Rebuilding constitutional standards: five questions for the next Conservative leader

Boris Johnson yesterday fired the starting gun on a Conservative leadership race which should make the winner Prime Minister. Meg Russell, Alan Renwick and Robert Hazell pose five key questions which Conservative MPs and others are encouraged to ask the party leadership candidates, based on recent public, parliamentary and expert concerns.

Boris Johnson’s premiership has been marked by ever-growing concerns about the maintenance of various constitutional standards, which in recent days have reached fever pitch. These were echoed repeatedly in ministerial resignation statements and calls for him to go. Recent opinion polls meanwhile show strong public support for constitutional standards of integrity and accountability.

Conservative MPs now have an opportunity to choose among candidates to take Johnson’s place, which also creates an important constitutional responsibility. A high priority when picking the next Conservative leader should be to restore the standards essential to UK democracy, in order both to rebuild integrity in politics, and to work towards rebuilding public trust.

This blogpost sets out five key questions for Conservative leadership candidates, reflecting concerns raised by the public, independent expert organisations, and MPs themselves. Conservative MPs and others are encouraged to prioritise these questions, and raise them with the candidates when the party is making its choice.

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Lord Geidt’s resignation is a fresh reminder of the government’s restrictive approach to scrutiny of its actions

After barely a year in post, Lord (Christopher) Geidt resigned yesterday as the Prime Minister’s Independent Adviser on Ministers’ Interests. As Peter Riddell demonstrates below, his resignation is a further example of the battles of constitutional watchdogs to remain independent of the executive, and reflects the increasing presidentialism of the current administration, dismissing scrutiny not only by regulators but also by parliament, the courts and the media.

The immediate and pressing question raised by Lord (Christopher) Geidt’s resignation is whether the role of Independent Adviser on Ministers’ Interests is doable at present. This is only partly a matter of rules but more one of political culture and attitudes. That has been implicitly acknowledged in the response of a Downing Street spokesman that there will not be an immediate replacement and that the Prime Minister is ‘carefully considering’ the future of the role.

As often with resignations, the background and the run-up to the decision to go matter as much as the specific reason for departure. Lord Geidt’s frustrations have been increasingly clear in his correspondence with Boris Johnson, in his annual report last month (as I discussed on this blog last week) and in his evidence to the Public Administration and Constitutional Affairs Committee (PACAC) on 7 June. Johnson and his team failed to supply relevant information over the decoration of the Downing Street flat when initially sought and the PM did not take account of his obligations under the Ministerial Code over the ‘partygate’ allegations, for which he received a fixed penalty notice. Lord Geidt felt that Johnson’s eventual comments still did not address criticisms by Sue Gray about his adherence to the Nolan principles of public life.

Nonetheless, despite ‘inconsistencies and deficiencies’, Lord Geidt said in his resignation letter that he ‘believed it was possible to continue credibly as Independent Adviser, albeit by a very small margin’. He apparently told Boris Johnson on Monday that he would be content to serve until the end of the year. This followed the government’s concession last month that the Adviser could initiate his own investigations but only after having consulted the Prime Minister and obtained his consent, and with greater transparency over a refusal. Lord Geidt has described this as a ‘low level of ambition’ and his discomfort over the ambiguities of his relationship with the Prime Minister was evident in some robust questioning by PACAC. He was clearly seen by the MPs as not truly independent, not least when he said he was one of the PM’s assets, and, in practice, inhibited from advising a Prime Minister on his own conduct and obligations under the Code.

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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).

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Partygate illustrates the fundamental constitutional responsibility of government MPs

Boris Johnson and his Chancellor have now been fined for breaking lockdown restrictions. Both have misled parliament over Downing Street parties. These are clear breaches of the Ministerial Code, which should lead to resignation. If the PM refuses to police the Code, says Meg Russell, that constitutional responsibility rests with MPs. A failure to exercise it would seriously undermine both the integrity of, and public trust in, the democratic system.

The Prime Minister and Chancellor of the Exchequer have been issued fixed penalty notices for breaching COVID-19 lockdown rules over parties in Downing Street. This means that they have broken the Ministerial Code on two counts. Paragraph 1.3 emphasises ‘the overarching duty on Ministers to comply with the law and to protect the integrity of public life’. But the police have concluded that the law has been broken. Paragraph 1.3c of the Code then states that:

It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister.

But it has been clear for some time that Johnson breached this rule, by repeatedly insisting in the House of Commons that all regulations were followed, and denying knowledge of Downing Street parties, when it subsequently emerged that he had attended such gatherings. Multiple sources have catalogued these denials. Rishi Sunak also said on the parliamentary record that he ‘did not attend any parties’.

But the final line of paragraph 1.3c is the rub. While both of these forms of breach would normally be considered resigning matters, the ultimate keeper of the Code is the Prime Minister himself. He has already faced down criticism over failing to uphold it in the case of bullying allegations against Home Secretary Priti Patel, which led to the resignation of the Independent Adviser on Ministers’ Interests. Both Johnson and Sunak have insisted that they are not going to resign, indicating that the Prime Minister is once again setting aside the Code – this time over multiple breaches, which are highly publicly salient.

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