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Cabinet Office: Standards-setting Bodies

Part of the debate – in the House of Lords at 11:38 am on 29th March 2007.

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Photo of Lord Norton of Louth Lord Norton of Louth Conservative 11:38 am, 29th March 2007

rose to call attention to the case for putting standards-setting bodies falling within the responsibility of the Cabinet Office on a statutory footing; and to move for Papers.

My Lords, there are five such bodies: the Committee on Standards in Pubic Life, the House of Lords Appointments Commission, the Civil Service Commission, the Office of the Commissioner for Public Appointments, and the Advisory Committee on Business Appointments. They operate in different ways but have in common their role in advising on and/or regulating the Government's approach to public appointments, as well as, in the case of the Committee on Standards in Public Life, offering advice more widely on conduct in public life.

They are all non-statutory bodies which rely on the Cabinet Office for their resources. The Cabinet Office liaises with the Committee on Standards in Public Life, while the remaining four are supported by its cross-government independent offices unit.

I think it is appropriate to address their status and responsibilities. The Public Administration Committee of the other place has already taken some evidence on their role as part of its inquiry into ethics and standards, but that was some months ago. I think that now is a useful time to engage in debate and draw on the knowledge available in this House. It is a useful opportunity to get some idea of the Government's thinking.

The case for putting these bodies on a statutory basis can be grouped under three headings: independence, accountability and certainty. The case for enshrining the independence of such bodies is clear. It is the same as that used by the Government in the passage of the Constitutional Reform Act. On that occasion, the Government argued that not only was it essential that the highest court was independent, but it had to be seen to be independent. For that reason the Appellate Committee of this House is to be replaced in two years' time by a supreme court. The same principle applies but, I would argue, with greater force in the case of these standards-setting bodies. It applies with more force because there is, I would contend, more public scepticism about the independence of these bodies than ever existed in respect of the House of Lords in its judicial capacity.

Leaving bodies to advise Ministers and variously to regulate behaviour, where those bodies are appointed by Ministers and rely on government for their resources, creates grounds for doubt about their detachment from government. Janet Gaymer, the Commissioner for Public Appointments, gave a small but telling instance of the problem in her evidence to the Public Administration Committee. She noted that her office e-mail address used to include the words "Cabinet Office". As she said,

"it will send out the wrong message. Happily, that has now been changed, but that was the case".

In practice, these bodies have worked well—I have no criticism to make of them, rather the reverse—but perception is crucial. Enshrining independence in public authoritative form, through statute, strengthens not only the bodies themselves but also Ministers. Problems can arise where Ministers reject the advice of a standards-setting body, but they can also arise, in terms of public perception and hence acceptance, when Ministers accept the advice of such a body. If a body appointed by Ministers provides advice that is seen as overly favourable, or at least not overly critical, of Ministers, there is the danger of its advice being discounted. The cash-for-peerages scandal has arisen because the system worked. Certain nominations were blocked. But what would have happened if a controversial nomination had been cleared by the appointments commission? Whatever the objectivity of the commission, there is the danger that people would say, "Ah, it would say that; its members are appointed by the Prime Minister".

It is important that the independence of standards-setting bodies not only exists but is seen to exist. Creating the bodies by statute and enshrining their independence not only delivers independence but arguably is the most effective formal mechanism by which they can be shown to be independent. Much will then depend on what they do. The formal framework is necessary, but it is not sufficient.

The second ground is that of accountability. The chairman of the Committee on Standards in Public Life, Sir Alistair Graham, in his evidence to the Public Administration Committee, said that the Prime Minister was accountable to Parliament for the work of the committee. Given the wide remit of the committee, which includes advising on parliamentary as well as ministerial conduct, I am not sure it is appropriate that the committee is accountable solely to the Prime Minister. I understand Sir Alistair's argument on the value of the arrangement, but I also see the problems.

There is a general issue of accountability. Who do the standards-setting bodies report to? In his evidence to the Public Administration Committee, the chairman of the Advisory Committee on Business Appointments, my noble and learned friend Lord Mayhew of Twysden, who I am delighted to see in his place, said that the committee advised on individual cases, but if Ministers failed to consult, or if the committee's advice was ignored, it published the facts on the website. As my noble and learned friend went on to say:

"We then leave it to whatever forces will play upon that set of circumstances, and I think that is right ... These matters are in the end controlled by public opinion in the sense that they decide what is and what is not acceptable".

Transparency is clearly a powerful weapon, but the issue is one of accountability, of reporting to a body that, if necessary, can take action. My noble and learned friend does not wish his committee to have enforcement powers—I have no issue with that—but the question is whether the committee should report to a body that is in a position to act—in this instance, Parliament. Janet Gaymer also touched on the issue in her evidence. She said:

"I suppose that if you ask me to whom I am accountable I will say that initially it is to the public who is on the receiving end of my work. But as representatives of the public in Parliament clearly there is an element of scrutiny which Parliament must have, which is why we are sitting in front of the Select Committee".

The problem with this line of argument is that there is no structured or systematic means by which the public can hold these bodies to account. Reliance is essentially being placed on the media or on a Select Committee to pick up on a particular case. I see no reason why there should not be a more systematic line of accountability to Parliament. That does not rule out being answerable to others. The Constitution Committee of your Lordships' House, when it reported in 2004 on the role of statutory regulators, reached two conclusions that are pertinent to today's debate. The first was that independence and accountability are compatible with one another—one is not at the expense of the other—and the second was that giving regulators a statutory basis does not prevent them having a wide arc of answerability. Indeed, the committee drew attention to what it referred to as 360 degrees of accountability. I see no reason why the same would not apply to these bodies were they to be established by statute.

The third argument is that of certainty. Giving these bodies a statutory base would deliver certainty in remit and continuity. The need for this is reinforced by recent developments. The failure of the Prime Minister to renew the contract of Sir Alistair Graham as chairman of the Committee on Standards in Public Life has attracted public attention; indeed, it was pursued in this House on Tuesday in Question Time. The important point for this debate is not the failure to renew Sir Alistair's contract—the practice has been to serve a single three-year term—but rather the uncertainty that has been created by not having a successor in place. This point was made by Sir Alistair in his letter to the Cabinet Secretary on 13 March. He noted that it would likely take some months for a successor to be identified and appointed following open competition. As he continued:

"This will leave the Committee without a permanent Chairman for what is likely to be a considerable period and, during a time of unprecedented public concern about standards of conduct in Government and erosion in trust in the political process more generally. This risks the perception, unfair or otherwise, that this Government places a low priority on the maintenance of the highest standards of conduct in public life".

The effect of not having timely arrangements in place for a successor, he said,

"will be to ensure that the Committee is unable to undertake its core work for a considerable period of time. The inevitable perception will therefore be that the Government does not wish this Committee to be actively undertaking a programme of work at this stage".

The other instance I wish to cite derives from the House of Lords Appointments Commission. Here I refer to the evidence given by the chairman of the commission, the noble Lord, Lord Stevenson of Coddenham, to the Public Administration Committee, in another of its inquiries—that on propriety and honours—published in July of last year. In his evidence, the noble Lord, Lord Stevenson, was unsure of the scope of the commission in dealing with a resignation honours list. Did it have the responsibility to scrutinise such a list? The noble Lord told the committee:

"It is embarrassing for me, because frankly, I think they should. I think it does, actually. I think this will fall under our scrutiny but I am rather embarrassed that I cannot give you complete certainty. I will follow it up afterwards and give you complete certainty".

He later wrote to the committee to say:

"My understanding now is that if there is a Prime Minister's resignation list, we will be asked to vet it".

As the committee concluded:

"The Prime Minister's vague assurances and the Appointment's Commission 'understanding' that it will vet any resignation honours list are unnecessarily equivocal. The Appointments Commission is specifically charged with considering names which have not been subject to the normal assessment and selection processes. This body should be clearly and unequivocally responsible for vetting Prime Ministerial resignation honours lists".

On these grounds—independence, accountability and certainty—there is a prima facie case for putting the five standards-setting bodies on a statutory basis. I am aware that some of those who run these bodies are not necessarily persuaded of the case, but then again they have not set their faces against it. I think the time has come to give the matter serious consideration.

The case for putting the House of Lords Appointments Commission on a statutory footing has long been made. The royal commission chaired by my noble friend Lord Wakeham recommended a statutory Appointments Commission. My noble friend Lord Hurd, in his evidence to the Public Administration Committee, argued that the appointments process should be settled by Parliament and overseen by a body it has set up and operated through rules it has determined. The committee concluded that the commission,

"has shown that it can scrutinise nominations effectively and stand up to pressure from political parties. Nevertheless, its position should be reinforced by defining the Appointments Commission's role, powers and independence in statute as soon as possible, and certainly as part of any reform of the House of Lords which retains an appointed element of its membership".

The proposal for a statutory Appointments Commission is embodied in the House of Lords Bill introduced by the noble Lord, Lord Steel of Aikwood. It is relevant to note that the Commissioner for Appointments in Scotland is established on a statutory basis, and has been operating as such since 2004. It is therefore timely to address this issue. We do not know when the Public Administration Committee in the other place will report, so it is important that the Minister does not hide behind a potential report in order to avoid offering us the Government's thinking. Does the Minister accept that there is a case for protecting the independence of these bodies and that there is need for enhancing accountability and certainty? If he does, does he accept that doing so by statute is the most effective way of delivering those goals? If not, what is the Government's alternative?

We have seen floated the idea that theses bodies may be merged into a single super-ethics body. The noble Baroness, Lady Howe, who is in her place, referred to it on Tuesday. I would argue strongly against such a proposal. The five bodies fulfil distinct functions and require particular expertise and resources to carry out their tasks. The bodies may be created in one super-statute, but with each retaining its independence and integrity. The alternative would be to have each created by a distinct Act.

I am glad of the opportunity to raise this issue. That is the purpose of these general debates, and I look forward to the contributions from other noble Lords as well as the response of the Minister. I beg to move for Papers.