2 Lessons from Fox-Werritty |
Lessons for the Civil Service
13. On 6 October 2011 the Secretary of State for
Defence, the Rt Hon Dr Liam Fox MP, asked the Permanent Secretary
at the Ministry of Defence, Ursula Brennan, to carry out an internal
inquiry to establish whether there had been any breach of national
security or the Ministerial Code in relation to allegations about
the access by Mr Adam Werritty to his office.
14. In her interim report, dated 10 October 2011,
Ursula Brennan stated that she had been aware in August 2011 of
concerns relating to Adam Werritty:
I became aware of the allegation that Adam Werritty
was handing out business cards describing himself as "Adviser
to Rt Hon Dr Liam Fox" following a story in The Guardian
on 19 August 2011, when I was on leave. The day after my return
to the office (23 August) I raised the issue at my routine meeting
with the Secretary of State.
15. In his evidence to us, the then Cabinet Secretary
Sir Gus O'Donnell (now Lord O'Donnell) confirmed that Ursula Brennan
had not alerted him to this issue until after Dr Fox had asked
her to investigate it.
In his evidence, Sir Gus stated that "with hindsight, I think
it is probably right that this should have come to me earlier,
yes". He further
I wish I had been told about this earlier. I wish
that somebody had told me, and I would have wanted to go and talk
to the Secretary of State.
16. Following Ursula Brennan's interim report, the
Prime Minister asked Sir Gus "to establish the facts
of the case in relation to the former Defence Secretary's conduct
in the context of the Ministerial Code".
Sir Gus's report to the Prime Minister proposed changes to the
way the Civil Service raises concerns about ministers. It said:
I therefore propose a stronger and clearer system
which is better understood by ministers and officials alike. Specifically,
this episode has exposed a gap in dealing with matters that may
appear initially only to be of minor concern, but give rise incrementally
and over time to substantial concern. The system needs to be strengthened
to allow such concerns to be aired between Permanent Secretaries
and ministers, and where issues cannot be resolved they are referred
to me and ultimately to you.
17. Sir Gus made five recommendations to achieve
this objective, including the proposal that:
Permanent Secretaries should take responsibility
for ensuring departmental procedures are followed, and for raising
any concerns with Ministers, advising the Cabinet Secretary and
ultimately the Prime Minister where such concerns are not resolved.
18. Sir Gus reported that "the risks of Dr Fox's
association with Mr Werritty were raised with Dr Fox by both his
private office and the Permanent Secretary".
This was also suggested in Liam Fox's personal statement on resignation,
that "with hindsight, I should have been more willing to
listen to the concerns of those around me".
Ursula Brennan's finding that "there are areas where the
current guidance on propriety and the management of ministerial
Private Offices needs to be strengthened" suggests that some
officials in the Secretary of State's office may have been unsure
about how to raise such concerns.
19. The Civil Service Code requires officials to
act with "integrity, honesty, objectivity and impartiality".
Civil servants must "fulfil [their] duties and obligations
The Code also sets out how officials should raise a grievance
if they have a concern that instructions they have been given
conflict with the Code. When he gave evidence to us, Lord Butler
of Brockwell, a former Cabinet Secretary and Head of the Civil
Service, argued that the Civil Service Code thus required officials
to take action on concerns such as those in the case of Liam Fox.
Sir Philip Mawer, the then independent adviser on Ministers' interests
told us that he was "astonished" that Ministry of Defence
officials did not escalate their concerns about Adam Werritty.
It was, he suggested, "due to a lack of forethought by the
Department on behalf of its Minister and its reputation".
20. We are concerned
that civil servants did not act or give formal guidance regarding
the meetings between Adam Werritty and Liam Fox in the 18 months
between May 2010 and October 2011. We recommend that the Civil
Service Code or procedure in the Cabinet Manual be clarified to
ensure that officials are clear about their obligation to advise
Ministers on matters relating to the Ministerial Code and how
to act when such matters remain unresolved.
Lessons in relation to the
independent adviser on Ministers' interests
Philip Mawer was not asked to investigate the conduct of Liam
Fox. Sir Philip viewed
this as "a missed opportunity".
It was, he told us, the "low point" of his time in post.
Sir Philip added:
I do believe that the adviser ought to have been
brought in to investigate the Fox-Werritty affair and brought
in quickly [...] Why did that not happen? I am not the person
to answer that.
22. Sir Philip did, however, set out three possible
reasons why he might not have been consulted:
First of all, if one can stand back and try and learn
the lessons, this got off on the wrong foot in the first place.
The Permanent Secretary of the Department should not have been
conducting any kind of inquiry at the request of Dr Fox. Second,
the Cabinet Secretary was only brought into the matter relatively
late in the day. Third, the evidence emerged pretty quickly through
the media about Dr Fox's activities, which pretty conclusively
demonstrated that a breach of the Code had occurred.
23. Sir Philip argued that the Prime Minister's decision
not to refer the case to him for investigation, was not, he believed,
indicative of "a lack of faith" in him or in his role.
No one in Whitehall, at any point, has suggested
to me that the failure to involve the adviser was a reflection
of a lack of confidence in the role of adviser or in me personally.
I believe it was much more to do with events and also to do with
the dynamics that develop around these issues [...] in terms of
how long you can suspend a Minister who occupies an important
role, and so on.
24. Several of our witnesses, including the journalist
and commentator Sue Cameron, suggested a different reason for
not asking the independent adviser to investigate Liam Fox's conduct:
I think the reason they did not use Philip Mawer
was a political one; there was this huge row going on, and he
might be a very good guy but Sir Philip Mawer could have taken
forever, in their terms, to decide on this, and they wanted it
fixed by the end of the week.
his annual report for 2010-11, Sir Philip set out the procedure
to be undertaken in the investigation of alleged misconduct: this
ran to thirteen paragraphs.
In his evidence to us, he explained the need for "due process"
during his investigations:
a due process has to be gone throughwhich,
if you were in the hot seat, you would wish to be gone throughin
which you are shown the evidence and you have an opportunity to
give your response to it. Therefore, at that point, the initiative
passes out of the hands of the adviser into the hands of the Minister
Philip did accept that "there
is a need for speed in these matters".
He also stated that he was "never given the opportunity to
prove that [he] could produce the report quickly."
27. Sir Gus
O'Donnell indicated that the time taken in the Shahid Malik investigation
was a factor in the decision not to ask Sir Philip to investigate
the Liam Fox case:
It was clear from what the Secretary of State himself
had said, and it was backed up in my report, that there was a
clear breach of the ministerial code. The Secretary of State took
responsibility for that and resigned. If you had said, "Right,
we want a full, lengthy investigation into all these issues,"
what would the Secretary of State have done? In the pastin
the Shahid Malik case, for examplethe Minister was suspended.
Would you have wanted a long period of having the Secretary of
State for Defence suspended? I just do not think that would have
been good for government.
A resolved issue?
28. Sir Gus also argued that there was no need for
a full investigation by the independent adviser once Liam Fox
had resigned. Sir Gus questioned "to what purpose" there
would have been such an investigation, as "the Secretary
of State admitted that he had broken the Ministerial Code. The
Secretary of State decided and took responsibility for this and
29. When asked whether Liam Fox's conduct should
have been investigated, notwithstanding his resignation, Sir Philip
suggested that Sir Gus had established "fairly quickly"
that there was "more than a prima facie casethere
was a clear-cut case" of a breach of the Ministerial Code.
The Prime Minister therefore "felt there was no point in
further inquiry" and "brought the matter to a close".
It was, Sir Philip stressed, not his decision, but the Prime Minister's.
Sir Philip, did, however, suggest that it was a decision he understood,
stating that "if there is to be cause for an inquiry then
I think it would need to be a rather different inquiry from one
conducted by the adviser".
30. We accept
that, following a ministerial resignation, the kind of investigation
that might be appropriate would differ substantially from an investigation
carried out while a Minister was still in office; and in many
cases it would not be appropriate at all. The resignation of a
Minister should not, however, preclude altogether some form of
independent investigation when further examination of the facts
would be in the public interest.
SHOULD THE INDEPENDENT ADVISER HAVE
31. Sir Philip recognised that suspending a Minister
under investigation by the independent adviser presented a difficulty
for the government. He argued that if the independent adviser
was "engaged earlier in the process", this should be
accompanied by "an expectation that the Minister will continue
to do his or her work unless and until the Prime Minister decides,
following an inquiry and the publication and presentation of a
report, that the Minister should step down".
32. Such "ground rules" for investigations
by the independent adviser on Ministers' interests would help,
Sir Philip argued, to avoid a situation:
in which politicians are at the mercy of those who
make allegations about them, at the mercy of the media, and so
on. I firmly believe that it is in the interests of the public,
in the interests of those in political life and in the interests
of preserving good standards in public life, to have a process
that gives fairness, not only in the sense of independence of
investigation but to the person who is the subject of that investigation.
33. Sir Philip argued that the independent adviser
brought in quickly, given the opportunity to show
they can produce a report that is appropriate in the circumstances,
and the basis of fact on which a Prime Minister reaches a subsequent
decision should be made public. In that way, the public will have
confidence in the process that is undergone.
34. Sir Philip added that he could not "insist
[on carrying out an investigation] when the decision rests with
the Prime Minister".
Instead, as a result, there was still an unresolved issue "around
how the adviser is engaged and brought into play in his investigatory
view was that "there needs to be a more ready willingness
to engage the adviser earlier in the whole process".
35. It is understandable that the Government in general
and the Cabinet Secretary in particular would have wanted to avoid
a lengthy investigation into a case of great political and personal
sensitivity where a speedier and generally acceptable form of
resolution was available. The Cabinet Secretary could well have
believed, reasonably if perhaps wrongly, that to pass the case
formally over to the independent adviser would have required such
a lengthy investigation.
36. What we find less reasonable is that the independent
adviser was apparently cut out of the loop altogether. The
level of media and public interest in this case should have made
the involvement of the independent adviser, more, not less important.
He should at least have been consulted.
POSSIBLE CHANGES TO THE INDEPENDENT
37. Sir Philip's successor, Sir Alex Allan, told
us that he had discussed the role of the independent adviser with
the new Cabinet Secretary, Sir Jeremy Heywood, in which he "made
the point that there are advantages to him in bringing the adviser
in early and whenever major issues arise".
This point was, Sir Alex reported, accepted by the Cabinet Secretary.
38. Sir Alex Allan, told us that he was open to changing
the way the adviser worked to allow for shorter investigations:
I would want to see whether there were ways of tailoring
the investigation process to produce a different style of investigation
for different types of allegations, some of which may be able
to be done much quicker, some of which may require the full process
that he [Sir Philip Mawer] outlined.
39. He added that:
I want to establish that it is perfectly possible
for my office to do quick investigations, so that, when the Prime
Minister is considering whether to ask me to investigate, the
fact that it might take a long time is not an issue.
note the concerns expressed by Sir Gus O'Donnell over the effect
of a lengthy investigation on the operation of Government, and
recommend amending the Ministerial Code to empower the independent
adviser to carry out shorter investigations to establish the preliminary
facts of a case. This would strengthen public confidence and better
reflect the principle, expressed in the Ministerial Code, that
it is not for the Cabinet Secretary to enforce the Code.
Independently initiated investigations
41. Sir Alex Allan did not agree that his powers
should be extended to enable him to launch his own inquiries:
First of all, it is the Prime Minister who is accountable
for the conduct of his Ministers, so ultimately the buck stops
with him; it has to be his decision.
He added that there were "continually allegations
of breaches of the Ministerial Code, some of which are essentially
very small-scale and easily dealt with" so it would be "very
hard to say that any allegations of any breaches of the Ministerial
Code should automatically be referred" to him.
42. A point of comparison is the role of the Parliamentary
Commissioner for Standards. Since the creation of this role in
1995, its occupant has decided autonomously which complaints against
Members of Parliament to investigate, without a political filter
of the kind that applies to the independent adviser. Clearly,
an autonomous investigatory function would change the role and
resource requirements of the independent adviser, but the example
of the Parliamentary Commissioner suggests that it would be entirely
practicable. We also note that, with the creation of such a function,
the Prime Minister would remain responsible for deciding whether
to retain a Minister in office or not.
43. In his evidence to us about the role of the independent
adviser Sir Christopher Kelly, Chairman of the Committee on Standards
in Public Life (CSPL) told us that "I think it was almost
certainly a breach of the Ministerial Code that [the adviser]
was not employed" to investigate the allegation against Liam
Fox. For the avoidance of doubt, Sir Christopher subsequently
corrected this in a letter which stated that his statement was
incorrect as "the Code is clear that the Prime Minister has
discretion about whether to invite the independent adviser to
undertake an investigation, even in the case of allegations about
breaches of the Code as serious as those made about Dr Fox".
The letter emphasised that CSPL had previously recommended that
the independent adviser should have the power to instigate his
own inquiries in appropriate situations.
44. As PASC
recommended in the last Parliament, we again recommend that the
independent adviser should be empowered to instigate his own investigations.
The Prime Minister could do this on his own initiative, without
any need for legislation, but placing the post on a statutory
footing would be preferable.
Co-ordination with related offices
45. Sir Philip recommended that any potential changes
to the role of the independent adviser should be considered alongside
other "aspects of these arrangements in Government",
such as the Advisory Committee on Business Appointments, which
advises former ministers and Civil Servants on the suitability
of appointments after they leave the public sector, "which
have grown up in a higgledypiggledy way".
We are currently conducting an inquiry into the role of the Advisory
Committee on Business Appointments.
46. PASC in the last Parliament recommended a "collegiate
structure" for the ethical regulators connected with the
executive, under the scrutiny of Parliament and sponsored by a
Public Standards Commission.
PASC recommended that
The reform of ethical regulation in British public
life should be undertaken openly, consensually, and on the basis
of principle. There must be an end to ad hocery. It is time to
recognise that machinery for the regulation of conduct in public
life is a permanent part of our constitutional arrangements, and
needs now to be put on a proper statutory footing.
believe there is a strong case for more structured co-ordination
of the work of the various regulators of propriety in public life
and will consider in our future work how this might best be achieved.
19 Letter From Ursula Brennan to Sir Gus O'Donnell,
10 October 2011, para 14, Cabinet Office website Back
Qq 338-339 Back
Q 340 Back
Q 401 Back
Report by the Cabinet Secretary: Allegations against Rt Hon
Dr Liam Fox MP October 2011, para 1, Cabinet Office website Back
Ibid. para 20 Back
Report by the Cabinet Secretary: Allegations against Rt Hon
Dr Liam Fox MP, October 2011, para 27, Cabinet Office website Back
Ibid. para 23 Back
HC Deb, 19 October 2011, c923 Back
Letter From Ursula Brennan to Sir Gus O'Donnell, 10 October 2011,
para 4 Back
Civil Service Code, November 2010, para 3, www.civilservice.gov.uk Back
Ibid., para 6 Back
Public Administration Select Committee, Nineteenth Report of Session
2010-12, Leadership of change: new arrangements for the roles
of the Head of the Civil Service and the Cabinet Secretary,
HC 1582, Q 75 Back
Q 66 Back
Q 60 Back
Q 62 Back
Q 22 Back
Q 60 Back
Q 51 Back
Q 60 Back
Public Administration Select Committee, Leadership of change,
Q 260 Back
Independent Adviser on Ministers' Interests Annual Report 2010-11,
Cabinet Office website Back
Q 42 Back
Q 47 Back
Q 54 Back
Q 367 Back
Public Administration Select Committee, Leadership of change,
Q 352 Back
Q 23 Back
Q 55 Back
Q 24 Back
Q 25 Back
Q 21 Back
Q 43 Back
Q 26 Back
Q 20 Back
Q 21 Back
Q 99 Back
Q 99 Back
Q 92 Back
Q 110 Back
Q 113 Back
Q 113 Back
Ev 16 Back
Qq 46, 70 Back
Public Administration Select Committee, Fourth Report of Session
2006-07, Ethics and Standards: The Regulation of Conduct in
Public Life, HC 121-I, para 111 Back
Ibid. para 113 Back