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Ministerial Code - Question for Short Debate

– in the House of Lords at 2:54 pm on 12th March 2020.

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Photo of Lord Tyler Lord Tyler Liberal Democrat Lords Spokesperson (Constitutional and Political Reform)

My Lords, there is a widespread perception that there is a real problem with the Ministerial Code. The central question must be: is the code no longer fit for purpose, or is the current problem caused by its neglect by the present Administration? I can best illustrate this dilemma by reference to the latest challenge. The code specifies that

“the Prime Minister … is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards.”

The Cabinet Secretary, in his evidence to the Public Administration and Constitutional Affairs Committee on Tuesday, reiterated this point. He described the Prime Minister as the “ultimate arbiter”, but Mr Johnson has already intervened in the case of the Home Secretary. Initially, it was as a “character witness”, and he may have got away with that. However, he then subsequently and repeatedly sought to defend her conduct, prejudging the inquiry. Acting as defence counsel in this way clearly prevents him acting as judge and jury at the end of the due process. That would be unthinkable in any other walk of life in this country. Clearly, the Prime Minister must self-isolate himself from the rest of this inquiry and its conclusions.

The absence of an independent, wholly non-partisan arbiter at the completion of an investigation of a Minister is a huge lacuna in the present Ministerial Code. So, here is the dilemma laid bare: is the Ministerial Code inadequate or is it just that the present occupants of No. 10 are so determined to tear up constitutional consensus that this is a crisis of men, rather than of mechanisms? The code reflects a very different political era, when Governments were run on diametrically different lines from the present Administration. It may be significant that the latest version of the code, available online on the government website, refers to special advisers in paragraph 3.3 as follows:

“It is, of course, also open to the Prime Minister to terminate employment by withdrawing her consent to an individual appointment.”

That suggests that Mr Johnson, with his famous disdain for detail, never read through the revised code when he signed the introduction in August 2019. No wonder it reads like a product of a more consensual and compromising regime.

Yet, in the introduction, he personally commits himself, saying:

“There must be no bullying and no harassment; no leaking; no breach of collective responsibility.”

The code spells that out:

“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.”

I will not comment on ongoing cases, but I note that the Public Administration and Constitutional Affairs Committee shares my conviction that the code—and the Code of Conduct for Special Advisers, to which it refers—urgently need review. The new chair of that committee, William Wragg MP, in his House magazine interview this week, says:

“Special advisers have a role, elected politicians have a role, and I don’t think the latter should be subverted by the former.”

He also, incidentally, observes:

“I’d be a hopeless Minister because I couldn’t defend the indefensible.”

It would be interesting to hear the Minister’s response to that, in due course.

The Ministerial Code is quite specific about the terms of engagement for special advisers. It says:

“The responsibility for the management and conduct of special advisers, including discipline, rests with the Minister who made the appointment. Individual Ministers will be accountable to the Prime Minister, Parliament and the public for their actions and decisions in respect of their special advisers.”

There is precisely no mention of the Prime Minister’s senior adviser, Mr Dominic Cummings. Therefore, the former Chancellor was, surely, completely correct in his interpretation of the proper hierarchy of responsibility. Why other Cabinet Ministers are prepared to accept this contemptuous disregard for their responsibilities is beyond me: can anyone in this House recall this level of malfunction in the Thatcher, Blair or Cameron Administrations? A number of former Ministers here today, including my noble friends, may like to comment.

It seems that the current crew have been recruited for their slavish adherence to the Brexit dream rather than any independence of mind, which brings me naturally to the Civil Service. I served on the Select Committee that gave pre-legislative scrutiny to the Bill that finally emerged as the Constitutional Reform and Governance Act 2010. We gave particular attention to the role of the integrity of the professional civil servant in the 21st century, as part of necessary modernisation after more than 150 years’ experience of the Northcote-Trevelyan reforms.

I am pleased that the noble Lord, Lord Butler, is here and will be contributing today: he is one of a much admired group of former Cabinet or Permanent Secretaries who often give your Lordships excellent advice. His view of the efficacy of the codes in current circumstances will be very welcome. I will also listen with great interest to the contribution of the noble Baroness, Lady Finn, with her experience of efforts to secure high-quality recruitment in the Civil Service.

The general consensus seems to be that the deliberately destructive approach of Messrs Johnson and Cummings —with consistent confrontation rather than emphasis on co-operation—is proving dangerously demotivating and stimulating the departure, rather than recruitment, of the brightest and best. This is a recipe for dysfunctional governance. We face challenging constitutional change: with the Prorogation scandal a recent memory, and with the attempt to put the royal prerogative power of the Prime Minister to dissolve Parliament—on partisan grounds, very often—on a statutory basis now in prospect, your Lordships’ House has a special responsibility. We have to remind Ministers that their prime accountability is to Parliament, not to either of the decision-makers in No. 10.

During exchanges with MPs about the Ministerial Code on 2 March, Mr Gove tried to redefine our constitution. In the process, wittingly or unwittingly, he invented a novel and potentially misleading principle:

“Ministers hold office as a result of a general election, and it is important that we respect the popular will and the popular mandate of any Government in making sure that the people’s priorities are delivered.”—[Official Report, Commons, 2/3/20; col. 618.]

At best that is slipshod, at worst downright deceitful. Under our constitution, the citizen elects an individual MP, not a Government, not Ministers, let alone a president or a premier. The latter cannot claim a mandate for anything they care to do or for any way they care to behave. A majority in the Commons—without of course a majority in the country—does not give them carte blanche to act like dictators. This is still a parliamentary democracy, not an elective dictatorship, and we do not yet have a presidential constitution on the American model—thankfully.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative 3:03 pm, 12th March 2020

My Lords, I congratulate the noble Lord, Lord Tyler, on initiating this debate. It is, I think, worth emphasising that the Ministerial Code has developed over decades, emanating from the Questions of Procedure for Ministers, drawn up under Clement Attlee and variously revised since. As we know, the document was formally secret, until John Major authorised its publication in 1992.

As Amy Baker notes in her book, Prime Ministers and the Rule Book, publication

“was a significant step towards a more open and transparent system of government.”

She also draws attention to an important difference in perceptions, one very germane to today’s debate. The view of Ministers and officials is that it is a guide. The public perception, certainly that of the media, is that it is a means by which to judge ministerial behaviour. There may well be a case for a thorough review of the code—as the noble Lord, Lord Tyler, has suggested—both its content and its status. But there is a warning, in that we need to be clear as to the purpose of a review, given who undertakes it. Is the review for the purpose of facilitating good government—ensuring greater clarity over what is expected of Ministers—or to enhance prime ministerial control of the Executive? The code has been variously revised, including in a way that strengthens the grip of No. 10. Some may focus, as the noble Lord, Lord Tyler, has, on special advisers. I would mention paragraph 3.9 in respect of Parliamentary Private Secretaries.

The code is an extensive document, embodying some requirements that are precise and others that are general and amenable to interpretation. Some at times are honoured more in the breach than the observance. Under the principle of collective responsibility, the views expressed by individual Ministers while a decision is being reached should not be disclosed. The Prime Minister’s preface to the latest issue says “no leaking”. As we know, leaks of Cabinet deliberations have been taking place for years.

There are also sections that are remarkably light. This is notably so in respect of relations between Ministers and civil servants. Paragraph 5.2 lends itself to a considerable breadth of interpretation. It is in the interests of the Prime Minister and Ministers to have a more precise document, ensuring that Ministers are clear on what is expected of them, and hence reducing the potential for transgression and bad publicity.

The code, as I have touched on, has become more cluttered over time, extending beyond procedure to encompass behaviour. I draw to the attention of the House the suggestion proffered in Prime Ministers and the Rule Book, namely that the code be split into two documents, one comprising guidance—the original purpose of the publication—covering internal practices and procedures, and the other a free-standing code of conduct. If one were to pursue that recommendation, there is then the issue of who would have responsibility for drafting the documents. The first could be internal, but the latter could draw on others beyond No. 10.

As for strengthening the code as it stands, there may be a case for more consistent practice when the Prime Minister decides there is a prima facie case for investigation. However, there is a problem in enforcement, not just of the sort that the noble Lord has mentioned. Parliament has a role in respect of the requirements identified in paragraph 1.7 but, as has been touched on, ensuring compliance with the code rests on the will of the Prime Minister. That will is necessary but it may not be sufficient. It requires not only political will but political authority to ensure compliance. Normally, that is not a problem, but the circumstances of the last Parliament show what can happen when a Prime Minister lacks the authority to enforce all elements of the code. That was most apparent with enforcing collective responsibility.

Providing the means for more consistent enforcement would have the merit of reducing the gap between the public and official views of the code, reducing, as I say, the potential for ministerial transgressions. Put more positively, it could be seen to ensure that the Government are committed to high standards. On that analysis, everyone benefits.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench 3:08 pm, 12th March 2020

My Lords, when I saw that the noble Lord, Lord Tyler, had secured this debate—on which I congratulate him—I thought it would be incomplete without the participation of a former Cabinet Secretary. After all, we have been the guardians of this document down the years. Its origins were contemporaneous with the creation of the post of Cabinet Secretary. It was first intended by Sir Maurice Hankey not for Ministers but as a guide for officials on how to organise Cabinet and Cabinet committee business—Ministers probably never saw it. It was Prime Minister Attlee who extended it to Ministers, not so much to guide their behaviour as to increase their efficiency. Then, from the 1960s, under the title Questions of Procedure for Ministers, it hugely expanded. It has borne the footmarks of almost every ministerial scandal over the years, as well as other developments in our community. The noble Lord, Lord Hennessy, whom we miss today, was the one who found out about the document and waged a gallant campaign to have it published, which was successful when Prime Minister Major agreed to publish it in 1992. I was Cabinet Secretary at the time and I warned the Prime Minister that its publication would cause him and his successors trouble, which it duly has, but I do think it was right.

Now that Ministers have to be accountable for their behaviour not just to the Prime Minister but to the media and the public, it is right that there should be published standards to which they are expected to adhere. In my view, the availability of such standards in published form does contribute to the honesty of British public life. As has been said, this document has come into prominence again because of the allegations surrounding the behaviour of the Home Secretary, Priti Patel. Like others, I do not wish to comment on that case, of which I do not know the details, but I will conclude with two general points. The first is that, as the noble Lord, Lord Tyler, pointed out, the latest version of the code is dated August 2019, when the present Prime Minister came into office, and he says in his personal foreword:

“We must uphold the very highest standards of propriety … There must be no bullying and no harassment … The precious principles of public life enshrined in this document … must be honoured at all times, as must the political impartiality of our much admired civil service.”

Those words are very welcome, and we must assume that the Prime Minister means what he said.

My second point is that some media comments have suggested an absolutist application of the code. If a Minister has breached the code, they suggest, he or she must, for that reason, lose their post. That seems a clearly unreasonable approach. There must be, in this as in other things, a range of gravity in breaches of the code and then in the response to them. It is like school rules, and the code is like school rules. Some breaches will be so serious and so damaging to the community that they can be dealt with only by exclusion. Some will be less serious and can be dealt with by an uncomfortable interview with the head teacher and an undertaking about future behaviour.

I do not know whether the Home Secretary has breached the ministerial code and, if she has, the gravity of the breach, but if she has, I suggest that the consequences should depend on that question: what is the gravity of the breach? It should not be a binary decision. Pace the noble Lord, Lord Tyler, I believe that the Prime Minister must be the judge of that. The code is not a legal document; this is not a legal process. The final arbiter about the Government are the public, but the final arbiter about who should be members of the Government must be the Prime Minister who leads them.

Photo of Lord Young of Cookham Lord Young of Cookham Conservative 3:14 pm, 12th March 2020

My Lords, I welcome the opportunity to take part in this brief but topical debate, initiated by the noble Lord, Lord Tyler, and I agree with the noble Lord, Lord Butler, about a proportionate response to any inquiries. If we look at how we discipline ourselves in your Lordships’ House, or how the code of conduct is administered in the other place, there is a proportionate, rather than absolutist, response to the offence—I agree with that point.

The noble Lord, Lord Tyler, noted the foreword to the code:

“There must be no bullying and no harassment”.

Last summer, my noble friend the Leader of the House took the initiative and asked all Lords Ministers to go on the “Valuing Everyone” course. I know there was a good response, and I personally found the course very helpful. It showed that even the most well- meaning of people can cause real and unnecessary distress by thoughtless remarks or actions.

The Home Secretary was mentioned by the noble Lord, Lord Butler, and others. I welcome the steps the Prime Minister has taken to investigate the allegations and, in fairness to the civil servants who have made the complaints and to the Home Secretary who has denied them, we should allow the inquiry to take place, without seeking to influence it one way or the other. Can my noble friend confirm that, when it is completed, the same process will take place as with the previous inquiry concerning Damian Green? On that occasion a statement appeared on the Government’s website headed “Summary of the Cabinet Secretary’s report on allegations about Damian Green’s conduct”. It concluded that

Mr Green’s conduct as a Minister has generally been both professional and proper”.

But it went on to say that

“Mr Green’s statements of 4 and 11 November ... fall short of the honesty requirement of the Seven Principles of Public Life and constitute breaches of the Ministerial Code”, and that the Cabinet Secretary’s conclusions were endorsed by Sir Alex Allan, the independent adviser on Ministers’ interests. If that process were followed, it would deal in part with the point made by the noble Lord, Lord Tyler, about the whole process being wrapped in secrecy. I agree that there needs to be some transparency.

Turning to special advisers, the noble Lord, Lord Tyler, quoted paragraph 3.3:

“The responsibility for the management and conduct of special advisers, including discipline, rests with the Minister who made the appointment.”

I raised in Oral Questions last year the case of Sonia Khan, whose discipline was manifestly not the responsibility of the then Chancellor of the Exchequer but of Mr Cummings. I appreciate that this is still a matter of litigation, but can my noble friend confirm that the Government will respond to her claim for unfair dismissal within the time allotted, as there have been press stories of foot-dragging? Can he explain by what authority Mr Cummings instructed the police to remove Miss Khan from No. 10? Related to that, will he comment on the related story in the Daily Mail on 29 February? It said:

“A Downing Street source told the Daily Telegraph: ‘Before he took the job Dom made Boris sign a contract specifying what his powers were to be, that he would be allowed to hire and fire SpAds [and] confirming his authority over other key government projects.’”

If there is such a document, should it not be in the public domain? Has Mr Cummings been given the formal powers that were granted to Jonathan Powell and Alastair Campbell?

Finally, on spads, is it the case that No. 10 is now using contractors to circumvent the rules, the vetting and the limits on spads? We had the recent case of Andrew Sabisky, the super-forecaster who could not predict that his own employment would come to a premature end. I was surprised to read that he was working as a contractor and was present at meetings where highly sensitive matters were discussed. I confess that in my 23 years as a Minister, I had not come across this type of employment, where someone worked closely with Ministers and handled classified material without being either a civil servant or a spad. I agree with my noble friend Lord Norton: perhaps we need to revise the code to include something about contractors if they are to become part of the Whitehall scene.

I hope my noble friend will be able to shed some light on the issues I have raised, along with those raised by other noble Lords.

Photo of Lord McNally Lord McNally Liberal Democrat 3:18 pm, 12th March 2020

My Lords, the greatest tribute that can be paid to my noble friend Lord Tyler in securing this debate is the quality of the speeches we have heard and the embedded wisdom of the contributors so far. Today’s debate has at its heart the concept of governance—that interconnected system of laws and conventions that enable society to work.

Norms and conventions change. Hugh Dalton lost his job as Chancellor for a few indiscreet words to a journalist on his way into this Chamber to deliver his Budget; the other one was out of commission at the time. The leak to the Sunday Times the weekend before the Budget has almost become a tradition in its own right.

Times change—today a lot of the old conventions no longer hold across our society. In the City we no longer rely on “my word is my bond” or a twitch of the Governor of the Bank of England’s eyebrow to guarantee financial probity. In Parliament and government, the understanding that we are all honourable does not carry the weight that it did. Of course, Sir Mark Sedwill was right when he told a Select Committee that it was the expectation that

“professional people conduct professional relationships”.

But that expectation must be underpinned by clear rules of behaviour for those who have power, and protection for those whose duty it is to speak truth to power.

I recently signed up to the “Valuing Everyone” course that the noble Lord, Lord Young, referred to, organised by the House authorities. Do Ministers, on taking office, have any similar training programme? I do not mean just handing them the code; I mean a training programme. When I was chair of the YJB, I did such a training programme as part of the MoJ’s in-house staff relations programme.

We have heard a lot about special advisers, and I hope the Minister will clarify the role of special advisers and the lines of responsibility to them. As has been said, the Ministerial Code is very clear that

“the conduct of special advisers, including discipline, rests with the Minister who made the appointment.”

That is clearly no longer the case. Special advisers are now under the central direction of Mr Dominic Cummings, as the noble Lord, Lord Young, has indicated. Can the Minister say, given the power that Mr Cummings now has, whether there is any reason, other than his own contempt for Parliament, why he should not give evidence before a Parliamentary committee examining these matters?

Just over 20 years ago I was a member of a Select Committee of this House under the chairmanship of the late Lord Slynn of Hadley. We were looking into the state of the public service, after the change of Government in 1997. Our findings were clear; we received much evidence testifying to the

“high standards of efficiency, integrity, impartiality and intellectual rigour which continue to characterise the Civil Service.”

Incidentally, many of our recommendations were somewhat belatedly included in the 2010 Constitutional Reform and Governance Act, to which the noble Lord, Lord Tyler, referred. I still believe our findings are true of our Civil Service and civil servants.

It is probably time for the Lords to establish another Select Committee to look again at these matters, and how they are affecting our public service. I could think of no better chair than the noble and learned Baroness, Lady Hale. What has been emphasised time and again is that the Prime Minister is the Minister for the Civil Service. His recent foreword to the code was full of fine words; but he will be judged on his actions, and he cannot outsource these responsibilities to Dominic Cummings.

Photo of Baroness Finn Baroness Finn Conservative 3:23 pm, 12th March 2020

My Lords, I congratulate the noble Lord, Lord Tyler, on securing this debate. However, while we are ostensibly here to debate potential changes to the Ministerial Code, I fear that we are not necessarily debating the right question. The Ministerial Code is already 31 pages long, the code for special advisers is 18. The Civil Service Code fits very neatly on one page on GOV.UK—I find this rather telling.

The real question is: what is holding the Civil Service back from delivering important and badly needed reforms on behalf of democratically elected Ministers and Governments? We have some of the finest civil servants in the world, and many of the best of them tell me just how much they want to see change. But individual excellence does not mean the institution itself is able to implement such reforms.

Government failures are, of course, not always the fault of the civil servants and there are myriad examples of failures caused by Ministers ignoring good advice. But, as Sir Christopher Meyer recently observed, accusations of bullying seem to have become commonplace when Ministers are demanding exacting standards, being direct or even disagreeing with the advice provided.

No sane Minister would want to go without at least receiving the best advice, even if they choose not to follow it. Civil servants should give robust advice and be resilient enough to make greater use of written directions, which enable them to air their concerns about a policy. But a Minister also has a right to expect accurate advice. A report into the row over the Windrush scandal, which led to the resignation of Amber Rudd as Home Secretary, found that Home Office officials had provided her with the wrong information and then failed to clear up the problem. The internal report, which demonstrated that civil servants had “not supported” her, was inexplicably delayed in its publication.

Some of those admonished for poor performance take shelter under an accusation of bullying—indeed, such accusations can even constitute a form of bullying themselves. As there is no legal definition of bullying, the whole area risks becoming entirely subjective. Being banned from a meeting or cut out of key copy list for correspondence was standard treatment when I was a special adviser in government. Would the treatment of Mr Weisel in “Yes, Minister” constitute bullying?

I therefore seek assurance from my noble friend the Minister that there is a fair process of fact finding when such accusations are made. The Civil Service should not be sitting as judge and jury over elected Ministers, and any concerns of alleged bullying must be assessed objectively and not subjectively. Robust challenge of officials by Ministers is not just something that the Civil Service should tolerate, it is critical to ensure good decision making and better policy formation —the other side of the coin called “speaking truth unto power”. We cannot have Ministers being afraid to criticise, in even the mildest form, for fear of reprisal.

Tony Blair, when reflecting on his own experience, remarked that:

“If you had a crisis, there is nothing better than that British system … But when it came to how do you do health service reform or education reform, or … the early battles I had on reforming asylum and immigration policy, I found it frankly just unresponsive.”

Civil servants are too often woefully unprepared for the huge operational burdens placed upon them, and there is an incomprehensible resistance to training them for such responsibilities. When my noble friend Lord Maude was Minister for the Cabinet Office, he proposed that senior civil servants headed for these very big responsibilities should be put through top management courses, typically three months, at top business schools. This is the routine practice of high-performing organisations. He proposed, and it was agreed, that 10 Permanent Secretaries should go through these courses before the 2015 election. And yet by the election, instead of 10 doing three months at Harvard, Stanford and INSEAD, one person had had done a week’s course at IMD in Lausanne—not quite what was intended, and it is difficult to understand the resistance to make a serious investment in such key people.

It is little wonder that Ministers get deeply frustrated when their departmental officials prove incapable of implementing their policies. After all, this is what democratically elected Governments are held to account on. If they fail, it should not be because there is too little capability in the Civil Service to implement or deliver.

It is this that should be the subject of today’s debate: a Civil Service that desperately needs to look again at its capabilities in leading important operational departments—rather than worrying about unnecessary changes to the Ministerial Code.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour 3:28 pm, 12th March 2020

My Lords, I shall speak on the code of conduct for special advisers and the treatment of Sonia Khan. Paragraph 5 of the code says:

“But special advisers must not … exercise any power in relation to the management of any part of the Civil Service, except in relation to another special adviser”.

I suggest that we delete the final words of that quote from the Code and insert the words “and in relation to the employment security of a special adviser”. If that were to happen, Miss Khan would not have found herself in difficulty.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat Lords Spokesperson (Cabinet Office) 3:29 pm, 12th March 2020

My Lords, many years ago, when I was a graduate student teacher at an American university, I used to discuss with the students the differences between the British and American constitutions. The American constitution is based on the idea that you cannot entirely trust people in power; you need a carefully written constitution and checks and balances to prevent the unconstrained power of the Executive going too far. It has advantages and disadvantages; sometimes it leads to policy not getting through or even to complete deadlock.

Our system is based on a much more flexible unwritten constitution and what the noble Lord, Lord Young, has called on more than one occasion the “honour code”: that people will behave well in British politics, that the conventions will be respected and that the mechanisms which hold the British establishment together and exclude those who do not accept its rules ensure that people do not behave badly. The noble Lord, Lord Hennessy, has called it the “good chaps theory”. The Lords plays a certain role in this as a backup against the popular House being swept away by a surge of populist enthusiasm; successive Marquesses of Salisbury made many speeches about the quiet, calm deliberation that the Lords could bring to British politics.

Part of our unwritten constitution was the relationship between Ministers and officials. It is not only a British aspect; Max Weber once wrote that the difference between politics and administration is that politics is the realm of campaigning, emotions and principle while administration is the realm of reason, evidence and advice. That is an unavoidable tension, made even more difficult when ministerial turnover in Britain is so extraordinarily high, as it has been in the last few years. Officials have to try to keep the show on the road as Ministers pass through every six, nine or 12 months.

That consensus has clearly broken down. The current Cabinet has two Members—one being the Prime Minister—who have broken the Ministerial Code. Indeed, the Prime Minister broke it in three places when he resigned as Foreign Secretary, extending that by continuing to live in his official residence for a further three weeks. In December 2018 the Committee on Standards in the Commons rebuked him for a “casual failure to declare” £52,000 of expenses. Even old Etonians nowadays do not entirely obey the codes of political and social life.

We have a Government who present themselves as insurgent and anti-establishment. Indeed, they often present the establishment, as I am sure the noble Lord, Lord True, approves of, as the “liberal elite.” We have a Government who occasionally describe themselves as post-liberal and even suggest that they have some sympathy with those who have an illiberal approach to democracy. I found the deeply partisan responses to the resignation of Sir Philip Rutnam in the Commons very worrying. There was neither a sense that one had to think about the national interest as a whole nor a recognition that politics and campaigning are different from carrying on the complex problems of government.

The will of the people may establish the principle that we should leave the European Union but it cannot decide whether we should leave the European Aviation Safety Agency or the European medical emergency alert process. That is government; it is complicated and needs officials. Therefore, we need to reconsider some of these fundamental issues. I hope the Minister will say something about the Government’s plans for the commission they have promised to hold on the constitution and democracy, so that we can discuss how to adapt our flexible rules and honour codes to a less British-establishment style of politics—which is what we have now achieved—and how the relationship between Ministers and officials, which is at the heart of that, works in a constitution that we do not want to be on the American scale of constitutional restraints, but which we clearly need to revise.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Shadow Leader of the House of Lords, Shadow Spokesperson (Northern Ireland), Shadow Spokesperson (Cabinet Office) 3:34 pm, 12th March 2020

My Lords, I first thank the noble Lord, Lord Tyler, for instigating today’s debate. I must admit, I had some concerns initially that it might end up being a narrow debate focused on one particular complaint. I am glad to see that my fears were unfounded; it has been a very wide-ranging debate, looking at issues such as the role of the Prime Minister, Ministers, civil servants and special advisers. I make particular reference here to the speech of the noble Lord, Lord Young of Cookham. I hope the Minister will be able to answer those questions today or put responses in the Library so that we can consider them.

As a former Minister, including at the Cabinet Office, I have always thought that the Ministerial Code is essential for the confidence it should give in four key areas, which have been touched on by the noble Lord, Lord Butler: the principle of collective responsibility in government; ensuring proper engagement with Parliament; reducing conflicts of interest; providing for the proper use of government resources. However, as it has developed and, as the noble Lord, Lord Butler, said, become a public document—against his advice—Professor Leighton Andrews at Cardiff University has identified the code as becoming a

“core document underpinning the UK’s unwritten constitution”.

But the code is only as good as its enforcement. Being found in breach of the code can be a sign of its effectiveness, but only if the sanctions are an effective punishment and deterrent. That, as we have heard, is dependent on the Prime Minister of the day. The foreword to the current version says that the code ensures Ministers

“uphold the very highest standards of propriety”.

That statement is by the Prime Minister, who was himself accused of failing to adhere to it after he resigned as Foreign Secretary and restarted his paid column in the Daily Telegraph too early.

Recently, as we have heard, the code has morphed into a document beyond its traditional remit, following misconduct allegations against the current Home Secretary, Priti Patel, the former Defence Secretary and former First Secretary of State. As the noble Lord, Lord Norton, touched on, when the 2019 code was published, the press comments from the Prime Minister were more about internal Cabinet discipline than the other issues in the code.

The most important change made in 2019 was the entirely new reference to harassment and inappropriate behaviour, which is a significant departure from the original purpose of the code. Disappointingly, given the nature of this change, there was no real discussion of whether this was the right vehicle to handle such issues. No new processes regarding transparency and accountability were included. It is that new section which has led to the inquiry into allegations against the Home Secretary following the recent resignation of Philip Rutnam. There are two issues here. First, as we have heard, the ultimate arbiter of what action, if any, will be taken is the Prime Minister, who has already been visible and vocal in his support for the Home Secretary. Secondly, there is no independent assessment of the inquiry and no understanding of what the appropriate sanctions are or would be.

Obviously, Prime Ministers can and do hire and fire Ministers at will. However, by bringing personal behaviour issues into the code without any clear guidance or independence, there is a now a much more difficult judgment to be made, particularly given that other issues in the code are much clearer regarding what is and is not appropriate. There is not the same kind of benchmark for personal behaviour issues.

As we have said, none of us can comment on the current inquiry or its outcome and I am not convinced that a breach of the code should lead to an update of it. It can be argued that if someone is found in breach of a code, that proves it works, if the sanctions are appropriate. However, it would be remarkable if the code was updated for a second time following the actions of one Minister. It brings to mind Oscar Wilde: to paraphrase, to be responsible for one new clause in the code would be unfortunate—two would be a scandal.

The relationship between Ministers and civil servants is multifaceted. I feel fortunate to have worked so often with some of the best. Civil servants deserve the respect and support of those they serve, as well as a proper outlet to bring forward any concerns.

The First Division Association has called for an independent complaints procedure to replace the current arrangements. The general secretary, Dave Penman, has correctly stated that civil servants need a clear process, independent of political interference, that has transparency and confidentiality at its core. I will support such a reform, and this debate today has provided very useful guidance for any Ministers considering what reforms are to be included.

Photo of Lord True Lord True Chair, Intergenerational Fairness and Provision Committee, Minister of State (Cabinet Office) 3:39 pm, 12th March 2020

My Lords, I thank all noble Lords who have spoken, particularly the noble Baroness, Lady Smith, many of whose thoughtful remarks struck a chord not only with the House in general but with me. I thank the noble Lord, Lord Tyler, for giving us this further opportunity to debate the Ministerial Code. I have been a Minister for less than a month; in that time, I have signed the Ministerial Code and responded three times to your Lordships on this subject. I am therefore left in little doubt that it is a matter of importance and one in which your Lordships, quite rightly, take a great interest from a position of great experience.

I will try to answer as many questions as possible that have quite reasonably been raised in the debate, but perhaps I might offer a preface. Here I echo some of the comments made by a number of those who have spoken. We must strive to secure good governance, which means that Ministers and officials work well and harmoniously together. That is the aim of effective administration, and it is from that sense of a shared objective that good decisions and implementation should follow.

I was there in 1992 when Prime Minister Major agreed to publish the Questions of Procedure for Ministers. I suspect that some of us on the political side probably gave similar advice to the noble Lord. However, we must not overdramatise; we must recognise the issues that we have to address, some of which have been raised in this debate. In general, however, the quality of governance in this country—I do not accept, as some noble Lords put forward, that a dramatic new kind of cowboy Administration have come in—and the standards are extraordinarily high, and we do not serve good governance by denying that or overdramatising the situation. I was asked whether I wanted to defend the indefensible: I do not think that I am defending the indefensible when I say that governance generally operates well, and the Ministerial Code is part of that.

When an Administration change and when a new Prime Minister comes in, it has always been the case that there is a challenge. I remember talking to the noble Lord, Lord Butler, two days before the change of administration in 1997, saying to him, “Here you are at this stage of your career; a change of Government will present a great career challenge.” The noble Lord quite rightly relished that. Of course, we all know that history proved that a new Government came in and I am sure that the Conservatives said some of the same things about the incoming Blair Government as are being said today.

That takes me directly to the point made about the position of Mr Cummings and his authority. The cases of Alistair Campbell and Jonathan Powell, who were given direct authority over officials in 1997, is not analogous. Following the Constitutional Reform and Governance Act 2010, to which the noble Lord, Lord Tyler, referred—I thank him for his work on that—the position of special advisers was put on a statutory basis, and Mr Cummings’s role is governed by that Act.

Turning to some of the other points that were made, I agree with what the noble Lord, Lord Butler, said about balance and degree. That is inherent in what I just said about not exaggerating the degree of the problem. Every case and every serious allegation that is made must be subject to a testing of the facts. That is the way things are going on currently, which has been mentioned by a number of noble Lords. That must always be the case. In any judgment, at the end of the day—I do not refer to this particular case; I refer to any judgment—an element of degree must always come into it, as the noble Lord, Lord Butler, said.

My noble friend Lord Young asked me a series of questions, some of which he was kind enough to give me notice of, so I will try to answer one or two of them. As far as training is concerned—this issue was raised by a number of noble Lords, including the noble Lord, Lord Tyler, at the start—all Lords Ministers have done the Valuing Everyone course or have slots booked to do it. I have done it myself and agree that it is a very valuable and important course; I would encourage everyone to undertake it. There is quite a queue to take the course in this large House, as noble Lords can imagine, but I assure noble Lords that this training is being given. It is vital that all parties in both Houses continue to encourage completion of that training.

On the case of Ms Khan, I cannot comment because it is subject to litigation. I hope that the noble Lord will understand; he has put his point on the record and I am sure that that is there for people to see.

On the point about a story in the Daily Mail, it may surprise some noble Lords in this House that I do not believe everything I read in that paper. I am particularly surprised that my noble friend Lord Young of Cookham is such an aficionado of the Daily Mail, but one lives and learns. I am aware of no such contract. The advice I am given is that Mr Cummings is a special adviser and subject to the special adviser code of conduct.

As far as contractors are concerned—I was away for a week when Mr Sabisky was enjoying his career in government—contractors are subject to the Civil Service code of principles, but again it would be inappropriate for me to comment on a particular vetting status or contractual arrangement applying to an individual. I hope that I have answered, or at least responded to, most of the points that my noble friend made.

The noble Lord, Lord McNally, raised the issue of ministerial training and I have sought to respond to that. On the question of the employment of special advisers, I thought we were discussing the Ministerial Code but I will always try to assist your Lordships. On special advisers, the point has been made that, as set out in the 2010 Act, they are selected for appointment by Ministers, and Ministers are ultimately responsible. However, all appointments must be approved by the Prime Minister, and it is inherent in that that the Prime Minister has a role in ensuring that special advisers are appropriate to their appointment and are conducting their activities appropriately. I see nothing particularly sinister in that.

My noble friend Lady Finn made some strong and powerful points, and I am sure that everyone who heard them will reflect on them. I said earlier in my remarks that I think there is a shared challenge in making good governance work. Sometimes there will be robust exchanges and sometimes friendly ones. When a Government come in with a new approach and a new mandate, or are refreshed by a general election, of course it is incumbent on the system to seek to implement in the most expeditious and effective way what that would-be Government have promised to the people.

Unlike the noble Lord, Lord Wallace, I am not afraid of using the word “people” because ultimately it is from a popular mandate that a Government’s authority arises. It is always interesting to hear a Liberal criticising insurgency; I thought that the beauty of the Liberal Party was that it had always been insurgent.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat Lords Spokesperson (Cabinet Office)

I was talking about Conservatives describing themselves as insurgents. I always thought that the Conservative Party was the establishment. It is a matter of puzzlement that we have so many Conservatives now describing themselves as the anti-establishment.

Photo of Lord True Lord True Chair, Intergenerational Fairness and Provision Committee, Minister of State (Cabinet Office)

I am a Conservative of liberal mind, I am afraid—with a small “l”.

Photo of Lord True Lord True Chair, Intergenerational Fairness and Provision Committee, Minister of State (Cabinet Office)

I will not ensure that Hansard records that remark from a seated position; I would not like to think that anyone would think that of me.

With regard to reviewing the code, my noble friend Lord Norton of Louth pointed out in a very authoritative speech the progress of the code over time. It is periodically reviewed, and Mr Johnson recently published an update in August. Ultimately it is not for me to say; it is for the Prime Minister if he or she wishes to make a change, but it has recently been revised and reviewed. I believe that the Ministerial Code is strong. It is subject to review and an assistance to good government—

Photo of Lord Young of Cookham Lord Young of Cookham Conservative

There is one question that I asked, and I wonder whether the Minister could reply. When the current inquiry into the Home Secretary ends, will there be transparency about the conclusions similar to what there was in the previous inquiry that I referred to?

Photo of Lord True Lord True Chair, Intergenerational Fairness and Provision Committee, Minister of State (Cabinet Office)

Ah, yes, my Lords, I apologise to my noble friend. I cannot absolutely give that assurance. As he knows, Sir Alex Allan publishes an annual report on what he has done or looked into. As far as each individual case is concerned, and this is not unrelated to the point made by the noble Lord, Lord Butler, the publication of any other summary is a matter for the Prime Minister to determine at the appropriate time. I am sure that the Prime Minister will take that decision in the appropriate way at the appropriate time. At the moment, a process is under way to establish the facts.

If your Lordships will permit, I will not repeat what I have said but I will say that the Ministerial Code is not as flawed as some have argued. It is subject to great scrutiny, including in Parliament, and I believe that we should all focus on making all aspects of good government work together, both Ministers and civil servants. From those two partners comes the best outcome.