It is difficult to imagine a more damaging time for people's faith to collapse in the government than now. The lockdown party revelations that have leaked from Downing Street undermine whatever moral authority the prime minister and his Cabinet had left.
But the moral rot within government goes much deeper than the events of the last couple of weeks. In stark contrast to that of his predecessor, the vicarly Theresa May, Boris Johnson's government has eaten away at standards from the very beginnings of his premiership, with the prime minister governing with the same contempt for rules and norms that he has shown all his life, not least in his refusal to be transparent over the funding of the Downing Street flat's interior design.
Such abject contempt has amplified calls for the Ministerial Code, which regulates the conduct of ministers, including the PM, to be placed on a statutory footing by parliament, strengthening it and potentially making its enforcement less dependent on—and vulnerable to—prime ministerial whim. This was less of an issue under John Major's government, which first published a formal set of standards in 1992, or under Tony Blair's, which renamed it the “Ministerial Code,” but is becoming an ever-greater concern under Johnson.
Little reveals this vulnerability more than the cavalier way in which Johnson engaged with the scandal that erupted over Priti Patel's bullying of Home Office civil servants. Johnson's failure to reprimand his home secretary contributed to the resignation Philip Rutnam, the permanent secretary to the Home Office, who said in his final statement that he had “encouraged her to change her behaviours” but to little avail, and that he was suing the Home Office for constructive dismissal in the hope of “maintaining the quality of government in our country.” In the aftermath—and after the government had settled with Rutnam—Alex Allen, the prime minister's independent adviser on ministerial standards, investigated Patel's behaviour. He concluded that she had failed to meet the “high standards expected of her,” and confirmed that her treatment of civil service staff amounted to bullying.
If Patel were a mere mortal, this would have been the nail in the coffin of her ministerial career—a career that had already been resurrected once after she was forced to resign by May in 2017 for holding unauthorised meetings with the Israeli government. Instead, the same attributes that ensured her political revival—namely, her fetishisation of hardline policies, her popularity among the Tory right and her fidelity to Johnson—kept her in office, with the prime minister saying that she had his “full confidence.” He argued that Patel's conduct did not breach the Ministerial Code, given that she was unaware of the impact of her treatment of civil servants—which allegedly included screaming and swearing at them—or that it was upsetting and intimidating.
No surprise, then, that the FDA, a civil service trade union, was dissatisfied with this conclusion, and particularly the suggestion that Patel had not bullied Home Office staff. They brought a judicial review before the High Court, querying whether Johnson had “misdirected” himself on this. Such an action was always optimistic. Not only does any investigation under the Code expressly depend on whether the prime minister “feels that it warrants” it, but when it comes to whether ministers have upheld the “highest standards” required by the Code, the prime minister is the “ultimate judge” as to any breach, and what the “appropriate consequences of a breach of those standards” should be.
It was almost inevitable, then, that the High Court would defer to Johnson's conclusion, ruling that he did not need to revisit his decision on whether Patel's conduct amounted to bullying. But while the government paraded this as a victory, what the judges gave with one hand, they took away with the other. On the question that matters more generally—whether the Ministerial Code is justiciable—the government lost its case. They wanted the court to rule that the code was beyond the bailiwick of the courts, with its enforcement a purely political matter rather than a legal one susceptible to judicial scrutiny. This was not the conclusion the court came to. It ruled that the prime minister's interpretation of the Code is constrained, implying that in more egregious cases, the courts can intervene.
It is this conclusion that highlights the most important questions for those who advocate putting the Code on a statutory footing—what should be the basis of a ministerial code? Where is the boundary to be drawn between the legal and political? And most importantly, what would codification substantively achieve?
“New legislation would prevent an even more unscrupulous prime minister than the incumbent from dispensing with the Code altogether”
Proposals from the Committee on Standards in Public Life recommend that the Code be “reconstituted solely as a code of conduct on ethical standards,” supplanting the somewhat chaotic mix of procedural rules, constitutional principles and political obligations, like collective responsibility, that makes up the Code currently. But while this may aid clarity and enforcement on matters of ethics, it would make ministerial obligations as a whole less clear, as Mike Gordon, a constitutional law professor at the University of Liverpool has written, undermining the Code's role as a “one stop shop” for ministers.
Rather than distilling the Code purely to ethical standards, it may prove more fruitful to maintain its current character, but to embed it more firmly within the UK's constitutional firmament: legislating, if not for the content of the code, then at least for its existence—much as there is legislation requiring codes of conduct for civil servants and for special advisers. Such legislation would prevent an even more unscrupulous prime minister than the incumbent from dispensing with the Code altogether, while recognising its inherently political, rather than legal, character.
Legislating on this, rather than on the content of the code per se, would also reduce the risk of the courts being drawn unnecessarily into the political realm. Decisions like FDA show that the judges are already able to traverse the tightrope between the legal and the political arenas, accepting that while the prime minister's approach to bullying fell within the bounds of his political discretion, the law still placed limits on this discretion.
If much of the Code's content was cemented in statute, there is the risk that the courts would feel obliged to rule more strongly upon it, with the legislation moving it more fully into the legal arena. That said, there would be painfully few opportunities for the courts to make any increase in their authority felt, particularly given that the ultimate sanction—that of dismissal of ministers—would remain firmly out of bounds. Instead, the limit would be declarations of Code violations, with the prime minister still ultimately left with discretion over how to deal with them. Given the potential cost of such politicisation to the courts, the gains of full “statutification” hardly seem worth the candle.
Admittedly, the need for there to be a code at all would open up the potential for legal challenges. If it was put on a legislative footing, an enterprising litigant could challenge its adequacy if it disregarded fundamental principles of government. It may be, however, that this risk would be one worth bearing, especially if it is contrasted to the alternative of legislating for the content of the Code as well as its existence, which would significantly fetter the discretion of the prime minister.
An indisputable advantage of putting the Code in legislation would be an increase in the independence of the ostensibly independent adviser, and in their authority over the rules. At present, the adviser can only formally investigate with impetus from the PM. This leaves the enforcement of the Code at mercy of the PM's political conscience. Even if—as must be the case—the prime minister would still retain sole discretion over hiring and firing, having an adviser truly independent of the PM would at least force them to account for their decisions in the political realm, explaining why they had chosen to ignore the conclusions of an independent investigation, as Johnson was forced to do over the Patel affair in the summer—but without requiring the government's adviser to stand down first, as was the case then. It should not take headlines over an ethics adviser's resignation to force a prime minister to account for decisions before the House of Commons.
The ministerial code is increasingly threadbare. Elevating it to statute may restore some of its lustre, but legislative codification should not be seen as some panacea that will magically restore standards to the UK's political scene. As with any organisation, the culture in No 10 is set at the top, and so long as we have a prime minister who has never met a rule he doesn't consider beneath him, his government will continue to chip away at the political constitution's norms and principles. For those who want to see standards maintained in political life, we must hope that Johnson is kicked out of office—whether by his party or by the electorate—before the condition becomes terminal.
