Arguments over the Ministerial Code and the role of the Independent Adviser on Ministers’ Interests are far from over

Recently announced changes to the Ministerial Code demonstrate that the government is unlikely to place it on a statutory basis any time soon. Sir Peter Riddell argues that although some of the revisions are sensible, the new Code demonstrates the government’s determination to assert the privileges of the executive and reflects an increasingly presidential view of the Prime Minister’s role.

The Independent Adviser on Ministers’ Interests is neither fully independent nor entirely an adviser. His hybrid, anomalous position reflects wider tensions between ministers and advisers on standards which have been exacerbated under the current administration – and are unlikely to change after Boris Johnson won a confidence vote on Monday to ensure his survival as Conservative leader and Prime Minister. These tensions have reflected an increasing assertion by the Prime Minister of a presidential view of his role based on the mandate of the ballot box, as distinct from accountability to parliament. The limited changes in the latest version of the Ministerial Code only go a small way to address these concerns.

The public arguments over the Ministerial Code and the Independent Adviser have only partly been caused by the casual attitude of the current Prime Minister towards standards in public life, as highlighted by the repeated frustrations expressed by Lord (Christopher) Geidt, the current Adviser. That has led to widely supported calls from the Committee on Standards in Public Life (CSPL) for a strengthening of his powers.

As with so much in standards in public life, the evolution of the Ministerial Code (originally the more prosaic Questions of Procedure for Ministers) and the creation of the Adviser’s role in 2006 have been the result of a series of allegations and scandals. These exposed the limitations of previous informal understandings and conventions and underlined the need for more formal codes of conduct and independent investigation. The Ministerial Code combines operational guidance about how business in government should be conducted and a list of expectations about ministers’ ethical behaviour in office, based on the seven principles of public life (also known as the Nolan principles).

There have been three interconnected problems. First, who decides on an inquiry? Second, who carries out the investigation? Third, what sanctions are applied? The Prime Minister has so far always been the person responsible for establishing an inquiry into allegations against a minister. For a long time, Cabinet Secretaries themselves carried out inquiries, though this was often an unhappy experience when the Prime Minister was involved or a minister was later found to have lied. And outside lawyers have from time to time been used. While the Adviser has had a greater role in carrying out inquiries in recent years, the power of initiative has remained with the Prime Minister. Similarly, the Adviser has not had the final say on whether the Ministerial Code has been broken, only providing advice to the Prime Minister, who decides whether a breach has occurred. The traditional sanction has been resignation but this has, in practice, meant that smaller breaches previously were often unpunished.

The debate has been transformed by events since 2019 – in particular by the resignation in November 2020 of Alex Allan, the longstanding Independent Adviser, after Boris Johnson brushed aside his nuanced and balanced report into the behaviour of Priti Patel, the Home Secretary. It concluded that she had ‘not consistently met the high standards required by the Ministerial Code of treating her civil servants with consideration and respect’. Allan also complained that other allegations which appeared to justify inquiry had not been investigated, since this could only be done at the request of the Prime Minister. So Allan called for the Independent Adviser to be given the power to initiate inquiries on his own initiative without having the Prime Minister’s consent. Lord Geidt, Allan’s successor, was also frustrated by the limitations of his position, notably over a lack of full disclosure as part of his inquiry into how the redecoration of the Prime Minister’s flat in Downing Street was financed. He has sought greater independence over inquiries.

At the same time, the CSPL produced a report in November 2021, ‘Upholding Standards in Public Life’, proposing a package of what it called ‘a mutually dependent package of reforms’. This recommended a graduated system of sanctions solely in the hands of the Prime Minister, combined with greater independence for the adviser in setting up inquiries and determining breaches of the Code. The key constitutional right of a Prime Minister to determine who is a minister would be retained. But, as Lord (Jonathan) Evans of Weardale, Chair of the CSPL, argued, it is ‘highly unsatisfactory’ that the government accepted the former and not the latter. Much of the political and media comment has mistakenly depicted the government’s announcement of graduated sanctions, such as a public apology or a fine, rather than the sole remedy of a ministerial resignation, as a weakening of the Code, when this represents a sensible and flexible development.

Of far more concern, as Lord Evans highlighted, is that the new process for investigations does not create sufficient independence. The change has been limited. The Independent Adviser can now initiate their own investigations, but only after ‘having consulted the Prime Minister and obtained his consent’. This represents a step forward without fundamentally altering the balance of powers. Lord Geidt said in his Annual Report for 2021-22 that this represents ‘a low level of ambition’. He sought to make the best of this compromise, arguing that his desire to hold investigations has not been frustrated in the past year. He has argued that ‘given the new provision for greater transparency in the event of a Prime Minister intervening to prevent an independently-initiated inquiry from proceeding, I believe that under normal circumstances this would be a workable scheme. The grounds for refusal by a Prime Minister would need to pass a very high standard such as national security. Even then, an Independent Adviser would now generally be able to publish the reasons for a Prime Minister’s refusal’. But recent circumstances have, as he acknowledged, been far from normal. So the test for the credibility of the new arrangements is the willingness of all those covered by the Code, including the Prime Minister, to justify their conduct – which Boris Johnson only belatedly did in claiming that his Fixed Penalty Notice over ‘partygate’ did not breach the Code.

That, of course, leaves the Prime Minister as judge and jury of his own conduct. In his annual report, Lord Geidt noted the danger of ridicule from a circular process. ‘I have attempted to avoid the Independent Adviser offering advice to a Prime Minister about a Prime Minister’s obligations under his own Ministerial Code. If a Prime Minister’s judgement is that there is nothing to investigate or no case to answer, he would be bound to reject such advice, thus forcing the resignation of the Independent Adviser’.

Underlying the government’s response is a determination to assert the privileges of the executive. In its statement on revisions to the Code, the government says, in paragraph 6: ‘As the Prime Minister’s guidance to Ministers, the Ministerial Code and its application is a matter for the executive – and as with all matters of the prerogative – wholly separate from the legislature’. So there is an outright rejection of legislating in relation to the Code or the Independent Adviser (who remains a direct appointment not subject to competition). Otherwise, this would ‘undermine the constitutional settlement by conflating the executive and the legislature’ and provide an additional route for drawing in the judiciary.

This reflects an increasingly presidential view of the Prime Minister’s role. Accountability to parliament is mentioned but equal stress is laid on accountability ‘via the ballot box’ to the British people. This populist presidentialism also surfaced ahead of the confidence vote on 6 June as some defenders of Boris Johnson’s leadership argued that Conservative MPs should not seek to overturn the votes of the British people.

The House of Commons is reluctant to be pushed into scrutiny of the Ministerial Code. In March 1997, shortly before the general election, the Commons adopted a resolution stating the ‘paramount importance’ of ministers giving truthful and accurate information to parliament, correcting any inadvertent errors and offering their resignation if they ‘knowingly’ mislead parliament. This followed a long inquiry into allegedly misleading answers given during the arms for Iraq affair. That is precisely the issue about to be investigated by the Commons Privileges Committee over Boris Johnson’s statements to the Commons. This is a slippery area, and not just because of the problems of getting bogged down in the meaning of ‘knowingly’.

Mike Gordon, Professor of Constitutional Law at the University of Liverpool, has argued that ‘if the Ministerial Code becomes a de facto replacement for the deeper conventions of ministerial responsibility rather than a supplement to it, it imports key structural problems: it emphasises the PM-Cabinet accountability relationship over the government-parliament relationship’. That is a particular problem when the Prime Minister’s conduct is the subject of scrutiny at the same time as he remains the ultimate arbiter of ethical rules within government.

The arguments over the role of the Ministerial Code, and the status of investigations into alleged breaches of it, are far from over.

About the author

Sir Peter Riddell is an Honorary Professor at the UCL Constitution Unit. He is a former Commissioner for Public Appointments and former Director of the Institute for Government.