7 The way forward
75. Conflicts of interest and interchange between
the public and private sectors in the UK are currently regulated
through a system of voluntary rules and divided responsibilities,
which—to
many people—seems
opaque. It does not command public confidence and needs to be
reformed, particularly in the light of planned reforms to public
sector delivery.
76. An advisory committee such as ACoBA lacks
the authority to impose sanctions for non-compliance with its
advice, and it currently also lacks the resources to do so effectively.
Creating a statutory ethics regulator would reflect the importance
that the UK attaches to the ethical conduct of its public office
holders, and it could have stronger powers to enforce compliance.
Legislation would also provide a more systematic and fairer basis
for its decisions.
77. We recommend that the Government
take the opportunity afforded by its proposed legislation on the
statutory registration of lobbyists also to establish clear, statutory,
conflict of interest and business appointment rules for former
Ministers, civil servants and special advisers. The legislation
should impose clear duties on all current and former public servants
to minimise the possibility of real, apparent or potential conflicts
of interest between their new employment and their most recent
responsibilities within the public service. It should also impose
clear duties not to take improper advantage of public office,
nor to disclose "insider information" which was gained
through the public office and is not available to the wider public.
78. We recommend that all public
servants should be subject to broadly similar post-public employment
restrictions, preventing them from taking up employment with any
organisation with which they had "significant official dealings"
within the year immediately prior to leaving office. A lobbying
ban should also apply.
79. We recommend that, unless
varied in individual cases, the prohibitions above should apply
for two years to former Ministers, special advisers, and senior
civil servants, and for at least one year for civil servants at
lower grades. Appropriate civil sanctions should be available
for contraventions of the legislation, and should include the
possibility of sanctions against employers who hire former public
servants in contravention of the rules (for example, exclusion
from eligibility to bid for Government contracts). Permanent Secretaries
should be accountable to Parliament for compliance with the legislation
by staff from their department.
80. Alongside the introduction
of statutory ethics regulation, we recommend that the existing
Advisory Committee on Business Appointments be abolished and replaced
by a new, statutory, Conflicts of Interest and Ethics Commissioner
following the Canadian model. The Commissioner should be politically
neutral, not a former politician or career civil servant, and
should be made an Officer of Parliament. The Commissioner should
also have his or her own budget, and powers to employ his or her
own staff, in order to ensure the independence of the office from
Government.
81. In deciding applications,
the Commissioner should be supported by a pool of panel members,
appointed on merit in accordance with the Commissioner for Public
Appointments' Code of Practice. Each application should be decided
by the Commissioner and a small number of panellists, selected
from the pool.
82. The Commissioner should
have discretion to order that former public servants continue
to be paid a proportion of their salary from the public purse
during any enforced waiting period. He or she should also have
discretion to waive, reduce or increase the statutory waiting
periods up to a maximum of five years if it seems proportionate
and fair to do so, and having regard to the risks of actual or
perceived impropriety, but must publish his or her reasons for
varying the waiting period in any particular case. In deciding
whether to vary the waiting period, the Commissioner should be
required to have regard to the same matters identified by the
Canadian legislation (as
set out in Annex A).
83. To further enhance predictability
for applicants, the Commissioner should be required to publish
clear guidance on the procedures which he or she will follow when
considering an application, and the expected timescale for each
stage of the process. Target timescales should be consistent for
all former public servants, regardless of whether they were Ministers,
special advisers or civil servants. The Commissioner's decisions
in individual cases, and his or her reasons, should also be published
when the appointment is taken up. Applicants should have a corresponding
duty to notify the Commissioner when they take up an appointment.
The Commissioner should be required to monitor compliance with
his or her decisions, and to report annually to Parliament on
the cases considered during that year, any contraventions of the
rules and any sanctions imposed.
Other powers
84. The Canadian Conflict of Interest and Ethics
Commissioner also has powers similar to those of the Prime Minister's
Adviser on Ministers' Interests, providing confidential advice
to the Prime Minister and public office holders with respect to
their obligations under the Conflict of Interest Act.[77]
85. Powers for a UK ethics regulator
to provide advice to public servants on the handling of their
private interests would overlap with those of the Prime Minister's
Adviser on Ministers' Interests, about whom we expressed concerns
in an earlier Report. We recommend, therefore, that the new Commissioner
should assume this role as well, with the power to instigate investigations
into breaches of the Ministerial Code on his or her own initiative.
86. The new Commissioner's role would also bring
into question the continuing role of the Committee on Standards
in Public Life (CPSL), which is also due for triennial review.
We recommend
that the Government consider whether it may be expedient to merge
the functions of the Committee on Standards in Public Life, of
investigating and reporting on general questions of ethical conduct
in public life, into those of the new Commissioner.
87. The Parliament of Canada Act also provides
for the Canadian House of Commons to assign functions to the Commissioner
in relation to "governing the conduct of its Members when
they are carrying out the duties and functions of their office
as Members of that House", although the Act makes clear that
it should "not be interpreted as limiting in any way the
powers, privileges, rights and immunities of the House of Commons
or its members".[78]
The Canadian House of Commons has adopted a Code of Conduct for
Members of the House of Commons, which is not itself statutory
but forms part of the Standing Orders of that House.[79]
The Conflict of Interest and Ethics Commissioner has been charged
with providing advice to Members and investigating alleged breaches
of the Code: a role similar to that of the Parliamentary Commissioner
for Standards in the UK.
88. Article 9 of the UK's Bill of Rights makes
clear that "freedom of speech and debates or proceedings
in Parliament ought not to be impeached or questioned in any court
or place out of Parliament".[80]
It would not be appropriate to attempt to legislate in the UK
with respect to the conduct of Members of either House of Parliament,
since to do so could invite the law courts to adjudicate on Members'
behaviour.
We do not propose that the new statutory ethics regulator should
take on any of the functions currently performed by the Parliamentary
Commissioner for Standards or his equivalent in the House of Lords,
or of the Standards and Privileges Committee.
77 Conflict of Interest Act section 43 Back
78
Parliament of Canada Act (RSC 1985, C. P-1), section 86(5) Back
79
Code of Conduct for Members of the House of Commons, paragraph
34 Back
80
Bill of Rights 1689 Back
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