House of Commons - The Prime Minister's adviser on Ministers' interests: independent or not?

The Prime Minister's adviser on Ministers' interests: independent or not? - Public Administration Committee Contents

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.[19]

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.[20] In his evidence, Sir Gus stated that "with hindsight, I think it is probably right that this should have come to me earlier, yes".[21] He further stated:

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.[22]

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".[23] 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.[24]

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.[25]

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".[26] 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".[27] 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.[28]

19. The Civil Service Code requires officials to act with "integrity, honesty, objectivity and impartiality".[29] Civil servants must "fulfil [their] duties and obligations responsibly".[30] 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.[31] 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".[32]

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

21. Sir Philip Mawer was not asked to investigate the conduct of Liam Fox. Sir Philip viewed this as "a missed opportunity".[33] It was, he told us, the "low point" of his time in post.[34] 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.[35]

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.[36]

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.[37]

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.[38]

Time

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.[39]

25. In 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.[40] In his evidence to us, he explained the need for "due process" during his investigations:

a due process has to be gone through—which, if you were in the hot seat, you would wish to be gone through—in 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 concerned.[41]

26. Sir Philip did accept that "there is a need for speed in these matters".[42] He also stated that he was "never given the opportunity to prove that [he] could produce the report quickly."[43]

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 past—in the Shahid Malik case, for example—the 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.[44]

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 resigned".[45]

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 case—there was a clear-cut case" of a breach of the Ministerial Code.[46] The Prime Minister therefore "felt there was no point in further inquiry" and "brought the matter to a close".[47] It was, Sir Philip stressed, not his decision, but the Prime Minister's.[48] 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".[49]

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 BEEN INVOLVED?

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".[50]

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 should be:

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.[51]

34. Sir Philip added that he could not "insist [on carrying out an investigation] when the decision rests with the Prime Minister".[52] Instead, as a result, there was still an unresolved issue "around how the adviser is engaged and brought into play in his investigatory function".[53] His view was that "there needs to be a more ready willingness to engage the adviser earlier in the whole process".[54]

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 ADVISER'S PROCESSES

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".[55] This point was, Sir Alex reported, accepted by the Cabinet Secretary.[56]

Shorter investigations

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.[57]

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.[58]

40. We 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.[59]

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.[60]

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".[61] 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".[62] 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.[63] 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.[64]

47. We 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

20 Qq 338-339 Back

21 Q 340 Back

22 Q 401 Back

23 Report by the Cabinet Secretary: Allegations against Rt Hon Dr Liam Fox MP October 2011, para 1, Cabinet Office website Back

24 Ibid. para 20 Back

25 Report by the Cabinet Secretary: Allegations against Rt Hon Dr Liam Fox MP, October 2011, para 27, Cabinet Office website Back

26 Ibid. para 23 Back

27 HC Deb, 19 October 2011, c923 Back

28 Letter From Ursula Brennan to Sir Gus O'Donnell, 10 October 2011, para 4 Back

29 Civil Service Code, November 2010, para 3, www.civilservice.gov.uk Back

30 Ibid., para 6 Back