Lord Geidt, the independent adviser on ministers’ interests appointed by Boris Johnson in April last year, has published a trenchant annual review. He notes the fine imposed on Johnson in respect of breaking Covid rules and comments, “It may be that the Prime Minister considers that no such breach of his Ministerial code has occurred. In that case, I believe a Prime Minister should respond accordingly, setting out his case in public”.
Simon Flett explains the relationship between the Ministerial Code and the office of prime minister. Long story short: the PM can do pretty well as he/she pleases.
What is the legal status of the Ministerial Code? (Did Johnson have the power to alter it?)
First drafted by a now-forgotten civil servant shortly after World War II, the Ministerial Code was first made public by John Major. It has no legal status. As its title implies, it is not law, but guidance. It was endorsed by former prime ministers, including John Major and Tony Blair. Its value to our national governance comes from the power of enforcement, which rests with the prime minister. The PM could use a breach of the Code to justify a dismissal from cabinet. However, the Queen’s “First Minister”, the prime minister, is subject to the Code on the same basis as the ministers he/she appoints to Cabinet.
As it was created by prime ministers, enforcement of the Code is entirely up to the prime minister of the day. He/she controls how it is policed, and who gets to re-write it and in what ways. A tweet by Lord Falconer, the former Labour justice secretary, has confirmed his view on this. So prime ministers get to fiddle with it whenever it suits them, and they do. For example, in 2015, David Cameron watered it down by deleting words which stressed the need for respect for international law.
What has happened to it (what has he done)?
Prime Minister Johnson has caused the foreword to the ministerial code to be rewritten, deleting all references to honesty, integrity, transparency and accountability.
Why does it matter?
First and foremost, it illustrates Johnson’s readiness to change rules that inconvenience him.
It also illustrates the weak protection provided for principles under our unwritten constitution, specifically of ‘guidelines’ policed by the prime minister.
Many believe Johnson’s purpose was to evade criticism of his own conduct and, specifically, his refusal to resign in the light of having been fined for breach of Covid rules on gatherings during Covid lockdown.
It shows government willingness to ignore the ancient principle of Roman Law (which survives as a precept or guide in our ‘common law’) that “no man may be judge in his own case” (nemo judex in causa sua). That may seem surprising, but I have regularly seen precepts of Roman law cited by barristers in court, and in legal documents and judgements. They still carry much persuasive force with judges – which is in my experience the only thing that matters in litigation!
Why should we be alarmed?
Possibly the worst aspect of this episode is that it is merely the latest in a series of measures by this Government to centralise power, and to water down mechanisms for the electorate to hold ministers accountable.
This move by Johnson is seen by many as part of a pattern, systematically eliminating the ‘checks and balances’ that bar the road to absolute, unfettered executive power (also known as dictatorship). Other examples of this pattern include:
- The neutering of the electoral commission
- Attacks on the right of protest
- Reported attempts to constrain judicial review, in which the courts can have a role (at the request of litigants) in policing the legality of decisions by public servants
- The appointment to the legislature of conservative politicians dismissed by their electorates (such as Zac Goldsmith).
What can be done?
Calls for placing the Code into law will be repeated. There is zero chance of the government taking up such a proposal as government policy, since it goes flatly against an action just taken by the leader of the government. Opposition or private members bills on the subject will be derided by the government’s MPs and dismissed. There is, therefore, no prospect of remedy this side of a general election. All the electorate (many of whom are alarmed by such things) can do is mentally “file” this episode – until after this government is ejected – as something of importance that needs remedy. We must lobby the next government to:
- Reinstate the Code in full (unbowdlerised by Johnson)
- Make its status part of our law (and pass an Act of Parliament requiring ministers to observe it)
- Confiscate from the PM the role of judge in his/her own cause or editing the Code
- Entrust the Code, say, to a cross-party Commons Standards Committee.
What can we do about it?
In the short term, if we care about standards in public life, if we worry about the centralisation of power into the hands of prime ministers, and if we worry about the new culture of disregard (contempt) for “codes” (because they can be ignored), then all we can do is keep this episode on the boil. We need to remind our fellow citizens of it, and as often as possible, remind Conservative MPs that by their endorsement or silence on this issue, they are tacitly endorsing what their leader has done.
