21. The appointment of Sir Philip Mawer as the Prime Minister's Independent Adviser on Ministerial Interests is a positive step. It is clear that the post has developed beyond that which was undertaken by Sir John Bourn. Sir Philip was also at pains to assure us that he would take his independence very seriously, and that his longstanding acquaintance with the Prime Minister would not in any way restrain him from being critical where necessary. We have no reason to doubt this. However, Sir Philip also told us that one of his aims in the post was to try and make it "an accepted part of our overall regulatory framework", so that the job would still be done "whatever the political colour of the particular government".[25] We share that goal. The post of Independent Adviser should become a permanent part of the regulatory framework for conduct in public life. If the post is to become permanent, however, it is important not just that the postholder's personal independence is unimpeachable, but also that there are institutional safeguards to guarantee that independence of action.

22. Sir Philip told us that he would not let his independence be compromised, going so far as to say that he would resign if any attempt was made to sway him unreasonably:

What it rests on is my own willingness, if I thought I was being crossed in the job or prevented from doing it properly, to walk away from it. Frankly, I would do that … It would be a very public act and it would be done in a very public context, and the ladies and gentlemen of the press would be very interested in it.[26]

Such a guarantee is welcome, but we cannot assume that every future incumbent of the post will have Sir Philip's strength of character. We cannot expect every possible incumbent to be as willing to walk away from the job. It must surely be preferable to ensure that the Government is not in a position to prevent independent action in the first place.

23. The inability to instigate investigations is a significant check on the supposed independence of the Prime Minister's Independent Adviser on Ministerial Interests. It is by no means, however, the only restriction on the Adviser's independence. Indeed, our discussions with Sir Philip suggested a number of flaws with the post as currently constituted - to the extent that we were led to question whether the title of "Independent Adviser" was itself a misnomer.

24. In our report of 2007 on the regulation of conduct in public life, we set out some key design principles for all bodies assessing the conduct of public office-holders:[27]

To achieve a high degree of independence, constitutional watchdogs should: have secure legal foundations, so they cannot easily be abolished or their governance arrangements inappropriately amended; be appointed by resolution of one or both Houses, ideally for a single non-renewable term; be removable only on address from both Houses; have secure funding arrangements, beyond the sole or direct control of the Executive; have their own staffing, accommodation and access to the other services and facilities they require; have operational autonomy, with freedom to initiate their own inquiries.

To achieve sufficient accountability, constitutional watchdogs should report regularly to Parliament and the public in their activities; be regularly scrutinised by parliamentary committees; be scrutinised by bodies responsible for providing their resources, in particular in relation to their budgets and corporate plans and performance; be subject to audit arrangements supervised buy the NAO; be subject to the supervision of the courts through judicial review; be transparent and subject to the Freedom of Information Act; be subject to the appropriate statutory Ombudsman scheme; be subject to the OCPA Code in relation to their own appointments; create and maintain a comprehensive and accessible public website.

The post of Independent Adviser on Ministerial Interests meets very few of the accountability requirements—and none of those associated with independence.

Securing independence

25. Having listed factors needed to secure independence for Sir Philip Mawer and his successors, we do not propose to discuss them each in turn. However, certain particular concerns do warrant a particular mention. Those concerns are: the security of the postholder's tenure; the level of reliance on the Cabinet Office; and the lack of public visibility for the post.

26. Security of tenure is crucial to independent action. We saw in 2007 that there was controversy over the Government's decision not to reappoint Sir Alistair Graham as the Chairman of the Committee on Standards in Public Life. As long as the Government determines whether a person will stay in their job, there is a powerful incentive for that person to not displease the Government. This is not compatible with independence from government. The Government has in fact conceded this point when it accepted our recommendation that "the most effective safeguard against concerns that regulators' independence may be influenced by a desire for reappointment is to provide for a reasonably lengthy single non-renewable term."[28] Yet Sir Philip Mawer was not appointed on such a term. He told us that he was employed by the Cabinet Office as "a consultant",[29] and for no fixed term:

It is an appointment by the Prime Minister and by the Prime Minister of the day. It, therefore, follows that if this Prime Minister loses office, for whatever reason, stands down, resigns, retires, what have you, the new Prime Minister would have to make a new appointment.[30]

27. If the possibility of dismissal by someone who may himself be under investigation is troubling, so too is the reliance on government for staffing, housing and funding. Sir Philip told us that he did not have a dedicated staff of his own.[31] Unlike other regulators supported by the Cabinet Office, whose staff were civil servants but on secondment to the regulators, he was to be supported by serving civil servants in the Propriety and Ethics team in the Cabinet Office. Effective regulators ought to be at a healthy distance from those they regulate. While the Independent Adviser is accommodated in the Cabinet Office, staffed by the Cabinet Office and funded by the Cabinet Office, it is hard to see how that distance will be maintained.

28. The scrutiny of government is a function which constitutionally ought to be performed by Parliament. We have argued before that Sir Philip's job should be carried out by a serving Officer of Parliament. The Government, while stressing the helpfulness of Sir Philip's experience in Parliament, disagrees:

The Government does not believe that it would be appropriate for a serving Officer of the House to investigate alleged breaches of the Ministerial Code as to do so could blur the lines of accountability.[32]

Given that the only previous occupant of the post, Sir John Bourn, was a serving Officer of the House combining the post with his work as Comptroller and Auditor General, it is baffling that the Government now thinks such an arrangement is inappropriate. Having appointed Sir John Bourn to the job as recently as 2006, we do not understand how the Government can argue it is not appropriate for a serving Officer of Parliament to be the Independent Adviser on Ministerial Interests.

29. The Independent Adviser should be appointed, if not by Parliament, then at least through a transparent open competition, regulated by the Commissioner for Public Appointments. This would still allow the Prime Minister the final say, but only after a rigorous, safeguarded process. The appointment should then be made on a fixed term, and it should be subject to a pre-appointment hearing.

Ensuring credibility

30. Independence is a prerequisite of effectiveness for the new post. But it is not the only factor which needs to be considered. Public confidence will not be increased unless the post is also publicly visible and accountable. At the moment, this does not appear to be the case. Establishing a public profile will take some work—a point Sir Philip Mawer acknowledged:

Drawing on my past experience, what makes for public awareness of your role is when there is a crisis and the newspapers carry your name and then the allegations, and all the rest of it, flood in.[33]

We accept this point, but at the moment it is difficult even for informed and engaged members of the public to find about his role and what he is doing. Part of that responsibility lies with us, and we will work to hold Sir Philip and his successors to account. The primary responsibility, though, will lie with Sir Philip and his staff. The Independent Adviser will not increase public confidence if the public do not know that the post exists. We welcome the fact that an annual report will be published, but more active pursuit of publicity will be needed. At the very least, as Sir Philip acknowledged, his post should have a dedicated website.

26   Q 46 Back

27   Public Administration Select Committee, Fourth Report of Session 2006-07, Ethics and Standards: the regulation of conduct in public life, HC 121, para 49 Back

28   Public Administration Select Committee, First Special Report of Session 2007-08, Ethics and Standards: The Regulation of Conduct in Public Life: Government Response to the Committee's Fourth Report of Session 2006-07, HC 88, p 4 Back

29   Q 41 Back

30   Q 71 Back

31   Q 37 Back

32   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 4 Back

33   Q 54 Back