Report
1. The content and status of the Ministerial
Code, and the structures for investigating alleged breaches of
the Code, have been a recurring concern for the Public Administration
Select Committee (PASC) in the 1997-2001, 2001-2005 and 2005-2010
Parliaments and in the last session of this Parliament. We are
concerned that the events which led to the resignation of the
Rt Hon Andrew Mitchell MP as Government Chief Whip in October
2012 demonstrate that the structures for investigating alleged
breaches of the Code are not appropriate or working effectively.
2. Under the current system, the Ministerial
Code states that
It is not the role of the Cabinet Secretary or other
officials to enforce the Code. If there is an allegation about
a breach of the Code, and the Prime Minister, having consulted
the Cabinet Secretary, feels that it warrants further investigation,
he will refer the matter to the Independent Adviser on Ministers'
interests.[1]
3. In our report The Prime Minister's Adviser
on Ministers' interests: independent or not?, published in
March 2012, we recommended that the Adviser "should be empowered
to instigate his own investigations".[2]
This conclusion was agreed by the House in its resolution of 17
July 2012.[3] No aspect
of the events preceding Andrew Mitchell's resignation was investigated
by the Prime Minister's Adviser. This is regrettable.
4. The fact that the Cabinet Secretary, Sir Jeremy
Heywood, did look into the matter, but failed to resolve the questions
arising from the discrepancies in the accounts of the events,
further supports our assertion that the Cabinet Secretary is not
the appropriate figure to investigate such issues. The Cabinet
Secretary's role in this matter is limited; there is already intense
pressure on his time and attention; and his role as impartial
investigator may conflict with his primary role, which is to support
the daily work of the Prime Minister and the Government as a whole.
The Adviser, currently Sir Alex Allan, is appointed for the very
purpose of conducting such inquires; he therefore can apply his
full time and attention to the task; and he can exercise a degree
of independence in this role.
5. For these reasons, if this matter had been
referred to him, or better still, if he was vested with the power
to instigate investigations on his own initiative, as recommended
by PASC and as agreed by Resolution of the House, this inquiry
would have been more likely to have been effective and to have
commanded public confidence in its eventual outcome. In particular,
Sir Alex's background and previous experience would suggest he
has many of the skills which make him well qualified to conduct
such inquiries.
6. The purpose of our cross-examination of the
Cabinet Secretary was to establish what wider lessons this case
has for the handling of allegations of ministerial misconduct.
The Chairman of this Committee therefore wrote to Sir Jeremy on
20 December 2012. Sir Jeremy replied on 24 December 2012.[4]
He then gave oral evidence to the Committee on 10 January 2013.
7. The events of Wednesday 19 September 2012
have been extensively rehearsed in the media since that date.
There are certain facts of the matter which are agreed by all
parties. On that day, at around 7:30 p.m., Andrew Mitchell left
9 Downing Street on his bicycle. He cycled up to the main gate
at the end of Downing Street and asked for the gate to be opened
to allow him to cycle through. He was directed by a police officer
through the pedestrian gate. Andrew Mitchell objected to being
redirected to the pedestrian gate on the basis that he had been
allowed through the main gate on previous occasions and he swore
in the course of raising his objections.
8. "As soon as [Number 10] became aware
of the incident", the Number 10 Head of Security and the
Prime Minister's Principal Private Secretary had a conversation
with the police officer concerned.[5]
A note was made of this conversation. Andrew Mitchell subsequently
apologised to the police for his inappropriate behaviour and the
apology was accepted. The police agreed to take no further action
and Andrew Mitchell remained in post.
9. On the day after the incident, Thursday 20
September, a constituent of the Government Deputy Chief Whip,
Rt Hon John Randall MP, e-mailed him stating that he had been
a witness to the event. The e-mail appeared to corroborate the
police's story. On Friday 21 September, The Sun published
allegations that Andrew Mitchell had "launched a tirade against
the police". On Monday 24 September, The Daily Telegraph
published what purported to be the police account of what happened,
which was described as "the police log". There is in
fact no such thing as a "police log" but there may be
a document which was written up from notes recorded by the officer
concerned in his notebook. No such notes have reached the public
domain. It is not clear whether the version of the "log"
published in the press did represent the information recorded
in the officer's notebook. Andrew Mitchell has consistently disputed
the account given in the "police log" of the words he
used, stating that he only swore once?under his breath rather
than as a direct insult at a police officer?and did not use most
of the phrases attributed to him.
10. Sir Jeremy Heywood first became aware of
the e-mail from John Randall's constituent on Monday 24 September.
Andrew Mitchell told The Sunday Times on 23 December
that, when the Prime Minister saw this e-mail, he telephoned him
to say that he must resign on that day. Andrew Mitchell insisted
that he did not say what was alleged. Following receipt of a second
e-mail and confirmation from John Randall, the Prime Minister
asked Sir Jeremy "to look into whether this MP's constituency
correspondence changed his [the Prime Minister's] original assessment
of the then Chief Whip's conduct".[6]
Some days later, Sir Jeremy concluded that the e-mails "did
not provide conclusive or reliable evidence" and that, therefore,
there was no reason for the Prime Minister to change
his original assessment that Andrew Mitchell should stay in post.[7]
11. Continuing and intense coverage in the media
arising from the police account of the incident cast doubt on
the integrity of Andrew Mitchell's insistence on his account of
the incident. On 19 October, 33 days after the incident, Andrew
Mitchell resigned as Government Chief Whip. He stated in his resignation
letter that he felt unable to fulfil his duties given the "damaging
publicity" which had continued in the media since the incident.[8]
He reiterated statements he had already made publicly: that he
had only sworn once at the police and had not used most of the
phrases cited in the "police log" (and also cited in
one of the e-mails from John Randall's constituent).
12. On 18 December, a Channel 4 programme broadcast
information which cast doubt on the veracity of both the "police
log" and the e-mail from John Randall's constituent, alleging
that the constituent was not a witness, as he claimed, but that
he was a serving member of the police. The programme also alleged
that significant parts of both the "police log" and
the constituent's e-mail were untrue.[9]
13. In oral evidence to this Committee, Sir Jeremy
stated that his remit was "very limited" as he had been
asked to undertake "deliberately a very tightly drawn review".[10]
Sir Jeremy acknowledged that, in the course of his review, he
assessed the CCTV footage of the incident against both the e-mail
and Andrew Mitchell's account. He found that there were "some
inaccuracies and inconsistencies" in the various accounts
and records of the incident.[11]
He was also "mildly suspicious" when John Randall's
constituent refused to talk to him or his staff, and felt that
"that there were unanswered questions, including the possibility
of a gigantic conspiracy or a small conspiracy. Those were unanswered
questions, but we decided on balance to let matters rest as they
were".[12] When
questioned about why he did not look further into these inaccuracies,
Sir Jeremy stated: "I can only do what I am asked to do".[13]
14. Regardless of what the Prime
Minister had or had not asked him to do, on establishing that
there were unanswered questions about the incident, Sir Jeremy
should have advised the Prime Minister that these questions required
further investigation and therefore a wider inquiry. It is surprising
that, at the time of his "review" Sir Jeremy was not
familiar with the contents of the Principal Private Secretary's
note of the conversation which he had soon after the incident
with the police officer concerned. It is equally surprising that
Sir Jeremy did not seek to verify the "police log" published
by The Daily Telegraph. Sir Jeremy could and should have
advised the Prime Minister to refer the allegations of ministerial
misconduct to the Prime Minister's Adviser for a fuller investigation.
That he did not do so is regrettable and undermines the valuable
reform?the post of the Prime Minister's Adviser?introduced in
the last Parliament. He could also have advised the Prime Minister
that it would be appropriate to refer any doubt about the police
account of the incident to the relevant police authorities to
investigate in order to resolve any discrepancies and inconsistencies.
Instead, as Sir Jeremy told PASC, once he had completed his "very
tightly drawn review", he viewed his job as being to "await
further instructions, if any".[14]
Such instructions were not forthcoming, as "the conclusion
was to let the matter lie". He did not view it as his "job"
to report the inaccuracies and unanswered questions to the police.[15]
15. This Committee does not aim to establish
whether or not Andrew Mitchell breached the Ministerial Code,
nor to establish definitively what Andrew Mitchell did or did
not say. However, we are concerned to ensure that the right systems,
people and procedures are in place for investigating allegations
of ministerial misconduct. For more than a decade, PASC has been
explicit that it is not for the Cabinet Secretary to advise on
ministerial conduct on the basis of his own inquiries; PASC has
consistently maintained that it is for the Prime Minister's Adviser
on Ministers' interests to conduct such inquiries and to provide
such advice.
16. The Ministerial Code does not explicitly
cover language which may or may not be used by Ministers.[16]
However, as the main statement by Government on the conduct
of Ministers, it begins "Ministers of the Crown are expected
to behave in a way that upholds the highest standards of propriety",
and the Adviser is the best-placed person to be considering allegations
of ministerial misconduct.[17]
17. We still await the Government's
response to our Report on the Prime Minister's Adviser, published
in March 2012. The Government's own guidance states that departments
should aim to respond to select committee reports within two months
of publication. [18]
It is unacceptable that ten months have now elapsed. The Government
should immediately issue a Written Ministerial Statement to explain
why there has been such an unacceptable delay and to explain when
a full response will be given to us.
18. The events leading to the
resignation of the Government Chief Whip again demonstrate that
the Cabinet Secretary is not the appropriate person to investigate
allegations of ministerial misconduct. His role is limited; there
is already intense pressure on his time and attention; and his
role as impartial investigator may conflict with his primary role,
which is to support the daily work of the Prime Minister and the
Government as a whole.
19. We have previously recommended
that the Prime Minister's Adviser on Ministers' interests, Sir
Alex Allan, should have the power to instigate his own investigations.
The Adviser is appointed for the very purpose of conducting such
inquires: he therefore can apply his full time and attention to
the task, and he can exercise a degree of independence in this
role. For these reasons, if this matter had been referred to him,
or better still, if he was vested with the power to instigate
investigations on his own initiative, as recommended by PASC and
as agreed by Resolution of the House, this inquiry would have
been more likely to have been effective and to command public
confidence. Given that the House agreed a resolution in July 2012
supporting this Committee's recommendation, steps should have
been taken by the Government to implement this.
20. In this particular case,
Sir Alex should have been able to instigate his own investigation
into the allegations against Andrew Mitchell. At the very least,
the Prime Minister, advised by the Cabinet Secretary, should have
asked Sir Alex to conduct an investigation, as the current system
allows.
1 Cabinet Office, Ministerial Code, May 2010, para
1.3 Back
2
Public Administration Select Committee, Twenty Second Report of
Session 2010-12, The Prime Minister's adviser on Ministers'
interests: independent or not?, HC 1761, para 44 Back
3 The
resolution read: That this House calls on the Government to implement
the recommendation made by the Public Administration Select Committee
in paragraph 44 of its Twenty-second Report of Session 2010-12,
The Prime Minister's Adviser on Ministers' Interests: independent
or not?, that the Independent Adviser on Ministers' Interests
'should be empowered to instigate his own investigations'; and
notes that this motion has been agreed by the Public Administration
Select Committee. HC Deb, 17 July 2012, col 876
Back
4
See appendix Back
5
Letter from Cabinet Secretary to Yvette Cooper of 24 September
2012 - see appendix. See also uncorrected transcript of oral evidence
taken before the Public Administration Select Committee on 10
January 2013, HC (2012-13) 864-i, Q 95 Back
6
See appendix Back
7
See appendix Back
8
Letter from Andrew Mitchell MP to David Cameron MP, quoted in
The Daily Telegraph on 20 October 2012 Back
9
Dispatches programme, broadcast on Channel 4 News, 18 December
2012 Back
10
Qq 41, 128 Back
11
Q 15 Back
12
Qq 104, 136 Back
13
Q 50 Back
14
Q45 Back
15
Qq 87, 29 Back
16
Ministerial Code, Cabinet Office, May 2010 Back
17
Ministerial Code, para 1.1 Back
18
Cabinet Office, Guidance on departmental evidence and response
to select committees, July 2005 Back
|
