Introduction

In November 2020, the PM, Boris Johnson, released a report by the Independent Adviser on Ministers’ Interests. The Adviser, Sir Alex Allen, had inquired claims that the Home Secretary, Priti Patel, had bullied officials. The Adviser is responsible, when commissioned to do so by the PM, for investigating whether ministers have violated the standards set out for them in a document called the Ministerial Code. Allen concluded that Patel had behaved in a way that could be construed as bullying by those upon whom it impacted, though possibly unwittingly. Allen advised that the conduct of the Home Secretary had violated the Code. The PM responded by announcing that Patel had not broke the Code and should continue in office; and that the matter should now be closed. Allen, whose views the PM had rejected, resigned as Independent Adviser on Ministers’ Interests. Catherine Haddon of the Institute for Government interpreted this turn of events as having ‘raised serious questions about whether the Ministerial Code is fit for purpose’ (Haddon, 2020).

If the effectiveness of the Ministerial Code is in doubt, the implications for the UK government, ministers and the way they are regulated are considerable. A consideration of the content of the Code illustrates how important it and the issues it deals with are (Cabinet Office, 2019). The Code stipulates that ministers in the UK government ‘are expected to maintain high standards of behaviour and…propriety.’ A passage relevant to the Patel affair insists that ‘[h]arassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated’. Some of the most important features of the UK constitution are addressed in the Code. It tells us, for instance, that every minister in the government is subject to ‘[t]he principle of collective responsibility’ (for collective responsibility, see: chapter 2).

As well as addressing the need for good personal conduct, the Code sets out rules that are core to the operation of parliamentary government in the UK (see chapters 1 and 4). It stipulates that ministers are accountable to Parliament for the bodies under their control, and that they and civil servants must provide ‘accurate and truthful information to Parliament’; and ‘be as open as possible with Parliament and the public’. If they ‘knowingly mislead Parliament’, then ministers are ‘expected to offer their resignation to the Prime Minister’. It makes various other provisions, including those intended to ensure that ministers do not, and are not seen to, use their offices to further their own private interests, and do not misuse public money for political gain. The Code requires them to respect the impartiality of the Civil Service and to take into account the views of officials when reaching decisions. There are various other stipulations in the Code. As a whole its content comprises a set of rules fundamental to the existence of a democratically accountable, ethically sound government.

Diving Deeper

The process of codification

The Ministerial Code can be seen as a manifestation of a significant tendency in UK politics: for the creation of documents that set out important features of the UK political system and constitution. The UK famously lacks a ‘written’ or ‘codified’ constitution. But over time, important aspects of it have come to be written down, for instance in Acts of Parliament, or codes such as the Ministerial Code (see: chapter 1). The roots of the Ministerial Code can be traced as far back as the First World War (1914-1918), and the formation by David Lloyd George, after becoming PM in 1916, of the entity that would become the Cabinet Office (see: chapter 2). The Cabinet Office has, over the decades, produced a variety of documents setting out principles about how government is supposed to operate. Alongside the Ministerial Code, other such texts include the Cabinet Manual, published in 2011. Other branches of the constitution have their own codes. The judiciary, for instance, has the Guide to Judicial Conduct (for the role of the judiciary, see: chapter 5). The devolved governments have their own equivalents to the UK Ministerial Code (see: chapter 11). Codes have therefore become an important part of UK political life. But as the Patel case suggests, their effectiveness is open to question.

Public document

In 1992, the precursor document to what has been known, since 1997, as the Ministerial Code, called Questions of Procedure for Ministers, was made publicly available for the first time. Before this point, it was a secret document, only supposed to be available to a limited group within government. They could refer to it to guide them in their work. While some external commentators became aware of its existence, it was never officially available to outsiders. An important transition has taken place in subsequent years. The Ministerial Code and documents like it are now more than manuals for internal guidance of office holders. They are public texts. Politicians outside government, journalists and various observers can use them as a means of judging and potentially condemning the behaviour of those who are supposed to be subject to them.

Lack of firm basis and independent enforcement mechanisms

The Ministerial Code could figure in public debate. It could be used as a lens for outside criticism of the behaviour of ministers and a means of applying pressure to them. Johnson as PM had felt obliged to ask the Independent Adviser on Ministers’ Interests to investigate in the wake of allegations in the media about the behaviour of the Home Secretary. But ultimately, the Code is clear that the PM makes the decisions about whether such an investigation needs to take place at all. Civil servants, moreover, are not the enforcers of the Code; and the PM is ‘the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards.’ Even if the Adviser judged the Code to have been violated, as in the case of Patel, the PM could choose not to agree, and to protect a minister. The Code contained within it provisions of a constitutional nature. But there was no direct means by which they could be legally enforced, in the way that a written constitution might be in other countries. The Ministerial Code was an important set of rules applying to the operation of ministers. Yet it was a minister within that government, the PM, who was their ultimate enforcer. Moreover, PMs are responsible for revising and reissuing the Code. While they do not tend to use this power to alter the text greatly, it is significant that PMs draft and implement such an important set of regulations.

Summary

The Ministerial Code contains some of the most fundamental principles according to which ministers within the UK government are supposed to operate.

It is the product of a long running tendency towards the codification of aspects of the UK government. In the UK, the importance of such documents is of particular importance given the lack of a ‘written’ or ‘codified’ constitution.

The Ministerial Code does not have a firm basis in law. There is no Act of Parliament providing for its existence. It is drawn up in accordance with the view of the PM of the day, who is also responsible for its interpretation and enforcement.

The investigation into Priti Patel and the outcome of it in 2020 highlighted that the effectiveness of the Code is dependent upon ministers and the PM being willing to abide by it.

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