Public Administration and Constitutional Affairs Committee
Oral evidence: The role and effectiveness of ACoBA and the Independent Adviser on Ministers’ Interests HC 252
Tuesday 25 October 2016
Ordered by the House of Commons to be published on 25 October 2016.
Members present: Mr Bernard Jenkin (Chair); Ronnie Cowan; Paul Flynn; Mrs Cheryl Gillan; Kelvin Hopkins; Mr Andrew Turner.
Questions 107-232
Witnesses
I: Lord Bew, Chair, Committee on Standards in Public Life, Sheila Drew Smith OBE, Member, Committee on Standards in Public Life.
II: Baroness Browning, Chair, ACoBA.
Written evidence from witnesses:
– ACoBA
- Committee on Standards in Public Life
Witnesses: Lord Bew and Sheila Drew Smith OBE.
Q107 Chair: I welcome our two witnesses to this session on the Advisory Committee on Business Appointments on which we are taking evidence today. Could I ask each of you to identify yourselves for the record, please?
Lord Bew: I am Paul Bew. I am Chair of the Committee on Standards in Public Life.
Sheila Drew Smith: I am Sheila Drew Smith. I am a member of the Committee on Standards in Public Life.
Q108 Chair: Thank you for being with us. We have quite a few questions and we need to get through them quite quickly. We will try to do shorter questions if you will very kindly reciprocate with reasonably crisp answers. I do not want to truncate you, but if I feel it is going on a bit long, I will pull you up. Thank you.
In our last evidence session we had Private Eye, Unlock Democracy and Professor Hine, and they suggested a number of ways in which they thought ACoBA’s remit could be changed—for example, putting it on to a statutory footing, better policing of the rules and opening up the process. How do you think ACoBA’s remit should be changed?
Lord Bew: From the point of view of the Chair of the Committee on Standards in Public Life, our role is to defend the Nolan principles of integrity, leadership, openness and accountability. From that point of view, we see no problem with the way that ACoBA currently operates. Indeed, Private Eye praised, for example, the transparency and ease with which ACoBA dealt with it in release of information. We see no problem at all. This is not the same thing as delivery, which is not a Nolan principle.
There is obviously public concern about certain developments in this area that look odd, if I use that word, or uncomfortable. There is room for a debate about statutory status for ACoBA and for a debate about the Canadian model. I would say that in all these debates, there is no simple solution to them. The Canadian model costs getting on for $6 million and in the case of ACoBA you are achieving at least some good effect cheaply. It is not good enough for many people around the table, but there is some good effect, cheaply. Statutory footing raises other difficulties, such as codification, for example. We would have to be much more rigorous about what one is allowing and not allowing. We are fully aware of the public unease on this matter. We are also saying that a lot of thought has to be given to any further developments or significant changes in the area.
Q109 Chair: You don’t feel it is your duty or your role to suggest institutional or structural changes in the system of regulation of these conflicts of interest?
Lord Bew: No, I am simply saying that from the point of view—I would just like to make it clear—of the basic Nolan principles and the way that ACoBA operates, there is no sense that it is not operating in line with the Nolan principles of accountability, for example, in terms of its own operations. That is the only thing I would debate about. There is room for a debate about further policy developments in this area, strengthening and so on. We are saying it is a complicated debate.
Q110 Chair: What is your view on those matters? It is very important that we do not make personal criticisms of anybody involved with ACoBA. It is not their fault that they have their remit—
Lord Bew: Exactly so. That is the point I am trying to get across, that there is a matter of resourcing.
Q111 Chair: In an ideal world, what system would we have?
Lord Bew: We have made a series of recommendations already in this field and I will try to talk about those areas in which ACoBA’s role should be extended. In our recent document on regulators, for example, we have said that regulators should fall within the framework. We have also said not even at the most senior level. There is an issue about dipping down from the very top level of regulators—chairs and so on—which is discussed in our recent document. We have made a number of suggestions in our already-published documents. Also, in our document on lobbying, there are a number of references to ACoBA there and how it might operate.
One of the great issues, of course, which has come up before this Committee and was discussed the last time, is the amount of information the Government are making available about meetings. We take a very strong position in our document about the need for greater transparency and not these highly terse comments that are currently released, often in dumps of information. We are on record with a number of specific things. While I am talking about it, since 2009, on the question of the Prime Minister’s adviser, we are on record as saying that should be a truly independent position with the power to initiate inquiries. That has been our position on that area of your concern since 2009. We have a number of specific recommendations.
Sheila Drew Smith: Would it be helpful if I highlighted a number of the points in the recommendations?
Q112 Chair: If you are talking about your “Striking the Balance” document, carry on.
Lord Bew: Exactly.
Sheila Drew Smith: And beyond that, possibly, in terms of the submission we have already made to this Committee. The important thing is that statutory footing may signal change, but it is insufficient of itself because we have to consider the diversity of objectives of the body, which are obviously in relation to Government, assuaging public concern and protecting individuals. You are still left with the issue, as you have said, in relation to codification, as to how you define “lobbying”, “transfer of information” and, as other people have commented, “inappropriate personal gain”.
Some of the comments we have made in the submission have highlighted that there is a need for greater consistency of the organisations, which a body like ACoBA could cover. For example, it covers some non-departmental public bodies at the moment but not all. There is no coverage, for example, of bodies often in local authorities, NHS and other public services. It is limited, as Lord Bew has said, to the most senior positions but some of the issues can occur much further down an organisation, if I can use that hierarchical term. There is also quite limited information in terms of departmental reporting of what is happening to people within those organisations. The information is inconsistent and, therefore, perhaps not very equitable. We have covered a number of those points in our submission to you, practical changes that could be put in place quite readily, as of now.
Chair: Yes, and we are grateful for that.
Q113 Paul Flynn: The word “odd”—you have suggested that things look a little odd to the public. They don’t; they look corrupt to the public.
When the person who chaired the House of Lords standards committee is revealed to be cavorting with prostitutes while using cocaine, people would say that his standards of what is acceptable in behaviour were not the standards of the general public. When the chairman of the Standards Committee here is found to be taking money to hire rooms in the place for a commercial body, giving the money to charity, and he is not found guilty of anything, the public are a little surprised. People like Malcolm Rifkind and Jack Straw were found entirely not guilty by a Committee here but were judged to be very guilty indeed by an independent body, Ofcom, who investigated it. When Tim Yeo was found taking very large sums of money from a commercial body he was, again, found not guilty in the House of Commons, but when he took the matter to a court outside he was laughed at by the judge and found extremely guilty. Last week someone was given two days’ suspension from the House for committing an identical offence to that committed by Ernie Ross some years ago who was given 10 days’ suspension. A 10-day suspension here would have consequences.
We have become excessively permissive in the House with our own standards, isn’t this right? The public are rightly contemptuous of politicians and the view of politicians is getting worse continually. The evidence is they are permissive. This is not “odd”. What do you mean, “odd”? They think we are a bunch of crooks.
Lord Bew: I withdraw the word. I accept the point you are making completely. One thing I would add, however, is that this is a particular moment now. In our report, we do draw attention to the fact that, to my surprise, this drop in public trust in Government and so on has been a consistent trend over many years in all levels of polling. I agree, the public’s perception—not sometimes fair to the real trustworthiness of individuals—has stopped and we have a 6% rise upwards, which suggests that, whatever is the nature of the political moment, there is a possibility of reversing this long-term decline. This requires political leadership. It is not just that at the moment we have a lot. All our polling has shown this long-term problem. We have a moment where it may be possible to get things right. If we don’t then it will start to plummet again, I suspect in an even worse way, but just at this moment there is a slight rise in public trust levels in the system. It is worth noting why it is so important that on an issue like today’s we get it right, and on other cognate issues of standards in public life.
Q114 Paul Flynn: You talk about consistency. We do not want consistency of futility, which is what we have now. ACoBA is an entirely futile body. It allows egregious cases likes Ed Davey through, a man who fixed a deal that is going to cost taxpayers excessive amounts of money. We could not understand it at the time; I raised this when it was decided. The deal with EDF is almost criminal. It is fraudulent to the future bill payers of electricity for the next 50 years. Strangely enough, when he leaves office he becomes a lobbyist for EDF and ACoBA smile and say, “Well, that seems to be okay.”
That is just taking that one case. There are hundreds of them, where people are lining their pockets, presumably when they are in office, preparing for their retirement riches or when they lose office. They are preparing the ground to go into a job where they can use their insider knowledge in a way that would be criminal in any other situation.
Sheila Drew Smith: It comes back to the point I made about the objectives of ACoBA, or indeed any new body, and how it practically arranges to increase public trust in the organisation. That is a challenge that everybody faces.
Paul Flynn: It has no powers. If people do lobby, if people put two fingers up to them, they can do nothing. If people do not report or report late, they express their displeasure. People are consoled by the fact if they have £100,000 in their back pocket, they can stand the displeasure of the Committee. We have described it as something that is toothless. It is not a watchdog; it is a pussycat without teeth or claws. If we want to be consistent, we start at a very low level, consistent in being totally ineffective, the reputation of politics goes down and we end up with obscenities like Trump in America and others here.
Chair: That, I think, was an interrogative statement.
Sheila Drew Smith: Yes.
Chair: Do you want to add a comment?
Sheila Drew Smith: It is a reflection of the powers that the current organisation has.
Q115 Chair: The rules state: “The rules are to avoid any reasonable concerns that a civil servant might be influenced in carrying out his or her official duties by the hope or expectation of future employment with a particular firm or organisation.” How confident are you that these rules and the way they are enforced do guard against that danger?
Lord Bew: Given the cases, some of which have already been referred to this morning, nobody can be absolutely confident. I am making a habit of understatement. Not confident, is the short answer on that.
Q116 Chair: What should we do about it?
Lord Bew: The Committee has obviously been attracted to the idea of placing ACoBA on a statutory footing. We think it is a perfectly serious discussion to be had. If the Committee is also attracted to the Canadian model, then you are talking about levels of expenditure, C$6 million and so on, that it would be difficult to see going through in British politics at the current time. We are simply saying that there is no simple switch-on-a-light solution to this. The matters are so complex. You could see at your last meeting where the tension is around it. Everybody is happy that nobody should be making financial gain out of secret or privileged information but then, when you come to discussing skills and the selling of skills, there is a tension. Some of your witnesses last time were saying it is quite clear that we must protect the right of people to sell their literary skills or whatever, and others were not so keen on that.
That is a simple example, even in your last session, of how none of these issues is very easy to sort out. There is no magical solution. That is our only point. If a decision was made to put ACoBA on a statutory footing, we understand why that is a strong argument for that.
Sheila Drew Smith: I would make two additional points, if I may. It is important that the rules are seen to be set independently, perhaps within a legal framework; there is an issue around how the rules are seen to be established and not by Government. The second issue is the monitoring or investigative capacity of an organisation, first to assess, to do due diligence, if I may use that phrase from another context, in terms of an application to the organisation prior to any move into employment outside the civil service and then, secondly, to have the capacity to do any follow-up monitoring as to what has happened subsequently, once the individual has moved into different employment. Both those things are quite intrusive, they would certainly be costly and it would require additional resources to any organisation to do that. There are practical issues around that.
Q117 Ronnie Cowan: In your written evidence to the Committee, you say there are legitimate questions regarding some elements of the current system and you state, “Who owns the risk remains pertinent.” Can you explain to me what that means, “who owns the risk”?
Sheila Drew Smith: It is about how you define the areas of concern, that are already established and I have adumbrated. They are around lobbying, transfer of information and, indeed, personal gain, which is moving into another territory. The risk remains to the reputation to Government, to current Ministers and former Ministers.
Q118 Ronnie Cowan: Who currently owns this risk?
Sheila Drew Smith: In terms of the current ACoBA?
Ronnie Cowan: Yes.
Sheila Drew Smith: I would have thought it remains with the Government; that it is a risk to Government.
Q119 Ronnie Cowan: What is the risk?
Sheila Drew Smith: The risk is of information that is inappropriate being leaked, of personal use of information, which again might be inappropriate, lobbying behaviour that would lead to contracts being awarded incorrectly. There are risks associated with that.
Q120 Ronnie Cowan: Is the risk while the person is still in the public sector, before they move over to the private sector?
Sheila Drew Smith: The risk remains subsequently as well. The risk remains. It is on both sides.
Q121 Ronnie Cowan: For my benefit, one step at a time then. It starts off while the person is still in public office?
Sheila Drew Smith: Indeed, yes.
Q122 Ronnie Cowan: There is a risk that they are doing good for the private sector that they are moving towards?
Sheila Drew Smith: Indeed, yes, as we have already discovered.
Ronnie Cowan: Which, surely, is corrupt and could be prosecuted?
Sheila Drew Smith: Indeed, yes.
Ronnie Cowan: But it never happens. That never happens
Lord Bew: We would not be meeting if this problem did not exist. That is the problem and there is major public concern about this problem. We are simply saying that when you drill down and look at the options, it is going to be complicated to take this forward. That is all. The status quo leaves us where you have described.
Q123 Ronnie Cowan: If someone is in public office and they are doing something that is illegal, then surely it is simple enough to sack them. If you are a Cabinet Minister and you are doing something for the private sector that you should not be doing—it is against the law—you are sacked. Any other member of the public in the private sector would expect that to happen, so why are you protected from that if you are a Cabinet Minister?
Lord Bew: This goes back to what I said earlier, that we do think that the Prime Minister’s ethical adviser, if you want to use that phrase, should have the power to act independently and that should deal with the question of the Cabinet Minister. That has been our position since 2009. We have not returned to it. He doesn’t at the present time, but you have asked us what we think of that, and we do.
Q124 Ronnie Cowan: That was seven years ago. Why has nothing moved forward? Despite this whole perception, how the public perceive politicians, we can sit here in this room and say seven years ago, we thought it was wrong then, but nothing has happened and it is still wrong now. How can the public possibly buy in and have confidence in their politicians if we are so inept at monitoring ourselves?
Lord Bew: All my Committee can do is to make the recommendation. We regularly make recommendations to Government, some of which are accepted and others are not accepted. It is as simple as that. That particular one has not been accepted. It is very firmly and unambiguously the recommendation of the Committee on Standards. I link it to the point I made earlier, that we are at the moment of apparent opportunity, in the declining figures, a 6% rise in trust levels, apparently, for whatever reason. Therefore, your political leadership at such a moment could potentially build on it. This seems to be very clearly an area where it could move quite quickly and it is not as complex as some of the other issues we are talking about. That is why we are making such a point of reminding the Committee this morning of what our 2009 recommendation was.
Q125 Ronnie Cowan: Why do you think we have not moved forward since 2009? What is stopping that happening?
Lord Bew: I don’t know. Let me just say one thing about this. We have laid a lot of emphasis as a Committee, especially in my time but even before, on induction for public servants of one sort or another, so that everybody knows the rules of the game. I think you are very interested, as a Committee, in defining the rules of the game for those who move into the civil service, so that later difficulties might be so avoided. We have laid a lot of emphasis on that. In one respect, in the last Parliament we have been successful in that, for example, the number of new MPs who came to induction programmes talking about regulations that affect them rose from 3% in 2010 to over 90%. In that case, the then Prime Minister fully supported what we were doing. I don’t know why he decided that that was a good idea and I don’t know why he didn’t accept our other recommendation. It is as simple as that. Sometimes—it is the nature of this committee—we put forward ideas. Sometimes it works and you get a result and a good outcome—over 90% of new MPs this time came to the induction course that we put on, the Electoral Commission and so on, outlining the ethical problems that a new MP might face—other times, we just wait for the reply. It is as simple as that.
Q126 Ronnie Cowan: With the change of Prime Minister, is it worth reiterating what you said in 2009?
Lord Bew: In 2009, it was originally Gordon Brown, of course, but there was no change in the policy on the role of the Prime Minister’s ethical adviser, to use that loose phrase. We are standing over our recommendation of 2009. In this field, so many things that look like good, simple, cure-all solutions, when you look at them more closely are complicated with a downside. I can see no downside to our 2009 recommendation. We have a moment when the public appears to have glimmerings of more trust and it seems to me this is a simple move to make. I am always attracted to simple things that can be done and that ought to have an effect, which does not mean that we have a view against ACoBA being put on a statutory footing. It might be the right thing to do. You simply have to realise that you are going to get into complex problems of codification. What is the sectoral responsibility, exactly, of a civil servant? Did they really work in that area and not in this? It will not be easy.
Sheila Drew Smith: In more recent recommendations that we have made in our report “Striking the Balance”, which was looking at regulatory bodies, we have recommended that, for example, departing board members and senior executives from regulatory, non-departmental public bodies should be covered by ACoBA or an equivalent body, creating a wider network of coverage of these rules. We have made that recommendation very recently—I think the Chair of this Committee was present at the launch of that report—and we await action on not just that recommendation but a lot of others, too.
Ronnie Cowan: I can’t help thinking that ACoBA has never turned down any of those appointments, so why widen the scope to say, “You’ve got to answer to ACoBA.”? Over 400 jobs, I think, and not one of them turned down. Why are we widening the net?
Q127 Chair: Can I just interject here? I have to say that the one thing I really expect from CSPL is a clear line of sight from where we are now to a better-regulated system on business appointments and I am not getting that from this evidence.
Lord Bew: Perhaps I should simplify it by saying there are certain things, certain ideas, that this Committee is clearly sympathetic to. We have already mentioned the question of the Prime Minister’s ethical adviser, where we are in complete agreement, essentially. On the extent of the lay membership of ACoBA, again we are in agreement on that. That is in tune with our other recommendations for other not dissimilar bodies, and we have no disagreement there. So, you are absolutely right to say that we are cautious about whether or not there is a—
Chair: Okay, disregard—
Lord Bew: The big question is statutory—
Q128 Chair: I don’t think it is, actually. I think the big question is what are the principles that we are seeking to establish in the whole field of conflicts of interest arising from movement to and from the public sector and we need to go back to these first principles. It seems to me that CSPL should be doing this work.
Lord Bew: Okay. Can I just return to what I was trying to say originally about skills and intimate knowledge? It seems to me that the fundamental point is that we do not live in a society of indentured servitude, so there is a problem about movement, restraint of trade, and so on that you will run up against. To me, the key principle is that we should protect people’s ability to sell their skills with a degree of freedom but be very hard on people exploiting information that they have gained in a privileged context for private gain at public expense. That seems to me to be the decisive principle.
Q129 Chair: If I may say so, I do not think that is the only risk.
Lord Bew: It is not the only risk, but perhaps it is the key one.
Chair: I think by far the biggest risk—and it is as much a real risk as reputational risk, which is also a real risk I should add—is that people are conducting themselves in public office in the hope that the people who they are regulating or contracting with or the relationships they are managing will somehow prove fruitful to them at some future date.
Lord Bew: Yes.
Q130 Chair: I do not think we have any mechanism at all for regulating that conflict, apart from implementing a little bit of delay in what they are allowed to do. The more prescriptive the rules are, the more permission we are giving for them to act, so long as they are not in breach of those rules. How are we going to resolve this?
Lord Bew: I accept that it is a real risk. Sorry, but that was really implicit in what I was saying about exploitation of knowledge gained.
Q131 Chair: I understand what you were saying, but the question is: how are we going to resolve this? As the ACoBA figures show, an increasing number of Ministers and civil servants are moving from jobs in which they are regulating private interests into jobs that they were regulating previously from their public sector position. This must suggest they are acquiring expertise that is useful to those companies, but it also suggests they are going to be beset by temptations—I put it no more than that—where there is clearly a conflict of interest, if they are thinking three or four years ahead about what they might be doing. How do we deal with this?
Lord Bew: This is a fundamental problem. We have talked in this document “Striking the Balance” about cooling-off periods, but they are all partial solutions. I do not see how we can—
Q132 Chair: But you asked the question about who owns the risk. Isn’t this a governance risk for the public sector organisations themselves?
Sheila Drew Smith: Yes. I was going to say you have mentioned that we have responsibility in relation to the Nolan principles, a key one of which, from the discussion we are currently having, is about leadership, both in relation to Ministers and to the co-operation of the civil service.
Q133 Chair: What should the non-executive directors of a Government Department or the chair and directors of a public body be thinking about this conflict of interest? What sort of conversation should we be promoting about their responsibility to protect the reputation of their organisation? The Ministry of Defence is permanently damaged by stories such as this.
Sheila Drew Smith: You need a whole hierarchy of action, if I can express it like that. I think you need to start at the top of the organisation where there is a board having ownership and recognition that this is an issue. There have been suggestions somewhere that you could perhaps have a non-executive or a member of the board who has specific responsibility for addressing these issues. You need to have some process by which people within the organisation—and I am talking here primarily about civil servants—are constantly and clearly reminded of the dangers that might be associated with becoming too close to an organisation. You have also, of course, the application of some of the fundamental principles of the current civil service, and indeed of the Nolan principles, in terms of honesty and transparency and integrity about the way people behave.
The challenge I think is increasingly about the fluidity of movements between the civil service—
Q134 Chair: I know what the challenges are, but coming back to this question that Mr Cowan was asking of who owns this risk, who should own this risk? Who does CSPL think should own this risk?
Lord Bew: The point about the risk is it is unacceptable to the British public.
Chair: I understand that. That is a different question.
Lord Bew: Therefore, in one sense, it is fundamentally Government’s responsibility.
Q135 Chair: Government are a huge organisation. If you are running a public body, if you are running a Government Department, who owns this risk?
Lord Bew: Can I approach it this way? In our lobbying document we have recommendations for ACoBA. One is to deal with compliance issues, and what we said is that it should publish its overall assessment of compliance by different Departments. In fact what has happened is that ACoBA could not respond to that particular recommendation now—which is obviously extremely sensitive in this area, and in 2013—even if they had read this and said, “Brilliant idea, let’s do that” because the responsibility has moved back, as I understand it, to the Cabinet Office.
Q136 Chair: So it is the Government?
Lord Bew: That tells you who owns the risk. This is a sensitive recommendation in this area to ACoBA and that is where the risk has gone and the compliance issues are central.
Q137 Mrs Gillan: Taking it on from that, the opprobrium is always attached to the individuals themselves who have been a Minister or a senior civil servant. In that way the risk is seen by the public as unfairly attaching to that individual, who might be conducting themselves quite correctly because, as you so rightly say, you cannot monitor what goes on in somebody’s mind. We have not yet advanced to that stage, so you do not know whether there were venal thoughts in that individual’s mind or not and you cannot honestly monitor whether they are using that knowledge to commercial advantage. Surely, we really do have to balance it and remember that every single Government Department, every single agency, also has a complex procurement set-up and has a number of people leading that department or agency. Surely, it must rest and that must be squarely shared with that Department, because they will know if they are making what could be an improper connection. Surely, there is no doubt it is Government that own that risk, Government that should be dealing with that risk and Government that should be minimising the perception by the public that something wrong is going on, because something wrong may not be going on at all.
Lord Bew: Exactly so, and the fate of our proposal or our lobby document demonstrates very precisely where the responsibility lies on that matter of compliance. Coming back to what I was trying to say, the Chairman will remember from the previous occasion when I have come before this Committee the gloomy figures downwards of trust levels. This is temporarily no longer the case; therefore, there is a moment. Expectations have been raised about some of these issues that concern the public, about the operation of the Nolan principles generally across the whole space of public policy. This is a moment that if we could get some reform that people understood as practical it could have a positive impact in dealing with the problem that Mr Flynn has identified, which is that there has been this tendency for Parliament to fall in public esteem over a number of years now.
Q138 Paul Flynn: Can I raise a point? I believe you have interviewed a former distinguished member of this Committee as a candidate, as a layperson, I believe, on your committee. Do you recognise it? It was Tony Wright. I could not imagine a better candidate in Tony Wright to serve on that committee, but I understand that he was turned down by ministerial veto. Is that right? Should Ministers decide on these things?
Lord Bew: These are the rules that we operate. You are absolutely right.
Q139 Paul Flynn: Was it right that he was turned down by a Minister? It was a political decision not to have him on the committee?
Lord Bew: This sort of public appointment is a ministerial appointment. You are absolutely right, Tony Wright was a fantastic candidate and very close to that particular appointment and was hugely respected by the people, including myself, who interviewed him. I think from memory three people went up and Tony was one who we said was appointable, and the Minister chose another candidate. That is the way it has always operated.
Q140 Paul Flynn: Can I make the point to you that this is rather like the defendant in a court case choosing his own judge, because the Minister might well be under scrutiny in the future. It should not be a political decision to choose someone and to reject what was a superb candidate. I cannot think of anyone who would have done a better job, when we see the alternatives as well. It seems to me outrageous that politicians can choose their own judge and jury.
Lord Bew: All three of the people who went up were superb candidates, to be absolutely honest. We were very lucky at that time. There is that difficulty and there is a part of me that, whatever the rules are in one way, given these three superb candidates, I am glad somebody else had to make the decision.
Sheila Drew Smith: These are ministerial appointments.
Q141 Paul Flynn: Who was the Minister who made the decision? Do you remember?
Lord Bew: At that time I think, because there have been changes in the Cabinet Office, it was probably Matthew Hancock. I think it would have been at that point, from the timing.
Paul Flynn: Just a moment, Chairman. This is the Cabinet Office Minister who distinguished himself by overruling the decision of his civil servants to give money to Kids Company, which went broke three days after they gave them £3 million. That is the Minister who made that decision.
Chair: Order.
Paul Flynn: It is entirely in order. It is outrageous.
Q142 Chair: You have made your point, Paul. It is not a question for CSPL at this particular moment.
Can I ask about the “Striking the Balance” document? How fair is it to say that you have made some recommendations that are valuable in themselves but they do depend upon the existing ACoBA structure? How effective do you think that ACoBA is going to be in implementing these recommendations?
Lord Bew: You are quite correct—our recommendations do depend on the existing ACoBA structure—and you are right in principle that if people disregard the structure in other areas of public life then perhaps in the area of regulators they will do so as well.
What we are trying to do, by producing a document like this, is to enhance the sense across Government and public life that we are now in a very difficult moment with these issues and there is a lot of legitimate public concern. What we are trying to do by publishing this is to enhance the awareness within Government that these difficulties exist and say, “There is this other area, regulators, where similar contentious issues will apply,” but you are perfectly correct to say that it depends on the existing—
Q143 Chair: And all the same shortcomings with the existing system?
Lord Bew: All the same shortcomings could happen.
Q144 Mrs Gillan: Can we drill down into this revolving door bit a tiny bit more? You heard the Richard Brooks evidence to us where he said that the revolving door moves are a good thing in general. Certainly, for many years in my experience, moving people in and out of the public sector was considered to be really good for the public sector but also good for the organisations concerned. I am thinking about Arthur Young and Ernst & Young on things like electricity privatisation that moved senior personnel in and out to assist with that. You mentioned earlier on that one of the negative outcomes of a revolving door was the risk of awarding contracts wrongly for the wrong reasons. Can you think of other examples of what might go wrong?
Lord Bew: The obvious answer is the sort of press stories that were discussed at your last session. There were some pretty dramatic cases that would be inclined to make one uncomfortable about what had happened. Something has gone wrong there, even if in fact the results for the public purse are minimal or bad policy effects are minimal. If people look at and say that this is a case of radical selfish aggrandisement and exploitation of a role in public service, that in itself is a bad thing. There is really no question about that, quite apart from the fact whether or not—and examples have been given—the policies were then pursued in one area and they were disasters.
Sheila Drew Smith: I think Richard Brooks made the comment that there is perhaps a danger of group think if there is too much fluidity between different sectors, whether it is public, private or indeed the voluntary sectors. There is a role and there is a responsibility of Government to ensure that there is always adequate critique and challenge to issues or projects or proposals that are made. Clearly, if there is group think then there would not be adequate challenge. There are dangers and there always has to be sound mechanisms in place, whether it is the PAC or some other mechanism or organisation that could make the challenge.
Q145 Mrs Gillan: On the reverse side of the coin, can you think of any examples that are good where the move from public to private sector has been both acceptable and beneficial?
Lord Bew: One of the documents we produced—and my colleague was the lead in this—was this document we produced on “Ethical Standards for Providers of Public Services - Guidance”. This was £80 billion or more, but this was work done by the private sector that used to be done by the state. It was perfectly clear to us, working on this in terms of contractual work on the traditional civil service side in drawing up this contract, that there is a skill shortage. Is that a fair thing to say? Perhaps you should come in?
Sheila Drew Smith: Yes. It was partly a skill shortage, and I think one of the striking things that we uncovered or heard people talk about when we were discussing with Government Departments on commissioning was that people who were commissioning had simply forgotten that the Nolan principles apply to everybody who is delivering public services. They had simply assumed that people knew that. They certainly were not articulating the ethical issues that should be considered during commissioning. It is extremely difficult to put that into contracts, but you do have to consider ethical issues as well as value for money. I do not know whether it was the speed of events or whatever, but commissioners were simply not taking responsibility for recognising that providers are also covered by the Nolan principles and that led to our first report. Then the follow-up, the information that is an online web guidance, to make people stop and think around ethical issues, which maybe goes back to the Chairman’s comment about how we can prevent people behaving inappropriately at times.
Q146 Mrs Gillan: Is it not true to say that the dangers that the public perceive from somebody transferring from the public sector out to the private sector exist in just as great numbers as people transferring from the private sector into the public sector, but that attracts no publicity at all?
Sheila Drew Smith: Yes. Not so far.
Lord Bew: Potentially, yes.
Q147 Mrs Gillan: That is possibly one of the areas where this whole matter should be examined. You have large infrastructure projects at the moment and people transferring in from those very companies that are going to be getting the large contracts and being paid—
Chair: I cannot think what you are thinking about.
Mrs Gillan: Well, on a day of the announcement of the expansion of airport capacity I may be thinking of that, but you would be right that I am thinking of a piece of infrastructure that is much closer to my heart, as they say. That is a real issue for me, and yet that receives no publicity, no highlighting; nobody examines it, nobody looks at it.
Sheila Drew Smith: Indeed. People will point to the existence of coverage by civil service of the code to temporary civil servants, but again we simply have no information or evidence of the extent to which that is highlighted when people join in the circumstances you have described.
Mrs Gillan: It would be true to say that the reason that this attracts so much lack of confidence from the public perspective is usually because of the notoriety or the public profile of the individual concerned on the transfer from public to private, so that is a contributing factor.
Chair: Would you like to ask about lobbying as well?
Q148 Mrs Gillan: I was going to move on to lobbying. I just wanted to hear the panel’s opinion on that. In ACoBA’s latest report they wanted to supplement the current wording of the lobbying ban to make it explicit that an individual should not make use directly or indirectly of his or her Whitehall contacts to influence or secure any business of the organisations. I know you are familiar with it. How effective do you think that the present business appointment rules are with regard to the clarity around the definition of lobbying?
Lord Bew: This question of transparency and lobbying is something that we have been talking about on our committee for some time. Indeed, that is what our 2013 report is. The difficulty is—and I think it was referred to at your last meeting—that while, as a result of legislation and so on, we do now get reports, they are so terse as to the update on this and so on and I think it is a real issue. The point is it is expensive and an effort for Government Departments to do this properly, but again we are at a moment where there is very substantial public concern on the matter. This can be dealt with by effort and leadership and will from the top, so that the information is not as terse, to the point of uselessness at times, as your last meeting suggests. It can be dealt with by effort, leadership as well and the Nolan principles.
Sheila Drew Smith: I just want to make a practical point. The technology exists to help you assess who has met whom and when. Perhaps with the exception of national security issues, we as a committee have said that there should be no reason why the topic of the conversation or discussion or lobbying should not be declared.
Q149 Mrs Gillan: How could non-compliance with the lobbying ban be better monitored by ACoBA itself? That is really what we are looking at here. What could ACoBA do and should they have sanctions? Should there be consequences?
Chair: One question at a time. What could ACoBA do?
Mrs Gillan: Sorry. They can cope with two, hopefully.
Lord Bew: I honestly do think it is to some degree a resources issue. If ACoBA has the resources then it should be dealt with by ACoBA itself. Let me say something more generally. The Canadian model on this area is $6 million. There is a Dutch model that is about 4 million with Committee on Standards in Public Life types of issues. We are doing these things on a tiny fraction. Both this committee and ACoBA is run—you see what the budgets are and you see what an ACoBA committee member receives and so on. These are tiny sums, so we are trying, as a country, to achieve ethical outcomes devoting minimal resources to it. I depend on my committee and Baroness Browning depends on her committee and the willingness of people to do that sort of work. I think we really do have to think at this moment, given all the public concerns that are out there, whether it is a viable model, quite regardless of whether it is statutory or not.
Q150 Chair: I think you are right that a tremendous amount can be achieved just with transparency, and to that extent ACoBA is pushing in the right direction, but in the evidence we had from Professor Hine a fortnight ago, he was concerned about the number of public appointments and details of the conditions of appointment that is unavailable from 2010 onwards. What do you think can be done to address this lack of departmental oversight of public appointments and lack of transparency?
Lord Bew: Everything we have written is in favour of enhanced transparency. Everything we have published is in favour of absolute transparency in this area. To reiterate the point, the one body that I am absolutely clear is not guilty of a lack of transparency is ACoBA itself, whose transparency is remarkable. It is all leadership in these areas and we have not fully adapted. For example, the Government decided in their wisdom in the last Parliament on this point of the private companies that receive state funds that it was our responsibility, which is a massive increase in the responsibility of a small committee. I am very glad they so decided, but again leadership has to be accompanied by saying that we must put resources in this area.
Q151 Chair: This has highlighted another problem, though, because the rules themselves were changed to cut off below director general level and cut off people below a certain salary level, so even now some special advisers are not covered by the ACoBA rules. What signal do you think this sends, that if you are above a certain level you are caught by the rules and you must behave in this sort of way, but if you are not caught by the rules, it is okay? What signal does this send?
Lord Bew: I was slightly surprised by a case that came before me the last time. At first sight, I could not see why it was below a certain level, but it was, and it was a particularly controversial case that you discussed in your last meeting. I think it sends a bad signal, but the drift of everything that we have said as a committee is that you have to drill down, you have to get away from this idea that it is just at the PUS level; it is just the regulator level. The gist of all our discussions is you have to go below that.
Sheila Drew Smith: As I said earlier, it is odd that there is not consistency across Departments as to what is reported, how it is reported and how indeed the rules are implemented.
Q152 Chair: Why isn’t CSPL much more forcefully encouraging a principles-based approach to be enforced by those responsible for the governance of public bodies and the governance of Government Departments? If that was being led from the top of these organisations, it would be far more difficult for people to blind themselves to potential conflicts of interest. Why isn’t CSPL doing that?
Lord Bew: First of all, in a sectoral sense, ACoBA has a specific responsibility, which is not our business to duplicate in any way. Let me explain what the real difficulties are. I know this Committee has a feeling—and as a Committee of MPs, it is very important that you be fully responded to—that the Government’s response to your original proposals in this area is not particularly impressive and so on. It is 19 or 20 pages. I look at it with jealousy and I say, “They are upset about this. Well, at least they got something.” In our document on lobbying, the exchanges and so on, the responses are much briefer, not going into the same degree of detail. It is a constant struggle for us sometimes. On one particular occasion, on adaption for MPs, the last Prime Minister received it and immediately embraced the document. More often than not, one receives a relatively brief reply and a reply that stresses the resource difficulties or whatever of a particular proposed reform. In the lobbying document, most obviously we are not pushing the case for greater transparency. It is that you have to choose what the next issue should be, with our limited resources where you might get traction, and as I say, you have to respect the political moment.
I am hoping in and around a major issue that we have been much concerned with, committee party funding, that there may be some things that might be done under a new dispensation. You have to choose your moments and the issues you are going to fight on. It is not that we have not been pushing very hard on lobbying and transparency issues, which obviously bear intimately in these issues. It is that we do not control the agenda. It is as simple as that. Sometimes, we will get a response. We have had a long struggle with the Cabinet Office over the timeliness of release of information, which in the end they moved closer to what we wanted. It is all trench warfare. There is no kind of great bang where we say, “We think this is a good idea,” and the system says, “Oh, gosh, quite. Let’s do that tomorrow.”
Q153 Paul Flynn: You make great play of the costs of any reforms. Do you realise that every member of this Committee—it costs the country £10,000 every year to run IPSA to police us? A body set up, ludicrously inefficient but framed in fear and panic by all parties after the expenses scandal. A crazy waste of money—£10,000 a year to police every MP. Behind that are the recommendations we have made in the past—I do not know what you think of them—on the business appointment rules. A long string of them were made. One of them was a new ethics commissioner to assume the role of the Prime Minister’s adviser on Ministers’ interests, merging the functions of the Committee on Standards in Public Life into those of a new commissioner. I see to my astonishment that the present adviser is an independent member of ACoBA. I am glad someone has given him something to do, because he is otherwise unemployed. He takes very few cases up.
If we take that position and the set-up under Gordon Brown, he reported two cases to the adviser. We have seen egregious examples of ministerial misbehaviour. Just to take one at random: Matthew Hancock and Oliver Letwin were accused of wasting £3 million. They certainly did waste £3 million of Government money. That is an example of behaviour that should have been examined by the adviser, and the Prime Minister refused to do it. The other outstanding case was Liam Fox, who was allowed to gain absolution by resignation. We do not know what he did that was so serious that he was sacked as Secretary of State for Defence. Those cases were examples of where the Prime Minister has refused to act, and only the Prime Minister can refer them, not Parliament. What do you suggest we can do to improve the system?
Lord Bew: We are in agreement with you and we have been since 2009. We believe that the initiating power, the independence of that office, should be in place in a way that it is not at present. I think it would be a form of public reassurance in the way it was intended to be. One understands the difficulties, because any Prime Minister can feel sympathetic to a Cabinet Minister in difficulty, and sometimes the difficulty has shades of grey involved. Nonetheless, we do believe that that should be an independent position in a way it currently is not now. This is not something we discuss because we made the recommendation in 2009 and we have not changed our minds. It is a different chairman, different committee, but it has never changed its mind on this point. At this point there is absolute clarity from the Committee on Standards in Public Life.
Q154 Paul Flynn: Do you not think it is significant that the Minister who blackballed Tony Wright’s appointment to this body is himself someone who should have been reported for his conduct?
Lord Bew: These are ministerial appointments, I do have to say, including mine and your appointment; they are all ministerial appointments. This is not specific to us. You may argue this way of doing things in general is not the best way of doing things, but it is our system and there are reasons for it. The Minister makes the appointment from people who have emerged from our public search, the three excellent people in the Tony Wright case. They are also public appointments and we have this tension in our system.
Q155 Paul Flynn: Do you really think that the politicians who have an interest in having a weak regime of supervising them should be the ones who appoint the judge and jury? It seems to me outrageous that it should be a Minister appointing and not someone independent like yourself.
Lord Bew: I am simply saying these are the existing rules of the game that I have accepted and that existed under previous Governments. I would like to say one thing. I have never seen any sign that Ministers did not want somebody who would make a vibrant contribution to the Committee on Standards in Public Life. I do not see, “What we really want is somebody who will sleep quietly in the corner.” I must say that I have never seen the slightest sign of that. I have always had the sense that they wanted the committee to work and to be lively in its operations.
Q156 Paul Flynn: If I remember rightly, it was the unanimous view of the Committee that Sir Alex Allan, as the ministerial adviser, was not a suitable one. I think we turned him down as being someone who had spent his—I believe we did, but we certainly were not enthusiastic at the pre-appointment hearing because we saw him as being weak and someone who was more likely to bow down to Ministers’ will than somebody who would stand up, who generally have a short life if they do.
Sheila Drew Smith: The issue underpinning both particular cases, and indeed membership of the committee, is the strength of independence. As Lord Bew knows, none of us have been known for tugging our forelock to anybody.
Lord Bew: There is genuine public competition and I am happy to say a radically increasing number of applications, which is a good sign.
Q157 Paul Flynn: It is an interesting job for which you are paid for doing nothing, or having no beneficial effect. Could you answer one last question? We have this pantomime of sending out a letter expressing displeasure when somebody treats the committee with contempt and ignores them. Would it not be a simple matter to ban Ministers, civil servants, senior civil servants, admirals, from working in areas of which they decide contracts within their period of office? Give them a ban in those areas for five years, two years, whatever it might be, when their contacts cool down, their relationships begin to fade a bit. Would that not be entirely sensible to do, rather than go through this ridiculous and futile process of ACoBA pretending to exercise powers that they do not have and be entirely ineffective as a body?
Sheila Drew Smith: I think there are various time limits you could put on people, appropriate lengths of time. I think you have to balance any ban, whether it be a lifetime ban as has been suggested, with restraint of trade. I think it is a basic human right to continue to work, to deploy skills. It pushes you back to the need to consider things on a case-by-case basis, that you can have a basic code that may be too stringent and inappropriate.
Q158 Paul Flynn: I think that is a no. I am trying to get that from these words that you are producing. If I give you another brief example. The final final question now. The Sunday Times claimed that there were 3,500—an amazing total—of former people, politicians, mostly Ministers, generals, top civil servants, working in the defence industry. There was a famous statement that they did with General Kiszely who was suggesting that standing at the cenotaph, waiting for the Queen to arrive, was a good place to fix a few deals with Japanese companies, if you remember. He was chair of the British Legion at the time. The point is this: where do we go? What can we do to make sure that those 3,500 people do something worthwhile? It was pointed out to us very vividly last week: would it be justified if those industries were efficient? They are the least efficient of any industry. There is nothing like the defence industry. Every time it has vast overruns in costs, huge delays, in 100% of what they do.
Chair: You have made your point, Mr Flynn.
Lord Bew: Very briefly on the Ministry of Defence particularly. There are a number of ideas. We have all talked about time limits, cooling-off periods, people with knighthoods and so on. It could go on forever. You have mentioned the issue of if people were able to work in the civil service past the age of 60, would so many of them go off in this way? Probably so many of them would not. All these things have their downsides and all are quite interesting ideas. The Ministry of Defence is the one that most inclines me to think that everybody who arrives to work there gets very clear, early instructions and signals as to what the future might hold. There are all kinds of difficulties now in bringing lots of people whose skills we want quickly into Government to deal with certain things and there are all kinds of difficulties and problems about doing that in the situation of Brexit and so on.
I have to say defence is a different category. It has not been changed by the Brexit issue. There one really ought to be considering right from the first that we have clear-cut rules, so that if you know you are going to work there for any period of time, this is what your options are and they might be considerably more restricted than in other places. This is partly because I think what both of us are trying to say is that any settlement involves these complexities and that seems to be an example.
Q159 Chair: Why should that not be a primary concern of the leadership at the Ministry of Defence itself?
Lord Bew: If one looks at it over several years, it is hard to say, in terms of what Lord Nolan thought leadership meant, that there was a triumph in that respect at the MoD over a number of years, partly for the reasons that Mr Flynn has outlined.
Q160 Chair: Do you receive representations from the Government and Ministers about the work you should undertake and what work you do?
Lord Bew: No. In the case of ethical standards for providers of public services, I did explain to Francis Maude, who was then the Minister, that we were going to do it; that was it. I just said, “This is our next piece of work and that is what it is going to be.” We had an early meeting with the Home Office when we were doing our work on police and crime commissioners, again for practical—
Q161 Chair: Have you had any representations from Government on this question of ACoBA?
Lord Bew: No. The work that we are doing—“Ethics for Regulators” that you attended the launch of and all these things—is independent.
Q162 Chair: Or from outside Government?
Lord Bew: No.
Sheila Drew Smith: We have an annual process whereby in a sense we do a horizon scan of the issues that seem to us as individuals and as members of the committee that may be causing us personally concern in terms of the review of our issues or of public concern. We put it into a pot and have a discussion as to which topics are likely to be undertaken in the foreseeable future, or which could be undertaken by us in the foreseeable future given our very limited resources. We were only able to undertake the review in relation to regulatory bodies by having an exceptionally able young person to assist us to do the work. So, no, we are genuinely very independent about the topics that we review.
Lord Bew: Our problem is that sometimes Government responds warmly and at other times not so warmly.
Chair: You have made the point. Thank you, Lord Bew and Sheila Drew Smith, very much for being with us. Can I thank you for your work for CSPL and could you pass on the thanks of this Committee to all your members and your staff? We know you are dealing with very difficult issues in very difficult circumstances and you are not much rewarded for this very considerable work and devotion to the public service. It is very much appreciated. Thank you.
Examination of witness
Witness: Baroness Browning.
Q163 Chair: Can I welcome our next witness, and please could I ask you to identify yourself for the record?
Baroness Browning: Yes, my name is Baroness Browning, Angela Browning, and I chair the ACoBA committee.
Q164 Chair: Thank you for joining us today. I will kick off straight away. Private Eye, Unlock Democracy and Professor Hine have all suggested a number of ways in which they thought ACoBA’s remit could be changed—for example, put on a statutory footing for better policing of the rules or opening up the process. How do you think ACoBA’s remit should be changed?
Baroness Browning: Good morning. First and foremost, Chairman, I would refer Committee members to the written submission that my committee has made, because quite clearly there is a pathway to which I believe some of the answers that have been raised, not just in the media but by this Committee and others, on the way in which that can be resolved. It is quite a body of work. You will know that we have suggested a full cost-benefit analysis, taking into account many of the issues between a statutory system. What we have suggested is that that analysis should be based on the assumption that there will be a prohibited period at the end of employment. How long that should be of course would come forward when the analysis was done, but it seems to us, and certainly to me, that the dilemma of how ACoBA should go forward, based on all the concerns that have been raised, is primarily because there is not a detailed evidence base on which to draw conclusions and, perhaps more importantly, for those conclusions to be put to Government in a way that would engage with Government.
Of course, when your Committee produced its last report in 2012, the recommendation you made was rejected by Government. The status quo has gone on of an advisory committee, and really it is almost guesswork, I believe, on all our parts. For example, Professor Hine, I read in his transcript last week, suggested to the Committee that a statutory wrapper, as he described it, around an ACoBA system, which is basically what this Committee suggested back in 2012, had proved problematic. It had not resolved the problems. I believe that, for example, a body like the National Audit Office could do a proper cost-benefit analysis, taking into account the views of those who want a statutory system and the views of the Government, as we have been hearing, who of course have an interest in that movement—private sector, public sector and back again—and what the cost would be. I do not just mean what the pound note would look like for any legal challenge or what you might have to pay in order for people to accept a contract where they had a prohibition at the end of it, but there is a loss to the public sector if the Government cannot access people from the private sector.
At the current time, we are in an example of that with the new Department set up, the Brexit Department, where they have to recruit negotiators, because there are no in-house people of suitable experience to do it. I do not imagine the people they are about to recruit, or are recruiting, are going to stay there until they collect a gold watch at the end of 40 or 50 years. I suspect they will be around for two or three years and then they will go back or move on to something else.
These all carry costs. That analysis needs to be done, if I may say so, so that this Committee can base its recommendations on evidence that would stand up to scrutiny. It needs to be done by a body that has a reputation such as the National Audit or somebody like that, and then I think you are into a serious discussion. My concern is that until you have that evidence looking at what goes on here, what might happen there, what are the consequences there—in our submission to you we have put a whole raft of things that I am sure you will be familiar with, of what will have to be taken into account: paid and unpaid work, charitable work, all sorts of things. It is a big body of work, and without that evidence and without that data and information, I frankly cannot see how anybody, including myself, could sit here and say to you, “This is the way I think we should go forward because this will produce X.” None of us seem to know what the end product would be without that evidence.
I seriously hope that you will accept our written evidence as a contribution to what we think is an important debate. We are very willing to be part of such an exercise in terms of information, opening up the doors to let people see how we work, but we do not have the resources to initiate it.
Q165 Chair: Can I thank you for your written evidence and for that statement? I think it is a very constructive contribution and is raising the bar of what these discussions should achieve and in our report I think we are likely to reflect on what you have given to us. Also I think it is a particularly interesting idea of getting the NAO to do some work on this. It is a particularly good idea.
Baroness Browning: Mr Jenkin, I say the NAO simply because I spent many years in a former life on the Public Accounts Committee, so I know the thoroughness and the expertise that they have at their disposal. It is a very bold person who challenges the data and the methodology of the NAO reports, not that that should stop us challenging it, but they just seem to me to be the ideal body to commission such a piece of work.
Q166 Chair: Since our 2012 report, which I recognise did not have that data to back it up, what do you think has changed in the external atmosphere that you are dealing with and the behaviour that you are seeking to regulate? What trends do you see?
Baroness Browning: There are several. Clearly, at the moment, we are recording at ACoBA much higher numbers of applicants coming through, from both Ministers and civil servants. The Ministers’ numbers are fairly obvious because of the change of Administration and of course going back to the last general election, which is not all that far back. A lot of particularly Liberal Democrat Ministers not only lost their jobs but lost their seats, and there is a difference when an MP loses both their seat and the ministerial job in the same go.
The other thing, and I think this was picked up but it also applies to the civil service—I do not have, again, the data to back this up statistically—is that almost certainly we are looking at a much larger body of people who are in a younger age profile. That is to do with, in the civil service, not just the tightening of the monetary budgets and, therefore, more civil servants leaving in the middle of a career, but the way in which the civil service recruits. I believe this is going to escalate. It is quite common now for even permanent secretaries to be recruited from outside, to be headhunted, to stay a few years and then to move out. I think we touched on this the last time I appeared before you. We are looking at a body of people who are still bringing up children and paying mortgages. We are not just talking about a body of people who are at the golden era of wanting something to keep them busy in retirement. Looking at the needs of that group of people and what they are likely to do when they leave public service should be taken into account as part of an analysis, because they are going to want to move to something that is going to sustain their family needs and also quite possibly for them to return. This is the difficult one, to return to a sector or a job that they did before they came into the public sector.
I heard part of your discussion with Lord Bew. It is quite tricky when somebody is headhunted by the civil service, comes in and spends two, three, four or five years, and then wants to go back either to the specific company or the sector that they were recruited from. If the rules are going to change to the extent that those people are told, “Sorry, you can’t do that for a couple of years,” or whatever the decision is, you are going to have a problem in where you can recruit from. Are you going to get the brightest and the best? Will they want to come? A lot of them will, but there will be a price tag attached to that.
Q167 Mrs Gillan: Can that not be dealt with by secondment?
Baroness Browning: There are secondments, that is true, and those still continue and they, of course, are different. Of course the—
Q168 Mrs Gillan: They escape scrutiny, don’t they?
Baroness Browning: They do, but headhunting rather than secondment, which is seen as a mutual agreement between an organisation or a company and the Government or the civil service—there are slightly different terms of trade between them. Ministers who are headhunted and go straight into the Lords from the private sector we find in practice do not last that long. After two or three years, those people have done their bit at the Dispatch Box and then they quite naturally want to return. As I think I flagged up to this Committee, I do hope when they are appointed—because usually it is a peerage then a ministerial job in short order—that it is explained to them what the rules are at the time that offer is made. I am not 100% sure that happens, but we at ACoBA do follow that up immediately with a letter, both on appointment and on leaving, to make sure that they are aware.
Q169 Chair: What about consultants? Do you think there is a potential conflict arising from the use of consultants, particularly pro bono consultants?
Baroness Browning: Yes. All these things are matters of governance, aren’t they? These are things that rest really in individual Departments but for which there needs to be an umbrella view that is put into practice. I have added in the written evidence not just where I think ACoBA should go next and how that can be achieved but also made the suggestion that was touched on in your last session here that there should be change in the way that departmental boards are fashioned. I think there are four non-executives on departmental boards, but one of them should have the responsibility, first, for governance overall and, secondly, that should include ACoBA. That would be enormously helpful to us, because we rely on information coming forward from Departments when we start to make our inquiries. What we want to know is not just what was the ministerial responsibility, but we want to know what contact they had with the company or organisation they are going to, and not just formal meetings that are minuted in ministries. We want to know were there formal dinners or conferences where these two parties would have had some contact.
Some Departments, Mr Jenkin, keep a record of that as a matter of course and when we ask for it they can press a button on a computer and we get it in very quick time. Others struggle with that. This is a governance matter, not a matter for ACoBA to be advising Government what they should do. It seems something rather obvious that could be done quite quickly and without very much expense. It could be done tomorrow if somebody said, “Yes, this is what we are going to do.”
Any board in the private sector, even a hospital board in the public sector, would almost certainly appoint one of their governors to take responsibility for governance throughout the organisation. It seems rather odd to me that Government Departments do not do the same.
Q170 Ronnie Cowan: In the last evidence session, Alexandra Runswick, the Director of Unlock Democracy, told us, “We are able to identify through LinkedIn that there were people who should have applied to ACoBA but had not. Fundamentally, when you have more information on LinkedIn than ACoBA you know the system is not working.” Do you agree with that?
Baroness Browning: Not entirely. I think LinkedIn is a very useful tool for us. We certainly check LinkedIn when we get an application from people, as we do with many other areas where we might get external data other than directly from the Department when we are looking at a case. What the problem is here, that I think you have identified, is that we do not have either a remit or the resources to investigate who does not come to us. What I do know is that from the numbers that we get it is pretty obvious that the compliance is quite good, otherwise we would have much lower numbers of people who would come to us. Of course we are dealing with just one tier of people in ACoBA. We are not dealing with people who are responsible for their leaving arrangements to their individual Ministry. I do not know whether that data from LinkedIn would involve people who are just required to come to ACoBA or whether it includes people who are more junior in status in their Department who would not come to us because we do not have a policing role.
Q171 Ronnie Cowan: I am using LinkedIn as an example, but it is self-governing. I can go to LinkedIn and I can put myself there and take myself off it. It is up to me how much information I am giving out there, and surely ACoBA should have more investigative powers to find out who these people are, what their links are and who they have connections with.
Baroness Browning: With people who have not applied to us as they should, who have breached the rules, if you like, certainly there needs to be a methodology to identify them and do something about that. That is not our remit. We are not required to police who does not apply. Sometimes, people do apply late. That is a different matter.
If what you are saying is ACoBA should have a widened remit than it has now and the resources to do it, to police those people who skip through—for example, we do check the lists here, the Members’ interests list, to check on Ministers to see if Ministers who have left office have suddenly registered something here but have not declared it to us—that is something we can do, but we do not have that remit. It may be that if the review we have been talking about is to take place, it would widen the scope for ACoBA to pick up and have the power to do something about it.
Q172 Mrs Gillan: I would like to draw attention to my entry in the Register of Members’ Interests, and of course I was a Cabinet Minister. When I was removed from office, I had to comply with the ACoBA rulings, but surely there is a very simple answer to this. First of all, every Minister’s private office should keep the registers that you refer to and they should be fully available for scrutiny after the event, so that you know who the Minister has met. My private office used to keep that. More importantly, when I left office I had no—I don’t know how to describe it—counselling-out series of interviews particularly. Surely, that should form a part of every Minister leaving office. They should be sat down and told what the rules are when they leave office. They should be reminded about them when they enter office, but, more importantly, they should be told about them when they are leaving office. Surely, that is a matter of governance and should be carried out by every Department.
Baroness Browning: Yes, the awareness of the rules, both in the civil service as well as with Ministers. I am very grateful to this Committee for your assistance in a problem I brought to you at my last meeting. One of the things that we had suggested to the then Minister at the Cabinet Office was that we thought that the full set of ACoBA rules should be attached to the ministerial code, not just a passing reference to it. It has taken us rather a long time to get agreement, but although I have not yet had a reply to the letter, I have had a very helpful conversation with the Cabinet Office and I understand that the two requests we made in that letter have been agreed to. I expect any moment now to hear that those full rules will be with the ministerial code.
Q173 Mrs Gillan: And the civil service code?
Baroness Browning: Yes. It is already with the civil service code; it was not on the ministerial code. Could I just raise one more thing based on that? I write personally to remind people of the rules when they come into office as Ministers and when they leave, and also when a general election is called. It is a bit hard, but as they go into their general election campaign mode they get a letter from me saying, “If you lose your job at the end of all this, these are the rules.”
Of course, the civil service in the Departments need also to remind people. In the conversations I have with permanent secretaries, I have been quite impressed with the fact that they put that in place and it happens. I think that people sometimes feel confused as to whether certain things apply. People have said, “I am taking an unpaid job. Surely, that does not apply,” or, “I am going to work for a charity.” We do have to be as vigilant as we can in making sure people fully understand and that they are transparent.
Q174 Mr Turner: The CSPL has just published a report, which investigates how the Nolan principles will apply to regulatory bodies in the UK. What are the key messages you would emphasise in this report and how do they relate to the role and effectiveness of ACoBA?
Baroness Browning: I totally support the seven principles of the Nolan report. I have tried to abide by them and implement them myself in the way ACoBA is chaired—for example, leadership, which was mentioned in your previous session. On taking the chair at ACoBA nearly two years ago, I declared that I would not, as I am the chair, participate in any form of corporate hospitality without declaring it on the record of ACoBA and it would appear in the annual report. I have so far managed to do two years of declining such invitations, of which, as you all know, we get quite a few in this place. You never know.
I also have an additional responsibility that inspired me to do that. Under the law, I am responsible personally as the chair for decisions to do with freedom of information—not the rest of the committee, just the chair—and that is written on the face of the legislation. It seemed to me that I might inadvertently be asked to some do when, in fact, there was an ulterior motive I did not know about, so better not to go at all. I will be declaring one and I hope it is not going to cause me any problems. I will declare it when it happens, but I am going to go to a dinner of the BMA research awards, as I have a particular interest in some of the research that is being done.
I feel that is showing leadership. I have also implemented a system of away days where we talk about how we deal with certain things. Among them are internal governance issues as well. I fully support Nolan. I can see no reason why any public body, whether it is advisory or statutory, should push back against any of the Nolan principles.
Q175 Mr Turner: In our last evidence session, Richard Brooks from Private Eye said, “ACoBA at the moment, and presumably any successor body if there were one, would be operating under the presumption that the revolving door moves are a good thing in general, and it is just the exceptions that are not. I think the rules need to change so that that is reversed, so that the presumption is that it is not a good thing and that only in exceptions would it be acceptable.” What is your view of Richard Brooks’s analysis that moves from the public to the private sector are not beneficial?
Baroness Browning: Mr Turner, this is the nub of the problem I think we all face at this point in time, which is that until somebody evaluates this and does the analysis, how can I possibly answer such a question? On the face of it, there has been a long tradition of that movement between the two sectors. I can see what the benefits are; I can see what some of the downside is; but until somebody does the analysis and says, “This would be the consequence,” if you did what was being suggested last week, I do not think you can make an informed judgment. I just do not think you can do it.
I am not, off the top of my, head going to say it would be a good thing to stop all transference—call it the revolving door if you like—between private and public sector. I know that when I was a Minister, a long time ago now, back in the 1990s, and dealt with the BSE situation, because MAFF, the Agriculture Department, did not create policy—we were not drafting policy because all our policy came from the EU—in that ministry there were very few people who knew how to draft policy. In a national emergency, we certainly had to start drafting policy that we had to take to the EU and persuade them was the right way forward in a very serious matter. We had to bring in policymakers from elsewhere, people who knew the law and could draft policy.
Government are always, as I mentioned with the Brexit example, going to need to draw on expertise unless somebody actually says, “This is how you should do it and this is what it will cost if you do not do it.” Those costs are not just tangible costs; those are costs that one would have to work out were going to affect the way Government were able to develop policy and implement it into the future. It is quite a complex area. I have to say I think what you are struggling with is one of the most complex things because there are so many aspects to it that need real, professional analysis.
Q176 Chair: How do you know that you have been presented with all the information on the application form?
Baroness Browning: We don’t, of course. We don’t know that we have and that is why we go back and ask questions. That is why we will come back and ask individual people. That is why members of my committee will start taking a look at the companies involved, which might well prompt questions that the secretariat goes back with. That is why sometimes people appear in person before our committee because we have produced some resolutions and advice that they push back against and do not like. They think it is either too punitive or they disagree with it, so we do have those meetings with them. We have to be as thorough as we can, but if people were to lie, for example, as with anything else how would you know?
Q177 Chair: Lord Bew referred to the limitations on your resources. What capacity do you have for gathering information other than from applicants?
Baroness Browning: The applicants have to come through the Departments, so the Departments have huge resources. We receive the applications from the Departments concerned and they do the first lot of investigation, and then they present us with their findings.
Chair: The Department might be doing a good job or might not be doing a good job.
Baroness Browning: Indeed.
Q178 Chair: What can you learn about, say, the company they are going to go and work for, or the work that they were doing in the Department that might have related to that company?
Baroness Browning: Interestingly, in some of the more problematic areas—Defence was mentioned and I would not disagree with that at all; it is where we get the most cases and it is the most problematic for the reasons this Committee will know well—I do have a committee member who has a background in MoD procurement. I am pleased to say that very often he knows where bodies are buried and puts information on the table for further examination.
Q179 Chair: I imagine your actual capacity to investigate is pretty limited?
Baroness Browning: There are always going to be limitations on it because this system relies both on the individual and the Department that they have been working in to bring forward that information to ACoBA.
Q180 Chair: How satisfied are you that you have enough capacity?
Baroness Browning: In the secretariat?
Chair: In the investigative capacity.
Baroness Browning: I am quite happy with the capacity we have. I am not asking for more staff, not for the remit we have.
Q181 Mrs Gillan: We have referred to Private Eye before and I am sure you are familiar now with the evidence session that we had here. In their report, “Public Servants, Private Pay Days”, they said of the 367 jobs for which former mandarins have sought clearance from ACoBA since 2010, ACoBA has refused them zero times. Given that as prima facie evidence of your organisation, how good are you in policing?
Baroness Browning: We are not a regulatory body. We are an advisory body. I really have to emphasise two things. We are an advisory body; we are not a regulatory body. We do not have the power to deprive people of their employment. That is also backed up by the restraint of trade law that we have to bear in mind. I noticed in going through the evidence last week that restraint of trade was not mentioned. Those are the parameters in which we work. Occasionally, I will ask for legal advice on an individual case when we are preparing the advice to see if we are in breach of restraint of trade, because sometimes I think we are getting very close to it.
If you are asking me why we don’t just let these things run their course and go to court, as almost certainly they would, I suspect applicants would certainly have—and I think there is some indication from one or two cases we have dealt with—the backing financially of the people who wanted to employ them to mount a legal challenge. If we breached the restraint of trade laws and it went to court, okay, that is what we are doing, but I would not, in a cavalier way, treat an individual case and say, “Okay, let them challenge us in the court.” You often hear people in Parliament and in Committees say—and I find this quite appalling and did when I was in the Commons—“Oh, well, the courts will sort this out.” I do not think that is the job of legislators. I think you need to be pretty sure that you do the best you can and that you understand the rules. Of course, the rules that we work with are not our rules. The rules belong to the Government, to the Cabinet Office.
In all of that, coming back to what you have just asked me—and I have put this in the written submission—we have to get a balance between people’s right to work and earn a living and the tools that we are given in order to give advice to make sure that when we put it into the public domain, as we do with every case that is taken up by the applicant, the public and the public scrutiny can see that somebody has moved from the public sector to the private sector, where they are going and what ACoBA has said they should do in order to mitigate public concern.
Q182 Mrs Gillan: How many times have you advised, say, former Ministers that what they were proposing to accept as a job was unacceptable, and where would the public find that information?
Baroness Browning: Everything is in the public domain. In fact, most of the things you read in the press are only there because ACoBA has a website on which we publish every case that is taken up. It could not be more transparent that we do that.
When you say Ministers, we obviously apply different rules in individual cases. We might say to one Minister, “We think you should wait for six months,” or in another case we say, “You should have nothing to do with that contract for two years.” We have applied that sort of advice. That is the way in which we can get them to modify any potential behaviour that they might have had in taking up the post, but we do not have the power to tell somebody they cannot work. They could just shrug their shoulders and say, “Well, okay,” but in the main people come to ACoBA and they take our advice. We get a bit of pushback. We get people who do not like the advice, think it is too stringent, come and make their case in front of us, and we listen to them very carefully when they do. It does not always change anything.
Q183 Mrs Gillan: How many former Ministers since May 2015 have taken up employment in roles that directly relate to the positions they held in Government? Do you have that?
Baroness Browning: I do not have that statistic. I can certainly write to you and let you know. Of course, it is all available on our website if you want to see which Ministers have done that. It is all in the public domain, so there is no secret about it.
Q184 Mrs Gillan: Do you think the two-year lobbying ban is a reasonable period of time, particularly in light of the conversations about the nature now of civil servants and the age at which they are coming in and their long careers after leaving public office? Do you think that that two-year—
Baroness Browning: Well, Mrs Gillan, you see, this is the dilemma. We have had this conversation before. First define what you mean by lobbying. Across Government, it means different things in different contexts, which is not helpful. Then there is the point that I think your Committee touched on with Lord Bew and which was part of the reason why I wanted permission, and I had to get permission, from the Cabinet Office to change the wording that ACoBA uses when we define lobbying. You will see that I do not have the power to do that without that express permission, but I hope we now have it. It goes into the question on lobbying that looks at the spirit of the rule. That, as you have already spoken about in this Committee, is what might be in people’s minds when they suddenly find they are coming towards the end of their career or they are getting on well with the chief exec or the chairman of a company and they can see that down the track maybe there is something in it for them. You yourself said just now how hard that is to identify. We do our best, but that is hard to identify. If you were to extend the lobbying or change the lobbying rules, again I would hope that would come out of a review that looked at the pros and cons as to whether that is long enough or not.
Q185 Mrs Gillan: Do you think there should be a mechanism to look at the reverse of the coin, as I was discussing in the earlier session, the transfer from the private sector into the public sector?
Baroness Browning: Yes, because what you have to bear in mind either way is that usually there are competitors out in the marketplace. One of the things we often do if somebody is going to company X is to get in contact with all their main competitors and see if they are happy about the appointment. The information somebody might have and take with them—I mean in their head—could be quite valuable if they imparted that to the person they are going to work for and be detrimental to competitor companies. We check out with competitor companies that they are happy about the appointment because that would be an abuse of the spirit of the rules. Either way, I think you would have to bear that in mind.
Q186 Mrs Gillan: So there is an argument for saying that ACoBA’s remit should be extended if you are really going to look at this public sector/private sector relationship to make sure that it was always conducted in the best possible way?
Baroness Browning: It should always be to the highest standards.
Mrs Gillan: Absolutely.
Q187 Ronnie Cowan: How important is it that Ministers refuse to take employment from companies whose activities they have directly influenced?
Baroness Browning: I think one of the things we discussed at my last hearing with you was our concern at the trend—and it is a trend and it may be because you are talking about a younger age group or something like that, I can’t define it—for more not just Ministers, of course, but you are quite right to identify Ministers, who apply for jobs with companies and sectors where they have had quite recently direct involvement in making policy and decision making or grants and contracts. In those cases, the trend has been very often people have opened up consultancies. They apply to us and say, “I want to run a consultancy,” and we look at it and say, “Yes, okay, but on every contract you sign as a consultant you must come back to ACoBA for two years and we need to sign off that particular agreement.” That is what they are required to do.
When you start this process, you get one application for a contract and then a couple of months later you get another. This is the typical pattern. Then three months later you get two or three contracts, and by the time you are into month nine very often you are looking at somebody who has a huge portfolio of contracts in an area in which they had responsibility. When you start out, you do not know that that is the direction they are going to go in.
We do look at each of those contracts carefully. For example—and I will raise it because I think we have discussed it in this Committee before—in the case of Sir Ed Davey, we advised him to have nothing to do with the Hinkley Point contract at all because he was very much hands on with that when he was the Secretary of State. We use what powers we have to give advice, not regulate but to give advice. That is how we have approached it.
Q188 Ronnie Cowan: I was going to ask you specifically about Sir Ed Davey, who is now working for MHP Communications, a lobbying group for EDF. Sir Ed Davey was involved in handing a contract to EDF to charge three times the going rate for electricity. In what way did you advise him? Is it a strongly worded letter?
Baroness Browning: The letter is on the website. All these things are in the public domain.
Ronnie Cowan: Inform me; I have not read your website.
Baroness Browning: If you just bear with me, I will see if I have a copy in my file. I think I may have Mr Davey in this file. We would have asked his Department to do a search on what contact he had had, and of course he is prohibited for two years on lobbying. On his consultancy, which one was it you particularly were concerned about?
Ronnie Cowan: MHP.
Baroness Browning: MHP, yes. We noted that EDF Energy—for whom he did have dealings as a Minister but that was particularly in relation to Hinkley Point—was a client of MHP. He was absolutely clear he would not have any involvement with EDF whatsoever in relation to their generating business prior to the announcement of a final investment decision in relation to Hinkley Point, and that is published on our website. If you know differently, you had better tell me now.
Q189 Chair: Baroness Browning, the problem is this does not really address the other concern that we will never know—and how can we know?—whether an individual in the position that he once was, a Minister making very significant decisions that affect EDF, that somehow his judgment might have been affected or impaired because he had in the back of his imagination a possibility of some future role that might have involved at least the goodwill of EDF. How do we deal with this?
Baroness Browning: I understand why you are saying that and I am not Mystic Meg either, Mr Jenkin. When we looked at it, there were certain things we could do. I could not read his mind or anybody’s mind.
Q190 Chair: The problem we have is that the public do not need a very lively imagination to think the worst. The Nolan rules are about avoiding perceptions of—
Baroness Browning: We have to take perception into account, I agree, but what I do not have the power to do is say to him, “You cannot take up that post.”
Q191 Chair: I appreciate you do not have the power, but thinking about this problem, thinking about one individual, a former military officer supervising a major contract from the Ministry of Defence who in the end finished up working for that contractor, this cannot be right. Even after two years, it cannot be right.
Baroness Browning: I am not sure who you are thinking of but—
Chair: I am not going to mention any names. I think it is invidious.
Baroness Browning: No, fine, I am having to be the mind reader now, but again if it is the case I think you are thinking of—
Ronnie Cowan: You have just told us you are not Mystic Meg.
Baroness Browning: —that too is on our website. None of this is secret. It is all on the website, so everybody can see that that move has been taken.
Q192 Chair: Yes, but just because it is on your website does not make it okay.
Baroness Browning: No, but we did make that person, if I have this right, wait 18 months before they could take up that job.
Q193 Chair: Yes, but don’t you see that the problem is in the culture? If it is in the culture of a whole Department that it is okay eventually to go and work for the company whose contract you were supervising, there is something wrong with the culture.
Baroness Browning: Mr Jenkin, I must refer you back to my written evidence where the recommendation is that the analysis is for a statutory scheme that has a period at the end of service that applies to Ministers and civil service and the uniformed branch of the Ministry of Defence where the analysis should consider whether it is or is not appropriate for a period at the end of service where it is prohibited for somebody to go into a certain sector.
Q194 Chair: I am making a rather different point. It is not in the end about rules; it is about what the mores of a Government Department, of the civil service or of the armed forces should be so that people know that the eyebrows that are going to be raised by conducting such a move are just not right and they should not do it.
Baroness Browning: I sense your frustration, and if I were 20 years younger, I would volunteer to the Government to spend my time assisting them in dealing with governance issues per se in Departments. It would be a job I would love to do, but I am far too old to do that now.
Q195 Chair: That is what I think we are trying to do here. To an extent, isn’t the onus on the leadership of Departments, and indeed the leadership of these contracting companies, to recognise what they are allowing is not worth the reputational damage that it is doing them?
Baroness Browning: I agree, and that is a good point. It is the case that in the civil service the letter that goes to the applicant and that we print on the website is also copied to the employer. I discovered that that did not happen with Ministers, so I have now changed that. I had the power to do it without referring to anybody else. Now with Ministers, when they take up an appointment, we copy that letter to the chief exec or the chairman of that company or organisation because there is potential reputational damage to them if the applicant subsequently breaches the advice that we have given. It is a rule, but it is not statutory. It is important they understand that they should not be asking people to do certain things, particularly during that two-year period.
Q196 Chair: Doesn’t this also raise another point that people and companies and Departments might be obeying your rules, but they are still breaching the principles of standards in public life? They are not living up to the standards that the public expects of them?
Baroness Browning: That is exactly why I have made the recommendation that somebody within the Department, one of the non-exec directors, gets stuck in on the ACoBA rules within the Department. I speak to permanent secretaries all the time. In rotation, I go round and see them to discuss these issues within their Department. I have no complaints with any of them on that rule, but clearly a permanent secretary is not somebody who has the time to be hands on on the sorts of issues we have discussed. I believe a director who has responsibility for governance within that Department should be checking that that is what is happening.
You are right; there are cultures. I don’t say it from the point of view of necessarily people seeing it as entitlement, but there are cultures and if you were to change the system—and again the analysis would need to show this—to some form of statutory system, there would need to be quite a lot of discussion about what you do as far as employment law is concerned to meld together those who are sitting there with existing contracts of employment and those from day one on a new system. For the uniformed branch of the MoD, we constantly come up against some of the things like the Queen’s Regulations.
Q197 Paul Flynn: I think the contribution you have made with this new document is a very useful one, and if we work on it, it will help us, so we are grateful for that. Did you not notice that Sir Ed Davey was all over our televisions when the go-ahead for Hinkley Point was announced praising the merits of nuclear power and the good value of the contract? Isn’t that what we call lobbying?
Baroness Browning: It is not lobbying. I would not—
Paul Flynn: You do not think it is lobbying, okay.
Baroness Browning: I listened carefully to the interviews that I had. I do not claim to—
Paul Flynn: Okay, fine. You have just stated you do not think it is lobbying, fine.
Baroness Browning: No, because if he was still a Member of Parliament, he would not be precluded from standing up in the Chamber and saying what he said.
Q198 Paul Flynn: Sir Ed Davey, Nick Clegg and Simon Hughes were enthusiastically anti-nuclear before the coalition was formed and they went through this mind-meld or this metamorphosis where they suddenly became excessively pro-nuclear. This Committee is fed up with hearing me talk about the EDMs and the arguments about the insanity of the deal that was struck with EDF, which was going to buy electricity for three times the going rate.
Baroness Browning: Mr Flynn, you are going way beyond my remit now.
Q199 Paul Flynn: We know that, but isn’t it tempting to believe that this contract that he struck with EDF, which was atrocious value for taxpayers and future bill payers, was influenced by his prospects of a job with EDF when he lost his seat? Isn’t that a likely possibility?
Baroness Browning: He does not work for EDF.
Paul Flynn: He works for a company that is employed by EDF.
Baroness Browning: But he doesn’t work for EDF. We have had no application—
Paul Flynn: Well, all right, you can quibble on that.
Baroness Browning: We have had no applications, I can assure you, from Mr Davey for a job with EDF. We haven’t.
Paul Flynn: It is a lobbying company that serves EDF and do the bidding of EDF.
Baroness Browning: I know who they are because we have looked at that, yes.
Q200 Paul Flynn: Anyway, didn’t it strike you that of all these 360 saintly mandarins that you interviewed none of them was possibly going to do anything that was improper? Isn’t it likely that Sir Ed Davey did have that possibility when he agreed this crazy contract with EDF that he was going to get something out of it himself? It was a retirement job, which he has got.
Baroness Browning: I have just read out, earlier in this session, the wording that is on the letter, which is on our website.
Paul Flynn: Yes, I understand that. Okay.
Baroness Browning: He is not to have any involvement in Hinkley Point.
Q201 Chair: Order. What is the substance of the question you want to ask?
Paul Flynn: The substance of the question is: you see on the declaration of interest that some former Minister has taken out a job with a company that he regulated as a Minister; what do you do?
Baroness Browning: First of all, we obviously get information back from the permanent secretary about their view, because they have the detail of how involved they were and what they do. We look at that, and we investigate some of the points in there if we want to go back for further information.
Q202 Paul Flynn: What do you do then?
Baroness Browning: Then we come to a decision collectively in the eight members of the committee about what we want to do. We take advice, and we look at the options open to us, for example, as in the Ed Davey case.
Q203 Paul Flynn: Then what do you do? Sorry, I have a couple of questions I want to ask you. You write a letter.
Baroness Browning: When we have decided what we think the advice is, we write a letter to them, and when they receive that letter they sometimes come back to us and say, “We don’t like your letter.”
Q204 Paul Flynn: All right. You write a letter telling them to do what?
Baroness Browning: Telling them what our advice is to them if they were to proceed.
Q205 Paul Flynn: If the person bins the letter and takes no notice of your advice, what do you do then?
Baroness Browning: I am not aware that they have done that. We wait for them to accept the terms in the letter, and when they do that, we send them a form that says, “Send this form back when you have started this job.” We do not then put their details on the website until we know they have taken up the job.
Paul Flynn: Your answers are very long, I am afraid.
Baroness Browning: They are very accurate, Mr Flynn.
Paul Flynn: Yes, but they are discursive and they are rambling.
Chair: They are shorter than your questions, Paul.
Q206 Paul Flynn: My questions are trying to be short, anyway. They are trying to be. Okay, the person decides to ignore your advice, and carry on, and use his insider knowledge for the company. What do you do?
Baroness Browning: I have no powers of investigation.
Q207 Paul Flynn: Exactly. Thank you. What can you do about Ed Davey if he appears on television shamelessly lobbying for a customer of the company he works for? What do you do then?
Baroness Browning: I suppose if it became so apparent that you saw it on television and thought it was a breach of the advice, I would have to go back to the permanent secretary in that Department.
Q208 Paul Flynn: Then what?
Baroness Browning: The permanent secretary would contact him, but I doubt the permanent secretary has—
Q209 Paul Flynn: What would the permanent secretary do?
Baroness Browning: I would suspect he would contact him, but his powers to say, “Off with his head,” are probably pretty zilch.
Q210 Paul Flynn: Isn’t it true that the ultimate power you have is to send a letter to people who have ignored you altogether and have not bothered applying, or come back retrospectively? The summit of your powers is to send a letter to them expressing your displeasure?
Baroness Browning: We are an advisory committee; we are not a regulatory committee. I really can’t repeat that enough: we are an advisory committee.
Q211 Paul Flynn: I am well aware of that, but can you tell me what you have done over your two years in office that gives you satisfaction where you have served the public interest?
Baroness Browning: I take pleasure in every day, Mr Flynn, as I am sure members of my committee do. We work hard, diligently and ethically.
Q212 Paul Flynn: I am sorry for interrupting you, but I want to try to get to the nub of this. Is ACoBA doing anything good? You have made a lot of defences about ACoBA and the people there and how they work and so on. But the public good—how is the public interest being served by ACoBA in preventing the abuse of the revolving door?
Baroness Browning: We have considered each individual case and we have put into the public domain those who take up the advice and take up the job. Had we not done that, if we did not do that as ACoBA, these things would be a secret. They would be down to investigative journalists to unearth them and put them into the public domain. Investigative journalists do not need to do that; they only have to visit our website. That is a public service. We give advice, and those people who comply, with all the wonderful qualities that we hope they have, will take that advice. Those that do not I cannot quantify, because they are not known to me.
Q213 Paul Flynn: Is there any point in your organisation as it stands? You tell someone not to lobby for two years, but how do you know they have not lobbied? If they have lobbied, what do you do about it?
Baroness Browning: I do not know. I do not know because we have no remit to investigate and to bring people to book.
Q214 Paul Flynn: It is a futile organisation and it is not in a position to achieve anything.
Baroness Browning: Mr Flynn, I heard Professor Hine say last week that the Canadian system was the same as ACoBA but it had a statutory wrapper—that is how he described it—and that has not worked. What I am saying to you is I think this Committee would be well served, if I may say so, to resolve exactly the point you have just raised with me, to have a cost-benefit analysis done, so that all these points can be taken into account and resolved.
Q215 Chair: Sorry, can I have a go? May I make a suggestion that there should be something more directly in the contracts of employment of civil servants and armed forces personnel, and indeed there should be contracts between Ministers and the Crown in respect of the ACoBA rules, so that the permanent secretary does have some means of enforcing the rules through a contract of employment that would have prohibition clauses in it that extend beyond the actual period of employment? What about that suggestion?
Baroness Browning: It is certainly something that could be considered. I do not think I am in a position to say yea or nay. I did look along these lines at what might be done to beef this up, given that it is advisory and not statutory. One of the questions I asked, Mr Jenkin, and I was quite shocked at the reply, because it applies to a great many civil servants and to Ministers, was, “How many cases have there been of breach of the Official Secrets Act?” The Official Secrets Act is rather important, I think. I have signed it myself on more than one occasion. I was told there have been no prosecutions under the Official Secrets Act. What you have to be wary of is that we might think this is all very nice and we are protecting interests here, but it has to be thought through. It has to work.
Q216 Kelvin Hopkins: What I was going to ask has been covered to an extent by the Chairman’s point about having something written into contracts when they are doing the job or before they retire. Unlock Democracy and Spinwatch have both been very active in this area, and they say there needs to be a provision for stronger punitive actions. I have to say, I agree. Even though you are defending your position very eloquently and you are bound by the rules as they are, do you not think there should be stronger punitive actions available to you?
Baroness Browning: Mr Hopkins, I think you were absent for the first part of this session when I did draw the Committee’s attention to the written advice that we have given, which I hope will comprehensively deal with that.
Kelvin Hopkins: I should apologise for not being here.
Chair: Mr Hopkins was attending to other matters.
Baroness Browning: Yes. No, I meant no criticism. I know you are a busy person. I am sorry. It is just that I thought I might have covered that. This written submission is a very open document for trying to find a way through all these issues that you have been deliberating on for several years.
Q217 Kelvin Hopkins: What I am trying to say is: would you not jolt the Government into providing stronger rules?
Baroness Browning: I am aware that Government rejected your recommendation in 2012 for a statutory system. I think you will have a Minister appearing before you. I do not know, is that later today? Certainly soon. I think that is a question for Government, because unless there is a political will to look at these things and to consider the sort of suggestions that we have made—I have been quite encouraged in recent weeks and months that the Cabinet Office has opened up more dialogue with us. The changes I can make within the existing rules are small, but they are important, and we are constantly looking for ways to improve things. What I do not think is helpful is if you have to wait for a triennial review before anyone says yes or no. I think we have overcome that problem and the Cabinet Office is more receptive to making changes in shorter order than they have been.
Q218 Kelvin Hopkins: You have the status, you have the respect of Government and so on, and behind the scenes you could say, “Come on, we have to sort this out. This is not working and it has to be tougher.”
Baroness Browning: I certainly would never flinch from saying that. It was to this Committee I turned for help with the last problem I had in this area, and I think you have unlocked the door a bit there, so thank you.
Q219 Kelvin Hopkins: We have said it. Mr Flynn made the case about Ed Davey, but there is more than one former Minister that has been in that situation. It is particularly interesting where they have insecure parliamentary seats and they are of an average working age, because they are much more likely to need a bit of cash after they leave. That was certainly the case with Ed Davey. He was a youngish man, and he was a Liberal Democrat who was in a dubious seat. The possibility of losing was much greater than—shall we say?—our Chairman, who is in a nice strong Conservative seat, and myself in a strong Labour seat. He was much more insecure and more likely to want to look to make money afterwards. Could you not simply say that there are thousands of jobs not related to their previous role in Government and they could take any one of those jobs and there would not be problem, but if they are in that area there will be a problem?
Baroness Browning: That is certainly something that I would expect to be considered very carefully if this review we have proposed is accepted and a proper cost-benefit analysis. I do not want to cast any aspersions on Mr Davey in particular, that he was in a wobbly seat and that I thought he was lining something up because of that and people in safe seats would not. I would rather not go into that territory. On the general point you make, take a look at our website. There are many people, both politicians and civil servants, who have behaved, I think, in a very sensible way. I don’t know what they do after two years.
But if you become a Minister or you are a very senior civil servant—and those are the people ACoBA deals with—your transferable skills, management skills, leadership skills are available, I would have thought, to any sector and almost any company, because they are things that everybody needs. If you look, quite a lot of people have looked at that and—whether they have done it quite deliberately I do not know—they have moved into very nice jobs, but outwith what they were responsible for.
One of the considerations on a cost-benefit analysis you would need to make is: if you were not able to apply in your sector, what would the availability of jobs be outwith that sector? In some cases, it is quite difficult, including with Ministers, because they have worked in that sector before they became a Minister. We have the case of Dan Poulter, who was a doctor who became a Health Minister and lost the post as a Minister. It would have been quite wrong for ACoBA to have told him he can’t go and practise as a doctor for two years, and we did not.
Kelvin Hopkins: No. That is the other way around.
Baroness Browning: There are always exceptions to the rules.
Q220 Paul Flynn: Fatuous.
Baroness Browning: No, it is not. Mr Flynn, it is—
Paul Flynn: We are talking about a very distinguished MP who had been badly treated by his own party. Of course he should go back to being a doctor. But that is entirely different to someone lining their pocket with sinecures when they retire.
Baroness Browning: No, I am sorry, Mr Jenkin, I must correct: this is not fatuous. If you have a set of rules you have to apply them no matter what. The courts are full every day of people applying rules that have no flexibility in them, and we all wring our hands and say, “What on earth have they done that for?” The point about the cost-benefit analysis is you take into account the exceptions and you decide on what basis the flexibility is built in. It is all in our paper.
Q221 Paul Flynn: You are reducing a serious complaint into an absurdity and attacking your own creation as an absurdity. Most of the MPs who are doctors still practise as doctors. We have a brand new one in Tooting now.
Baroness Browning: Not all of them have been Ministers.
Paul Flynn: But to suggest that that is the same as somebody trousering £100,000 by selling their insider knowledge is unfair, and you should not be defending a bad practice by putting what is now—
Chair: We get your point, Mr Flynn.
Baroness Browning: I think, Mr Jenkin, when I see the transcript of this, Mr Flynn has misunderstood the point I was making to Mr Hopkins. Perhaps I might want to look at the transcript of this, because that was not what I was saying at all.
Q222 Chair: Understood. We are going to move on. I am about to come back to you, Mr Flynn, with your further questions. Before we do so, can I ask about the line that is now drawn under certain grades and salary levels so that you no longer police, if I am allowed to use that word, below director general level and below a certain salary level. What kind of message do you think this sends to those thinking of leaving the civil service or leaving the public service before they reach that level about what is allowed and what is okay?
Baroness Browning: Of course, that is a question you really need to put to a Minister, because that rule was made by Ministers, not by ACoBA. That is something for which the Cabinet Office has made a decision.
Q223 Chair: I am not holding you accountable for the change. I am just asking you what sort of message do you think that sends.
Baroness Browning: Mr Jenkin, I cannot answer for those who made the rules.
Q224 Chair: No, I am not asking you to answer for them; I am just asking you for your own view. What kind of message do you think it sends to people in that position?
Baroness Browning: The point is that those who come below the level of casework that ACoBA is required to deal with are not just left to do anything they like. They are still the responsibility of their Department. Of course, one of the changes in very recent years has been that Departments should publish and make known what they are doing internally on people whose grades and levels are below the ACoBA threshold. We have no responsibility for that, but I certainly welcome the fact that at Department level all of this should be made as transparent as possible, as we do on the ACoBA website.
Q225 Paul Flynn: You have made some useful suggestions in your document, but throughout your evidence you appear to be putting obstacles in the way of reform. We had an interesting discussion last time about your past record in doing very humble jobs in the hospitals and so on, so I am not questioning that. I am questioning the mood of the committee. Could you remind us how many members of the committee have outside interests for which they are paid?
Baroness Browning: All of them do.
Q226 Paul Flynn: All of them. Okay, thanks. Don’t you think this affects their outlook? If they think it is normal to get £60,000 a year for a job, and often a part-time job, isn’t that going to affect their judgment on other people coming up to ask to do the same thing? It is hardly—
Chair: Let her answer the question.
Baroness Browning: I think you earn more than £60,000 a year, if I have caught up with MPs’ salaries in recent years. These people are taking an honorarium of £3,000 a year.
Q227 Paul Flynn: It was our suggestion that you should be paid, in the report before the report last. We have been suggesting that. It was the only thing the Government agreed with, I am afraid, on our proposals.
Baroness Browning: It is an honorarium; it is also public service. These are people who earn their income doing other things but receive £3,000 a year for being a member of the ACoBA committee. Frankly, that is what public service is about. It is about doing something, putting your time and effort in, without having fat cheques arriving every week. I wish you would say they are doing a good job.
Paul Flynn: I don’t think they are.
Baroness Browning: I think they are worth every penny.
Q228 Paul Flynn: I have challenged you to tell me anything that has been achieved, and you have not been able to tell me anything that has been achieved. You wag your finger at people and say, “Naughty, naughty,” or tell them that what they are doing you do not approve of, but you do not have any power to do anything. You admitted that.
Baroness Browning: It is not admittance; it is a statement of fact.
Q229 Paul Flynn: Can I just get it across here? If you took someone living on the basic pension, if you took someone who was a waitress or who was a bus conductor on that committee, they would see things from a very different angle. But your committee is packed with the great and the good who have a different perspective. Their perspective is to be permissive to people like themselves to take sinecures in jobs that can be profitable to them but detrimental to the interests of the country. Isn’t that right?
Baroness Browning: No, not at all. Six of the eight members of that committee have come through the public appointment system, which has been publicly advertised. I have to tell you, since I have been chair we have recruited three members. You were very free, Mr Flynn, to encourage every bus driver and hairdresser you know to apply for any of those jobs. I can tell you factually, not one applied. If that is what you think should happen, I encourage you next time we have a vacancy to go round to all the people you think would be more suitable and get them to apply.
Q230 Paul Flynn: Look at the people’s peers. The people’s peers are appointed to represent the people, and half of them had knighthoods or baronetcies.
Baroness Browning: I cannot answer for people’s peers.
Paul Flynn: Exactly. That is what happens. These are a cross-section of society, and half of them have knighthoods or baronetcies.
Baroness Browning: Can I just say, Mr Jenkin, this is the third time Mr Flynn has raised with me the fact that bus drivers would make better members of the ACoBA committee. In putting that written submission to this Committee, what I am saying is it is all there for examination and analysis, so that any decision that you make, or that you put to the Government and the Government subsequently make, is based on evidence, so evidence-based decision making. If you do not have evidence-based decision making in any walk of life, including looking at ACoBA, you make the wrong decisions. It is a very bad way to make decisions. It may well be that, in that analysis, they will look at a totally different profile of the committee than the one we have now.
Q231 Paul Flynn: Hopelessly idealistic. This place is built on prejudice not evidence, I am afraid.
Chair: It could be said that the boot is on the other foot. I think you have had a fair run, Mr Flynn.
Baroness Browning: What does that mean, Mr Jenkin?
Chair: About prejudice in evidence. Are there any other questions from other members of the Committee?
Q232 Kelvin Hopkins: Just one point following on from the point Mr Flynn has made. Even though you have some very fine and worthy people on your committee, would it be beyond the possibility that you could somehow get some Rottweilers appointed—not the dogs but people who have Rottweiler tendencies—who would really go for it, possibly people with the same approach as my colleague Mr Flynn?
Baroness Browning: You are tempting me, aren’t you? They do have Rottweiler tendencies in terms of getting facts before we make decisions, and I think that is the cerebral way to approach it. As I have said, we have a lawyer on the panel now, which is very helpful for forensic attention to detail. We have somebody who has background in the MoD, not the uniform branch, who is very clear and detailed about contracting in the MoD. That is a very difficult area because, as you all know, before we get MoD cases, it goes through an MoD panel. Before we see them, an MoD panel looks at them, so they are without doubt the most complex cases. I think that it is easy to sit back and criticise the committee. I find it rather strange to criticise the individual members of it. I have to say, they are one of the best committees I have ever chaired, and I have chaired a few.
Chair: Baroness Browning, thank you very much indeed. I do not sense that your own tendencies are particularly meek and mild when it comes to the subject matter you are dealing with, and personally I am very grateful for the role you are conducting. This Committee approved your appointment and we wish to conduct ourselves in such a way as strengthens your hand. Would you also pass the thanks of this Committee to the members of your committee and your staff for the work they do? It is, if I may say so, pretty selfless, given the complex and controversial nature of the work that your committee does. We are very grateful.