Boardman’s Greensill review makes a pitch for bold reform – will it shift the dial?

Author: Spotlight On Corruption

Nigel Boardman’s 19 recommendations and 5 suggestions resulting from the Greensill scandal were finally published last week, after sitting in the government’s in-tray since early August. It has been worth the wait though, with plenty of good recommendations to chew on, including a very welcome recommendation to renew the government’s Anti-Corruption Strategy in 2022 and include public integrity standards. However, Boardman’s report also raises questions about whether Ministers are outside of proper accountability frameworks and about who will provide independent oversight to ensure that his recommendations are being properly enforced.

Boardman’s report comes as the Committee on Standards in Public Life (CSPL) is putting the finishing touches to its final recommendations on how to improve the UK’s standards landscape. CSPL’s initial findings, published in July 2021, covered lots of similar ground to Boardman – including the revolving door, public appointments and lobbying. It will be complemented by a further report by Parliament’s Public Affairs and Constitutional Affairs Committee (PACAC) which will be reviewing Boardman’s recommendations and coming up with its own over the Autumn. If the government wants to improve integrity in public office and restore public trust, there is plenty for it to consider.

Indeed, the government said it will consider these reports and set out a substantive policy statement in due course. But it needs to do more than consider them – it should seize the opportunity to engage with civil society groups, in forums like the Open Government Partnership, to develop concrete commitments to take this agenda forward. 

The good bits

  • Creating a cross-government compliance function to ensure civil servants and contractors comply with rules and regulations

Boardman calls for a cross-government compliance function with a remit to investigate potential rule breaches around conflicts of interest, lobbying, business appointments, whistleblowing, fraud and transparency. An independent compliance function of this type, with real enforcement powers, could provide a credible means to deter misconduct and promote integrity in government. It would also replace the current patchwork, which developed more in response to scandals than as a coordinated system for identifying and managing risks.

  • Expanding the scope and transparency of conflict of interest declarations

Boardman recommends that the conflict of interest regime include special advisers, non-executive directors and unregulated direct appointees, who are currently exempt. This extension, which Spotlight on Corruption called for in June 2021, would be a significant and welcome upgrade. Boardman also proposes that conflicts of interest by those appointees should be consistent, based on standard templates and published; this is a crucial transparency measure. 

  • Increasing transparency and accountability around direct ministerial appointments

Boardman notes that the way in which direct ministerial appointments are made, particularly unpaid appointments, are “opaque and poorly understood” with no clearly defined and understood rules. Boardman recommends reform, including the creation of a code of practice to clarify obligations and expectations around the process and publication of Ministers’ explanations on appointee suitability for the role. This is a welcome proposal, particularly given the controversy around public appointments over the past 18 months.

  • Departmental reporting on efforts to promote a culture of integrity

Boardman proposes departmental accounting officers report annually to their Audit, Risk and Assurance Committees on how the department has instituted integrity initiatives. Properly implemented, this initiative, coupled with Boardman’s recommendation for 5-yearly compliance reviews, should introduce greater accountability on how departments and government overall are performing. 

  • Significantly improving the level of transparency in departmental disclosures on lobbying

Boardman suggests more frequent, detailed information should be published by departments on who ministers and civil servants are meeting, including expanding this information to “non-public interactive dialogue”. This would include instant messaging platforms which, as the Greensill scandal showed, is a habitual form of communication used by politicians and lobbyists, but falls outside the scope of existing rules.

  • Tightening up the rules around the lobbying register

Importantly, he recommends greater transparency in relation to the lobbying register, with a statutory code of conduct for lobbyists and more meaningful penalties for non-compliance – with knowingly deceiving in the process of lobbying made a criminal offence. Former civil servants and Ministers who engage in lobbying would be required to register as consultant lobbyists and significant loopholes would be closed or severely curtailed, such as the ‘incidental lobbying’ which Philip Hammond got away with. Boardman also proposes that the government consult on requiring think tanks and research institutes to declare who they are funded by and whether they should have to register as consultant lobbyists, something which is long overdue.

  • Improving regulations around the revolving door

Boardman rightly identifies that “there would be widespread support for a more powerful mechanism” than ACoBA for enforcing post-employment restrictions on civil servants and Ministers. He proposes that the government make post-employment restrictions on civil servants and Ministers legally binding – something both CSPL and Lord Pickles, Chair of ACoBA, also suggested – through employment contracts, with separate arrangements for Ministers. Boardman’s suggestion that ACoBA is given enforcement powers is highly welcome, though it will need to be properly resourced and enforcement must be fully independent of the public officials the body oversees.

  • Improving whistleblowing mechanisms within government

Boardman recommends that the government strengthen whistleblowing processes in the Civil Service, noting that a significant proportion of civil servants are unaware of how to raise a complaint and do not have confidence that any complaint would be investigated properly. Under his proposals, the scope of grounds for whistleblowing would be expanded to match those common in the private sector, while civil servants would be offered the chance to raise concerns with someone outside of the Civil Service and the Civil Service Commission, such as the Chair of the audit and risk committee of the department. 

The weak bits

Overall, the real risk behind Boardman’s recommendations is that he lets Ministers off the hook. Boardman’s report is heavily focused on changes needed in the Civil Service. When he was conducting his investigation, concerns were raised that he would shift all the blame for the Greensill fiasco on to civil servants and in particular the late Jeremy Heywood. Those concerns may be fuelled by Boardman’s failure to address key weaknesses in the regulation of ministerial standards, the absence of reforms that would increase ministerial accountability, and his emphasis that it is “appropriate for Ministers, should they wish, to be involved in commercial activity”

Both the CSPL and Boardman recognise that ministerial accountability rests with the Prime Minister because he has sole responsibility for ministerial appointments; the issuing of the Ministerial Code is part of this constitutional role. The consequence of this approach is that accountability mechanisms are weakest for those with the most responsibility, and most power, in government. But the CSPL, unlike Boardman, identified that the Prime Minister being the ultimate judge of the Ministerial Code is a distinct issue from investigations into breaches and the range of sanctions available. Whereas Boardman sidesteps the issue of ministerial accountability, the CSPL recommended a range of sanctions for breaches of the Ministerial Code, and that the Independent Adviser on Ministers’ Interests should be able to initiate investigations, determine findings of breaches, and that a summary of their findings should be published in a timely manner.

Other bits of Boardman’s proposals which in our view could go much further or raise new questions include: 

  • How will the proposed compliance function be accountable and is its scope broad enough

While Boardman recommends a network of “embedded compliance professionals within departments, coordinated by a central team in the Cabinet Office”, it is not clear what the oversight mechanism for this compliance function would be, how independent it would be in the exercise of its enforcement powers, and how it would be protected against ministerial capture. In addition, Boardman’s recommended compliance function would only have advisory power in relation to Ministers, so it appears that it would not have the authority to require Ministers to divest from their investments or to cede control to a blind trust in the case that all other steps at mitigation failed to address the conflict of interest. 

  • Proposals for lobbying reform could go further

Despite the positive proposals about the lobbying regime summarised above, Boardman’s proposed lobbying reforms do not go as far as organisations like Transparency International and the Public Relations and Communications Association have long been calling for. In particular, Boardman does not recommend including in-house lobbyists in a comprehensive lobbying register, which will be seen by many as a major omission. Whilst PRCA welcomed the report, the two-tiered approach to transparency has been highlighted by the Chartered Institute of Public Relations

  • ACoBA fudge falls short of long needed overhaul

Both Boardman and CSPL recognise the tension between attracting beneficial skills from the private sector into the Civil Service and the need to maintain the independence and integrity of the Civil Service. However, CSPL went further than Boardman in calling for the scope of the Business Appointment Rules to be expanded and for the lobbying ban to be extended. Boardman’s proposal for enforceable post-employment restrictions to manage the influence of lobbyists has the advantage of allowing immediate action to be taken without waiting for a statutory solution, but he does not advance a persuasive argument for not considering wider reforms or a statutory regime in the longer-term. In addition, Boardman’s proposed solution is not predicated on transparency, something that Lord Pickles rightly identified as being crucial. Unlike Boardman, both Lord Pickles and CSPL recognised that more fundamental reform may be necessary if enforcing the rules through employment contracts is not effective.

  • Whistleblowing reform needs to go beyond promoting policy awareness and improving culture

Boardman made a series of recommendations to address weaknesses in the whistleblowing processes in the Civil Service, including additional training and the appointment of a ‘whistleblowing champion’ for each department. Boardman’s proposals, particularly to facilitate direct external reporting outside of the Service, whilst welcome, focus on culture and staff engagement with the ‘Raising a Concern’ policy at the exclusion of more significant reforms necessary to instil trust and confidence in robust protection of speaking up. He could have gone much further by recommending a review of the provisions offering key assurances in line with current best practice consensus for institutional whistleblowing frameworks, in particular for handling complaints of retaliation and sanctioning whistleblower suppression, which need to be reinforced in both the Civil Service Code and Ministerial Code.

What are the implications and next steps?

Boardman was asked to investigate the development and use of supply chain finance in government and any related issues that he considered to be in scope. Boardman successfully diagnosed many of the problems across government which, if not fixed, will continue to throw up yet more damaging scandals. Whilst some of his recommendations fall short by focusing on improving departmental procedures and processes, without putting in place the mechanisms that would ensure any improved framework would be effectively policed, as well as sidestepping significant concerns around ministerial accountability, there is much about his analysis of the problems and recommendations that is commendable.

Recent scandals have demonstrated how the rules and bodies for holding individuals in public office to account are not fit for purpose. The government’s response will need to reflect the many failings of the current system – and advance suitably robust reforms – to stand any chance of building a culture of integrity, restoring public trust, and increasing democratic accountability. Boardman, CSPL and PACAC will give the government plenty of ideas to improve standards in public office – but whether the government’s response will reflect the gravity of the situation remains to be seen. Stepping up now and engaging with civil society groups to build a strong agenda for reform is crucial.