5 Special Advisers and political campaigning
79. During the course of this inquiry, an issue arose
in respect of Special Advisers, their relationship with their
political parties and campaigning. This included the impartiality
of civil servants' interpretation of the Code of Conduct of Special
Advisers and of the terms of their contracts of employment.
Background
80. The activities and responsibilities of Special
Advisers are currently set out in seven separate documents. Collectively
these provide a framework within which Special Advisers may or
"are expected to" operate, as we explored in detail
in our 2012 report, Special advisers in the thick of it.[105]
We concluded that Special Advisers have a legitimate and valuable
function in Government, protecting the impartiality of the Civil
Service by performing tasks that it would be inappropriate for
permanent, impartial officials to perform, and helping to ensure
that the Government's policy objectives are delivered.
81. The Constitutional Reform and Governance Act
2010 gave a statutory basis to the Civil Service Code and the
Code of Conduct for Special Advisers, both of which form part
of Special Advisers' terms and conditions of employment. As temporary
civil servants, Special Advisers are bound by the Civil Service
Code, but are exempted from its provisions relating to objectivity
and political impartiality. They are also exempted from the general
requirement that civil servants should be appointed on merit.[106]
The Code of Conduct for Special Advisers describes the types of
tasks that a Special Adviser may undertake, as well as containing
provisions on relations with the permanent Civil Service, the
media and the Government party, and involvement in national politics.[107]
Article 19 of the Code contains a general prohibition on canvassing.
82. The Ministerial Code provides that "the
responsibility for the management and conduct of special advisers,
including discipline, rests with the Minister who made the appointment".[108]
Section 3 of the Ministerial Code further requires that all Special
Advisers must be appointed under the terms of the Model Contract
for Special Advisers. As well as setting out standard terms and
conditions of employment, such as pay and leave arrangements,
the Model Contract directs the attention of newly-appointed Special
Advisers to certain provisions of the "staff handbook"
for their department, particularly in relation to disciplinary
procedures, confidentiality and "the constitutional position".[109]
The role of Special Advisers
and campaigning in by-elections
83. Early in January, it became clear that Special
Advisers reporting to Conservative ministers had been subject
to a general direction to take part in telephone canvassing on
behalf of their party in the run-up to the Rochester and Strood
by-election which was held on 20 November 2014. We understand
that Special Advisers who requested instructions or guidance in
writing, directing or permitting them to comply with this request
were declined any such written instruction or guidance from their
employer. They were told they should rely on a letter from the
Conservative Party, which is not their employer. We took advice
from Speaker's Counsel, Michael Carpenter, on the question of
whether the Code and the Model Contract of employment for Special
Advisers permitted Special Advisers to conduct telephone canvassing
in a Parliamentary by-election. His advice is attached as an annex
to this report. There was then an exchange of letters between
Bernard Jenkin MP, Chair of PASC, and the Cabinet Secretary Sir
Jeremy Heywood on this matter. PASC subsequently took oral evidence
from Sir Jeremy on 26 January 2015 on the Code of Conduct for
Special Advisers, and how he had advised it should be interpreted.
We pressed Sir Jeremy to consult the Government's Law Officers,
and he undertook to "take legal advice".[110]
PASC wrote to the Attorney General enclosing the previous correspondence
and the advice given to PASC by Speaker's Counsel. The Prime Minster
responded on behalf of the Government on 15 February. All this
correspondence has already been published, and can be inspected
on PASC's website.[111]
84. A Special
Adviser is a civil servant, who is provided with specific and
limited exemptions so that he/she can support the work of their
minister and their department with political advice and in managing
their minister's relationship with their political party. We accept
that (in the words of the Cabinet Secretary) "The purpose
of the political party activity rules in the Code" (and,
by implication, in the Model Contract of Employment) "is
therefore not to uphold political impartiality but to ensure that
official resources or public funds are not used, or seen to be
used, for party political purposes." We agree "this
is an important principle…" and we agree "it is
one which has been adhered to." We therefore see no intrinsic
objection to the notion that Special Advisers should have a "strictly
limited" role in political campaigning which is "non-public,
carried out very clearly in a Special Adviser's own time, and
with no use made of government resources or facilities."
However, we do not accept that this is compatible with the Code
of Conduct of Special Advisers, or the Model Contract, which are
currently in force.
85. We accept
Speaker's Counsel's advice that to rely on the principles quoted
above as the basis for interpretation to permit telephone canvassing
by Special Advisers represents "too narrow an approach"
that disregards the "general prohibition on canvassing in
Article 19" of the Code; and that telephone canvassing by
a Special Adviser represents "the crossing of the Rubicon".
86. We therefore
conclude that any direction to a Special Adviser to conduct telephone
canvassing was misguided, and that advice that such a direction
or such canvassing was permitted under their Code and contract
of employment was wrong in law. We also find it unacceptable for
ministers and civil servants as employers of Special Advisers
to be complicit in such directions or permissions, while refusing
to provide any written assurances to Special Advisers that they
would not be in breach of Article 19 of their Code or of their
contracts of employment by complying with such directions or permissions.
We cannot understand why the Special Advisers' Code was not altered
to reflect the wishes of Ministers and officials, rather than
insisting on a reinterpretation that was at variance with the
text.
87. We recommend that Special Advisers should
never again be confronted with directions or informal pressure
that puts them in breach of the Code and of their contracts of
employment. To forestall a reoccurrence of this situation, interpretations
of the Code should be issued in writing and subject to the Law
Officers' advice. We also recommend that either: the Special Advisers'
Code and employment contracts should be amended to reflect what
ministers and the Cabinet Secretary would prefer them to mean
in respect of telephone canvassing, or it should be made clear
that Special Advisers must comply with their Code and contracts
of employment as they are written.
88. We are not
concerned to blame any particular individual or individuals for
what occurred, since ministers appear to have sought advice and
the advice given by officials appeared to give what they believed
to be the best advice under the circumstances, and which may have
reflected past practice. We are concerned however that there should
be proper reflection in order to understand what attitudes and
expectations allowed this situation to develop.
89. We therefore recommend that the Cabinet Secretary
convenes a meeting of relevant officials, including appropriate
legal advice, and an independent-minded Special Adviser, to reflect
upon how the situation arose, without seeking to find blame, to
review the impact of what happened and to learn how the attitudes
and expectations which contributed to these events should be changed.
We would request the findings of this reflection and review to
be included in the Government's response to this Report.
105 Public Administration Committee, Sixth Report of
Session 2012-13, Special advisers in the thick of it, HC 134,
paras 9-13. Back
106
Constitutional Reform
and Governance Act 2010, section 10 Back
107
Cabinet Office, Code of Conduct for Special Advisors,
June 2010 Back
108
Cabinet Office, Ministerial Code, May 2010, section 3 Back
109
Cabinet Office, Model contract for special advisers, June 2010,
section 15 Back
110
Oral evidence taken on 27 January 2015, (2014-15), HC 669, Q 446 Back
111
Public Administration Select Committee website Back
|
