What is the special advisers’ code of conduct?
The special advisers’ code of conduct sets out the rules and standards of conduct that special advisers (known informally as ‘SpAds’) to UK government ministers must abide by.
Although there are separate special adviser codes for the devolved governments of Scotland, Wales and Northern Ireland, all these codes share similar themes.
Following the publication of an update on Sue Gray’s investigation into alleged gatherings on government premises during Covid restrictions, the prime minister Boris Johnson announced on 31 January 2022 that the special advisers’ code of conduct, and the ways in which it is enforced, would be subject to review. No further details on this review have been released.
What does the code include?
The code includes rules governing the status and conduct of special advisers, as well as their involvement within politics, interaction with the media, and rules regarding transparency.
The code includes clear guidelines. For example, it states that special advisers are allowed to convey to officials the views, instructions and priorities of their ministers on their behalf, as well as work with officials by preparing information and data, and discuss, review and comment on the advice being put to ministers.
Special advisers, however, are not allowed to ask civil servants to do anything which breaches the terms of the civil service code, authorise expenditure of public money, or manage any civil servants.
How does the code relate to the civil service code?
Special advisers are temporary civil servants (who work specifically for their ministers), and are therefore subject to the terms of the civil service code of conduct. The guidelines set out in this code form the majority of the special advisers’ code, but the code for special advisers is clear that they are exempt from the requirement on permanent civil servants to be politically impartial and objective.
As they are appointed by an individual minister to work for them, special advisers do not need to be appointed on merit, or retain the confidence of future governments regardless of the party or political leaning. However, they are ‘bound by the standards of integrity and honesty required of all civil servants as set out in the Civil Service Code’.
What is the legal status of the code?
The requirement to publish a code of conduct for special advisers is found in the Constitutional Reform and Governance Act of 2010. In section 8 of the act, it explains that the minister for the civil service (normally the current prime minister) is responsible for publishing a code of conduct for special advisers.
The act states that the code must specify certain actions which cannot be undertaken by special advisers, including approving expenditure of public money and managing any civil servants.
Who investigates breaches of the code of conduct?
The special adviser code does not explicitly say who will investigate possible breaches. However, the civil service code says that if a civil servant believes that the conduct of others, including special advisers, breaches the code, or that they have been forced to breach the code of conduct, then they should talk to their line manager or another member of staff in their department.
If they do not believe the response is reasonable, they may make a complaint to the Civil Service Commission. The commission is the independent body that oversees how the civil service works, as well as how civil servants are recruited. The commission considers complaints and makes recommendations to the relevant department about how the conflict can be resolved.
In reality, it is very unlikely that a special adviser would raise any breaches of the code with the commission. While they are officially civil servants, special advisers do not tend to see themselves as such and tend to resolve issues through political, rather than official civil service, routes.
How is the code enforced?
The ministerial code explains that it is the responsibility of the minister who appoints a special adviser to oversee their management and conduct, as well as to ensure that they adhere to the special adviser code.
What are the weaknesses of the code?
There are a number of inconsistencies within the code, especially in relation to how the code is enforced. For example, despite the ministerial code stating that it is the responsibility of ministers to ensure that special advisers adhere to the code of conduct, in reality ministers are often too busy to carry out this responsibility.
Special advisers have reported a lack of performance management and pastoral support from their ministers. Many advisers have reported receiving no appraisal or feedback from their minister or from No.10, even though their model contract states that they will receive an annual appraisal/review. This is often because ministers lack people management experience or the time to reflect on their advisers’ performance.
The fact that the code does not contain an explicit process for how potential breaches will be investigated also makes it harder to enforce.
How often is the code updated?
The Constitutional Reform and Government Act, which outlines the rules regarding the actions of special advisers, was passed in 2010. The code, which is based on the terms of the Act, has been updated five times since, following changes of prime minister and at other key political moments, such as when the Conservatives returned to power in 2015 as a single party government.
The ministerial code, which sets out the terms on which ministers can appoint special advisers, is also updated at the start of each new administration, although in some cases, it is updated more frequently. The most recent update of the ministerial code was in August 2019.
- Prime Minister’s Office, ‘PM statement on the Sue Gray report: 31 January 2022’, GOV.UK, 31 January 2022, www.gov.uk/government/speeches/pm-statement-on-the-sue-gray-report-31-january-2022