Standards in Public Life

John Penrose Excerpts

Tuesday 7th June 2022 Commons Chamber

[Michael Ellis]

I will give way in a moment. I must get through my remarks.

Let me return to the reforms that have been introduced. It is the role of the independent adviser to provide the Prime Minister with independent advice on whether a Minister’s conduct has met the standards set out in the code, as well as providing independent, impartial advice to Ministers on the management of their interests. The role is an advisory one. In the event that an allegation of a breach of the code is referred to the independent adviser, his task is to investigate and, following that investigation, to give his independent advice to the Prime Minister in order that the Prime Minister may then reach a decision. Those decisions are taken by the Prime Minister—constitutionally it is essential that they are taken by the Prime Minister—in line with his democratic accountability for such decisions. The Prime Minister has the democratic accountability—the elected authority—and advisers and officials do not.

[John Penrose (Weston-super-Mare) (Con)]

May I take my right hon. and learned Friend back to the Prime Minister’s response to the independent adviser—the letter that he mentioned that was published on 31 May? He is right to say that it goes through in some detail and with great care—rightly—the question of fixed penalty notices being issued and sets out the Prime Minister’s position for all of us here to know, to understand and to debate. The thing that it does not cover, and which in my view, I am afraid, is a very serious omission, is the further charge in the Sue Gray report that there have been serious failings of leadership at the top of No.10 and the Cabinet Office —both the Prime Minister and the civil service leadership. Because it is about leadership, which is one of the fundamental seven Nolan principles of integrity in public life, does that not also involve a serious and material breach of one of the fundamental underpinnings of the ministerial code, and is it also not a problem that he has managed to ignore that entire section of the report, gloss over it and fail to address it and to address it publicly?

[Michael Ellis]

I respectfully disagree with my hon. Friend for the simple reason that there is the issue of inadvertence. That is a relevant factor. As someone who has been involved in the law for many years, I think that one should take the approach of accepting that there is a difference between inadvertence and deliberate conduct.

The initiation of investigations by the independent adviser has been subject to much comment. I assure hon. Members that the Government have considered the range of views on this carefully. The revised terms of reference set out an enhanced process to allow for the independent adviser now to independently initiate an investigation, having consulted the Prime Minister and obtained his consent—[Interruption.] That is an improvement on what was the case before. It is also stated in the new iteration that the Prime Minister would normally provide that consent. I note here that Lord Evans has made it clear that the introduction of a range of graduated sanctions means that the independent adviser should be given the full authority to independently initiate investigations, and that these recommendations were part of the package. The Government have considered that carefully. While they take this view seriously, please allow me to lay out why we consider it critical that the Prime Minister retains a role in the initiation of investigations. [Interruption.] Because this is a constitutional imperative. The Prime Minister is head of Her Majesty’s Government and is accountable for the conduct of the Executive. That authority and that accountability derives from the Prime Minister’s ability to command the confidence of this House, and that derives from the Members of this House, including those who hold office —all of us—at the behest of the electorate. This Government are committed to maintaining that constitutional position and the accountability of the Prime Minister, including in decisions. If we usurp that and hand that authority to someone who does not have electoral accountability, that would be a constitutional irregularity. To hand such decisions to another appointed individual without a check or a balance would be to undermine that position fundamentally.

--- Later in debate ---

[John Penrose (Weston-super-Mare) (Con)]

Let me begin by welcoming this motion, and particularly welcoming the response by my right hon. and learned Friend the Minister when he said that he basically supports the principle behind the motion, even though I think that we on the Government Benches intend to abstain on it. The principle behind the motion is important because standards in public life matter and the Nolan principles matter. If any of us, in any part of this House, start to think that they are technical, passing fancies or things that come and go, then we are fundamentally misunderstanding our role here, misunderstanding the importance of the integrity that the Nolan principles enshrine, and putting in danger the way that our democracy is being perceived among constituents—the people who voted to send us here in the first place.

The crucial thing is that many of us will often face the situation where people say, “Oh, those MPs up in Westminster, they’re all the same—apart from my local MP.” That is great if you are the local MP they are referring to, because you know that they know you and hold you in high regard, but just think about what it says for democracy in general if they say that, as a class, MPs are held in such low regard and democracy is so mistrusted and distrusted. It cannot be good for this place as an institution and it cannot be good for our democracy. Therefore, it is essential that none of us underplays or forgets the central and enduring importance of the Nolan principles and of standards in public life. I was therefore delighted to hear that there is, broadly speaking, cross-party agreement on the principles of this. That is absolutely great. It bears repetition—constant repetition—and I am glad to see it.

I support much of the motion, particularly regarding an awful lot of the 34 recommendations in the report by the Committee on Standards in Public Life—but not quite all. There are many things that are extremely admirable and that I have called for myself. I would disagree with what the committee has said on a couple of things, despite the fact that overall its report is excellent. I want to add one or two things that it has become clear over the past few days need to be done to further strengthen the role of the independent adviser on the ministerial code. Many parts of the report have already been introduced. I will not repeat what my right hon. and learned Friend the Minister outlined and go through those things again, but they are welcome and they are necessary. I supported them as they were introduced and I still support them today.

However, a great number of the recommendations in the CSPL report have not yet been introduced, and I devoutly hope that they will be. Incidentally, a parallel report, the Boardman report—No. 3; he has done several—was issued in the middle of last year, and a Government response remains outstanding. I hope that I can press the Minister to explain to us in his closing remarks—or any Member on the Front Bench to explain to us—when and whether the response to the Boardman report will be put out. Logically, the Government should respond to that report at the same time as they respond to the CSPL report. The two go together; they have mutually complementary recommendations, and they should be responded to at the same time.

For example, both the Boardman report and that from the Committee on Standards in Public Life recommend proposals for the Advisory Committee on Business Appointments—that is, on what we as Members of Parliament can all do after we have left this place, such as the jobs we can take outside, and on whether we should be bound by that committee’s recommendations. There is a really simple, clear and sensible recommendation in the Boardman report, which I think is duplicated in the report from the Committee on Standards in Public Life, to require Ministers to sign a legal deed to say, “I will abide by the decisions of ACOBA.” Those decisions would therefore become legally binding on the Minister concerned, even if they ceased to be a Minister.

There are a series of very sensible proposals in the report by the CSPL and in the Boardman report that need to be implemented. They need to be introduced, and quickly, because as we have heard today the noise of public drumming of fingers and tapping of feet while we wait to say that this is not good enough and that we need to raise our standards and our game as a democracy is getting ever louder. We cannot afford to wait.

Those proposals need to be introduced, and ditto the proposals on lobbying, incidentally. The CSPL makes a series of recommendations on lobbying—recommendations 26 to 30 for anybody who is interested—that complement the recommendations that have been either discussed or recommended by the Select Committee on Standards. I forget their precise status, and I suspect the Chair of that Committee is about to put me right.

[Chris Bryant]

We have already made our recommendation and produced our report, and I hope that the Government will allow time before the summer recess for us to adopt a new code of conduct for the House.

[John Penrose]

I thank the Chair for that clarification, and he is absolutely right. If we put those recommendations alongside the Committee on Standards in Public Life’s proposals on lobbying, they make a suite of proposals that will make our democracy much more robust, much cleaner, much more transparent and, in general, much better. We should do those things immediately, and I encourage the Minister to put his foot down on the accelerator as hard as he possibly can to get them out, agreed and announced as quickly as possible.

There is much to agree with in the report from the Committee on Standards in Public Life. I would, however, venture to agree with the Minister when he says that there is one major concern—one, but it is important—about the notion of putting some of the recommendations on a statutory footing rather than adhering to the traditional constitutional principle that it has to be the Prime Minister who appoints and can dismiss his or her Cabinet. That is absolutely fundamental for any Prime Minister. It does not matter if they are a Labour Prime Minister, a coalition Prime Minister or a Conservative Prime Minister, it is absolutely fundamental. On that one important point I would respectfully depart from the recommendation of the Committee on Standards in Public Life.

I will not trouble the House very much longer, but I said at the start of my speech that I wanted to add a couple of points about the role of the independent adviser on the ministerial code that I believe have been revealed in the past couple of days. We heard earlier in an intervention from the Chair of the Standards Committee that the independent adviser feels that it is impossible for him to make a recommendation because if his advice were not followed, he would feel that he had to resign. In this particular case, when the question is whether the Prime Minister’s conduct has followed the ministerial code, which has never happened before, that has led to the adviser not issuing any recommendations or findings of fact, as he would with any other Minister. That is not good enough. It cannot be allowed to continue and is not strong enough as a way in which the independent adviser should work.

I will propose to further changes, which I hope the Minister will listen to and follow. The first is that we should be very clear that it should not be a resigning matter for the independent adviser if his or her advice is not followed by the Prime Minister of the day. They should issue independent advice. In the same way, Sir Chris Whitty issued advice to the Prime Minister during the pandemic on the medical and scientific options available to him. Sometimes the Prime Minister took that advice, sometimes he did not, but Sir Chris Whitty did not have to resign every time he did not. It would have been plainly bonkers if he had done so and I believe that the same principle should apply to the independent adviser. They should offer advice and it is then up to the Prime Minister to accept it or not and to justify his or her decision to Parliament as a result.

The corollary of that is that, although it is too late now, in this case the independent adviser should have been able and expected, had we introduced such a change, to issue a report on whether the Prime Minister had followed the ministerial code. The independent adviser had the Sue Gray report in front of him and could therefore have said, “This means that the Prime Minister followed the ministerial code here, and did not follow it there. This one is a serious breach, that is a minor breach and that is not a breach at all.” At that point, we as a House would have had something to get our teeth into, and that would have clarified the situation and stripped out an awful lot of inevitable party political posturing as we would all have had a common shared base of facts. Without that, the subsequent debate has been a great deal less targeted, a great deal less clear and a great deal less effective.

[Chris Bryant]

I completely agree with everything the hon. Gentleman has just said about the supposedly independent adviser on the ministerial code. I wonder whether his interpretation of what Lord Geidt wrote is the same as mine. My reading of it was that he basically felt that the Prime Minister had breached the ministerial code but he did not feel he could say so.

[John Penrose]

I did not reach that conclusion, which is why I waited until I saw the Prime Minister’s reply justifying his view of his approach to the ministerial code, which he published last week and on which I intervened on the Minister earlier. That was what then led me, very sadly and with great regret, to resign my post yesterday. None the less, I am pleased to note that the hon. Gentleman agrees with my broader point about the way in which the independent adviser’s powers should be further amended. I am afraid that that has only just become apparent in the course of the past week or so, but it is a further important omission. Without those changes, the entire process remains toothless if in future we have a question over whether the Prime Minister him or herself has adhered to the ministerial code.

[Margaret Beckett]

I have been thinking about what the hon. Gentleman said earlier, when he said that he differed from the views of the Committee on Standards in Public Life. Perhaps I did not follow exactly the terms of his observations, so I would be grateful if he would correct me, but I got the impression that he was saying that he could not go all the way with the committee because he thought that we were giving the power to the independent adviser to decide whether a Minister came and went. That is not the case. In the committee’s recommendations, the independent adviser is to advise on whether there has been a breach, but it is for the Prime Minister to make the decision.

[John Penrose]

I can reassure the right hon. Lady that I meant what she just said. My point about departing from the recommendations of the Committee on Standards in Public Life is about whether to make some of these bodies statutory and to allow court oversight, which is a constitutional point rather than the one she is making. I was entirely content with the point made by the committee that she has just clarified.

My final point about the role of the independent adviser on the ministerial code is that if we make the two changes that I have just described, we will make sure that the process has teeth, but one further change will still be required. If the Prime Minister is found by the independent adviser to have made a material breach of the ministerial code, it will then be necessary for this Parliament to sit in judgment on that report, because no one else can do it. The Prime Minister certainly cannot because he or she would be judge and jury in their own case, which is fundamentally never going to work. We will have to do that in a democratic way—we are ultimately the high court of Parliament; that is what we are here to do. At the moment, I do not think that our Standing Orders allow us to address that point—not about the Government, which I remain strongly in favour of and I support, but about the Prime Minister as an individual. The provision to censure or introduce other motions is, I believe, insufficiently clear and easy in that one specific and important case. Without it, the process will not have the necessary teeth and claws. We hope that they will never have to be used, but they have to be there just in case they are needed. With that, I will leave the debate to go on.

[Several hon. Members rose—]