The new ministerial code fails again to improve standards

After over a year of waiting, the prime minister chose the week of the Sue Gray report and the beginning of parliamentary recess to publish an updated version of the ministerial code. In a move that will not surprise those who follow discussions of ethics in government, Johnson decided not to strengthen the enforcement of standards in government.

The introduction of a range of sanctions is an improvement

On Friday, when the new code was published, a row quickly erupted on Twitter and in the media about whether the prime minister had weakened the sanction for ministers who knowingly misled parliament. That was partly based on misinterpretation of Johnson’s changes. The expectation that a minister would resign for doing so is very much still part of the code; what this new version has done is to clarify that a range of sanctions, including a public apology and a salary forfeit, is available for other breaches of the code.

This is a good thing. As we and the Committee on Standards in Public Life (CSPL)^[1] have argued, an expectation that a minister resigns for any breach of the code whatsoever was always disproportionate. Of course, this must not mean that prime ministers can get away with deciding all breaches of the code short of knowingly misleading parliament are minor and so deserving of lesser sanction – parliament must hold the prime minister to higher standards than that. But this clarification will lead to a better debate of individual cases, and should mean that any accusations of code-breaking are assessed on their merits, rather than in fear of a resignation.

The prime minister decided not to make bigger changes

The more noteworthy – and regrettable – aspect of the new ministerial code is what has not changed. The prime minister failed to give Lord Geidt, his so-called independent adviser on ministerial interests, any new powers that would have made his role properly independent. Geidt still requires the prime minister’s approval to begin any investigation into potential wrongdoing by a minister, and the prime minister can withhold that permission without having to explain why. Lord Geidt had signalled earlier in the year that he had hoped to secure substantial new powers, so it is disappointing that he has not been able to. There were many other recommendations from the CSPL that the government also failed to implement, including to legislate for the existence of the code, arguing that it is a political matter which “the government considers to be non-justiciable.”^[2]

Beyond the code and the role of the adviser, the most interesting part of Friday’s announcement is the accompanying statement from the Cabinet Office. In grandiose language, the statement sets out the government’s view that parliament can have no role whatsoever in upholding standards inside government as that would risk “conflating the executive and the legislature”. This is despite the fact that the prime minister only holds that role as long as he maintains the confidence of the Commons – in our system the executive is drawn from the legislature, meaning the Commons is of course a key part of upholding standards in government.

Changes to the foreword also removed reference to the Nolan principles (though these are embedded in the code) and the impartiality of the civil service. In the statement and foreword, Johnson and his allies effectively state that they do not believe anyone should have the right to question how they behave in office once elected.

Politics will always be the ultimate judge of ministerial behaviour

The prime minister is, of course, currently under investigation for misleading parliament over partygate. This is where the code and parliament intersect – the Privileges Committee is investigating whether he misled parliament, not whether he broke the code. It is essential that the government respects the inquiry and that the prime minister gives open and honest evidence if and when he is questioned.

If the committee finds that he did mislead parliament, the code will be put under enormous pressure – will he resign, as the code sets out that he should, or will he find a way to argue that he does not need to? Either way, the decision will be more dependent on politics than on the wording of the code – if Johnson’s backbenchers continue to support him in post, he will be secure.

If the committee finds in his favour, the code will presumably fade into the background again. That would be a shame – as the last year has shown, the public care about behaviour in public life. It is important that the government and MPs pay more than lip service to ethical standards.

1. Committee on Standards in Public Life, Upholding Standards in Public Life - Published Report, gov.uk, 1 November 2021, www.gov.uk/government/publications/upholding-standards-in-public-life-published-report
2. Cabinet Office, Statement of government policy: standards in public life, gov.uk, 27 May 2022, www.gov.uk/government/publications/revisions-to-the-ministerial-code-and-the-role-of-the-independent-adviser-on-ministers-interests/statement-of-government-policy-standards-in-public-life