By Alison L Young
Sir David Williams Professor of Public Law, University of Cambridge
On Friday 27 May 2022, the Prime Minister announced that he had made changes to the Ministerial Code. The timing of these changes is unusual. To change the code so soon after the publication of the Gray report into ‘partygate’ has led some to suspect that the rules have been changed to make it easier for the Prime Minister to avoid punishment. The Government, however, argues that these changes are in response to the recommendations of the Committee on Standards in Public Life, which reported in December 2021.
Why do these changes matter? Should we be worried about changes to the Ministerial Code when there are more important things to worry about, such as the war in Ukraine and the cost of living crisis?
What is the Ministerial Code?
As its name suggests, the Ministerial Code is meant to guide the behaviour of Government Ministers. Its content stems from the Second World War, in a document – which was then secret – known as the Questions of Procedure for Ministers (QPM). The QPM was first published in 1992. The Ministerial Code was first published in 1997. The Code can be changed by the Prime Minister. Prime Ministers normally reissue the Code, with a new foreword and including any changes they want to make, when they take up office.
The Ministerial Code can be seen in two different ways. On the one hand, it provides a way of ensuring Ministers uphold good standards of behaviour. It includes the seven principles of public life – selflessness, integrity, objectivity, accountability, openness, honesty, and leadership – known as the Nolan Principles. On the other hand, the Ministerial Code also recognises that Ministers only hold office at the discretion of the Prime Minister. The Prime Minister appoints and dismisses Ministers and has ultimate responsibility for upholding and applying the Ministerial Code.
These two perspectives may lead to contradictory conclusions. What if a Minister were to breach the Ministerial Code by, for example, acting in a manner that does not ‘maintain high standards of behaviour’ (Ministerial Code, para 1.1)? Should that Minister be punished – perhaps even having to resign – as they have not upheld good standards of Government? Or should the Prime Minister be able to conclude that, despite this breach of the Code, the Minister in question was still the best person for that Ministerial role and so should remain in office?
What changes were made?
The 2022 Ministerial Code made three main changes to the 2019 Ministerial Code. First, it clarified that there was a range of possible punishments for breaches of the Ministerial Code. These apply to Ministers who have breached the Code, but who nevertheless still have the confidence of the Prime Minister. These new sanctions include ‘some form of public apology, remedial action, or the removal of ministerial salary for a period’ (para 1.7).
Second, it sets out more detail about the role of the Independent Adviser on Ministers’ Interests, currently Lord Geidt. In the 2019 Ministerial Code, if the Prime Minister suspected that the Ministerial Code had been breached, he would consult the Cabinet Secretary to decide whether this breach warranted investigation. If so, the Prime Minister could refer the investigation either to the Cabinet Office or to the Independent Adviser to investigate (para 1.4.a).
The 2022 Ministerial Code now adds that the Independent Adviser may initiate an investigation of an alleged breach of the Code if the Adviser believes that this warrants further investigation. However, he must first consult with the Prime Minister. The revised Code states that the Prime Minister will ‘normally’ give consent to such an investigation.
However, the Prime Minister may raise concerns about a proposed investigation if he thinks it is in the public interest to do so and refuse consent. If consent is withheld, the Independent Adviser may not pursue the investigation. The Independent Adviser may ask for the reasons for refusing to investigate a breach to be made public. However, these reasons will not be made public if to do so would undermine the reasons of public interest that prevented the investigation in the first place (para 1.4.b).
Third, the foreword to the Ministerial Code has changed. The foreword to the 2019 Ministerial Code referred to the need to get Brexit done. This, understandably, has been removed. However, other statements have also been removed. The 2019 foreword referred to the need to ‘uphold the very highest standards of propriety’, including honouring the seven principles of public life and ensuring that there was no ‘bullying or harassment’. These are not repeated in the foreword to the 2022 Code. There is, however, a new paragraph that differs from the foreword to the 2019 Code and other earlier versions of the Ministerial Code, set out below:
‘Thirty years after it was first published, the Ministerial Code continues to fulfil its purpose, guiding my Ministers on how they should act and arrange their affairs. As the Leader of Her Majesty’s Government, my accountability is to Parliament and, via the ballot box, to the British people. We must show every day that we are worthy of this privilege by keeping our promises and delivering on the priorities of the British people.’
Why do these changes matter?
Those critical of the Government are concerned both as to the timing and the content of these changes. The new Code was published in the same week as the Gray report, which investigated allegations of parties taking place in 10 Downing Street during Covid lockdown regulations. The report concluded that ‘what took place at many of these gatherings and the way in which they developed was not in line with Covid guidance at the time’ (page 36), as well as noting the breaches of Covid regulations for which fixed-penalty notices had been issued by the police. Is changing the Ministerial Code to reflect an array of punishments sending a signal that those who broke Covid guidelines, but not the rules, will not have to resign?
The Government could argue in response that the Prime Minister has not changed the expectation that a Minister will normally resign for knowingly misleading Parliament (para 1.3.c). Also, these changes have not come out of the blue. The Committee on Standards of Public Life recommended that the Ministerial Code should detail a range of sanctions that the Prime Minister could issue for breaches of the Ministerial Code, recognising that some breaches of the Code are more severe than others. The Committee recommended that these changes could include apologies and fines, as well as asking a Minister to resign.
However, these were not the only recommendations of the Committee on Standards in Public Life. The Committee also recommended, for example, that the Independent Adviser should be able to investigate alleged breaches of the Ministerial Code and to have the authority to determine whether the Code had been breached. The findings of the Independent Adviser should also be published, 8 weeks after the Adviser had sent his report to the Prime Minister. These changes have not been fully implemented. The Independent Adviser may only initiate an investigation after consulting the Prime Minister, who may decide the investigation is not warranted. Moreover, the Prime Minister may decide that the Cabinet Office, and not the Independent Adviser, is best placed to investigate an alleged breach.
The Committee also decided to amend the definition of ‘leadership’ – one of the seven principles of public life. This amended definition includes a new requirement to ‘treat others with respect’. It also states that leaders should ‘challenge poor behaviour when it occurs’ rather than being ‘willing to challenge’ such behaviour. These amendments are not found in the standards in public life included in the Annex to the 2022 Ministerial Code.
More fundamentally, the Committee on Standards in Public Life recommended that the Ministerial Code should be reconstituted, such that its sole purpose was to provide a code of ethical standards of conduct. This recommendation links to the two perspectives of the Ministerial Code. For the Committee, the Ministerial Code provides for good standards of government. When the Prime Minister applies the Code, it is to uphold these good standards of government.
The new foreword to the Ministerial Code suggests that the Prime Minister does not see this as the sole purpose of the Ministerial Code. The revised Code does still include reference to the need for its provisions to be interpreted against the background of the seven principles of public life. The Prime Minister’s foreword also states that the Code is meant to guide how Ministers act. But the Prime Minister also links this to his accountability to the electorate.
The Prime Minister sees his Government as being worthy of governing if they keep their promise and deliver on the priorities the electorate want. There is no specific reference here to being worthy to govern through upholding good principles of government. Does this suggest that politics and winning the next general election is more important than maintaining good standards of government?
Why should we care?
Whether the Prime Minister attended a party, and for how long, may seem trivial in comparison with the war in Ukraine and the rise in the cost of living, when many are struggling to make ends meet. However, as the Prime Minister notes in his foreword to the new Code, how the Government governs is ‘just as important’ as what the Government achieves.
The UK has a predominantly political constitution. We rely on political checks – through Parliament, the media, and ultimately the electorate – to ensure the government exercises its powers for the public good. This includes ensuring that Ministers refrain from using their powers in a way that undermines the standards of public life.
Whilst the public good requires that the Government does something to alleviate the impact of the rise of the cost of living on those who are struggling, problems arise if that solution is achieved dishonestly or selfishly, or with no transparency or accountability. Without these principles, how will the electorate know if the right support was given to those who needed it, or the costs imposed on those who were best placed to pay?
Principles of good government are important if we are to live in a thriving democracy. It’s also important to ensure we uphold the rule of law. Why should we follow rules if those who make the rules are not behaving properly – or more importantly, when they are not willing to follow the laws they make?