Ministerial standards in Westminster and beyond

Ministerial standards and the mechanisms for enforcing them have been in the news more than usual over the course of the last twelve months, making clear the limitations of the current rules and systems of regulating ministerial behaviour. In May, the Unit hosted an expert panel to discuss how the standards regimes work in the UK, and what reforms might be desirable. Dave Busfield-Birch summarises the contributions.

On 24 May, the Constitution Unit hosted an online webinar entitled Ministerial Standards in Westminster and Beyond. Unit founder Robert Hazell chaired the event, which had three distinguished panellists: Alex Allan, former independent adviser to the Prime Minister on ministerial interests; Susan Deacon, a former minister in Scotland who also sat on the Scottish Parliament’s Standards and Procedures committees; and Richard Thomas, a member of the Advisory Committee on Business Appointments (ACOBA), which advises ministers and senior officials on potential conflicts of interest when they take up appointments after leaving Whitehall.

This post summarises the main contributions of the speakers: the full event, including the lively and informative Q&A, is available on our YouTube page.

Alex Allan

Alex Allan started his contribution by offering a little bit of history about the ‘rather strange document’ that is the Ministerial Code. Something similar to the Code has been in place since the Attlee government, but perhaps the most significant changes came in 1995 when the Committee on Standards in Public Life (CSPL) produced its first report, and outlined ‘Seven Principles of Public Life’, which are commonly referred to as the ‘Nolan principles’.

Another significant change came in 2007, when the Brown government published a paper on the governance of Britain, which resulted in the creation of the role of independent adviser on ministerial interests, a title held by Allan from 2011 until his resignation in 2020. Where there is an allegation about the conduct of a minister that the Cabinet Secretary feels warrants further investigation, the matter will be referred to the independent adviser. However, most of the work of the independent adviser is of little media interest, and involves dealing with declarations of ministers’ interests, which are examined by their permanent secretary and the propriety and ethics team at the Cabinet Office, before being examined by the independent adviser.

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Can Boris Johnson stop Indyref2?

With the Scottish Parliament elections approaching, the Unit gathered together three experts to discuss the prospect of Boris Johnson seeking to block a second Scottish independence referendum, and how the Scottish government might respond to such efforts. Charlotte Kincaid summarises the contributions.

With the May 2021 Scottish Parliament elections approaching, and the recent attention on the continuing political conflict between First Minister Nicola Sturgeon and her predecessor Alex Salmond, eyes are very much on Scotland and the prospect of a second independence referendum (‘Indyref2’). Boris Johnson has said he would refuse a referendum, but is this possible, and what would be the ramifications? To explore the possibility of Indyref2 and how such a referendum would be brought about, the Constitution Unit hosted a webinar with three experts: Professor Aileen McHarg of Durham Law School; James Forsyth, political editor of The Spectator magazine; and Dr Alan Renwick, Deputy Director of the Constitution Unit. The summaries below are presented in order of the speakers’ contributions.

Professor Aileen McHarg

Professor McHarg explored a number of pathways to a referendum from a legal perspective. She first addressed if the UK government can prevent a second Scottish independence referendum: it can, and it isn’t required to agree to a Section 30 order, or amendments to the Scotland Act to enable Holyrood to legislate for a second referendum – as was the case for the 2014 referendum.

But can the Scottish Parliament legislate for a referendum without a Section 30 order? This is less clear. The SNP has marked its intention to unilaterally introduce a referendum bill with or without a Section 30 order if it wins a majority in Holyrood following the May elections. If the bill passed, it would be subject to legal challenge. If the bill were judged as beyond the Scottish Parliament’s competence, any referendum which followed would not have a legal grounding, and in Aileen’s view, the idea of a referendum was ‘a non-starter’. She described talk of a wildcat referendum – such as that experienced in Catalonia in 2017 as ‘entirely misplaced’. There would be questions concerning the legitimacy of a unilaterally-called referendum, even if it were ruled lawful by the Supreme Court; unionists may be unwilling to engage in such a referendum.

Another possible pathway, although unlikely, is Westminster legislating to dissolve the Union. This is possible because a referendum on Scottish independence is not a legal requirement of independence.

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Five key questions about coronavirus and devolution

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The coronavirus is a once in a generation event that has required an almost unprecedented response from government at all levels, from Westminster to West Lothian. Akash Paun argues that it has raised five crucial questions about the politics of devolution at a time when efficient and effective intergovernmental relations are crucial. 

Coronavirus has hit all parts of the UK and has required a comprehensive response by government at all levels – central, devolved and local. The crisis has raised (at least!) five big questions about devolution, intergovernmental relations and the politics of the Union:

  • Does the crisis show that the UK and devolved governments can cooperate effectively?
  • To what extent does devolution enable policy divergence between the UK nations?
  • How is the crisis affecting the operation of the devolved institutions themselves?
  • How is the pandemic response being funded – and with what impact on devolution?
  • What might this period mean for wider constitutional debates and the Union?

It is too early to give a definitive answer to any of these questions. But developments over the past few months already point to some preliminary conclusions, as well as identifying important lines of investigation for future research.

The UK and devolved governments can work together – at least in a crisis

One important finding, as the Institute for Government (IfG) recently concluded, is that the UK and devolved governments have shown the ability to work together well at various points over the past three months. Given the many disputes over Brexit, the Union and other matters in recent years, and the underlying weaknesses of the UK’s system of intergovernmental relations, it was far from a foregone conclusion that the different administrations would be able to cooperate at all.

But credit should be given where it is due. In early March, the UK and devolved governments published a joint Coronavirus Action Plan – a rare sighting of a government policy paper that was co-branded by the four administrations. There was close working too on the Coronavirus Act, which was drafted with significant devolved input before being passed at Westminster with devolved consent under the Sewel Convention. And devolved leaders participated in meetings of the COBRA emergency committee throughout this period, helping to ensure that major announcements, not least the imposition of the lockdown in late March, were coordinated between the capitals. Continue reading