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

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.[68]

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".[69] 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.[70]

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. […] while it might not be incredibly formal, it is very right that there should be some sort of process".[71]

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".[72]

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 that matters".[73]

Job descriptions: clarity and transparency

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".[74] 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".[75]

73.  The Minister rejected the suggestion that it might be possible to publish a job description for special advisers, because:

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.[76]

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.[77]

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.

Pre-appointment hearings

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.[78]

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".[79] 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".[80]

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.[81]

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.[82]

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". [83] 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".[84]

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 suitable candidates.

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.[85] 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 they act).

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.[86]

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 constitutional existence".[87]

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".[88]

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.[89]

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 ministers 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.[90]

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".[91]

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.[92]

94.  As permanent, and experienced, officials, permanent secretaries are expected to be ready to advise their ministers and official colleagues on all issues of propriety—including 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.[93]

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.[94]

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.[95] 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.[96] 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 it.

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, because obviously—

Q337 Chair: I was going to ask you if you advised her to investigate it—that 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 then.

Sir Gus O'Donnell: That's right.

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. [97]

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

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]

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 to ministers.

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 Times:

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 Street—Ed 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 Oates—a move that would increase the No 10 powerbase.[100]

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 government:

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.[101]

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.[102]

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.[103] 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]

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]

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]

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".[107] 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 3.2 Back

69   Ev 55  Back

70   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

71   Q 180 Back

72   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

73   Oral evidence taken before the Public Administration Select Committee, 24 May 2012, Q120  Back

74   Q 15 [Michael Jacobs] Back

75   Q 17 [Michael Jacobs] Back

76   Q 124 Back

77   Ev 49 Back

78   United States Constitution, Article II, Section 2 Back

79   Ev 41 Back

80   Ev 45 Back

81   Q 57 Back

82   Ev 55 Back

83   Ev 52 Back

84   Q 60 Back

85   Cabinet Office, Ministerial Code, May 2010,para 3.3 Back

86   Q 17 Back

87   Ev 32 Back

88   Ev 52  Back

89   Q 151 Back

90   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

91   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

92   Ev 49 Back

93   Q 75 Back

94   Q 103 Back

95   Q 114 Back

96   Q 141 Back

97   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

98   Ibid, Q 401 Back

99   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

100   "Top Mandarin to rein in political advisers", The Times, 8 June 2012, page 18 Back

101   Q 53 [James O'Shaughnessy] Back

102   Q 53 [Michael Jacobs] Back

103   Q 181 Back

104   Q 134 Back

105   Qq 186, 189 Back

106   Ev 53 Back

107   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

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Prepared 14 October 2012