Unit research shows that the public cares deeply about ethics and integrity in public life. Many constitutional and ethical watchdogs exist: there is a consensus that they need strengthening, but not on how, or to what extent. Robert Hazell and Peter Riddell have produced a new report on how to reinvigorate these watchdogs: they summarise their conclusions here.

This week we have published a new report, Trust in Public Life: Restoring the Role of Constitutional Watchdogs. It comes at an important juncture, when public trust in politicians has fallen to an all-time low. There is a wealth of evidence from survey data about the decline in trust; not least from the Constitution Unit’s own surveys, as part of our Democracy in the UK after Brexit project. Those surveys show that the public value honesty in politicians above qualities like being clever, working hard or getting things done; but only 6% of the public believe that politicians who fail to act with integrity are dealt with effectively. There is an urgent need to repair and rebuild the system for upholding standards in public life if trust in politicians is to be restored.

Constitutional watchdogs are the guardians of the system for upholding standards. The Unit has long had an interest in them, from one of our earliest reports in 1997 to one of our most recent, on parliament’s watchdogs published in 2022. This new report is complementary to the one on parliament, in studying the watchdogs which regulate the conduct of the executive. They are the Advisory Committee on Business Appointments (ACOBA); the Civil Service Commission; the Commissioner for Public Appointments (OCPA); the Committee on Standards in Public Life (CSPL); the House of Lords Appointments Commission (HOLAC); the Independent Adviser on Ministers’ Interests; and the Registrar for Consultant Lobbyists.

A series of official and non-governmental reports have all agreed that these watchdogs need strengthening; but there is less agreement on how, or by how much. That is the gap that our report is intended to fill. It sets out a range of strengthening measures, in detail, for implementation early in the next parliament. Early action is possible because most of our recommendations do not require legislation.

Political background

CSPL and the Commons Public Administration and Constitutional Affairs Committee (PACAC) have called for legislation to strengthen several of the watchdogs by giving them a statutory foundation. In July 2023 the government announced a limited package of reforms. The Business Appointment Rules (which regulate conflicts of interest in the revolving door between business and Whitehall) are to be tightened. There will be greater transparency around lobbying, with a single database covering all departmental transparency returns recording ministers’ meetings with outside interests. But almost half the recommendations from CSPL and PACAC were rejected, including all those which would strengthen the watchdogs’ independence, or give them more effective powers. The one possible exception is ACOBA, which advises on the Business Appointment Rules; but it remains to be seen whether ACOBA can be given effective powers of enforcement without statutory backing.

Labour has said it would go further, by legislating to create a new, independent Ethics and Integrity Commission. In a speech in July 2023 deputy leader Angela Rayner said that ACOBA and the Independent Adviser would be subsumed into the Commission. It would have stronger powers of enforcement, independent of political control. The Public Appointments Commissioner and Civil Service Commission might also be brought under the new Commission’s umbrella; but other watchdogs would be left in place, including CSPL, which is not a regulator, but has an oversight and advisory role.

Mergers and institutional reorganisation

Labour has repeated its commitment to establish a new Ethics and Integrity Commission since Nick Thomas-Symonds became the lead spokesperson on this issue. Such a commission could be a regulatory body, or an umbrella body. If it is to be a regulatory body, it could merge the role of the Independent Adviser with the ministerial side of ACOBA. The difficulty with this merger is that they have different responsibilities; it involves splicing a single office holder together with a committee; and there is a risk of regulatory divergence if the Business Appointment Rules are policed by two different bodies, with civil servants coming under the Civil Service Commission.

Before committing to mergers of existing bodies and/or an Ethics and Integrity Commission, it is necessary to be clear about the question to which it is the answer. The core problem, on which all commentators are agreed, is that many of the existing watchdogs are too weak. The remedy for that weakness is to strengthen them: by bolstering their independence, giving them more effective powers, and putting them on a statutory basis. That could be done without any mergers.

One solution which would not necessarily involve mergers would be for the new commission to be an umbrella body. The main risk here is duplicating the work of CSPL: there is not room for two coordinating bodies. But CSPL could form the core of the new Ethics and Integrity Commission if it is strengthened, given a wider remit and put on a statutory basis. It could be charged with leading the debate on standards issues, providing a single portal explaining the work of the other watchdogs, convening regular meetings, conducting regular reviews, being their collective voice, and encouraging greater transparency and accountability to parliament and the public.

Action in the next parliament: non-legislative measures

Because many of the watchdogs are set up under the prerogative, their role, functions and powers can easily be altered. Ahead of any legislation, a government with the political will could introduce changes relatively quickly. The immediate action plan could include:

• The Prime Minister to make an early speech pledging to uphold the independence of constitutional watchdogs, follow their advice and comply with their rulings. This speech would outline the following non-legislative changes.
• The Independent Adviser would be strengthened by removing the Prime Minister’s residual power to block investigations, and enabling the Adviser to publish their own reports and state whether the Ministerial Code had been breached. Any decision on sanctions would remain with the Prime Minister. This could be done by a simple statement or letter.
• HOLAC could be given the power to vet nominations from the political parties for suitability, as well as on grounds of propriety. The Prime Minister could also commit to accepting HOLAC’s advice, in effect giving it a veto.
• OCPA could be strengthened by ensuring a larger independent element on interview panels for the appointment of constitutional watchdogs. The Public Appointments Commissioner should be involved in the choice of Senior Independent Panel Members, who would be required to report back. For some watchdogs the PM could go further, inviting parliament to lead the recruitment process alongside the Cabinet Office, as in the appointment of the Parliamentary Ombudsman.
• The Registrar of Consultant Lobbyists could be strengthened by requiring lobbyists to report not just their clients but who was lobbied, when, and on what subject; and by extending the reporting requirement to Special Advisers. This could be done by amending the regulations made under the Lobbying Act 2014. The PM could also commit to greater transparency through monthly publication of meetings with outside interests by ministers, Special Advisers and Directors General.
• ACOBA is more complicated, since an employment law solution would involve rewriting all civil service contracts, and resolving who could bring an action for breach of contract, and breach of ministers’ new ‘deed of undertaking’. If that does not prove possible, then legislation will be necessary to give ACOBA enforcement powers. Meanwhile, the Business Appointment Rules could be revised by the Cabinet Office to permit ACOBA to adopt a more selective and targeted approach.
• CSPL could be given revised terms of reference by the Prime Minister, asking the committee to provide a single portal explaining the role and functions of the other watchdogs, to convene regular meetings, conduct regular reviews, and be their collective voice.

Action in the next parliament: the options for legislation

Further work will be required before a new government might be ready to legislate for an Ethics and Integrity Commission. If the government wants to press ahead with legislation, the quickest solution could be initially to legislate simply to strengthen the existing watchdogs. What follows would put into statute the strengthening measures outlined above but go further: some additional powers can only be conferred by statute.

• The Independent Adviser would be appointed following an open competition. Legislation would also give the Adviser power to initiate their own investigations; to publish their reports; and to state whether the Ministerial Code had been breached.
• HOLAC would have statutory power to vet all proposed peerages on suitability as well as propriety grounds, and political leaders would be required to give reasons for their nominations. Further provisions, including statutory limits on numbers, and widening HOLAC’s role to monitor or regulate the numbers would depend on any wider decisions on reform of the second chamber.
• Primary legislation would be required to extend the requirement to register with the lobbying Registrar to in-house lobbyists; to extend reporting requirements below Permanent Secretary level; to remove the VAT registration threshold; and to clarify the exemption for ‘incidental lobbying’. Legislation would also be required if it were decided to bring Whitehall’s reporting requirements within the statutory regime.
• For ACOBA, primary legislation would be a more effective way of giving it teeth than the government’s proposed employment law solution. Enforcement powers could include the imposition of financial penalties on ministers and officials who do not follow ACOBA’s advice (or do not seek it in the first place).
• The Codes of Conduct would be underpinned by creating a statutory requirement to consult the relevant regulator and select committee. If a further check was required, parliament could be required to approve a Code, and any changes to it.

Conclusion

Action can be taken quickly after the next election to signal a fresh start on standards in public life by using prerogative powers. That would give time for consultation and debate on legislation to put the watchdogs on a statutory footing, and about the structure and remit of a possible Ethics and Integrity Commission.

Above all, a fresh start to sustain high standards in public life requires not just the actions outlined above, but also a continuing commitment from the Prime Minister and government in their own behaviour and the lead they give to others. There is only so much that regulators and Codes can achieve.

The full report can be downloaded from the Unit website.

About the authors

Professor Robert Hazell was the founder and first Director of the Constitution Unit. 

Peter Riddell is an Honorary Professor at the Constitution Unit. He is a former Commissioner for Public Appointments and also once served as Director of the Institute for Government.