26 March 2018

In a new Ministers Reflect interview, Mark Garnier argues that politicians investigated for breaching the Ministerial Code need better legal protection. Daniel Thornton says that whatever the process, the consequences of such investigations should still be decided by the Prime Minister.

The Ministerial Code is issued by the Prime Minister at the start of new administrations. It sets out the “standards of behaviour expected from all those who serve in Government”. When a breach of the code is alleged, it is up to the Prime Minister to decide how the matter should be investigated and what the consequences should be.

Theresa May lost three Cabinet ministers following Ministerial Code investigations in the last two months of 2017. In January she fired another minister, Mark Garnier, even though he had been cleared under the Code.

In a new Ministers Reflect interview Garnier argues that Code investigations need more structure and legal protections. He says that those being investigated should be allowed to see reports about them — and should have the ability to call witnesses and have advocates.

The current system provides a great deal of flexibility for the Prime Minister. When a breach of the code is alleged, the Prime Minister may choose to involve the Prime Minister’s independent adviser on ministerial standards or ask the Cabinet Secretary to investigate, but there is no requirement to follow any particular process. When I advised the Prime Minister on investigations I saw different sorts of investigations in different circumstances – sometimes including advocates, sometimes concluded very quickly.

This lack of established protocol can be dissatisfying for those involved, at a time when they are often under significant pressure from the media and political opponents, with fears for their own privacy and possible consequences for their families.

There may be ways in which ministers could be given greater clarity about what to expect from an investigation. But a degree of flexibility is necessary to enable the Prime Minister to factor political considerations into her decisions about how to proceed. In the end, the Prime Minister’s ability to decide who is fit to serve in her Cabinet must be unconstrained.

This was demonstrated by a recent incident in which Boris Johnson was accused of breaching the Ministerial Code, for not charging a think tank for the use of a room at the Foreign Office. The Prime Minister let him off for a decision that might have ended the ministerial career of an individual with a less sensitive position in Cabinet.

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