*/
Beyond the consequences of the impunity granted to the Home Secretary by the Prime Minister’s decision, there are some notable constitutional implications of this episode
B y Professor Mike Gordon
We might wonder whether it is worth writing about the rules of ministerial responsibility under the current government of Prime Minister Boris Johnson. This is especially the case after the Prime Minister’s remarkable, but hardly surprising, decision to give his full support to the Home Secretary, Priti Patel, to remain in his Cabinet after the sudden culmination in November of a long running – and long overdue – internal investigation into claims she had bullied civil servants in her department.
The decision was remarkable because the Ministerial Code had recently been amended to include a clear and explicit prohibition on bullying and harassment by Ministers:
‘Ministers should be professional in all their dealings and treat all those with whom they come into contact with consideration and respect. Working relationships, including with civil servants, ministerial and parliamentary colleagues and parliamentary staff should be proper and appropriate. Harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated.’ [para 1.2]
This change was introduced in the January 2018 edition of the Code issued by Theresa May, in response to wider concerns about harassment of staff in Parliament and government, but remains in Boris Johnson’s most recent August 2019 text. The failure of the Ministerial Code to offer adequate protection to civil servants, as signalled by the Prime Minister’s decision to back Priti Patel, is a matter for real concern.
Yet equally it might be somewhat unsurprising that this Prime Minister, as ultimate arbiter and enforcer of the rules contained in the Ministerial Code – and indeed the conventions of ministerial responsibility more generally – has determined that these rules were not broken. For in his 18 months in office, the Prime Minister has shown an obvious disregard for a number of constitutional conventions (notably the Sewel convention) and democratic principles (especially when attempting to prorogue Parliament for five weeks). He has also failed to demand high standards of conduct or accountability from his closest collaborators (most infamously, Dominic Cummings and Robert Jenrick).
But beyond the consequences of the impunity granted to the Home Secretary by the Prime Minister’s decision, there are some notable constitutional implications of this episode.
First, we have seen public disagreement between the Prime Minister and his Independent Adviser on Ministers’ interests about whether the rules had been breached by Priti Patel. Sir Alex Allan, who was appointed as Independent Adviser in November 2011 and held this role under David Cameron and Theresa May, resigned from his post after the Prime Minister not only failed to sanction the Home Secretary, but also disagreed with his advice that the rules has been broken. While we must recognise that the Prime Minister is the ultimate interpreter of the Ministerial Code, Allan’s resignation raises a number of questions about the credibility of the Prime Minister’s interpretation of what in this case are pretty clear cut rules. And while the Ministerial Code is not a legal text and does not need to be interpreted in that way, when Priti Patel’s conduct appears to violate both the letter of the Code and the spirit of ministerial responsibility, the empty explanation in the government’s statement as to why there was no violation here suggests that these norms are not being taken seriously.
Second, the introduction of a subjective element to the rules on bullying and harassment is problematic. This was evident in the report of the Independent Adviser and referred to in the Prime Minister’s decision – the alleged bullying (which included ‘some occasions of shouting and swearing’) apparently occurred ‘unintentionally’, which was presented as a mitigating factor in this case. Whether a Minister being entirely unaware of the impact of their conduct on those who work for them should be regarded as a factor in their favour is extremely doubtful. And again, while we should be cautious of overly legalistic interpretation of the Ministerial Code, understanding these rules to include an ‘ignorance defence’ is in stark contrast to the decisive and unqualified rejection of such conduct outlined in the Prime Minister’s now effectively discredited August 2019 foreword, which stated simply: ‘There must be no bullying and no harassment.’
Third, this situation demonstrates the inadequacy of the current informal system of independent advice on standards of ministerial conduct. The deficiencies of this system are not new. Concerns about the scope and nature of the role, the appointment process, and the previous experience of the (now resigned) office holder were considered in 2012 in a report by the Public Administration Select Committee (PASC). This followed the eventual resignation of Liam Fox as Defence Secretary, following a report by the then Cabinet Secretary, Sir Gus O’Donnell. This concluded that Fox allowing his friend Adam Werritty (funded by private interests) to have access to meetings with representatives of foreign governments was ‘an inappropriate blurring of lines between official and personal relationships’. The Independent Adviser in post at the time – Sir Philip Mawer – had played no role in the investigation.
In its report, PASC concluded that the Independent Adviser required greater powers, including to launch investigations on his or her own initiative (para 44). Further, they criticised the appointment of Sir Alex Allan to this role on the basis that it occurred via a ‘closed recruitment process’. Moreover, Allan was a recently retired senior civil servant, and for PASC this raised doubts about the degree to which, as a former government insider, his advice would be truly independent. As such, the PASC concluded that ‘the title of “Independent Adviser” is a misnomer’: ‘We do not in any way question Sir Alex’s integrity, ability or commitment, but neither he nor the role to which he has been appointed is independent of Government in any meaningful sense’ (para 63).
After these recommendations were rejected by the government, a further inquiry was launched by the successor to PASC, the Public Administration and Constitutional Affairs Committee, in 2016. This inquiry was to consider the role of the Independent Adviser together with the Advisory Committee on Business Appointments (ACoBA) of which Sir Alex Allan was also a member. But the final report ‘Managing Ministers’ and officials’ conflicts of interest: time for clearer values, principles and action’ published in 2017 was focused exclusively on the ineffectual operation of ACoBA and its ‘toothless’ regulation of movement between the public and private sectors, rather than the enforcement of ministerial standards while in office.
The Independent Adviser has continued to be deployed inconsistently. There were no investigations conducted in 2016 or 2017. Sir Alex Allan did not investigate the allegations that Damian Green had violated the Ministerial Code in 2017 when accused of making ‘unwanted advances’ towards a journalist or misleading statements about his awareness of pornographic material discovered on his parliamentary computer. But the Independent Adviser was nevertheless asked by the Prime Minister to read the report produced by the Cabinet Secretary on Green’s conduct and comment on its findings, with this ‘second opinion’ affirming his sacking. In the aftermath of Amber Rudd’s resignation as Home Secretary for misleading a parliamentary select committee concerning the existence of deportation targets in 2018, the Independent Adviser investigated not the Minister’s conduct, but (at the request of the Permanent Secretary of the Home Office) that of the civil servants advising her (producing a report criticising some by name). Then in 2019 there were investigations into the conduct of Alun Cairns (bizarrely cleared of breaching the Ministerial Code even after he had resigned, because there was no ‘direct evidence to contradict’ his ‘unlikely’ version of events) and Mark Field (found to have breached the Code for grabbing a climate activist at a black-tie dinner, but the outcome of the investigation was only widely reported in December 2019, when Field had left his ministerial post in July 2019, and by then stood down as an MP).
The role now vacated by Sir Alex Allan is clearly one which needs to be reformed to give greater (or any) confidence that Prime Ministers benefit from independent advice about potential violations of ministerial standards of conduct. The erratic use of the adviser, across successive governments, has given the position and the advice dispensed a lack of authority, such that the Prime Minister felt able to effectively overrule Allan’s conclusions in relation to Priti Patel. Yet it seems most unlikely that the current government will be the one to implement such reforms, and introduce a greater degree of consistency, transparency, independence and clout to the system of investigation and enforcement of breaches of the Ministerial Code. Given this government’s propensity for appointing favoured figures within the Conservative Party network to key official roles (on clear display in the response to the coronavirus pandemic, and as recently criticised by the Commissioner for Public Appointments), we might await the nomination of Allan’s replacement with some trepidation.
Indeed, that is if there will be any replacement, in light of the amendment of para 1.4 of the 2019 Ministerial Code, which at least raises the question of whether the investigatory aspects of the Independent Adviser’s role might be on the path to redundancy. The amended para 1.4 indicates that the either the Cabinet Office ‘and/or’ the Independent Adviser ‘may’ be asked to investigate breaches, whereas previously (as recently as 2018) the same provision indicated that the Prime Minister ‘will’ ask the Independent Adviser to investigate breaches of the Code, and with no reference to the alternative of referring this to the Cabinet Office.
Unless or until reform to this increasingly diluted informal advice system is seriously implemented, the legacy of the episode will be to further undermine the constitutional significance of the Ministerial Code, confirming once more the gulf between the aspirations captured in its rules, and the commitment to them in practice.
The impact on the wider conventions of ministerial responsibility which underpin the written Code is unclear. A popular, if somewhat defeatist, response is to declare the convention dead (yet again). However, the idea that Ministers have individual and collective obligations to the Prime Minister, to each other, to Parliament, to their civil servants, and ultimately to the electorate, is central to the scheme of political responsibilities which, in principle, constitute democratic government in the UK. It is therefore too important to abandon.
Equally, however, the principle of fair labelling (to borrow a concept from criminal law) suggests that when we have a Prime Minister who ignores advice that the Ministerial Code has been breached, and backs a Minister whose conduct is soon to be challenged in an employment tribunal, we cannot make much of a claim to have ‘ministerial responsibility’ in operation in the UK constitution. Instead, for the time being, it appears that rules of ministerial irresponsibility are decisively shaping practice in our system of government.
This article was first published on the UK Constitutional Law Association blog (23 November 2020).
We might wonder whether it is worth writing about the rules of ministerial responsibility under the current government of Prime Minister Boris Johnson. This is especially the case after the Prime Minister’s remarkable, but hardly surprising, decision to give his full support to the Home Secretary, Priti Patel, to remain in his Cabinet after the sudden culmination in November of a long running – and long overdue – internal investigation into claims she had bullied civil servants in her department.
The decision was remarkable because the Ministerial Code had recently been amended to include a clear and explicit prohibition on bullying and harassment by Ministers:
‘Ministers should be professional in all their dealings and treat all those with whom they come into contact with consideration and respect. Working relationships, including with civil servants, ministerial and parliamentary colleagues and parliamentary staff should be proper and appropriate. Harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated.’ [para 1.2]
This change was introduced in the January 2018 edition of the Code issued by Theresa May, in response to wider concerns about harassment of staff in Parliament and government, but remains in Boris Johnson’s most recent August 2019 text. The failure of the Ministerial Code to offer adequate protection to civil servants, as signalled by the Prime Minister’s decision to back Priti Patel, is a matter for real concern.
Yet equally it might be somewhat unsurprising that this Prime Minister, as ultimate arbiter and enforcer of the rules contained in the Ministerial Code – and indeed the conventions of ministerial responsibility more generally – has determined that these rules were not broken. For in his 18 months in office, the Prime Minister has shown an obvious disregard for a number of constitutional conventions (notably the Sewel convention) and democratic principles (especially when attempting to prorogue Parliament for five weeks). He has also failed to demand high standards of conduct or accountability from his closest collaborators (most infamously, Dominic Cummings and Robert Jenrick).
But beyond the consequences of the impunity granted to the Home Secretary by the Prime Minister’s decision, there are some notable constitutional implications of this episode.
First, we have seen public disagreement between the Prime Minister and his Independent Adviser on Ministers’ interests about whether the rules had been breached by Priti Patel. Sir Alex Allan, who was appointed as Independent Adviser in November 2011 and held this role under David Cameron and Theresa May, resigned from his post after the Prime Minister not only failed to sanction the Home Secretary, but also disagreed with his advice that the rules has been broken. While we must recognise that the Prime Minister is the ultimate interpreter of the Ministerial Code, Allan’s resignation raises a number of questions about the credibility of the Prime Minister’s interpretation of what in this case are pretty clear cut rules. And while the Ministerial Code is not a legal text and does not need to be interpreted in that way, when Priti Patel’s conduct appears to violate both the letter of the Code and the spirit of ministerial responsibility, the empty explanation in the government’s statement as to why there was no violation here suggests that these norms are not being taken seriously.
Second, the introduction of a subjective element to the rules on bullying and harassment is problematic. This was evident in the report of the Independent Adviser and referred to in the Prime Minister’s decision – the alleged bullying (which included ‘some occasions of shouting and swearing’) apparently occurred ‘unintentionally’, which was presented as a mitigating factor in this case. Whether a Minister being entirely unaware of the impact of their conduct on those who work for them should be regarded as a factor in their favour is extremely doubtful. And again, while we should be cautious of overly legalistic interpretation of the Ministerial Code, understanding these rules to include an ‘ignorance defence’ is in stark contrast to the decisive and unqualified rejection of such conduct outlined in the Prime Minister’s now effectively discredited August 2019 foreword, which stated simply: ‘There must be no bullying and no harassment.’
Third, this situation demonstrates the inadequacy of the current informal system of independent advice on standards of ministerial conduct. The deficiencies of this system are not new. Concerns about the scope and nature of the role, the appointment process, and the previous experience of the (now resigned) office holder were considered in 2012 in a report by the Public Administration Select Committee (PASC). This followed the eventual resignation of Liam Fox as Defence Secretary, following a report by the then Cabinet Secretary, Sir Gus O’Donnell. This concluded that Fox allowing his friend Adam Werritty (funded by private interests) to have access to meetings with representatives of foreign governments was ‘an inappropriate blurring of lines between official and personal relationships’. The Independent Adviser in post at the time – Sir Philip Mawer – had played no role in the investigation.
In its report, PASC concluded that the Independent Adviser required greater powers, including to launch investigations on his or her own initiative (para 44). Further, they criticised the appointment of Sir Alex Allan to this role on the basis that it occurred via a ‘closed recruitment process’. Moreover, Allan was a recently retired senior civil servant, and for PASC this raised doubts about the degree to which, as a former government insider, his advice would be truly independent. As such, the PASC concluded that ‘the title of “Independent Adviser” is a misnomer’: ‘We do not in any way question Sir Alex’s integrity, ability or commitment, but neither he nor the role to which he has been appointed is independent of Government in any meaningful sense’ (para 63).
After these recommendations were rejected by the government, a further inquiry was launched by the successor to PASC, the Public Administration and Constitutional Affairs Committee, in 2016. This inquiry was to consider the role of the Independent Adviser together with the Advisory Committee on Business Appointments (ACoBA) of which Sir Alex Allan was also a member. But the final report ‘Managing Ministers’ and officials’ conflicts of interest: time for clearer values, principles and action’ published in 2017 was focused exclusively on the ineffectual operation of ACoBA and its ‘toothless’ regulation of movement between the public and private sectors, rather than the enforcement of ministerial standards while in office.
The Independent Adviser has continued to be deployed inconsistently. There were no investigations conducted in 2016 or 2017. Sir Alex Allan did not investigate the allegations that Damian Green had violated the Ministerial Code in 2017 when accused of making ‘unwanted advances’ towards a journalist or misleading statements about his awareness of pornographic material discovered on his parliamentary computer. But the Independent Adviser was nevertheless asked by the Prime Minister to read the report produced by the Cabinet Secretary on Green’s conduct and comment on its findings, with this ‘second opinion’ affirming his sacking. In the aftermath of Amber Rudd’s resignation as Home Secretary for misleading a parliamentary select committee concerning the existence of deportation targets in 2018, the Independent Adviser investigated not the Minister’s conduct, but (at the request of the Permanent Secretary of the Home Office) that of the civil servants advising her (producing a report criticising some by name). Then in 2019 there were investigations into the conduct of Alun Cairns (bizarrely cleared of breaching the Ministerial Code even after he had resigned, because there was no ‘direct evidence to contradict’ his ‘unlikely’ version of events) and Mark Field (found to have breached the Code for grabbing a climate activist at a black-tie dinner, but the outcome of the investigation was only widely reported in December 2019, when Field had left his ministerial post in July 2019, and by then stood down as an MP).
The role now vacated by Sir Alex Allan is clearly one which needs to be reformed to give greater (or any) confidence that Prime Ministers benefit from independent advice about potential violations of ministerial standards of conduct. The erratic use of the adviser, across successive governments, has given the position and the advice dispensed a lack of authority, such that the Prime Minister felt able to effectively overrule Allan’s conclusions in relation to Priti Patel. Yet it seems most unlikely that the current government will be the one to implement such reforms, and introduce a greater degree of consistency, transparency, independence and clout to the system of investigation and enforcement of breaches of the Ministerial Code. Given this government’s propensity for appointing favoured figures within the Conservative Party network to key official roles (on clear display in the response to the coronavirus pandemic, and as recently criticised by the Commissioner for Public Appointments), we might await the nomination of Allan’s replacement with some trepidation.
Indeed, that is if there will be any replacement, in light of the amendment of para 1.4 of the 2019 Ministerial Code, which at least raises the question of whether the investigatory aspects of the Independent Adviser’s role might be on the path to redundancy. The amended para 1.4 indicates that the either the Cabinet Office ‘and/or’ the Independent Adviser ‘may’ be asked to investigate breaches, whereas previously (as recently as 2018) the same provision indicated that the Prime Minister ‘will’ ask the Independent Adviser to investigate breaches of the Code, and with no reference to the alternative of referring this to the Cabinet Office.
Unless or until reform to this increasingly diluted informal advice system is seriously implemented, the legacy of the episode will be to further undermine the constitutional significance of the Ministerial Code, confirming once more the gulf between the aspirations captured in its rules, and the commitment to them in practice.
The impact on the wider conventions of ministerial responsibility which underpin the written Code is unclear. A popular, if somewhat defeatist, response is to declare the convention dead (yet again). However, the idea that Ministers have individual and collective obligations to the Prime Minister, to each other, to Parliament, to their civil servants, and ultimately to the electorate, is central to the scheme of political responsibilities which, in principle, constitute democratic government in the UK. It is therefore too important to abandon.
Equally, however, the principle of fair labelling (to borrow a concept from criminal law) suggests that when we have a Prime Minister who ignores advice that the Ministerial Code has been breached, and backs a Minister whose conduct is soon to be challenged in an employment tribunal, we cannot make much of a claim to have ‘ministerial responsibility’ in operation in the UK constitution. Instead, for the time being, it appears that rules of ministerial irresponsibility are decisively shaping practice in our system of government.
This article was first published on the UK Constitutional Law Association blog (23 November 2020).
Beyond the consequences of the impunity granted to the Home Secretary by the Prime Minister’s decision, there are some notable constitutional implications of this episode
By Professor Mike Gordon
The beginning of the legal year offers the opportunity for a renewed commitment to justice and the rule of law both at home and abroad
By Louise Crush of Westgate Wealth Management sets out the key steps to your dream property
A centre of excellence for youth justice, the Youth Justice Legal Centre provides specialist training, an advice line and a membership programme
By Kem Kemal of Henry Dannell
By Ashley Friday of AlphaBiolabs
Providing bespoke mortgage and protection solutions for barristers
Joanna Hardy-Susskind speaks to those walking away from the criminal Bar
Tom Cosgrove KC looks at the government’s radical planning reform and the opportunities and challenges ahead for practitioners
From a traumatic formative education to exceptional criminal silk – Laurie-Anne Power KC talks about her path to the Bar, pursuit of equality and speaking out against discrimination (not just during Black History Month)
James Onalaja concludes his two-part opinion series
Yasmin Ilhan explains the Law Commission’s proposals for a quicker, easier and more effective contempt of court regime
