David Blunkett’s downfall: the texts and the timing
Unaccustomed as I am to feeling even a sneaking sympathy for the appalling Mr Blunkett, probably the worst and most illiberal Home Secretary in my longish lifetime, I’m bound to confess that it’s easy to see how he might have misunderstood the rules on seeking advice from the ‘independent Advisory Committee on Business Appointments’ on taking up appointments after leaving ministerial office, the crux of his current difficulties:
Ministerial Code: A Code of Ethics and Procedural Guidance for Ministers’ [sic]
5. Ministers’ Private Interests
General principle
5.1 Ministers must ensure that no conflict arises, or appears to arise, between their public duties and their private interests, financial or otherwise.
….
Acceptance of appointments after leaving ministerial office
5.29 On leaving office, Ministers should seek advice from the independent Advisory Committee on Business Appointments about any appointments they wish to take up within two years of leaving office. This is not necessary for unpaid appointments in non-commercial organisations or appointments in the gift of the Government, such as Prime Ministerial appointments to international organisations. Although it is in the public interest that former Ministers should be able to move into business or other areas of public life, it is equally important that there should be no cause for any suspicion of impropriety about a particular appointment. The Advisory Committee may recommend a delay of up to two years before the appointment is taken up if:
a. an appointment could lead to public concern that the statements and decisions of the Minister, when in Government, have been influenced by the hope or expectation of future employment with the firm or organisation concerned;
b. an employer could make improper use of official information to which a former Minister has had access. [My emphasis — BLB]
Compare with:
Correspondence between Lord Mayhew and Mr Blunkett
From Lord Mayhew of Twysden, Chairman, Advisory Committee on Business Appointments, to The Rt Hon David Blunkett, MP, House of Commons.
21 December 2004I am writing to you, as I do to other Ministers who leave the Government, to advise you how to contact the Advisory Committee on Business Appointments if you wish to seek our advice on any appointment outside Government.
You may recall that the Ministerial Code – A code of conduct and guidance on procedures for Ministers (July 2001) – states that “on leaving office Ministers should seek advice from the independent Advisory Committee on Business Appointments about any appointments they wish to take up within two years of leaving office, other than unpaid appointments in non-commercial organisations or appointments in the gift of the Government …” (paragraph 140)….
From Lord Mayhew to Mr Blunkett
2 March 2005I wrote to you on 21 December to let you know how to get in touch with us if you wished to consider taking up any employment after leaving the Government. I enclose a copy of my letter for convenience.
The system under which former Ministers can seek our advice about outside appointments is a voluntary and advisory one, although the Ministerial Code does state that they should do this. … in accordance with our Guidelines we would normally expect a former Cabinet Minister to wait at least three months before taking up an outside appointment.
… In view of the possibility of a misunderstanding on your part in this case, I thought it right to let you know that, if asked about your appointment with Indepen, we would need to say that we had not been consulted about it.
The Committee is always prepared to offer advice retrospectively, but it would be clear from our report that it was not sought until after the event….
From Mr Blunkett to Lord Mayhew
3 March 2005Dear Patrick
Thank you for your letter dated 2nd March. You are indeed right that there has been a misunderstanding. It was my belief that I should seek your advice if I had any doubt about the nature of the employment and its connection with my role as a Government Minister. My apologies for not realising that, on a voluntary basis, I should have consulted you irrespective of this. …
If there is a problem I would happily meet you but I am also please (sic) to take any advise (sic) on whether you believe I have broken the rules…. [My emphasis — BLB]
It’s hard to avoid the suspicion that Lord Mayhew, or whichever Committee functionary drafts his letters for him, was guilty of mealy-mouthed drafting in failing to make clear the crucial distinction between seeking the Committee’s advice (which is an obligation) and acting on that advice (which, weirdly, is optional). As Sir Alistair Graham, chairman of the committee on standards in public life, has made brutally clear: "undoubtedly there was a breach of the ministerial code", because Mr Blunkett had not sought the committee’s advice. By writing to Mr Blunkett the fatally ambiguous sentence that "The system under which former Ministers can seek our advice about outside appointments is a voluntary and advisory one" (even though it’s immediately qualified), Lord Mayhew left the courtroom door wide open for both misunderstanding and a means of escape.
However, there’s a problem for Mr Blunkett over the timing of his correspondence with Lord Mayhew and that of his subsequent action in taking another directorship, again without seeking the Committee’s advice. As The Times article icily puts it:
The last letter was dated on [sic] March 15. Yet in April, Mr Blunkett repeated the mistake by taking a directorship with DNA Bioscience without consultation.
He’s going to have his work cut out wriggling out of that one. This is surely a crass misjudgement too many. David Blunkett has lost his credibility, convicted himself too many times of failures of judgement in his private and public lives to retain public confidence in his judgement as a senior Cabinet minister, and by his own ill-judged activities made himself a figure of fun. He should resign, or be sacked.
There are two ironies, though, in all this. First, that Mr Blunkett’s ministerial career should have been ruined, not by his disgraceful record as Home Secretary, but by constant ludicrous misjudgements in both his private and his public life; and, secondly, that Tony Blair, who a couple of years ago acted in such treacherous haste to dismiss his close ally and friend Peter Mandelson before, rather than after, taking the trouble to establish whether he had done anything wrong (he almost certainly hadn’t), should allow Blunkett to cling to his Cabinet ministerial job long after the established facts have made it abundantly clear that he ought to go. Loyalty, even selective loyalty, is one thing; upholding high standards of probity in public life is quite another.
Update: These remarks were written on the day before David Blunkett’s resignation; the comments below were written after it.
Brian
Well, it’s all water under the bridge now, but your comments on both Bs are valid. However the wording or the status of the Code still needs clarification I have not been impressed by the “should” let-out. the next sentence – “This is not necessary for unpaid appointments….” – seems to make “should” a polite imperative: an imperative, that is, if you want to follow the Code and so
gain immunity from – what? – any possible objections to your new job. Presumably if you do not choose to follow the Code, which is voluntary, you cannot claim its protection when your choice or speed of re-employment is criticised. What happens then? An ethical PM might on consideration state that he will never offer you another ministerial post. You might be impeached, I suppose, though I suspect that punishment, proportionate to your offence, might not go further than a period in the political wilderness, reduced for good behaviour in some charitable work.
Ronnie,
I’m not sure the “should” ought to be a get out. Even though I have some sympathy with Marcel Berlins in today’s Guardian, when he writes
A lawyer looking at Art 5.29 would read the “should” as a command. Whenever a statute contained “A should consult B” or “A should take into account the following factors”, I saw it as an absolute imperative-failure to consult or take the factors into account left the decision maker open to challenge.
t
Ronnie, Tony,
I think we’re agreed that the wording of the code is potentially misleading, or at any rate open to misunderstanding. Although not a lawyer, I’d be inclined to regard ‘should’ as weaker than ‘shall’ or ‘must’, especially in the context of the Mayhew letter:
This is surely very loose indeed. It makes no attempt to distinguish between the obligation to seek the advice, and the option of disregarding it: and that vagueness is compounded by the passages elsewhere in the Mayhew correspondence where it’s stressed that the advice may be disregarded (with a warning of what will happen if the ex-minister opts to disregard it) but not stressed at all that the advice must/shall/should be sought.
Nevertheless, it was reckless of DB to go ahead with yet another private company appointment without the prior advice of the committee after he had received all the Mayhew letters and had had ample opportunity to consult (and if necessary seek advice on the proper interpretation of) the ministerial code. In human terms we can all recognise that scrutiny of obscure language in documents is especially difficult for a blind person, but it would be unacceptably discriminatory to infer from such a consideration that blind people ought not to be entrusted with high responsibilities because of the extra difficulty they may experience with hard copy documents not available in Braille. This would overturn the admirable service that Blunkett has performed for all blind people by demonstrating that blindness is no bar to very high political office in Britain.
I don’t think Blunkett’s arrogance, populism, illiberalism, self-pity, sentimentality and poor judgement will be much missed from the front benches. But his second and (presumably) irretrievable downfall is undeniably a personal tragedy for a major political figure, especially as it has been triggered by what may fairly be called a technicality and a succession of identical errors partially attributable to bad drafting in the ministerial code and in Mayhew’s letters, and by the mealy-mouthed evasiveness of Mayhew’s language. Moreover I felt bound to admire and salute Blunkett’s dignity, restraint and calmness under fire at his press conference following his resignation at lunch-time today. He even managed to sound convincing in his assertion that he, not Blair or the Cabinet Secretary, had decided that he should resign: no mean feat!
John Hutton’s appointment to succeed him is probably a good one.
Brian
2 Nov 05