4 The existing Business Appointment
Rules
32. We heard a number of criticisms of the current
rules, including a lack of clarity and transparency, as well as
evidence of a lack of awareness of the Rules amongst some Ministers
and senior officials.
Clarity and consistency
33. The Cabinet Office told the Committee that
the Rules had been "recently clarified",[30]
and Lord Lang said that "the rules are clear and consistent
as between the Ministerial and Civil Service sectors".[31]
The process for handling applications from former Ministers nonetheless
differs from that for applications from former civil servants:
ACoBA advises former Ministers directly but advises the Prime
Minister of its recommendations regarding former civil servants.[32]
Similarly, ACoBA's aims to provide former Ministers with advice
within 15 days, while its target for dealing with applications
by former civil servants is 20 days.[33]
It is not clear to us why different classes of former public servants
should be treated differently in this way.
34. In terms of the predictability of ACoBA's
advice, the Minister told the Committee that:
I think there is a fairly clear set of principles.
The clear principle is that the people who leave public office
should not be able to take paid employment from an employer whom
they might have been in a position to benefit when they were holding
their public office and that there should be a period within which
that is simply unacceptable.[34]
The Rules themselves, however, do not state this
"principle" in these terms, and are not explicit about
whether or not certain appointments will be "acceptable".
35. Witnesses, including some who had been through
the ACoBA process themselves, also identified a lack of transparency
over the criteria and principles that would be, or had been, applied
by the Committee in considering applications.[35]
This view was not universally shared amongst witnesses.
For example, Sir Hugh Taylor, former Permanent Secretary at the
Department of Health, who has also been through the ACoBA process
himself, said that he thought "the principles involved [were]
clear enough" when he was personally responsible for applying
the Rules within his department.[36]
36. Lord Lang told us that ACoBA's Secretariat
initially compared each application "with the norm for cases
of this kind and then recommend any departure they think is appropriate,
and give us [ACoBA] the reasons for it.[37]
However, these "norms" are not published, and they can
only be inferred from the limited information on previous cases
published by ACoBA over many years in its annual reports.
37. We heard evidence that ACoBA's approach is
overly process-driven.[38]
This is borne out by the Rules themselves: paragraphs 1 to 3 of
the Rules address the "Key principles" and "aim"
of the Rules, while paragraphs 4 to 22—the bulk of the Rules—are
concerned with "Who must apply, when and how".[39]
38. The Rules as they stand
are predominantly focussed on the process to be followed, and
they are not sufficiently clear about the principles and considerations
which should guide the advisory committee's decision. These principles
should be made explicit, and should be consistent for all applications
(whether considered by ACoBA or departments, and whether from
former Ministers or civil servants). ACoBA should also publish
the "norms" and precedents against which new cases will
be considered, to help applicants predict the likely decision
in their case.
Retrospective applications
39. We were concerned to hear evidence that many
public servants, including Ministers, were not aware of the Rules,
nor of the need to seek advice from ACoBA. In the year from 1
April 2010 to 31 March 2011, ACoBA retrospectively approved four
appointments where individuals had not sought its approval prior
to taking up the post (three ministerial and one civil servant).
In the following year, to 31 March 2012, it approved 13 retrospective
applications (four from former Ministers, and nine from former
civil servants or armed forces personnel). This represents nearly
one in five of all the published cases for that year.
40. In written evidence, ACoBA declined to take
a view on our questions about the Rules themselves, which it said
were "matters for the Government and others to comment on"
except to comment that awareness of the Rules was poor and needed
to be raised.[40] Lord
Lang told us that he had:
pressed the Cabinet Secretary to make sure that departing
Ministers are aware that they have to come to us. Some of them
were not aware of it before, or perhaps had not taken it on board
when they were appointed that that would happen.[41]
41. We are concerned by the
low level of awareness of the Business Appointment Rules amongst
relatively senior public servants. We recommend, as a minimum,
that candidates applying to work in the public sector for the
first time should be made explicitly aware of the Rules before
they take up the post, and at appropriate intervals during their
public service career, such as on promotion or when moving between
departments. It is insufficient to make a single reference to
the Rules in an applicant's contract or terms and conditions at
the time of his or her appointment.
30 Ev 74 Back
31
Q 299 Back
32
Ev 75 Back
33
Previously 25 days, until February 2011. Back
34
Q 466 Back
35
E.g. Qq 124, 168, 222-224, 237 and 248 Back
36
Q 242 Back
37
Q 300 Back
38
Ev 77 Back
39
Business Appointment Rules for Civil Servants (February 2011) Back
40
Ev 64 Back
41
Q 300 Back
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