affiliated to the International Association of Constitutional Law
Last week, an editorial in the Guardian called for the Independent Adviser on Ministerial Interests to be scrapped. The paper argued that, as the Adviser is called into action so infrequently, his £20,000 salary is not a good use of resources. Since that article was published, Baroness Warsi has been referred to the Independent Adviser, so at least the current holder of the office, Sir Alex Allan, has some work to be getting on with. However, controversy still surrounds David Cameron’s decision not to refer Jeremy Hunt to the Independent Adviser too.
While there are differing views as to whether Hunt acted in breach of the Ministerial Code, the difficulty lies with the process for deciding whether to refer a matter to the Independent Adviser. It is the Prime Minister that determines whether an alleged breach of the Ministerial Code should be subject to an independent investigation. Whenever I teach ministerial responsibility, most students are pretty quick to spot the basic problem with this arrangement, namely that the PM will have a strong incentive not to refer matters that might have significant political repercussions. So, some commentators speculate that Cameron has been unwilling to refer Jeremy Hunt because an investigation into his with News Corp might reflect badly on Number 10 too. By contrast, an investigation into Baroness Warsi’s alleged failure to disclose a business interest is less likely to wreak damage to the government as a whole (and may have little long term impact on Warsi’s career).
Whether such incentives are at play is speculative. While we can’t know for sure the PM’s reasons, there is still a public perception that the power to refer to the Independent Adviser is used strategically. The PM’s has discretion not only in initiating a formal investigation, but also in deciding the sanction in the event of a breach of the Ministerial Code. That latter discretion is unavoidable, as questions relating to the composition of the Cabinet are ultimately for PM.
The position of Independent Adviser was set up in 2006, as part of a gradual process that has led to more formalized controls on ministerial ethics. The current system seeks to provide some sort of independent check on ministers, while preserving the PM’s ultimate responsibility for the government. It is a system that is a mixture of political discretion and formal investigation. The current concern is that the former element undermines the latter. There are, of course, improvements that could be made. In 2008, the Public Administration Select Committee (PASC) called for the Independent Adviser to be given powers to initiate an investigation of an alleged breach of the Ministerial Code, without a referral from the PM. In March this year, the PASC made the same call again for such a powers to be granted. That change would preserve some political discretion, but do so at the sanctions rather than the initiation stage.
The very issue that has led to calls for Jeremy Hunt’s investigation, the role of the government in relation to the regulation of media mergers, raises a parallel issue. When a media merger is to take place, the Secretary of State has the power to initiate an investigation into the effects of that merger on media plurality (the public interest test). In such circumstances, the minister refers the matter to Ofcom. After Ofcom has made its report, the minister can then refer the merger to the Competition Commission (News Corp’s BSkyB bid was at this stage last summer when the phone hacking scandal broke). If the Commission makes a finding that the merger will be detrimental to the public interest, the minister has the power to approve, block, or attach conditions to the merger. Like the PM’s power on the Ministerial Code, the Secretary of State has the power to initiate an investigation and to impose remedies after the conclusion of the investigation, but an independent body conducts the investigation. It too is a mixture of political discretion and formal investigation. It is also similar to the Ministerial Code process in that there is great suspicion that the minister uses the discretion for strategic reasons.
Again, one solution is to give the investigator, in this case Ofcom, the power to get the process started without a reference from the minister. The House of Lords Communications Committee proposed such a reform in 2008. The possibility of handing the process to independent regulators was also recently discussed at the Leveson Inquiry. At the Leveson hearings, Vince Cable voiced opposition to such a change, arguing that politicians have a legitimate role to play in the media mergers regime. He said:
‘[…]elected politicians, ministers, have a role in the process, and I think that’s absolutely right. I think it’s right because when we’re talking about matters of public interest, we’re making qualitative judgments. We’re not following a sort of quantitative metric, which is what one would normally do with, say, a competition case, and I think it’s right that those decisions be made by people who are — have legitimacy through the democratic process, who are accountable to Parliament […]’
He went on to say that the risks of bias are limited, given that the Secretary of State has to follow a prescribed process, take legal advice and can be subject to judicial review. Cable then noted that to take the decision to initiate the process away from a politician would be to seek ‘artificial comfort’ in a bureaucratic mechanism.
Generally speaking, I have some sympathy with Vince Cable’s point. A decision does not become any less political by giving it to a bureaucrat or quango, and judgments involving the public interest are normally for the democratically accountable parts of government. The question of media plurality is, however, different. It is tied up with issues of power – namely who can own the media (and how much of it can be owned by one person). The media often legitimizes its power by claiming an ability to act as a check on politicians. While some newspapers may favour and give preferential coverage to a particular politician, plurality means that other titles out there may take a more critical stance. That check can be undercut if the minister uses a discretionary power to win favour from a particular media outlet, and give that outlet an advantage over its competitors. In other words, as media plurality is a component of a system that holds the government to account, we should be cautious about giving the government control over the composition of that system in specific cases (as opposed to formulating general rules on plurality).
Giving Ofcom the power to initiate an investigation is just one option. The Coordinating Committee for Media Reform proposes (along with a range of other media reforms) that the public interest investigation should be triggered automatically when a proposed merger meets a threshold of the market share. That approach would take a step away from the current reliance on discretion, whether from a politician or a regulator. Initiating investigations either through Ofcom or a thresholds approach would be an important step, but more may be necessary. In the case of Jeremy Hunt, the public interest investigation was already under way when he became Culture Secretary, and the issue was whether to refer the matter to the Competition Commission. The question is then whether the political discretion should be limited at that intermediate stage too, for example by letting Ofcom decide whether the merger should go on to the Commission.
The questions surrounding Jeremy Hunt both in relation to the Ministerial Code and media plurality raise parallel issues about the role of politicians in the very processes that are supposed to hold them to account. The reforms discussed here would not remove politicians from the processes altogether, but would at least stop them deciding when the wheels can be set in motion. That, I believe, would be a step towards a stronger system of political accountability.
Jacob Rowbottom is a Fellow of University College, Oxford.