1 Introduction
Our inquiry
1. The Prime Minister's independent adviser on Ministers'
interests is responsible for advising Ministers on how to comply
with the Ministerial Code, and, at the request of the Prime Minister,
investigating alleged breaches of the Code.
2. This role has been held since 1 November 2011
by Sir Alex Allan. In January 2012 the Committee questioned Sir
Alex about the recruitment process he had undergone, and how he
planned to undertake his duties. We also took evidence from his
predecessor, Sir Philip Mawer, about his time in post, and how
the role might be strengthened.
3. We had previously taken evidence on the remit
of the independent adviser as part of our inquiry into the role
of the Head of the Civil Service in November and December 2011,
hearing from the new Head of the Civil Service, Sir Bob Kerslake;
the former Head of the Civil Service and Cabinet Secretary Lord
(Gus) O'Donnell; and five other former Heads of the Civil Service,
as well as from academics, journalists and commentators. This
evidence explored the decision not to ask the independent adviser
to investigate an alleged breach of the Ministerial Code in relation
to the access by Mr Adam Werritty to the former Secretary of State
for Defence, the Rt Hon Dr Liam Fox MP, and also touched on the
role of the Civil Service in the events leading up to Liam Fox's
resignation.
4. We have not taken evidence from Liam Fox, Adam
Werritty or the Permanent Secretary at the Ministry of Defence,
Ursula Brennan, nor have we sought to examine the specifics of
the case. We do not therefore seek to make any judgement about
the conduct of any individual in relation to this matter, nor
do we invite any such conclusions to be drawn from this Report.
We have examined whether there are lessons to be learnt for the
Civil Service and how any future alleged breaches of conduct by
Ministers should be addressed more effectively.
The history of the
post of independent adviser
5. The
need for a strong and independent examiner of alleged breaches
of the Ministerial Code was a recurring concern for PASC in the
1997-2001, 2001-2005 and 2005-2010 Parliaments. In February 2001,
before the post existed, PASC recommended a twin-track approach
to resolving this issue, with the
Parliamentary Commissioner for Standards advising ministers on
compliance with the Code and the Parliamentary Ombudsman conducting
independent investigations of alleged breaches of the Code.[1]
This recommendation was rejected by the Government in December
2001, which argued that:
there was no single approach to the investigation
of allegations of ministerial misconduct that would be helpful
in all cases, and that it would be undesirable to fetter the Prime
Minister's freedom to decide how individual cases should be handled.[2]
6. The
Committee on Standards in Public Life (CSPL) recommended the establishment
of a post of independent adviser on Ministers' interests in its
9th Report, published in 2003.[3]
The Government response to this Report accepted this recommendation,
"to provide Ministers and
Permanent Secretaries with an additional source of professional
advice as required on the handling of complex financial issues".[4]
7. The first independent adviser on Ministers' interests,
Sir John Bourn (previously Comptroller and Auditor General), was
appointed in March
2006. His terms of reference stated that the Prime Minister "may
ask the independent adviser to establish the facts in certain
cases concerning the Ministerial Code and to provide private advice
to him".[5]
8. The remit of the independent adviser was extended
by the then Prime Minister, the Rt Hon Gordon Brown MP, on taking
office in 2007. Sir Philip Mawer took up this role in January
2008. PASC reported again in May 2008, welcoming the extended
remit, but warning that it would be difficult to command public
confidence in the role of independent adviser "if the Prime
Minister can decide that prima facie breaches of the Code
will not be investigated".[6]
PASC therefore called for the independent adviser to have the
power to instigate his own investigations in its report Investigating
the Conduct of Ministers.[7]
This Report also recommended greater distance between the independent
adviser on Ministers' interests and the Cabinet Office, and called
for the holder to be appointed through a transparent open competition
and subject to a pre-appointment hearing by a parliamentary select
committee.[8] These conclusions
were not accepted in the Government's response.[9]
We did not therefore treat the evidence session with the new independent
adviser as a pre-appointment hearing. This evidence session also
took place three months after the appointee had taken up the post.
We return to this matter later in this report.
9. The role of independent adviser remains on a non-statutory
footing. As Sir Philip confirmed,
"insofar as [the role] is enshrined
anywhere, it is enshrined in aspects of the Ministerial Code".[10]
The Ministerial Code, the guide to propriety for Ministers, sets
out the requirement for Ministers to consult with the independent
adviser for advice on avoiding a conflict, or the perception of
a conflict, with the Code.[11]
Sir Philip stressed that the "life of the adviser focuses
very much on the advisory role", arguing that "the important
thing is to try and prevent problems arising in the first place,
rather than investigating them after they have surfaced".[12]
This was, he told us, no small job: he "lost count of the
number of times" on which he was involved in dialogue with
Ministers in departments and others about Ministers' interests."[13]
Having received returns from all Ministers, the independent adviser
then compiles the twice-yearly publication of the List of Ministerial
Interests (first published in March 2009, and most recently published
in December 2011).[14]
Sir Philip argued that this work—"the undramatic, nonpublicity-catching
work with officials in the Cabinet Office"—helps to
enable "circumstances to be avoided that might have been
stumbled into in the past".[15]
For this reason, he viewed this task as the high point of his
time in post: "it is undramatic, it is boring and it is routine,
but in my view it is a vital protection to the public".[16]
10. The Ministerial Code also enshrines the circumstances
in which the independent adviser is requested to investigate alleged
breaches of the Code:
It is not the role of the Cabinet
Secretary or other officials to enforce the Code. 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, he will refer the matter to the independent
adviser on Ministers' interests.[17]
11. In his time in post, Sir Philip was asked to
carry out only one investigation: an alleged breach of the Ministerial
Code by Shahid Malik MP, the then Justice Minister. Following
his investigation, Sir Philip found that no breach had occurred.[18]
This Report
12. This Report examines two distinct but related
sets of issues. The first draws lessons from the events surrounding
Liam Fox's resignation, both in regards to those who might have
raised concerns sooner, and to the extent to which the investigatory
processes available were followed. The second examines the process
by which Sir Alex Allan came to be appointed independent adviser
in 2011.
1 Public Administration Select Committee, Third Report
of Session 2000-01, The Ministerial Code: Improving
the rule book, HC 235, para 30 Back
2
Public Administration Select Committee, Second Report of Session
2001-02, The Ministerial Code: Improving the rule book: the
government response to the Committee's Third Report of Session
2000-01, HC 439, Appendix Back
3
Ninth Report of the Committee on Standards in Public Life ,Cm
5775, April 2003, www.public-standards.org.uk/Library Back
4
HC Deb, 11 September 2003, col 33WS Back
5
Public Administration Select Committee, Seventh Report of Session
2007-08, Investigating the conduct of ministers, HC 381,
para 3 Back
6
Ibid. para 17 Back
7
Ibid. Back
8
Ibid. paras 27-29 Back
9
Public Administration Select Committee, Ninth Special Report of
Session 2007-08, Investigating the conduct of ministers: Government
Response to the Committee's Seventh Report of Session 2007-08,
HC 1056 Back
10
Q 9 Back
11
Cabinet Office, Ministerial Code, May 2010. para
7.2 Back
12
Q 2, Q 3 Back
13
Q 2 Back
14
Q 3; Independent Adviser on Ministers' Interests Annual Report
2010-11, Cabinet Office website Back
15
Q 62 Back
16
Ibid. Back
17
Cabinet Office, Ministerial Code, May 2010, para 1.3 Back
18
Ministerial Code of Conduct Allegation against Mr Shahid Malik
MP: Report by the Independent Adviser, Cabinet Office, June
2009,Cabinet Office website Back
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