31. Two years ago we welcomed the creation of the post of Independent Adviser on Ministerial Interests as "a small step towards adequate investigation of breaches of the Ministerial Code".[34] The extension of this post is another, arguably more significant, step. Yet there remains some way to go before an investigatory machinery is in place that will achieve its purpose. As we have noted, the inability to instigate investigations is a significant flaw in the institutional design of the post. So too is the continued uncertainty over whether findings of investigations will be published. Public confidence in ministers will not be improved by investigations which are instigated by the Prime Minister, staffed by civil servants, and reported only to the Prime Minister.

32. Independent investigation of allegations is in the interests of government. A system which was seen to work well, and commanded public trust, would produce fairer outcomes than are achieved at present, where ministers are essentially subjected to trial by media. We are also attracted to the notion that dismissal should not be the only punishment available for a breach of the Code. There is currently no other sanction to deter non-compliance, but some breaches of the Code (especially where they are effectively concerned with procedural matters) clearly do not warrant dismissal.

33. Sir Philip Mawer told us that he supported some "equivalent of a yellow card" for ministers whose offence did not warrant their removal from office.[35] It is, as Sir Philip acknowledged, difficult to imagine what that "yellow card" might be, but this does not mean it is not an idea worth pursuing. Expecting ministers to come to the House and make a formal statement of apology is one option; simple naming and shaming is another. We recommend that the Government considers whether there are any suitable penalties for breaching the Ministerial Code that fall short of dismissal. Whatever penalty is preferred, however, it will only be credible if the investigation which preceded it is also credible.

34. This report sets out the steps needed to give credibility to the investigation of alleged breaches of the Ministerial Code. By appointing an investigator, the Prime Minister has shown that he understands the need for fair, impartial investigation. It is a significant step towards fair, defined accountability for ministerial conduct. The potential benefits of such a post, however, will not be felt unless the investigator is widely seen to be entirely independent and impartial. Current arrangements do not provide for that independence. Until the changes we outline have taken place, it is inappropriate to refer to the new investigator as an Independent Adviser. We therefore urge the Prime Minister to adopt the Committee's recommendations for change, and in so doing to build upon the significant improvements already made to the machinery for investigating the conduct of ministers.

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