Political Special Advisers

Written Evidence submitted by Democratic Audit (SPAD 08)

Summary

· Special advisers are a well-established and valuable component of the UK system of government, whose origins can be traced back as far as 1964, with various subsequent developments and expansions.

· They provide qualities which are absent from the career Civil Service, such as partisan commitment and close personal attachment to particular ministers; and can protect the impartiality of career officials through performing tasks it would be inappropriate for permanent civil servants to perform.

· Their most important relationship will always be with the particular minister who appoints them.

· Their temporary employment status inevitably calls for close attention to issues surrounding integrity and the perception of inappropriate motivation and behaviour. However, these issues are part of broader problems associated with UK democracy that do not just involve special advisers. Other individuals, including more informal aides to ministers, can give greater cause for concern because of their less regulated and defined nature.

· The precise number of special advisers is not the primary issue of concern, rather it is how they are appointed and what they do.

· Suitably adapted pre-appointment hearings for special advisers seem to offer a means of strengthening ministerial accountability for the actions of special advisers, and discouraging abuse of the system of patronage appointment, which is in itself probably necessary for the use of special advisers to retain value.

· Apparent contradictions exist between the rule that special advisers do not carry out management functions and the list of possible duties included in their Code of Conduct.

· The complete exemption for special advisers from the impartiality and objectivity requirements of the Civil Service Code is unsatisfactory, and while it is retained is a clear example of why special advisers should not be in any way involved in any quasi-judicial functions which their department may be required to perform.

Introduction

1. Democratic Audit is an independent research organisation, based at the University of Liverpool. We are grant funded by the Joseph Rowntree Charitable Trust to conduct research into the quality of democracy in the UK and have now completed our fourth full audit of UK democracy. The previous three Audits, which assess the democratic performance of the UK using a set of generic ‘search questions’, were published in 1996, 1999 and 2002. We welcome the Public Administration Select Committee’s inquiry into the important issue of special advisers and their role, which we consider from a democratic perspective in this submission.

2. An underlying principle of the UK Civil Service, which can be traced back as least as far as the so-called ‘Northcote-Trevelyan report’ of 1854, is that of political impartiality.

3. This concept is set out in the Civil Service Code, now issued under Section 5 of the Constitutional Reform and Governance Act 2010. The Code states that officials must ‘serve the Government, whatever its political persuasion’ to the best of their abilities, regardless of their own ‘political beliefs’. The Code also stresses that civil servants must ‘act in a way which deserves and retains the confidence of Ministers, while at the same time ensuring’ that they are able to form the same relationship with other ministers in the future. The Code also reminds civil servants that they must comply with restrictions that have been laid down on their party political activities; and should not act in a way which is determined by party political considerations, for instance in the giving of advice or the utilisation of public resources (Cabinet Office, 2010a, p.2).

4. Associated with this principle of impartiality is the rule, now provided with a statutory basis under Section 10 of the Constitutional Reform and Governance Act, that civil servants are recruited on merit on a basis of open competition – in other words, not on the whims of ministers. Their appointments are permanent and generally changes of minister in a particular department or in the party of government are not expected to lead to officials either leaving the service or the particular posts they occupy within it.

5. The considerable extent to which the UK Civil Service comprises impartial, permanent staff makes it an international outlier. In most other democracies – even those modelled on the UK system – a larger proportion of senior official appointments, including in overt management roles – are made on a basis of individual ministerial discretion and party political considerations. In the US, for instance, the entire top-tier of presidential staff tends to be replaced when a new incumbent takes office at the White House. In a number of European states such as France the cabinet system is used, whereby ministers choose their own inner teams of aides, which typically include both bureaucratic insiders and outsiders.

6. Arguments exist both in favour of and against the UK system.

7. It can be held to provide stability and facilitate smooth transitions from one minister or government to the next. Impartial civil servants are held to be able to provide ministers with advice that is not skewed towards considerations of narrow party political gain. Restrictions on the patronage available to ministers prevents substantial abuse of official appointments as a means of rewarding allies, regardless of their suitability for a particular post. The tradition of career-long appointment, rather than regular movement between the civil service and the outside (though it has arguably to some extent gradually been eroded) is a barrier to the development of conflicts of interest and the suspicion of corruption.

8. On the other hand, the UK Civil Service has in the past been criticised as – rather than being genuinely impartial – developing its own institutional agendas which it seeks to impose on ministers of different parties. Some on the political left have argued that the Treasury is naturally disposed towards laissez-faire economic policies; while on the right the view has sometimes been held that the Civil Service, as a public sector institution, has a vested interest in the maintenance of a social democratic state.

9. While these two criticisms place different emphases on the supposed orientation of the Civil Service, there does seem to be a strong case that, in a democracy, there are problems with the idea that regardless of changes in government, senior official posts should continue to be occupied by the same people. By extension there is a case for arguing that incoming ministers should at least be able to bring some staff with them to help implement the policy programmes on which they were elected.

10. Furthermore, there are certain tasks – such as liaison with the party of government within and without Parliament, producing speeches for party political occasions, and briefing the press on party political issues – for which ministers require assistance, but which cannot appropriately be provided by impartial permanent civil servants.

11. Moreover, another criticism of the permanent Civil Service has been its tendency not to recruit senior staff on a basis of specialist abilities in the different fields within which government operates, but to favour so-called ‘generalists’. Consequently, Whitehall has been said to suffer from a lack of appropriate skills amongst its internal staff.

1. Are special advisers a necessary part of an effective Government and Civil Service?

12. Special advisers were initially introduced under the first Harold Wilson government in 1964. They were expanded and placed on a more systematic basis by subsequent administrations, in particular when Wilson returned to office in 1974; and when New Labour came to power in 1997. Since 1964, all governments of different complexions have used them.

13. Special advisers have represented an attempt to correct to some of the problems with the permanent Civil Service identified above (Blick, 2004). Appointed on a basis of individual ministerial patronage (subject to a prime-ministerial veto), special advisers are often associated with the party (or one of the parties) of government. Their contracts are temporary and terminate when their appointing minister leaves office or there is a change of government. They may possess specialist knowledge or experience that their minister finds useful and possibly lacking within the Civil Service. They are not bound by the same impartiality rules as permanent civil servants and are permitted to a limited extent to operate on a basis of party political considerations.

14. The personal and party political nature of special adviser appointments has created a tendency for them – individually and as a group – to be associated with significant controversy over the decades.

15. However, special advisers can be seen as a ‘necessary part of an effective Government and Civil Service’ for a number of reasons. They provide ministers with support that they require and which is not necessarily available from the permanent Civil Service. They protect permanent officials from being asked to undertake duties which it might be inappropriate for them to perform. They also assist elected governments in the implementation of particular policy programmes to which career officials might not be as well attuned. Finally, while filling some of the gaps in what the career Civil Service can do, their relatively small numbers mean that they do not necessarily pose a fundamental challenge to its status, enabling the existing UK bureaucratic model and its desirable features as discussed above, to continue to function. However, alongside this general approval of the role of special advisers within the UK constitutional context, it is necessary to note certain reservations, discussed below.

2. For whose benefit do special advisers exist?

16. According to the latest version of their Code of Conduct, special advisers are ‘appointed to serve the Government as a whole and not just their appointing Minister’ (Cabinet Office, 2010b, p.2). This stipulation was inserted in the edition of the Code issued following the formation of the Coalition government in May 2010 (as well as the Ministerial Code). It was presumably motivated by concerns that special advisers would become engaged in destabilising intra-Coalition party factionalism.

17. However, this statement cannot alter the reality that the most important link for special advisers is with the particular minister who has appointed them and whom they serve directly. This relationship is confirmed by the Code itself in its numerous descriptions of the tasks that special advisers may undertake for ‘their Minister’. The political fates of ministers and their special advisers are clearly linked. According to whether the former prosper or fail, so the latter are likely to also.

18. Many cases can be identified of close and important relationships of this sort: between Roy Jenkins and John Harris in the 1960s; in the 1970s between Tony Benn and Frances Morrell and between Tony Crosland and David Lipsey; and Margaret Thatcher and Alan Walters in the 1980s. During the New Labour period of government, key bonds included those between Tony Blair and Alastair Campbell; and Gordon Brown and Ed Balls (Blick, 2004).

19. In this sense primarily special advisers exist for the benefit of the particular minister they support. This commitment can often supersede loyalty to political party, even if the special adviser is clearly linked to the party of government. However, political parties in office can be seen as another beneficiary of the existence of special advisers, in that it means their interests can be represented within Whitehall. Arguably those who voted for candidates of that party also thereby have an interest in the use of special advisers. Permanent civil servants can be seen as benefiting from special advisers, in so far as they help them to understand the policy intentions of ministers; and undertake tasks that career officials are not supposed to. Journalists who receive briefings from special advisers can also be regarded as beneficiaries.

20. Finally, the individuals who are employed as special advisers benefit from this practice. Increasingly, the path to frontbench politics involves a period serving as a special adviser. Many members of the present government, including the Prime Minister, David Cameron, numerous other Conservative ministers, and the Liberal Democrats Vince Cable and Lord McNally, were all special advisers earlier in their careers. All the contestants in the last Labour leadership contest except one were ex-special advisers. Two of them – Ed Miliband and Ed Balls – had been special advisers to the same minister, Gordon Brown, at the same time (while a third, David Miliband, worked for Tony Blair next door to them). Indeed, it is an issue of democratic concern that, in appointing special advisers, one generation of senior politicians is able to play a major part in determining who will comprise the next.

3. Does (or should) the role of special advisers change under a coalition Government?

21. As noted in the answer to question two above, there have been attempts to ensure that special advisers do not participate in damaging conflicts between the two parties in the Coalition. In fact, even in single-party governments, special advisers have been prone to involvement in intra-government struggles, such as the events leading to the resignation of Nigel Lawson as Chancellor of the Exchequer in 1990, who protested about the activities of Margaret Thatcher’s special adviser, Alan Walters; and the tensions between the respective camps of Tony Blair and Gordon Brown during 1997-2007. During the campaign leading to the 1975 referendum on continued membership of the European Economic Community, when divisions within the Labour government forced a Cabinet ‘agreement to differ’ over the issue, the special advisers to those ministers supporting a ‘no’ vote formed an informal secretariat to support them (Blick, 2004).

22. It seems likely that special advisers in a Coalition may at times become embroiled in struggles between the two parties which make it up; as well as other tensions, for instance between ministers of the same party. But a valuable role which can be played by special advisers in a Coalition – and which there is reason to believe they have been performing – is in ensuring that issues involving the respective positions of the two parties are resolved satisfactorily. This kind of task is precisely what special advisers are more suited to performing than career civil servants, since it involves liaison on overtly partisan issues, taking in not only ministers and officials in government but also two different parties within Parliament and nationally.

4. How valid are concerns about the conduct and propriety of special advisers?

23. Any practice of employing individuals within the Civil Service on a temporary basis – while not being wrong in itself – merits close attention from the perspective of propriety and integrity. Indeed, whether or not inappropriate behaviour has taken place in any given case, it is the appearance that it might do which is as much of a problem. There are issues about whether the advice special advisers give and decisions they help make while holding public office might be influenced by their prior employment and their possible future employment. The closeness of special advisers to ministers, along with their party political connections, also raises issues about party donors seeking inappropriately to influence government policy through contact with special advisers.

24. Yet in some instances it is the more informal advisers who – unlike special advisers – are not tied to specific terms and conditions who raise more concerns than special advisers, as demonstrated by events involving the resignation of the Secretary of State for Defence, Liam Fox, whose aide, Adam Werritty, was not formally employed as a special adviser. For instance, the Code of Conduct for Special Advisers states that they must not ‘authorise the expenditure of public funds, have responsibility for budgets, or any involvement in the award of contracts’ (Cabinet Office, 2010b, p.4). It is necessary, therefore, for the banned activities to be kept under review. Following circumstances leading to the resignation of Adam Smith, special adviser at the Department for Culture, Media and Sport (DCMS), it is clear that special advisers should be prohibited from involvement in any aspect of a quasi-judicial role that may be performed by their department.

25. Special advisers are part of a much larger picture, which takes in a number of complex areas of concern, involving the way parties are funded; the lack of transparency in lobbying; and the difficulties of regulating the large number of individuals holding public offices – of whom special advisers are just one group – whose career paths create the potential for conflicts of interest, including more informal aides, other officials and ministers. Some of these individuals, unlike special advisers, may have formally been involved in decisions about expenditure and the award of contracts.

26. Yet while special advisers are in theory more constrained than some others who operate within Whitehall, whether through their close personal relations with ministers they take part more informally in decisions with which they are not supposed to be involved, is difficult precisely to establish.

27. This uncertainty feeds into the other part of this question, on the conduct of special advisers. The Code prohibits a variety of activities, such as the use of ‘official resources for party political activity’ which are difficult to define in all possible circumstances (Cabinet Office, 2010b, p.3).

28. Moreover, it is reasonable to assume that in some instances ministers encourage special advisers to engage in prohibited activities such as ‘personal attacks’ on the basis that their advisers are unlikely to be clearly exposed ‘in the act’, but that if they are the minister will disavow them (Cabinet Office, 2010b, p.3). Suspicions that special advisers are being used as shields for their ministers are common, as with the recent case at the DCMS, though they may be difficult to substantiate.

5. Should special advisers be subject to pre-appointment hearings?

29. The way in which special advisers are recruited, which involves virtually no formal process other than a minister choosing them subject to prime-ministerial approval, is a cause for concern. In the case of prime-ministerial special advisers, there is no check on such discretion at all. It is reasonable to ask whether Andy Coulson, special adviser to David Cameron at No.10 from May 2010 until his resignation early the following year in the wake of growing interest in his role in the News International scandal, would have been employed at all had more regular recruitment methods been used.

30. It seems appropriate for pre-appointment hearings by Commons select committees, suitably adapted, to be applied to special advisers. Such a practice is particularly justified given that virtually all regular procedures used for recruitment in the public sector and elsewhere are bypassed for special advisers. Consequently the introduction of some kind of monitoring procedure – which would presumably not play any formal part in the process – would be welcome.

31. Before appointing a special adviser, the secretary of state or other minister concerned could provide documents to the select committee responsible for monitoring their department containing an account of who their proposed adviser was; how they became aware of them; why they wished to appoint them; and what work they intended them to do. The person who the minister intended to appoint could then appear before the committee to be questioned on such issues as their career background, qualifications and the type of job they envisaged performing for the minister. At the very least, such a system would discourage flagrant abuse of the special adviser system by ministers through appointing completely inappropriate individuals. One regular concern it could help address would be the idea that special advisers tend not to possess any particular expertise that is lacking amongst regular civil servants, supposedly one justification for their use.

6. Is a strict limit on the number of special advisers helpful?

32. A strict limit on the number of special advisers does not seem appropriate. It is more important that those who are employed are properly regulated. It is qualitative issues, not quantitative, that are most important. Were a cap introduced, it might have the unwelcome impact of encouraging the abuse of appointments to the regular civil service. Indeed there is some evidence that, in its desire to restrict numbers of special advisers, the present Coalition government has made partisan appointments to non-special adviser roles in the Civil Service.

33. It does seem peculiar, however, that while the Ministerial Code seeks to limit the number of special advisers that secretaries of state and other departmental ministers may recruit, it introduces no limit on the number that a Prime Minister and the Deputy Prime Minister may employ (Cabinet Office, 2010c, p.6).

34. Moreover, while a precise figure cannot be arrived at, it would clearly be inappropriate if a government sought to swamp the career civil service with special adviser appointments and therefore bring about a significant constitutional change without first initiating a wide debate on the subject.

35. A more radical approach to limiting the employment of special advisers could be possible. If the UK were to move to a full model of publicly funded political parties, opposition and government parties might be provided with ring-fenced sums allowing them to appoint their own officials. These staff might then replace both special advisers and the staff presently paid for by the Short Money and Cranborne Money. The limit would then be not on the number of advisers, but the budget available to pay for them. Indeed, the full public funding model was considered in the 1970s, but the special adviser/Short Money approach was favoured instead.

7. How should special advisers be held accountable for their advice and actions? Are any specific changes needed to the Ministerial Code, or the Code of Conduct and Model Contract for special advisers to improve accountability?

36. The line of accountability should remain as it is at present: through the appointing minister, bypassing the Whitehall hierarchy, on to Parliament. Accountability could be heightened through the process of pre-appointment hearings discussed above.

37. While this general approach is the most satisfactory, there is a problem with the present system, which requires attention if genuine accountability is to be achieved.

38. The general principle has always been that special advisers should not be responsible for managing permanent officials. Between 1997 and 2007 an exception to this rule was established through Order in Council applying to up to three special advisers in No.10. It was only ever taken up by two special advisers – Tony Blair’s Chief of Staff, Jonathan Powell and his media aide, Alastair Campbell. Up to a point, this arrangement was a recognition of the reality of the different environment of the Prime Minister’s Office, and that special advisers at No.10 had in practice managed officials long before 1997. But the Order in Council was revoked in 2007 by Gordon Brown.

39. At present, special advisers are required not to become involved in management by their Code of Conduct (which is required to include such a stipulation by the Constitutional Reform and Governance Act 2010). However, the Code also sets out a number of tasks which they can perform which appear – on any reasonable definition – to amount to management, such as conveying ‘to officials Ministers’ views and work priorities’ and holding ‘meetings with officials to discuss the advice being put to Ministers’. They may also have an ‘input to performance appraisals’ although they must be written by permanent civil servants.

40. Consequently, special advisers are in practice a part of the management hierarchy of their department, which raises difficulties on various counts. For instance, the impartiality of those officials who they are in effect responsible for may be undermined; and the measures intended to ensure they are not involved in decisions about resources and contracts may be vulnerable to being bypassed. There is a contradiction in their performing a quasi-management role while not fully being subject to the rules applying to permanent civil servants, including impartiality requirements and discipline procedures. It would seem appropriate to amend the Code of Conduct, removing the various management-type roles it refers to.

41. It is also problematic that the Code of Conduct for special advisers exempts them from ‘the general requirement that civil servants should…behave with impartiality and objectivity’. (Cabinet Office, 2010b, p.3). Surely it is possible for a responsible individual to combine party political commitment with these qualities. An amendment to the Code of Conduct, removing or at least qualifying this exemption, is desirable. It would not necessarily involve statutory alteration, and would introduce a new dimension to the standards of conduct that special advisers may be held accountable against.

42. It is particularly worrying that someone who was not required to be impartial or objective was used as a go-between with an outside corporation by the DCMS in relation to a quasi-judicial role being performed by the Department.

May 2012

Prepared 15th June 2012