Special advisers in the thick of it - Public Administration Committee Contents


2 The role of special advisers

9.  The activities and responsibilities of special advisers are currently set out in seven separate documents, which collectively provide a framework within which special advisers may operate.

10.  The Constitutional Reform and Governance Act 2010 gave a statutory basis to the Civil Service Code and the Code of Conduct for Special Advisers, both of which form part of special advisers' terms and conditions of employment. As temporary civil servants, special advisers are bound by the Civil Service Code, but are exempted from those provisions relating to objectivity and political impartiality. They are also exempt from the general requirement that civil servants should be appointed on merit.[9]

11.  The Code of Conduct for Special Advisers describes the types of tasks that a special adviser may undertake, as well as containing provisions on relations with the permanent civil service, the media and the Government party, and involvement in national politics. The Constitutional Reform and Governance (CRAG) Act requires that the Code contain explicit provisions that a special adviser may not:

·  authorise the expenditure of public funds;

·  exercise any power in relation to the management of any part of the Civil Service of the State;

·  otherwise exercise any power conferred by or under the CRAG or any other Act or any power under Her Majesty's prerogative.[10]

12.  The Ministerial Code provides that "all special advisers must uphold their responsibility to the Government as a whole, not just their appointing Minister" and that "the responsibility for the management and conduct of special advisers, including discipline, rests with the Minister who made the appointment".[11]

13.  Section three of the Ministerial Code provides that all special advisers must be appointed under the terms of the Model Contract for Special Advisers (most recently revised in June 2010). As well as setting out standard terms and conditions of employment, such as pay and leave arrangements, the Model Contract directs the attention of newly-appointed special advisers to certain provisions of the "staff handbook" for their department, particularly in relation to disciplinary procedures, confidentiality and "the constitutional position".[12] (Provisions in staff handbooks are themselves based on the common Civil Service Management Code, adapted as required to the particular structure and circumstances of each department.[13])

14.  In April 2012, following the resignation of Adam Smith, a special adviser at the Department for Culture, Media and Sport, over his conduct in relation to NewsCorp's bid to take over BSkyB, supplementary guidance was issued by the Cabinet Secretary and Head of the Civil Service on the "principles governing the handling of quasi-judicial decisions by ministers". We return to this issue later in the Report.

Tasks and responsibilities

15.  Permanent civil servants are required to act at all times with objectivity, honesty, integrity and impartiality. One of the defining characteristics of special advisers is that, unlike permanent officials, they are not bound by a requirement to act impartially, enabling them to take on tasks that are, to a degree, political. The Code of Conduct for Special Advisers opens with an explicit statement that:

The employment of special advisers adds a political dimension to the advice and assistance available to ministers while reinforcing the political impartiality of the permanent Civil Service by distinguishing the source of political advice and support.[14]

It continues:

Special advisers are employed to help ministers on matters where the work of Government and the work of the Government Party overlap and where it would be inappropriate for permanent civil servants to become involved. […] They are an additional resource for the Minister providing assistance from a standpoint that is more politically committed and politically aware than would be available to a Minister from the permanent Civil Service.[15]

16.  Witnesses suggested that, in practice, this freedom to act in a political and partisan manner could enable special advisers to "unplug political blockages in other departments, or at the centre of Whitehall", or to help civil servants present their advice more effectively to the Minister.[16] Professor Francesca Gains of the University of Manchester and Professor Gerry Stoker of the University of Southampton cited interviews they had conducted with former special advisers, who had explained how:

in being freed from the requirement to be impartial […], in their policy advice SpAds can "keep the politics in policy". Another pointed out "there are certain things you don't want your civil servants doing and someone needs to do it…the party political thing specifically.[17]

17.  Section three of the Code of Conduct for Special Advisers sets out a more specific list of activities in which special advisers may engage:

The sorts of work a special adviser may do if their Minister wants it are:

i. reviewing papers going to the Minister, drawing attention to any aspect which they think has party political implications, and ensuring that sensitive political points are handled properly. They may give assistance on any aspect of departmental business, and give advice to their Minister when the latter is taking part in party political activities;

ii. "devilling" for the Minister, and checking facts and research findings from a party political viewpoint;

iii. preparing speculative policy papers which can generate long-term policy thinking within the Department, including policies which reflect the political viewpoint of the Minister's Party;

iv. contributing to policy planning within the Department, including ideas which extend the existing range of options available to the Minister with a political viewpoint in mind;

v. liaising with the Party, to ensure that the Department's own policy reviews and analysis take full advantage of ideas from the Party, and encouraging presentational activities by the Party which contribute to the Government's and Department's objectives;

vi. helping to brief Party MPs and officials on issues of Government policy;

vii. liaising with outside interest groups including groups with a political allegiance to assist the Minister's access to their contribution;

viii. speechwriting and related research, including adding party political content to material prepared by permanent civil servants;

ix. representing the views of their Minister to the media including a Party viewpoint, where they have been authorised by the Minister to do so;

x. providing expert advice as a specialist in a particular field;

xi. attending Party functions (although they may not speak publicly at the Party Conference) and maintaining contact with Party members;

xii. taking part in policy reviews organised by the Party, or officially in conjunction with it, for the purpose of ensuring that those undertaking the review are fully aware of the Government's views and their Minister's thinking and policy.[18]

18.  Professors Gains and Stoker drew attention to special advisers' ability to extend the reach and capacity of ministers, particularly in relation to engagement with stakeholders.[19] In oral evidence to the Leveson Inquiry into the culture, practice and ethics of the press, Adam Smith indicated that, in the absence of alternative instructions, "as with the projects with which [he] had previously been involved, as Mr Hunt's special adviser" this (liaising with interested parties) was the role that he had assumed in relation to NewsCorp's bid to take over BSkyB.[20]

19.  In oral evidence, the Minister for the Cabinet Office, the Rt Hon Francis Maude MP, summed up the particular role of special advisers:

Sometimes people talk about special advisers as if all they do is politics and it is a way of getting party-political people inside Government. It is important that ministers should have people close to them in the Department who are not politically restricted in the way that civil servants are. But certainly, in my experience, what you want special advisers to be doing is by no means limited to things that are party political. You want special advisers who totally understand what you are trying to achieve and what the Government are trying to achieve and who are explicitly wedded to the Government's agenda, but you want people who are able to liaise with the party. Some do that more than others, but the main thing you want is advice on how to develop your policy, so providing a challenge but also in helping to get things done. It is by no means limited to being political.[21]

20.  The Institute for Government noted in written evidence that:

Since they [special advisers] are paid by the taxpayer, the justification for their existence must be that they help Government function more effectively and in particular help ministers perform their roles.[22]

21.  We agree with the Institute for Government that the use of special advisers should be justified only on the basis that they improve the effectiveness of Government, and we share our predecessor Committee's view that "special advisers are now an established part of Government".[23]

22.  We consider that special advisers have legitimate and valuable functions, including protecting the impartiality of the Civil Service, and providing an additional means to ensure that the Government's policy objectives are delivered. For special advisers to be effective, rather than potentially disruptive, ministers, special advisers and officials need to foster a high level of trust in their working relationships. Moreover, we are clear that a special adviser to a Minister must be just that: an adviser, and not an interposed layer of authority between the Minister and his or her civil servants.

QUASI-JUDICIAL PROCESSES

23.  On 25 April 2012, Adam Smith, a special adviser to the Secretary of State for Culture, Olympics, Media and Sport, resigned after it was revealed in evidence to the Leveson Inquiry that he had exchanged hundreds of text messages and emails with Frdric Michel, the Senior Vice-President of Government Affairs and Public Policy in Europe for NewsCorp, while acting as a "point of contact" with the company on behalf of his Minister, who was tasked with deciding whether or not NewsCorp should be allowed to take over the broadcasting company BSkyB. Under the Enterprise Act 2002, in taking that decision, the Secretary of State was acting in a quasi-judicial capacity. This demanded of him, and his department, the same standards of impartiality and fairness as would be expected of a judge during court proceedings.

24.  Mr Smith explained in his subsequent evidence to the Leveson inquiry that "as with the projects with which [he] had previously been involved, as Mr Hunt's special adviser, [he] assumed the role of managing the relationships with interested parties".[24] He said that he was "aware that Mr Hunt would be acting in a quasi-judicial capacity in relation to the bid, as is required by the Enterprise Act 2002, but it was not explained to [him] how this might impact upon [his] contact with News Corp or any other interested party" and that he had "received no specific instructions as to whether or not there were any limits to the type of information which [he] could provide [to Mr Michel]".[25]

25.  In his resignation statement, Mr Smith said:

While it was part of my role to keep News Corporation informed throughout the BSkyB bid process, the content and extent of my contact was done without authorisation from the Secretary of State.

I do not recognise all of what Fred Michel said, but nonetheless I appreciate that my activities at times went too far and have, taken together, created the perception that News Corporation had too close a relationship with the department, contrary to the clear requirements set out by Jeremy Hunt and the permanent secretary that this needed to be a fair and scrupulous process.[26]

26.  Jonathan Stephens, the Permanent Secretary at the Department for Culture, Media and Sport, indicated in evidence to the Leveson inquiry that he was "not aware of any guidance which suggests that it is inappropriate for special advisers to be involved in decisions of this sort", and that he believed that the arrangements in place for contact between the department and NewsCorp were "expected" and "normal".[27]

27.  On the same day as Mr Smith's resignation, the Cabinet Secretary, Sir Jeremy Heywood, and the Head of the Civil Service, Sir Bob Kerslake, wrote to all permanent secretaries to "clarify the rigorous procedures that departments should have in place for handling quasi-judicial decisions". Without ruling out the involvement of special advisers in quasi-judicial processes, the letter stressed that "any meetings or communications with interested parties should be carefully controlled and properly recorded" and that "there should be no private or favoured channels of communication with any one party". After making it clear that "quasi-judicial decisions are generally for the Minister alone with contacts normally made through official channels", in relation to special advisers in particular, the letter stated that:

Decisions of this sort should not be made by reference to political or presentational considerations. This applies regardless of the source of the advice, and that of special advisers is treated in the same way as advice from an official giving internal advice to ministers. If a special adviser is approached by an interested party, he/she should refer the matter to the appropriate official. A special adviser so approached must not give the impression that any particular advice will be determinative when decisions are taken.[28]

The letter was subsequently published and placed in the Library of the House of Commons on 23 May 2012, in response to a parliamentary question.[29]

28.  Following the revelation of Mr Smith's role in the BSkyB bid, a number of people expressed surprise at the extent to which a special adviser had been involved in a quasi-judicial process. In a debate on the Ministerial Code on 13 June 2012, John Whittingdale MP, Chair of the Culture, Media and Sport Select Committee, said:

I, too, was once a special adviser in the Department of Trade and Industry at a time of Conservative government in the late '80s. I was a political adviser and I did not participate in discussions about competition policy as it was felt that political advisers were there to provide political input and it could not be clear what political input would be legitimate in a competition case.[30]

29.  In oral evidence, Michael Jacobs said that he:

personally [could not] imagine having that kind of contact with only one side in a case that was quasi?judicial. That sounds extraordinary to me, and I find the whole texting thing rather extraordinary, because there is an intimacy in texting that is not present in formal emails through your email system, telephone calls and meetings. No, I cannot imagine doing it. I cannot imagine that happening. I found it shocking.[31]

30.  Harriet Harman also said in written evidence to us that it was "inconceivable" to her "that a special adviser would be allowed anywhere near a quasi-judicial decision—even in meetings where they were discussed or seeing the relevant papers, let alone being a point of contact for external stakeholders. The whole point about the special adviser is that that they act politically and that is their difference from civil servants".[32]

31.  It is axiomatic that ministers or officials acting in a quasi-judicial capacity are expected to act impartially, apolitically, and on appropriate advice. There can be no need in such circumstances for advice from, or for the involvement of, special advisers, whose impartiality cannot be assured. The Government should clarify its recent guidance on quasi-judicial decisions to state explicitly that special advisers should not, under any circumstances, be directly involved in such processes. This prohibition should be also reinforced by an amendment to paragraph 7 of the Code of Conduct for Special Advisers, listing involvement in quasi-judicial decisions and processes as a type of work which a special adviser may not undertake, even at the request of his or her Minister.

Central strategic capability

32.  We heard evidence that there is a distinct role for special advisers at the centre of Government, "to join up Government and to ensure that the Government's policy is coherent and is being carried out at departmental level".[33] Michael Jacobs explained that:

As a special adviser in the Treasury and at 10 Downing St my role was somewhat different from those of advisers in the majority of departments. At the Treasury I was responsible not just for Treasury policy in my fields […] but for the Chancellor's and Treasury's strong interest in other departments' policies. At No 10 I had almost no direct policy responsibility, but represented the Prime Minister's active interest in the policies of specific departments in my field […], and No 10's role in coordinating policy between departments.[34]

33.  In contrast, Duncan Brack, who was a special adviser to the former Energy and Climate Change Secretary, Chris Huhne MP, until February 2012, noted in an article for Total Politics that, under the Coalition "the Prime Minister's and Deputy Prime Minister's special advisers spend a good deal of their time managing relations between the coalition partners", and that "the kind of 'super-SpAds' that evolved under the Labour government, usually based in Downing Street or the Treasury, were entirely absent—from the point of view of environmental policy, which requires cross-government action, that's a drawback".[35]

34.  When we took evidence recently from the Cabinet Secretary, Sir Jeremy Heywood, on the work of the Cabinet Office, he confirmed that the Policy Unit at Number 10 had been staffed by civil servants, as opposed to special advisers, since the Coalition Government was established. Sir Jeremy said:

If you take the view that you will have one [Policy Unit for both Coalition partners], it has to be able to provide advice to both sides of the Coalition, as it were. It is quite difficult to see how that could be staffed with special advisers. The Prime Minister is not going to take political advice on immigration from a Lib Dem special adviser. The Deputy Prime Minister is not going to take advice from a Conservative special adviser on the Big Society. You are driven to having a more technocratic group of people.[36]

The decision not to have special advisers in the Policy Unit has been widely criticised. Neil O'Brien, the Director of the think-tank Policy Exchange, cautioned that "without strong political link people for each department, Mr Cameron has no early warning radar, and things will go wrong for him—from disasters such as the Health Bill to the smaller rows that could have been avoided".[37]

35.  The Telegraph journalist Sue Cameron suggested that, rather than maintaining an entirely politically-neutral Number 10 Policy Unit, "if the Government is to start pulling itself together, it needs to import into Downing Street some savvy political operators who can spot public relations disasters coming down the track and who will warn ministers instead of blaming civil servants".[38]

36.  In our recent Report on Strategic thinking in Government, we concluded that "there remains a critical unfulfilled role at the centre of Government in co-ordinating and reconciling priorities, to ensure that long-term and short-term goals are coherent across departments".[39] We recommended that:

the Cabinet Office […] be given the means and influence to act as an effective headquarters of Government, on behalf of the Prime Minister and Cabinet as a whole[…]. We believe that this stronger centre of Government is the only way to promote coherent National Strategy which is supported across all departments.[40]

37.  In June 2012, the Government announced the creation of a new "Implementation Unit" within the Cabinet Office, although this is also understood to be staffed entirely by permanent civil servants, formerly from the Treasury. [41] We understand that special advisers from both coalition parties do, in fact, work alongside the Policy Unit, but we are concerned that this arms-length arrangement is insufficient.

38.  Special advisers should play an important role in helping to co-ordinate policy and delivery across Government, and they have a legitimate place (alongside permanent officials) in any central strategic or co-ordination unit. We find Sir Jeremy Heywood's reasons for insisting on staffing the Downing Street Policy Unit solely with civil servants unconvincing. In particular, special advisers are better placed than permanent civil servants to liaise with political parties and to ensure that the political concerns of ministers are appreciated in Downing Street. These are areas where it would often be undesirable or inappropriate for permanent officials to get involved.

Training and induction

39.  In its Report These Unfortunate Events: Lessons of Recent Events at the Former DTLR, which considered the actions and management of the special adviser Jo Moore on 11 September 2001, our predecessor Committee expressed concern at the "apparent lack of training for special advisers", saying:

It is worrying that people in such sensitive and sometimes prominent positions are not, as a matter of course, provided with training in the workings of the civil service, and of Government, and the standards expected of public servants.[42]

40.  More than ten years on from those "unfortunate events", evidence—such as the recent refusal by special advisers at the Department for Education to use their official departmental email accounts—suggests that little has changed, and that some special advisers still lack a strong sense of what is appropriate and expected behaviour in the public service.[43]

41.  In written evidence, the Cabinet Office told us that:

The induction process for new special advisers is shared by the appointing Minister, the relevant Permanent Secretary and the Propriety and Ethics Team in the Cabinet Office. This involves providing a detailed explanation of the issues covered in the Model Contract and the Code of Conduct, including the declaration of relevant interests and handling conflicts of interest, and the business appointments process. Special advisers have access to training in the same way as permanent civil servants to enable them to carry out their duties effectively. The Government has also introduced a voluntary appraisal system for special advisers to enable them to receive feedback on their performance.[44]

42.  This suggests that robust procedures are in place to ensure that special advisers are fully supported and briefed on their new status. Former special advisers from both the current and the previous administration told us that this support was minimal: although "propriety was observed", in that they had been given copies of the relevant codes of conduct on taking up their posts, "there was no sense of being properly prepared".[45] Michael Jacobs, a former special adviser to the Rt Hon Gordon Brown MP when he was Prime Minister, said that:

There is a Code, which you read very carefully and that gives you the outer boundaries of what you can do, […] but the substantive content of the role was really not explained. There was no job description.[46]

43.  James O'Shaughnessy, a Number 10 special adviser between 2010 and 2011, told us that there was:

no sense of, 'This is a special adviser; here is a programme of things to help you learn what the do's and don'ts of your job are'. There is no preparation really. It is not that surprising in a way, particularly after a general election, because you are thrown in. In our case, we had to put the coalition agreement and the programme for Government together within about five days. The idea that you might take a few hours off to do some training is pretty unlikely.[47]

44.  Zoe Gruhn, Director of Leadership Development at the Institute for Government, argued that:

What is really important is that, for anyone going into the role, whether in the world of politics or any organisation, you need some preparation. To simply throw them in at the deep end […] I consider that to be an exceptional waste of taxpayers' money, both in terms of effectiveness and efficiency.[48]

45.  The Government should ensure that all special advisers receive induction training within three months of taking up the role. Ministers who are appointing a special adviser for the first time should also be made properly aware by their officials of their special advisers', and their own, responsibilities and obligations. The induction training for special advisers should cover: the structure and work of the relevant department; the scope and meaning of the various Codes of Conduct to which special advisers are subject; the implications of their status as temporary civil servants (including the business appointment rules process, and their obligations under public records and access to information legislation); the nature of their accountability to ministers (and ministers' accountability to Parliament); the role of permanent secretaries in managing the work and reputation of the department as a whole; and where to seek advice and support on propriety issues. This would ensure that all special advisers and their ministers have a shared understanding of what is expected and appropriate behaviour for special advisers.


9   Constitutional Reform and Governance Act 2010, section 10 Back

10   Ibid., section 8 Back

11   Cabinet Office, Ministerial Code, May 2010, section 3 Back

12   Cabinet Office, Model Contract for Special Advisers, June 2010, section 15 Back

13   Constitutional Reform and Governance Act 2010, Part 1 Back

14   Cabinet Office, Code of Conduct for Special Advisers, June 2010,para 1 Back

15   Ibid.para 2 Back

16   Ev 32; Ev 37; Ev 40; Ev 42; Ev 47 Back

17   Ev 37 Back

18   Cabinet Office, Code of Conduct for Special Advisers, May 2010, section 3 Back

19   Ev 36  Back

20   Oral evidence from Adam Smith to the Leveson Inquiry, 25 May 2012, morning session (http://www.levesoninquiry.org.uk/evidence/) Back

21   Q 125 Back

22   Ev 51 Back

23   Public Administration Select Committee, Fourth Report of Session 2000-01, Special Advisers: Boon or Bane?, HC 293,para 81 Back

24   Witness Statement of Adam Smith to the Leveson Inquiry, page 14, para 45 (http://www.levesoninquiry.org.uk/evidence/) Back

25   Ibid.paras 46 and 52 Back

26   Ibid.para 266 Back

27   Witness Statement of Jonathan Stephens to the Leveson Inquiry, page 5, para 29; and Jonathan Stephens oral evidence to the Leveson Inquiry, 25 May 2012 afternoon session, page 29 lines 13 and 14 (http://www.levesoninquiry.org.uk/evidence/) Back

28   Dep 2012/0841 Back

29   HC Deb,23 May 2012, c700W Back

30   HC Deb,13 June 2012, c 354 Back

31   Q 34 Back

32   Ev 53  Back

33   Q 45 Back

34   Ev 39 Back

35   "Being a special adviser under the coalition", Total Politics, 8 May 2012, http://www.totalpolitics.com/articles Back

36   Oral evidence taken before the Public Administration Select Committee on 24 May 2012, HC (2012-2013) 133-i, Q 22 Back

37   "Cameron is in need of political firepower", Financial Times, 15April 2012 Back

38   "Bashing the bureaucrats can only backfire; Instead of blaming civil servants, the Coalition needs to employ some savvy political advisers", The Telegraph, 17 May 2012 Back

39   Public Administration Select Committee, Twenty-Fourth Report of Session 2010-12, Strategic thinking in Government: without National Strategy, can viable Government strategy emerge?para 81 Back

40   Ibid.para 74 Back

41   Cabinet Office, Civil Service Reform Plan, June 2012, page 17 Back

42   Public Administration Select Committee, Eighth Report of Session 2001-02, These Unfortunate Events: Lessons of Recent Events at the Former DTLR, HC 303,para 67  Back

43   Gove faces probe over private emails, Financial Times, 19 September 2011; Information Commissioner's Decision Notice FS50422276, 1 March 2012 Back

44   Ev 55  Back

45   Qq 2, 6, 7, 8 Back

46   Q 2 Back

47   Q 3 Back

48   Q 67 Back


 
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© Parliamentary copyright 2012
Prepared 14 October 2012