12. In our 2006 report on the need for an independent investigatory machinery, we set out key principles against which such a machinery should be judged:

Whatever the final form for such an investigatory machinery it should:

• be manifestly independent of the Executive;
• not involve the creation of yet a further regulatory office and, ideally, should be undertaken by an official connected to the House;
• concern itself only with establishing the facts of the case;
• make its findings available to Parliament and the public;
• reserve to the Prime Minister the right to judge whether the facts amount to a breach of the Ministerial Code and what the consequences should be;
• avoid the proliferation of frivolous or vexatious complaints.[13]

It is against these principles that we have judged the appropriateness of the new machinery for investigating alleged breaches of the Ministerial Code. In its response to our report, the Government did not explicitly disagree with any of these principles.[14] Any disagreements, therefore, arise out of different interpretations of the principles—and how this has affected their implementation.

The scope of the role

13. The remit of the Independent Adviser, with regard to investigating alleged breaches of the Ministerial Code, has been substantially clarified since we last reported on this subject in 2006. In particular, it is a positive development that there is now no doubt that the Independent Adviser can investigate alleged breaches of any part of the Code, and not just those sections regarding ministers' private interests. This represents real progress, given that in 2006 the Cabinet Secretary had told us that not at all issues covered by the Code were appropriate for independent investigation.[15] We welcome the assurance that the Independent Adviser is no longer to be limited to investigating only breaches of certain parts of the Ministerial Code.

14. We also recognise that the investigatory function that Sir Philip Mawer will perform meets two of the most important principles that we have argued for—that he will concern himself only with establishing the facts of the case, and reserve to the Prime Minister the right to judge whether the facts amount to a breach of the Ministerial Code and what the consequences should be. As long as the Prime Minister determines the content of the Code, and is thus the arbiter of what constitutes acceptable ministerial behaviour, it can only be the Prime Minister who decides the consequences of unacceptable behaviour. It would not be appropriate to our constitution for an Independent Adviser to dismiss a minister, or arguably even to recommend such a course of action. It is right that the Independent Adviser should investigate the facts of allegations, and not determine the penalty if ministers are found to have breached the Code. Prime Ministers must ultimately be accountable for who serves in their governments.

Publishing the findings of investigations

15. It is less clear that another of our principles will be fulfilled—that information uncovered in an investigation will be made available to Parliament and the public. The Government told us that it must be "for the Prime Minister to account for his decision including making public any findings of fact".[16] This appears ambiguous; while it could be read as guaranteeing publication of findings of fact, it could equally signify that the Prime Minister will retain a discretion. We asked Sir Philip Mawer for his understanding, and he advised that the latter interpretation was more accurate:

It will be for the Prime Minister to decide, at the end of the day, whether or not my reports are published. I will make my report to the Prime Minister; he will decide whether or not to publish it.[17]

However, Sir Philip did not envisage that, in practice, there were any circumstances in which the Prime Minister would gain by not publishing the findings of an investigation:

I have assumed that the whole point of my appointment to the role, and the creation of the role by the Prime Minister in its current form, is to provide public reassurance, and, therefore, I think it unlikely that I am going to be asked to conduct inquiries the result of which will not become, in one way or another, public knowledge … I think he has already made clear that he will make public the facts on the basis of which he reaches decisions about what to do in any particular case.[18]

16. We welcome Sir Philip Mawer's understanding that the facts uncovered in his investigations will be made public. Like him, we believe that public confidence requires it. However, he acknowledges that the Prime Minister retains a discretion, and it is easily foreseeable that some investigations might uncover information which is potentially embarrassing or even damaging to the government, and which therefore the Prime Minister might not want to publish. For the avoidance of doubt, therefore, we invite the Prime Minister to state unambiguously that he will make public any relevant findings of fact.

Instigating investigations

17. Superficially at least, there appears to be one significant barrier to the necessary independence of the post—an inability to instigate investigations. The Government has been quite clear that the Independent Adviser will only investigate allegations of breaches of the Code if the Prime Minister asks him to. Indeed, Sir Philip Mawer envisaged that the Cabinet Secretary would carry out a preliminary investigation first, and then the Prime Minister would decide whether to ask the Independent Adviser to investigate.[19] It is hard to see how the Independent Adviser can command public confidence if the Prime Minister can decide that prima facie breaches of the Code will not be investigated. We had very public examples of this when the previous Prime Minister did not ask Sir John Bourn to investigate the conduct of either Rt Hon John Prescott MP or Rt Hon Tessa Jowell MP, both of whom were the subject of media allegations of improper conduct in 2006. Indeed, the Government has confirmed that Sir John Bourn was not asked to conduct any investigations while he was Independent Adviser. Put simply, there is no point in having an investigator in post if he is not given discretion to investigate very public allegations that the Code has been breached.

18. Sir Philip Mawer told us that this question "poses some difficulties for the Prime Minister".[20] He himself was accustomed, from his time as Parliamentary Commissioner for Standards, to being the person who made decisions on whether or not complaints should be investigated.[21] However, he did give a reason why his new post was not directly analogous:

The Prime Minister's position is different to this extent, I think, that he remains ultimately responsible for the conduct of his administration and, because of that, the first question that is inevitably asked when a newspaper story breaks is: what is the Prime Minister going to do about it?[22]

There are clearly circumstances where, for political reasons, the Prime Minister might want to be seen as immediately decisive, and decide to dismiss a minister prior to any investigation. Equally, there are cases where ministers admit their wrongdoing and no investigation is necessary. This is not, however, necessarily an argument against giving discretion to the investigator. A sensible Independent Adviser would undoubtedly take such factors into account when deciding if there is any purpose to conducting an investigation.

19. Sir Philip assured us that, in practice, he would form his own view on whether he ought to conduct an investigation:

I can assure you that I am not going to sit there supine. If I believe that something, on the basis of the facts available to me, requires investigation, I shall make that view known to the Cabinet Secretary and the Prime Minister. I have not been brought into this job just to be somebody's foot stool or patsy.[23]

He also told us that he had already had several meetings with the Prime Minister, and that he expected to maintain a regular channel of communication through the Cabinet Secretary.[24]

20. We welcome Sir Philip Mawer's assurance that he would make his views clear to the Prime Minister if he felt that a particular allegation required investigation. It is encouraging that he has already had a number of meetings with the Prime Minister, and that his views will be heard. Nonetheless, the decision to instigate an investigation still lies with the Prime Minister. The Prime Minister is clearly not an impartial figure when it comes to deciding whether or not to instigate an investigation. If the regulatory system is to have credibility, that decision must be taken out of political hands.

14   Public Administration Select Committee, Fourth Special Report of Session 2006-07, The Ministerial Code: the case for independent investigation: Government Response to the Committee's Seventh Report of Session 2005-06, HC 1088 Back

15   HC (2005-06) 884-v, Qq 252 and 253  Back

16   Public Administration Select Committee, Fourth Special Report of Session 2006-07, The Ministerial Code: the case for independent investigation: Government Response to the Committee's Seventh Report of Session 2006-07, HC 1088, p 3 Back

17   Q 56 Back

18   As above Back

19   Q 5 Back

20   As above Back

21   As above Back

22   As above Back

23   Q 6 Back

24   Q 7 Back