Adviser on Ministerial Interests

Jackie Doyle-Price Excerpts

Tuesday 21st June 2022 Commons Chamber

[Michael Ellis]

Clearly, it is for that Select Committee to decide how it conducts its own affairs, but certainly as far as this motion is concerned, it would be unconstitutional. Rather than allowing the Executive to reflect on the role of the independent adviser, this motion is preoccupied—as I think the House knows—with immediate and short-term considerations seeking to capitalise on a current vacancy, which the Opposition are seeking to do for politically expedient reasons, without taking full account of the constitutional implications. The now repealed Fixed-term Parliaments Act 2011 is a prime example of what happens if one alters critical parts of the constitution without care.

According to the motion, referring back to what the hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle) said, it would be for the Public Administration and Constitutional Affairs Committee to appoint an individual to the new position of adviser on Ministers’ interests—not “adviser on the Committee’s interests”, but “adviser on Ministers’ interests”—and it would be for PACAC to refer matters that that Committee believes warrants consideration to its new adviser. With or without PACAC, that adviser would be able to instigate consideration of a matter, so the motion is an attempt to give the impression that powers have been transferred from the Executive to the legislature.

Given its novel character, perhaps it does not come as a surprise that the proposal stands in direct contradiction to the principle acknowledged in the code of conduct for MPs and the associated guide to the rules. That current document, which the House has approved, clearly states that

“Ministers are subject to…guidelines and requirements laid down by successive Prime Ministers in the Ministerial Code”.

The guide to the rules clearly recognises that those requirements

“are not enforced by the House of Commons”.

The Opposition are seeking to reverse that agreement by the House.

The challenge to constitutional norms is not confined to the operation of the Executive. The motion also proposes to change the way in which Parliament and its Committees conduct their work.

[Jackie Doyle-Price (Thurrock) (Con)]

My right hon. and learned Friend is absolutely right when he quotes the code of conduct. However, without an ethics adviser to the Prime Minister, we as Members of this House are held to higher standards of behaviour through the code of conduct than Ministers are, including the Prime Minister. What can my right hon. and learned Friend tell us about how, going forward, the Prime Minister and the Government intend to ensure we can expect all Ministers to be held to the highest possible standards, just as we in this House are?

[Michael Ellis]

I can certainly say to my hon. Friend that those sorts of questions are being worked through now in detail.

As I said, the challenge to constitutional norms is not confined to the operation of the Executive. The motion specifies that

“the Adviser may advise the Public Administration and Constitutional Affairs Committee on the appropriate use of its powers to send for persons, papers and records”.

The power of Select Committees to send for persons, papers and records is delegated to Select Committees from Parliament itself, and exercised by Members of this House as directly elected representatives. Although Select Committees already have the ability to appoint specialist advisers, introducing a requirement to appoint an adviser whose remit includes advising the Committee on how to use its powers would be different, unusual and undesirable. Although Select Committees may wish to draw on the advice of experts from time to time, this expertise does not ordinarily extend to advising Committees on how to use their historical powers to gather evidence.

--- Later in debate ---

[Alberto Costa (South Leicestershire) (Con)]

At the outset, I should like to remind the House that I am a member of the Committee on Standards and of the Committee of Privileges. Accordingly, I will keep my comments short and away from any specific incident or series of incidents, or any particular personalities involved or alleged to have been involved, in any particular case or cases. My comments this afternoon relate to our constitutional arrangements and why I am unable to support the Opposition’s motion.

I have long championed enhanced standards in this place. I have been instrumental in putting forward proposals to develop our standards processes, and ensure that both complainants and those complained of are given a fair, transparent hearing, with a good appellate system. But I think the comments of my right hon. and learned Friend the Minister for the Cabinet Office and Paymaster General should be carefully listened to by all Members of the House. He rightly referred to the separation of powers, an issue that I regularly raise on the Committees on which I serve. It is useful for the House to remind ourselves of what we mean by “separation of powers”. It may be trite of me to do this, but some Members have come to me stating that they do not believe that the UK has any separation of powers, so it is important to remind the House of what we mean by separation of powers.

There are, of course, three arms to the British state—three organs of the state: this place, with the House of Lords and the sovereign in Parliament, which is the legislature, whose principal role is to make law; the judiciary, which comprises the courts and tribunals across the whole of the UK, whose principal function is to enforce the law that we make; and the Executive, who are of course a creature of this legislature, but are separate from it. They are separate from it and have their own staff, whom we call civil servants. Civil servants are loyal to the Government of the day and act impartially, but they are not neutral; they are there to further the democratic and legitimate aims of the elected Government of the day.

Part of our democratic and constitutional arrangements is that the Prime Minister of this country, the Head of Government of this country, has very limited defined powers, but one of them is patronage: choosing his or her Cabinet, choosing those who serve the Government. That includes choosing those who are operationally independent of government but part of the Government. That includes a very large number of people. This place also appoints individuals who are called “operationally independent” of the House, but who are officers of the House. Given that we are having a discussion on standards, let me say that the most obvious office holder who is a creature of the House of Commons—the office is created by this body—is of course the Parliamentary Commissioner for Standards. Notably, the other House of the British legislature has its own Commissioners for Standards, separate from the officer of this House.

So it is imperative that in order to consider how Members might vote on this motion, we clearly understand the delineations of the separations of power. That is why the comments made by the able Minister at the Dispatch Box were absolutely correct; it would be utterly irresponsible to pass a motion that would create confusion and create the very opposite of what we want to see, which is transparency. What would happen is that the legislature would, in effect, be given authority over another arm of the state. We would not dream of appointing a House of Commons adviser on standards to the judiciary, would we? Would we impose our standards on day-to-day operations of the judiciary? That would be absurd. In fact, it would be dangerous.

[Jackie Doyle-Price]

I share in some of what my hon. Friend is saying, but we are talking about Ministers who are both simultaneously Members of this House and members of the Government. The fact remains that Back-Bench Members of Parliament are subject to more scrutiny through the Parliamentary Commissioner for Standards than we have in the current situation with Ministers responsible to the Prime Minister through the ministerial code, unless there is some transparency through a process through an ethics adviser. Will my hon. Friend comment on that?

[Alberto Costa]

I welcome my hon. Friend’s intervention because it allows me to clarify what I consider to be an error. The right hon. Member for Ashton-under-Lyne (Angela Rayner) said that we must have a system of conduct that affects each and every one of us, but we do: all members of the Government are Members of this House or of the other place, and they must abide by a code of conduct. That code of conduct is adjudicated on by the Parliamentary Commissioner for Standards in this place and the commissioners for standards in the other place, as well as the respective Committees on standards.

Most importantly, I should add that, under our system, the de facto sovereign body—the supreme governing body—of our country is this place, ultimately, Ministers are accountable to all hon. Members when they are at the Dispatch Box, and so is the head of Government. Under our constitution, if the head of Government loses the confidence of this House, they lose the role. That is the ultimate conduct check that our system allows for. Any moves to change that system, whatever the intentions might be—they might be noble—ought to be properly debated and consulted on, and must be cross-party in approach. It would be highly irresponsible to force through such a motion, which seeks to fundamentally alter our British constitutional arrangements vis-à-vis the Executive.

--- Later in debate ---

[John Penrose]

Let the record show that the Minister is nodding vigorously. It is essential that we get on the record the principle that the role must be pursued and continued. I think that he has said that already, but I hope that he will take the opportunity to make that clear again in his concluding remarks. It is essential that that is clarified, because a number of us were expecting it to be made clear and I hope that we have heard it and will hear it being made clear again.

An awful lot of the concerns that led the motion to be tabled in the first place would be greatly allayed by such a clarification. People are worried, as there have been briefings in the press saying a successor to Lord Geidt might not be appointed at all, and that it might not be an important position to fill in future. I think that the Minister has already said, and I hope that he will repeat, that that is not true, it is not the way that the Government are thinking and that there will be successors appointed to make sure that that crucial role is filled. It is vital that it is filled, because it is independent, and because the independent reports are made public, it provides not just the Prime Minister but everybody in this Chamber, more broadly in society as a whole and in the press with an independent set of facts on which to proceed, to say, “This happened, this did not; this is serious, that is not,” and from which we can all start our conversations, discussions and debates about essential items of probity, integrity and, ultimately, honesty from a shared base of fact.

I venture to make a suggestion to my right hon. and learned Friend the Minister as he goes around trying to find the successor to Lord Geidt. A number of people have said that that might not be terribly easy at the moment and I have a couple of gentle suggestions that might make it a simpler and easier succession. It might be easier for the Prime Minister to find successors if he were to upgrade the role further than the power enhancements that have already been made. I think he should consider two further enhancements of the role. The first is that the adviser or advisers, whatever format the thing takes—[Interruption.] Sorry, Madam Deputy Speaker. I definitely turned my phone off, but it keeps coming on.

The problem is that at the moment, the adviser believes that they must resign if their advice is not followed. I do not think that is the right approach at all—just take the case of Chris Whitty, who was advising the Prime Minister throughout the pandemic. If he had had to resign every single time his advice was not followed, he would have been resigning every week and we would not have got anywhere. Advisers advise; Ministers decide.

[Jackie Doyle-Price]

rose—

[John Penrose]

I will give way in a second.

This is an advisory post, and if the adviser’s advice is not followed, they may decide they want to resign if they are fed up, but they should not feel constitutionally required to do so. [Interruption.]

[Madam Deputy Speaker (Dame Rosie Winterton)]

Order. The hon. Gentleman needs to bring his remarks to a close, but we will take one intervention.

[Jackie Doyle-Price]

I hear what my hon. Friend is saying, but the difference is that ultimately, Chris Whitty’s advice was based on policy. What we are talking about here is behaviour, and whether there are breaches of the ministerial code. That brings the whole area of ethics into much sharper focus.

[John Penrose]

I take my hon. Friend’s point. All I am saying is that it should not be axiomatic and automatic that the adviser should feel they have to resign every time their advice is not followed. Their advice is made public and is clear, and therefore it should not be automatic that they have to stand down.

Equally—this is also crucial—Lord Geidt said that he did not feel he could offer an independent set of advice on the behaviour of the Prime Minister, alone among all Ministers. Lord Geidt would have felt able to, and did, offer advice independently to the Prime Minister about other Ministers’ behaviour, but he felt he could not do so when the Prime Minister’s behaviour was in question. That is clearly wrong: there should be no free passes for any Minister, up to and including the Prime Minister, and in the same way that the adviser should not feel duty-bound to resign if their advice is not always followed, they should feel able to offer public advice on whether or not the Prime Minister has erred and strayed. If the adviser’s role is improved in those two ways, I believe that finding a successor to Lord Geidt will be a great deal easier, because the role will be a great deal clearer and more practical to fill.

I will just add one further point about the motion. It seems to me that it does not actually confer any extra powers on PACAC, and the Chairman of that Committee, my hon. Friend the Member for Hazel Grove (Mr Wragg), has already said that he is delighted and honoured to be offered these opportunities, but would politely decline them anyway. He does not want this set of powers, and is politely declining the offer that is being made. Because the motion does not offer any extra powers, it would be perfectly acceptable, constitutional, and within the rules of this House for PACAC itself to launch an inquiry into the ongoing discussions and investigations, should it wish to do so. If it felt the position was not being filled fast enough, it could fill that gap.

--- Later in debate ---

[Jackie Doyle-Price (Thurrock) (Con)]

I shall endeavour to do so, Madam Deputy Speaker, but I have quite a lot to say on this, because I am so disappointed. The ministerial code really does matter, and it says everything about the leadership and culture of our style of Government that some of the responses to Lord Geidt’s resignation from some quarters of the Government have been rather disappointing. It is really important that everyone in public service abides by the rules of the game. That is what maintains respect and honour in all our institutions.

There are a few messages that I would like to land. The end does not justify the means, and, taking back control does not mean pleasing yourself, must be clear principles. Those two principles need to be looked at in the context of Lord Geidt’s resignation, because he has been clear that he was, in effect, being asked to give the Government a bye to wilfully break their international obligations under law. That is not acceptable, and, frankly, that should not be acceptable for any self-respecting Conservative Member of Parliament, because if there is one thing that we do believe in, it is constitutional propriety. It is about upholding the law, and that is central to the ministerial code. It is really important that we sustain that.

We are the Conservative party, the party of Margaret Thatcher and Churchill, not the party of Donald Trump. That is exactly what we are talking about. If such law breaches are sanctioned—even if there are the best of motives, such as to save our steel industry—I am afraid that sets a precedent for people to use law breaches for much more malevolent intentions. It should be in the DNA of Conservative Members, for whom constitutional propriety is so important, to ensure that we play by the rules of the game, however politically inconvenient, because there is always more than one route to achieve an outcome.

This is fundamentally not British behaviour. If there is one thing in the British DNA, it is a belief in fair play and upholding the rules. Our global reputation is built on our respect for the rule of law and how we have exported that around the world. It is incumbent on all of us to ensure that we uphold the most important standards.

I remind Conservative colleagues that also central to the British brand is belief in free trade, but Lord Geidt felt compelled to resign—he was being asked to turn a blind eye to waiving our obligations in respect of the WTO—on an issue that seems to be the complete antithesis of the ethos underlying why we left the European Union in the first place. The world expected us to be free traders, yet our actions fly in the face of that.

It is essential that the Government, in taking the matter forward, look at who should be the next ministerial adviser—although anybody would be taking a massive reputational risk in taking the job without being offered some very clear guarantees. Perhaps the biggest question mark facing our credibility in government right now is not about policy but about our behaviours. We have had two years of one story after another, with perhaps the most notorious being partygate, and that has led the public substantially to conclude—the jury were already out on us anyway—that we do not live in the real world and, “It is one rule for them and another for the rest of us”. We need to reboot public confidence by actually respecting our obligations under the law and maintaining that the ministerial code is important. Central to that is upholding the law.

My request to the Government is really to take stock. We have seen not just the recent resignation of Lord Geidt —actually, we have lost two advisers on ethics—but the Greensill scandal, which also raised issues about how the ministerial code applies to outgoing Ministers, who are still obliged to abide by it even though there is no sanction to deal with them. We have heard evidence in PACAC from Lord Pickles, as chair of the Advisory Committee on Business Appointments, that the volume of inquiries that he is getting is rather more than the small honorarium that his members are asked to deal with.

Essentially, we have got a regime that relies on everybody behaving appropriately. When everybody knows what represents good behaviour, and everybody is prepared to behave and to do the right thing, we can get by with a light-touch regulatory regime. The romantic in me thinks that we still can, but, day by day, that confidence is being diminished. I do not want to see any kind of statutory regulation of Ministers under the ministerial code, but if we are going to avoid that, it is incumbent on the Government to seize and recognise the difficulty that our current standards regime is in. I ask the Government in all sincerity to properly reboot this and have a proper look at the ministerial code.

By way of illustration, when I became a Minister, the ministerial code was given to me as a flimsy photocopy at the bottom of my first box. No importance was set on it, yet the code should come from the top. We expect the principles of the code to be in the DNA of all our Ministers when they are delivering their obligations and undertaking their duties. This is not just a little bit of PR to say, “Aren’t we all doing terribly well?” This is fundamental to how we should operate our Government, and we need to really articulate that message and have a proper regime for overseeing that.

The Public Administration and Constitutional Affairs Committee will always be here, and we will still shine some light on those issues that we are not very happy about. In fact, we have probably spent more time looking at these things than we ever intended to, being rather more interested in constitutionally nerdy positions than in ferreting out scandals, but I would much prefer that we had far less material in that regard. Institutions such as PACAC and the Committee on Standards are still here. We do not need to go down the road of statutory regulation, but we do need the Prime Minister and all Government Ministers to recognise that the rule of law and upholding the law are not just optional extras; they are essential.