Terms of reference

The Independent Adviser on Ministerial Standards is appointed by the First Minister to advise them on matters relating to the Ministerial Code. The post-holder is independent of government and expected to provide impartial advice to the First Minister. The post-holder is required to observe the Seven Principles of Public Life.

1.1 Under paragraph 5.1 of the Ministerial Code, ministers must ensure that no conflict arises, or could reasonably be perceived to arise, between their public duties and their private interests, financial or otherwise. It is the personal responsibility of each minister to decide whether and what action is needed to avoid a conflict or the perception of a conflict. In doing so they must take account of advice received from the Permanent Secretary and from the Independent Adviser, where such advice has been requested by the First Minister.

1.2 When appointed to each new office, ministers must provide the Permanent Secretary with a full list in writing of all interests which might be thought to give rise to a conflict. This must be provided within 4 weeks of taking up post (paragraph 5.2). The list should cover interests of the minister’s spouse or partner and close family which might be thought to give rise to a conflict. Ministers also have a duty to ensure their declarations are kept up to date and will be requested formally to review their declarations on an annual basis (paragraph 5.4).

1.3 At the request of the First Minister or the Permanent Secretary, the Independent Advisor may also provide comment and advise upon the declarations of interest made by ministers; the content of the proposed published register of ministerial interests and any measures proposed to be put in place to mitigate identified conflicts of interest of either a constituency or personal nature.

1.4 Where such a request has been made, the Independent Adviser must review any information provided by a minister (paragraph 3.1 of these terms of reference) and may, in confidence, provide advice to that minister on any action that should be taken by the minister in order to uphold the standards set out in the Ministerial Code.

1.5 Personal information disclosed to the Independent Adviser will be treated in confidence.

1.6 Advice on the handling of interests may also be provided on an ad-hoc basis. A minister to whom advice is given must provide the Independent Adviser with a record of what action has been taken in response to the advice.

2.1 Under the Ministerial Code, the First Minister will decide how allegations about a breach of the code will be investigated and will consult the Permanent Secretary, or the Welsh Government Propriety and Ethics team on behalf of the Permanent Secretary, for initial advice (paragraph 1.10). The First Minister may, at their discretion, refer the complaint to the Independent Adviser on Ministerial Standards (paragraph 1.11).

2.2 When this happens, the Independent Adviser will investigate allegations that the Ministerial Code has been breached and prepare a report on findings for the First Minister. The Independent Advisor will be given a free and uninterrupted hand to conduct the investigation as they see fit, and the Welsh Government ministers and civil servants will co-operate fully with the investigation. Where the First Minister commissions an investigation, terms of reference will be published at the outset of the investigation with the ensuing report also being published in full, subject to any competing legal obligations or exemptions.

2.3 The Independent Advisor will be expected to include in their report their view on whether there has been a breach of the Ministerial Code and may, if they wish, include any mitigating factors which may be relevant. If they find that the Ministerial Code has been breached, then they are not expected to make a recommendation on possible sanctions unless specifically asked to do so by the First Minister. It is not part of the responsibilities of the Independent Advisor to undertake investigations on their own initiative.

2.4 Following an investigation carried out by the Independent Adviser, they may require that any advice provided to the First Minister on the outcome of such an investigation is published in a timely manner.

2.5 Where a minister believes they may have failed to uphold the standards set by the Ministerial Code, they must write to the First Minister. In such circumstances the First Minister will follow the approach set out in paragraphs 1.10 and 1.11 of the Ministerial Code and may refer the matter to the Independent Adviser.

2.6 Any decision on what action to take as a result of a breach of the code, and the appropriate consequences of any such breach, are matters for the First Minister (paragraph 1.7).

3.1 Under paragraph 5.27 of the Ministerial Code, former ministers are expected to abide by the Business Appointments Rules and with the advice provided by the Independent Adviser.

3.2 Former ministers will submit an application for advice from the Independent Adviser, who will provide that advice in writing. Details of the advice provided will be published if a role is announced or taken up.

3.3 Where there is reason to consider that a former minister has not upheld the standards expected under the Business Appointment Rules, the Independent Adviser may investigate the matter and provide advice to the First Minister. Details of any failure to uphold the standards will be published.

3.4 The Independent Adviser will be consulted prior to any amendments being made to the Business Appointment Rules.

4.1 A minister must provide the Independent Adviser with any information the Independent Adviser reasonably requires for the purposes of discharging the responsibilities set out in these terms of reference. Where the Independent Adviser considers that a minister is not providing such information, they will notify the First Minister.

4.2 Information provided to the Independent Adviser for the purposes of their functions is provided in confidence. The Independent Adviser may publish information provided to them, including in summarised form, if they consider this is necessary to discharge their responsibilities.

4.3 The Independent Adviser may require a minister to publish information relating to adherence to the Ministerial Code.

5.1 When requested by the First Minister, the Independent Adviser may be required to comment upon proposed changes to the Ministerial Code.

5.2 The Independent Adviser may, at the request of a minister, provide the minister, in confidence, with general advice in relation to the Ministerial Code. The First Minister will be notified of any such request.

5.3 The Independent Adviser will also be expected to provide a contribution to the Annual Report on actions in relation to the Ministerial Code.