Constitutional standards matter: the new Prime Minister must not forget that voters care about the honesty and integrity of their leaders

Tomorrow, it is expected that the UK will have a new Prime Minister. Whoever is appointed will have a number of high priority issues competing for their attention. Peter Riddell argues that constitutional standards should be near the top of the new PM’s to do list. He calls for a new Independent Adviser on Ministers’ Interests to be appointed, and warns against interfering with the Privileges Committee investigation into Boris Johnson.

The new Prime Minister is going to have such a large in tray of urgent decisions that there is a danger that the ethical and constitutional issues that largely brought down Boris Johnson will be neglected. There is an even worse risk that the wrong lessons will be learned from these events and that the future standards regime will be weaker than before, particularly over the Independent Adviser on Ministers’ Interests.

During the regional hustings meetings of the past few weeks, there have been hardly any references to the controversies over standards that so dramatically undermined Johnson’s position among Conservative MPs. As striking, and worrying, have been the recurrent attacks by Liz Truss’s supporters on unelected advisers and regulators, whether the civil service, the Bank of England, City and business regulators, or ethical watchdogs. In particular, while Rishi Sunak has said that he would quickly appoint a new Independent Adviser to fill the vacancy left by the resignation of Lord (Christopher) Geidt in mid-June, Truss has been more equivocal.

Truss has so far refused to commit to appointing an ethics adviser, arguing that she personally has ‘always acted with integrity’ and understands the difference between right and wrong. She has said that ‘one of the problems we have got in this country in the way we approach things is that we have numerous advisers and independent bodies, and rules and regulations’. While she would ‘ensure the correct apparatus is in place so that people are able to whistle-blow’, she believes that ‘ethics and responsibility cannot be out-sourced to an adviser’.

This view confuses the roles of advisers/regulators and ministers. In the case of the Independent Adviser, there is no outsourcing of ethics and responsibility. What the Adviser is being asked to do is to establish the facts about whether the Ministerial Code has been broken, while an elected politician, in this case the Prime Minister, decides whether a minister should be punished and what form any sanction should take. In that sense the Prime Minister is the guardian of the final judgement on ethics and responsibility. And there is now general agreement that there should be a range of sanctions, and not just resignation.

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Lord Geidt’s resignation is a fresh reminder of the government’s restrictive approach to scrutiny of its actions

After barely a year in post, Lord (Christopher) Geidt resigned yesterday as the Prime Minister’s Independent Adviser on Ministers’ Interests. As Peter Riddell demonstrates below, his resignation is a further example of the battles of constitutional watchdogs to remain independent of the executive, and reflects the increasing presidentialism of the current administration, dismissing scrutiny not only by regulators but also by parliament, the courts and the media.

The immediate and pressing question raised by Lord (Christopher) Geidt’s resignation is whether the role of Independent Adviser on Ministers’ Interests is doable at present. This is only partly a matter of rules but more one of political culture and attitudes. That has been implicitly acknowledged in the response of a Downing Street spokesman that there will not be an immediate replacement and that the Prime Minister is ‘carefully considering’ the future of the role.

As often with resignations, the background and the run-up to the decision to go matter as much as the specific reason for departure. Lord Geidt’s frustrations have been increasingly clear in his correspondence with Boris Johnson, in his annual report last month (as I discussed on this blog last week) and in his evidence to the Public Administration and Constitutional Affairs Committee (PACAC) on 7 June. Johnson and his team failed to supply relevant information over the decoration of the Downing Street flat when initially sought and the PM did not take account of his obligations under the Ministerial Code over the ‘partygate’ allegations, for which he received a fixed penalty notice. Lord Geidt felt that Johnson’s eventual comments still did not address criticisms by Sue Gray about his adherence to the Nolan principles of public life.

Nonetheless, despite ‘inconsistencies and deficiencies’, Lord Geidt said in his resignation letter that he ‘believed it was possible to continue credibly as Independent Adviser, albeit by a very small margin’. He apparently told Boris Johnson on Monday that he would be content to serve until the end of the year. This followed the government’s concession last month that the Adviser could initiate his own investigations but only after having consulted the Prime Minister and obtained his consent, and with greater transparency over a refusal. Lord Geidt has described this as a ‘low level of ambition’ and his discomfort over the ambiguities of his relationship with the Prime Minister was evident in some robust questioning by PACAC. He was clearly seen by the MPs as not truly independent, not least when he said he was one of the PM’s assets, and, in practice, inhibited from advising a Prime Minister on his own conduct and obligations under the Code.

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Arguments over the Ministerial Code and the role of the Independent Adviser on Ministers’ Interests are far from over

Recently announced changes to the Ministerial Code demonstrate that the government is unlikely to place it on a statutory basis any time soon. Sir Peter Riddell argues that although some of the revisions are sensible, the new Code demonstrates the government’s determination to assert the privileges of the executive and reflects an increasingly presidential view of the Prime Minister’s role.

The Independent Adviser on Ministers’ Interests is neither fully independent nor entirely an adviser. His hybrid, anomalous position reflects wider tensions between ministers and advisers on standards which have been exacerbated under the current administration – and are unlikely to change after Boris Johnson won a confidence vote on Monday to ensure his survival as Conservative leader and Prime Minister. These tensions have reflected an increasing assertion by the Prime Minister of a presidential view of his role based on the mandate of the ballot box, as distinct from accountability to parliament. The limited changes in the latest version of the Ministerial Code only go a small way to address these concerns.

The public arguments over the Ministerial Code and the Independent Adviser have only partly been caused by the casual attitude of the current Prime Minister towards standards in public life, as highlighted by the repeated frustrations expressed by Lord (Christopher) Geidt, the current Adviser. That has led to widely supported calls from the Committee on Standards in Public Life (CSPL) for a strengthening of his powers.

As with so much in standards in public life, the evolution of the Ministerial Code (originally the more prosaic Questions of Procedure for Ministers) and the creation of the Adviser’s role in 2006 have been the result of a series of allegations and scandals. These exposed the limitations of previous informal understandings and conventions and underlined the need for more formal codes of conduct and independent investigation. The Ministerial Code combines operational guidance about how business in government should be conducted and a list of expectations about ministers’ ethical behaviour in office, based on the seven principles of public life (also known as the Nolan principles).

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The public appointments system is under strain: it needs more clarity and transparency

In September, Peter Riddell will step down as Commissioner for Public Appointments after over five years in the role. In this post, which summarises comments made at a recent Unit seminar, he explains how the public appointments system is under strain, and how it might be improved. In particular, he calls for more clarity and transparency in both regulated and unregulated public appointments.

The public appointments system rests on two, at times, apparently contradictory principles — ministerial responsibility and selection by merit. These were set out both in the original Nolan report of the Committee on Standards in Public Life in 1995 and in the government’s Governance Code in late 2016. Their existence side by side — along with selflessness, integrity, openness, diversity, assurance and fairness — can cause confusion. Ministers and their advisers understandably want to appoint those who share their values and views, while critics allege cronyism and an undermining of the merit principle.

In reality, as with so much in public life, the answer lies in a balance between the principles, as envisaged in the 1995 report: ‘responsibility for appointments should remain with ministers advised by committees which include independent members’. The system is inherently political, and always has been, but patronage is constrained. The process of competition acts as a filter to identify candidates assessed as appointable in relation to the published job and person specifications. It is then up to ministers to pick one of these candidates.

The integrity of the system is now under strain. The appointment of political allies has happened before and is consistent with the Governance Code. What is different now is the breadth of the campaign led from the top of the government. This raises questions about the overall pluralism of arms-length bodies. That is a matter for ministers to explain and defend.

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Pre-appointment scrutiny hearings

robert-hazell-350x350In September the Commons Public Administration and Constitutional Affairs Committee published their report into Pre-Appointment Scrutiny Hearings. Robert Hazell gave evidence to the committee’s inquiry on the subject; here he discusses the report’s conclusions, and describes the events that led to its being undertaken, including two Constitution Unit studies that evaluated the effectiveness of such scrutiny.  

The recently published report of the Commons Public Administration and Constitutional Affairs Committee (PACAC) was the product of an inquiry undertaken at the request of the Commons Liaison Committee, because of growing concerns amongst Select Committee chairs that pre-appointment scrutiny hearings were a charade, especially when the government ignored committee recommendations.  The Liaison Committee and PACAC both heard evidence from the former Constitution Unit Director, Professor Robert Hazell, who explained that pre-appointment hearings were more effective than MPs recognised, and suggested ways in which they could be made more effective still.

Pre-appointment scrutiny hearings were introduced by Gordon Brown, when he became Prime Minister in July 2007.  In his Green Paper The Governance of Britain he proposed:

… that the Government nominee for key positions … should be subject to a pre-appointment hearing with the relevant select committee. The hearing would be non-binding, but in the light of the report from the committee, Ministers would decide whether to proceed.  The hearings would cover issues such as the candidate’s suitability for the role, his or her key priorities, and the process used in the selection.

The Cabinet Office and the Liaison Committee subsequently agreed a list of just over 50 key positions which would be subject to the new procedure. Ten years later, by the end of the 2015-17 Parliament, there had been almost 100 scrutiny hearings, involving almost every single departmental Select Committee. The Constitution Unit conducted an early evaluation of the first 20 hearings in 2009-10, and a second study in 2016-17, looking at a further 70 hearings. Continue reading