The recent scandal over Greensill and the double life of civil servant Bill Crothers prompts the question how should the afterlife of Ministers and civil servants be regulated. This is in an era where we want to encourage good people from the private sector to go into the public. This inevitably comes with the likelihood that they will go back at some stage through the door marked private. The much greater flow in France is positive for them – but we want to avoid the potential corruption associated with this.

The present regime of regulation was established by Harold Wilson in the 1960s when it was expected that public service would last until retirement; then there were no doors marked in and out.

A rational modern system to regulate this would include:

1. Clear paragraphs in the statement of terms and conditions of civil servants’ saying what they can and cannot do both in office and beyond
2. An investigatory power to look into what the new private sector job is likely to involve
3. Prompt, predictable and consistent advice
4. Applications being made before the Minister or civil servant takes up the role and not be permitted retrospectively
5. A system covering all senior civil servants, spads and tsars
6. Applying to those seeking a second job before they leave
7. A proper system for administrative enforcement, probably not with criminal sanctions but with a restraining order which could be enforced by the courts

The present system ticks none of those boxes. What we have at present is the Advisory Committee on Business Appointments (ACOBA). It is a non-Departmental Public Body sponsored by the Cabinet Office and was established by the then Prime Minister, Harold Wilson, in 1975 to provide advice on applications from the most senior Crown servants.

The scope of applications is from former Ministers, Permanent Secretaries (and their equivalents) Directors-General (and their equivalents) ie Senior Civil Service pay band 2 and above. It operates for any new paid or unpaid appointment only within 2 years of leaving ministerial office or Crown service and depends on civil servants and Ministers bringing those new posts to its attention.

The limit on its range as far as civil servants are concerned can be gauged from  the statistics: 34,000 people left the civil service last year and the committee addressed only 108.

Those lower down the food chain are dealt with by their employing departments. Some departments are very good in establishing an ethical regime but the record of others is horrid. There is a real danger that the existing cohort looks after the cohort that had just left, in the assumption that the cohort that is coming up will look after them.

34,000 people left the civil service last year and the committee addressed only 108

Lord Pickles has been Chair of ACOBA since last year and has made strides to assist the present creaking machinery work (for example by negotiating that failure to comply with ACOBA’s advice will be taken into consideration as part of the vetting process in awarding honours), but the machinery is not well set up or well-oiled. It looks back to the time of the “good chaps theory of Government” as Peter Henessey has described it. It is not a watchdog. It is not a regulator. It manages with only four staff. It is a Heath Robinson type contraption in a motorway age. The weakness is on the top of the tin in the very name of the body, Advisory. It should be on a statutory basis with teeth.

There is a lack of public service coverage although it is no means clear where you should draw the line in terms of public servants (all Ministers are covered). It is disproportionate for a committee to opine on whether someone should carry out voluntary work or work well away from the scope of the department in which (s)he was involved.

Spads are included but not the now vast array of informal appointments which we are now seeing, from Trade Envoys to Crown Representatives or tsars of one sort or another. As Pickles told the Committee, “Contractors, consultants and people who arrive and offer assistance—maybe during the pandemic, or maybe as Mr Greensill did—are not covered at all.” Crown Representatives are a curious and little known category who are appointed “to help the government act as a single customer” because of their understanding of the private sector and procurement. Bill Crothers started in this shadowy role before being appointed as chief procurement officer for the Government.

The balance

There is of course a balance to be struck in each case because civil servants should not be wrongly restricted in their activities. In legal parlance we call that “restraint of trade” and clauses in the private sector are strictly construed in the light of placing as few restrictions as possible on their freedom to earn. This concept is set out well in the civil service code “When making a decision, the Committee must strike a balance between any justified public concern about the circumstances of an outside appointment as set out in the Government’s Rules; and the right of individuals to earn a living after leaving the Government, reflecting the law against the restraint of trade.”

The other aspect of the balance is the possibility of the civil servant being given garden leave. The code says “It may be appropriate to continue to pay former civil servants, including special advisers, who are required to observe a waiting period before taking up an external role. Such a payment would be subject to the particular circumstances of the individual case, and it would be important to ensure that decisions take account of all relevant factors including, for example, whether there was a reasonable expectation of a waiting period under the Rules.” It is not known how many people have been paid these sums.

Culture

This is of course as much a matter of culture as it is of legal enforcement and restrictive codes. Appropriate leadership is required and this was precisely why leadership was one of the Nolan Seven Standards of Public Life. Good leadership by example needs to start at the top. Sir John Manzoni, who was himself the permanent secretary at the Cabinet Office a few years ago, was a non-executive director at SABMiller (the brewing multinational), and the role continued after his role in Government began in 2014. Francis Maude, the former Cabinet Office minister and industry minister, appears to have taken up the highest number of external roles over the past year, with nine posts and he is currently advising the Government on Cabinet Office reform.

It seems inexplicable that a Government head of procurement was able to moonlight in a commercial company which had dealings with Government

In his updating letter to the Chair of the Public Administration and Constitutional Affairs Committee dated 17 2 21, Lord Pickles himself said that was he was “not convinced the Government’s Business Appointment Rules are embedded strongly enough within the culture of public office”. Pickles followed this up with interesting evidence to the Committee on 15 April in which he dealt with the case of Bill Crothers which is a further step away from decency. It seems inexplicable that a Government head of procurement was able to moonlight in a commercial company which had dealings with Government and still unclear who if anyone signed this off. In his evidence to the Parliamentary Committee, Pickles said of this one in a classic understatement: “It is fair to say, to misquote P. G. Wodehouse, that my eyebrows did raise a full quarter inch when I heard about this.” Further the fact that the employment of Crothers by Greensill Capital started whilst Crothers was still employed by Government at a most senior level meant that he avoided the need for approval to be given by ACOBA at all for the position with Greensill after he left. That is a real loophole.

Membership

The Committee has nine members, all of whom are appointed by the Prime Minister. Members are appointed for a single non-renewable term of five years. Three members are political appointees; nominated by the three largest political parties; and a further six are independent members, appointed following fair and open competition.

I raised my eyebrows a few inches when I heard about the recent appointment of Andrew Cumptsy, who in his day job is a lobbyist. Pickles who suggested his old friend Andrew told the Committee “I also wanted to give the Minister [who does the appointing] the option of having someone who had experience of lobbying.” The words lunatic, taking over and asylum spring to mind. Pickles’ argument is of course that you need someone with knowledge of the industry to regulate it but that is of course how many regulators become prisoners of the industry being regulated.

An example of a liberal approach

A typical recent example of the way in which the Committee operates and its limitations is when Sir Jonathan Jones sought the Committee’s advice in February 2021 about taking up an appointment with Linklaters, the well-known Magic Circle law firm as Senior Consultant for Public, Administrative and Constitutional Law. The published ACOBA letter noted that Sir Jonathan had not met with Linklaters during his time as Treasury Solicitor and Permanent Secretary. Further, Sir Jonathan and his former department confirmed that he did not make any other contractual or policy decisions specific to the Firm while in office. A six month wait would normally be considered appropriate in such a case. However, ACOBA gave weight to Sir Jonathan’s limited role and access to information after he resigned in September 2020 and restricted the waiting period to three months from his last day in Crown service. It also included restrictions that he should not “draw on (disclose or use for the benefit of himself or the persons or organisations to which this advice refers) any privileged information available to him from his time in Crown service”. This may be seen as a somewhat generous in favour of Sir Jonathan.

What is to be done?

Knee jerk reactions in the midst of the storm are not necessarily conducive to the best long-term solutions; think MPs expenses and the aftermath. So, what is the way ahead in the short to medium term?

ACOBA should be put on a statutory basis and the A should be removed from the title

ACOBA should be put on a statutory basis and the A should be removed from the title. The committee should report to the Public Administration and Constitutional Affairs Committee. There should be no retrospective applications allowed. There needs to be a change to the employment contracts of senior civil servants to build in the public service equivalent of restrictive covenants found in the private sector. It should be made crystal clear that the relevant permanent secretary is accountable for all the management of these particular issues within the Department.

The Ministerial Code should also be put on a statutory basis and its remit clarified in this regard. Ministers should be under a statutory duty to report themselves to the committee when there is a prospect of a job within two years of leaving office and lobbying of their former Ministries should not be allowed until five years thereafter. The membership of the committee should be widened.

So it is a real pickle deciding how to balance the flow between the public and private sectors but one we must solve in a considered way without expecting Ministers or civil servants to be good chaps as in days of yore