The Prime Minister's adviser on Ministers' interests: independent or not? - Public Administration Committee Contents

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, 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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© Parliamentary copyright 2012
Prepared 17 March 2012