affiliated to the International Association of Constitutional Law
Much has, and surely will, be written about the strange case of the Defence Minister, Liam Fox, his friend, Adam Werritty, and a philanthropic bunch of rich people and foreign governments, all of whom were bound together in a complicated and rather unclear mixture of holidays, chance meetings, and informal chats. Following the Report by the Cabinet Secretary last week, it might be time to step back and reflect on some of the constitutional issues raised by the affair. One thing that has been revealed is a lack of clarity – at least in the minds of some – about the position of Special Advisers. The office of Special Adviser is now found in statute: Special Advisers are temporary Civil Servants, and are subject to a variety of regulatory structures. Werritty’s work for Fox resembled that of a Special Adviser, even though he had not been appointed to this role. Following the Fox affair, the place of what might be termed de facto Special Advisers should be reassessed, and ways should be found to bring them within the legal framework that applies to their de jure counterparts.
1. The Office of Special Adviser
The British Civil Service has, for many generations, provided expert advice on the implementation and development of government policy. One crucial feature of this advice – a demand now found in the Civil Service Code – is that it is apolitical. The Civil Service is constitutionally bound to assist any elected government, moving seamlessly from the Labour government to the new Coalition regime. The ideology behind government may change, but the Civil Servants who implement that ideology remain in post, striving – so far as they can – to serve the incoming government as well as they served the old. The apparently technocratic nature of the Civil Service raises at least two types of concern. First, as anyone who has ever watched Yes Minister knows, the reality can sometimes fall short of the ideal. Like any organisation, the Civil Service will have institutional ideas about what is and is not possible or desireable. The line between technical objections to the good sense of a policy and political objections to the ideology that lies behind it is hard to draw. Secondly, sometimes Ministers want explicit political advice about policy: about how it will be received by the public and the party. The limitations of the Civil Service – limitations that are the flip side of its strengths – create a need for Special Advisers. Special Advisers provide an independent source of advice to balance that of the Civil Service, and, also, can provide the sort of explicit political advice the Civil Service is constitutionally barred from offering. Consequently, it is unsurprising that the office of Special Adviser predates its formal recognition in law; it emerged as a response to, and alongside, the developing professionalism of the Civil Service.
Though Special Advisers bring many strengths to government, they also bring many dangers. Civil Servants operate within a defined regulatory environment, but – in the early stages of their existence – there were no controls over the office of Special Adviser. There was no mechanism for checking the character of Special Advisers on appointment, and no formal process for making their identity public. There were no limits on the gifts and hospitality that they could receive from outside sources. Perhaps the most concerning part of this was that we, the electorate, did not necessarily know the identity and financial connections of those who were advising Ministers on a regular basis. There are, then, considerable hazards in allowing Special Advisers to operate outside of a legal framework, and these dangers led to the formalisation of their position: measures were passed regulating their appointment and operation.
The current statutory framework for special advisers is grounded in the Constitutional Reform and Governance Act 2010. This statute provides a number of important constraints on the operation of Special Advisers.
First, under s.15, Special Advisers are selected by their future Minister, but their appointment requires the approval of the Prime Minister. This allows for some degree of scrutiny of the candidate.
Secondly, under the same section, Special Advisers are classed as civil servants for the duration of their office. This entails that – with the exception of the requirement that appointments are made on merit, and political impartiality be observed – the Civil Service Code applies to Special Advisers.
Thirdly, under s.16, an annual report must be placed before Parliament that provides information about the number and cost of Special Advisers.
Fourthly, under s.8, the Minister for the Civil Service must produce a Code of Conduct for Special Advisers, a Code that will form part of their contract of employment.
As a result of this framework, the conduct of Special Advisers is directly regulated by two codes: the Code of Conduct for Special Advisers and – with the exceptions set out above – the Civil Service Code. For our purposes, paragraph 5 of the Code of Conduct for Special Advisers is of particular interest. It states that:
‘They should not misuse their official position or information acquired in the course of their official duties to further their private interests or the private interests of others. They should not receive benefits of any kind which others might reasonably see as compromising their personal judgement or integrity. They are required to declare details of gifts and hospitality received in accordance with the rules set out in their departmental staff handbooks. Departments will publish on a quarterly basis, information about gifts and hospitality received by their departmental special advisers.’
Those who want to learn more about the office of Special Adviser should read a very helpful paper written by Oonagh Gay. It should be noted that since that paper was written, the relevant sections of the Constitutional Reform and Governance Act 2010 have come into force.
2. The Position of Adam Werritty
The impetus for this meditation on the office of Special Adviser is the Report of the Cabinet Secretary into the conduct of Liam Fox, the Defence Secretary, and his friend, Adam Werritty. Reading the Report, it seems that Werritty was engaged in the type of tasks that Special Advisers undertake. So, it transpires that Werritty organised a meeting for Fox with officials from a foreign government [para. 5], attended meetings with the Ambassador Designate to Israel [para. 6], and held an official meeting with the Parliamentary Under Secretary of State for International Security Strategy at Fox’s suggestion [para. 9]. The Report goes on to tell us that Fox met Werritty on 18 overseas visits, and during ‘some of these visits Mr Werritty attended informal meetings with Dr Fox at which foreign officials were present.’ [para. 12] and, on two occasions, ‘Dr Fox had pre-arranged meetings overseas at which a member of his private office should have been present because of the likelihood that government business would be discussed’. [para. 13]
One of the curious things about the Werritty case is that Fox appears to have facilitated and allowed Werritty to behave as if he were a Special Adviser without bringing him within the reach of the regulatory rules governing that office. Werritty was, it seems, a de facto but not de jure Special Adviser – which might explain why many people, perhaps even Werritty himself – were unclear about his exact role in Government.
Werritty received some benefits as a result of his links to Fox. It seems that at least some of his travel costs were paid for by people and institutions who were aware of, and valued, his connection to Fox. Fox himself introduced Werritty to a potential donor on at least one occasion. As the Cabinet Secretary put it, the ‘links between Dr Fox and Mr Werritty means that the donations given to Mr Werritty could at least be seen as giving rise to the perception of a conflict of interest.’ [para. 17]
As a consequence of Werritty’s position as a de facto, but not de jure, Special Adviser, Fox did not need the approval of the Prime Minister before continuing the professional relationship he had with Werritty. In particular, the Cabinet Office was not aware of Werritty’s role [para. 25], so did not have the chance to subject him to the scrutiny to which other Special Advisers may be subject. Furthermore, Werritty was not required to disclose the hospitality and benefits he received as a result of his connection with Fox [paras. 16-17] in the way that a de jure Special Adviser would have been obliged to do.
It might be thought that as Werritty was not paid, the normal mechanisms for appointing a Special Adviser did not apply to him. However, the Ministerial Code [para. 3.2] makes it clear that unpaid Special Advisers also fall within the regulatory system. This can make things complicated: the line between someone acting as an unpaid Special Adviser and someone who simply give some assistance to a Minister is a soft one, and may give rise to confusion. Ministers meet and talk to lots of people – all of whom are eager to offer advice – and it would be a mistake to expect Ministers to disclose details of all of these conversations. However, it is hard to see that there should have been much confusion over Werritty’s role, and his position ought to have been formalized through the regulatory structure provided for Special Advisers.
3. Lessons From the Affair
One of the tricky things about this incident is that the problem stemmed, in part, not from the lack or inadequacy of rules, but from the failure of a Minister to follow them. The Cabinet Secretary’s proposals in his Report are, in essence, that the existing rules should be better enforced by Civil Servants within the Minister’s department. The Cabinet Secretary does not consider the wider question of the role of unpaid, de facto, Special Advisers – and it is unfortunate the report did not make it clear to Ministers that such people ought to be included within the regulatory framework established for the office.
Finally, it may be time to reconsider the limits on the number of unpaid Special Advisers a Minister can utilize. It could be that Fox’s failure to formalize Werritty’s position was simply caused by the limits placed on the number of Special Advisers a Minister can appoint: the Ministerial Code confines him to two, and these posts were already filled. Had Werritty been formally appointed as a Special Adviser, he would have been placed within a clear regulatory framework. Some, at least, of the concerns raised by his conduct might have been allayed. Perhaps the limit on the number of Special Advisers a Minister can appoint should be reconsidered. Even if two remains as a maximum for paid advisers, Ministers should be allowed to appoint a larger number of unpaid advisers. Whilst some may find the proliferation of Special Advisers unattractive, this concern should be weighed against the benefits of ensuring that people acting as de facto Special Advisers are publically indentified as such, and subject to the relevant codes of conduct.
Nick Barber is a Fellow of Trinity College, Oxford.