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Ministerial Code - Question for Short Debate

Part of the 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) 2:54 pm, 12th March 2020

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.