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/))