Conclusions and recommendations
1. While Number 10 has the final say on the appointment of special advisers, and only the centre can ensure that special advisers get all the career development moves which they need, ministers have the right to insist on particular individuals that they consider appropriate, and Number 10 would show little confidence in a Minister if he or she were forced to accept a particular adviser.
2. 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.
3. It is axiomatic that ministers or officials
acting in a quasi-judicial capacity are expected to act impartially,
apolitically, and on appropriate advice. 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.
4. 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.
5. 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.
6. Permanent secretaries and ministers' private offices should be ready to accommodate ministers' wishes to have access to outside advice, but it is also self-evident that any personwhether paid or unpaidwho has access to Government papers and ministerial meetings should be properly vetted and regulated. Privileges such as access to Government buildings, and to ministerial papers and meetings, must be balanced with clarity for all concerned over individual advisers' responsibilities and the terms and conditions on which that access is granted.
7. The crucial question is not simply the number
of special advisers but whether the case can be made for the payment
of each individual from the public purse, based on whether the
Minister can the need for those tasks to be undertaken by a personal
appointee rather than a permanent civil servant; and the person's
qualifications and ability to undertake them. (Paragraph 64)
8. 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.
9. 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.
10. 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.
11. 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.
12. Ministers are responsible for directing the
work that their special advisers undertake, and for deciding whether
their special advisers are performing those tasks satisfactorily
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. (Paragraph 90)
13. 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.
14. 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.
15. 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.
16. Effective working relationships can only be achieved where there are high levels of trust and mutual respect, so that all are addressing the same challenges, sharing difficulties and concerns, and all are seeking the same positive outcomes. This is crucial for the effective leadership of Government. Mistrust between ministers, officials and advisers is a failure of leadership. It destroys openness, confidence and creativity, undermines mutual respect and divides leadership. In turn this fosters a climate of mistrust, lack of respect and low morale throughout the organisation they are seeking to lead. If such mistrust develops, ministers, permanent secretaries and advisers must work together to rebuild trust, though in the final analysis it is for the ministers responsible to determine whatever action is necessary to rebuild trust.