News 14th Jan 2022

What’s an Independent Adviser on Ministerial Interests to do? The limitations of ministerial oversight and the need for reform

Rose Whiffen

Research Officer

Rose is a Research Officer specialising in political corruption. Her work covers issues of money in politics, access to influence and lobbying accountability as well as open governance. She previously worked as a Project Officer for Transparency International UK's 'Promise to Practice' project, where she led on the global anti-corruption pledge tracker. Before joining Transparency International, she worked for Democracy Club and previously interned for Corruption Watch UK, a precursor to Spotlight on Corruption.

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Last week the Independent Adviser on Ministerial Interests, Lord Geidt, cleared Boris Johnson of breaking his own ministerial code over the funding of the Downing Street renovations (for the second time). However, in polite British speak, we would say Lord Geidt is pretty peeved off, some are even reporting he’s ‘livid’.  This event capped successive revelations that undermined the PM’s official line on the hows, whos, whys and whens of this saga. Here’s a quick recap of what’s been going on, the various investigations, the implications for reform and what might come next.

 

Part 1: A Trust by any other name

Upon entering Downing Street in 2019, the Prime Minister, and his now wife, Carrie declared it a ‘John Lewis nightmare’ and sought to redecorate the residence. Under government rules, the PM can receive up to £30,000 annually for works on their living quarters. However, rumours began to swirl that the revamp cost a lot more. This then raised questions about who was going to finance this episode of changing rooms (revealed later to have cost £112, 549.12) and, if not Mr Johnson himself, how this would be reported. Until recently, it was unclear about where this money came from and how it should be reported.

In May 2021, Lord Geidt published his initial investigation into the affair and allegations the PM had failed to declare the missing money under the ministerial code – rules the Prime Minister himself had issued to his colleagues in government. He found that Boris Johnson did not know that the Tory peer and donor, Lord Brownlow, would initially cover the costs of the redecoration. The Prime Minister believed Lord Brownlow would simply oversee a trust which would somehow make all his financial worries disappear. I’m slightly paraphrasing the last bit there, but Lord Geidt did say that the Prime Minister had “simply accepted that the trust would be capable of satisfactorily resolving the situation without further interrogation”.

In reality, however, Lord Brownlow, paid the decorators directly and indirectly a total sum of £112,549.12, which the PM later reimbursed.

In his report the Independent Adviser concluded that these financial arrangements did not amount to a conflict of interest, or perceived conflict of interest, and so there was no breach. He also concluded that in covering the costs of the flat makeover, there’s “no evidence” Lord Brownlow “acted with anything other than altruistic and philanthropic motives”. But we’ll come back to that later.

 

Part 2: The Missing Exchange

Subsequently, the Electoral Commission also investigated the funding arrangements for potential breaches of electoral law. Since the early 2000s, parties and politicians are supposed to declare substantial contributions they receive – rules introduced to try and prevent a repeat of the 90s sleaze that engulfed the John Major administration. In December 2021, the Commission concluded that Lord Brownlow had effectively donated £52,801.72 to the Conservative Party to reimburse contractors for some of the works, which the party had failed to report. For this misdemeanour they were fined £17,800[1].

Also, significantly, the Commission’s investigation revealed WhatsApp messages between Boris Johnson and Lord Brownlow, which Lord Geidt had not seen previously. This sparked allegations that the PM had misled his Independent Adviser, a revelation that prompted Lord Geidt to review the findings of his original investigation. Kudos where kudos is due, the Independent Adviser did ask the Prime Minister about this ‘Missing Exchange’– a slightly awkward request given his role depends on the PM’s patronage – yet he still concluded the PM had neither breached the ministerial code nor misled him as a consequence. The Prime Minister had simply got a new phone, and the messages had not carried across from the old one.

This is not to say Boris Johnson went completely unscathed. Lord Geidt displayed some gentlemanly frustration at the events, claiming he believed it “demonstrated insufficient regard or respect for the role of Independent Adviser”. However, one might argue that all this amounts to is strong words without substance, which remain his sole sanction for now.

 

The origin story: the limitations of the Independent Adviser on Ministerial Interests

And herein lies the problem. What options does an Independent Adviser on Ministerial Interests really have? Under the current system of ministerial oversight, if Lord Geidt had found that the Prime Minister had breached the Ministerial Code – a code written by the PM himself – it would be the perpetrator doling out the punishment.

The Independent Adviser, as the name states, is only an adviser.

They can only investigate and then advise the PM. Previous convention would suggest that if a minister was found to have breached the code they would resign. In the ‘Terms of Reference’ for the Adviser’s role, it states that “The decision on whether a Minister remains in office after an investigation sits with the Prime Minister, as “the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards” (1.6).” However, the limits of convention were demonstrated vividly when Priti Patel still retained the confidence of her boss despite breaking the rules. Consequently, Lord Geidt was presented with two main options.

The first was resigning if he had felt that his position had been irrevocably undermined. This may have created a fair amount of unwanted media attention and public pressure for Boris Johnson. Not least because Lord Geidt’s predecessor, Alex Allan, resigned over the Priti Patel case back in November 2020. This might be deemed the ‘last straw’ for Lord Geidt.

Alternatively, the letters between Boris Johnson and Lord Geidt suggest he sought to use this as leverage to secure a review of his role and potentially ‘fortify’ it. Better to be in the tent, as they say. While this may be tactically astute, it does not resolve some of the structural deficiencies at play.

Advocates, including ourselves, and the Committee on Standards and Public Life (2021), have argued that the Independent Adviser’s role should be given greater independence, powers and placed on a statutory footing. This would give it the autonomy and oomph to be able to hold power to account more effectively, and call a spade a spade when needs be.

 

What’s Next?

There are numerous possible outcomes from this affair, which are still playing out.

First, it remains to be seen if and how the Independent Advisor on Ministerial Interests role is strengthened. The case certainly illustrates vividly the inadequacy of the status quo. Yet whether this actually results in a change to the role – a transfer of power away from the PM – is yet uncertain.

Second, the Commons’ Commissioner for Standards, Kathryn Stone, is currently deciding whether to launch her own investigation into the Downing Street renovations. The remaining £59,747.40[2] that Lord Brownlow paid directly to the contractors appears to be a regulated donation under electoral law (see Schedule 7 of PPERA). This should have been reported but has not appeared anywhere on the public record. Since the end of dual reporting, this should fall under the purview of the Commissioner to investigate rather than the Electoral Commission.

Third, the Labour Party have accused the Conservatives of ‘cash for access’ and asked Kathryn Stone to investigate any potential breaches of the Parliamentary Code and Lord Geidt to consider further breaches of the ministerial code that may arise from this alleged impropriety. Remember those WhatsApp messages between Lord Brownlow and Boris Johnson? As well as agreeing to sort out the funding of the No 10. décor , Lord Brownlow also states “thanks for thinking about GE2” . GE2 has been described as Lord Brownlow’s ‘pet project’, which he wanted the Government to consider pursuing. Perhaps Lord Geidt’s assertion that Lord Brownlow only had ‘altruistic and philanthropic’ motives in initially covering the refurb costs, might have to be revaluated.  

The Prime Minister has just about managed to survive these various investigations so far, but he appears to be on thin ice with the Commons' Standards Committee, so we’ll be paying close attention to how this story develops and what might potentially be still to come out.

 


[1] The Electoral Commission can only fine a maximum of £20,000 for breaches like this.

[2] Total cost of refurbishment = £112549.20. £52,801.72 was paid by Lord Brownlow indirectly to the contractors via the Conservative Party and £59,747.40 was paid directly to the contractors by Lord Brownlow. Boris Johnson has since repaid both amounts. See here for a useful diagram from the BBC: https://www.bbc.co.uk/news/uk-politics-59609614

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