UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 1762-iv

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

PUBLIC ADMINISTRATION Committee

BUSINESS APPOINTMENT RULES

Monday 26 March 2012

RT HON LORD LANG OF MONKTON DL

Evidence heard in Public Questions 288 - 411

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Oral Evidence

Taken before the Public Administration Committee

on Monday 26 March 2012

Members present:

Mr Bernard Jenkin (Chair)

Charlie Elphicke

Paul Flynn

Robert Halfon

Kelvin Hopkins

Greg Mulholland

Priti Patel

Lindsay Roy

________________

Examination of Witness

Witness: Rt Hon Lord Lang of Monkton DL, Chair, Advisory Committee on Business Appointments, gave evidence.

Q288 Chair: Welcome to this session of our inquiry into the Advisory Committee on Business Appointments. Perhaps you would identify yourself for the record.

Lord Lang of Monkton: My name is Lord Lang and I am chairman of the Advisory Committee on Business Appointments.

Q289 Chair: You are very welcome to this session, and thank you very much for joining us. If you wish to say a few words to start with, please do so.

Lord Lang of Monkton: If I may, I hope it will be helpful. I want to start by welcoming the fact that this Committee is looking into the future of the Advisory Committee on Business Appointments and the rules. It is extremely apt, and I am very keen to be as constructive and helpful as I can, recognising that these days government has become much more porous than it used to be, with people coming into and out of government in various shapes or forms. I do not know that there are many GOATs nowadays, but there are still special envoys, tsars and advisers on certain issues. In the Civil Service people are much more mobile; they come in on short commissions, and civil servants go out into business on secondments and then come back in. Against that background it is absolutely right to look at the arrangements and see what can be done.

The advisory committee is not the whole process; it fulfils part of it, but it is one that begins with government, who set the founding principles and approve the rules under which we operate and appoint the committee. We then deliberate proportionately and pass judgment, but in doing that we are obliged to take account of those founding principles. If I may, I would like briefly to remind the Committee what they are. The rules emphasise the public interest that "people with experience of public administration should be able to move into business or other bodies, and that such movement should not be frustrated by unjustified public concern over a particular appointment." They go on to say that "there should be no cause for any suspicion of impropriety." On the one hand, there are people who think that nobody who has been in public service, either in government or the Civil Service, should ever have a job again, or not for a very long period of years, and, at the other extreme, there are a few who say there should be absolutely no control whatever. It is important to strike the right balance. I do not think the balance can be defined in absolute terms because it has to take account of quite a lot of factors. That is the sort of thing our committee does.

As the Committee knows, we are an independent advisory body. We do not have policing or investigative powers. I absolutely understand that, looking at it from outside, you must feel there should be some way in which investigation, policing and enforcement can take place. It may be you decide to recommend to the Government that they appoint a statutory body with all those powers, and it is your privilege to do that. If you do I hope you will define the nature of the powers and consider all the implications, because it is quite a substantial change. If that happens, fine. You will get no resistance from our committee; we will accept whatever the Government decide.

Where we can be helpful, however, to a greater degree-we are already working in that direction-is in increased transparency of the present arrangements to help fulfil the Nolan intentions of enabling the light of public opinion to shine upon these matters and achieve the appropriate corrective measures. We are now increasingly displaying in the things we put on our website the rationale behind the decisions we take. In the past those letters of approval were narrowly confined and did not convey much information, so we are trying to put more information into the public domain that way. But I am also concerned that the media, seeking a lurid headline or because they do not have the information, jump to conclusions, which is unfair to the individuals concerned. I would also like to see a way in which that could be dealt with, but these are issues that I hope will emerge in discussion. I will be very happy to try to answer questions and give you some more thoughts.

Chair: That is certainly useful. These issues are of concern to us. We are indeed considering a different kind of organisation that might undertake this role, not least because a statutory post or committee would have powers and authority to command public confidence in the process, which, I confess, we find an informal process has some difficulty in doing, and we want to explore that further today.

Q290 Priti Patel: You have already spoken about striking the right kind of balance. From the applications you have seen in your time as chairman of ACoBA, are the public right to be worried about the revolving door between business and the public sector?

Lord Lang of Monkton: They are right to be concerned that the people passing through the door have been properly monitored and that the jobs to which they are keen to go have been properly appraised. We do that, and I think we do it well. We take advice from permanent secretaries; we question the individual; and we explore all the possible nuances and how they might prejudice the public interest. Sometimes we consult the company to whom they are going and its competitors to make sure that no undue reward is being achieved.

I do not think we are doing as well as we might, although we have made giant strides, in publicising the thinking that has informed our decision. I am trying to think of a suitable example. If somebody in a particular Department has been involved in a contract several years before they came to us, we would now probably spell out the fact that it was several years before, which we would not have done in the past. That would avoid any misunderstanding, if the general public view was that, say, a period of five years or thereabouts was enough to create a quarantine. By spelling out those things I think we can help.

One personal suggestion that the Committee might like to consider is that, because we do not have investigative and enforcement powers, if a media story is published that accuses a former Minister or permanent secretary of having taken advantage of his or her position to get a job with a company with whom he or she had had commercial dealings previously while in government, a serious allegation of that kind should be investigated quickly. I know that recently you interviewed the newly appointed ministerial adviser. It seems to me that he might be in a good position to produce at any rate a prima facie examination of the true facts and possibly spell those out to the media. It may be you think he should refer it on to another committee or body that has enforcement powers more powerful than any he may have, but I suggest there may be a way in which others can do the enforcement or clarification that would not jeopardise the independent advisory role we have at present but would create a better result for public opinion.

Q291 Priti Patel: To unpack that a bit, do you think the public have genuine confidence? They have concerns and reservations. If there is an inquiry, for example, or a misdemeanour or some act of impropriety, do the public have genuine confidence in the process if it is referred to what they would see as yet another committee?

Lord Lang of Monkton: I do not think there is huge strength of public opinion. I know that TIUK did an opinion poll, but opinion polls do not always generate a real answer. If I were an outsider and I read some of the stories that had appeared in the press, I would be concerned, so anybody who reads those stories must have a measure of concern. My anxiety is that those stories are giving a misleading picture, whether intentionally or otherwise. In my experience of the committee over the past two and a half years, the vast majority of people who come to us have absolutely no intention of trying to pull the wool over anyone’s eyes or secure a special advantage in one way or another. They are looking for a job. In many cases they have not thought ahead, quite understandably, and, in the absence of anything they can see, they try to trade on the experience they have gained in their business career. It is also a two-way street. There are benefits to be had from people with experience in government going into the private sector, as well as the other way.

Q292 Priti Patel: Under the most recent revision of the business appointment rules, ACoBA no longer sees applications from senior civil servants at director level or below. Has that affected your overview of the appointments being sought and accepted by senior public servants?

Lord Lang of Monkton: To talk about those below the level that we see, which remains unchanged, what we have now under the new rules is an oversight responsibility of the Departments. We are not a large body; we have 4.5 personnel, but we have been round all the major Departments to explain how the system is meant to work, and we will be embarking on a monitoring role of the Departments individually. The permanent secretaries are very important participants in this process, because they have responsibility for the way in which their Departments handle applications below the levels we can handle. They have to produce henceforth effectively an audit certificate that they have implemented the rules fully and efficiently and they stand by them, so they are held to account for them, but we want to maintain a continuing monitoring role and involvement.

Q293 Charlie Elphicke: One of my concerns, which I believe people have as a whole, is the competing priorities, if you like. A person who has worked for the Government, or served the country, needs to eat and live after a life in government or politics. On the other hand, there is an understandable concern about the access that person may have, and that they may be able to warp the political system. Where is the balance to be struck?

Lord Lang of Monkton: That is the big question. It depends entirely on the individual circumstances. If you are dealing with somebody in a Department who has had no contact of any kind with the outside business world and has no particularly marketable skill in that sense and, for the sake of argument, makes an application to join a charity, we would probably have very little difficulty. We would probably still impose a two-year lobbying ban because that is now virtually standard, but it would be unlikely that we would want to impose major controls or barriers to his proceeding. If, at the other extreme, he was a permanent secretary who had spent the last five years knee deep in a negotiation on a contract that had just been awarded and he then went to the company that had won it, we would be very concerned.

Q294 Charlie Elphicke: If they ignore that lobbying ban, what can you do about it?

Lord Lang of Monkton: That was the point I was trying to make earlier. If they ignored the lobbying ban and we were asked, we would give information about the terms on which we had imposed it and it would be self-evident that there had been a breach, and it is then for others under Nolan principles to react.

Q295 Charlie Elphicke: How? What is the sanction?

Lord Lang of Monkton: The sanction is public opinion and reputational damage. It is not a crime; it is not a statutory civil offence, at least not in the normal run of things as far as I am aware, but it is something about which I would be concerned, and I am sure you would, too. Members of Parliament and the media have a role in it; they form and influence public opinion to a large extent.

Q296 Charlie Elphicke: I totally agree that you and I would be concerned about it, but is not the issue here that effectively the emperor has no clothes?

Lord Lang of Monkton: There is a potential issue, yes. In reality, I think there have been very few abuses. I could go into more detail on some of those cases, but unfortunately I am unable to name names.

Q297 Kelvin Hopkins: To put a very simple point and get it on record, we are not talking about all jobs. If one leaves to become a teacher, bus driver, principal of an Oxbridge college, a trade union official or TV presenter, there is no problem at all. We are talking specifically about jobs with companies that have particular Government contracts. Those like me who take a critical view are not saying that people cannot work after they leave here, but we are specifically concerned about those who work in companies that have Government contracts involving large sums of money.

Lord Lang of Monkton: That is where the focal point ends up, but we do not categorise them in those ways. Everyone who is in the category that requires them to come and see us, or put in an application to us, is treated in the same way in the sense that we go into the case, apply the various criteria that govern our decisions and influence our reaction, and then reach a conclusion. But you are quite right that the conclusion we would reach in the case of many of the categories you have described would be quick and relatively easy to do and would not be unduly burdensome on them.

Q298 Charlie Elphicke: Last time you came here the business appointment rules were different. They have now changed to encompass civil servants. First, have you made any changes to the way ACoBA works in the light of the changes to these rules? Second, I understand that previously you said that you cannot or should not comment on the rules themselves but you can introduce a new policy on consultancy services that is not set out in the rules. Can you explain that?

Lord Lang of Monkton: I am not sure I understood what you said.

Q299 Charlie Elphicke: In terms of the business appointment rules for civil servants, is there any effective change in the way ACoBA works, or does it just work bigger?

Lord Lang of Monkton: It makes our task in a sense a little simpler because the rules are clear and consistent as between the ministerial and Civil Service sectors, but in essence it is a toughening up of the rules, particularly on lobbying, which we sought and welcomed and that makes our task easier. I think that is the clearest answer I can give you.

Q300 Charlie Elphicke: To move to process, can you explain in a nutshell, or in the form of an idiot’s guide, the decision-making process that you use in arriving at particular constraints and restrictions, how a particular case works through from start to finish, and what sort of considerations would lead you towards a shorter lobbying ban, or tip the balance between imposing strict constraints and deeming it an unsuitable appointment?

Lord Lang of Monkton: I described the process in detail in my last interview a year ago, and I will happily go through it again. In essence we ask the applicant to fill in an application form. Incidentally, I mention in passing that we pressed the Cabinet Secretary to make sure that departing Ministers are aware that they have to come to us. Some of them were not aware of it before, or perhaps had not taken it on board when they were appointed that that would happen.

Our secretariat look through that application form and explores any potential conflicts that they see, such as connections with an industrial company, the award of contracts or whatever, and tell us the facts they have ascertained. They compare that with the norm for cases of this kind and then recommend any departure they think is appropriate, and give us the reasons for it. The committee then reaches a conclusion. The individual is told what the committee is minded to conclude in its recommendation to the Prime Minister but gives the applicant the opportunity to talk to us if they think it is an unfair outcome. I suppose that about half a dozen come to see us every year. We have a meeting with them; we listen to what they say, and then we reach a firm conclusion and make our recommendation.

Q301 Paul Flynn: In your opening remarks you said there were those who believed that people who have retired from public service should never work again. Who said that?

Lord Lang of Monkton: It is a general view that is often expressed.

Q302 Paul Flynn: You have made it up; it is an invention of yours that you have made for effect.

Lord Lang of Monkton: No, I have not.

Q303 Paul Flynn: Tell us who they are. I would be fascinated to hear.

Lord Lang of Monkton: I do not think I know all their names, Mr Flynn, but you must be aware there is a view that they should not work again, or not for several years, or not in the industry related to the Department in which they worked.

Q304 Paul Flynn: Who has said that they will never work again? That was your opening remark. Please tell us. I would be amazed if somebody ever said that.

Lord Lang of Monkton: I did not express it as a quotation.

Q305 Paul Flynn: Is it not right that it is an absurdity of your own creation that you set up to knock down?

Lord Lang of Monkton: No, I am not trying to knock it down. I accept that there is a view at that extreme and that there is a view at the other extreme, and it is somewhere between those two extremes that we have to find a sensible way forward.

Paul Flynn: And it exists in your vivid imagination.

Q306 Lindsay Roy: To go back to an earlier discussion, is ACoBA clear about what constitutes lobbying? Last week I asked the Deputy Prime Minister, and we were told that there was still consultation about what "lobbying" means.

Lord Lang of Monkton: It is a very difficult thing to define. Lobbying in a sense is something that is in the nature of democratic government. At its toxin-free best, it is an entirely creditable and desirable activity in politics, but we are governed by the definition the Prime Minister laid down when he came into office, which I am sure you have already. If not, we can let you have it. That is what guides our approach.

Q307 Lindsay Roy: There is healthy lobbying and unhealthy and unsavoury lobbying.

Lord Lang of Monkton: That is probably a reasonable definition.

Q308 Lindsay Roy: You are clear about the distinction.

Lord Lang of Monkton: I wish the distinction could be more clearly defined, but there is a general view that some aspects of lobbying are creditable. I am glad the Government have recognised that this issue has to be addressed.

Q309 Chair: I am looking at note 4 in the business appointment rules for civil servants. The definition of "lobbying" appears in a footnote. Is that ACoBA’s or the Government’s definition?

Lord Lang of Monkton: It is the Government’s definition, and it goes in the approval letter that we send out to every applicant.

Q310 Chair: It is ironic that lobbying is such a huge part of this but it appears only in very small type in a footnote to the rules. One would have thought the rules should reflect this more centre stage.

Lord Lang of Monkton: I will have a word with the secretariat and make sure it is put at centre stage in the letter in future. I apologise for that.

Q311 Paul Flynn: If one of your applicants is likely to be embarrassed by the slowness of the process, have you any way of fast-tracking such an applicant, if otherwise they are likely to lose a job?

Lord Lang of Monkton: We can fast-track applications, and we do whenever we find a sensitivity. We are, however, slightly at the mercy of the applicant himself or herself and the Departments from whom we seek information.

Q312 Paul Flynn: What is the average time an applicant has to wait before you reach a decision?

Lord Lang of Monkton: We aim for 15 to 20 days, but we have published some figures.

Q313 Chair: I have read the brief and can tell you that 55% are done on time.

Lord Lang of Monkton: I read that figure as well. There are different categories, but, on the whole, we are pretty good. Last year we fell below our target. I recall that it went down to 55% from 75% because we had a large bulge of applications last year.

Q314 Paul Flynn: You mentioned publishing the reasons for your decisions. Are you expanding this? How far can you go in publishing the reasons?

Lord Lang of Monkton: We are pushing the envelope, and we have not reached the buffers yet. When you see our report for the current year, which is about to end, you will find, I hope, many more longer presentations on the website that will reflect the sorts of things that govern the particular case, and which also embody the undertakings that might have been given verbally in the context of the applicant promising that he was not going to do this or that, and trying to bind the applicant to those undertakings by putting them on the record. It is that sort of thing we are trying to do.

Q315 Paul Flynn: Not all the people who have given evidence to us have been satisfied with the way they were received by ACoBA. They did not talk to the committee but to a clerk, and there was a general feeling of unhappiness due to the lack of contact and opportunity to make their cases. Is this fair comment? Do you have a way of getting feedback from unhappy applicants as to the reasons for their unhappiness?

Lord Lang of Monkton: I suppose the reason for the unhappiness is that they found we were rather more robust in handling their case than they would have liked, but we do make ourselves available at any time for any applicant to come and speak to us if he or she is unhappy. I read some of the evidence you received from a civil servant who expressed the sort of view you just described. We had offered him the chance to come and talk to us and he declined it.

As to the talk with the secretary at the beginning, that is because the initial contact is with the head of the secretariat, who will spell out the sort of process that would have to be gone through and, on request, would send an application form.

Q316 Paul Flynn: What do you do with those cases that have appeared in the public press, without identifying anyone, where contracts involving billions of pounds have been awarded and some of the Ministers involved in the awarding of those contracts take up posts with companies that have benefited from them?

Lord Lang of Monkton: We try to get the facts into the public domain through our press officer, sometimes with difficulty. Sometimes the facts are ignored. The last case I read where an allegation of that kind was made involved a contract that was not approved until a year after the Minister in question had left the Department, and it was six years before that Minister came to us with an application. That particular Minister had been in another Department, or even two, for the intervening five or six years. Against that background, if that information had been in the public domain the headline would not have been justified.

Q317 Paul Flynn: We had interesting evidence from someone of unquestioned probity, Lord West of Spithead. He talked about his own misgivings when he was in the service about the creation of QinetiQ. It was a rip-off of the taxpayer, because of the amount of copyright material they had at bargain prices, that enriched the people who set it up. He is now working for QinetiQ. He said that one of the questions asked by the committee was about his previous connections and whether he had had a hand in the decision to allow QinetiQ to develop as it did. Do you have any views on that? Is this an example of the committee behaving robustly and doing its job?

Lord Lang of Monkton: I cannot comment on the specific case you have named; it is not appropriate. We would, however, have made inquiries of the Department, not just the admiral himself, about the extent of his connection; when it had taken place; the extent to which this appointment might be a reward for past services, or an incentive to deliver more privileged information to them of some kind.

Q318 Paul Flynn: You do not disagree with the argument that you are toothless, and if they ignore your recommendations, apart from shaming people in the public prints, you really have no mechanisms-

Lord Lang of Monkton: I accept that we do not have policing, enforcement and investigative powers. I have said that to the Committee many times, and I am trying to help the Committee find a way of resolving that.

Q319 Paul Flynn: What should the Committee recommend?

Lord Lang of Monkton: I think the committee serves the purpose that it is set up to do. On the one hand, it is constantly between the two barriers of the desire that it is in the public interest for people leaving government to be entitled to move into employment, and, on the other hand, that there should be no justified public concern that they are gaining a special advantage from that. That is the area within which we operate.

The system does not stop with us, however; it continues outwith us. If the publicity that results from any disclosure that appears is unbalanced and gives an unfair view of the behaviour of the individual, or indeed of the conclusions we have reached because the public are not fully aware of the facts that we had available to us, clearly it is not working properly. I am suggesting that it might, therefore, be appropriate at that stage for the ministerial adviser to be in a position to take a role in it.

Paul Flynn: But the make-up of the committee is still four Members of the House of Lords, one general and three knights, I believe.

Q320 Chair: The membership of the committee is not for you, Lord Lang; it is a matter for the Government, is it not?

Lord Lang of Monkton: Membership is not for me, but those members are there not because they are peers or knights but because they have experience in the areas from which our client group comes. It is a legitimate view that that client group should not be represented at all, but it seems to me there are certain obvious advantages of having it that way and it is counter-intuitive to say that they should not be on the committee.

Q321 Paul Flynn: Can you tell us how many of them have lucrative outside interests themselves?

Lord Lang of Monkton: We publish those interests in our own register, and of course the interests of the peers would also be published in the House of Lords register. Nearly all have interests of one sort or another.

Q322 Paul Flynn: Do you not think their judgment is likely to be swayed by the fact that all of them are in a position to seek or have outside jobs, rather than that the decision is taken by someone who perhaps would not believe in one person, six jobs, or whatever it might be?

Lord Lang of Monkton: I do not understand how a conflict can arise from a member of the committee having an outside business interest. Are you suggesting that he would stop other people getting into business, or that he would welcome them into business?

Q323 Paul Flynn: No. They would be more permissive; they are judging people of their own kind.

Lord Lang of Monkton: No. They would have a clearer understanding of the sensitivities and difficulties that might arise. Most of them are retired from active careers. Most have non-executive roles, if they are in business at all, rather than executive positions.

Q324 Paul Flynn: Do you think the hours of work and effort you have put into the committee have been worthwhile?

Lord Lang of Monkton: Yes, because I accept that the committee has a narrowly defined function. As long as we fulfil that function effectively, I believe we are doing the job properly. I believe that we have done the job effectively. Of course, I am open to suggestions. I have made one suggestion as to how we can do more, but I do not accept the general premise one tends to hear that it is a revolving door against which people just have to push and go straight through into a job that compromises their integrity.

Q325 Chair: To press you a little further on whether you should take feedback in a more concerted way from the people who seek your advice, we have had informal conversations with people who have been through the ACoBA process and feel grievously treated by it, not least one or two of those who lost their seats and livelihoods at the last election and found themselves without employment. They felt they were in a very invidious position in having to explain to employers and to their families why there were so many constraints on what they might do-constraints that would not have existed just a few years ago.

Lord Lang of Monkton: You are coming at me from the opposite direction from which public opinion normally comes.

Chair: I am.

Lord Lang of Monkton: I absolutely understand it, and we try to be sympathetic and proportionate. I mentioned earlier a junior Minister with a family who lost his seat and urgently needed a job. We are constrained by the rules; we have to impose a two-year lobbying ban in every case. There are very rare exceptions to that, which I am happy to discuss with you, but we do our very best to take account of the circumstances of the individual. I am not aware of anybody who has experienced the sort of thing you describe.

Q326 Chair: It is not your responsibility to make sure that a departing public servant is aware of your rules. That is the job of the permanent secretary or responsible officer in that Department.

Lord Lang of Monkton: Yes, it is, but it is our job to make sure that the permanent secretary is doing that, and that is the exercise we are pursuing.

Q327 Chair: We have found evidence of cases where people have agreed to leave and then found they have to exist for three months without any employment at all because what they planned to do they are not allowed to do until they have been through a period of purdah.

Lord Lang of Monkton: I think they are all in possession of the Civil Service rules.

Q328 Chair: That is not what we have found.

Lord Lang of Monkton: I have come across cases, particularly with the GOATs in the last administration, of people who were not properly told either by the then Prime Minister or the Civil Service.

Q329 Chair: What is the remedy for that?

Lord Lang of Monkton: The remedy is to press them to do it, and I have done that. I have had meetings recently with the Cabinet Secretary and head of the Civil Service. In one case where there was an unsatisfactory outcome involving a senior civil servant, I wrote to both the Prime Minister and the Cabinet Secretary to complain.

Q330 Chair: But there is a problem when responsibilities are divided like this, isn’t there? You are not part of the personnel function of the Government.

Lord Lang of Monkton: We could not handle the whole thing without a huge extension of our staff. The large majority of civil servants are handled by the Civil Service Department. I do not think the rules operate badly, but I would be better able to tell you that once we have completed our audits.

Q331 Chair: To pick up two other points raised by Mr Flynn, do you have a problem of capacity? Are there periods when you are overwhelmed? Do you need more resource in order to be able to do your job effectively at times?

Lord Lang of Monkton: We have not been overwhelmed thus far, but in 2010-11 we had 95 Ministers and 63 civil servants. That is not the number of Ministers but the number of cases that came to us, because a Minister might come to us twice if he has two job offers. That comes to 158, but the average over the previous two years for Ministers was not 95 but 34, and in the current year there are 71 cases.

Q332 Chair: It would seem to be predictable that if there is a general election and a big changeover, there will be a big change in workload. Does the Cabinet Office staff you accordingly to deal with that extra work?

Lord Lang of Monkton: I think my secretary, who is sitting behind, would say, "I wish, I wish." The answer is no. We run a very tight ship, and our secretariat is shared with the House of Lords Appointments Committee.

Q333 Chair: Please be as blunt as you like. For your committee to operate effectively you need a flexible staffing regime; you need extra staff when there are big bulges of demand upon your resource.

Lord Lang of Monkton: Yes, you are right; that would help, but, on the whole, we are meeting our time targets.

Q334 Chair: I would not say 55% is a very good hit rate for your targets.

Lord Lang of Monkton: No, it is not. That was the year when there was a huge inflow.

Q335 Chair: But that is not satisfactory, is it? It should not be allowed to happen again.

Lord Lang of Monkton: Absolutely; it was not satisfactory at all.

Q336 Chair: The other question is about who sits on the committee. You now have to deal with a fair number of special advisers, but you have no special adviser on your committee.

Lord Lang of Monkton: No, we do not.

Q337 Chair: Should you have?

Lord Lang of Monkton: But we do not have any permanent secretaries either. You cannot reflect every category on the committee. A special adviser is a member of the Civil Service. We were keen to have them covered by our rules and come to us, and that is now what happens, because special advisers network extensively and are very close to major decisions within Departments. Therefore, one can see the potential-

Q338 Chair: I suppose that, somewhat like younger Ministers, special advisers are at a more vulnerable stage of their careers, very often supporting small families.

Lord Lang of Monkton: Yes, they are. That is why the Prime Minister accepted that their lobbying ban should be confined to one rather than two years.

Q339 Chair: But I am thinking in terms of how their cases are treated by your committee. Would it not be better if there was a special adviser on your committee?

Lord Lang of Monkton: I do not think it is necessary, Chairman.

Q340 Lindsay Roy: You claim that ACoBA is robust. What evidence do you have to support that?

Lord Lang of Monkton: The Chairman described a number of disgruntled people who have come to you to complain that we were too robust.

Q341 Chair: I would not put it as strongly as "complaints".

Lord Lang of Monkton: We are independent and we have to be as balanced and proportionate as we can be, but where we see a potential for danger to the public interest, we have to react to it, and we do.

Q342 Lindsay Roy: I am not sure Lord West felt it was a robust system.

Lord Lang of Monkton: I think Lord West suggested that the matter would be better sorted out over a quiet drink somewhere. I may misrepresent his exact words, but that was the flavour of his reaction.

Q343 Lindsay Roy: He was concerned about the lack of personal contact and dialogue.

Lord Lang of Monkton: He could have come to see us at any time if he wished to. The reason we contact him and all clients initially with the provisional conclusions we have reached, rather than sign the letter to the Prime Minister, is to give them the chance to come and talk to the committee. It is not appropriate for me as chairman to ring up and say it because one might then be drawn into conversation.

Q344 Chair: If truth be told, the feedback we have been getting from your customer base is that it is all a bit remote and obscure and that divided responsibilities do not help.

Lord Lang of Monkton: The "obscure" point may reflect the fact that until recently we have not been spelling out in the letter the rationale for our decision and the need to react to the undertakings and commitments that they have given us.

Q345 Chair: I think it is more about the nature of personal contact. I hasten to add there has been no criticism of your committee staff; they have been endorsed as polite and helpful when there has been contact. "Shady" is the wrong word, but it is just obscure and difficult.

Lord Lang of Monkton: We have to be even-handed, fair-minded and dispassionate. I think that the system as we operate it achieves that more effectively than a word on one side. On the other hand, it is made clear that every applicant has the right to come and see us, and some do.

Q346 Chair: The other criticism has been slowness, but you have explained why that has happened.

Lord Lang of Monkton: It depends. Not very long ago we turned a case round in six days because it was very urgent.

Q347 Chair: You mentioned last time you came before us that you were to have a meeting with Sir Bob Kerslake early in 2012 to discuss the problem of retrospective applications from civil servants. Have you had that meeting?

Lord Lang of Monkton: Yes, we have.

Q348 Chair: What came of the discussions?

Lord Lang of Monkton: It was recognised that this was unsatisfactory, and the point has been taken on board. I also raised it with Sir Gus O’Donnell in his time as Cabinet Secretary. I believe he raised it at one of the regular meetings of the permanent secretaries. It was a bubble in the system. I have some figures here to show that there were nine retrospective applications in the current year, which is when most of them have arisen. In part, that may be because the rules are now clearer and people have a better understanding and woke up to the fact, perhaps rather late in the process, that they should have come to us.

Q349 Chair: Do you have any suspicion that they were malign in their lack of timely application, or do you believe this is oversight on their part?

Lord Lang of Monkton: I do not think they were malign. There was one very unsatisfactory case in our view because it involved a permanent secretary not fulfilling the rules appropriately. Permanent secretaries are responsible not only for setting an example in their Departments but also for administering the rules within them.

Q350 Chair: We are aware of the case and we do not need to name him, but that does suggest that it has not passed into the culture that these rules exist and need to be applied.

Lord Lang of Monkton: I think it has. We are talking about a small number. Nine is not very many.

Q351 Chair: But it was a permanent secretary.

Lord Lang of Monkton: Yes; it was one permanent secretary. I agree that was a special case.

Q352 Lindsay Roy: Out of how many?

Lord Lang of Monkton: We do not have the final figures for the current year, but at the moment we have dealt with 71 cases, of which 50 have been taken up. Those figures will rise.

Q353 Chair: It is an appreciable percentage.

Lord Lang of Monkton: Yes, but last year in the Civil Service there was one and the year before that there were two; for Ministers, in the year before there were three and the year before that there was one.

Q354 Chair: But it suggests that because these are voluntary rules they tend to get a bit forgotten.

Lord Lang of Monkton: They do get forgotten. In the current year we have had four from Ministers, and that was because we sent a letter in May 2011 to remind Ministers that they were still subject to the rules for the following 12 months. That generated four as opposed to three the year before and one the year before that.

Lindsay Roy: Does "voluntary rules" make sense?

Chair: The oxymoron had struck me before this meeting.

Q355 Kelvin Hopkins: Does the committee regard it as good practice for Departments to publish their approvals? Should their view be taken on board by ACoBA with their reasons and recommendations as well? A situation could arise where your committee approves and the Department is unhappy about it.

Lord Lang of Monkton: That is a very interesting suggestion, and it is one that we will explore as we go round the Departments. So far our visits to them have been confined to explaining how the rules are meant to operate, but, as we go round to find out how they have been operating them, which we shall be doing in the months ahead, we can explore that point as well.

Q356 Greg Mulholland: One of the issues before the Committee is the status of ACoBA and its powers to ensure that what it recommends happens. Do you agree that a good part of the problem is the lack of full information available in the public domain to give people confidence in the process? When you were before us in February you said that the committee had agreed to publish the number of cases where advice was provided but appointments were not subsequently taken up. Is that now happening? Does that also refer to informal advice given when someone seeks the committee’s advice informally?

Lord Lang of Monkton: No. We do not publish the informal advice, by which I mean the initial indication that the secretary gives to an applicant that may dissuade them from coming forward, or they may decide for other reasons not to pursue the job.

Q357 Greg Mulholland: I do not mean the advice. Is there no record of the number of people who do that?

Lord Lang of Monkton: Not of those who ring us up and say, "I’m thinking of going for a job with such and such. What would happen?" She would tell them and suggest they fill in an application form. If the application does not come in, it may be because they have been put off it by what she has indicated. That is unlikely; it is more likely that the job just does not materialise, but where an application does come to the committee and the job is not taken up, we record the numbers. We do not publish the names because there is an obligation of confidentiality, and we are confined to publishing the names of those who actually take up positions. We try to check up on whether or not these positions are taken up; we have regular contact with them, and we end up knowing pretty accurately.

Q358 Greg Mulholland: In the session in February we identified a concern whereby the committee simply did not know the outcome of cases. In the last annual report period published in November 2011 there were 23 appointments where the outcome was not noted, and may not have been known by the committee. You mentioned that this year there had been 71 applications and of those 50 posts had been taken up. What about the other 21? Do you have a record in each and every case, because in the past that certainly did not seem to be the case?

Lord Lang of Monkton: There was a misunderstanding that somehow got into your Committee that we did not have proper records of anything. We have records of all the cases that are taken up and not taken up, but as to the latter we do not publish the names because they are not taken up and, therefore, in that sense the issue is dead.

Q359 Greg Mulholland: That certainly was not the case before.

Lord Lang of Monkton: May I react to the other figures you mentioned? You referred to the 71 cases we had looked at, of which 50 had been taken up. The other 21 may well be taken up. Sometimes there is quite a long delay between our handling a case and being told that it has been taken up.

Q360 Greg Mulholland: But in the end every single case could be recorded from start to finish, and you can make a decision as to whether to do that on the basis of formal or informal advice, but that simply was not happening in the last period. You said that 23 appointments were not taken up, but the assumption is that-

Lord Lang of Monkton: The 23 not taken up were recorded; it was 10 Ministers and 13 civil servants.

Q361 Greg Mulholland: But you do not know what happened in those cases and whether people later took them up.

Lord Lang of Monkton: We do not know the reason they were not taken up. Do you think we should know that, and, if so, why?

Q362 Greg Mulholland: In terms of what we have before us, to say that those 23 people did not take up those appointments is simply an assumption; it is not known that they did not.

Lord Lang of Monkton: It almost certainly is, because we do follow up.

Q363 Greg Mulholland: But "almost" is not the same thing.

Lord Lang of Monkton: I do not think we would record them as not taken up unless we knew they had not been taken up.

Q364 Greg Mulholland: So, their status is still unknown.

Lord Lang of Monkton: No; their status is therefore known.

Q365 Greg Mulholland: That they have not yet taken it up.

Lord Lang of Monkton: But if they have not taken them up, they will have told us that.

Q366 Greg Mulholland: And that is then recorded.

Lord Lang of Monkton: Yes.

Q367 Greg Mulholland: But there are still some where it is not recorded that there has been a final decision.

Lord Lang of Monkton: Yes, because you cannot record the final thing until it becomes final. As to the 21 cases outstanding at the moment, probably most will be taken up but some might not.

Q368 Greg Mulholland: Since the last annual report, in how many of the 71 appointments where you have advised do you not yet know the outcome? Is it the 21?

Lord Lang of Monkton: Yes, it is the 21. We also advised that one was unsuitable, and I think that will count almost certainly as "not taken up".

Q369 Greg Mulholland: You mentioned last time that one person had appealed to the Prime Minister. I did not know there was that line of appeal. I do not know whether you agree with me that it is quite inappropriate for people to appeal to the Prime Minister in such a case.

Lord Lang of Monkton: It is allowed.

Q370 Greg Mulholland: It is allowed, but is it appropriate?

Lord Lang of Monkton: I think it is appropriate, if the person thinks it is worth doing.

Q371 Greg Mulholland: Even though this is supposed to be an independent process, or certainly that should be the public perception.

Lord Lang of Monkton: It is independent but it is advisory, and the person we advise is the Prime Minister or, in Foreign Office cases, the Foreign Secretary.

Q372 Greg Mulholland: Does that not demonstrate to you that this is simply not going to get public confidence? If the Prime Minister himself has the final say, this is to advise the Prime Minister rather than show the public that business appointments are happening in an appropriate way.

Lord Lang of Monkton: I do not think there is a problem. It is very rare. This is the only case before the present Prime Minister. I think the individual in question took our advice in the end and did not get any comfort from the Prime Minister. There was a case under Mr Blair in which he overruled the committee and gave a retired air marshal the entitlement to take up a position with a company with whom he had had dealings when he was in the Ministry of Defence, and the outcome of that was very unsatisfactory.

Q373 Greg Mulholland: Would you agree that it led to a lack of public confidence in the committee and system?

Lord Lang of Monkton: No. If anything, it probably vindicated the committee.

Q374 Greg Mulholland: But then you are toothless because the Prime Minister can overrule it.

Lord Lang of Monkton: I certainly admit that we do not have powers of enforcement.

Q375 Chair: That is not a criticism of you. We are exploring the issue.

Lord Lang of Monkton: I know you are, and I have suggested one possible way of achieving greater powers of enforcement and clarity of disclosure so that the Nolan principle can apply before or instead of going to a statutory arrangement with a completely different sort of arrangement for the committee.

Q376 Greg Mulholland: To take you back to the first question I asked, do you not think it would help public confidence, which you and the committee are very committed to, to say that X number of people came to the committee for informal advice, and of those Y withdrew or proceeded to carry on? That would give people the whole process from start to finish, would it not?

Lord Lang of Monkton: If this Committee makes such a recommendation, we would certainly take it very seriously. I do not myself think it is necessary, but I am prepared to be told that it is, if that is the Committee’s view.

Q377 Greg Mulholland: Is the case involving the Prime Minister now resolved? That was not known last time.

Lord Lang of Monkton: It is resolved in the sense that the individual concerned has taken our advice. I am not certain whether he got a reply from the Prime Minister or decided not to pursue the matter.

Q378 Greg Mulholland: But you knew that under the last Government Tony Blair had overturned your advice. Would you know only if the Prime Minister disagreed with the committee; or do you not know what the Prime Minister says anyway, and should that be in the public domain?

Lord Lang of Monkton: It may be the Prime Minister discovered that he had taken up the job anyway and decided it was not necessary to express a view or reach a decision, or it may be there is a reply pending from the Prime Minister; I cannot tell you that, but as far as I know it has happened only twice in the history of the committee, so it is not a major issue that should affect public confidence one way or the other.

Q379 Greg Mulholland: But should you and we not know?

Lord Lang of Monkton: I have told you about both of them, so you do know.

Q380 Greg Mulholland: We do not know the final outcome and what the Prime Minister said.

Lord Lang of Monkton: We have not produced our report on the current year in which that happened. It may well be we will put that in the report, and the fact you think it is appropriate is something we shall certainly consider in deciding that.

Q381 Chair: Meanwhile, the press notoriously add two and two and get about twelve and a half on a fairly regular basis in stories about people moving to or from government and the private sector. Do you monitor these kinds of explosions?

Lord Lang of Monkton: "Monitor" is putting it a bit mildly. We react to them, obviously. They usually happen on a Friday or Saturday in advance of a Sunday newspaper, and our press officer is asked to comment and gives them the information that we are able to give, which is what we have decided and recommended. What I think we might do, as I have tried to indicate, is put more information about the background and circumstances in which we have reached that decision into the letter of approval, and thus into the website, and then journalists will find it less easy to write a damning story that is unjustified by the facts.

Q382 Chair: Are you aware of a case where material appeared on your website about which the person concerned did not feel he had been advised?

Lord Lang of Monkton: I am aware, and I think I know the case to which you refer.

Q383 Chair: You must have been very unhappy about it.

Lord Lang of Monkton: We were very unhappy and concerned about it. There seems to have been some confusion whereby allegedly the full terms of our letter were not placed in front of the individual. I think that was part of the circumstances of that case.

Q384 Chair: Have you instituted any changes in procedure to ensure that you can have confidence that such a thing will not happen again?

Lord Lang of Monkton: We have emphasised the importance of all individuals seeing the full circumstances we have proposed.

Q385 Chair: Incidentally, as to the feedback we are in a position to give you, one or two of the people to whom we have spoken are fearful that, if they were publicly to criticise ACoBA, they would put themselves in an invidious position with your committee. I was at pains to reassure them that I did not think that was the case, but that gives an indication of how vulnerable they feel in this process. There have been one or two cases where vicious reporting of their circumstances has appeared and they feel that the comment that comes out of ACoBA is either neutral or unhelpful, even though they have obeyed all your rules.

Lord Lang of Monkton: We are talking slightly in riddles because I do not know which particular cases you are referring to.

Q386 Chair: To respect them, we have to maintain their anonymity.

Lord Lang of Monkton: Of course you do, and so do we; we have to be neutral and factual, as we are at the moment. What I have been describing is intended to try to make clearer the reasons for our decision and to protect the interests of the individual who is otherwise traduced in the press in the way that has happened. Most of the people who come to see us-indeed, some of the more abrasive people who seek an interview with us-end up recognising that what we have done has given them a degree of comfort and protection. We have to strike the right balance between the twin pressures that are constantly placed on us.

Q387 Chair: But if somebody is being unfairly maligned in the press, is there not a case for a named figure, rather than just a spokesman, to rally to their defence because they have obeyed the rules and done what they have been told to do and deserve to be defended, because presumably the system is intended to provide that kind of cover?

Lord Lang of Monkton: I absolutely agree. I do not think that is the role of our committee, although by publishing more details we shall make it less likely to happen in future and have more ammunition that we are able to feed out. That was the main reason I suggested the ministerial adviser might seek to play a role.

Chair: That is a very interesting suggestion.

Lord Lang of Monkton: He would be in a good position to react very quickly, as I understand it, but I am not familiar with all the details of his remit.

Q388 Chair: We look after one organisation, the UK Statistics Authority, whose chairman, Sir Michael Scholar, will write to newspapers demanding that they correct their stories. Would it not improve public confidence if you or your chief executive were in a position to demand that kind of correction and retraction?

Lord Lang of Monkton: It is a conversation I have had within the committee.

Q389 Chair: How interesting. Can you illuminate us a little?

Lord Lang of Monkton: I have been persuaded that it is inappropriate for the committee itself to enter into that kind of domain, but I am keen to see it happen one way or another, which is why I make my suggestion.

Q390 Chair: So, if we made some recommendations along those lines, you might well welcome them, because we see this as a deficiency in the process.

Lord Lang of Monkton: It is not just a matter of whether I welcome it; it is whether the Government welcome it. We operate within the rules.

Q391 Chair: You put information on your website; people get jobs and they are publicised, and that is a trigger for a story about somebody who has a conflict of interest and has exploited it. That is the story and nothing else happens, so your process becomes rather incriminating.

Lord Lang of Monkton: I tried to explain at the beginning that I do not see us as the process but as part of it, which starts before things reach us in terms of the Government setting the rules and principles and finishes with the Nolan-oriented "light of transparency and knowledge". If it is filtered through the press, it does not always reach them in its entirety.

Q392 Chair: But you can see that the net result is not entirely satisfactory.

Lord Lang of Monkton: I absolutely agree with you.

Q393 Kelvin Hopkins: I am rather less sympathetic to those who come before you. Clearly, they are close to the possibility, if you like, of lobbying or representing a company with interests that their previous connection with government might serve. I make the point again that there are tens of thousands of jobs people can apply for that would give rise to no problem at all. I listed some of them earlier. We are talking about only a narrow category of jobs; that is, those with companies that clearly benefit from Government contracts or Government decisions. The idea that somebody will be unemployed simply because they cannot get a job within that narrow category of employment is a bit of a nonsense, is it not?

Lord Lang of Monkton: It might be, but consider those people who work in the Ministry of Defence, for example.

Q394 Chair: It is one that always comes up.

Lord Lang of Monkton: It is, which is probably why I should not raise it, but I do. They become focused on defence issues. Quite a lot of them leave the Department, for whatever reason. The Departments are all contracting in various ways. They wonder what they will do. They may be accountants or lawyers, in which case they have an alternative, but they know about defence and the way the defence industry interacts with the Department, so you can understand why it is possible that quite a lot of them may decide they want to go into that area. Those are the ones we must monitor, or make sure the permanent secretary and the Department monitor.

Q395 Kelvin Hopkins: We could debate that for quite some time. When it comes to the informal indications you give, how informal is "informal"? Is it a telephone call to you or over a drink somewhere?

Lord Lang of Monkton: Neither.

Q396 Kelvin Hopkins: It is much more formal than that.

Lord Lang of Monkton: The committee is engaged in a formal sense. The secretariat can give initial advice.

Q397 Chair: And in writing.

Lord Lang of Monkton: The initial advice?

Q398 Chair: Yes.

Lord Lang of Monkton: No. Usually, the initial advice is over the telephone, but it might be a letter.

Q399 Chair: So, it would be in writing.

Lord Lang of Monkton: It would be if the application came in.

Q400 Kelvin Hopkins: Is that recorded?

Lord Lang of Monkton: When the application comes in, the secretariat look at it and decide what they have to explore, monitor, check and seek validation of, and they proceed to do that.

Q401 Kelvin Hopkins: Say I want a job and I have been in the Ministry of Defence. I telephone somebody in your office without putting in a written application and say, "Look, what are my chances? I want to go and work for Vickers." They are building submarines, and clearly I was involved. "Is there any chance?" Do they just say there is no chance?

Lord Lang of Monkton: They would not say that. They would say, "You must complete an application form; otherwise, the committee cannot consider it," but if the person said, "I’ve just awarded a huge contract to Vickers and I want to go and work for them," the secretariat would probably say, "It looks as though it might create problems and some terms might be imposed, but please fill in an application form."

Q402 Kelvin Hopkins: So, even the informal inquiries are on paper; they are not just telephone calls.

Lord Lang of Monkton: No. Once an application comes in, that is a formal application.

Kelvin Hopkins: But it is the informal indications in which I am interested.

Q403 Chair: People can ring you up for a chat, can’t they?

Lord Lang of Monkton: Yes, but I would be pretty reluctant to speak to them. I would urge them to go to the secretariat.

Q404 Chair: But they can have an informal chat on the telephone with the secretariat.

Lord Lang of Monkton: I am not in the business of having a quiet drink with somebody and telling them, "Oh, I’ll get it through for you."

Q405 Lindsay Roy: We have some evidence that individuals have chosen to ignore and be dismissive of the business appointment rules. I take it you feel that you do not have the powers to follow through when people move on without approaching you.

Lord Lang of Monkton: That has happened in a very limited number of cases. There was one exceptional case in which a senior official took a rather robust line of that sort, but other than that it is very rare indeed. Within the Departments permanent secretaries are now fully seized of their obligations. We have had almost no experience I can think of of people ignoring us. They put in an application and we reach a conclusion.

Q406 Lindsay Roy: Ignoring or being dismissive.

Lord Lang of Monkton: Or being dismissive.

Q407 Lindsay Roy: You are citing one example.

Lord Lang of Monkton: I am citing one case in which we did not feel able to offer a view, because the position had been announced before we had an opportunity to consider it.

Q408 Lindsay Roy: Are you aware of any changes made by Departments as a result of the new compliance monitoring arrangements?

Lord Lang of Monkton: We do not know yet the extent to which they have modified or developed their procedures, but that is what will emerge as we go round each Department in the course of the current year.

Q409 Lindsay Roy: Monitoring would be essential in trying to follow this through.

Lord Lang of Monkton: Yes, and the permanent secretary has to account for the behaviour of his staff. They have different procedures. The Ministry of Defence has a substantial committee that considers it; others have countersigning officers and HR staff who get together and look at these cases.

Q410 Lindsay Roy: To echo comments made earlier, you would welcome more teeth.

Lord Lang of Monkton: Not necessarily. I would welcome the fact that there are teeth in the system, but not necessarily in our part of it.

Q411 Chair: Lord Lang, thank you very much indeed. We are particularly grateful to you for altering your programme today to suit us. I am also acutely aware that this is not the most lucrative job you might be doing, and it has its trials and tribulations. We are grateful to you and your committee for the job you do.

Lord Lang of Monkton: Chairman, I will not rise to the particular fly you raise, but thank you.

Prepared 3rd April 2012