We don’t have an independent process for dealing with complaints about ministers in the UK government. All we have is a system almost entirely at the behest of the prime minister, with a role for an independent adviser on ministers’ interests – that is, when there is one.
We didn’t have one when finally, following weeks of speculation about his conduct, Dominic Raab, the deputy prime minister, and justice secretary, referred himself for investigation. The PM did not, as he seeks to claim now, do the right thing. Instead, he spent the intervening weeks pledging his support for Raab and avoiding – five times in an excruciating interview with BBC political editor Chris Mason – direct questions on whether he was aware of concerns about Raab’s conduct when he appointed him to the post of deputy PM.
In the absence of an independent adviser, Sunak appointed Adam Tolley KC to “establish the facts” around the two complaints that had been made – a further six would follow. Those terms of reference are important. “Establish the facts” is an odd term used in the ministerial code. It refers to the role of civil servants, tasked with investigating ministers’ conduct. It’s an important distinction, as the cabinet secretary made clear in his evidence to the Public Administration and Constitutional Affairs Committee in the summer: “There is a role that is spelt out in the ministerial code that the prime minister can ask the cabinet secretary or the Cabinet Office to establish the facts but the decisions and the adjudication, and the advice about that on the ministerial code aspects, have to come through the independent adviser.”
Civil servants can be asked to establish the facts, but it is inappropriate for them be asked to make a determination on them. Tolley, therefore, is undertaking the role that the civil service normally would, under direction from the independent adviser. The best analogy to this is a real one: the investigation into the allegations against the former home secretary Priti Patel. Civil servants were involved in fact finding but the conclusions from that report were a matter for the independent adviser, Sir Alex Allan. He concluded that the former home secretary had bullied civil servants, including shouting and swearing at them, and that this was a breach of the ministerial code.
This was merely advice to the prime minister at the time, Boris Johnson, who was free to ignore it, which he did. It was critical, though, that someone independent of politics played a role in the conclusion. Johnson could ignore but not hide from it. It is exactly why the adviser is independent. The job is exactly what it says on the tin, so to speak. The adviser is supposed to provide some impartiality in the system for dealing with breaches of the ministerial code.
Johnson wasn’t brazen in that decision. As we found out when we sought a judicial review of it, he sat on the report for nearly six months. It eventually became untenable not to publish it and the announcement of the resignation of Sir Alex Allan as independent adviser that followed. Johnson ultimately sought to ride out the storm that followed but it dogged his period in office and contributed to the conclusions of many that he lacked the integrity for that office. Had there been no role for the independent adviser, he would have been free to justify his decision in whatever convenient way he saw fit.
Which brings us to the investigation into Raab. There is currently no role for the independent adviser, who was appointed after the investigation had already started. The terms of reference for the investigation can be amended at any time, this is, after all, a process entirely at the whim of the PM. In any circumstances, no independent oversight of an investigation into ministerial conduct would be a concern.
This is not, however, “any circumstances”. This is an investigation that the prime minister had to be forced into. The same prime minister who refuses to answer a simple, direct question of what he knew and when. The same prime minister who will be solely responsible for making a determination on the investigation.
This is not, by the way, any indication of concern over the conduct of Adam Tolley KC; quite the reverse. It is what will come after his report that is a cause for concern.
"Sunak has repeatedly refused to deny that he appointed Raab in full knowledge that concerns had been raised about his conduct. He is not, therefore, a disinterested party in the outcome of this investigation"
Rishi Sunak has repeatedly refused to deny that he appointed Raab in full knowledge that concerns had been raised about his conduct. He is not, therefore, a disinterested party in the outcome of this investigation. If Raab is found guilty, it will raise further questions about what the prime minister knew, why he ignored concerns and why Raab was not suspended pending that investigation.
It serves no one – neither those who have raised complaints or indeed Raab himself – to have the prime minister’s judgement at the end of this process called into question. The prime minister should recognise this and immediately instruct his independent adviser to play the role he would in any other investigation, including the one just concluded into the former Conservative Party chairman. That’s why, earlier this week, I wrote to him asking him to do exactly that.
The entire process for dealing with complaints needs a complete overhaul. Independence is key, as recognised by the Committee on Standards in Public Life in their recommendations, which have now been ignored by three successive prime ministers, including Sunak himself.
Until then, everything must be done to give confidence to those who have made the enormously difficult decision to raise formal complaints against some of the most powerful people in the country. As minister for the civil service, Sunak needs to prioritise those people at the heart of these complaints, rather than political control of the process.
Dave Penman is general secretary of the FDA union