Rishi Sunak has appointed a new Independent Adviser on Ministers’ Interests, but there is still a need for the role to be strengthened to ensure the new Adviser has genuine independence and freedom to act. Concerns have also been raised about the standard of recent appointments to the House of Lords. Peter Riddell argues that Sunak should follow the example of John Major and take the initiative on standards reform.

Rishi Sunak has so far been stronger on aspirations to improve standards in public life than on his actions, which have largely continued the approach of his predecessors. Ministers have reaffirmed limits to the role of independent regulators and scrutiny by reasserting executive prerogatives.

On the positive side, in his first comments on entering 10 Downing Street, Sunak promised that his government would have ‘integrity, professionalism and accountability at every level’. Trust, he said, is earned. And in his personal foreword to the Ministerial Code issued just before Christmas, he referred to upholding the Principles of Public Life (commonly known as the Nolan principles), which Boris Johnson had omitted from the May 2022 version. At the same time, Sunak appointed Laurie Magnus as the new Independent Adviser on Ministers’ Interests, six months after the resignation of predecessor Lord (Christopher) Geidt.

The role of the Independent Adviser

The remit of the Adviser has not, however, been strengthened since the compromise changes of last May, which attracted criticism at the time. The government adopted some of the package proposed by the Committee on Standards in Public Life (CSPL) in its Upholding Standards in Public Life report of November 2021, which recommended a graduated system of sanctions solely in the hands of the Prime Minister, combined with greater independence for the Adviser in launching inquiries and determining breaches of the Code. As Lord (Jonathan) Evans of Weardale, the committee’s chair, commented in June 2022, the government accepted the former but not the latter in the form proposed.

The Adviser will now be able initiate their own investigations but only after ‘having consulted the Prime Minister and obtained his consent’. The requirement for prime ministerial consent is justified on the grounds that the Prime Minister is constitutionally responsible for appointing and dismissing ministers. As Boris Johnson said in a letter to Lord Evans in April 2021, this meant that, ‘I cannot and would not wish to abrogate the ultimate responsibility for deciding on an investigation into allegations concerning ministerial misconduct’. Moreover, the Prime Minister will also continue to have the right to decide when any report by the Adviser is published – risking lengthy delays, as has happened in the past – and on the significance of any breach of the Code, as well as on the form of any sanctions. Parliament is still left with no role in approving the Code or its implementation.

Lord Geidt described the compromise as demonstrating a ‘a low level of ambition’ but believed it could be a workable scheme because of the greater degree of transparency. The grounds for a prime ministerial refusal would have to be very high, while his desire to hold investigations had not been frustrated over the previous year. Nonetheless, Lord Geidt resigned shortly afterwards, reflecting cumulative frustrations over the viability of his position as an adviser to Johnson as well as a specific dispute over the Ministerial Code.

Questions therefore remain for Laurie Magnus and Rishi Sunak about how, and indeed whether, the Adviser can be an effective watchdog in tackling allegations of breaches of the Ministerial Code, as well as the largely undiscussed, though important, role of advising ministers on their interests.

House of Lords appointments

The other example of the assertion of executive prerogatives came over Lord (Philip) Norton of Louth’s private member’s bill to put the House of Lords Appointments Commission on a statutory basis and to strengthen its role in vetting nominations. This was too much for the government, even though the bill received the support of 25 out of 27 speakers during its second reading debate on 18 November, including almost all of the participating Conservative peers. However, in the words of Cabinet Office minister Baroness (Lucy) Neville-Rolfe, the bill represented ‘a wish to substitute the opinions of the great and the good for those of elected representatives’. In her view, the enhanced vetting powers for the Commission would restrain a Prime Minister to an unacceptable extent of his ‘sole power of patronage in nominating life peers’.

Prime Ministers are, she added, ‘accountable to Parliament for the nominations they make and, ultimately, to the electorate’. This is both true in theory and misleading in practice. Nominations to the Lords are seldom raised with a Prime Minister in the Commons, and almost never during an election campaign. This is largely irrelevant but reflects an increasingly presidential use of a personal electoral mandate in defending executive prerogatives.

A greater role for parliament?

The central issue here – and over the remit of the Independent Adviser – is about the balance between ministers and advisers/regulators, and over the role of parliament. This is both a longstanding debate and a cyclical one which arises generally after one party has been in office for a long time and allegations about the abuse of standards fuel demands for new constraints on ministers. This applied in the mid-1990s with the formation of the original CSPL under the late Lord (Michael) Nolan, which led to the creation of several of the current regulators and codes. Concerns over standards also arose during the later New Labour years and have re-emerged since 2019 over some of the abuses of standards during the Johnson premiership, which triggered the resignation of two Independent Advisers and largely caused his forced departure in July 2022. On each occasion the weaknesses in existing conventions and rules have been exposed. There has been a similar cyclical process in the regulation of conduct by MPs.

Stronger regulation, linked to greater accountability to parliament, has been necessary because ministers have shown they cannot always be trusted, while the existing powers of the regulators have been seen to be inadequate in the face of ministerial pressure and the overriding of advice, notably during Johnson’s term. Moreover, just saying ministers are answerable to the Commons is not enough without a mechanism to monitor codes and to ensure that alleged abuses are identified and investigated. No one disputes that the final say about the sanctions on a minister breaching the Ministerial Code should lie with the Prime Minister, who determines who is in their government. Similarly, the decision on putting forward nominations to the House of Lords lies with the Prime Minister, but in each case only after proper investigation and vetting.

As in so much of current politics, the debate is sharply divided, and partisan. The reaction has often both exaggerated the scale of abuses and put too much weight in its consequent recommendations on the role of what Baroness Neville-Rolfe called the ‘great and the good’. Independent regulation of executive conduct needs to operate in a context set by elected politicians. Attempting to depoliticise actions and appointments affecting voters is both undesirable and unworkable. Some of the recent pressure group and opposition calls for an allegedly non-political regulatory system can therefore appear naïve.

What is needed is both a recognition of the proper role of ministers in taking decisions and a robustly independent structure of regulation linked to parliament, as proposed both by the CSPL in its November 2021 report and by the Public Administration and Constitutional Affairs Committee in its December 2022 report, Propriety of Governance in Light of Greensill. This involves putting the constitutional watchdogs on a statutory basis, as set out in Lord (David) Anderson of Ipswich’s private member’s bill, and tightening up how they are appointed. For instance, the new Independent Adviser, like his predecessors, was not appointed after a transparent and open process of competition.

It is early days for the Sunak administration and there is still time for the Prime Minister to take the initiative on standards issues as John Major did in 1994-95.

For more information and analysis of the topic of constitutional watchdogs, read the Unit’s report on the subject, published in July 2022: Parliament’s Watchdogs: Independence and Accountability of Five Constitutional Regulators.

About the author

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

Featured image: Prime Minister Rishi Sunak Leaving For His First PMQs, (CC BY-NC-ND 2.0) by UK Prime Minister.