Following the resignation of the second Independent Adviser on Ministers’ Interests in two years, it now seems likely that it will fall to Boris Johnson’s successor as Prime Minister to appoint Lord (Christopher) Geidt’s successor. Peter Riddell argues that the next Prime Minister cannot do so without first considering how the role should function and discusses John Major’s proposed arrangements for the Privy Council to offer a support role.

An urgent priority for the new Prime Minister – who we expect to be appointed in September – will be appointing an Independent Adviser on Ministers’ Interests and deciding the terms on which they will serve. This decision will be the first test of whether there will really be a fresh approach to rebuilding constitutional standards after the departure of Boris Johnson, as Meg Russell, Alan Renwick and Robert Hazell urged on this blog on 8 July.

Many of the important constitutional questions their blogpost raised will only be answered over time but the Independent Adviser appointment has to be addressed as soon as possible since there has already been a vacancy for nearly six weeks. Some business, such as compiling the register of ministers’ interests, can be handled by officials and permanent secretaries can advise new ministers about conflicts of interest. The problem of asking civil servants to carry out investigations has been underlined by the ‘partygate’ affair; no matter how conscientious such officials are, they cannot, by definition, be independent.

There is no agreement about the Independent Adviser’s powers, as shown by the lukewarm response of the Committee on Standards in Public Life (CSPL) to the government’s proposals in late May. The resignations within two years of Alex Allan and Lord (Christopher) Geidt have underlined differences about how the role works in practice. After these departures and related disputes over the Ministerial Code, it is unclear who of independent standing would take the post unless the terms are changed.

Subsequent comments by the outgoing Prime Minister and by senior officials have pointed to a ‘quick’ review of the requirements of the Adviser’s role and the method of recruitment and appointment. The position is more public than before and more exposed to the media and political worlds. There is also a question about whether the role can be fulfilled by one individual.

Yet these questions are secondary to the core issue of how independent the Adviser can, and should, be. Until now, both the role’s appointment (closed and not subject to open, public competition) and operation (selection of investigation, outcome and punishment, if any) have been determined by the Prime Minister. More fundamental has been the Adviser’s dependence on the consent of the Prime Minister over opening an inquiry, let alone in judging whether the Ministerial Code has been broken.

In a far-reaching review of standards and regulators published at the beginning of November last year, the Committee on Standards in Public Life recommended a package of changes, combining a graduated system of sanctions in the hands of the Prime Minister with greater independence for the Adviser in initiating inquiries and determining breaches of the Code. But the government only fully accepted the first part on graduated sanctions and made a limited concession on independent initiation of investigations – after ‘having consulted the Prime Minister and obtained his consent’. At first, Lord Geidt, having said this represented ‘a low level of ambition’, sought to make the best of this compromise on the basis that his desire to hold investigations had not been frustrated, and given the new provision for greater transparency in the event of a Prime Minister trying to block an independently initiated inquiry. But his belief in the possibility of carrying on by ‘a very small margin’ did not survive for long and his underlying frustrations tipped him into resignation after he was consulted over measures which risked ‘a deliberate and purposeful breach of the Ministerial Code’.

This background makes it essential for the government to go further than its May proposals. First, the recruitment process should be open and transparent, as with a normal public appointment made by ministers, with a recommendation on appointable candidates going from an interview panel to the Prime Minister. Second, and most important, the new Prime Minister should accept the approach suggested by the CSPL on unfettered independence in initiating an inquiry and in reaching a view on whether the Code has been breached. This would protect the Prime Minister’s right to decide on sanctions and, hence, whether a minister should remain in the government.  This is rightly the key requirement for any Prime Minister and preserves the balance between advice from a regulator and final prime ministerial decision. A regulator would have to be robust in dismissing largely vexatious or merely partisan calls for an inquiry from the media and opposition politicians.

Accepting such a package would require a shift from the new Prime Minister but it would, as the CSPL envisaged, protect the prerogatives of the executive while producing a more robust and transparent system.

There is, however, the question of what happens when the Prime Minister is the subject of investigation, as in the past couple of years. This is what former Prime Minister John Major vividly described as ‘the elephant in the room’ in evidence to the Public Administration and Constitutional Affairs Committee on 12 July. Major, who as Prime Minister set up the CSPL and the Nolan process in the mid-1990s, proposed a different structure of regulation more closely linked to parliament. The Ministerial Code would be jointly owned by the Prime Minister and a committee of senior Privy Counsellors, chosen by the Commons, who would approve it, and also put forward two or three names for the Adviser to be chosen by the Prime Minister. A report by the Adviser on an inquiry would go to the Prime Minister and be copied to the committee which would, if they wish, make a recommendation. If there is agreement, the Prime Minister would take action; if not, there would be discussions with the committee. A failure to agree would lead to a debate on the floor of the Commons. This, as Major conceded, does not leave the Prime Minister ‘with absolutely untrammelled power without seeking advice and without seeking to convince’. He could not ignore a report.

Major admitted that compliance by the Prime Minister was ‘the great lacuna in the Nolan set-up’. ‘The Prime Minister is responsible for his own conduct because he is judge and jury of it, but that leaves a problem when the judge is in the dock’. He recognised the problem, highlighted by Lord Geidt, of asking the Adviser to investigate the Prime Minister—and it would be unfair to ask the Cabinet Secretary or another senior official to do so. Major suggested that the results of an inquiry would go to the committee of senior Privy Counsellors who would hold the Prime Minister accountable and consider what needs to be done. As he admitted, there are no easy answers in such circumstances.

The Major proposals go further than the CSPL package and further than some former senior officials would go. It would shift key responsibilities away from the executive‘s exclusive role to a shared role with the legislature and is likely to be resisted by the government on those grounds alone. But there does need to be a way to tackle the problem of a miscreant Prime Minister.

At the very least, a new Prime Minister in early September needs to consider how and whether the system of the Independent Adviser can be made to work before deciding who it is.

The Unit recently hosted a discussion panel on constitutional standards, which is available in video and podcast formats.

About the author

Sir Peter Riddell is an Honorary Professor at the UCL Constitution Unit. He is a former Commissioner for Public Appointments and a former Director of the Institute for Government.