What is the ministerial code?
The ministerial code is the set of rules and principles which outline the standards of conduct for government ministers. 22 Cabinet Office, Ministerial Code, GOV.UK, 20 September 2010, www.gov.uk/government/publications/ministerial-code
There are separate codes for ministers for the UK government and devolved administrations in Scotland, Wales and Northern Ireland.
The codes all include the ‘overarching duty’ of ministers to comply with the law and to abide by the Seven Principles of Public Life, 23 Committee on Standards in Public Life, The Seven Principles of Public Life, GOV.UK, 31 May 1995, www.gov.uk/government/publications/the-7-principles-of-public-life a set of ethical standards which apply to all holders of public office.
The Northern Ireland Code also sets out rules and procedures specified in the Belfast Agreement, the 1998 Act, the St Andrews Agreement and the Northern Ireland (St Andrews Agreement) Act 2006.
Who does the ministerial code apply to?
Ministerial codes apply to all government ministers. Sections of the UK, Scottish and Welsh codes also apply to special advisers (who are also subject to separate codes), unpaid advisers (in the Welsh Code), Parliamentary Liaison Officers (in the Scottish Code) and parliamentary private secretaries (in the UK Code).
What does the ministerial code cover?
All of the ministerial codes cover similar ground in terms of the functioning of government and the impartiality of the civil service, accountability to parliament, use of government resources, propriety and ethics, and the separation between private and public interests.
The codes also set out how each government should function, including the role of collective responsibility, or collegiality, and how decisions are made.
There are some notable differences between ministerial codes in different jurisdictions. The Scottish and Northern Ireland codes both set out specific rules around how issues are brought to collective discussion. The UK code sets out principles but is ambiguous, stating that "no definitive criteria can be given for issues which engage collective responsibility". This provides a large degree of flexibility for the prime minister.
The Northern Ireland code includes a pledge of office required by the Belfast Agreement. This includes ensuring the effective running of the power-sharing agreement, promoting the interests of the whole community, and challenging paramilitary activity.
Following the death of former minister Carl Sargeant, the Welsh ministerial code was revised to include a section on wellbeing of ministers. It now requires the first minister to "ensure that the wellbeing of the minister or ministers involved is fully taken into account as part of planning and preparation for reshuffles or other circumstances in which ministers may depart from government".
What is the legal status of the ministerial code?
The UK government ministerial code predates the others and it still mirrors constitutional rules and conventions set out in other documents, including the Cabinet Manual and civil service code. As such, it has no legal basis, though there is increasing pressure for it to be placed on a statutory footing.
A form of the code has existed since the second world war, though it was only made public when it was published as Questions of Procedure for Ministers by the then prime minister John Major in 1992. It was renamed the ministerial code under Tony Blair in 1997.
Both the Scottish and Welsh ministerial codes take their original form from the original Westminster one and carry similar status. But both have been adapted to the context of their respective governments.
The Northern Ireland Code has statutory backing. It was required by the Northern Ireland Act 1998 and many of its provisions are set out in other acts.
Who investigates breaches of the ministerial code?
The Welsh, Scottish and UK ministerial codes are all explicit that it is not for officials to enforce the code. Accompanying the Northern Ireland code is more detailed guidance setting out the exact process, by an independent panel, for investigations.
Since 2006, UK government ministerial code breaches have been investigated through an independent adviser on ministerial interests or by the cabinet secretary, but there is no requirement to follow any particular process. When a breach of the UK ministerial code is alleged to have taken place, whether and how it is investigated is entirely at the prime minister’s discretion. In November 2020 the then-adviser, Sir Alex Allan, resigned his post after the prime minister disagreed with his finding that the home secretary, Priti Patel, had broken the code.
In April 2021, then-prime minister Boris Johnson appointed Lord Geidt, the former private secretary to the Queen, as his independent adviser. The terms of reference for Lord Geidt made clear that it is still for the prime minister to decide whether any investigation into potential breaches should take place. In May 2022, the updated code reiterated that the adviser requires the approval of the prime minister to start an investigation, though it noted that the prime minister "will normally give his consent".
This remained the case in the December 2022 update to the code, issued when Sir Laurie Magnus became Rishi Sunak’s independent adviser. Sir Laurie cannot initiate his own investigations and does not have the ability to publish the findings of his investigations, but can ‘require’ that they be published ‘in a timely manner’ by the government. 24 Gov.uk, Terms of Reference for the Independent Adviser on Ministers’ Interests, 27 May 2022, www.gov.uk/government/publications/terms-of-reference-for-the-independent-adviser-on-ministers-interests--2/terms-of-reference-independent-adviser-on…
Under the Welsh code, the first minister can refer alleged breaches to an independent adviser to investigate, "unless he is satisfied that the complaints can be responded to more immediately or routinely".
In Scotland, an independent panel has existed to investigate breaches of the code since 2008. The first minister, Nicola Sturgeon, first referred herself to an independent investigation on whether she broke the ministerial code during the Scottish government’s investigation of accusations of harassment against her predecessor Alex Salmond. 25 Sim P, ‘Did Nicola Sturgeon break the ministerial code?’, BBC, 11 January 2021, retrieved 2 March 2021, www.bbc.co.uk/news/uk-scotland-55617818 In January 2021, the probe was widened to investigate accusations that she misled the Scottish parliament.
Under the Northern Ireland ministerial code, all complaints about alleged breaches are investigated by the Panel for Ministerial Standards and their findings are published. However, the panel has no powers to reprimand or sanction ministers.
In recent years, there has been more pressure to increase the power and independence of those able to investigate breaches of ministerial codes. In cases of apparent breach, parliamentarians now often write to the cabinet secretary or equivalent officials to call for an inquiry. In 2012, a parliamentary select committee called for the role of the independent adviser for the UK government to be changed so that ministers can be investigated for an alleged breach of the code without the authorisation of the prime minister. One former UK minister has called for politicians investigated under the rules to have the protections of a legal process.
The Institute for Government has also called for the independent adviser to have the ability to launch his own investigations.
How is the ministerial code enforced?
All of the codes give the final authority for decisions about action to be taken to the prime or first minister, or, in Northern Ireland, the relevant ‘nominating officer’ for a particular minister’s party. As the decision about who may be appointed or dismissed as a minister is considered a fundamental power under the discretion of first ministers or the prime minister, there is strong resistance to changing how ministerial codes are enforced.
Prior to the May 2022 update, there existed an expectation that breaching the code would lead to dismissal. The code only said that ministers “will be expected to offer their resignation to the prime minister” if they “knowingly mislead parliament”. The May 2022 update kept this provision and added that, for other breaches of the code, the prime minister “may ask the independent adviser for confidential advice on the appropriate sanction”, including “some form of public apology, remedial action, or removal of ministerial salary for a period.”
The most recent minister in the UK government to resign over a breach of the code was Suella Braverman in October 2022, after sending a draft Written Ministerial Statement from a personal email to a colleague outside of government in contravention of the rules. 26 BBC, ‘Suella Braverman: Home Secretary’s resignation letter in full, 19 October 2022, retrieved 4 January 2023, https://www.bbc.co.uk/news/uk-politics-63320750 Braverman resigned before being referred to the independent adviser: her resignation was considered to have related to complaints about the Truss premiership rather than the potential code breach alone. 27 Crerar P, Walker P, and Allegretti A, ‘Suella Braverman forced to resign as UK home secretary’, The Guardian, 19 October 2022, retrieved 4 January 2023, www.theguardian.com/politics/2022/oct/19/suella-braverman-departs-as-uk-home-secretary-liz-truss
In 2017, then-First Secretary of State Damian Green was asked to resign by then-prime minister Theresa May following a breach of the ministerial code. The prime minister had referred Green for investigation by then-cabinet secretary Jeremy Heywood, who found that he had twice breached the honesty requirement of the Seven Principles of Public Life outlined in the code.
In November 2020, the prime minister’s independent adviser, Alex Allan, found that the home secretary, Priti Patel, had broken the ministerial code by bullying officials, but the prime minister disagreed and chose to keep Patel in place. 28 BBC, ‘Priti Patel: Bullying inquiry head quits as PM backs home secretary’, BBC, 20 November 2020, retrieved 24 February 2021, www.bbc.co.uk/news/uk-politics-55016076 Allan resigned, apparently in protest at this decision.
Boris Johnson was also investigated by Lord Geidt over the refurbishment of his Downing Street flat, but was found not to have breached the code.
How often is the ministerial code updated?
New versions of ministerial codes are usually published at the start of each new administration, although in certain circumstances it is updated more frequently. The most recent update was issued in December 2022, at the same time as Sir Laurie Magnus was appointed as the new independent adviser on ministers’ interests. Few changes were made to the code; notably, Sir Laurie still requires the prime minister’s consent to initiate investigations. Small changes include the introduction of possible paternity or adoption leave for ministers.
The previous update to the code was published in May 2022. This included an explicit statement about the range of possible sanctions for breaching the code. The code was also accompanied by a policy statement which rejected calls for it to be given a statutory basis.
In 2018, it was updated following misconduct allegations against former ministers Michael Fallon, Priti Patel and Damian Green. Changes were made to the section on conduct during foreign visits, and to include a section about harassment and inappropriate behaviour.