Prime Minister’s Adviser on Ministers’ Interests

Mark Reckless Excerpts

Tuesday 17th July 2012 Commons Chamber

[Mark Reckless (Rochester and Strood) (Con)]

Paragraph 1.5 of the

“Ministerial Code” states:

“Ministers are personally responsible for deciding how to act and conduct themselves in the light of the Code and for justifying their actions and conduct to Parliament and the public. However, Ministers only remain in office for so long as they retain the confidence of the Prime Minister. He is the ultimate judge of the standards of behaviour expected”.

The passing of this motion would change that. Rather than decisions being made by Ministers and the Prime Minister, an independent adviser would, at his own instigation, pass judgments on Ministers. The Prime Minister is Prime Minister because he commands a majority in the House, and under our constitution it is the Prime Minister who appoints Ministers who are accountable to him and to the House, but passing the motion would change that.

What worries me is that a huge constitutional weight would be placed on the “Ministerial Code” for which it is entirely ill-suited. This document has not been approved by the House; it has not even been approved by the Cabinet. John Major’s Cabinet agreed to publish it, but there was a strong view that it should not be published because it would lead to inappropriate weight being placed on it. At best it is a prime ministerial document, but in reality it was only under Attlee that that was the case.

According to what I believe is the only history of the development of the “Ministerial Code”, by a lady called Amy Baker,

“Attlee had tailored the document very much to his own style and the needs of his own Labour administration—and succeeding Prime Ministers may have followed suit, had the Cabinet Office not intervened.”

However, the original Cabinet Secretary, Hankey,

“had drafted the very first guidelines in order to establish some continuity of procedure which would enable the Cabinet Office to organise business without being disrupted too much on a change of government.”

We know what has happened as the code has developed. Winston Churchill took no interest in it and Eden refused to issue a code, but it was used by Macmillan. Home and then Wilson took over in 1963 and 1964, and the Cabinet Secretary claimed that the document bore the great imprimatur of various Prime Ministers when that was in fact not the case. What had happened in 1963 and 1964 was used to push through paragraph 4.7, which puts junior Ministers under the thumb of the permanent secretary and says that they cannot tell the permanent secretary what to do even if the Secretary of State is happy for them to do so. According to Amy Baker’s book, at the time that

“may have seemed quite convenient”

to the drafters of what was then “Questions of Procedure for Ministers” ,

“who knew that their amendments would now be ‘automatically’ approved by the new Prime Minister”.

Similar circumstances arose when Margaret Thatcher became Prime Minister in 1979 and the rules governing the roles of parliamentary private secretaries changed. According to the book,

“amongst those directives which senior officials selected for incorporation into QPM, were instructions prohibiting dissent in the Commons from parliamentary private secretaries.”

Again, we see a system whereby the House is denuded of its rights and civil servants decide what happens to the “Ministerial Code”.

According to a former Cabinet Secretary,

“This process meant that on a change of government, senior officials in the Cabinet Office had a wider discretion to initiate amendments, as the incoming Prime Minister would be unaware of recent issues and would generally approve the draft handed to them on appointment.”

That is how we arrived at the reference to an overarching duty to obey international law. There is no basis for it in this Parliament or in our courts, but if the motion is passed, the position will become even worse. Not only will the code be a constitutional document, but a retired civil servant will decide how it applies to each individual Minister, and I think that that is wrong.

--- Later in debate ---

[Kelvin Hopkins (Luton North) (Lab)]

I rise to speak briefly in support of the comments of the hon. Member for Harwich and North Essex (Mr Jenkin), the Chair of the Select Committee. He put the case very well. We do not need to use extreme language, as the proposal is common sense, particularly given recent events. We want an investigator who has the capacity to conduct proper investigations and offer advice. The constitutional relationship between the Prime Minister and this House would not be changed by that. He could accept or reject the advice, but at least investigations could be made independently, without having to ask the permission of the Prime Minister first. That would be a significant change.

[Mark Reckless]

Regardless of the formal situation, does the hon. Gentleman accept that the political reality will be that if this independent investigator decides to conduct an investigation off his own bat and then gives a withering condemnation of the Minister concerned, it would be very difficult for the Prime Minister to keep that Minister in office, and de facto control would pass to the adviser?

[Kelvin Hopkins]

I trust that the investigator would make a withering condemnation only if that were justified. The recent events surrounding the right hon. Member for North Somerset (Dr Fox) and his amanuensis, Adam Werritty, deserved to be thoroughly investigated, but in my view they were not properly investigated.

Such a situation would not arise in future. I hope the Chairman of the Select Committee will not mind my mentioning that we will undertake a report on special advisers. I hope we will recommend putting their relationship with Ministers on a better footing in future, so that situations such as the Adam Werritty case do not arise again.

This proposal is timely. Recently, Prime Ministers have operated in an extremely powerful, individualistic way, and in a secretive way. They have often not trusted full Cabinets to discuss important matters. We are now moving towards a situation where the Prime Minister will be a little more open and accountable, without damaging our constitution in any way—in fact, this proposal will improve it.

--- Later in debate ---

[Mr Hurd]

I have not seen Sir Christopher Kelly’s evidence on that, but there is no shortage of opportunities to hold the Prime Minister to account on anything.

Providing advice to the Prime Minister on allegations about a breach of the ministerial code is one aspect of the independent adviser’s role. I also wish to explain the other important aspect of the role, as it has been ignored in the debate: the adviser provides an independent check and source of advice to Ministers on the handling of their private interests in order to avoid any conflict between those interests and their ministerial responsibilities, as set out in section 7 of the ministerial code. This is very much behind-the-scenes work; it is about sorting out issues before they arise. However, it does result in the publication by the Cabinet Office of the list of Ministers’ interests, which puts into the public domain a list of all the relevant interests of all Ministers and enables external scrutiny of possible conflicts of interest. Obviously, this is an ongoing process as issues arise, not a one-off. It is important to put on record that second dimension to the independent adviser’s work.

Some questions were raised about particular cases this afternoon, although I think that the hon. Member for Harrow West struck the wrong tone, not for the first time, by seizing the opportunity to try to make a political attack on the Prime Minister. Rather than rehearse some arguments about why one particular case was referred or otherwise, I simply say that in each case—those of the former Secretary of State for Defence, my right hon. Friend the Member for North Somerset (Dr Fox), my right hon. Friend the Culture Secretary and Baroness Warsi—there were no shortages of opportunities for the House or for the media to hold the Prime Minister to account for the decisions he took.

[Mark Reckless]

Did not the hon. Member for Newport West (Paul Flynn) go beyond that by suggesting that the code, rather than being a prime ministerial document for Ministers, actually applies to the Prime Minister, too, and that the independent investigator should investigate whether the Prime Minister has breached it? If that were the case, should we not all just pack up, go home and let the independent advisers decide everything?