Oral evidence: The Independent Adviser on Ministerial Interests, HC 40
Oral evidence, 14 June 2022.
Witness
Rt Hon Lord Geidt
Chair
Good morning and welcome to the Public Administration and Constitutional Affairs Committee. Today the Committee is looking at the role and remit of the Independent Adviser on Ministers’ Interests. The independent adviser is appointed by the Prime Minister to advise him or her on matters relating to the ministerial code and is the guardian of the record of ministerial interests. The post holder is independent of Government and is expected to provide impartial advice to the Prime Minister. We are joined by the independent adviser, Lord Geidt, and are looking forward to following up on points we raised with him a year ago at his post-appointment hearing, as well as discussing his latest annual report and the recent changes to the ministerial code. Lord Geidt, good morning. Could you introduce yourself for the record?
Lord Geidt
Good morning. I am Christopher Geidt. I am the serving Independent Adviser on Ministers’ Interests. Thank you very much for the invitation.
Chair
It is very good of you to accept. You have a dual role, of course, covering both Ministers’ interests and investigations of possible breaches of the ministerial code, with the latter attracting the most comment. Does that perhaps mean that your role in relation to Ministers’ interests has proved unproblematic?
Lord Geidt
Thank you, no. It is a principal role for the independent adviser to consider the totality of ministerial interests. It has perhaps been less eyecatching in recent times but the work that has gone on in considering Ministers’ interests has continued without interruption. Indeed, I would say that it provides a critical reservoir of information upon which I believe public confidence can rest in providing what has now been resumed as a twice-yearly publication of the list, which you will recall, Chair, fell into difficulty following the resignation of my predecessor, Sir Alex Allan. That was a period of some five months when the active consideration of the list of Ministers’ interests went untended. You have asked whether it is unproblematic. I would simply say that the work continues. It is important work and I think it is the sort of bedrock for the climate of assessing ministerial behaviour, in so far as it touches on actual and perceived conflicts of interest. I might just add that a recent inquiry that I was asked to undertake in the case of the Chancellor of the Exchequer I think was a helpful opportunity to shine light on aspects of the system. Any Minister is required, encouraged, to provide a full declaration of interests to the independent adviser. It is from that declaration that the independent adviser can then give advice to the relevant Minister on what should go forward to the published list of Ministers’ interests. There are two important parties to assist any Minister in this. The first is their own Permanent Secretary. They are the subject experts on the brief that a new Minister will be taking on. Another critical party is the Minister’s own office, which can help ensure that the Minister sets out as full an account of their interests as possible.
Chair
How is that determination reached: the difference between what is declared and what is published? You say the advice is given to Ministers to do so. Does it solely rest with the Minister, whether they think something is worthy of publication or just simply to be declared? Is that for your consideration, or who else could consider it?
Lord Geidt
That is a very good question. The independent adviser is there to help advise the relevant Minister to ensure that what appears on that list meets the test of ensuring that neither a real nor a perceived conflict might arise. There are many things that a Minister might declare that would not have relevance for that narrow purpose. One of the good lessons drawn from the inquiry into the Chancellor of the Exchequer’s affairs—and I should add that he and his office were fulsome in their support for the inquiry and were assiduous in answering all my questions—an important role there, is the encouragement of as full a declaration as possible. To your question, Chair, the independent adviser can offer advice to the Minister. However, I suppose it raises the fundamental principle that responsibility generally rests on the individual, drawing from the seven principles of public life. Although the Minister may enjoy the advice of officials and his or her own office, nevertheless the responsibility bears on him or her.
Chair
Soon after your appointment, you told us that you felt you “may be capable of engaging plausibly with the Prime Minister, building trust.” How successful do you think you have been at that?
Lord Geidt
There have been a number of reforms to the role of the independent adviser, both on my appointment last year and in the course of some high-profile events that have passed through the year, including involving the Prime Minister. As for the importance of building that trust, I think I reflected a year ago that engagement with the Prime Minister would be an important part of generating that trust. I hope that the Prime Minister can see that an independent adviser, giving advice objectively and impartially, helps to undergird that trust. Of course, it is important to ensure that the independent adviser is capable of offering advice that might be difficult.
Chair
What constitutes trust in this context?
Lord Geidt
It is something that needs to be built, and that is something to which I have been very committed in the course of my own tenure as independent adviser. Building that trust has included engagement with the Prime Minister personally. It has also mattered that I can communicate with his office too. That applies with other Ministers, but the principal point of contact, this being the Prime Minister’s code, of course has been with the Prime Minister in the course of my time.
Chair
There was a communication with his office. In his reply to you, he talked about your offices miscommunicating with each other. What do you make of that?
Lord Geidt
In the preface to my annual report—which the Committee may have seen—I am clear about the counsel that I wanted to ensure would be available to the Prime Minister through officials and his officers. I would rather stand by the account that I have given and published for the benefit of the scrutiny of the public.
Chair
You offered that advice, that counsel; the offer of counsel was made available to senior officials?
Lord Geidt
That is what I have stated and I did so in good faith.
Chair
Was it accepted or taken forward?
Lord Geidt
The fact is that the Prime Minister offered a response to my annual report, which surfaced references to his own obligations under the ministerial code. To that extent, the independent adviser had the satisfaction of the Prime Minister going on record about his own conduct according to the code.
Chair
Did it require him to go on record, though? Were you offering that friendly advice at an earlier stage that did not require an on-the-record reply to you, but just required a conversation perhaps?
Lord Geidt
Do you mean between myself and the Prime Minister directly?
Chair
Yes.
Lord Geidt
Thank you. I think there is real danger, if the independent adviser is offering advice to any Prime Minister directly, when perhaps on some future occasion he—the independent adviser—might be required to investigate a Minister, the Prime Minister, when he is, as it were, a participant in the advice that has been given. Triangulating these sorts of messages through senior officials and staff, I think is a tried, tested and very important channel to ensure that the Prime Minister is properly briefed.
Chair
In that effort at triangulation, it would have been implicit, surely, that those senior officials might have nudged the Prime Minister maybe to pick up the phone to you and do it that way round.
Lord Geidt
That would have been one method, I expect. As I say in the preface to my annual report, I placed reliance on the assurances that I had been given that the messages had been properly conveyed.
Chair
In terms of that engagement and maintaining the Prime Minister’s trust in the successful conduct of the role, is it possible to perform that role without it?
Lord Geidt
Without trust?
Chair
Yes.
Lord Geidt
Put the other way, I think that the attempt that, as independent adviser, I was making to build trust has already shown signs of some success. Confidential exchanges with the Prime Minister directly, in so far as they touched on other Ministers—you will have perhaps noted that the Prime Minister made reference to one example in his evidence before the Liaison Committee, in speaking about the process that led to the Business Secretary offering an apology for some comments that had been made on broadcast media. In his evidence, the Prime Minister alluded to the fact that that drew from an exchange that he had had with the independent adviser. I am sorry to be answering the question from a different direction, but I do think there is a strong case for asserting that building trust is an important aspect.
Chair
If one aspect of the role of the independent adviser is simply to decide whether or not the ministerial code has been breached, why is trust necessary?
Lord Geidt
May I note that I am not the arbiter of the code. I don’t pretend to be a philosopher on the code either—and I may find myself returning to this point during this session—but I do conceive my own role as a practitioner, being responsible for the operation of the code that is put my way and ensuring that it can be implemented fairly and objectively.
Chair
Hypothetically speaking, if there was a great deal of trust, or no trust whatsoever between the Prime Minister and the independent adviser, that would have no bearing at all on whether you could judge whether the ministerial code had been breached or not.
Lord Geidt
But beyond that point, I think the availability of trust improves the prospect for communication. As in the example I have cited and indeed in a number of others, I think it helps facilitate the smoother running of these processes.
Chair
Thank you.
Karin Smyth
We are interested in how much direct interaction you have with the Prime Minister.
Lord Geidt
If you do not mind, I would not get into specifics on that. However, I would raise the point that I have definitely had sufficient contact with the Prime Minister and—as noted earlier—with the staff around him, to allow me to have full engagement with my responsibilities under the code. That has been formally encouraged. There was an exchange of letters in December that the Committee may have seen, following the revelation of previously undisclosed information in the original inquiry I conducted into the decoration of No. 11 Downing Street. That correspondence included active encouragement for exchanges between myself and the Prime Minister, so that the proposals he was making for changes to the office of independent adviser could be brought to a successful conclusion.
Karin Smyth
You will be aware that we are interested in the question because your predecessors have suggested that they did not have high levels of interaction. December was six months ago. Give us a broad idea of what “sufficient” means. Is it weekly, monthly?
Lord Geidt
If I may, I would add “regular” to that. In other words, in contrast to the style of my predecessor, as noted, as I see it this has become an important part of the way that the role can be performed.
Karin Smyth
The door is open?
Lord Geidt
The door is open.
Karin Smyth
When you go knocking, the door is open. You feel that you have sufficient, regular contact.
Lord Geidt
I can certainly say that I have never been denied access through the door if I have requested it.
Karin Smyth
Thank you. Under the changes to your role that were announced last month, can you independently initiate your own inquiries, or do you require the permission of the Prime Minister?
Lord Geidt
Yes, I do believe that I can now initiate inquiries. There is still a point of consultation built in. I am happy to speak to that by way of an example. As you may see, the terms of reference set out the precise mechanism for that consultation with the Prime Minister. Perhaps I could also say—and it was shown in my annual report—that there has not been an occasion in the past year when any advice of mine on the initiation of an inquiry has been rejected by the Prime Minister. I would assert that my powers for independently initiating are rather greater now than they were.
Karin Smyth
What is your understanding of the Prime Minister’s role in authorising investigations?
Lord Geidt
The Prime Minister’s role is effectively not to stand as a gatekeeper—a standing gatekeeper, as it were—on my decisions to initiate. Where there may be examples of national security, say, or legal privilege that arise—and by the way, if one were to look at my predecessors, I don’t think that you would imagine that they were unpractised in understanding where those responsible lines of inquiry lie—at that stage I would be effectively consulting the Prime Minister to ensure that we were good to go. I have had no examples at all in my time of any such consent being withdrawn and the clear expectation—and, I think, written into the document—is that normally that consent would be given as a matter of course. I would expect that to continue.
Karin Smyth
You pre-empt my next question about when the Prime Minister might intervene on public interest grounds. Are those your examples? Do you have any other examples?
Lord Geidt
I could offer an example on a leak inquiry, for example. If a leak inquiry were to touch on ministerial involvement, say, while the Government were in the business of effecting an inquiry, that might cause a pause in my right to initiate. I would set this in the context that I have gained—I have been given—a greater role of transparency as well, such that, if the grounds for the Prime Minister failing to give consent are not themselves likely to create difficulty in those named areas, I would have the right to publish the fact that consent had been withheld and, to the extent possible, to explain why, so that the public would have the opportunity to see that consent had been withheld. This is charting new territory, because we have not yet had worked examples of precisely that situation.
Karin Smyth
However, we do have a recent leak with regard to the legal advice on the Northern Ireland protocol, where the advice given by the Attorney General to the Prime Minister has been leaked. Does that not constitute a relevant example?
Lord Geidt
It may well do. You will recall that my new powers are squeaky new and I have not either been asked to or, indeed, pressed my own interest in giving advice in that example.
Karin Smyth
The Prime Minister has not asked you to investigate why that legal advice was leaked?
Lord Geidt
No.
Karin Smyth
Have you asked the Attorney General how that advice was leaked?
Lord Geidt
Have I asked?
Karin Smyth
Yes.
Lord Geidt
No, I have not.
Karin Smyth
But your new powers do allow you to ask.
Lord Geidt
I think that my new powers would allow me, unrestricted, to ask questions of the entirety of Government and others.
Karin Smyth
You raised the issue of the leak. The leak is clearly very serious—that legal advice on such an important matter has been leaked. Do you think it breaches the ministerial code? I would suggest it breaches the ministerial code, point 2.13. Would you agree?
Lord Geidt
I have not formed any advice and I have not brought an inquiry to bear on the situation.
Karin Smyth
Does it breach the ministerial code? This is a highly unusual situation. Does it breach the ministerial code that that advice has been leaked?
Lord Geidt
Again, I would want to ensure that I could consider that fully before reaching a determination. By the way, as you know, the determination is then only advice to the Prime Minister.
Karin Smyth
Have you looked at reaching a determination before?
Lord Geidt
In this case, no.
Karin Smyth
You have been asked to do that, haven’t you? For example, I know the shadow Attorney General wrote to you some weeks ago to ask you to consider that.
Lord Geidt
Yes.
Karin Smyth
Why haven’t you started to consider that?
Lord Geidt
Because this presently rests with the Government, as I think the shadow Attorney General may have seen in the response that came from my office.
Karin Smyth
When did your response go?
Lord Geidt
I regret I cannot give you precise details.
Karin Smyth
We can check that. I am still not clear whether you think there has been a breach of the ministerial code.
Lord Geidt
I would want to bring more thought to bear before I reach that view.
Karin Smyth
If you have already responded to the shadow Attorney General, some thought must have been given to that.
Lord Geidt
If I may say so, the advice was procedural and not yet to engage the independent adviser.
Karin Smyth
You said earlier that you are the practitioner, but the responsibility rests with the Minister. Therefore, in this case, either the Prime Minister is responsible for leaking that advice or the Attorney General is responsible for leaking that advice. Would you agree?
Lord Geidt
I cannot comment, because I really don’t know more of the facts than have been put to me.
Karin Smyth
I don’t believe we have had an issue of this seriousness, of leaking advice, for decades—I think I am right but I could check—perhaps not since the Westland affair. I sometimes feel I am living in the 1980s, which is probably as far back as something as critical as this goes, with regard to a breach of the ministerial code for which you are here before us as the independent adviser. I find it quite shocking that more thought has not gone into that, or more correspondence or at least a confidential understanding with either the Attorney General, who has leaked this or is responsible for leaking it, or the Prime Minister, who has leaked it or is responsible for leaking it. Does that not lay bare the essential problem with your role, if you really have not given that much thought to it?
Lord Geidt
I am certain that I will give the necessary thought to it. At the moment, and with regret, I have pointed to the fact that procedurally this has been directed to the Government to consider.
Karin Smyth
To the Prime Minister? What do mean when you say “the Government”? To the Prime Minister?
Lord Geidt
If you will forgive me, I do not have the response that you kindly refer to to hand.
Karin Smyth
Perhaps we can get that by the end of this session and come back to it later, Chair.
Lord Geidt
By all means, yes.
Karin Smyth
Thank you.
Tom Randall
You discussed earlier that there have been recent changes to your remit and you have described those changes as “at a low level of ambition”. Would you be able to expand on what you meant by that?
Lord Geidt
Certainly. In my exchange of letters with the Prime Minister in December, reference was made to a number of possible proposals that might yet come forward, which I think included reference to—if not instruments—clearer legal frameworks. The Committee on Standards in Public Life has also made recommendations in the past that include a level of ambition including, I think, in statutory terms, rather distant from the end of the scale that I think we are dealing with here. I should say that I do believe that it is more than possible that present arrangements are workable and capable of being satisfactory. These are evolutionary changes, and I think that it is important—as I think I said in my original advice to this Committee—that I can work with the system in being and, if we alight on deficiencies, perhaps we can tackle that separately. I am not responsible for pressing for powers. I have assumed my role to be one of interpretation and operation of the rules that I have been given. However, the low level of ambition that you refer to I think is a reference to the scale of possibilities that others have suggested.
Tom Randall
Did you ask for further powers?
Lord Geidt
No. It really is not my role; I do not see it as my role to be pressing for powers. I await the proposals that come from Government. I should say that my annual report states that I accepted these changes. In my preface, I made that remark on a low level of ambition, but I believe they are workable and can be put to the service of the code operating well.
Ronnie Cowan
In the introduction to your annual report, you stated that you had tried to “avoid” offering advice to the Prime Minister about his obligations under the ministerial code. Can you explain what you mean by that and how you see your role in relation to a Prime Minister’s adherence to the code?
Lord Geidt
Certainly. I used in my preface a formulation—I am sure the Committee does not want me to read it back into the record—which was essentially to point to the difficulty that would arise if the independent adviser in this case was offering the Prime Minister advice about the Prime Minister’s obligations under his own ministerial code. If the Prime Minister were to decline that advice and did not believe that there was a case to answer, we would find ourselves in a position where the confidence between the Prime Minister and the independent adviser self-evidently would have been lost.
Ronnie Cowan
How about a private conversation between yourself and the Prime Minister? Is your job as independent adviser not to advise the Prime Minister independently?
Lord Geidt
I hope that I am providing that advice.
Ronnie Cowan
You seem to be saying that you could not offer him that advice in case he was not prepared to accept it.
Lord Geidt
My preference—and this is in the climate where the ministerial code has had to reflect and keep in scope the behaviour of, the conduct of, a Prime Minister. Just as a matter of fact, for my year as independent adviser, the Prime Minister has been in potential scope of the code itself.
Ronnie Cowan
What does that mean? What do you mean by that?
Lord Geidt
First we had the inquiry that I was asked to conduct on the refurbishment of the accommodation at No. 11 Downing Street. Then, with the publication by the Electoral Commission that there was missing information from the evidence I was asked to rely upon earlier that year. Then subsequently, these past months, when reports had been commissioned into circumstances of events at Downing Street—
Ronnie Cowan
Partygate.
Lord Geidt
You could say that, as you look through the calendar, a great deal of the year has potentially had the Prime Minister in scope. I will go to the heart of your question, which is about offering advice. The counsel that I gave him, to which I referred in my preface—the encouragement of the Prime Minister to speak up for his own conduct under his own ministerial code—was for me very important, precisely so that we could have the Prime Minister on record speaking to his conduct, and not merely the independent adviser offering advice to a Prime Minister. My belief, as articulated here, is that it was reasonable that a Prime Minister should speak up on matters of his own conduct. I mentioned earlier, Mr Cowan, an associated difficulty of offering advice to a Prime Minister that, say, if not accepted in full, might itself become the subject of an inquiry by the independent adviser. There you would have an independent adviser inquiring about something that they had already contributed to.
Ronnie Cowan
With that in mind, do you feel that you could initiate an investigation into the Prime Minister?
Lord Geidt
Yes, I do. As I say, there is the standing risk that we end up, frankly, in a position of a sort of circularity. My preference, Mr Cowan, as articulated in my annual report—and this applies to all Ministers, by the way—is that they could go to the necessary lengths to speak to their own conduct, which, in the Prime Minister’s case, is under his own code.
Ronnie Cowan
You say in your annual report that there is a “legitimate question” whether the Prime Minister may have breached the code having been issued with a fixed penalty notice. Would you have initiated an investigation if you had felt you were able to?
Lord Geidt
It is hypothetical because at that time I did not have the power to initiate. If you were to ask me the question now, my powers of initiation are now different.
Ronnie Cowan
They are different but you still need consent from the Prime Minister.
Lord Geidt
Only on the grounds—as I mentioned earlier to Ms Smyth—that there may be matters of extreme privilege, national security or—
Ronnie Cowan
A fixed penalty notice for a party, I suggest, is not a matter of national security.
Lord Geidt
No, indeed.
Ronnie Cowan
If you were able to today, would you initiate an investigation?
Lord Geidt
I would certainly have the power to do so, but I use the language of a “legitimate question” not speaking as a lawyer, which I am not, but because if I am to take the view of, say, the ordinary man or woman on the language on the face of the code, I think it is reasonable—and many people had written to me making this point—to say that perhaps a fixed penalty notice and the Prime Minister paying for it may have constituted not meeting the overarching duty under the ministerial code of complying with the law.
Ronnie Cowan
That is a long way round the question. The question was very straightforward: would you initiate an investigation?
Lord Geidt
I have, at the moment—
Ronnie Cowan
The ordinary man or woman in the street would look at this thinking, “That is so out of context. There is nothing we see happening in Westminster that relates to me, the ordinary man or woman in the street.” Having heard what you just said there, do you not think they deserve to have an investigation into the behaviour of the Prime Minister?
Lord Geidt
They have now had a statement from the Prime Minister in response to my annual report about—as he sees it and as he has asserted—his obligations under the ministerial code relating to the fixed penalty notice. As you know, that is in the letter that he wrote on 31 May.
Ronnie Cowan
We then heard that he would do it all again. With no regrets, he would do it all again.
Chair
Lord Geidt, it is a little bit odd that you have a revision of the code, with enhanced powers given to you that, if they had been in place when topical matters came to light, such as a fixed penalty notice, would have resulted in your being able to initiate an investigation. Is it odd? Is it a matter of timing? What do you put it down to?
Lord Geidt
Sorry, why I have suddenly come into this new power after—
Chair
Yes—why after the event, and your inability to do anything under the previous iteration of the code? It is a bit odd.
Lord Geidt
Well, I am glad that I now have the new power. To your question and Mr Cowan’s, I am not going to be restrained from using it where necessary. My powers were less clear in the previous period.
John McDonnell
Even under the old powers, you still had the opportunity to raise the matter with the Prime Minister and to request the initiation of an inquiry. Did you?
Lord Geidt
That is precisely what my standing advice had been since, first, the Cabinet Secretary’s and then Sue Gray’s report was initiated, and then subsequently the Metropolitan Police’s. The standing position there was to make sure that there was a publicly articulated position by the Prime Minister—that he should use the opportunities that were available to him to put that into the public square.
John McDonnell
Asking the Prime Minister to make a form of statement is somewhat different from you asking the Prime Minister to undertake a formal investigation. Did you ask him to enable you to perform your role to initiate an investigation?
Lord Geidt
No, I did not. I am able to offer advice on the basis of other inquiries. If you separate those into two discrete activities, I can initiate an investigation, but I can also give advice on the basis of inquiries that are already under way. For example, the Cabinet Secretary’s inquiry, subsequently the Sue Gray report, was a body of information that I could then draw from in offering advice to the Prime Minister.
John McDonnell
To avoid your involvement, any Prime Minister can instigate another inquiry at their whim, on that basis.
Lord Geidt
The authority that I have relates to the investigations now, particularly now that I can initiate myself.
Ronnie Cowan
You touched on Sue Gray’s report there. What is your opinion of the appropriateness of the Cabinet Secretary and then Sue Gray conducting an inquiry into the breaches of Covid regulations at Downing Street, when it would appear to sit squarely within your remit?
Lord Geidt
The inquiries did not begin with them being squarely in my remit because they were initiated without any appreciating of ministerial involvement. The inquiries were initiated because the conduct of special advisers and officials was in scope, and that was the nature of the inquiry that was commissioned. As I just said to Mr McDonnell, I am not held back from offering advice on the basis of other people’s inquiry. Clearly, the Sue Gray report was in the business of getting to the bottom of everything, which in course included reference to Ministers. It was for that reason that the standing counsel I had given to advisers began the moment it became apparent that ministerial involvement was at issue. Therefore, although the Metropolitan Police inquiry did not provide a body of evidence that I could consider, the Sue Gray report clearly was getting into all areas that, as I say, as time went on included reference to Ministers.
Ronnie Cowan
In light of that evidence, do you think that draws a line under it, or would you go back and revisit that?
Lord Geidt
All I could do was to cause the Prime Minister to speak to his own conduct. You will see that, in the letter he wrote to me on 31 May, he has spoken for himself and for the Chancellor of Exchequer, and that is now passed into the record.
John Stevenson
Lord Geidt, you have said you are not pressing for additional powers, but the Committee on Standards in Public Life has recommended that your role effectively become a statutory role. What are the strengths or weaknesses of doing that and what is your own personal view on that?
Lord Geidt
I am aware that the Committee made precisely those recommendations and, indeed, the reference you have just made to statutory instruments echoes the point on the scale of possibility—the scale of ambition, if you like—for change to the ministerial code. That said, that is truly a policy matter for the Government to bring this stuff forward. I repeat that my role as the practitioner is to understand and make whatever comes my way operate.
John Stevenson
I understand that. Now that you have been in the role, do you think it should be statutory?
Lord Geidt
I am happy to work on the basis of the sort of incrementalism that I have now been offered in this new—
John Stevenson
Taking you out of the picture, as a policy do you think it should have a statutory basis or not?
Lord Geidt
I do not want to argue for or against it, because that would risk an independent adviser perhaps offering a prejudicial comment into the policy arena that, if I may say so, is for them and not for me. I have seen the Committee on Standards in Public Life’s work and I am aware of the scope of its ambition by way of a recommendation to the Prime Minister. It would of course be—
John Stevenson
If it were statutory, do you not think it would strengthen your role?
Lord Geidt
Forgive me, but I will not offer a view because I have not worked that through. I think my role is to work with the proposition in being at the moment and that is the enhanced power that I now have. However, as I said, I did make mention to the range of ambition, and the Committee on Standards in Public Life believes that that is a reasonable possibility to consider. It requires the Government to work it through and to offer a proposal. The proposal I had at the moment was of the kind that Mr Randall referred to.
Beth Winter
Can I pick up on that point about a statutory role? You have talked a lot about the importance of the independence of your position. Surely, making the role statutory would give you much more teeth and ensure and secure the impartiality and independence of the role. It can only strengthen the role, as my colleague has just said.
Lord Geidt
Again, I am awkward about offering a personal view. However, I know that there is a standing question of where the constitutional lines might properly lie and whether—as I believe it currently does, and there is no reason to suggest otherwise—the authority for the independent adviser flows from the Prime Minister in assisting the Prime Minister in the business of managing his own Ministers. They are his Ministers. He must have confidence in them. The point there is that I am an asset of the Prime Minister, as a Minister of the Crown, rather than a free-orbiting adviser with a different source of authority.
Beth Winter
That is not independence, effectively. For instance, on the appointments process, it is the Prime Minister who decides on appointments. I find slightly disingenuous the emphasis we are putting on independence, because at the moment that is certainly not the case, in my opinion. Would you agree?
Lord Geidt
I think we can agree to the extent that the new terms of reference show that there is some small limitation on the capacity of the independent adviser to be truly independent. All I can observe is that—
Chair
How small is small? That is quite a statement, in a sense.
Lord Geidt
Sorry, Chair, directly related to the new power of initiation. Sorry—that was my point of reference.
Beth Winter
I don’t think it is limited. Reading the code, as changed in May, it says that “where there are public interest reasons for doing so, the Prime Minister may raise concerns…such that the Independent Adviser does not proceed.” So he actually has the power to stop.
Lord Geidt
The independent exercise—indeed. Well, I don’t think it helps the discussion, but I inherited the role on the basis of the nomenclature that came with it. I accept that there are arguments about independence being a concept that is either entirely pure and untouched by other considerations or, as I think you have described it, something imperfectly short of full independence.
Beth Winter
We can play on words as much as you like. Moving on, up until recently you have not had staff supporting you, but you do have a small pool now. Has that benefited you and would you like a greater increase in the role of support?
Lord Geidt
It has been very helpful. This flowed from the correspondence that I had with the Prime Minister back in December, when he undertook to provide more resource for the secretariat for the office of independent adviser. I must say that I am very glad to have it, because the amount of traffic that comes to the office of the independent adviser has grown very greatly in my time.
Chair
Why do you think that is?
Lord Geidt
I think it is because matters relating to the code have become matters of greater profile in the public square.
Chair
What do you think accounts for that increased profile?
Lord Geidt
The increased scrutiny, I think, on the considerations of the Government and Ministers.
Beth Winter
What about the revelations themselves about the way in which politicians have been behaving and, also, the public nature of the disclosures and comments that you have made? Do you agree that that has also had an impact?
Lord Geidt
In the course of the year, the comments that I have made publicly have been not regular.
Beth Winter
They have been significant, though.
Lord Geidt
As a matter of transparency, it was important that my views should be publicly recorded. I think that is very important. I will just make the observation that the concomitant problem is, of course, for the independent adviser himself who is therefore quite properly under the spotlight. However, it remains very important for any independent adviser—including whoever eventually will succeed me—to ensure that they can retain the capacity to be independent, in spite of the coverage and reporting that may arise. I will just say, to the Chair’s question, that it has been an especially busy year and I think we can—
Beth Winter
That is one way of putting it. It is appalling, isn’t it, some of the revelations—they are very serious? We jest, but when we see what—
Lord Geidt
The question you raised was over the support that I am now getting. To manage this increase in correspondence, in particular, I have been very grateful to have the additional resources in the office.
Beth Winter
I will move on the ministerial code, being conscious of time. The independent adviser is not responsible for the content of the code. Should you be?
Lord Geidt
No. I think it is important that it remains the Prime Minister’s responsibility. Again, I would continue to play the role of practitioner, ensuring that the code was objectively and impartially implemented.
Beth Winter
Can I ask why? Can you expand on why you feel that you should not be responsible—give me a bit more detail?
Lord Geidt
I do think that there is a very strong constitutional case for ensuring that the ministerial code is the Prime Minister’s. He should have responsibility for the conduct of his Ministers—Ministers of the Crown. After all, he is the Crown’s chief Minister. The important thing is that the code is public, which it is now, and that the Prime Minister and all Ministers should be ready to speak to their own obligations and behaviour under that code.
Beth Winter
Were you consulted on the new code and, if so, what influence did you have?
Lord Geidt
I was consulted on the code but only to the extent of testing its capacity to be made operational, to make sure that it worked and to accept the revisions to the code.
Beth Winter
Were you consulted about the content of the Prime Minister’s preamble to the code?
Lord Geidt
I was not consulted about the preamble to the code and it is not an operative part of the code itself. As for what the foreword might say or not, the fact is that the seven principles of public life remain very prominent in the ministerial code, on page 1. Indeed, the seven principles are articulated in full as the first annex. My small part in that was to make sure that the code itself, and not the foreword, was workable.
Mr David Jones
To revert to the foreword to the code, as you will know, the previous version contained a strong statement of the standards of conduct expected of Ministers and that is absent from this version. Is that a matter of concern to you?
Lord Geidt
My concern has to be for the code itself. The foreword is a political commentary—a set of remarks by the Prime Minister, setting the scene for the ministerial code—and I think, Mr Jones, that that has to remain the Prime Minister’s business. I remain always concerned to ensure that the code itself—the bit beyond the foreword—continues to make very stout reference to the seven principles, which it does, right at the start, to infuse the code itself. I would rather leave to the Prime Minister questions on the nature of the foreword. It does not interfere; it has no operative impact on the code itself.
Mr David Jones
I appreciate that but, as you know, there has been considerable criticism of the apparent dilution of the wording of the foreword. Do you feel that the Prime Minister might have been better advised to retain a form of words similar to the ones that appeared in previous versions?
Lord Geidt
Happily that is not an area that the independent adviser would ever have to offer advice upon. As I call it, it is entirely a political statement from the Prime Minister whose code it is.
Mr David Jones
The code has introduced graded sanctions.
Lord Geidt
Yes.
Mr David Jones
Do you think that that is a good thing?
Lord Geidt
Yes, I do. There has been criticism that that part has been in some way watered down. I don’t easily accept that characterisation, and indeed nor do others. For example, the Institute for Government has noted that that sort of interpretation is not quite correct. You may recall that not just the Committee on Standards in Public Life but others have called for a sort of fair and proportionate approach in this area, and I believe that the changes in the code are just articulating that approach.
Mr David Jones
Lord Evans did express concern that introducing graded sanctions, without also introducing other measures to bolster the independence of the independent adviser, would not restore public confidence. Do you agree with him?
Lord Geidt
I saw it noted that it was best to see all this in terms of a sort of package, I think. I would simply say—and certainly this is a view that was given to his Committee in its original hearings—that the case for fair and graduated sanctions is a very strong one. I do think it is important to emphasise that none of these changes mean that serious breaches of the code should not remain serious, with the potential consequences of resignation or dismissal. It has not stripped out the serious sanctions, if you like; it has simply pointed to a potential scheme short of those serious sanctions.
Mr David Jones
It has not stripped out the sanctions but neither has it bolstered the position of the independent adviser. That was a matter of regret to Lord Evans. Do you think he is right?
Lord Geidt
As I say, taken together, the scheme of independent initiation and the graduated sanctions are, I believe, workable. Lord Evans raised a lot of proposals in his report relating to the independent adviser. Government have made some ad hoc responses to that, but there may be more to come in dealing with some of the others. Meantime, working with what I have, I do believe that being able to speak to a scheme of graduated sanctions is workable. Indeed, you may recall that that was the case with Matt Hancock in May last year when, although he had made a proper declaration and received advice on it, it turned out that a family member had come into a potential business relationship, which itself would risk being perceived as a conflict of interest. It was important then that we could point to and make public the fact that there had been a technical breach of the code. At that stage, it did not result in a severe sanction, but the Prime Minister reached a determination that acknowledging this technical and minor breach was sufficient, but it was also an important point to make.
Mr David Jones
Have you made your own formal observations on the recommendations of the Committee on Standards in Public Life?
Lord Geidt
No, I have not. Again, I have been waiting for Government, as a matter of policy, to bring a response forward.
Mr David Jones
Do you not think that you ought to be making those observations?
Lord Geidt
If my role is to be in the business of implementing them, of course that would represent the scope of my involvement. I do think it is material that the Government offers their own comments on that report—after all, the report was addressed to the Prime Minister for his comment.
Mr David Jones
You appear to be quite content for the Committee and for the Government to consider your role without expressing your own view as to what your role should be.
Lord Geidt
At the moment, this independent adviser wishes to settle on not being at the leading edge of telling the Government what to accept or not from the Committee on Standards in Public Life’s recommendations but to do his best to operate and implement the code as I have it.
Mr David Jones
Are you not uniquely well placed to express such a view?
Lord Geidt
It is difficult while I am in post, Mr Jones, to offer that view when the scope of my activity is clearly delineated in this way of being the individual required to operate and implement the code.
Mr David Jones
We have heard that greater sanctions are likely to be introduced. Have you had discussions with the Prime Minister about which types of breach of the code should attract which types of sanction?
Lord Geidt
No, I have not. This would have to be case by case on the basis of whatever the allegation might be. Of course, it would be for the Prime Minister to determine what on that potential scale, or something different, he would determine would be the right sanction for breach, if there had been one.
Mr David Jones
In those circumstances, would you be offering advice to the Prime Minister as to what sort of sanction he should consider?
Lord Geidt
Yes, I think I would be. Given that it would be on a scale, it would be for the Prime Minister to determine—unless the whole scale itself was jettisoned—without the risk of a loss of confidence between the Prime Minister and his independent adviser.
Karin Smyth
On that point, as I referred to earlier, where on the scale would be the leaking of legal advice from the Attorney General on the matter of the Northern Ireland protocol?
Lord Geidt
It is hard to imagine that—as you have described it and others might accept—it would not be an area of significant concern.
John McDonnell
Nought to 10?
Karin Smyth
Ten being, “I resign” or “You are sacked”.
Lord Geidt
May I just say more serious than not, please?
John McDonnell
Would you publish that advice?
Lord Geidt
Would I publish it? Yes, I would, absent what is left of the capacity for the Prime Minister to withhold consent. Even then, on the matter as I understand it, that is not touched by national security, legal privilege or any of the other things. Then, most certainly, I think the independent adviser should be in the business of publishing and making it available for public scrutiny.
Karin Smyth
Just to confirm that you have regular and sufficient access to the Prime Minister, but you have not either looked into or been asked to look into the leaking of legal advice and you have not had an opportunity to talk about the gradations in your regular and sufficient access?
Lord Geidt
No. On the first point, I have not been asked by the Prime Minister about the leaking of legal advice.
Karin Smyth
We have established that, yes.
Lord Geidt
On the second point, I would only enter into a discussion on graduated sanctions once we had a live case of breach.
Karin Smyth
However, you have not initiated a live case, even though you had the power to do so? We established that earlier.
Lord Geidt
No, I have not, no.
Karin Smyth
Just to confirm, the shadow Attorney General has not received a letter from you, so perhaps you can chivvy along the office so we can be clear on it.
Lord Geidt
I certainly can, and thank you very much—
Karin Smyth
That has not been initiated. Thank you.
Chair
Mr McDonnell, did you want to come back in or are you holding fire for the moment? Hold fire for the moment. Tom Randall.
Tom Randall
Lord Geidt, the ministerial code combines procedural guidance and standards related guidance. There is a school of thought, as the Committee on Standards in Public Life suggested, for splitting those parts up and then putting the procedural guidance into a separate document such as the Cabinet manual. Do you have a view on that? Is that something you would be in favour of?
Lord Geidt
No. I am afraid it is slightly an echo of the remark I made to Mr Jones. I do not have an analysis of my own to offer, but perhaps I could say two things. The first is I am very conscious of the broad idea that the code could be considered ripe for review in that respect. I see that case. It is a complex document and, indeed, I do not pretend to be an expert in every part of the procedural dynamics of the ministerial code but, from the practitioner’s level, I will assert that it is fundamentally workable. That takes me to my second point, which is to be cautious about unintended consequences were one to disaggregate the ministerial code into separate parcels placed in different places if, indeed, that interfered with the capacity for the code to operate effectively. My summary is to note that it is a document of some complexity. There may be aspects of it that do not necessarily fit naturally into the buckets that I think the Committee on Standards in Public Life might be suggesting, but it is workable. We can make it work. If I could just add that there are procedural aspects in the code, which themselves contribute to the maintenance of standards in public life. For all the imperfections that are suggested might live within the covers of the ministerial code, I do believe we can make it work.
Tom Randall
As a practitioner, do you think there are any glaring omissions in the code at all?
Lord Geidt
I do not think so. Some of the procedural aspects are themselves beyond the scope of my own remit. The code is not just there for the independent adviser. There are all sorts of other aspects packaged into it. I do not see glaring omissions that make it any less workable than I believe it is at the moment.
Tom Randall
With that interplay between the procedure and the standards, do you think the code strikes the right balance between the two?
Lord Geidt
I will just settle on saying that I think it appears to work satisfactorily. It is intelligible to the independent adviser, to the extent that the parts of the code that refer to my role are cited and I can make that bit work as independent adviser.
John McDonnell
I do not want you to take the next series of questions personally. It is only business, okay? It was reported that you had seriously contemplated resignation after your advice was apparently not accepted by the Prime Minister. Can you say whether that is true or not and, if you did contemplate resignation, what persuaded you not to?
Lord Geidt
Thank you. I am very aware that a very great deal of commentary was swirling around at the time of my annual report on 31 May. This is not to say anything other than what I have in print, but I hoped to be very clear in my annual report and the preface about what I think the commentariat spotted was perhaps a frustration on my part. I am glad that the Prime Minister was able to respond to my report and, in doing so, addressed aspects of the things about which I was clearly frustrated.
John McDonnell
Did you contemplate resignation?
Lord Geidt
I mentioned in my last evidence to this Committee that, of course, resignation is one of the rather blunt but few tools available to an independent adviser. I am glad that my frustrations were addressed in the way that they were. May I speak to resignation generally? I mentioned at the start of this session of evidence the difficulties that arose after—not because of—my predecessor Sir Alex Allan’s resignation because of this gap that opened up for a full five months after his departure. I will hold to the view, Mr McDonnell, that on balance I believe it is right and proper that there should be an independent adviser in post to make sure that the regular business does not go unattended, as was the case in that five-month lacuna. With the assistance of the office that I have now had stiffened, we are back on track in being able to publish twice a year the full list of Ministers’ interests and, indeed, to now stick to a timetable where the independent adviser can publish a full annual report.
John McDonnell
You have not directly answered the question whether you contemplated resignation.
Lord Geidt
It is fair to say that there are few instruments available to an independent adviser. It is important to consider what is going to work best in the interests not of me, but of preserving the integrity of the system, the code and in making it work in advising the Prime Minister on holding Ministers—including a Prime Minister—publicly to account. Again, I have not given you a direct answer, but I do not think there was ever a single, direct proposition in my own mind.
John McDonnell
I am going to take that answer as at least it was on the agenda.
Lord Geidt
We have mentioned before in evidence that it is always on the agenda as an available remedy to a particular problem, and one that my predecessor exercised in November.
John McDonnell
That does take us back to what you said before the Committee previously. When you appeared before us last year, you suggested that, and I quote, “public confidence will actually have flowed from Sir Alex’s behaviour”, in his decision to resign. What do you think the effect of your unwillingness to resign so far has been?
Lord Geidt
Some things have changed since Sir Alex’s principled resignation and they include the very considerable transparency that has increased in the role. Having an independent adviser sitting in post, capable of not just offering independent advice but causing that independent advice to be made public, I think now has become of service to public confidence. With the limitations that I mentioned earlier—and there are very few relating to the possibility of the Prime Minister withholding consent—the independent adviser now can use the facility for media broadcast, as necessary, to record the independence of his advice. That is a change from the point when Sir Alex moved on.
John McDonnell
You suggested publicly that you have avoided offering the Prime Minister advice that he would reject, which would then result in your resignation. Has this been limited to the initiation of inquiries or has it been more generally? Can you appreciate the impression that gives of self-censorship?
Lord Geidt
Yes, I can, and I would like to use this opportunity to make clear that there has been no occasion in my past year where advice has been rejected or, indeed, an application to initiate an inquiry has been dismissed. I agree it is very important to ensure that there is a clear understanding of the independence of the independent adviser, even if that is a relative term, as some would suggest. I do think, Mr McDonnell, that the available capacity to publish really is in the service of appreciation and public confidence.
John McDonnell
That is an undoubted advance, but weigh it on the scales against the following. The appointment of the independent adviser is not done independently, as was recommended by the Committee on Standards in Public Life or by an independent panel in the normal processes. When you were before us before you said in the conversation, I think, with the Cabinet Secretary that your name was alighted upon. That gave the impression it was the traditional gentleman’s club agreement over a port. That is the first thing. The second thing is that where advice has been given—you have provided advice—it was initially ignored and you did not resign and, by the sound of it, you did not threaten resignation. The Prime Minister then gives the excuse he never even received the advice, even though you were obviously having a conversation continuously with his civil servants. We are still in the situation where it does require Prime Ministerial consent for inquiries. You have narrowed the grounds but, to be frank, it is still open to the interpretation of the Prime Minister. It is still in the hands of the Prime Minister what sanction is levied against any Minister—including himself, bizarrely—if there an offence against the ministerial code. Weigh that in the balance of you just being able to achieve the reporting of some elements of your advice. I suggest to you that the balance is that your role—I do not want to be crude—is little more than a tin of whitewash.
Lord Geidt
Thank you. We discussed in my last evidence the nature of my original appointment. You are right to allude to how it was done. My capacity to effect the basis upon which I was appointed is, I am afraid, very limited. I was appointed on the basis that you have just recounted. What motivated me to do that? Well, it was to try to be in the service of the ministerial code. You may recall that I did so in the knowledge that I was already walking into an inquiry. Therefore—this is a slightly personal comment—I never expected it to be easy. How can I defeat the impression that you are suggesting of a cosy, insufficiently independent relationship? It is very hard, I freely admit, but I am trying my best to work with what I have. I think the changes that have been recorded are useful and workable. Yes, they are incremental. They do not yet address the full scope of the Committee on Standards in Public Life’s ambitions, including, Mr McDonnell, the point you made on public appointment. I don’t have the levers there but, in so far as this has always been a Prime Ministerial appointment, because of its service to the Crown’s chief Minister, I have tried in my short time to discharge it as well as I can, notwithstanding that it has been done in a slightly brighter glare of publicity than I think is usually comfortable.
John Stevenson
Following on from Mr McDonnell’s comments, you have said that it is the Prime Minister’s code. It is for the Prime Minister to ultimately make a judgment as to the conduct of his Ministers. It is the Prime Minister who decides on breaches and resignations. Therefore, the reality is that a Prime Minister will make a political judgment in the continuation of a Minister in office and, arguably, it is for Parliament to make a judgment on the Prime Minister. Is there really any point to your role?
Lord Geidt
I am simply trying to discharge it as well as I can within the remit that I have. As I noted earlier, it is just a statement of fact that the Prime Minister has been potentially within the scope of the code for quite a lot of the period that I have been in this role, which I think has created its own pressures. In the role of practitioner, all I can do is to try—and I do try—to make things work as well as I can. I am encouraged that what is available to me within the code is still something that I can work with. With this greater power of transparency, I think it is in the service of more public confidence. I accept the point that it may not completely take the trick—perhaps nothing would—but I do think that the powers that I have are not only good and workable, but I can certainly assert to this Committee that it would be my absolute intention to make sure that where justifiably I can exercise all those powers, including the right of publication, I will do so.
Chair
You mention publishing advice and then causing advice to be published, and they are both used separately in the terms of reference. Am I right to understand that publishing advice would be what was done voluntarily but causing advice to be published would be what you would say ought to be published?
Lord Geidt
I am not sure I can distinguish between those. My broad view here is that whatever goes out by way of my advice would be my advice. They would be my words.
Chair
That is simply a subtle variation of wording. There is nothing to be read into that?
Lord Geidt
No, I don’t think there is anything to be read into that. Indeed, I have to rely on the official Government machine to get a lot of my business done. I now have individuals stiffening my office, but they are seconded from elsewhere in the public service. I do have to use those channels, but it is still the independent adviser whose views are being made public.
Chair
Forgive the directness, but you mentioned working with what you have. Did you mean personalities or the rules?
Lord Geidt
I meant the rules. With its new revisions, the ministerial code wis now my operative document and I will do all I can to make sure that I can apply that—
Chair
Beyond the flippant nature of my question, though, does it not highlight the issue that the rules can be as clear and as transparent as anything, but their interpretation and the appropriateness of sanction with regards to the personalities involved is surely the key thing?
Lord Geidt
Hopefully, that does not implicate the personality of the independent adviser who is trying to give best effect, objectively and impartially, to what is required of him in the code.
Chair
I would entirely endorse what you have said from your perspective, Lord Geidt. I was merely reflecting—wistfully perhaps—on the usefulness of codes and rules if there isn’t the keenness to observe them that you would hope.
Lord Geidt
There is no lack of keenness on my part. For the rest, may I suggest that it is a rhetorical observation from the Chair?
Chair
It is indeed a rhetorical observation on which to end our session. Sorry, Mr Jones.
Mr David Jones
Forgive me, Chair. I too would like to ask a question about the statement that you have made several times during this evidence session. You have used the words, or a variation of these words, “I am trying my best to work with what I have.” I think several of my colleagues will find it frustrating that you have not made any recommendations whatever as to how we might improve what you have to work with. It seems to me that—
Lord Geidt
Well, that is—sorry.
Mr David Jones
Forgive me, I think it is quite important. The purpose of this Committee is to consider public administration and ways in which it might be improved. We rather hoped that we might have had some assistance from you in this session today. In fact, all that you have said, studiously and repeatedly, is that it is not role to offer such advice or to express any such opinion. Don’t you think it really is your role to do that?
Lord Geidt
I do have a new power, which of course is to engage in considering the ministerial code. I did not have that before but I am now a partner in the process in developing the ministerial code and future iterations of the code. Again, I do believe that the policy aspects of the code are very importantly residing with Government and that it is important that, publicly and openly, the Government bring those proposals forward for me to operate and implement. My new role will allow me to consider the extent to which new machinery can be made to work and—as an echo of Mr Stevenson’s question on statutory machinery—that would be a good example where I could bear down on the proposal to make sure that it added up and could be made to work.
Mr David Jones
Yes, you have made that clear repeatedly, but you refuse to comment at all on the recommendations of the Committee on Standards in Public Life when you have a unique opportunity to do so. Don’t you think you should be doing that?
Lord Geidt
With no disrespect either to you or the Committee, I do hold to the view—and this is what the Committee on Standards in Public Life itself has called for—that a response from Government first is the principal basis upon which those recommendations can be addressed. Without that governmental lead, Mr Jones, I am simply left potentially to speculate on areas that the Government may not either have considered or may not even agree with. From within the job—and I absolutely hear what you say about my inability to speak over the Government—I think that it would be far better for me to make an assessment of the proposal, once Government have made it in their response to the Committee on Standards in Public Life, so that I could offer a commentary on how best it could operate. I could certainly then speak to the merits of a proposal once the Government have made it.
Mr David Jones
It is not so much an inability as a refusal.
Lord Geidt
Mr Jones, if you characterise it like that, I cannot do anything other than to say that that is your use of language. I am simply trying to assert that I believe that the Government have a responsibility to take a lead in this area of developing policy and that I can now help in interpreting that for its better implementation.
Mr David Jones
Thank you.
Chair
That concludes our questions, Lord Geidt. We are grateful for you time this morning. I think you have given an undertaking to correspond if there is anything you neglected to mention, for which we are very grateful indeed.