The events of the last few weeks show the weakness of the Ministerial Codeon 12 November 2017
By Matthew Burton
Four seemingly unconnected events in the last fortnight have brought political accountability into sharp focus within British politics. From the personal conduct of MPs to the holidaying choices of Ministers, questions have been raised as to when and how our politicians can be held to account for their words and conduct. Priti Patel’s activities in Israel, the Foreign Secretary’s description of the actions of Nazanin Zaghari-Ratcliffe in Iran, the involvement of the former Defence Secretary Michael Fallon in the ongoing scandal concerning sexual harassment in British politics, and the reluctance of David Davis to publish the Brexit impact statements requested by the House of Commons all highlight the primary method within the British Constitution for holding the Government to account: the Ministerial Code and the conventions of ministerial responsibility. Taken together they show the considerable strain that this mechanism is under and the disconnection between the rhetoric and reality when it comes to the enforcement of the Ministerial Code.
What is the Ministerial Code?
The Ministerial Code acts as a reference guide for the conduct of Government Ministers, and was first published in 1992. It has been updated by successive Governments, most recently by Theresa May in December 2016. It gives flesh to the constitutional convention that Ministers are accountable to Parliament for their actions and places its enforcement firmly in the hands of the Prime Minister: Ministers must “retain the confidence of the Prime Minister” and she is the “ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards”. If a Minister is alleged to have breached the Code, the Prime Minister can “refer the matter to the independent adviser on Ministers’ interests” currently Sir Alex Allen. There is no guidance on what happens following this, but the report informs whether the Minister retains the confidence of the Prime Minister.
How do recent events fit in?
The Opposition claimed that Priti Patel’s meetings while on holiday in Israel, her failure to notify the Prime Minister and to adequately explain her meetings when questioned about it last week were a breach of the Code, including its requirement to be “as open as possible with Parliament and the public” and the Seven Principle of Public Life (integrity, accountability, openness and honesty) outlined in its annex.
Boris Johnson’s comments to the Foreign Affairs Select Committee, stating that Nazanin Zaghari-Ratcliffe was “simply teaching people journalism” (see Question 73 here) which were categorically denied by her family and “clarified” by Boris Johnson himself, may well have been incompatible with the core obligation to uphold “the highest standards of propriety” and compounds a more general charge that the Foreign Secretary is somewhat cavalier with his language. Boris Johnson’s rather public role as a chief Brexiteer within the Cabinet has also stretched the boundaries of collective responsibility, despite his assurances that he is fully behind Theresa May’s stated policies regarding the Brexit negotiations.
The accusations levelled at Sir Michael Fallon leading to his resignation as Defence Secretary last week, of acting inappropriately towards a female journalist and a fellow MP, would certainly be seen as breaches of the Ministerial Code, although they relate to his personal conduct during a time before he entered Government.
Of all the events of the last fortnight, Brexit Minister David Davis’s apparent stalling on the publication of Brexit impact statements has attracted the least amount of comment. But it perhaps has the most far-reaching consequences for the enforcement of the Ministerial Code and the ongoing relationship between the Executive and Parliament. In a humble address usually reserved for the Queen’s Speech, the House of Commons resolved to request from the Government 58 “sectorial analyses” on the impact of Brexit, which had been described by the Secretary of State for Exiting the EU in October as being in “in excruciating detail” (see Question 131 here). The Speaker gave a clear indication that he regarded the vote on the motion as binding. Nevertheless, on Tuesday, the day Parliament entered a short recess, Davis tabled a written statement reporting that “it is not the case that 58 sectoral impact assessments exist” and went on to note that “It is not, nor has it ever been, a series of discrete impact assessments examining the quantitative impact of Brexit on these sectors”.
The Secretary of State’s defence is two-fold: no such discrete analyses exist, and even if they did, the Government does not consider it to be in the public interest to publish them. The first may be regarded as a question of semantics, and it is certainly questionable whether something that only two weeks earlier the Secretary of State referred to as being in “excruciating detail” does not actually exist. This raises the possibility that Davis has mislead Parliament, either before the Exiting the EU Select Committee on the 25th of October or in his written statement on Tuesday. On the second line of defence, it is true that the Ministerial Code does not require the Government to publish information “when disclosure would not be in the public interest”. However, this is quite a technical defence in light of the fact that the House of Commons passed a binding resolution calling for the publication of these analyses, and it is not implausible to suggest that the House of Commons has a role in determining what is in the public interest. It remains to be seen what action, if anything, MPs may wish to take through the Commons authorities on the question of whether the Government is in contempt of the House of Commons.
Putting these events in context
A recent House of Commons Briefing Paper shows how the enforcement of the Ministerial Code and the convention on individual ministerial responsibility has developed in recent years. Five events during the Government of David Cameron are key here: Liam Fox’s resignation as Defence Secretary in 2011, Jeremy Hunt’s relationship with Rupert Murdoch while Culture Secretary, allegations about Baroness Warsi’s visit to Pakistan in July 2010, “plebgate” concerning the then Chief Whip, Andrew Mitchell, and a dispute between the former Home Secretary and Education Secretary, Theresa May and Michael Gove, about extremism in schools. We can also add into the mix the resignation of the former Chief Secretary to the Treasury in May 2010 for claiming rent on expenses for properties owned by his partner.
The cases of Baroness Warsi, Jeremy Hunt, and Theresa May and Michael Gove were not considered to be sufficient to breach the Code, whereas Liam Fox resigned upon the publication of the Cabinet Secretary’s report into his behaviour, and Andrew Mitchell resigned when the Cabinet Secretary was asked to investigate the alleged exchange between Mr Mitchell and the police officer.
This demonstrates that in recent years the Ministerial Code has been subject to uneven enforcement, entirely dependent upon the context of the political climate. It is clear that personal conduct bordering on what may be unlawful, i.e. improperly claiming expenses or inappropriate sexual harassment, are breaches of the Ministerial Code, and the confidence of the Prime Minister will evaporate quickly. However, when it comes to Government Ministers’ activities as representatives of the Government, the picture is less clear. We could view the resignations of Liam Fox, Andrew Mitchell and Priti Patel as falling into the camp of calling into question core Government functions: international relations (Liam Fox and Priti Patel), policing and security (Andrew Mitchell) and the personal integrity of the Prime Minister and Number 10 (Priti Patel). Ultimately, the situation concerning Priti Patel came down to a conflict between her version of events and that of the Prime Minister. In such a case there can only be one winner.
The cases of Baroness Warsi, Jeremy Hunt, Boris Johnson and David Davis are harder to categorise. The first three concern potential conflicts of interest between their responsibilities as members of the Government and their own personal interests, and David Davis’ situation calls into question the relationship between the Executive and Parliament. Here, constitutional questions exit stage left and the maelstrom of everyday politics takes centre stage.
For those who view “the constitution” as distinct from everyday politics, the Ministerial Code is an improper mechanism for ensuring accountability and transparency. Placing sole responsibility for enforcing standards within Government in the hands of the person leading the Government means that the Government is essentially the judge in its own cause. This argument is reinforced when one considers the current political environment: Brexit may lead to a fundamental re-alignment in British politics along the Remain vs Leave axis, there are at least 16 months of difficult negotiations with the European Union ahead for the Government to navigate, Theresa May is reliant on 8 DUP votes on key confidence issues within the House of Commons, the Government lacks a majority in the House of Lords, Parliament is still in the midst of a crisis concerning sexual harassment in politics, and the June election demonstrated that a potential Jeremy Corbyn Government is not unthinkable in the minds of the British public. In this situation, constitutional norms such as accountable Government, reflected in the Ministerial Code, are subservient to everyday practical politics.
The Prime Minister is right to suggest that the Ministerial Code requirements amendment, but tinkering with the language has little effect while it lacks any teeth. If the idea of accountable Government is to mean anything, the Prime Minister must commit to strengthening the enforcement mechanisms within the Code itself.
Matthew Burton is a Teaching Associate at the University of Bristol. He tweets @MattBurton_Law.
Image: Number 10 CC BY-NC-ND