Month: April 2022

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The Prime Minister, the Parties, and the Ministerial Code

By Professor Michael Gordon

The current Prime Minister’s long running battle with the Seven Principles of Public Lifecontinues to gather pace.  Boris Johnson’s actions relating to the pandemic ‘partygate’ scandalhave arguably violated each of the principles established by the Nolan Committee in 1995:  selflessness, integrity, objectivity, accountability, openness, honesty and leadership.  The Prime Minister’s full house of ethical violations concerning his attendance and subsequent denials of social gatherings held in Downing Street, contrary to lockdown restrictions, have also yielded Fixed Penalty Notices from the police for him, his Chancellor, his wife, and other government officials, with the prospect of more to follow.  Yet the Prime Minister remains committed to staying in post, and has refused to resign.

A key accusation made against Johnson by Peter Hennessy (the historian and now member of the House of Lords) is that his actions during the partygate scandal, combined with his refusal to resign, have ‘shredded the Ministerial Code’, generating ‘the most severe constitutional crisis involving a Prime Minister that I can remember’.  Similarly, the political journalist Robert Peston has argued that if Conservative MPs refuse to topple Johnson, they will ‘blithely ignore the ministerial code’, with the consequence that ‘the constitution means little or nothing’.

It is of course understandable why the Ministerial Code has had such prominence in this episode – it is a relatively clear, succinct, and publicly accessible statement of some relevant rules and principles concerning ministerial conduct.  The very idea of a ‘Ministerial Code’ sounds constitutionally important, and also effectively highlights the hypocrisy of Johnson apparently refusing to adhere to the standards applicable to ‘ordinary’ ministers, given the Code is formally issued in each new Prime Minister’s name accompanied by a personalised foreword preaching about the importance of upholding ‘the very highest standards of propriety’ (2019).

Yet the pre-eminence of the Ministerial Code in debates concerning the Prime Minister’s conduct also raises some important questions.  In particular, in this blog post I want to consider whether the Ministerial Code is the best reference point by which to assess the Prime Minister’s actions, and what impact its central status could have on the debate around whether the Prime Minister should resign.

There are two key issues which make it questionable whether the Ministerial Code should be the primary tool for critiquing the conduct of the Prime Minister.  First, the fact that the authority of the Code flows from the Prime Minister, and is therefore a statement of constitutional principles derived from the executive.  Second, the specificity of the Code – and especially the rules concerning the provision of accurate information to Parliament – seems to invite quite technical analysis of the Prime Minister’s conduct, and even his state of mind, when assessing whether the legislature has been misled.

The PM as Arbiter of the Code

First, it is made explicitly clear that the Ministerial Code is the Prime Minister’s document, and it is for the Prime Minister to apply and enforce: ‘Ministers only remain in office for so long as they retain the confidence of the Prime Minister.  He is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards’ (2019, para 1.6).  This was also accepted by the High Court in the recent case of FDA v Prime Minister [2021] EWHC 3279 (Admin).  While the court (dubiously, in my view) held that some questions relating to the Ministerial Code might be justiciable (in this case, the interpretation given to the concept of ‘bullying’), Lewis LJ and Steyn J acknowledged at para [60] that the Prime Minister was the ultimate decision-maker in relation to whether there had been a departure from the standards set out in the Code.

Of course, it has long been true that a Prime Minister has the decisive say over ministerial resignations.  Writing in 1956, long before the publication of a Ministerial Code, the political theorist Samuel Finer – who was sceptical about the ‘constitutional folk-lore’ concerning the existence of a ‘supposed’ resignation convention – identified three factors which determined whether a minister would lose their office: ‘if the Minister is yielding, his Prime Minister unbending and his party out for blood’.  If, as in the present circumstances, the minister under pressure is also the Prime Minister, then his or her decision-making effectively accounts for two out of three of these variables.

Yet if criticism of Boris Johnson’s conduct is made against the benchmark of the Ministerial Code, of which he is the stated arbiter, this sets up an accountability paradigm which is entirely premised on the fact that it is a matter of the Prime Minister’s own moral calculation whether to resign.  If Finer’s third variable – the attitude of the political party – was already peripheral, in focusing on the text of the Ministerial Code it is written out of the picture.

This first limitation of accountability via the Ministerial Code is now partly being addressed by Parliament taking a greater role in the accountability process.  The vote last week in the House of Commons to order an investigation into the Prime Minister’s statements to Parliament about the non-occurrence of parties in Downing Street is a welcome reminder that it is a matter for the Commons to determine whether a Prime Minister has misled the House.  But while it will surely add to the overall political pressure on Johnson and the government, any such investigation remains some way off – pending the completion of the police investigation and the publication of Sue Gray’s full and final report – and the consequences of it are difficult to anticipate, especially if the Prime Minister manages to survive until that point.  The Conservative Party has a majority on the Privileges Committee, which will carry out the investigation without its current chair Chris Bryant, who has recused himself on the basis of his previous criticism of Johnson.  A vote on any recommended sanctions would then come back to the whole House, where the Conservatives also enjoy the protection of a substantial majority.  And while potential sanctions include a (likely short) suspension from the Commons, the Privileges Committee could not instruct Johnson to resign as Prime Minister.

More importantly, Conservative MPs have not to this point lacked a formal means to remove the Prime Minister, which they could attempt through a no confidence vote in his leadership of the party or even in his government – instead, it has been the unwillingness of a majority of MPs to use these constitutional mechanisms which has ensured Johnson remains Prime Minister.  But at least these parliamentary developments have refocused the debate and remind us that, in this case, whatever the text of the Ministerial Code may say, the Prime Minister does not have the exclusive power to determine his own fate.

Avoiding Technicalities

The second challenge raised by the pursuit of Prime Ministerial accountability by reference to the Ministerial Code is that it may be encouraging an unhelpfully technical approach to the rules which prohibit misleading Parliament.  The relevant provision of the Code (which is replicated in a Commons resolution of 19 March 1997, Cols. 1046-47) says ‘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’ (2019, para 1.3(c)).  This provision is unusual in the Code in identifying a specific potential sanction – resignation – for misleading Parliament.  And there is also plenty here for those who are used to dealing with legal rules to get their interpretive teeth into, in particular the question of when an error will count as ‘inadvertent’, and what it means for a Minister to mislead Parliament ‘knowingly’.

The risk, however, is that focusing on the textual formulation of this rule encourages a legalistic approach which distracts from the underlying normative purpose of the principle that Ministers should not mislead Parliament.  There will be rapidly diminishing returns from a debate about whether ‘knowingly’ means the Prime Minister must have intentionally or consciously lied to Parliament to violate the relevant norm, or whether having (or claiming to have) a misguided subjective belief that he was giving accurate information based on the assurances he had received would be sufficient to avoid a technical violation.  It also, crucially, sets up the defence Johnson has already used to deny he misled Parliament – that it did not occur to him ‘then or subsequently’ that the gathering he attended to celebrate his birthday would be a breach of the law, so in that sense there has been no knowing deception.

Instead, when establishing whether the Prime Minister misled the Commons, his alleged state of mind need not be the decisive factor.  The scale and significance of the misleading claims are also material, a point which emerges from the speech of Harold Macmillan in the debatefollowing the resignation of John Profumo for misleading the House of Commons in 1963: ‘I do not remember in the whole of my life, or even in the political history of the past, a case of a Minister of the Crown who has told a deliberate lie to his wife, to his legal advisers and to his Ministerial colleagues, not once but over and over again, who has then repeated this lie to the House of Commons’ (HC Deb 17 June 1963 vol.679, cols.54-55). 

In relation to partygate, the current Prime Minister expressed a clear position, repeated in the House of Commons and elsewhere (on one count, the denials of rule breaking were made some 39 times), about a matter of major public significance, which has proved to be inaccurate.  Going down the rabbit hole of whether the Prime Minister did or did not know that he was misleading the Commons is a distraction from the fact that, regardless, he ought to have known.  Especially as the head of the government which enacted the relevant secondary legislation regulating the response to Covid-19, as the political leader responsible for communicating the need for and effect of these rules directly to the people, via television press conferences on a regular basis throughout the pandemic, or even simply (as we are frequently reminded) as a public figure who obtained an education from an expensive school and a leading university.

There is a recent precedent which reinforces this approach.  In 2018, Amber Rudd resigned as Home Secretary having misled the House of Commons Home Affairs Select Committee over the existence of immigrant removal targets.  The information she relied on was prepared by civil servants within her department, but in her resignation letter to the then Prime Minister Theresa May, Rudd wrote ‘I have reviewed the advice I was given on this issue and become aware of information provided to my office which makes mention of targets.  I should have been aware of this, and I take full responsibility for the fact that I was not’ (emphasis added).

There are of course a multitude of factors which shape any ministerial resignation, and no doubt Rudd’s departure from office was influenced by other considerations.  They include the objectionable nature of the removal targets which she had denied existed, wider public outrage about the deportation and denial of rights by the state of the generation of black Commonwealth citizens caught up in the Windrush scandal, and the fact that Rudd’s resignation might be viewed as a form of sacrificial accountability which protected her Prime Minister Theresa May, who as Home Secretary had been the leading architect of the hostile environment immigration strategy which led to Windrush.

Yet with all these caveats, Amber Rudd’s resignation shows that we need not get caught up in excessively technical arguments about the Prime Minister’s state of mind which are elevated in this debate by overfocusing on the written text of the Ministerial Code.  In constitutional terms, this is a precedent which indicates the Prime Minister should be expected to resign.

Nevertheless, even in a situation where 78% of the public do not believe the Prime Minister’s claims, there is no authority which can compel him to accept this conclusion and resign (although as Alison Young points out, there are still consequences for him to bear in the meantime, in the form of vociferous political criticism).  Looking beyond the Ministerial Code, however, at least allows us to construct the argument that the “it never crossed my mind” defence is an inadequate defence – constitutional principles have been violated, because the Ministerial Code is not exhaustive or determinative of the Prime Minister’s obligations to Parliament.

Conclusion

The Ministerial Code is a valuable document in clarifying many standards applicable to government ministers in an accessible way.  But over-emphasis on the Ministerial Code as the central instrument of political accountability generates some challenges. 

If the Ministerial Code becomes a de facto replacement for the deeper constitutional conventions of ministerial responsibility, rather than a supplement to them, it imports a key structural problem: it emphasises the PM–Cabinet accountability relationship over the government–Parliament accountability relationship.  This is especially problematic when it is the Prime Minister whose conduct is the subject of scrutiny, as well as being the formal source of these ethical rules within government.  Reliance on the Ministerial Code as the primary vehicle for establishing ministerial standards also demonstrates that, as well as generating the potential for accountability, the existence of precise written rules can be a limitation if those rules are susceptible to being interpreted narrowly.

These tensions are evident in the debate about whether the Prime Minister should resign over partygate.  The Ministerial Code is obviously not the main problem in the UK constitution at present, but it is nevertheless worth considering how a shift in constitutional discourse might create some scope for more effective accountability in practice.

I’m very grateful to Alison Young for her comments on an earlier draft of this post.

Mike Gordon, Professor of Constitutional Law, University of Liverpool

This post was originally published on the UK Constitutional Law Blog. Republished with the permission of the author.

(Suggested citation: M. Gordon, ‘The Prime Minister, the Parties, and the Ministerial Code’, U.K. Const. L. Blog (27th Apr. 2022) (available at https://ukconstitutionallaw.org/))

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Urgent Questions

Dr Louise Thompson

LOUISE THOMPSON

Dr Louise Thompson is a Senior Lecturer at the University of Manchester. She is the author of Making British Law: Committees in Action (Palgrave), co-editor of Exploring Parliament (OUP) and the journal Parliamentary Affairs, and is the recent winner of the PSA’s Richard Rose Prize, which is awarded to an early career scholar who has made a distinctive contribution to British politics.

Please tell us a little bit about how you entered academia and your academic career

I started my undergraduate degree in British Politics and Legislative Studies at Hull University in 2003. It was fab, but after a placement year at Westminster with Labour MP Ed Balls just after the 2005 General Election I thought “proper” politics was the place to be. I worked at the Smith Institute for six months when I graduated, then as an opposition researcher for the Labour Party for a couple of years. I did an online MA part time (also at Hull) while I was working at the Labour Party and then came back to Hull properly to do my PhD. And that was that.

Which five books/articles (written by someone else) have been most important to you in your academic career?

The British Polity (Philip Norton) I read this as an A Level student and honestly, I used to carry that book everywhere. I bought it from a Politico’s catalogue I think when I first started sixth form.

Parliamentary Scrutiny of Government Bills (JAG Griffith): A super super book that inspired my PhD. I still use it all the time.  

J Blondel et al, ‘Legislative Behaviour: Some steps towards a cross party measurement’, Government and Opposition, Vol. 5 (1) 1970, pp. 67-85: As above, the idea of viscosity was the basis of my PhD research. I got an email from Jean out of the blue a few years ago. He’d read one of my articles about the SNP at Westminster and we had lunch together to chat about it. Amazing.

Legislatures (Philip Norton ed): As a undergraduate student at Hull this was THE book to get your hands on. It was out of print and we’d all try to find it on amazon but it was always over a £100 for a second hand copy. When we were on placement in parliament my course mate (and now husband) got it out of the House of Commons library and we (kind of illegally) photocopied the whole thing. Apologies to the Commons library. We are very sorry. I’ve still got the photocopy in a folder in my office and I use it all the time. But I did also finally manage to get an amazon copy for a fiver. It only took about 15 years of waiting.

Which person has been most influential and important to you in your academic career?

There’s a bit of a Hull theme to all these answers, It has to be the one and only Cristina Leston-Bandeira.  When I went to the Hull University open day my mum embarrassed me in front of her and Lord Norton (I still cringe about that). Cristina taught me from my very first week as an undergraduate student and I can still remember so many of her tutorials. If I needed any help, she was always the one I would go to. She taught me on my MA and became one of my PhD supervisors. I used to describe her as my academic ‘mum’ – holding my hand through everything and cheering me up/ taking me out for lunch when I was miserable. When I had my first baby she came round to my house with baking. When I’ve had rejections at work she’s always the one with the smiling face and the good advice. She’s my best mate and god mum to my eldest daughter, Alba. Alba knows her only as ‘Portuguese Cristina’. In fact, in our house she is known only as Portuguese Cristina, or CLB. Hopefully she knows how special she is to us all!

What is the first or most important thing you tell your students about parliaments?

That they are NOT government!

Where were you born, where did you grow up, and where do you live now?

I was born in Keighley, West Yorkshire. I lived there with my mum and my sister until I went to University. I’ve moved around a lot since then (London, back to Hull, Kent, London again, back to Hull, Surrey, Kent again, then Sheffield). I’m still in Sheffield right now, but about to move back to where I grew up. I’m surrounded by boxes as I write this.

What was your first job?

I got a job working in Greggs when I was about 17 because I wanted to save up for a laptop for when I went to university.  I worked Saturdays plus one evening in the week to clean the shop. At the end of the day we could buy the leftover cakes for about 10p each so I’d bring them all home.  I still love Greggs. I took the kids there today! I had a paper round at the same time that I hated.  My dad is a mechanic and I used to wash ALL the cars on the garage forecourt where he worked each week in the school holidays for a tenner, with my sister.  It took us ages.

What was the toughest job you ever had?

I used to do temp work over the summer holidays and one summer landed a job as an arrears chaser for a mortgage company. That was really horrid.

Working at the Labour party during the MP expenses scandal was also a tough one. Being asked to scroll through Conservative MP expense claims to look for daft items was the point at which I realised that politics was not for me.

What are your hobbies?

They mainly revolve around the kids at the moment. I like baking when I have time (anything but biscuits, I just can’t make biscuits) and I read a lot on the train to work. I do some volunteering for the Breastfeeding Network. In a couple of months I’ll be starting some shifts on the National Breastfeeding Helpline.

What are your favourite novels?

The Time Traveller’s Wife by Audrey Niffenegger.  I read this book as a student on placement and decided while reading it that if I ever had a daughter I would name her Alba, after the little girl in the book.  My very own Alba is now 8 years old and just as independent and feisty as her namesake.

Recent books I’ve really liked are The Silence of the Girls (Pat Barker) and The Binding (Bridget Collins). I read all sorts of random stuff though, usually on the train to Manchester.

What is your favourite film?

Breakfast at Tiffany’s.  Best final scene of any movie.

What is your favourite tv show?

My favourite question of them all.  As a teenager I became the biggest fan of the 80s TV programme The A Team. Still love it. And I have a massive collection of A Team memorabilia stored in my mum’s attic that I don’t think she is very keen on me leaving there. I keep a Mr T badge in my kitchen drawer that always has (and still does) come with me for anything important – exams, interviews, driving tests. It’s my good luck charm, even though it doesn’t always bring me good luck. It came to five driving tests with me!

I also watch far too much Netflix while I’m ironing.  I have a LOT of ironing. I love sci fi programmes –Star Trek, Shadow and Bone, Stranger Things etc. Anything with vampires (I know, I’m totally sad) – I watched Discovery of Witches over the Christmas holidays which was fantastic.   Bridgerton, The Gilded Age etc are also guilty pleasures.

What is your favourite holiday destination?

I’m not the sort of person who gets excited about holidays but everyone else in my house does. My husband loves Cyprus, as do the kids, so we’ve been there a lot. Iceland (pre-children!) was also beautiful.

Hybrid proceedings in Parliament: yes please or no thanks?

Yes, definitely. But done in the right way.

Appointed or elected upper chamber?

Appointed (I was Lord Norton’s student. How could I answer anything else?!).

Restoration or Renewal?

Both.

Cat or Dog?

Cats. Always cats. We have one big fluffy one called Flower.

Fish and chips or Curry?

Depends, I love both, but if it’s curry it’s got to be veggie dhansak.

Trains, planes or automobiles?

Cars if they’re electric. Love trains. Hate flying.

Scones: Devonshire or Cornish Method?

Neither because I really don’t like cream. It’s jam only for me unless I’m feeling brave.

And, finally, a question asked by Seth, who is 9 and a half: What was your favourite subject at school and why?

Geography. I had the best geography teacher, Glenda Priestnall who made me obsessed with rivers, volcanoes, earthquakes etc and took us on fieldtrips to the coast to study the sand dunes. If I hadn’t done politics, I would have done a geography degree.

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Urgent Questions

Professor Cheryl Schonhardt-Bailey

CHERYL SCHONHARDT-BAILEY

Professor Cheryl Schonhardt-Bailey is Professor and Head of the Department of Government at LSE. She is the author of Deliberative Accountability in Parliamentary Committees (Oxford University Press).

Please tell us a little bit about how you entered academia and your academic career

I didn’t intend to be an academic at all. When I applied to graduate school, I was only going to do a masters (it was a combined masters/PhD programme) and then move on to the world of corporate work. I only applied to 2 graduate programmes and was accepted by just one, so it was an easy decision on where to go! In any case, I rather liked academia (and it seemed to be going well), so one year led to another year and eventually I ended up with a PhD!

Which five books/articles (written by someone else) have been most important to you in your academic career?

Mancur Olson, The Logic of Collective Action;

David Mayhew, The Electoral Connection;

Alan Blinder, Central Banking in Theory and Practice;

Memoirs by the Right Honourable Sir Robert Peel, Part III;

Melvin J. Hinich and Michael C. Munger, Ideology and the Theory of Political Choice.

(but ask me tomorrow, and I may give you another list…)

Which person has been most influential and important to you in your academic career?

Brian Barry. I was familiar with his work before coming to the LSE, but he was a true mentor and friend to me while he was at LSE.

Which of your own pieces of research are you most proud of?

My book on Repeal (From the Corn Laws to Free Trade) and my most recent book, Deliberative Accountability in Parliamentary Committees (mainly because of the cool chapter on nonverbal communication).

What has been your greatest achievement in academia?

Surviving being Head of the LSE Government Department during Covid and enacting some pretty fundamental changes in the department in the process. (However, I still have until 1st July to serve, so I’m only assuming that I’ll survive!).

What has been your greatest disappointment in academia?

It may sound strange, but I’m not sure that I have a “greatest disappointment”. Sure, there were lots of setbacks and down times, but I wouldn’t say that there was some catastrophic event. Not yet, at least.

What is the first or most important thing you tell your students about parliaments?

Incentives matter. But so does deliberation. Or at least it should.

Where were you born, where did you grow up, and where do you live now?

Boise, Idaho (USA)—born and raised. I now live in the “leafy suburbs” of London.

What was your first job?

First informal job was babysitting (at age 11, looking after 3 kids—I think that this would be illegal these days!). First formal job (with paycheck) was at age 15 in a music store as a sales assistant.

What was the toughest job you ever had?

Actually there were two. One was working in a printing shop over a summer while in high school. I was unbelievably bored. The second was a graveyard shift (11pm to 7am) for a data processing firm over a summer when I was in graduate school. I hated working graveyard.

What are your hobbies?

Playing the piano and digital photography. Both of these have been drastically curtailed while I’ve been serving as Head of Department, since I have very little leisure time. Only 3 ½ months more to go and then I can resume my hobbies!

What are your favourite novels?

Okay, I rather like romance novels. Sad but true. But there is a back history here. I adored reading novels up to about age 18, but then when I went off to university, I thought that I better stop reading for pleasure. All reading needed to be intellectual and/or academic. That carried on until I was about 42 years old and reading Harry Potter books to my kids. I thought, why on earth did I stop reading novels? It’s relaxing and I enjoy it! What’s wrong with that?

What is your favourite music?

I’m rather eclectic in my music choices, but I do like the soundtrack to the movie, The Mission. It’s a terrific movie, but with a very tragic story. It’s also deeply spiritual and the soundtrack reflects that.

What are your favourite artworks?

Georgia O’Keeffe. I love the microscopic detail.

What is your favourite film?

The Shawshank Redemption; The Martian. I’m sure that there are more, but the basic point is that I like movies that depict human triumph over adversity (who wouldn’t?).

What is your favourite building?

A certain cabin in Idaho. I love the mountains.

What is your favourite tv show?

I’m not sure I have a favourite one. Covid has definitely encouraged us to watch a lot more TV, but mostly those have been series (e.g., Homeland, The Queen’s Gambit, The Americans). On the whole, the ones that I’ve admired all had inherently good stories, excellent acting and oddly enough, somewhat ambiguous endings.

What is your favourite holiday destination?

Idaho (it’s home). But I’ve loved a few other places—e.g., Dubrovnik, the Scottish Highlands, Orvieto, the Canadian Rockies. The ideal combination is a bit of history and a lot of mountains.

What are your favourite sports?

Skiing, swimming, walking. Skiing because the mountains are beautiful, and I can go FAST! Swimming because I feel insulated from the world. And walking because it calms me down and allows me to think.

Hybrid proceedings in Parliament: yes please or no thanks?

No thanks.

Appointed or elected upper chamber?

Elected is more fun, but appointed allows time for reflection and deliberation.

Restoration or Renewal?

What’s wrong with both?

Cat or Dog?

100% dog.

Fish and chips or Curry?

Definitely fish and chips. I think I had curry some 34 years ago and decided it was not for me.

Trains, planes or automobiles?

Trains.

Scones: Devonshire or Cornish Method?

I had to look this one up, but I note that both have cream, so either is fine with me.

And, finally, a question asked by Seth, who is 9 and a half: Which person in history would you most like to have been?

I don’t think that I would actually like to “be” someone else, but I would love to have watched Richard Cobden as he led the Anti Corn Law League or followed Lewis and Clark on their Expedition across the Pacific Northwest.