Guidance

How to make an application to ACOBA (for senior Crown servants at grade SCS3 and above, or equivalent)

Published 21 December 2016

Background

The government’s Business Appointment Rules (the Rules) apply to all ministers and Crown servants. The Rules seek to protect the integrity of government, while enabling individuals to move to roles outside of government. The Rules are owned by the Cabinet Office and administered by the Advisory Committee on Business Appointments (ACOBA) at the most senior level and by departments in all other cases.

It is important to understand that the integrity of government is the sole focus of ACOBA, and it will express a view only on that single issue. Any advice letter published does not endorse the venture or its remuneration as a suitable one for a former official - that is a matter for the individual to justify publicly.

Under the Rules, former ministers and senior Crown servants (DG level and above) need to seek ACOBA’s advice for all work they wish to take up after leaving government, this includes paid and unpaid appointments.

When completing the application form, applicants are expected to provide clear evidence to demonstrate that the role is appropriate for someone who held their position in government. This includes detailed information about the role they wish to take up and their involvement in relevant matters in office. Applicants must provide as much information as possible. Relevant government departments will be asked to verify this information and provide a view.

All material information will be put into the public domain once the role is subsequently taken up. Until that point, information will be treated in strict confidence.

Timing

If an applicant is unsure whether an application is required in a particular case, please contact ACOBA in the first instance. Early approaches are encouraged and ACOBA can provide advice at any stage in the recruitment/offer process as long as it is before the role is announced or taken up.

Applicants must not enter into any contractual agreement with a potential employer or client until they have received the final decision. It is a breach of the government’s Rules to take up or announce a role before ACOBA has provided its full and final advice.

What to expect - ACOBA’s advice

Unpaid work

ACOBA considers ‘unpaid’ work to be an appointment or employment where no remuneration of any kind is received for the role. Applicants must declare where it is agreed or anticipated they may receive remuneration or some other compensation at some stage in the future - such applications will not be treated as unpaid.

Generally, ACOBA’s experience is that the risks related to unpaid roles are limited. The purpose of the Rules is to protect the integrity of government by considering the real and perceived risks associated with former ministers and Crown servants joining outside organisations. Those risks include: use of privileged access to contacts and information to the benefit of themselves or those they represent. The Rules also seek to mitigate the risk an individual may make decisions or take action in office in expectation of rewards, on leaving government. These risks are significantly limited in unpaid cases due to the lack of financial gain to the individual. These cases will normally be subject to the standard conditions below, after confirming the details of your application with the relevant department.

Speaking Agencies

The Committee does not consider joining a speaking agency raises any particular concerns under the government’s Business Appointment Rules, provided it is subject to standard conditions which prevent improper use of information and influence. These cases will normally be subject to the standard conditions below after checking with your former department. It is an individual’s responsibility to manage the propriety of the specific pieces of work undertaken.

Standard Waiting Period

The Rules state that a minimum waiting period of three months from the date of leaving office to taking up an appointment or employment will be expected when the former official was a Cabinet Ministers or a Permanent Secretary or equivalent, and may also be applied to other applicants ifACOBA believes this to be warranted by the circumstances of the individual case.

Standard Conditions

There are a set of conditions that individuals can expect ACOBA to apply in all cases, as set out below:

• Privileged information conditions - You can draw on skills and experience gained from your time in office. However you must not, at any time, draw on any privileged information gained in office.
• Lobbying condition - Any contact with the government, directly or indirectly must only be where it could not reasonably be perceived as lobbying.
• 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 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).
• Standard waiting periods - The government’s Rules set out standard waiting periods of a minimum of three months for former Permanent Secretaries, Cabinet Ministers and equivalents.

It is ACOBA’s experience that there are lower risks where applicants are returning to a former profession/ career. This is due to the experience gained by applicants in the sector before joining office. Therefore, where an applicant is returning to a former profession/ career this will be taken into consideration as a mitigating factor.

Seeking advice on setting up an independent consultancy is just the first step in the process. Each and every client must be submitted to ACOBA for advice. So, in all applications to set up an independent consultancy:

• Before accepting any commissions for the independent consultancy and or/before extending or otherwise changing the nature of any commissions, applicants should seek advice from the Committee. The Committee will decide whether each commission is consistent with the terms of the consultancy and consider any relevant factors under the government’s Business Appointment Rules.

In advisory or consultancy type firms where the employer has unknown clients:

• Where the client(s) the applicant may work with are not made public, the Committee cannot assess all the risks associated. The Committee will normally apply a restriction to limit the scope of the role due the potential conflicts with their responsibilities in office that may arise.

Where there is significant risk associated with contacts an applicant has developed in commercial organisations or foreign governments:

• Applicants are expected to observe acceptable standards of probity, consistent with the behaviour required as a former minister when working and engaging with contacts in commercial organisations and other governments which they have gained as a result of their time in office. In particular, they must not lobby any such contacts for the purposes of securing business.

Where applications give rise to greater risks under the government’s Business Appointment Rules, further conditions will be considered.

Where there is a strong overlap between an applicant’s responsibilities in office and the role they seek to take up, significant risks are more likely to arise. For example, where an applicant has had:

• decision making responsibility for matters affecting the sector and/or organisation directly
• regulatory and/or policy responsibility for the sector in which the organisation operates
• access to sensitive information on unannounced policy or commercially sensitive information

Where the application raises significant risks under the government’s Rules that cannot be mitigated by the minimum conditions set as standard, ACOBA will consider:

• Restrictions - where there are risks associated with information and contacts gained in office, conditions which prevent working on specific matters will likely be considered. For example, reducing the scope of a proposed role in specific sectors and/or subject or policy areas.
• A waiting period - to put a gap between access to information from an applicant’s time in office and taking up a role.
• Suitability - if conditions cannot mitigate the risks. For example, where an applicant has commercially sensitive information from their time in government, it is not always possible to mitigate the associated risks by applying conditions or a delay. In such cases, ACOBA will advise that it is inappropriate for an applicant to take up such a role.

Where the applicant has made decisions affecting the organisation directly, or has access to sensitive information that may offer an unfair advantage to the organisation, applicants are expected to demonstrate why it would not be improper, under the government’s Rules, to take up the role.

Speaking Engagements, Media Appearances and Newspaper Articles

ACOBA does not regard ‘one-off’ activities such as speeches, broadcasts, or newspaper articles as ‘appointments or employment’ under the government’s Rules. However, 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. If applicants intend to enter into a longer term arrangement, e.g. to join a speakers’ agency, plan a series of remunerated speeches or write a regular newspaper column, they should submit an application before accepting this work.

If an applicant is unsure whether an application is required in a particular case, please contact ACOBA in the first instance. Early approaches are encouraged and ACOBA can provide advice at any stage in the recruitment/offer process as long as it is before the role is announced or taken up.

Confidentiality and transparency

It is ACOBA’s practice to publish its advice letters once the relevant appointment has been taken up or announced; and to publish any breaches of the government’s Rules - by placing details on its website and in its annual report.

ACOBA handles personal information in accordance with the General Data Protection Regulation (GDPR). More detail on how we handle your personal information can be found in our privacy statement.

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

Steps in applications from former Crown servants

1. Applicant completes application parts 1 & 2 of the application form and submits internally for the countersigning officer at the relevant department and their HR department to consider.

2. Department completes application form and sends to ACOBA

3. ACOBA considers information provided and makes any necessary additional requests for information

4. ACOBA considers the application; and comes to a majority view on the appointment and conditions that should be applied to the appointment, under the Government’s Business Appointment Rules

5. ACOBA provides applicant with provisional recommendation

6. The applicant is asked to confirm if they are content to accept and abide by the provisional advice: the conditions attached to the appointment. This is an opportunity for the applicant to ask questions or provide further information where necessary. In some cases, an applicant may meet with ACOBA.

7. ACOBA’s recommendation is made to the Prime Minister, or the appropriate decision maker in the case[footnote 1].

8. Once a final decision is made, the department and applicant are informed. The department is responsible for notifying the new employer of ACOBA’s advice .Applicant is asked to inform ACOBA if/when the appointment is taken up/announced.

9. If notified or made aware the appointment is taken up, ACOBA’s advice is published on it’s website.

10. Advice is provided to the Foreign Secretary if the applicant is from the diplomatic service; to the Defence Secretary for most Ministry of Defence staff, both civilian and military; to the First Ministers of Scotland and Wales in the case of staff working in those Devolved Administrations; to the relevant Permanent Secretary if the applicant is a Special Adviser; and to the Prime Minister for all other Crown servants. ↩