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Parliament’s Role in the Downfall of the Republic in Afghanistan (2001-2021)

By Narges Mohammadi.

1.      Introduction

The Afghan parliament, crucial for shaping core policies, played a pivotal role in the republic’s destiny. Emerging from the Taliban’s fall in 2001, the 2004 constitution established a powerful bicameral parliament with essential monitoring mechanisms. Despite its structural advancements, the parliament faced challenges leading to the republic’s failure and the inefficiency of the political system. Corruption, inefficiency, ethnic divisions, and outdated laws plagued Afghanistan’s legislative body. Corruption prioritised personal gain over national interests, and ethnic tensions escalated disharmony. Outdated laws failed to uphold civil rights and international standards. Analysing content and interviews with experts in the study of Afghanistan’s legislation deepened the understanding of problems, revealing a parliament that failed to oversee government decisions and adhere to republican principles. The culmination of a dysfunctional parliament, marked by corruption, inefficiency, ethnic divisions, and outdated laws, significantly contributed to political instability, a dysfunctional government system, and eventually to the downfall of the Afghan Republic and the assumption of power by the Taliban on August 15, 2021.

2.      Political System of Afghanistan

Afghanistan has undergone various political structures, transitioning from the Monarchy to the Democratic Republic of Afghanistan (DRA), the Taliban Emirate (I), and the Islamic Republic of Afghanistan’s creation after the Bonn conference 2001. Presently, the country is under the de facto rule of the Taliban Emirate (II). The political system established after 2001 was presidential, encompassing executive, judiciary, and legislative branches with checks and balances. The president served as both head of state and commander-in-chief, supported by two vice presidents. The National Assembly (NA) or Parliament, comprising the House of Elders (Meshrano Jirga (MJ)) and the House of People (Wolesi Jirga (WJ)), served as the highest legislative body. While WJ members were directly elected, MJ included elected and appointed members. The independent judiciary consisted of the Supreme Court (SC), Primary Courts, and the Courts of Appeal (CA), with SC members appointed by the President with WJ approval.

2.1.  Duties and Powers of the Parliament

The 2004 Afghan constitution gave the parliament more power than previous constitutions. The Afghan parliament’s duties represented the nation, making and ratifying laws and reviewing, controlling and supervising the performance of the executive power. In particular, WJ and MJ had the power to approve, modify or abrogate laws and executive decrees. The power and duties of WJ included endorsing social, cultural, and economic development programs, approving state budgets, making, modifying, or abrogating administrative units, and ratifying international treaties and agreements. In addition, the constitution enabled both houses to interrogate and impeach ministers on specific issues and approve or reject high-level appointees.

3.     Factors Contributed to the Parliament’s Role in the Downfall of Democracy in Afghanistan

I was thrilled to present this research during the PSA Parliaments Annual Conference 2023. In this blogpost, in examining the parliament’s role in the collapse of Afghanistan’s democratic government, I explore how the Afghan parliament’s dysfunctionality contributed to the republic government’s downfall. The subsequent factors shed light on my investigation, which reveals ethnic divisions and governmental inefficiency rooted in corruption.

3.1. Corruption

Widespread corruption severely impacted the Afghan government, notably hindering the parliament’s ability to combat corruption effectively. The ministerial impeachment process, designed for accountability, became susceptible to personal biases and alliances within the parliament, undermining stability goals. This corruption permeated the monitoring institution, impeding its crucial role in ensuring good governance and emphasising the urgent need for systemic reforms in Afghanistan’s parliamentary system. Political analyst Hadi Joya highlighted corrupt practices in the Afghan Parliament, labelling it a “trading/commissioning” entity engaged in transactions and bribes, losing its genuine connection with the people and government. An Anti-Corruption Monitoring and Evaluation Committee (MEC) reported widespread corruption, legislative negligence, and budget misappropriation. Furthermore, media reports exposed the misuse of 45,900,000 Afghani funds in former Speaker Abdul Raouf Ebrahimi’s budget, prompting his commitment to return 5.3 million Afghanis to the WJ’s budget.

A police officer witness claimed that corruption among parliamentarians played a significant role in the republic’s downfall, stating, “Getting ministers’ votes of confidence from the Afghan parliament was a mistake, as ministers had to comply with MPs to secure confidence votes.” The officer criticised the Ministry of Interior (MI), pointing out the appointment of “uneducated, unprofessional, and corrupt security officials through MPs’ influence.” Instances were noted where MPs supported the Taliban in areas under their control to secure votes. Moreover, recently, the US imposed sanctions on Mir Rahman Rahmani, the former Speaker of the Afghan parliament, and his son Ajmal Rahmani, citing “massive financial corruption.” Mir Rahman allegedly bribed parliament members for the Speaker role, while Ajmal paid $1.6 million to Election Commission members for parliamentary entry. Despite corruption, a few dedicated MPs in the WJ were acknowledged for their hard work in ratifying and implementing laws prioritising people’s interests, as highlighted by former MP Nisar Ahmad Ghoryani. However, these efforts were insufficient and required additional improvement.

3.2 Ethnic Division

Ethnic divisions pervaded Afghanistan’s government, including Parliament, where democracy was rooted in ethnicity. The selection of the interim government head prioritised ethnicity over political considerations, resulting in Hamid Karzai’s appointment as a Dorani Pashtun. The ethnic basis extended to parliamentary decisions, with MPs’ votes for ministerial candidates reflecting considerations of ethnicity, language, and discrimination instead of meritocracy and experience.

The ethnic division in Afghanistan’s parliament was exacerbated by the Single Non-Transferable Vote (SNTV) system, which emphasised non-partisanship and discouraged the formation of trans-ethnic political parties. The absence of partisan politics in parliament allowed ethnic tendencies to dominate decision-making, leading to prolonged involvement in ethnic issues. For example, debates over the higher education law highlighted linguistic divisions, with disagreements on mentioning Pashto and Persian-Dari words. Additionally, conflicts over key positions in the parliament further underscored ethnocentrism, causing prolonged disputes and hindering effective governance. However, Ghulam Farooq Majrooh, former MP, noted exceptions to ethnic differences, citing instances where individuals from various ethnic groups, such as Turkmen, Uzbeks, and Hazaras, were appointed to ministerial positions or the Supreme Court. This suggests that, amid challenges, there were efforts to address ethnic diversity and promote inclusivity in key roles, but these efforts fell short and required further enhancement. Therefore, ethnic divisions significantly weakened parliamentary performance as love and hatred were influenced by ethnic affiliations. Rather than representing national interests and promoting nation-building, ethnic divisions fueled tribal conflicts, undermining the parliament’s effectiveness in serving the Afghan people.

3.3. Inefficiency

The inefficiency of the parliament, despite its pivotal role in shaping the republican system and upholding supposed freedoms, became evident as the three powers within the system clashed, compromising democratic principles and neglecting citizens’ rights. Ineffective supervision allowed corruption and legislative weaknesses to persist, with meritocracy often sidelined, impeding parliamentary efficiency. The parliament struggled with lawlessness, lacking the capacity for supervision and prioritising ethnic-based entries over specialisation and commitment. Many MPs, entering through ethnic relations and indirect quotas, were unfamiliar with supervision, turning it into a tool for pursuing individual and group interests rather than upholding democratic values.

The parliament struggled to assert its political authority amid ongoing tension between the executive and legislative branches. As revealed in the MEC report, executive interference manifested in enforcing several laws through presidential decrees without parliamentary approval, indicating failure in ratifying laws, weaknesses, MPs absenteeism, and the influence of external elements. Despite constitutional provisions for legislative decrees during parliamentary recess, the government often avoided submitting decrees for fear of rejection. Parliamentary shutdowns became an opportunity for the executive to pass legislation likely to be rejected by parliament. These challenges and inefficiencies in law-making, where the parliament produced only five laws in 16 years, showcased obstacles within the legislative body and external branches hindering its effective performance.

3.4 Outdated Laws

The practical implementation of approved laws and the prevention of corruption and bribery could mitigate public distrust and prevent further decline in Afghanistan. However, despite the existence of parliament, specific laws needed to be updated in a timely manner. For instance, over the sixteen years of the WJ, crucial laws related to governing constitutional formations were outdated, and some civil matters remained unchanged, reflecting similarities with the 1964 constitution. This failure to adapt these laws to contemporary needs highlights missed opportunities for necessary amendments in response to evolving societal dynamics. Additionally, in a rigid gender context where males dominate, any legislative proposal, government oversight measure, and budget modifications or amendments required the endorsement of the majority of male MPs. Success was particularly contingent on gaining approval from influential and leading legislators.

4. Conclusion

This research explains how the weaknesses inherent in the democratically inclined republican system set up in 2001 led to its downfall in 2021. The republic’s failure in Afghanistan stemmed from various factors. The note focuses on the significant role played by the parliament in the re-emergence of the Taliban. Despite its pivotal function, the Afghan parliament faced challenges such as corruption, ethnic divisions, inefficiency, and outdated laws, leading to a decline in public trust in the system. The parliament’s inability to effectively supervise and ratify laws allowed unchecked governance by a select few, further destabilized democracy. The fraudulent electoral system and MPs’ lack of expertise in key areas rendered the parliament weak and hindered decision-making. This weakness contributed to the republic’s collapse. The writer acknowledges that other factors like legislative and judicial powers, political disagreements, foreign intervention, and public unfamiliarity with democratic processes also played a role.

In the future, if it becomes possible, reforms should include a stronger parliament established to revitalise Afghanistan and its institutions, accompanied by comprehensive political, social, and economic measures. Strengthening anti-corruption laws, fostering inter-ethnic relations, and prioritising citizens’ participation in decision-making are essential for Afghanistan’s progress. Additionally, cultivating political culture, education, public awareness, positive engagement with international communities, and upholding human rights are crucial elements for a positive transformation in Afghanistan’s future.

I hope such possibilities will arise in the future and hope that by establishing how things went wrong in the past, the research may eventually contribute to a better future for the people of Afghanistan.

About the author

Narges Mohammadi is a PhD Student in the School of International Relations and Diplomacy at Beijing Foreign Studies University.

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Post-Johnson, constitutional combustion continues. But the fire can be extinguished.

Our recent book, The Bonfire of the Decencies: Repairing and Restoring the British Constitution, analysed the turbulent 2019-2022 Boris Johnson administration from a constitutional perspective. It noted a worrying tendency. Johnson himself, and various ministers and officials in his government, were prone to disregarding norms. In pursuit of partisan advantage or personal gratification, they were often willing to bypass non-binding constraints to which those in their position should willingly subject themselves. Self-regulation is essential to the proper functioning of any political system; but is perhaps even more important in the case of the United Kingdom (UK), given its lack of a ‘written’ or ‘codified’ constitution. Its absence is therefore a serious concern.

We considered a wide range of trends and incidents. Among them were the so-called ‘partygate’ scandal; the UK approach to the Northern Ireland Protocol; efforts to intimidate and demean legal professionals; the dissemination of misleading information to Parliament and public; departures from good practice in the award of Covid-related contracts; the high turnover of senior civil servants; changes to the status of the Electoral Commission; and the troubling treatment of refugees. Taking these factors into account we identified a series of problematic categories of behaviour on the part of the Johnson governments. They were:

  • Poor conduct that did not necessarily violate any specific rule;
  • Departure from rules without clear legal basis such as conventions;
  • Unlawful activities of a constitutionally challenging nature;
  • Violations of criminal law by senior officials and ministers;
  • Willingness to break with treaty obligations and international law; and
  • The compromising of public institutions and the values associated with them.

Furthermore, as well as being prone to departing from and undermining norms, the Johnson administration also displayed a tendency to evade, belittle, or erode any mechanisms that might serve to limit it (such as Parliament, the courts, and other oversight bodies), particularly in its efforts to perpetrate constitutional violations.

We judged, moreover, that the transgressions that occurred under Johnson were part of a wider and longer continuum. Any relief that the ending of his term as Prime Minister might (understandably) arouse should not distract from a realisation that urgent and substantial corrective action is required. His mere departure has not reversed the damage caused during his premiership. Many changes brought about will remain in force until actively reversed, and initiatives instigated will continue to come into being unless halted. Forces, groups, and people that drove, sustained, and were harnessed by him in his anxiety-inducing conduct during this tenure can be expected to continue to exert themselves, potentially leading to further such harm.

We noted in our work that the post-Johnson UK government would inevitably include within it numerous individuals who variously tolerated, facilitated, defended, and took a prominent role in the patterns of behaviour that made his term of office so objectionable. Ultimately, his party turned on him. But the fact that it installed him as leader at all, and that it took so long to remove him, is not encouraging. The decisive revolt of July 2022 came only after the emergence of clear evidence that he had morphed politically from asset to liability, and growing resentment among colleagues who found themselves personally compromised by some of the dubious characteristics of his administration.

Events since the displacement of Johnson have served to reenforce these points. During the brief and remarkable tenure of Liz Truss, constitutionally dubious occurrences included the removal from post of the Permanent Secretary to the Treasury, Tom Scholar; and the attempt to evade proper scrutiny of fiscal policy. Collective Cabinet responsibility – a central component of the UK system of government – rapidly deteriorated to the point of becoming unviable. Under Rishi Sunak, we have already seen the reemployment of an individual as Home Secretary within days of their resignation from the same post, having breached the Ministerial Code. Furthermore, falling within the Home Office policy brief, the pursuit of questionable policies with regard to the treatment of refugees, inherited from previous governments, has continued and possibly magnified.

These developments are far from encouraging. But we do not wish to encourage despondency. There are a series of steps that can be taken that we hope will help restore, reenforce and reinvigorate our constitution. Some firm proposals are already on the agenda. They include recent recommendations from the Committee on Standards in Public Life that would serve to strengthen mechanisms for upholding the principles according to which government is supposed to operate, such as those set out in the Ministerial Code.

Other measures have yet to receive the same degree of advocacy, but in our view merit consideration. Among them is the idea of an oath of office for incoming prime ministers, to be made publicly in the House of Commons, in the presence of its Speaker. While it would not directly compel better behaviour, this practice might contribute to an improved culture of constitutional compliance. We suggest the following wording:

THE PRIME MINISTER’S OATH.

To uphold the principle and practices of collective Cabinet government

To uphold and respect the conventions and expectations contained in THE MINISTERIAL CODE, THE CABINET MANUAL, AND THE SEVEN NOLAN PRINCIPLES OF PUBLIC LIFE.

To sustain the impartiality of the Civil and Diplomatic Services, the Intelligence and Security Services, and the Armed Forces.

and to have constant regard for THE CIVIL SERVICE CODE AND THE SPECIAL ADVISERS’ CODE.

To account personally to Parliament and its select committees for all the above.

To uphold the rule of law in all circumstances.

Beyond this possible measure, consideration should be given to harder and more entrenched regulation through the establishment of a ‘written’ or ‘codified’ constitution. Such a document would become the ultimate source of legal authority within the UK polity, taking precedence even over the UK Parliament and primary legislation it issued. Establishing an instrument of this type would be a major undertaking, and need to rest on an inclusive and considered process. But it could, we hope, help correct the weaknesses in the system that have lately become apparent, and avoid repetition of some of the excesses of the Johnson era, and that of his successors. It might, moreover, be a means of extracting a lasting, beneficial outcome from recent negative experiences.

Andrew Blick is Professor of Politics and Contemporary History and Head of the Department of Political Economy at King’s College London and Senior Adviser to The Constitution Society.

Peter Hennessy, FBA, is Attlee Professor of Contemporary British History, Queen Mary, University of London.

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.

This post was originally published by the Constitution Society and can be accessed here: https://consoc.org.uk/constitutional-combustion-continues/. We are grateful for being given permission to republish the post.

Follow the the society on Twitter at @con_soc

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How Sunak can restore integrity, professionalism and accountability

Meg Russell, Alan Renwick, Sophie Andrews-McCarroll and Lisa James argue that for Rishi Sunak to keep his promise to put integrity, professionalism and accountability at the heart of his government, he must strengthen the standards system, enhance parliamentary scrutiny, defend the rule of law, abide by constitutional norms and defend checks and balances.

In his first speech as Prime Minister, Rishi Sunak promised to put integrity, professionalism and accountability in government at the heart of his premiership. This promise is to be warmly welcomed – commentators and experts have raised consistent alarms about slipping constitutional standards in recent years, and research shows that the public care deeply about honesty and integrity in their politicians.

But what might such a pledge look like in reality? Against the backdrop of Boris Johnson’s resignation this summer, precipitated by concerns about his approach to standards, integrity and accountability, an earlier post on this blog issued five questions for the then leadership candidates to address on rebuilding constitutional standards and restoring integrity. The subsequent premiership of Liz Truss aptly demonstrated these questions’ continuing relevance. This new post returns to the five core tasks, links them to Sunak’s stated goals, and suggests what his government might do to meet them. It demonstrates close agreement with proposals by respected experts from other bodies in response to Sunak’s pledge.

  1. Strengthening the standards system

The system for maintaining government and parliamentary standards was placed under great stress during the Johnson premiership. Successive Independent Advisers on Ministers’ Interests resigned, ministers unwisely attempted to derail a House of Commons Committee on Standards investigation, and a Privileges Committee inquiry into whether Johnson himself misled parliament is ongoing. Truss’s subsequent claim that her personal integrity was a sufficient bulwark against standards breaches fell far short of the serious commitment to institutional arrangements needed to safeguard integrity.

Rishi Sunak’s commitment to appointing a new Independent Adviser on Ministers’ Interests, expressed during the summer leadership contest, and repeated by the Minister for the Cabinet Office, Jeremy Quin, yesterday in the House of Commons (albeit following the somewhat problematic reappointment of Suella Braverman), is therefore welcome and important. Sunak should also move to strengthen the existing system. The independent Committee on Standards in Public Life (CSPL) made recommendations last year to increase the effectiveness of the Independent Adviser, including by giving them the power to initiate investigations into alleged breaches of the Ministerial Code. This proposal, along with various others made by CSPL – such as placing more regulatory codes and roles on a statutory footing – is currently before parliament, via a private members’ bill introduced by Lord (David) Anderson of Ipswich. Providing government backing for the Anderson bill would be one clear and simple way for Sunak to demonstrate his commitment to integrity.

  • Rebuilding the scrutiny role of parliament

A further crucial mechanism for both professionalism and accountability lies in the scrutiny role played by parliamentarians. Recent years have seen increasing concerns raised about rushed legislation, the heavy use of delegated powers, evasion of select committee scrutiny, and the problems that these cause: both in terms of democratic principles and the increased risk of poorly thought-through policy. The Truss mini-budget was given only two hours for debate in the Commons, compared to the usual five or so days for a budget, despite the scale of its content.

Some of these problems can be addressed by setting clear expectations of ministers – for example, that they will prioritise select committee attendance. Others will require Sunak to address the mechanisms by which his predecessors limited parliamentary oversight of their policy-making. The Retained EU Law (Revocation and Reform) Bill, which is currently in the early stages of its parliamentary passage, offers an early opportunity to do this. Various experts have criticised the scale of the delegated powers that the bill would give to ministers, allowing thousands of pieces of law to be amended or scrapped with only minimal parliamentary oversight. The extent of the ministerial powers in the Northern Ireland Protocol Bill, currently before the House of Lords, has likewise caused alarm. It is probable that the House of Lords will seek to increase the parliamentary controls on the delegated powers contained in both bills; government openness to such amendments would be a further indication that the Sunak administration is serious about getting democratic accountability back on track.

  • Defending the rule of law

Integrity and accountability in government both demand a renewed commitment to the rule of law, and to respecting both domestic and international legal obligations.

Domestically, there have been attacks on the courts, as further outlined below. And ministers have too often resorted to using ‘ouster clauses’ to remove certain areas of decision-making from legal challenge.

Significant concerns have also been raised about the willingness of both the Johnson and Truss governments to risk breaching international law. The most high-profile instances of this have concerned their approach to the Northern Ireland Protocol. Sunak now inherits the Northern Ireland Protocol Bill, which began its life under Johnson and was championed by Truss. The bill, which is currently before the House of Lords, has been described as ‘not constitutional’ by the (Conservative) chair of the Commons Northern Ireland Affairs Committee, and as a departure from the UK’s international obligations by the chair (again Conservative) of the Commons Justice Committee. The Lords is expected to amend the bill significantly, at a minimum to raise the bar which ministers must meet if they wish to breach international law. Sunak should think carefully before whipping his MPs to vote against such amendments when they return to the Commons, and should put significant efforts in the meantime into finding a negotiated solution to the Protocol controversy.

  • Abiding by long-established constitutional norms

Also essential to integrity, professionalism and accountability is adherence to the conventions and traditions which underpin the UK’s political constitution. One important step would be a pledge to abide by the recommendations of the House of Lords Appointments Commission, which vets peerage nominees for propriety – which Johnson didn’t do. Sunak should also take care over the number of members appointed to the Lords – Johnson’s appointments (87 while in officeplus another 26 handed on to Truss, and others possibly to follow) flouted the recommendations of the committee established by the Lord Speaker to manage down the size of the chamber. Excessive prime ministerial patronage is deeply unpopular with the public, and Sunak should return to the standards of restraint established by Theresa May.

The Johnson government was also notable for its willingness to risk drawing the monarchy into political controversy – whether through the unlawful prorogation, suggestions in 2019 that he might ‘dare the Queen to sack him’, or his reluctance earlier this year to rule out requesting a dissolution of parliament in order to circumvent his removal from office by his own MPs. This indicated a willingness to push constitutional arrangements to their limits, and undermine the non-political status of the monarch. The Sunak government should resolutely avoid taking such risks.

  • Defending political institutions and checks and balances

Finally, a critical aspect of restoring professionalism to public life is repairing the relationships between government and the various constitutional actors which provide institutional checks and balances in policy-making. In addition to parliament, these include the courts, regulators and the civil service. One simple way of demonstrating respect for these institutions would be to avoid the kind of rhetorical attacks on the judiciary, legal professionals, and civil servants which appeared to be sanctioned by both Johnson and Truss. Sunak should also refuse to tolerate the scapegoating of senior civil servants – seen most recently through the unorthodox sacking of Tom Scholar.

The Johnson and Truss governments sought in particular to sideline institutions which they saw as defenders of ‘orthodoxy’. While policy disagreements are legitimate, attempts to shut down or circumvent potential critics are incompatible with professionalism in government. Such efforts were most recently evident in the Truss government’s attempt to bypass the usual independent economic assessments for its mini-budget, and strained relationship with the Bank of England – with very damaging effect. Sunak has promised a different approach, and this welcome recognition of the value of checks and balances should extend to other areas.

Conclusion

For Rishi Sunak to emphasise integrity, professionalism and accountability as central to his leadership is not only constitutionally sound, but also politically astute. Recent Constitution Unit research has shown that members of the public care deeply about honesty and integrity in their politicians. They support an independent and professional civil service, a stronger role for regulators, an ongoing, powerful role for the courts in preventing abuses, and deeper parliamentary scrutiny and accountability. There will be ample opportunities for Rishi Sunak to demonstrate his commitment to these principles in the coming weeks and months.

About the authors

Meg Russell FBA is Professor of British and Comparative Politics at UCL and Director of the Constitution Unit.

Alan Renwick is Professor of Democratic Politics at UCL and Deputy Director of the Constitution Unit.

Sophie Andrews-McCarroll is Impact Research Fellow at the Constitution Unit.

Lisa James is a Research Fellow in the Constitution Unit.

This blog post was originally published on the Constitution Unit’s Blog. We are grateful to the Constitution Unit for allowing us to republish the post. You can see the original post here: https://constitution-unit.com/2022/10/27/how-sunak-can-restore-integrity-professionalism-and-accountability/

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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/))