick and seem pretty heavy. As to my eighth point, at the moment there is a lot of talk about trust. I just make the obvious point that in the English language "trust" is systematically ambiguous. If I lend the Member of Parliament for Cannock Chase £50 I trust him to repay the money, but in doing that I am trusting in two things: first, his honesty. As a man of integrity, I would lend him £50 if he was strapped. Second, I also trust his ability to repay the money. Despite niggardly parliamentary salaries I believe that he could cough up the £50 in a month or so. It seems to me that a lot of the talk about trust misses that distinction. Many of the questions put in opinion polls give the respondent no guidance as to whether "trust" is being talked about in terms of integrity or ability. As we well know, those two are very different matters. If a government is not thought to have either integrity or ability there is a real problem. My ninth and final point is one of substance but something of a hobbyhorse of mine. I shall not ride it for more than a moment. When people talk about targets and targeting in public life the emphasis is almost always on the misallocation of time and resources that targets lead to, that the measurement of the targets is not appropriate and so on. But I believe that there is an additional problem about which there is almost a conspiracy of silence. If one has very large numbers of targets, and the future of individuals and organisations depends on meeting those targets, people will behave the way that people behaved in the old Soviet Union: they will lie, fiddle the figures and fill in questionnaires the way they think the people who will read those questionnaires want them to be filled in. I think that anybody in the public sector, and for all I know those in the private sector, will tell you that that goes on all the time. It is in everybody's interests to say that is not so; otherwise, one is in danger of implicating oneself and getting one's organisation into trouble. Therefore, one keeps silent. Anybody who works in the public sector knows that this is a serious problem. I attended a meeting not long ago where we were told we were about to be sent a questionnaire. The chairman of the meeting said he did not know how we were supposed to fill in the questionnaire but he would find out and come back with the answers and tell us. This goes on in GPs' surgeries, hospitals, schools and universities; it is possible that it goes on in the Home Office. This kind of behaviour is almost endemic and I believe that it lowers standards in public life and causes demoralisation and cynicism throughout the public services. It concerns me deeply that nobody - I do not exclude the Committee on Standards in Public Life - seems to notice that this is happening and is a problem. I am sorry to have gone on for so long, but here endeth the lesson.

Q378 Chairman: Thank you very much. We shall come back to some of that. Dr Hine, do you want to add something to that?

Dr Hine: Thank you for inviting me. I take up just one observation of Professor King because it may help the Committee to see where I am coming from. Professor King said in his opening statement that there are a lot of rules about and we have added to them greatly. One of the matters in which I have been very interested over the past couple of years is how the ethics management revolution in the UK compares with what has happened in other comparable countries - the public law tradition in Europe or the United States - and the lessons to be drawn from it. Although the pragmatic, light touch and value-based UK system and the rather heavy-handed conflict-of-interest legislation in America, or criminal code-driven system in Europe, are perhaps stereotypes - the differences are not quite so great - nevertheless here we still have a relatively light touch system. The revolution we have had in the past 10 years has tended to focus much more than in most jurisdictions on codes and values, most of them non-justiciable. We have put in place a lot of institutions. I think that a process of reflection has to be undertaken on how that now fits in with our institutions. What we have now are eight or nine public agencies that did not exist a decade ago. One of them, the Committee on Standards in Public Life, is a kind of open seminar; the others have regulatory roles to varying degrees. The level of enforcement and justiciability that they operate is variable. It seems to me that it is tougher at the bottom and lighter at the top. Some of it, however, is still codified in the form of values and how we would like the world to be rather than how we enforce particular standards. That may have certain consequences for your debate on trust. I do not think it is so much a consequence that flows from public opinion. The Committee's discussion on trust with Onora O'Neill was a very interesting one but there was no certain conclusion that trust was falling because public standards were falling, or indeed because we had put in place too many procedures and we were eroding trust for that reason. But it seems to me that there may be another issue of trust: trust and confidence in the institutions that we have put in place. We do not necessarily understand what we expect them to do or what the boundaries and limits of each should be. It seems to me that in relation to several of them, certainly the Standards Board, the Adjudication Panel, to some extent the Electoral Commission, the Committee on Standards in Public Life, the Prime Minister's role in interpreting the Ministerial Code and even the Parliamentary Commissioner for Standards, or the one before last, there has been controversy and uncertainty which may have led to some erosion of what I believe is a rather important part of social capital in the UK: on the whole, we trust regulators and independent arbitrators. If one compares the UK with many European jurisdictions, where even judges get formidably attacked for being politically partial, it seems to me that we have a bit of social capital in the UK in the form of our relatively high level of public trust in public and regulatory agencies that we jolly well ought to hold onto. If we are thinking about what has happened in the ethics revolution over the past 10 years we ought to be jolly careful that we understand what we expect from each of these institutions. The problem for the UK is that we have a very big pot that we think of as "public ethics" which runs everything from old-fashioned ministerial accountability to issues of personal propriety. It is all in there and rather mixed up in the public mind, and an awful lot of it is to do with values and principles rather than hard rules of behaviour which are justiciable. It is quite likely in that environment that we will become muddled about how we manage our ethical environment which can be quite corrosive of trust. That is not to say I disapprove of any of the institutions that we have set up; I just think that we must be extremely careful as to what we expect of them. We set up the Committee on Standards in Public Life 10 years ago to try to clarify the rules and values and we may, as a result, have obfuscated some of them.

Q379 Chairman: To pick up the last point, should we be surprised or disappointed that the very growth in the ethical regulators in the past 10 years or so has not produced an increase - I accept the need to define "trust" - in public confidence in standards in public life of the kind that might have been anticipated?

Professor King: Am I surprised? No. Why? I am not surprised probably because I am pessimistic by temperament. I believe in original sin and there are sinners around the place, and they will probably go on sinning. Am I disappointed? Yes-rather. But I believe that in the larger scheme of things the kinds of bodies which have been set up matter hugely less than the way in which people in public life behave and are reported in the newspapers as behaving; in other words, what we have here is an add-on rather than something that is central to the whole regime. If people behave badly people will respond negatively.

Q380 Chairman: Unless you tell me I am wrong, is not one of the paradoxes that standards in public life now in this country are better than they were in the past - there has been an improvement - and, in broad terms, are better than they are in most other comparable countries? If those are the facts the public perception is that public life is populated by knaves and scoundrels and that has coincided with the growth in regulators in this area. All of this is perplexing, is it not?

Professor King: I do not find it perplexing; perhaps I should and I am unimaginative. The fact is that we have very intrusive media who will deal much more harshly with people than they would have been dealt with 50 years or a century ago. Things are now published that would not have been published. I suspect that even 10 years ago we would not have seen John Prescott playing croquet at Dorneywood. In parenthesis, I entirely agree with what you say about our public life being on the whole pretty clean. As compared with the things that go on in other countries, if somebody can get into trouble for playing croquet on a Thursday afternoon, give us a break.. If people are less trusting than they were then there are probably two closely-related reasons. One has to do with the media. The other, for what it is worth, is that this is going on all over the democratic world. Americans, for example, believe that they were misled by Lyndon Johnson about the reasons for the Vietnam war, the Tonkin Gulf Resolution and so on. Lyndon Johnson was lying through his teeth. I cannot remember the name of the chap who leaked the papers to The New York Times, but those documents made that perfectly clear. The truth is that people expect more and that they should not be misled. They believe that they are being misled more often. Incidentally, they do not believe that standards in public life are lower in this country than abroad. I am pleased to say that if you ask them that they do not think they are lower.

Dr Hine: I do not find it surprising that there seems to be a lower level of public trust. I believe that a number of other things are going on in the political system, particularly depolarisation and the fact that fitness to govern issues are much higher up the agenda than they were perhaps 25 years ago. I agree with Professor King that this is a problem faced by most liberal democracies. The way to look at it is to go back to 1994 and ask whether we think it likely that we could have got through the past decade given that background without enormous pressure to put public attention on and deal with the sorts of issues that would inevitably have arisen. I doubt that we could do anything else but address them as they came along. Being British, we address them in a rather pragmatic case-by-case way. We have governments with large majorities that can fix them quickly so that in no time at all we have an electoral commission, a standards board and various bodies like that after 1997. I do not believe it is surprising that we have done that. I am not convinced there is much evidence that public attitudes have changed because we have put in place these institutions and somehow or other they have drawn attention to ethical misdemeanours or public policy failures that have gone unaddressed and therefore the public has become disappointed. But I believe that we have to pay a lot of attention to how those institutions work in that context. They are fairly inevitable and, by the way, they are emerging in lots of other jurisdictions. There is an awful lot of attention in continental Europe on how to deal with these matters in the criminal code. One sees codes of conduct and special regulatory agencies pop up and most of those jurisdictions face exactly the same problems that we have here. One cannot do without them or avoid the public clamour for them, but when they are set up one finds it is very difficult to make them work. That is where the focus has to be. What do we expect of them?

Q381 Mr Liddell-Grainger: When the rural payments did not go ahead we heard Margaret Beckett say, "I have taken action and fired the head of the Rural Payments Agency." John Reid said, "My department is not fit for purpose." Depending on who one talks to, Nigel Crisp was either fired or forced out. Are we in an era when nobody will take blame and stand up and take it on the chin as would have happened? Is this a new phenomenon or has it gone on for years? Are we now at a stage where ministers are scared because they are spotted playing croquet on a Thursday afternoon? Are we now in an era where there is no responsibility in the top echelons of government?

Professor King: I think that you have implicitly compared now with then. By way of being a bit of an historian, I do not think that "then" ever was; that is to say, the desire of ministers of avoid blame is almost a fact of human political nature. The number of occasions on which ministers have held up their hands and said, "It's a fair cop; I did it, and I'm off", historically has been very small indeed. What is new in terms of months or a very few years is the disposition of politicians to blame officials. I happen to be writing something about this for a book that I am working on. I found the events of the past few weeks under this heading startling. I may be wrong, but I can remember no occasions since the Northcote-Trevelyan reforms and their aftermath when one had confrontations between spokesmen for civil servants and civil servants themselves on the one hand and ministers on the other. I believe that that is really new. I am trying to think of a case where a minister has accepted blame. We cite Peter Carrington over the Falklands, and so on, but my spies tell me that that was because the 1922 Committee rounded on him. It did not like this toff running the Foreign Office.

Q382 Paul Rowen: Did not Lord Whitelaw as Home Secretary resign when somebody got into the Queen's bedroom?

Professor King: I do not believe so.

Chairman: He offered it.

Professor King: He offered it. I share concern at the unwillingness of people not just in ministerial office but in a great many walks of life, including the private sector, to accept responsibility when things go wrong, but I am afraid I have to say it was ever thus.

Q383 Chairman: Is it your view that this is a breach of the old doctrine that ministers are responsible? You know a lot about other countries such as North America and so on. Do you say that public officials ought to be more identifiable for administrative failings?

Professor King: I was afraid you would ask me that. Although that question is precisely focused, I believe that it raises questions about the entire constitution of the country. The doctrine has always been - it was touched on in your paper - that officials owe their loyalty to ministers and ministers cover for them, take the flak and are accountable to the House of Commons, the public or whoever. Once one gets into a situation where civil servants believe that they are not working solely for ministers and can themselves be held to account for what they do that alters their behaviour fundamentally; it alters the relations between themselves and ministers. It would also alter the relationship between civil servants and committees like this to whom they would answer very differently. All that might be a good thing but it would be very different. This is a bit like electoral reform. People talk about electoral reform as though one just changes the system and that will be that; one has a slightly differently composed House of Commons. It would change the system fundamentally. To have a situation in which ministers do not cover for their officials who have to take the blame in public has all kinds of ramifications, possibly both desirable and undesirable.

Q384 Mr Liddell-Grainger: We now have permanent secretaries who are not underpaid; they are well looked after and are highly qualified and competent managers - or are they? Are they capable of running these departments with the people under them? There was a Home Office survey about its senior civil servants. Six per cent of people thought they were doing a good job and their complaints were being dealt with. Only six per cent thought they could actually do the job. Has the management structure collapsed and, therefore, ministers cannot do the job?

Professor King: I am passing the buck to Dr Hine.

Dr Hine: To backtrack for a moment, I am not completely convinced that the story of a gradual loss of willingness to take responsibility is the only story here. If we go back to the Next Steps revolution in the UK civil service 20 years ago with agency certification and the arrival of fixed-term contracts and people coming in at various levels, I am not sure that various mechanisms of accountability have not been introduced. That is not to say there are not major public policy failures. I am sure that those failures are in some way correlated with the complexity and difficulty of both the departmental brief and the range of problems that departments face at any one time. That said, it is pretty clear that one needs a way to appraise and assess the performance of very senior civil servants. There is a system in place that has been modified over the years which links the Secretary to the Cabinet Office and the Civil Service Commission, but no doubt getting rid of an individual and breaking long-standing taboos that seem to be related to the impartiality, neutrality and permanence of top civil servants is a very squeamish and difficult business. It is not clear to me that there is a simple answer to that which does not put at risk issues of morale, confidence and flexibility between senior levels of the UK Civil Service. I do not believe that there is a simple answer, but I do not deny that there appear to be major public policy issues concerned with the management of large organisations.

Q385 Mr Liddell-Grainger: Has not the ethos changed? I take just one name: Capita. Over the past 20 years we have seen a massive growth in privatisation and putting stuff out to PFIs. Many organisations have come in to run parts of government. Are you not, therefore, undermining the Civil Service anyway? Ministers think, "Well, I'll blame them." Senior civil servants such as poor old Nigel Crisp are then the sacrificial lambs in all of this, so the system is not capable of working because one has created an unstable system by doing this?

Dr Hine: I do not know whether instability is the only variable. The size of the NHS as a single bureaucracy is not something that most people would recommend as a way to manage public health services in the modern world. We are stuck with the NHS for all sorts of historical reasons and the very great attachment to it of the UK electorate. We have to manage it as best we can. It may be completely unmanageable in that regard. I do not disagree with you. I believe that many people who have written about developments in UK public administration over the years have focused on the deleterious consequences of out-sourcing, contracting and so on and the uncertainties that come from that. I am sure that your Committee is well able to probe those matters.

Q386 Mr Liddell-Grainger: When Gus O'Donnell came before us and he was asked about this we wanted to know who was carrying the can for the foreign criminals fiasco. He said that it was a complex issue. That is the head of the Civil Service saying basically that we are stuffed, is it not?

Dr Hine: I cannot speak for the head of the Civil Service.

Q387 Mr Liddell-Grainger: Surmise.

Dr Hine: I am sure that it is a complex issue.

Q388 Mr Liddell-Grainger: There is no solution, is there?

Dr Hine: I doubt that there is a single solution.

Q389 Mr Liddell-Grainger: What is the solution to sorting out this shambles? I am talking about governments over the past 20 to 30 years.

Dr Hine: But I do not believe we can sit here and say that every aspect of the revolution in public services that has occurred in the UK is a failure. It is not. As Gus O'Donnell would say in this context, it is a very complicated issue and it is impossible to get to the bottom of it with a few one-liners. A lot of what you say is right, but we have to pick out those bits which are right and need to be addressed.

Professor King: The original question suggested that permanent secretaries were top-class managers. I wonder about that. They were not hired or trained as managers. I do not know how many of them could move directly into senior positions in the private sector as managers. Maybe they have been cast. More and more managerial responsibility has been put upon them, whether or not that is appropriate. As Dr Hine said, there must at least be arguments about whether or not some of these organisations are at all manageable.

Q390 Paul Rowen: I want to ask about the nine points raised by Professor King. He talked about the proliferation of rules and bodies and their self-perpetuating nature. They have a reason to be there and so they exist. Should we be reducing the number of these regulatory bodies, and to whom should they be accountable? At the moment many of them are directly accountable to the Prime Minister, not in any public sense to Parliament?

Professor King: I preface my answer to your direct question by asking myself, rather gloomily: first, do we now have as a result of all these changes better people doing better jobs? Second, are there signs that the public has greater confidence in this system and the way it is working? I think that the answer to both questions is probably no. Things have not got much better over the past 10 years or so. I therefore ask myself whether all of this has been cost-effective. If it has not been terribly effective I find myself wondering whether all this effort is worth the trouble. To be absolutely honest, I am a little doubtful. I am genuinely not sure whether there should be fewer regulatory agencies of the kind we have been talking about. I have not tried to get my mind around it. I believe that despite Baroness Fritchie and all kinds of other people there ought to be fewer regulations and less paper and the hand should be a great deal lighter. I am very far from clear why someone should have to fill in a huge form to sit unpaid on some advisory body that he or she probably did not want to be part of in the first place. As to accountability, I do not know that it matters terribly, but, other things being equal, my disposition is that bodies of the kind we are talking about, insofar as they should be made to answer to anybody, ought to answer to Parliament rather than the Prime Minister or Cabinet Office. I should like to see Members of Parliament playing a larger role in all this. At the very least there is bound to be suspicion that if the Prime Minister appoints somebody to do something that person is somehow the PM's agent. I do not imagine that at the moment Mr Blair takes that view of Sir Alistair Graham.

Q391 Julie Morgan: I was particularly interested in Professor King's ninth point about targeting. Is the implication that targets have lowered standards in public life?

Professor King: The short answer is yes. A very slightly longer answer is that Dr Hine has emphasised the point about people trusting one another and those in positions of authority. If people believe that teachers are coaching kids on exams, that GPs are making claims about the number of patients they treat and that those statements and claims are not well founded - there is story after story in the newspapers to testify to that - those in positions of public responsibility will cease to trust each other, will cease to trust the system and will cease to be trusted by large numbers of citizens. There is a lot of evidence that that is already happening and it worries me a good deal. I just add that the cases we hear about are the famous ones. We hear about David Blunkett going for having transgressed. What we do not hear about much is the huge number - I argue it is tens of thousands - of minor episodes of what I regard, bluntly, as immoral behaviour that go remarked by the small number of people who are immediately involved but unremarked by wider society. I believe that there is a real problem out there.

Q392 Julie Morgan: The Government has used targets as a way to improve the public services, certainly things like hospital waiting lists and waiting times. How else does one tackle that kind of issue unless one uses targets?

Professor King: I do not suggest for a moment that there are not circumstances in which targets make perfectly good sense but that if a target is to be introduced the way in which its achievement is measured needs to be, putting it crudely, cheat-proof; that is to say, it must be based on an objective standard that somebody can apply without having to rely on the word of people in whose interest it is not to tell the truth if they think they or their organisation, be it a school, hospital or whatever, will suffer if they do tell the truth.

Q393 Paul Rowen: If you do that you will end up with a whole regulatory back-up system where people check the checkers.

Professor King: To give an example from my university experience, there is something called the research assessment exercise. Although I believe that like all targets it has some slightly curious consequences, it works tolerably well in the sense that people are assessing public research; it is out there in print. I am struck by the fact, having talked to a lot of people about it, that I have never heard anyone claim that any university department has been graded more than one point off where it ought to have been. There must have been the odd misjudgement; I would be amazed if that did not happen, but the stuff is out there. Even so, when that system was first put in place about 15 years ago it was discovered people were claiming that they had written books and articles. With modern technology, a simple check revealed that they had done no such thing: the work did not exist. Here was a situation where there was a rather easy way to find out whether or not somebody had cheated. Think of the number of areas of public administration where there is no such objective standard.

Dr Hine: To complete the picture, another aspect of university administration is quality audit and assessment which is widely regarded as a disaster. Not everyone believes that there are no longer quite serious perverse incentives in the RAE. The problem is that all systems of accountability involving targets will have both perverse and effective consequences. The difficulty is to ensure that whatever administration is involved has the time and is properly consulted rather than has something imposed on it from the top which is not appropriate and fully thought through. I think that it is the speed with which targets have been imposed and changed that has had deleterious consequences both for those who work in the public services and those who take political responsibility for it. They themselves, as the Committee's discussion of a couple of weeks ago showed, then find themselves under pressure and their own credibility on the line which has a consequence for the way they present information and the spin that they put on it. That affects trust. It is the timescale, sophistication and professionalisation of the targets that have to be watched rather than some sort of carte blanche judgment being made about them. I believe that they are inevitable in the modern world and most liberal democracies seem to be heading in that direction as the only way to make public service reasonably accountable and measurable.

Professor King: I am not against targets. When one is devising targets one consideration that ought always to be borne in mind, and in my experience frequently is not, is whether or not it will induce cheating that cannot be detected.

Q394 Mr Prentice: I want to ask about Sir Alistair Graham, chairman of the Committee on Standards in Public Life. He has been very critical of the Government, and he was when he came before this Committee. It was reported in the Sunday Times of 21 May that he had said the Prime Minister saw standards as a peripheral, minor issue not worthy of serious consideration. Was it right that Sir Alistair Graham should make these criticisms public in such a trenchant way, and is he right?

Dr Hine: I do not know whether he is right and I do not think that it is for me to judge it, but that episode goes to the heart of one of the points I have made. If we are to have an agency that is permanently in session thinking about standards and looking at issues we have to decide whether we want it to deal with particular cases or principles. I think it is quite likely to have more prestige and support if it deals with principles, institutions and structures rather than particular cases. One can well see, however, that if one has strong feelings about particular cases and that things which the committee had recommended and put in place over a long period of time were not being followed one might have considerable frustrations, but very careful thought would have to be given to the institution that one heads if one goes beyond a certain brief. I had always understood that the committee did have a principle that it would not deal with particular cases. It seems to me that the risk of politicisation of that agency is quite high.

Q395 Mr Prentice: What do you mean when you talk about focusing on principles? Earlier Professor King told us that these bodies should give guidance on unacceptable behaviour. Is Sir Alistair Graham aggrieved because he wanted to get involved in inquiries into cash for honours, for example, but was knocked back? Is it legitimate for an organisation like this to become involved in running inquiries on matters like that?

Professor King: I agree entirely with what Dr Hine said. If one wants to conduct inquiries one should do so, but the rule in the Nolan committee and ever since has been that one does not take up individual cases. Some Members of the Committee will recall that when Lord Neill became chairman of the committee he allowed himself to become involved in the Bernie Ecclestone affair. He announced that the very large sum of money - I recollect it was something like £1 million - that Ecclestone had given to the Labour Party should be returned. I do not believe that Patrick Neill would mind my saying - it has probably been said in public before - that there was a bit of a revolt on the Nolan Committee; people said that that was not the aim of the exercise and the object was to try to lay down standards and give guidance. I suppose it is the old distinction between the legislature and executive; one group of people lays down rules and another body, the judiciary, sees whether the rules of the legislature have been broken. I believe that that is wholly appropriate and I entirely agree with Dr Hine.

Q396 Mr Prentice: I referred to cash for peerages. The police are now involved, for goodness sake. Where should responsibility lie for investigating something like that?

Dr Hine: The general issue of honours and peerages is entirely appropriate for the Committee on Standards in Public Life to consider, but hard cases do not make good law. It is not good to predicate general recommendations on the basis of particular cases. I believe it is perfectly appropriate for that committee to think about these issues in a calmer context outside particular cases. When rules, procedures, understandings and values recommended by a body like the Committee on Standards in Public Life and are agreed by the appropriate authorities and are put in place it is then for somebody else to decide, whatever arbitration or adjudication system is put in place. It may well be some strengthening of the law, in which case it would be the police and the judicial authorities, or it may be Parliament itself, if one wants to put it into the hands of a parliamentary committee, but in those circumstances it would not be the Committee on Standards in Public Life.

Q397 Mr Prentice: Is there much evidence that the Government is facing down bodies like the Committee on Standards in Public Life? They make recommendations and the Government says, "We hear what you say but we are not doing anything"?

Professor King: I find this a very difficult one. In the end, these are advisory bodies; they do not take decisions. It would, therefore, be very strange if the norm developed that the government of the day simply accepted whatever recommendations were forthcoming. People might have good reasons for not wanting to do that. I happen to have doubts about the Prime Minister's acceptance of the idea that there should be somebody - as it happens Sir John Bourn - to investigate instances of alleged breaches of the Ministerial Code. I have problems about that. I was always prepared to defend Mr Blair in his role as Prime Minister against the suggestion that he should put into commission, as it were, a set of issues that were terribly central to him as PM. That said, I believe that there are difficulties. I was involved with the Neill Committee in recommending the establishment of the Electoral Commission. I believe that there are worries about the way in which the Government has dealt with the Electoral Commission. As far as I know, the commission has not complained, or, if it has, it has been done in an informal way. It made the very clear recommendation that all-postal ballots should be piloted in a very limited number of places during the European elections. The Government decided that it would not pilot them but would have all-postal ballots in four large English regions. If at some point a government wishes simply to turn down really major recommendations, of which this was one, from a body like the Electoral Commission, which is supposed to be independent, the system has gone a bit skewwhiff. It looked like party-politics taking over from good government, but I do not believe there is an easy answer to that.

Q398 Mr Prentice: There is an easy answer, is there not? If the Electoral Commission feels that it is being systematically walked over by the government of the day it can resign. That would cause a cataclysmic response at Westminster. On the question of electoral fraud about which we are exercised, the Electoral Commission is on very public record as saying that there should be individual voter registration to tackle fraud, and the Government says that, no, it wants to stick with the "head of household" concept where one person certifies on behalf of all others in the household that they are electors. The Government says that it is doing that because it wants to push up voter turnout. What should be the response not only of the Electoral Commission but other watchdog organisations when the Government is determined to face them down?

Dr Hine: I would find it surprising if that particular issue at this stage of the discussion was a resigning issue for the chairman of the Electoral Commission. I intuit from things that I have picked up that the Electoral Commission regards itself as a bit of an orphan in public life and it would like an interlocutor. I am not quite clear whether that interlocutor ought to be Parliament or government. Looking at the way similar bodies operate in other countries, I am not absolutely clear that there should be a government department to link with it in an immediate sense. There has, however, been a lack of dialogue since the Political Parties, Elections and Referendums Act 2000 about how to respond to things which come out of the Electoral Commission. I absolutely agree with you. I would be very surprised if we had reached the point of a resigning issue. The history of the Standards Board is a rather interesting comparison. In many respects what has happened to the Standards Board has been much more controversial. I think everybody would agree that the original conception of the workings of the Standards Board was not terribly clever, looking back at how it was set up and the way it was envisaged things would go up to the centre and be dealt with. There was a huge backlog of cases in the early years, and so on. It seems to me that between the Government and the Standards Board there was quite a dialogue and through various iterations and statutory instruments the system is coming right. It is perfectly true that there was one rather clamorous case recently which looked rather absurd. I believe that there are understandable reasons why it happened like that, but if we look at the way in which the procedures have been altered to try to repatriate them to local level many of the matters that advisers to the Government in 2000 said ought to happen - the Government has listened - suggest that they can happen and it can listen. I agree with you that it has not happened so much with the Electoral Commission but maybe there is a model there for consultation and change.

Professor King: For the first time I believe I disagree with Dr Hine. In the case of the Electoral Commission - I have not followed it closely and do not want to give the impression that I am an expert - there have been several instances in which it has made formal recommendations to government for the purpose of ensuring the integrity, impartiality and public faith in the electoral system. Enough of those recommendations have been rejected or ignored and have had cynicism-inducing consequences, such that a judge announced that Birmingham had become like a banana republic, that, speaking for myself, had I been a member of that commission and my good faith and recommendations had not been taken more seriously I would have wondered whether I should hang around.

Q399 Mr Prentice: I want to ask you about something you said earlier. Did you tell us that you had problems with Sir John Bourn?

Professor King: No. Very simply, 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.

Q400 Mr Prentice: Do you say that it is okay to break the Ministerial Code and stay in place if the Prime Minister decides the matter because ultimately he is the main guy?

Professor King: Correct. If one wants to introduce the criminal law and somebody goes to gaol for six months-------

Q401 Mr Prentice: What if there is a string of scandals that embroils members of the Cabinet and the Prime Minister just faces them down?

Professor King: I have two thoughts about that. That goes straight back to the first of my nine points. I believe that democratic politics can deal with that. A Prime Minister who persists in behaving in that way is very unlikely to remain Prime Minister for all that long, because there will be pressures within his or her party to deal with that. More empirically, ministers in the present Government have departed the scene. I seem to remember that Peter Mandelson and David Blunkett have departed twice. You refer to the notion that Prime Ministers just face these things down from time to time. John Major tried to do it but David Mellor and Tim Yeo went eventually. Curiously, some of this suggests that you as elected politicians do not believe in your own profession. I think you are perfectly capable of making life difficult for somebody who tries to face down the critics. Do it and it will work.

Q402 Chairman: Surely, that gives rise to two points. One is the precise issue of the Ministerial Code and the investigations. The Committee on Standards in Public Life - this makes your point about it being only advice - has changed its mind on the matter. When it first reported it said that there should be no investigatory mechanism. Then it changed its mind and said there should be three wise men, and so on. A version of that has now been adopted by the Government, but surely the distinction is still maintained between finding out the facts on which political judgments can be made and the making of the political judgments which remains with the Prime Minister. Therefore, that principle is not breached, but we now simply have a better chance of finding out exactly what happened in particular cases.

Professor King: My own disposition is to think that to give one person or the occupant of one role that job is probably misguided. There is a lot more to be said for the Prime Minister, in his own political interest quite apart from anything else, saying, "This is a complicated, difficult matter", and getting somebody who is appropriate to deal with that situation. That person may not be either Sir John Bourn or Gus O'Donnell; it may be somebody else who can do a good job. There are one or two instances in which that has happened.

Q403 Kelvin Hopkins: I am struck by the comment in the brief paper circulated by Dr Hines that in the end only integrity-based systems really work. In the end, he is saying that if one wants a system of good government one must have integrity and people driven by what might be called the public service ethos and commitment to the public interest. We now have a government that is committed to bringing business into government in a big way. There are American gambling interests going into Downing Street and, lo and behold, there is a Gambling Bill and mention of big casinos. The initiative stumbles a bit and does not quite get there, but that is happening in a general way. Is not the problem that the two systems - the public service ethic and the business ethic - do not sit well together and that one undermines the other?

Professor King: I believe that if there are principles that should govern the conduct of individuals in their public service obligations those principles should be applied irrespective of whether or not the person providing that public service is formally in the public sector or private sector. It is perfectly clear that if one is in the business of contracting out or, as someone put it, hollowing out the state, the kind of issue to which you refer arises. There is already sufficient evidence of a clash of cultures, if you like, and it is quite clear that by some means or another - perhaps this is something that the Committee may want to look at directly - the private sector performers of public services need to conform to public sector standards of behaviour.

Q404 Kelvin Hopkins: Traditionally, the Civil Service in Britain has had very high status and to get into the First Division straight from the best universities was seen to be something that people with the best minds were very interested in doing. The evidence is that many of the best minds did go in and rose to the top. I believe that they were driven very strongly by the public service ethic. That was the basis on which we operated: it was an independent civil service driven by public service and the sense of respect and status that went with it. Is that not now being seriously damaged, not just by the activities of government in the ways I have described but also by the sense that civil servants' status is being downgraded because they can go in and out of the business world. The merchant class, the money-makers are coming in to take their jobs and are often being praised more than they are? Is that not seriously damaging our public service?

Dr Hine: There is certainly a lot of public comment to that effect. I am not convinced, having fed people into both the City and the public service for the past 25 years, that there has been any serious diminution in the quality of people going into public service. We still filter very good people in that direction. In a world where job mobility and fluidity is much greater than it was and where life tenure no longer exists and people have aspirations for a range of different jobs during the course of their careers it is almost inevitable that there will be much more fluidity. That is also partly a consequence of a conscious policy that is desirable in some aspects and worrying in others, but I think it is inevitable. The issue is how one ensures that the public service ethos works on those people who did not start at the age of 22 or 23 and work their way through a system that is shot through with values of integrity and decency in public service. That is the challenge. I do not think that we can just turn our backs on a series of inevitable processes and say that we cannot fix the problem and, therefore, we will keep a rigid public hierarchy and no lateral inward and outward movement. The latter is inevitable. How does one do it? Obviously, one must ensure that the Civil Service Commission, permanent secretaries, HR departments and so on work on that problem and are much more conscious of it than perhaps they have been. Although there has been a lot of public comment of the kind you have just expressed, one still awaits strong evidence that the public service ethos is being seriously eroded, as opposed to the consequences of out-sourcing, inappropriate contractual relationships and so on, where I believe there are deleterious consequences for the public service. I am not convinced of it. The jury is out and we need to know much more about it, but I think it is very difficult for me to measure.

Q405 Kelvin Hopkins: This week it has been reported that a Texan businessman who had been in the private health sector and who came to Britain and worked for a private company was taken into the Department of Health to lever out public sector contracts to the private sector. He is now in the frame to become chief executive of the NHS according to press reports. Does it not seriously damage the morale of the Civil Service and people who have worked their way up in the traditional way to see a businessman being appointed to such a job? I do not want to question his integrity, but he is an American businessman from the private health sector who is involved in privatisation of the health service. Will that not cause serious damage?

Dr Hine: I expect there to be a risk of that.

Q406 David Heyes: I just want to give Dr Hine an opportunity to speak on the excellent paper circulated this morning. Is it really the case that we are being too self-critical here? Internationally, we compare reasonably well. What is your view on this? What can we learn about ethical regulation from overseas practice?

Dr Hine: There are two interesting comparative issues. One is whether the standards in public life in the UK and some Anglo-Saxon countries are higher than in most other advanced liberal democracies.

Q407 David Heyes: Is that evidenced or is it just opinion?

Dr Hine: We could spend a long time on that. There are a number of indicators which are very much second order in nature. There are some NGOs, of which Transparency International is one of the best known, which over the course of many years have compiled an index based on perceptions of corruption. Interestingly, it is pretty consistent year by year; countries do not move up and down and there are not big variations. There may be all sorts of sources of bias, but it looks as though it is pretty consistent. We are not number one by any means. Of 100 or so countries we are normally about 10^th or 11^th and Finland, Norway, New Zealand and one or two other countries seem to beat us, but not by huge amounts. It is not a matter for complacency, but basically at least in terms of these measurements we as a country have pretty high perceptions on the basis of a series of surveys of business people in particular. We are well up there. The other question is whether this is in any way related to the way in which we in the UK think about and manage ethics, set up institutions and so on. Given that we have been through quite a revolution over the past 10 years, certainly at the surface level, with all the institutions that we have been talking about this morning, we ought to think about that pretty carefully. Obviously, it is one of the matters in which this Committee has been interested. Implicitly, you are worried that we may have gone over the top and focused on these matters and, even though we raise standards, we lower trust and perceptions. Clearly, that is a worry, but it has to be said that we do not have any strong evidence for this. John Curtice and others spoke to you about this. The Committee on Standards in Public Life carried out a survey, which Oxford helped to produce, which looked at these matters. It is very difficult to find evidence of any relationship between the proliferation of agencies and the public focus on these issues and a decline in trust. I think it is much more complicated than that.

Q408 David Heyes: Is there any evidence out there to support Professor King's idea about linking regulation more closely to Parliament than to government generally? Is there anything to be learned overseas about that proposition?

Dr Hine: I have not come across lessons myself. There are lots of interesting aspects of ethics management in other countries, but most of the interesting lessons are to do with hard corruption, as opposed to the management of conflicts of interest and the appropriate political reaction and relationships, which is where the focus lies in the UK. I would be much more worried about fiddling around with those sorts of things by learning lessons from overseas. What we do not necessarily do is learn lessons from our own institutions. We have charged ahead with a lot of institutions without thinking quite how much we are changing the system. I do not think that we have changed it seriously or irrevocably, but the whole debate with which this Committee is now concerned shows a great deal of uncertainty about what we have done and whether we have things in the right order. The questions that Gordon Prentice has put are precisely in that vein and are quite proper ones. But I think we learn more from ourselves than from overseas on that particular issue. What we really must learn is that there is a big piece of social capital in the UK which is trust in institutions. That trust is much higher than in other countries. We trust ourselves much more than most other countries. The whole force of the public law tradition in continental jurisdictions is that parts of the public sector do not trust one another and go to law against one another. It would be disastrous if we went down that road in the UK, which is why we have to tread very carefully.

Q409 Chairman: We have had a bracing and extremely useful session with some very solid evidence. I do not know whether our witnesses think we have failed to ask the most important question.

Professor King: I was going to ask the Committee a question. When I read the issues and questions paper, which I did with interest, I was not quite clear of the core concern; in other words, what is this Committee worried about? What does it believe has gone wrong and may be able to be fixed? It may be that every Member of the Committee will give a different answer to that question and the issues and questions paper is a consequence of a range of views, but if an inquiry is held it seems to me that there is a problem to be addressed. I am not sure what the problem is.

Q410 Chairman: It is a rather unusual convention for witnesses to ask us what we are about. If this caught on we would really be in trouble! In a nutshell, it is very much about the kinds of things that you have talked about this morning. In the past 10 years we have set up a whole new structure of ethical regulation. It seems quite sensible 10 years on to take stock of it to see whether it has done the job that we want it to do. Is there regulatory overkill? Are there grounds for making it coherent? Are there gaps to be filled? Those are the kinds of issues we have dealt with today. I do not suggest that we have a fully developed answer to those questions but we think they are important ones.

Professor King: I am sure that Dr Hine and I both look forward to reading the report.

Chairman: Thank you very much for coming.

 

Examination of Witnesses

 

Witnesses: Rt Hon Lord Mayhew of Twysden, QC, DL, a Member of the House of Lords, Chairman, Advisory Committee on Business Appointments, and Mr Tony Nichols, Secretary, Advisory Committee on Business Appointments, gave evidence.

Q411 Chairman: We welcome our witnesses.

Lord Mayhew of Twysden: Chairman, I wonder whether I may introduce Mr Tony Nichols, head of our small secretariat in the Advisory Committee on Business Appointments. He has an encyclopaedic recall of every case that we have handled for the past nine years.

Q412 Chairman: We are grateful to both of you for coming along. You are here because you have chaired the Advisory Committee on Business Appointments since 2000. We are interested in that particular area. Sir Patrick Brown has also come to talk to us. We are interested in that topic as part of the whole apparatus of ethical regulation of which this is part. Do you want to say anything by way of introduction or shall we just ask our questions?

Lord Mayhew of Twysden: We submitted a memorandum in March and I believe it said all that needed to be said at that stage. I doubt if you would prefer me to expand upon it or encapsulate it. I am very happy just to get on.

Q413 Chairman: Your advisory committee was established 30-odd years ago?

Lord Mayhew of Twysden: In 1975, yes.

Q414 Chairman: As you heard from the end of the previous witness session - I apologise that we have held you up this morning - the landscape in the relationship between the public and private sectors has changed fundamentally. The amount of inter-penetration of the state and private sector is on an entirely different scale from 30 years ago. Given that, do you think that the machinery we put in place a generation ago can deal with the kinds of issues with which we are now faced?

Lord Mayhew of Twysden: I think it can and I am fortified in that view by the fact that we have no complaints of any significant character - if any at all - about the way in which we address our work in the context you describe. I noted that Sir Patrick Brown said at the outset of his report that on the whole the arrangements which embraced the committee I chair worked well. On the whole, I am not aware of any clogging. I have here figures for the number of cases with which we have dealt in the past three years. They are about 100 in number, of which over 20 concern people who have come in from outside and problems can arise when they wish to leave the public service. I believe that it is coping. The principles are the same. I very much agree with what Dr Hine said a few minutes ago that in our country the arrangements tend to be reactive. I cannot remember what it was in 1975 that induced Mr Harold Wilson, as he then was, to set up our committee. Its roots go back to the 1930s and certainly the system was put in place then as a reaction to public disquiet. I believe that the case for change is best made when there is evidence of public disquiet. I am glad to say that I am not conscious of that, but I do not wish to appear complacent.

Q415 Chairman: My impression is that the Patrick Brown inquiry was put in place because there was thought to be a need not to provide more public assurance about this but in a sense to provide more lubrication of the system. It was thought extremely desirable to ease the passage between the two sectors and restrictive conditions affecting transfer would prevent the development of interchange. Is that an analysis that you recognise?

Lord Mayhew of Twysden: Yes, I do. My impression is that it is right. We have been conscious that the Prime Minister has desired the rules that we apply to be applied in a way which would facilitate the coming in and going out of people from the private sector. I have said that there is no objection to the policies because the committee is not a policy-making body. In the case of Crown servants we apply the business appointments rules and in the case of ministers we apply the guidelines for the acceptance of employment by former ministers. We have to apply those rules. If anybody wants a different result the rules should be changed but we cannot change them ourselves, and I do not think it is proper to bend them, as it were.

Q416 Chairman: In a note prepared by Lord Maclennan reference is made to the fact that the rules are completely unenforceable.

Lord Mayhew of Twysden: We are not there to police them. It is very hard to see how in a free society one can formulate a system that is intended to reassure the public as to the integrity of public life in a way that is enforceable to the extent that anybody who is minded to become a miscreant is prevented from doing so. One cannot do that; one has to establish a balance. My great faith is in an independent and free media coupled with a free and independent parliament.

Q417 Chairman: In a nutshell, why do you think that the recommendations of Sir Patrick Brown and the idea of a simple test to get rid of the complexities in this area would not do much to inspire public confidence?

Lord Mayhew of Twysden: To the extent that there is complexity it is because real life is complex. Every case is different, and we look with great care at each case that is brought to us by an applicant. It seems to me that one cannot satisfactorily achieve the objective of reassuring the public about the integrity of public life in this context by some mechanistic means or by reference to some formula. If one is to say that there shall be a single test, for example whether in the past three years there has been on the part of the applicant any material influence which has resulted in the conferring of a benefit upon the company to which he wishes to go and, if so, he cannot do so for two years, that is unduly rigid and does not enable one to take account of the circumstances. I think that is a mistake. We take account of the circumstances; we take account of the desirability or otherwise of imposing behavioural conditions. We do not just say that someone is out for two years; we very seldom do say that, although we are able to do so, but we do say, for example, that for the next six or 12 months the individual should not lobby his previous employer, be it a department or government as a whole. Matters of that kind enable us to take what I believe is a satisfactorily flexible approach which reflects the complexity of each individual set of circumstances.

Q418 Chairman: But if they do lobby there is nothing you can do about it?

Lord Mayhew of Twysden: If they lobby they are in breach. One then relies on somebody blowing a whistle, I suppose. I believe that it is a unique feature of our committee that we do not make policy. We are not policemen but advisers and have no executive role at all. I suppose that the question for you is whether the committee is a load of wimps who are not really worth the money spent on them. Incidentally, the money that is spent is about £164,000 a year, none of which comes to its members. Without being complacent, I think that some comfort can be drawn from the fact that in the circumstances you described Sir Patrick Brown felt it right to say in his paper that the system in general worked pretty well.

Q419 Kelvin Hopkins: I asked Professor King and Dr Hine about the different ethics that apply in the public service and the business sector. Both are legitimate in their own context, but is it not the case that they do not mix in government and that if we want good government we have to ensure that the public service ethos is protected?

Lord Mayhew of Twysden: I warmly agree with the last point that the public service ethos is at the root of public confidence in the integrity of public life. I spent 23 years in the House of Commons and for my own part I have always thought that the vast majority of my colleagues of whatever party were in there for good, worthy and reputable public service reasons. I am quite confident that that was the case in my time, and I am sure that is still the case. Equally, I believe that there is a sound case for bringing people with business experience into departments which have managerial problems, but they must always operate under the control and within the framework of elected ministers who are born and bred in the doctrine of public service as you describe.

Q420 Kelvin Hopkins: The direction of travel - it is a phrase we use a lot these days - in the Prime Minister's actions seems to be towards getting rid of almost all the public service into the private sector and bringing the private sector into the heart of government wherever possible. Will that not cause damage to the values that both of us hold very dear?

Lord Mayhew of Twysden: I do not think I can really comment on the premise of that question. I hope that my position is clear from what I have just said, that the business of administering this country ought to be carried out by people who do it for the reasons we all have in mind and abide by the principles which the Committee on Standards in Public Life have identified as the principles of public life, which seem to me almost self-evident.

Q421 Kelvin Hopkins: Did you feel somewhat affronted when the Prime Minister, through Sir Andrew Turnbull, appointed Sir Patrick Brown to undertake an inquiry when you had just done an inquiry yourself and that he also blocked the appointment of Sir Nigel Wicks? It strikes an outsider like me that he did not want honourable game keepers like yourself and Sir Nigel but someone who was more of a poacher for the private sector to do the job?

Lord Mayhew of Twysden: I was not affronted at all. I read Sir Patrick Brown's evidence to this Committee. To my surprise, I found myself feeling rather sorry for him. I did not take it amiss at all. You are perfectly right to say that in 2003 we had embarked on our own internal review of how the committee should respond to the trend that we spoke about a few minutes ago, that is, more people coming in from the public sector and others going out before ordinary retirement age. In our sixth report for 2004, which is available to you, we set out our conclusions which followed substantial consultation with the MoD where this trend is principally seated. I was rather pleased to find that the Prime Minister accepted that report with a typically gracious letter of thanks for the way in which we devoted our time to ensuring there is no possible ground for suspicion in the acceptance of appointments.

Q422 Kelvin Hopkins: One former colleague who stood down at the last election was a defence minister. He has recently secured a job with the defence industry which receives vast amounts of money from government contracts. Is not that kind of event rather worrying, and does it not suggest that we are losing our grip on the situation?

Lord Mayhew of Twysden: I think that it is a classic case to which the rules apply. In the case of ministers we are consulted directly by them and advise them directly. The contrast is in the case of public servants where we are consulted by the department and we advise the Prime Minister and it is for him to decide whether or not to accept our advice. Under the rules he is enabled to go against that advice if in his view the public interest so requires, but in the case of ministers we advise them directly. Under the Ministerial Code it is said that they should consult us, but they are not obliged to accept our advice. In the case to which you refer, which I believe is that of Mr Ivor Caplin, I have here a full chronology which I can produce if you want me to do so, but I think that it would weary you at the moment. We were not consulted beforehand. We followed our usual practice when we came to learn that an appointment on which we had not been consulted had been accepted. We published that fact. That seems to be required by the doctrine of transparency to which we adhere. That was what happened in that case. I do not believe that we are losing control of it. Your next question will possibly be: what happens if someone just rides roughshod over the rules? One is then into the discussion that your Committee has just had with its previous witnesses about the force of public opinion, a free and independent media, Parliament and so on.

Q423 Jenny Willott: To carry on with this theme, you said that you do not have enforcement powers or the ability to act as policeman as well as adviser. Do you think you should have those powers?

Lord Mayhew of Twysden: No, I do not. I think that we produce the facts and advice and if we are not consulted beforehand we publish that fact on our website and in our annual reports. We then leave it to whatever forces will play upon that set of circumstances, and I think that is right. I do not think that any of my colleagues or the secretariat would wish to be sleuths and policemen, and I do not think we would add anything. These matters are in the end controlled by public opinion in the sense that they decide what is and what is not acceptable.

Q424 Jenny Willott: There are two different instances: when somebody does not consult you and takes up an appointment and when the committee has given its opinion on whether somebody should be able to take up a position and that advice is disregarded. As to that, do you feel that you should have some form of power?

Lord Mayhew of Twysden: No, I do not think that we should have some sort of power. It is entirely satisfactory that we publish the facts. There has not been a shortage of instances in which the media have taken it up and events have followed their course from that. That seems to me to be the way that these matters in practical terms can best be arranged.

Q425 Jenny Willott: What do you believe went wrong in the case of David Blunkett?

Lord Mayhew of Twysden: Again, I have with me the whole scenario to which I can allude in detail if required. I think it began with a misunderstanding, but we try to draw the attention of retired ministers to the rules. I write to them in a standard form of letter immediately that has occurred and draw their attention to the rules which apply to them. Normally, there is no problem.

Q426 Jenny Willott: Have any changes been made to make sure that a similar situation cannot happen again?

Lord Mayhew of Twysden: Not by us, because the rules are pretty clear. As I have said, I draw this to the attention of everybody who has recently retired or left office.

Q427 Jenny Willott: Given that a misunderstanding arose, have you considered making any changes to how you notify people and what information you provide?

Lord Mayhew of Twysden: I believe that that has been done by the Cabinet Secretary who has made it clear that in the Ministerial Code the word "should" means "must". Speaking from memory, the actual wording is "Ministers should seek advice from the independent Advisory Committee" and there may have been some misunderstanding as to whether and to what extent it was voluntary, but I do not feel unhappy about the clarity of the position.

Q428 Jenny Willott: Given that on occasions there are misunderstandings, do you believe that a very clear rule such as the one proposed by Sir Patrick Brown could aid in future in ensuring that there are no misunderstandings?

Lord Mayhew of Twysden: It would be clear enough but in my view it would be unfair.

Q429 Jenny Willott: You do not believe that anything needs to be done and on the whole the rules work?

Lord Mayhew of Twysden: I believe that there are grounds for some adjustment to the rules, for example as they affect special advisers. There is some general tweaking to be done as far as they affect civil servants because the pay bands to which the rules allude have now been altered. I say something about that in the memorandum which we filed in March, but across the broad spectrum for our own part - I am conscious of the danger of seeming to be rather pleased with ourselves, and I hope we are not - we are enabled by the rules that we are required to apply to do the job that fulfils their purpose.

Q430 Jenny Willott: In the case of special advisers, what change in the rules would you like to see?

Lord Mayhew of Twysden: There are certain aspects which perhaps are not altogether clear. The rules do apply to special advisers, but I shall ask Mr Nichols to describe how they apply in the detail which is relevant to the question.

Mr Nichols: The answer essentially is clarity. The rules were written not wholly but largely for people who were dealing with contractual matters. Special advisers sit at the heart of a department with access to the direction of government policy and so on. The rules are perhaps not quite as clear as they might be in terms of telling special advisers that this is the kind of information that may be extremely valuable to people outside and if they want to go and join one of those organisations they had better clear it through the normal process. At the moment they might read the rules and say that they do not let contracts, negotiate and have never dealt with the particular company because it is not in their business to do so. That could potentially mislead some special advisers, although our experience is that it has not, into thinking that these rules are really not much to do with them even though they are subject to them.

Q431 Jenny Willott: Do most of them contact you upon leaving?

Mr Nichols: They tend to be very conscious of the attention that their jobs will attract. We hear from them particularly if they want to move into fields which will involve either lobbying or activities in that kind of area. Generally, I believe that they are very well aware of the kind of reaction that might emerge. We have had one or two quite high profile cases in the past as a result of that.

Q432 Chairman: Does it rely upon the individuals themselves having dealings with you? You say that in relation to civil servants it is the departments with which you have to deal, whereas in the case of ministers you deal with them individually. In the case of special advisers, do you deal with them as individuals or through departments?

Mr Nichols: In the case of all Crown servants, whether they are special advisers, civil servants, diplomats or members of the Armed Forces, the dealings that we have are with their employing departments. Those departments will consult us; special advisers do not usually come to us directly, although we increasingly find ourselves offering advice to people who ring up and say, "Look, I am thinking of doing this but my department says there could be a problem. Can you explain it to me?" That is, if you like, a way of oiling the wheels in a way to make sure they run smoothly, but their dealings are with their employing departments and in most cases those departments make contact.

Q433 Chairman: But is every departing special adviser dealt with in the same way as ordinary civil servants through their departments?

Mr Nichols: They are not dealt with in the same way. For example, if a normal civil servant wants to take an outside appointment which involves obtaining permission - as you know, the rules do not require that everybody applies for every outside appointment - that permission is given by the department and the responsibility for that decision rests effectively with the Minister in charge of the department, or whoever else he might delegate that decision to, but in the case of a special adviser ministers are not involved in any way. The decisions are taken by permanent officials but still within the department. That will normally be the permanent secretary to avoid the possibility that, for example, the special adviser was the Minister's special adviser. One would then have a problem one way. If he was the former Minister's special adviser there might be a problem the other way; namely the new Minister knows absolutely nothing about him and could not say whether or not he thinks what he will do is sensitive. There is, therefore, a mechanistic difference in the process, but effectively it is the employing department which is responsible for the process, and we advise that department about the consistent application of that process.

Q434 Chairman: I am sorry to press this, but I am still not entirely sure, therefore, where the problem lies. You said that there was a problem with special advisers. If there is a procedure to deal with them why is there a problem?

Mr Nichols: It varies in different places. In some cases they may be made less well aware of the rules than in other departments. The rules require departments to tell their staff regularly about the existence of the rules and remind them of the need, if they get job offers from outside, to report those offices. The HR function has changed quite radically in departments over the past several years and sometimes these matters can fall between stools; in other departments they work perfectly well.

Q435 Mr Prentice: Lord Mayhew, you told us that the system worked pretty well.

Lord Mayhew of Twysden: I hope that it works pretty well, and others have said that it does.

Q436 Mr Prentice: You have the Ivor Caplin file before you to show that everything was tickety-boo and there were no problems, and in the case of David Blunkett it was a misunderstanding. Do you have any files where former ministers may have acted unwisely and improperly?

Lord Mayhew of Twysden: I have not said that it was tickety-boo. I would be very glad to say that it was always tickety-boo. In the case of Ivor Caplin, as soon as we learned that an appointment had been accepted we wrote to him and drew attention to the system. To that extent, once we were engaged the system worked in the way I described and can fill out.

Q437 Mr Prentice: You told us earlier that the Ministry of Defence provides the main object of the work. I would like you to rank the other departments. I was reflecting on the energy review, for example. There must be a lot of people in the Department of Trade and Industry working on nuclear policy. The information that they have on how policy is being formulated would be worth its weight in gold to the private sector.

Lord Mayhew of Twysden: I do not have a league table, but the MoD is right in the lead in the number of people who wish to move into defence industry jobs on retirement, for entirely proper and understandable reasons. The defence industries today in this country are amalgamated to a very great extent and it is entirely natural that people who have had in many cases very technical jobs in the MoD should want to be able to use their acquired skills within, let us say, British Aerospace Plc. The MoD is an enormous employer and that is why it is in the lead in this area.

Q438 Mr Prentice: I understand that. I do not ask for a league table but whether there are other departments that interest you. I gave you the specific example of the energy review where billions of pounds could be committed by the nuclear industry. Are there any issues there?

Mr Nichols: I think the fairest answer is that in a sense there will be either bigger or smaller-scale energy review-type situations in lots of different departments. Wherever one goes one will find people who are responsible, for example, at a particular time for policies relating to energy and a whole host of things where the knowledge of those involved in the direction of those policies, which may have not been made public, will be of immense value to people outside who would readily be able to use that knowledge for commercial benefit. We pick these up as they come. The department says that it has a bunch of people who are moving out and the policy has moved on but they still know a lot of things which will be of value. That is when we start to look at what we can do in those situations.

Q439 Mr Prentice: But the Chairman asked Lord Mayhew right at the beginning about Lord Maclennan and he led us to believe that he did not want a system that was unduly rigid. We have a small memorandum that Lord Maclennan circulated to the Committee. Is he just being naïve and does not understand how the real world operates? Is he being a bit prissy? Is his suggestion about having categories where transfers would be unacceptable unworldly because it does not take into account how the real world operates?

Lord Mayhew of Twysden: I would not dream of criticising Lord Maclennan in those terms. He is an enormously valuable member of the committee. He will not mind my saying that from time to time he has tended to take a harder line in terms of being tougher on the interests of the applicant than most of his colleagues and that is reflected in the memorandum he put in at the same time as the committee's.

Q440 Mr Prentice: I suppose that I cannot ask you what was in his mind, but what led him to come to conclusions that are so diametrically opposed to yours? He makes it very clear that there should not be traffic from the civil service into certain categories of industry. A lot of people may have benefited from grants, planning requirements, taxation allowances and so on. He lists them.

Lord Mayhew of Twysden: It is a very good illustration of the spectrum of solutions that is available to people who are engaged in trying to balance various conflicting and entirely proper interests. Lord Maclennan shows himself to be towards the far end in terms of toughness, and you alluded to the solutions that he proposes. For my part, I believe that on the whole that is a mistake because it is too rigid and does not give enough weight to the assertion at the very beginning of these rules that it is in the public interest that people who have acquired skills and know-how in their public service should be able to bring those to bear when they leave the public service. There is a spectrum and I believe that Lord Maclennan is at the austere end of it, if I may put it like that.

Q441 Mr Liddell-Grainger: There has been a lot of speculation and talk about legislation for the Civil Service. Do you think that there should now be a Civil Service Act?

Lord Mayhew of Twysden: I think it would be very helpful. To rely on the prerogative as the basis for the employment of the Civil Service is really rather eccentric today and it would be very helpful if the position of the Civil Service was codified.

Q442 Mr Liddell-Grainger: Do you think that part of such an Act should be concerned specifically with this very issue?

Lord Mayhew of Twysden: I shall be corrected by Mr Nichols if I am wrong, but I believe that it is already part of the contract of employment, using that expression loosely, that the rules should be complied with.

Q443 Mr Liddell-Grainger: As you said, Gus O'Donnell said "should" is "will". If it is an Act it is "will"?

Lord Mayhew of Twysden: Yes.

Q444 Mr Liddell-Grainger: Do you think that it should be written into an Act that the operative word is "will"?

Lord Mayhew of Twysden: The "should" bit comes into the guidelines for ministers. Certainly, no parliamentary draftsman worth his salt would rely on "should" when he means "must".

Q445 Mr Liddell-Grainger: We are seeing an enormous explosion in PFIs and off-balance sheet funding of Capita and many others. There is more and more reason for people to go into this. It is becoming less and less easy to find out about it, challenge it and so on. Your idea that it should be left to the press - you fire the gun and the press will direct the bullet - will become harder and harder, will it not?

Lord Mayhew of Twysden: I think the truthful answer is that I do not know. I do not quite see why it should because I do not see any dulling of the media's appetite to detect breaches of this character.

Q446 Mr Liddell-Grainger: In the old days it was very much a matter of the Civil Service running everything but now there is a blurring of the line. One has Capita companies running parts of local government and the health service and there are massive computer projects, which this Committee has looked at, within the Cabinet Office. We cannot get to the bottom of it. We are not entirely sure why the Cabinet Office should have over £100 million worth of computer assets when only 1,600 people working there. There is something there but we do not know what it is. Is not the problem that the lines that used to apply when you were a Member of Parliament were much more rigid? Are they now less clear because of what is happening and because of the nature of the beast?

Lord Mayhew of Twysden: I do not know whether that is so. We have not had difficulty in applying to people who wish to go out into the private sector the rules which are apt for them. If there is a perception that it is inhibiting a process which government considers to be a proper and desirable one then the rules will have to be changed. As we say in the memorandum, our judgment is that the rules cannot be bent to accommodate that change. I offered a gloss on that remark in the memorandum by saying it is very difficult to see how rules which are changed with that purpose and objective can at the same time be sufficient to sustain public confidence in the integrity of the system and that the only practical way in our view - we have not examined it with any great care - seems to be by way of specific exemptions. If the Government perceives that a damaging inhibition exists because of the toughness of the present rules then it must change the rules. We as an advisory committee cannot be expected to do that for the Government.

Q447 Mr Liddell-Grainger: I totally agree with that. I come back to the question of a Civil Service Act. Surely, if there have to be changes do they need to be enshrined in legislation? As you said, it is not quite tickety-boo; it is getting "tickety" but it is not "boo"?

Lord Mayhew of Twysden: I think it would be much tidier if that was so, but I do not think that without such an Act it would be impossible to make it clear what the obligations of officials are.

Q448 Chairman: You have been very relaxed about ministers. You say in your memorandum that "in their case there is no obligation to act on that advice. As the matter now stands, it is possible for them to go through the motions of consultation without regard to the apparent spirit or intention of the code. The committee does not view the disparity in its present form as satisfactory." That is pretty robust, is it not?

Lord Mayhew of Twysden: Yes, I hope so.

Q449 Chairman: You have been quite genteel today.

Lord Mayhew of Twysden: It is the influence of these august surroundings!

Q450 Chairman: Can you give us a robust ending?

Lord Mayhew of Twysden: I do not think it is satisfactory that the committee should concern itself in the detail and assiduity that it does with applications by ministers only to find that it might as well have saved its breath because they do not have to abide by the committee's recommendation or advice. There may be historical reasons why it was introduced in the terms it was some 10 years ago on the recommendation of Nolan, but I think that it represents a gap.

Q451 Chairman: Do you have a little file of people who just went through the motions?

Lord Mayhew of Twysden: I do not have a file of people who go through the motions, but they can go through the motions or say "not coming". Evidently, Mr Caplin is an illustration of that.

Q452 Chairman: I would not mind having a look at your files. We are very grateful to you for coming to talk to us about them. It has helped us form our view of this area and where you sit in the wider regulatory framework.

Lord Mayhew of Twysden: I am slightly sorry not to have been asked, as your last witnesses were, about ministerial responsibility about resigning. I am a minister who did tender a resignation.

Chairman: Tell us.

Lord Mayhew of Twysden: It was not for misconduct on my part but for a monumental but very uncharacteristic piece of carelessness at official level, for which I took the view I was responsible. I tendered my resignation and after an uncomfortably long pause the Prime Minister said, "I don't think that would help."

Chairman: Thank you also for telling us about that.