A commission chaired by former Attorney General Dominic Grieve recently published a report on the current state of UK governance, which has identified substantial problems and made recommendations to improve matters. Here, Dominic outlines the report’s key conclusions and recommendations, ahead of an online Constitution Unit event at which he and fellow commissioner Helen MacNamara will discuss the report in greater detail and answer audience questions.

Introduction

The origin of this project was a shared concern amongst the Commissioners who came together to produce it, that the institutions which underpin our parliamentary democracy are losing credibility. This is certainly the view of the public. A 2023 Constitution Unit survey has shown that only 38% of respondents were ‘very satisfied’ or ‘fairly satisfied’ with the way UK democracy operates. In contrast 52% were dissatisfied. The same percentage agreed with the statement that ‘politicians tend to follow lower ethical standards than ordinary citizens’. Yet the same politicians are the lawmakers and governors who expect others to respect the rules they create. 

It should therefore come as little surprise that 78% of respondents also considered that ‘healthy democracy requires that politicians always act within the rules’. Yet in recent years there is plenty of evidence that this has not been happening. Government ministers have been found to be ignoring the ministerial code of conduct under which they are supposed to operate. When they have, nothing has been done about it. We have had a Prime Minister, Boris Johnson, who was found by the Commons Privileges Committee to have deliberately misled parliament. The principle that appointees for life to the House of Lords as legislators in a revising chamber should be of conspicuous integrity, has been shown to be capable of being flouted at Prime Ministerial will. The Electoral Commission, which was created to ensure that elections should be free from improper interference by the government or other interests, has had its powers and independence reduced.  It has become more obvious than ever, particularly during the Covid-19 pandemic, that the powerful degree of control that a government exercises over parliament is not conducive to the enactment of properly scrutinised primary laws and secondary legislation.

As a group, the Commissioners bring together the experience of politicians from different political parties, of senior members of the the civil service, of practitioners in public administration, academic constitutional study and the legal system. But central to our work is that it is not aimed against or intended to support any political party. Nor have we sought to consider issues of major constitutional change. They are of course an important topic of debate. But we have deliberately confined our consideration to how practical and easily implementable changes could make a positive difference to how our constitution works and how public confidence in its functioning can be restored.

We have made 11 sets of recommendations which cover four broad themes. The first is to restore high standards of integrity in public office by providing greater clarity of expectations and a stronger and more supportive structure with effective investigation and enforcement of any misconduct. The second is to reinforce the role of parliament to improve the quality of national debate and legislation. The third is to try to ensure better working between ministers and civil servants and to re-establish the UK Civil Service as world leading administrators, with greater clarity as to the role of politically appointed special advisers (Spads). The last is to protect our democracy by making the Electoral Commission a more effective watchdog.

The recommendations

In the first two we focus on key changes to the Ministerial Code. The Code is currently rather sprawling and under the control of the PM, and the ‘independent adviser’ on the Code is not in reality independent at all. We suggest that the Code should set out core ministerial responsibilities and that the ethics part of it be put on a statutory footing, including duties to act in the national interest, to uphold the rule of law, to account truthfully to parliament, avoid conflicts of interest and uphold the political impartiality of the Civil Service. These duties would be enforced by a Code Commissioner with statutory powers to investigate Code breaches. While final decisions on sanctions would stay with the PM, they would have to publish reasons for any departure from the Commissioner’s recommendation. The Commissioner would also maintain a register of potential conflicts of interest of Ministers and Spads with the Civil Service Commission doing the same for senior civil servants. Through liaison with the Commissioners for standards in the Commons and the Lords it should be possible to put in place a system which is both more transparent and supportive for MPs and ministers in ensuring conflicts of interest are avoided and the public are reassured that these are not occurring. Again, the Commissioner would investigate any breach by a minister and the PM would have to publish an explanation of any departure from a recommended sanction.

A definitive guide to standards in public life should be commissioned to which public bodies and individuals in public life are subject, fully incorporating the Nolan Principles. Training on those principles should be mandatory. We consider that the Committee on Standards in Public Life should have an enhanced role in monitoring the way the system works.

In recommendation 3 we look at appointments to the House of Lords. At present the House of Lords Appointments Commission (HOLAC) nominates just two independent persons a year to be Crossbench peers. But it also has a role vetting every Prime Ministerial appointment for propriety. The problem is that a PM can ignore HOLAC’s views. We recommend that HOLAC be put on a statutory footing as a wholly independent body. Its criteria should be expanded to include suitability as well as propriety, including an ability to contribute to the crucial legislative scrutiny work in the Lords. The Chair should report to parliament. The PM would be unable to recommend to the Sovereign any person for appointment who was not approved by HOLAC, including any person nominated from any source.

Another area of concern has been the taking up of business appointments by former ministers and senior civil servants, which has been perceived as encouraging unhealthy and potentially corrupt relationships between business and government. There is an Advisory Committee on Business Appointments (ACOBA) with the power to delay civil servants taking up jobs in the private sector where a conflict of interest might exist. But in respect of ministers the power is purely advisory. It can be (and has been) ignored. Our proposal would put ACOBA on a statutory footing with the power to enforce the Business Appointment Rules and make recommendations, as movement between the public and private sectors can be beneficial to both.  All ministers would be required on appointment to sign a deed that enables the rules to be enforced against them if they are breached.

Our Honours system has been an effective and accepted way of rewarding public service. But the control of the system by Prime Ministers has allowed it to be undermined by allowing ‘political’ honours to be dispensed as form of cronyism and reward for political support and donations to political parties. Under our proposals, the PM would no longer be able to make personal recommendations to the Sovereign for an honour. All nominations, including from the PM, would go to the existing independent Honours committees and the main committee would have ultimate power to approve or reject a nominee. The principles governing the honours system and the criteria for a nomination to be approved should be explicitly stated and published.

Our recommendations 9 and 10 centre on the relationship between ministers and the Civil Service and the role and appointment of special advisers. We recommend that the Constitutional Reform and Governance Act 2010 (CRAG) should be amended so that ministers cannot direct civil servants to act in contradiction of the Civil Service Code, as has happened in recent years over governments breaching their own legal obligations. Ministerial directions to civil servants to act contrary to the advice they have received on a matter of importance should be recorded properly and provided to the National Audit Office and parliament. It would also be beneficial to enhance the roles of departmental permanent secretaries. They should no longer operate on five-year fixed-term contracts but hold office subject to standards of performance and delivery. They should be directly accountable to parliament for the operation of their department and for the veracity of any statement made on its behalf, as well as in relation to Freedom of Information requests, public records, public appointments and use of public money. The PM should set clear objectives for each department and these should be public. The Civil Service Commission should have an enhanced role on monitoring the effectiveness of the Civil Service and making recommendations for improvement. We were also of the view that a Royal Commission on the Civil Service is needed. The Service faces new challenges to its effectiveness that could not be envisaged when it took on its current professional form and such a review would help focus its future development.

Spads play an important role in helping ministers. But the growth in their numbers and influence has created ambiguities and tensions impacting both on them personally and the effectiveness of government and at times bringing government into disrepute through their actions. To address this the Spad code of conduct should be specific about different Spad functions such as communications and policy development, and the chain of command and accountability made clear. Secretaries of State should have a Ministerial Code responsibility for ensuring their Spads observe the Spad code. All Spads should have induction and training on the ethics and standards required by their code, basic employment rights, and an identified individual within Number 10 to refer to over any issues in their work. Spads should not hold or stand for political office whilst doing their role. There should be a fixed limit on their numbers as a whole but flexibility in their deployment across government.

Reinforcing the role of the Commons and the quality of legislation is a challenging topic and often viewed with hostility by the Executive as potentially fettering its freedom of action. But we believe that it needs to be addressed to help ensure better governance. The Commons should have greater control of its business (something which was also recommended in a 2021 report by the Unit) with Business motions being substantive and amendable. Select committees should have allocated time to debate their reports on the floor of the House and be able to move substantive motions on them. There should be greater flexibility in changing the Standing Orders of the House which regulate its business, if there is evidence of a majority desiring it.  Select Committees should have an appropriate power to summon ministers, senior civil servants ands Spads before them.  MPs should have to approve any prorogation or early dissolution of parliament and choose the period of any adjournment. But powers should not be used abusively. The scope of a Humble Address to obtain documents, for example, should not be used to obtain documents covered by conventions on legal confidentiality or secrecy on national security grounds.

Linked to these proposals are ones for the better control of secondary legislation (SIs), which now constitutes the principal source of new laws affecting the public. The government and parliament should agree a memorandum setting out the limits and principles on the use of SIs and on every subsequent piece of primary legislation publish a statement of how the powers in it to create secondary legislation meet the requirements of the memorandum. Henry VIII powers (to amend primary legislation by SIs) should be prohibited as should skeleton bills which allow for SIs to be made without reference to the bill’s content. We also consider that the procedures of both Commons and Lords should be amended to allow for better scrutiny of SIs.

Finally in our list of recommendations is our concern that the role of the Electoral Commission as guardian of the integrity of our elections has been downgraded. It should be chaired by a recently retired High Court judge or equivalent and should get back its power to prosecute, which was removed by section 19 of the Elections Act 2022. It should have adequate investigative powers and resources. The maximum fine for electoral finance breaches should be raised to £500,000 or 4% of total campaign spend, whichever is the larger. Unincorporated associations should be required to disclose the source of their funding when they make donations to a political party. More generally, electoral law could benefit from simplification and the Electoral Commission should be able to report and make recommendations to parliament on how it sees the system working and on any needed improvements.

Conclusion           

The proposals our Governance Project have set out are intended to be evolutionary. They are not complex or costly to implement. The coming general election offers all mainstream political parties that say they seek to maintain high standards of integrity and probity in government the opportunity to consider the serious collapse in public confidence and act accordingly. We hope that our suggestions, which can be looked at individually or as a package of measures, offer a way forward. We believe that if implemented they all have the capacity to contribute to the much better governance of our country.

About the author

Dominic Grieve KC is Chair of the UK Governance Project and a former Attorney General for England and Wales.