Appendix
1. We applaud the Prime Minister's decision
to revise the Ministerial Code and to focus it on questions of
general principle rather than detailed guidance on procedure.
Procedural guidance is necessary, but the Ministerial Code is
not the place for it. A principle-based Code should be simpler
for ministers to use and simpler for Parliament and the public
to judge them by. (Paragraph 9)
The Government welcomes the Committee's support for
the new principles-based Ministerial Code which was substantially
revised in July 2007, taking account of recommendations made by
the Committee and the Committee on Standards in Public Life. The
Government shares the Committee's view that the tightening of
the new Code leaves a document which is more clearly based around
the principles of ministerial conduct, making it simpler for Ministers,
Parliament and the public to be clear about the standards of conduct
expected of Ministers.
2. We welcome the Prime Minister's decision
to publish a list of ministerial interests. The list will be an
important safeguard against impropriety. (Paragraph 10)
The Government welcomes the Committee's support for
the Prime Minister's decision to publish a list of Ministers'
Interests. As the foreword to the Ministerial Code makes clear,
the acceptance of ministerial office brings with it a serious
responsibility and duty to the nation. The List will provide further
reassurance to Parliament and the public that no conflict exists
between a Minister's public duties and their private interests,
financial or otherwise. It will also provide greater transparency
in relation to Ministers' interests which has not existed previously.
The first ever such List will be published after the summer recess.
3. We do not believe the public is greatly
exercised by how ministers obtain advice on avoiding conflicts
of interest. The primary concern around the Code has never been
its content. Nor has it been a lack of advice for ministers on
compliance. The major issue remains what happens when it appears
that the Code has been breached. (Paragraph 11)
The Government notes the Committee's conclusion.
It believes that the appointment of Sir Philip Mawer as the independent
adviser on Ministers' interests provides an independent validation
to Ministers and their Permanent Secretaries on the handling of
Ministers' interests, and will provide reassurance to Parliament
and the public that appropriate advice and action has been taken
to avoid any conflict of interest between a Minister's official
duties and his or her private interests.
4. We welcome the assurance that the Independent
Adviser is no longer to be limited to investigating only breaches
of certain parts of the Ministerial Code. (Paragraph 13)
The Government welcomes the Committee's conclusion
that it is a positive development that there is now no doubt that
the independent adviser can investigate alleged breaches of any
part of the Code, and not just those sections regarding Ministers'
private interests. The Government believes this is an important
development which will help to strengthen and promote public confidence
in the Ministerial Code and its application.
5. It is right that the Independent Adviser
should investigate the facts of allegations, and not determine
the penalty if ministers are found to have breached the Code.
Prime Ministers must ultimately be accountable for who serves
in their governments. (Paragraph 14)
The Government agrees with the Committee that it
is for the independent adviser to investigate the facts of allegations,
but it is for the Prime Minister, as the ultimate judge of the
standards of behaviour expected of a Minister, to determine the
appropriate consequence of a breach of those standards. The Government
shares the Committee's view that it would not be appropriate to
our Constitution for an independent adviser to dismiss a Minister
or arguably even to recommend such a course of action. Ministers
can only remain in office for so long as they retain the confidence
of the Prime Minister, and ultimately it must be for the Prime
Minister to be accountable for the conduct of his administration.
This point is reinforced in the Ministerial Code.
6. We welcome Sir Philip Mawer's understanding
that the facts uncovered in his investigations will be made public.
Like him, we believe that public confidence requires it. However,
he acknowledges that the Prime Minister retains a discretion,
and it is easily foreseeable that some investigations might uncover
information which is potentially embarrassing or even damaging
to the government, and which therefore the Prime Minister might
not want to publish. For the avoidance of doubt, therefore, we
invite the Prime Minister to state unambiguously that he will
make public any relevant findings of fact. (Paragraph 16)
The Government believes that it is important for
the Prime Minister to be able to make decisions after a balanced
consideration of the facts of an individual case. It must therefore
be for the Prime Minister to account for his decision, including
making public any findings of relevant fact.
7. It is hard to see how the Independent Adviser
can command public confidence if the Prime Minister can decide
that prima facie breaches of the Code will not be investigated.
(Paragraph 17)
The Government notes this conclusion but continues
to believe that if there is an allegation about a breach of the
Code, and the Prime Minister, having consulted the Cabinet Secretary,
feels that it warrants further investigation, the matter will
be referred to the independent adviser. In deciding whether or
not to refer a matter to the independent adviser for investigation,
the Prime Minister will wish to take into account a range of factors,
including whether the facts are already known. In line with the
Government's response to the Committee's recommendation 5, the
Government believes it must ultimately be for the Prime Minister
to account to Parliament for his decisions and actions in relation
to the appointment of his Ministers.
8. The Government has confirmed that Sir John
Bourn was not asked to conduct any investigations while he was
Independent Adviser. Put simply, there is no point in having an
investigator in post if he is not given discretion to investigate
very public allegations that the Code has been breached. (Paragraph
17)
9. We welcome Sir Philip Mawer's assurance
that he would make his views clear to the Prime Minister if he
felt that a particular allegation required investigation. It is
encouraging that he has already had a number of meetings with
the Prime Minister, and that his views will be heard. Nonetheless,
the decision to instigate an investigation still lies with the
Prime Minister. The Prime Minister is clearly not an impartial
figure when it comes to deciding whether or not to instigate an
investigation. If the regulatory system is to have credibility,
that decision must be taken out of political hands. (Paragraph
20)
The Government notes these conclusions. For the reasons
set out in response to recommendation 7, it believes that it must
be for the Prime Minister to decide whether to refer a matter
to the independent adviser for investigation, and to account for
his decision to Parliament and the public.
10. The post of Independent Adviser should
become a permanent part of the regulatory framework for conduct
in public life. If the post is to become permanent, however, it
is important not just that the postholder's personal independence
is unimpeachable, but also that there are institutional safeguards
to guarantee that independence of action. (Paragraph 21)
The Government welcomes the Committee's support for
the appointment of Sir Philip Mawer as the Prime Minister's independent
adviser on Ministers' interests. It also welcomes the Committee's
acknowledgement that the post has developed beyond the role which
was undertaken by Sir Philip's predecessor. The Government shares
the Committee's view that the post of independent adviser should
become a permanent part of the regulatory framework for conduct
in public life. It also believes there are safeguards in place
to ensure independence of action. The fact that the role of the
independent adviser is set out in the Ministerial Code provides
reassurance and confirmation of the Government's position.
11. Effective regulators ought to be at a
healthy distance from those they regulate. While the Independent
Adviser is accommodated in the Cabinet Office, staffed by the
Cabinet Office and funded by the Cabinet Office, it is hard to
see how that distance will be maintained. (Paragraph 27)
In carrying out his role, the independent adviser
works closely with the Propriety and Ethics team located in the
Cabinet Office. The reason for this is that it is this team which
advises Ministers and permanent secretaries on the handling of
propriety and ethics issues, including issues relating to the
Ministerial Code. It therefore makes sense for their knowledge
and expertise to be shared rather than to establish a separate
team which will only serve to duplicate activity, adding unnecessary
cost to the taxpayer. Both the Government and the independent
adviser believe the current arrangements work well. However, as
with all working practices, the arrangements will be kept under
review by both the independent adviser and the Government.
12. Having appointed Sir John Bourn to the
job as recently as 2006, we do not understand how the Government
can argue it is not appropriate for a serving Officer of Parliament
to be the Independent Adviser on Ministerial Interests. (Paragraph
28)
The Government remains of the view that it would
not be appropriate for a serving Officer of the House to investigate
alleged breaches of the Ministerial Code, as to do so could blur
the lines of accountability. Sir John's appointment was a personal
appointment by the former Prime Minister and was completely separate
from his role as Comptroller and Auditor General.
13. The Independent Adviser should be appointed,
if not by Parliament, then at least through a transparent open
competition, regulated by the Commissioner for Public Appointments.
This would still allow the Prime Minister the final say, but only
after a rigorous, safeguarded process. The appointment should
then be made on a fixed term, and it should be subject to a pre-appointment
hearing. (Paragraph 29)
The Government notes the recommendation that the
independent adviser should be appointed through an open competition.
Since the role involves the provision of advice to the Prime Minister
on issues of a highly sensitive nature, it is essential that he
or she has trust and confidence in the post-holder. Moreover,
the main part of the job is advising Ministers and their permanent
secretaries on the handling of Ministers' interests. This involves
handling often sensitive information and this part of the role
therefore also requires a relationship of confidence between the
adviser and Ministers and Permanent Secretaries. These requirements
reinforce the government's belief that the post-holder should
be a personal appointment by the Prime Minister, for which he
or she is accountable.
The Government has also considered carefully the
proposal that the appointment should be subject to a pre-appointment
hearing. Because of the nature of the role, the Government believes
the post is more suitable for post-appointment rather than pre-appointment
scrutiny. However, in the light of comments made by both the Committee
and the Liaison Committee, this and other aspects of the post
will be kept under review in the light of experience.
14. We welcome the fact that an annual report
will be published, but more active pursuit of publicity will be
needed. At the very least, as Sir Philip acknowledged, his post
should have a dedicated website. (Paragraph 30)
The Government accepts the Committee's recommendation
that the independent adviser should have a dedicated website.
A webpage has now been set up for the Independent Adviser, which
can be accessed from the Cabinet Office website. Information on
the nature of the independent adviser's role and contact details
can be found on his webpage.
15. We are also attracted to the notion that
dismissal should not be the only punishment available for a breach
of the Code. (Paragraph 32)
16. Sir Philip Mawer told us that he supported
some "equivalent of a yellow card" for ministers whose
offence did not warrant their removal from office. It is, as Sir
Philip acknowledged, difficult to imagine what that "yellow
card" might be, but this does not mean it is not an idea
worth pursuing. Expecting ministers to come to the House and make
a formal statement of apology is one option; simple naming and
shaming is another. We recommend that the Government considers
whether there are any suitable penalties for breaching the Ministerial
Code that fall short of dismissal. Whatever penalty is preferred,
however, it will only be credible if the investigation which preceded
it is also credible. (Paragraph 33)
The Government agrees with the notion that dismissal
should not be the only recourse available for a breach of the
Code. It is for the Prime Minister, as the ultimate judge of the
standards of behaviour expected of a Minister, to determine the
appropriate consequence of a breach of those standards. However,
the Government notes the Committee's proposals for suitable penalties,
which will be given further consideration in the light of any
future allegation of a breach of the Ministerial Code.
17. This report sets out the steps needed
to give credibility to the investigation of alleged breaches of
the Ministerial Code. By appointing an investigator, the Prime
Minister has shown that he understands the need for fair, impartial
investigation. It is a significant step towards fair, defined
accountability for ministerial conduct. The potential benefits
of such a post, however, will not be felt unless the investigator
is widely seen to be entirely independent and impartial. Current
arrangements do not provide for that independence. Until the changes
we outline have taken place, it is inappropriate to refer to the
new investigator as an Independent Adviser. We therefore urge
the Prime Minister to adopt the Committee's recommendations for
change, and in so doing to build upon the significant improvements
already made to the machinery for investigating the conduct of
ministers. (Paragraph 34)
The Government welcomes the Committee's acknowledgement
that by appointing an investigator, the Prime Minister has shown
that he understands the need for fair, impartial investigation,
and that it is a significant step towards fair, defined accountability
for ministerial conduct. The Government notes the Committee's
recommendations to go further in relation to independent investigation.
However, it believes that the action it has set out in response
to the Committee's report demonstrates its commitment to ensuring
that Ministers uphold the highest standards of propriety. It also
believes that the open and transparent processes which it has
put in place to underpin and reinforce the role of the independent
adviser demonstrates its commitment to the role.
August 2008
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