Making an application under the Business Appointment Rules: guidance for ministers

The rules seek to protect the integrity of government, while enabling individuals to move to roles outside of government. For former ministers, the rules are administered by the Independent Adviser on Ministerial Standards.

Under the rules, for a period of 2 years after leaving office, former ministers need to submit an application form to seek the advice of the Independent Adviser on Ministerial Standards for all work they wish to take up, including paid and unpaid appointments.

The expectation to abide by the rules is set out in section 5.27 of the Ministerial Code.

There are 2 types of application:

• Level 1 for unpaid roles and other appointments where the risks to government integrity are low.
• Level 2 for all other roles and appointments, including paid roles and establishing consultancies.

The Welsh Government recognises that there are a range of roles that do not pose as significant a risk to government integrity as others, for example, unpaid work or academic positions or journalism roles.

For such positions, a briefer level 1 application form and a streamlined advice process will be used.

Depending on the content in the application, you may be asked to provide further information.

You should submit a level 1 application form if your prospective role falls into any of the role types listed below. Please take note of the additional information against each role, however, as this sets out exceptions.

• Unpaid roles - Roles are only considered unpaid if there is no reasonable expectation of any form of remuneration – such as salary, bonuses and share options – including where the remuneration will be waived or donated to charity or other recipients in lieu of you receiving it.
  If this type of remuneration is to be made, then you should use the Level 2 form.
• Non-executive charitable roles, e.g. trusteeships - Working for a charity in an executive capacity does not fall into this category and a Level 2 form should be used.
• Academic roles, such as teaching, research or peer review - Working in non-academic roles in educational institutions does not fall into this category and a Level 2 form should be used.
• Journalism and media appearances, e.g. writing a newspaper column, series of television, radio or podcast appearances - Corporate or management roles in media organisations do not fall into this category and a Level 2 form should be used.
  One-off media appearances do not require any application (see further detail below).
• Joining speaking agencies - One-off speaking engagements do not require any application (see further detail below).

Level 1 application form

For all other paid roles, including proposals to establish consultancies, a Level 2 application must be made.

When completing your Level 2 application form, you need to provide clear evidence that the prospective role you wish to undertake is appropriate for someone who held your position in government.

This includes full, detailed information about the role and any involvement you had in matters relating to the role during your time as a minister. Relevant government departments will be asked to verify this information and provide a view on appropriate mitigations.

The steps in the process are as follows:

Application process - steps

The below sets out an example of the main steps applications go through:

1. Applicant completes application form and sends to the Independent Adviser on Ministerial Standards by email to independentadviserwales@gov.wales.
2. The Independent Adviser consults the relevant DG / Director of the applicant’s former department(s). Where appropriate, other relevant departments will also be contacted.
3. The Independent Adviser considers the information provided by departments and may request additional information where necessary.
4. The Independent Adviser develops a provisional recommendation on the appointment and the conditions that should be applied under the Welsh Government’s Business Appointment Rules.
5. The Independent Adviser provides the applicant with their provisional recommendation.
6. The applicant is asked to confirm if they are content with the provisional recommendation including the conditions attached to the appointment. This is an opportunity for the applicant to ask questions or provide further information where relevant.
7. The Independent Adviser’s final advice is sent to the applicant, once they have confirmed they are content to accept and abide by the advice.
8. The Independent Adviser’s office will inform the prospective employer of the advice and the conditions that are expected to be adhered to at this stage.
9. The applicant must inform the Independent Adviser if/when the appointment is taken up/announced.
10. Once notified or made aware that the appointment is taken up, a summary of the Independent Adviser’s advice is published on GOV.WALES.

Level 2 application form

If you are unsure about whether you need to make an application or which type of application you should submit, please contact independentadviserwales@gov.wales. Early approaches are encouraged, and the Independent Adviser can provide advice at any stage in the recruitment/offer process as long as it is before the role is announced or taken up.

As a guide, the Independent Adviser aims to provide advice within 2 weeks of receipt of your application. However, the complexity of some applications, and the need to seek information from departments, means that it may not always be possible to meet this timeframe. The Independent Adviser Secretariat will contact you if this is the case.

You must not enter into any contractual agreement with a potential employer or client until you have received the Independent Adviser’s final advice. It is a breach of the rules to take up or announce a role before the Independent Adviser has provided their full and final advice.

Following receipt, your application will be considered by relevant government departments and the Independent Adviser. You will be provided with provisional advice before this is finalised by the Independent Adviser.

Any role taken up will be subject to the following standard conditions for a period of two years after leaving office:

Standard conditions

• Privileged information condition - You can draw on skills and experience gained from your time in office. However, you must not, at any time, draw on (or disclose for the benefit of yourself or others) any privileged information gained in office (see ‘Further guidance’ below for more information).
• Lobbying condition - Any contact with the government, directly or indirectly, must only be where it could not reasonably be perceived as lobbying (see ‘Further guidance’ below for more information).
• Contracts and bids condition - You must not work or advise on any bids to secure governmental funding or contracts. You may only work on or advise on the subject matter of existing contracts the organisation may have with the government (or related matters), provided you do not draw on any privileged information or contacts from your time in office (as per the condition above).

Additional conditions

Where an application gives rise to greater risks under the Business Appointment Rules, further conditions will be considered. For example, if there is a strong overlap between an applicant’s former ministerial responsibilities and the role they are seeking to take up.

Examples of the conditions the Independent Adviser may apply in more complex cases include restrictions on the use of contacts gained whilst in office, conditions preventing working on specific subject areas or that a waiting period should be applied before the role is taken up.

There may be circumstances where the risks presented by a role cannot be mitigated. In such cases the Independent Adviser will advise that it is inappropriate for an applicant to take the position during the two-year period in which the Business Appointment Rules apply.

There are generally lower risks where applicants are returning to a former profession / career and this will be taken into consideration.

Should there be cause to consider the rules have been breached, the First Minister may ask the Independent Adviser to investigate the matter.

This will include:

• Consideration of whether the rules were followed in part or in full in terms of advice being sought before a role was taken up.
• Whether the role was taken up or announced prior to full and final advice being provided by the Independent Adviser.
• Whether the advice provided by the Independent Adviser was complied with.

Upon completing the investigation, the Independent Adviser will provide advice to the First Minister, with that advice being published. The Independent Adviser may also include information on breaches of the rules in their contribution to the annual report.

It is important to understand that the integrity of government is the sole focus of the rules, and advice provided to applicants will express a view on this issue only. Any published advice letter does not endorse the venture or its remuneration as being suitable for a former minister - that is a matter for the individual and/or their employer to justify.

Once you have taken up, or announced your appointment, the Independent Adviser will publish their advice.  If you do not take up a role, the advice will not be published.

Personal information is processed in accordance with the General Data Protection Regulation (GDPR). More detail on how your personal information is handled can be found in the relevant privacy statement.

The Independent Adviser responds to requests for information held that is not already published in accordance with the provisions of the Freedom of Information Act 2000.

Not disclosing privileged information

‘Privileged information’ means official information to which a minister has had access as a consequence of their work in government, which has not been made publicly available. As well as your obligation to protect privileged information, you may also be subject to other duties of confidentiality such as the Official Secrets Act as well as others. Further information on obligations of former ministers after leaving office can be found in sections 6.14, 6.16 and 8.10 of the Ministerial Code.

Lobbying conditions/restrictions

It is a standard condition under the rules, that former ministers should not undertake activity that could be regarded to be lobbying during the 2 years after they leave office. This means you should not engage in communication with government (including ministers, special advisers and officials/public office holders), wherever it takes place, to influence decisions, policies, or the awarding of contracts or funding for your own benefit or that of an organisation you represent.

Contact with former colleagues in government is permissible where it is clearly unrelated to lobbying, including in a social or party-political context.

The rules also allow for communication with government as a routine part of a role where such activity would not be improper. Communication which is likely to be considered in keeping with the lobbying condition may include:

• sharing factual information transparently (reporting via published research, opinion pieces, reports, annual reports, or through formal consultation), or
• using existing and therefore implicitly agreed frameworks for contacts within government (but not making use of privileged networks) for routine communication. This includes: asking for/providing factual information/updates and responding to requests from the government (e.g. an invitation to a meeting or to participate in a roundtable).

Routine communication will be considered lobbying if it involves:

• making contact with government on behalf of the organisation to make introductions or ask for meetings
• asking the government to make a decision, or
• proactively promoting the organisation’s position on matters to the government - unless being done through a formal consultations process or another process initiated by the government.

It is also expected that applicants will not take up roles that involve ‘in-house’ lobbying or join a lobbying firm without their role being clearly ring-fenced from any lobbying work with a commitment from the employer to demonstrate how the applicant’s work will be separated from lobbying.

Setting up an independent consultancy

Seeking advice on setting up an independent consultancy is the first step in the process. You will need to submit an application for advice for each client you intend to accept so that the nature of the work you will be undertaking for the client can be assessed in light of your previous ministerial role. All applications to set up an independent consultancy will therefore have a condition applied requiring an applicant to return for advice for each commission.

Unknown clients

Where a prospective employer has unknown clients, the Independent Adviser will not be able to assess the risks associated with each one. In these cases a restriction will normally be applied to limit the scope of your role so as to avoid any conflicts that may arise in relation to your former ministerial responsibilities. This will mean that you will not be required to submit an application form for each client.

Articles, broadcasts, podcasts and speeches

The rules do not regard ‘one-off’ activities such as speeches, broadcasts, or newspaper articles as ‘appointments or employment’. There is no need to submit an application under the rules. It is nonetheless expected that applicants uphold the highest standard of propriety, including acting in accordance with the Seven Principles of Public Life and their ongoing duty of confidentiality in undertaking such activities.