4 Management and accountability
65. The Ministerial Code is explicit that:
The responsibility for the management and conduct
of special advisers, including discipline, rests with the Minister
who made the appointment. Individual ministers will be accountable
to the Prime Minister, Parliament and the public for their actions
and decisions in respect of their special advisers.
66. Special advisers are temporary civil servants,
who are personally appointed by ministers and are exempt from
the normal Civil Service requirements for impartiality and appointment
on merit. Under the terms of the Constitutional Reform and Governance
Act 2010, and the Model Contract for Special Advisers, their appointment
ceases when their Minister leaves office. All the special advisers
in post in July 2012 are members of the Senior Civil Service,
reflecting the degree of their access to ministers and the expectation
of their attendance on equal terms with senior permanent officials
at policy committees (as well as perhaps acknowledging the salaries
that they could have been earning in the private sector).
67. The Government has recently introduced a
new, voluntary, performance appraisal system for special advisers
"to enable them to receive feedback on their performance".
In evidence to the Leveson inquiry, which is looking into the
culture, practice and ethics of the press, Adam Smith, the former
special adviser to the Secretary of State for Culture, Media and
Sport, described the new appraisal process:
We were asked by Number 10 to provide five or six
individuals. One of them had to be our Secretary of State, another
one the Permanent Secretary, and then other than that we could
ask either other officials or Coalition colleagues or other special
advisers and they would then fill in a form that was then sent
in to Number 10.
68. The Minister told us that this move was prompted
by "a sense that this is good practice. There ought not to
be very many areas of activity now where there is not some form
of formal appraisal and performance management. [
it might not be incredibly formal, it is very right that there
should be some sort of process".
69. In evidence to the Leveson Inquiry, Jonathan
Stephens, Permanent Secretary at the Department of Culture, Media
and Sport said that "management of special advisers is for
ministers who appoint them. That's set out in both the Ministerial
Code and the Code of Conduct for Special Advisers". He confirmed
that "all aspects of discipline, training and supervision
are for ministers alone and not for the Civil Service".
70. In oral evidence to the Committee, Jeremy
Heywood, the Cabinet Secretary, said that "I would expect
permanent secretaries to be keeping tabs on whether or not [special
advisers'] conduct is satisfactory, and so on. Fundamentally,
however, they are working for their Minister. That is the relationship
Job descriptions: clarity and
71. Having heard about the lack of a proper induction
process, we were interested in whether special advisers' individual
roles were sufficiently clearly defined to enable their performance
to be appraised effectively.
72. The special advisers that we spoke to all
agreed that "the lack of job description is about how you
go about doing it, not what your aims are".
Michael Jacobs explained that his Minister had set him "broad
objectives" but that he was given "very considerable
freedom" to develop policy ideas and that there "was
constant checking back" to ensure that "what you are
doing is what the Minister wants you to do".
73. The Minister rejected the suggestion that
it might be possible to publish a job description for special
all ministers will want something different from
their special advisers and all special advisers will be able to
bring something different, and the combination will vary and it
will change over time, depending on the shifting pattern of priorities
that a Minister has, so a job description would be out of date
by the end of next week.
74. The Constitution Unit, however, proposed
to us that:
It would [
] help on appointment to have greater
clarity over the scope of the special adviser's authority and
duties. Secretaries of State set out the roles and responsibilities
of the junior ministers within their Department. It might be possible
for the roles of special advisers to be set out in the same announcement.
75. To aid transparency and accountability,
information about ministers' special advisers should appear on
departmental websites, including advisers' names and a description
of the policy areas in which they work and the types of tasks
they undertake, alongside the equivalent information about ministerial
portfolios and the responsibilities of members of the Departmental
Management Board. This would make it much easier to tell if a
special adviser were acting outside his or her agreed role, and
would help Parliament to hold ministers to account for the work
of their special advisers.
76. Pre-appointment hearings before a select
committee are currently used in relation to public appointments,
particularly for posts which exercise executive powers, such as
agency chief executives. In the United States, many political
appointees to similar roles must be confirmed in post by a Senate
Committee before they can take up the role.
77. Michael Jacobs was in favour of pre-appointment
hearings for special advisers as a means to help dispel the "vague
air of illegitimacy" surrounding them and to determine individuals'
"fitness for the role".
Andrew Blick of Democratic Audit agreed, noting that it might
be "particularly justified" to subject special advisers
to a form of pre-appointment hearing, "given that virtually
all regular procedures used for recruitment in the public sector
and elsewhere are bypassed for special advisers".
78. He explained further in oral evidence:
The value of pre-appointment hearings would be to
retain the value of the system where the Minister is actually
deciding who they get, and this person is working for the Minister,
which is what is needed in a special adviser.
At the same time, it would create a backstop so that,
somewhere in the mind of the Minister making the appointment,
he or she is aware that the person they want to appoint will have
to go to a session with a parliamentary committee, which will
not be able to block the appointment, as under the current system,
but will be able to express views on the suitability of the appointment.
That person they are proposing will have to discuss with the committee
things like their qualifications, how they came to be in the job
or how they might come to be in the job, assuming they were appointed,
and what kinds of things they might do in the job. Also, the Minister
perhaps should provide some kind of written submission, explaining
similarly what they expect that person to do.
That system could act as a deterrent to the appointment
of completely inappropriate people. [
] Also, it is some
kind of check against that person then going on, in future, to
do completely different things from what they said they were going
to do in the session with the committee.
79. Other witnesses, however, including the Government,
disagreed. The Cabinet Office argued:
The Government does not believe that [pre-appointment
hearings for special advisers] would be appropriate. Special advisers
are temporary civil servants appointed under an exception in Part
1 of the Constitutional Reform and Governance Act 2010 which means
that they are excepted from the requirement that their selection
is on merit on the basis of fair and open competition. Their appointments
are personal to the Minister who made the appointment, and end
when the appointing Minister leaves Government or moves to another
appointment. Given that special advisers need to take up their
roles immediately following a change of administration or Cabinet
reshuffle, there would be significant practical difficulties with
requiring pre-appointment scrutiny.
80. There are evident practical difficulties
with holding over eighty pre-appointment hearings in the weeks
following a General Election, not least that the select committees
needed to conduct the hearings are often not appointed for some
time after the start of a new Parliament. Moreover special advisers
are the private appointees of ministers, not public appointments,
and they are debarred by law from having control of public money,
managing other officials or exercising executive power. This is
in clear contrast to those political appointees who are subject
to Senate confirmation hearings in the United States.
81. The Institute for Government argued that
pre-appointment hearings for special advisers could "confuse
the lines of accountability" since "they are appointed
by ministers as personal advisers". 
Instead, the Institute proposed that committees could be notified
of new appointments, and that "post-appointment" hearings
could be held with both the Minister and the new adviser shortly
after appointment, to examine the "suitability of the special
adviser in terms of their career background, their skills capabilities,
what is required of them in the role, whether they are matched
against that, and how prepared they are in terms of their own
training and development".
82. It does not take much imagination
to perceive that some special advisers who have subsequently been
forced to resign would have been hard pressed to justify their
initial appointment in front of a select committee pre-appointment
hearing. However, we accept that the current model of pre-appointment
hearings would not be appropriate for special advisers. Not only
do special advisers lack the executive authority which defines
the roles which are usually subject to such hearings, we share
the Institute for Government's anxiety that such pre-appointment
hearings could undermine the nature of special advisers as personal
appointees of the Minister, distancing them from accountability
to the Minister and implying a degree of autonomy on the part
of the adviser, reflected in separate accountability to Parliament.
83. We do, however, believe that
greater transparency and scrutiny of appointments which are paid
from the public purse but are exempt from the requirement for
recruitment on merit is justified and appropriate.
We recommend that ministers
should therefore notify the relevant departmental select committee
whom they have appointed as a new special adviser, as soon as
they have decided on the appointment or, in a new Parliament,
as soon as the relevant select committee is established. They
should include in the notification to the committee a proposed
"job description", setting out the policy areas and
types of tasks the special adviser will be expected to carry out,
and the special adviser's relevant qualifications for appointment,
including why they believe him or her to be of suitable "standing
and experience". This would enable select committees better
to hold ministers to account for the quality and conduct of their
special advisers, and would deter ministers from promoting less
84. Special advisers can of course
be called to give oral evidence to select committees, but in the
case of their appointment this should not be necessary other than
in the most exceptional cases, such as where there are evident
and legitimate concerns about his or her character or record.
The political views or previous statements of a special adviser
are not a legitimate concern of a select committee.
The role of ministers
85. The Code of Conduct for Special Advisers
refers throughout to special advisers in relation to "their
Minister". The Ministerial Code also makes clear that ministers
are responsible for the "management and conduct" of
"their" special advisers, and are accountable to the
Prime Minister and Parliament for their special advisers' actions.
This reflects special advisers' status as personal appointees
of the Minister, and also as civil servants (who constitutionally
have no separate existence from the Minister under whose authority
86. Michael Jacobs explained that:
If civil servants, let alone people outside Government,
find that you are not actually representing the Minister's views,
you are in real trouble, so you always have to be absolutely sure
that what you are doing is what the Minister wants you to do.
87. This position was endorsed by Professors
Richards and Smith, and Mr Diamond, of the University of Sheffield,
who described the relationship between ministers and special advisers
as "symbiotic", noting that "it is a fundamental
element of the relationship that [special advisers] only operate
on the Minister's authority, allowing ministers to be fully responsible
for their action. Beyond this, they should have no independent
88. The Institute for Government agreed, noting
that "ministers do not need to micro-manage special advisers
but they should be held responsible and accountable for any unacceptable
behaviours and actions by them".
89. In his evidence, the Minister, however, drew
a distinction between a special adviser's personal responsibility
to be aware of, and act in accordance with, the provisions of
the various codes of conduct applying to him, and their Minister's
subsequent accountability for his special adviser's actions:
The point is that compliance with the Code is the
responsibility of the individual. They should know what is in
the Code, and should comply with it. If evidence comes to light
of a failure to comply with it, it is the responsibility of the
Minister to whom they are accountable, and who is in turn accountable
for the special adviser, to deal with it.
90. Ministers are responsible for
directing the work that their special advisers undertake, and
for deciding whether their special advisers are performing those
tasks satisfactorily. Only
the appointing Minister (or the Prime Minister) has the power
to dismiss a special adviser. The Ministerial Code is clear that
are "responsible"not simply "accountable"for
their special adviser's management and conduct. This responsibility
is the price of having a special adviser. Ministers who wish to
have special advisers must therefore exercise this responsibility
actively, ensuring that they are fully aware of what their advisers
are doing in their name. They should also ensure that their advisers
understand the role they are expected to undertake; the limits
on their discretion to act; and the standards of performance that
are expected of them.
91. We remain concerned, however,
that this responsibility has proved to be more theoretical than
actual. We cannot recall any minister ever resigning over the
conduct of a special adviser, despite some astonishing cases.
On the contrary, special advisers have on occasion seemed to be
made accountable themselves for the lack of supervision and guidance
they should be entitled to expect. To cynics, it might seem that
special advisers have sometimes been an insurance policy, available
to be cashed in to save ministerial careers. To make ministers
accountable for their explicit responsibility under the Code,
we reiterate the recommendation made in a previous Report that
the Prime Minister's Adviser on Ministers' Interests should be
empowered to instigate his own investigations of potential
breaches of the Ministerial Code (so that the Prime Minister is
not able to protect his ministers from appropriate investigation
of the conduct of their advisers) and should himself be independently
appointed and subject to a pre-appointment hearing.
The role of permanent secretaries
92. Under the new appraisal process for special
advisers, permanent secretaries are expected to provide feedback
on the performance of individual special advisers within their
department, although the Minister drew a distinction between this
role in performance appraisals and "line management".
93. While permanent secretaries do not have any
direct responsibility for "the management and conduct"
of the special advisers in their departments, they are nonetheless
responsible for the management of the department as a whole, and
they will inevitably have a role in overseeing and monitoring
the activities of special advisers, arising from special advisers'
status as temporary civil servants.
94. As permanent, and experienced, officials,
permanent secretaries are expected to be ready to advise their
ministers and official colleagues on all issues of proprietyincluding
the management and conduct of special advisers. Dr Blick, of Democratic
Audit, explained the division of responsibilities between ministers
and permanent secretaries as follows:
If we are talking about who gets blamed if the Code
is violated by the special adviser, it should be the Minister.
If we are talking about who makes the special adviser aware of
paragraph 7, subsection C of the Code, then that should be
the Civil Service end of things.
95. The Minister explained that:
if something comes to light that the Permanent Secretary
is concerned about, the Permanent Secretary should raise it first
with the Minister, and if the Permanent Secretary is not satisfied
that the matter is being dealt with appropriately, the Permanent
Secretary should not be inhibited from raising it with the Head
of the Civil Service.
96. Sue Gray, the Head of Propriety and Ethics
Team in the Cabinet Office, emphasised that her team was available
to provide advice and support to permanent secretaries (as well
as other officials, special advisers and ministers) on issues
of propriety from a cross-Government perspective.
She explained that, if she became aware of potential impropriety
by a special adviser, her first priority would be to "establish
some facts", probably by speaking to the Permanent Secretary.
Permanent secretaries must therefore remain appraised of the "facts"
about what special advisers within their department are doing.
97. Permanent secretaries' role as guardians
of propriety within their departments (and that of the Cabinet
Office in providing advice on propriety issues) is particularly
crucial in the early stages of a new administration, particularly
when few of the incoming ministers or special advisers have served
in Government before. We are not confident that permanent secretaries
always act sufficiently robustly in response to possible impropriety.
In his evidence to us in relation to the roles of the Head of
the Civil Service and the Cabinet Secretary, the then Cabinet
Secretary Sir Gus O'Donnell (now Lord O'Donnell) confirmed that
Ursula Brennan, the then Permanent Secretary at the Ministry of
Defence, had not alerted him to any potential issue with the conduct
of Adam Werritty until after Dr Fox had asked her to investigate
Q335 Chair: Was Ursula Brennan the ?rst person to
raise this with you?
Sir Gus O'Donnell: Yes.
Q336 Chair: What advice did you give her when she
?rst raised it with you?
Sir Gus O'Donnell: That
she should investigate it seriously and that this did raise some
very fundamental issues. Very quickly, it became apparent that
it was better for that to come over to me to establish the facts,
Q337 Chair: I was going to ask you if you advised
her to investigate itthat would not seem to be necessarily
the right solution.
Sir Gus O'Donnell: No,
indeed, and it was not me. It was, in fact, the former Secretary
of State who asked her to investigate.
Q338 Chair: Is that when she raised it with you?
Sir Gus O'Donnell: Yes.
Q339 Chair: So she did not raise it with you before
Sir Gus O'Donnell: That's
Q340 Chair: Did you, at any stage, feel that she
should have raised it with you beforehand?
Sir Gus O'Donnell: With
hindsight, I think it is probably right that this should have
come to me earlier, yes. 
He later added:
I wish I had been told about this earlier. I wish
that somebody had told me, and I would have wanted to go and talk
to the Secretary of State.
98. At times, this role as guardians of propriety
may require permanent secretaries to anticipate the need for guidance.
In evidence to the Leveson inquiry, Jonathan Stephens, the Permanent
Secretary at the Department for Culture, Media and Sport, expressed
regret that Adam Smith had not been warned about how to deal with
lobbyists such as Mr Michel.
99. The imposition of ever more
restrictions and rules do not promote high self-esteem, creativity
and trust, and would have a negative effect on working relationships.
There is no reason to impose further rules, or to change the role
of permanent secretaries who are already charged with the responsibility
for ensuring that departmental business is conducted with propriety
and in accordance with the relevant Codes of Practice and legislation.
Positive induction and support for special advisers and ministers
should obviate the need for negative intervention later and will
promote trust. However, recent events have demonstrated that it
is imperative for permanent secretaries to be ready to give advice
and support on matters of propriety to special advisers and ministers,
particularly at the start of a new administration. It should be
made explicit that permanent secretaries are responsible for ensuring
that any potential problems are addressed without delay. They
must take this responsibility seriously, be vigilant and proactive,
and ensure that they are aware what the special advisers are doing
in the name of their Minister and the department. They should
refer any continuing concerns which the Minister fails to address
to the Cabinet Secretary. All of the above applies equally to
any non-departmental or outside advisers who have regular access
Accountability to Number 10
100. On Friday 8 June 2012, The Times
reported a dispute between Ed Llewellyn, the Prime Minister's
Chief of Staff, and Sir Jeremy Heywood, the Cabinet Secretary,
over special advisers' lines of accountability. According to The
The source made clear that negotiations on the new
structures are at a sensitive stage with tensions between politicians
and civil servants over lines of accountability. It is believed
that Sir Jeremy's preference is to bring them more under the control
of permanent secretaries rather than ministers.
However, he is also working on the plan with two
special advisers in Downing StreetEd Llewellyn, Mr Cameron's
chief of staff, and Jonny Oates, Nick Clegg's chief of staff.
Another option is to make all 83 advisers or at least those at
No 10 report to Mr Llewellyn or Mr Oatesa move that would
increase the No 10 powerbase.
101. James O'Shaughnessy, who worked as a special
adviser in Number 10 before leaving Government in 2011, indicated
his support for all special advisers having a direct reporting
link into the centre of Government, drawing an analogy with cabinet
Ultimately, it is cabinet government with ministers
appointed by the Prime Minister. It therefore makes sense, I think,
for their political appointees to have a similar line through
to Number 10.
102. Michael Jacobs expanded further:
It seems to me that special advisers should have
the same relationship with their ministers and the Government
as a whole as ministers have, which is that ministers are semi-independent.
That is, that they are pursuing the interests of their Department,
as they define them, and to some extent themselves, but they are
also responsible to and working for the government as a whole.
That is a tension of which all ministers will be aware, because
ministers are powerful political individuals in their own right
and special advisers are the sub-units of ministers. They are
not independent figures in their own right; they belong to the
ministers and they are appointed by ministers.
103. In evidence to us, the Minister described
the Prime Minister's Chief of Staff, Mr Llewellyn, as "head
of the cadre of special advisers", and said that special
advisers' performance appraisals "would certainly be reporting,
ultimately" to Mr Llewellyn.
He was keen to emphasise, however, that "the primary reporting
line must be to the Minister or Secretary of State who appointed
[the special adviser]", although "there should be a
sort of dotted line to the centre of Government, for sure".
104. He said that Mr Llewellyn chaired a fortnightly
meeting of special advisers from across Whitehall, at which he
could "make suggestions of things that it would be useful
for special advisers to be doing", but that "it is mostly
about giving and sharing of information" and "it is
not a question of giving orders".
105. The Rt Hon Harriet Harman QC MP noted that,
if special advisers were directly accountable to Number 10, it
would undermine the basis of their role with their
Secretary of State, it would undermine their value in their department
as a counterpoint to the power of Number 10 and it would dilute
their singular accountability to their Secretary of State. It
would mean less supervision of special advisers if Number 10 was
responsible for all of them.
106. In our inquiry into the Head of the Civil
Service, the previous Cabinet Secretary, Lord O'Donnell, told
us that one reason for splitting his role between three people
was that "I have 36 direct reports, and I don't think any
textbook would say that that's a very sensible way to run things.
That's too many".
On this basis, it is not clear whether it would even be feasible
for one person to have responsibility for all 81 special advisers
currently in post.
107. Special advisers have an
entirely legitimate role in helping to co-ordinate policy across
Government and to resolve political differences between departments
in order to deliver the objectives of the Government as a whole.
However, the lines of accountability must remain clear: ministers
are responsible for the management and conduct of their special
advisers, who act in their name. It would not be appropriate for
Number 10 or the Cabinet Office to have an explicit role in directing
or appraising special advisers appointed by ministers of other
departments. In particular, ministers should expect to confide
in their special advisers without fearing that every conversation
will be reported back to Number 10.
68 Cabinet Office, Ministerial Code, May 2010,para
Ev 55 Back
Oral evidence from Adam Smith to the Leveson Inquiry, 24 May 2012
afternoon session, page 61 lines 14-20 (http://www.levesoninquiry.org.uk/evidence/) Back
Q 180 Back
Jonathan Stephens oral evidence to the Leveson Inquiry, 25 May
2012 afternoon session, page 2 line 20 et seq. (http://www.levesoninquiry.org.uk/evidence/) Back
Oral evidence taken before the Public Administration Select Committee,
24 May 2012, Q120 Back
Q 15 [Michael Jacobs] Back
Q 17 [Michael Jacobs] Back
Q 124 Back
Ev 49 Back
United States Constitution, Article II, Section 2 Back
Ev 41 Back
Ev 45 Back
Q 57 Back
Ev 55 Back
Ev 52 Back
Q 60 Back
Cabinet Office, Ministerial Code, May 2010,para 3.3 Back
Q 17 Back
Ev 32 Back
Ev 52 Back
Q 151 Back
Public Administration Select Committee, Twenty-second Report of
Session 2010-12, The Prime Minister's adviser on Ministers'
interests: independent or not?, HC 1761 Back
Oral evidence from Adam Smith to the Leveson Inquiry, 24 May 2012
afternoon session, page 61 line 16; Q 192 (http://www.levesoninquiry.org.uk/evidence/) Back
Ev 49 Back
Q 75 Back
Q 103 Back
Q 114 Back
Q 141 Back
Public Administration Select Committee, Nineteenth report of Session
2010-12, Leadership of change: new arrangements for the roles
of the Head of the Civil Service and the Cabinet Secretary,
HC 1582 Back
Ibid, Q 401 Back
Jonathan Stephens oral evidence to the Leveson Inquiry, 25 May
2012 afternoon session, page 48 lines 5-7 (http://www.levesoninquiry.org.uk/evidence/) Back
"Top Mandarin to rein in political advisers", The
Times, 8 June 2012, page 18 Back
Q 53 [James O'Shaughnessy] Back
Q 53 [Michael Jacobs] Back
Q 181 Back
Q 134 Back
Qq 186, 189 Back
Ev 53 Back
Public Administration Select Committee, Twenty-Third Report of
Session 2010-12, Leadership of Change: New arrangements for
the roles of the Head of the Civil Service and Cabinet Secretary,
HC 1914, Q 276 Back