Mike Gordon: Dominic Cummings and the Accountability of Special Advisers

It is far from new for the conduct of Dominic Cummings to be a matter of political controversy.  The man who is Prime Minister Boris Johnson’s current chief adviser was the Campaign Director of Vote Leave during the 2016 Brexit referendum, an organisation which was subsequently investigated by the Electoral Commission and fined for breaking electoral spending limits.  Cummings has been held in contempt of Parliament, for refusing to attend a session of the House of Commons Digital, Culture, Media and Sport Committee into ‘Disinformation and “Fake News”’, examining issues raised during the referendum campaign about data use and targeted political advertising.  And he is widely believed to have been a key architect of the Prime Minister’s unlawful attempt to prorogue Parliament for five weeks in September 2019, in an undemocratic attempt to subvert an intransigent and hostile legislature at a key moment in the planned process of exiting the EU.

Yet the recent revelations concerning his activities between 27 March and 14 April 2020, at the height of the coronavirus lockdown, have topped even this remarkable list of transgressions.  This post explores Dominic Cummings’ accountability, as a special adviser within government, for these actions. 

First, Cummings drove his unwell wife and young child from London to County Durham, to complete a required period of household isolation there, in a house on his parents’ estate, rather than in his family’s home.  Second, towards the end of the family’s stay in Durham, Cummings drove his wife and child to the town of Barnard Castle, a round trip of some 50 miles, spending at least some time walking near the river there before returning to the house in which they were isolating.  Cummings has claimed that these actions did not break the law or the government guidance which together constitute the ‘rules’ structuring the national lockdown which came into effect on 23 March 2020, in a belated effort to slow the spread of the coronavirus across the UK.

From a legal perspective, Cummings’ argument is dubious at best.  At the relevant time, Regulation 6(1) of the Health Protection (Coronavirus, Restrictions)(England) Regulations 2020 placed a strong restriction on movement: ‘During the emergency period, no person may leave the place where they are living without reasonable excuse’.  Cummings’ excuse for the initial trip to Durham was that he was concerned to relocate to a place where childcare would be available, in the event that he and his wife were both simultaneously ill with symptoms of Covid-19.  There is no explicit exception to this effect in the list contained in Reg 6(2), but this is not an exhaustive list of what may be legally ‘reasonable’ excuses.  The family’s 260 mile trip to Durham is, however, difficult to square with the core, overarching government instruction in place at the time – ‘Stay at Home’ – and had the potential to carry the virus from one end of England to the other.  If what is legally reasonable is interpreted against the backdrop of this guidance, it seems arguable the trip to Durham would fall comfortably outside the category of available excuses.

There is even greater clarity about the illegality of the second, shorter trip from Durham to Barnard Castle.  An investigation by Durham Police Force concluded that this ‘might have been a minor breach of the Regulations that would have warranted police intervention’ – had Cummings been stopped by an officer, he would have been directed to return home, and no further enforcement action would have followed had this advice been complied with.

Yet even if such breaches of the law can be glossed over as ‘minor’, Cummings has a wider set of constitutional duties.  The legality of his conduct should simply have been a baseline expectation given the powerful position he occupies within government.  He is among the Prime Minister’s most senior advisers – indeed perhaps the most influential adviser to Boris Johnson.  According to the 2019 Annual Report on Special Advisers (which must be presented to Parliament each year, by virtue of s.16 of the Constitutional Reform and Governance Act 2010), Cummings is one of eight senior advisers working with the Prime Minister who sit in the highest level Pay Band 4 (on salaries between £96,000-£145,000 per year).  Of the 108.4 (FTE) special advisers working in government (as at November 2019), only one further special adviser was in this ‘PB4’ category (located in the Treasury).  And approaching half of all 108.4 special advisers then worked for the Prime Minister directly – 44 in total, a figure which is many times greater than the next largest team of six special advisers, working for the Chancellor of the Exchequer.  Cummings is therefore a member of an elite within an elite providing advice at the centre of government.

Even as a senior special adviser (or SpAd), Cummings is subject (at least in principle) to the same rules concerning his conduct as all other SpAds.   The Code of Conduct for Special Advisers was last updated in December 2016, and is a relatively sparse document, running to 24 paragraphs over 5 pages, plus two Annexes (one is the Civil Service Code, relevant parts of which are also applicable to special advisers in their capacity as ‘temporary civil servants’; the other sets out the general rules on Business Appointments applicable to all civil servants on leaving government).  This Code has a statutory footing – its publication is required under s.8 of the Constitutional Reform and Governance Act 2010, which by s.8(11) also provides that ‘A special advisers code forms part of the terms and conditions of service of any special adviser covered by the code’.  The Ministerial Code establishes that all special advisers will be appointed on terms which subject them to the Code of Conduct for SpAds (para 3.2). 

Crucially, by para 8 of their Code of Conduct, special advisers are ‘bound by the standards of integrity and honesty required of all civil servants as set out in the Civil Service Code’.  For these purposes, integrity is defined as ‘putting the obligations of public service above your own personal interests’ and honesty as ‘being truthful and open’ (para 3 of the Civil Service Code).  While these are important obligations, this is not an elaborate or demanding framework.  Indeed, as political figures, special advisers are exempt from the additional obligations imposed on other civil servants to act with impartiality and objectivity (and there is no necessity to appoint them based on considerations of ‘merit’).  Their conduct is also subject to a narrower set of principles than government ministers.  For while, like ministers, special advisers are political appointments made only with the express approval of the Prime Minister, they are not subject to the full Seven Principles of Public Life (set out in Annex A to the Ministerial Code).  Notably, beyond their obligations of integrity and honesty, special advisers are not required to demonstrate ‘selflessness’ or ‘leadership’, among others.

These are the constitutional obligations applicable even to Dominic Cummings, underpinned by the primary legislation of Parliament and the clear guidance issued by the Prime Minister.  They essentially frame the political responsibilities which attach to the public role held by special advisers.  And even these more limited principles have surely been broken by Cummings’ actions during the coronavirus pandemic.  While the PM has stated his belief that Cummings has acted with ‘integrity’, this does not align with the concept as defined in the relevant Code of Conduct.  Far from putting public service above his personal interests, Cummings appears to have done the opposite: putting his own priorities first, in the face of government guidance (and legal rules) to the contrary, having a damaging effect on the public health message during a pandemic, at exactly the moment a collective response is most required.

There are also significant problems concerning how ‘truthful and open’ Cummings has been.  None of the initial reports of his self-isolation referred to his rogue relocation from London (indeed it was widely reported he was ‘at home’), nor was it mentioned in the Spectator column written by his wife Mary Wakefield about their experience with Covid-19.  Before the revelations about his trip to Durham broke, Downing Street was refusing to comment when asked where he has stayed during lockdown.  And while Cummings subsequently appeared at an extraordinary press conference in the back garden of 10 Downing Street, giving a lengthy account of his movements only once his potential violations had already been exposed, there are major doubts about the credibility of at least one of his attempts to justify his conduct.  His explanation for the trip to Barnard Castle on 12 April – which he claimed was to check his eyesight had sufficiently recovered to allow him to drive a car safely (a test conducted over 50 miles with both his wife and child in the car) – has been widely mocked (even in usually sympathetic media).  And there have been further eyewitnesses making allegations about his activities during his visit to the town which contradict Cummings’ own account.

Taken together, there are more than ample grounds to suggest that Cummings has seriously violated the Code of Conduct for Special Advisers, in addition to any violations of the law.  Yet ultimately, the consequences of this remain a matter for the discretion of the Prime Minister.   As the Ministerial Code (para 3.3) makes clear: ‘The responsibility for the management and conduct of special advisers, including discipline, rests with the Minister who made the appointment’.  While those ‘Individual Ministers will be accountable to the Prime Minister, Parliament and the public for their actions and decisions in respect of their special advisers’, when the appointing minister is the Prime Minister himself, as in relation to Cummings, in practical terms this may end up meaning very little. For although it is always ‘open to the Prime Minister to terminate employment by withdrawing her consent to an individual appointment’, the current Prime Minister – whether he has turned his mind to potential violations of the Code of Conduct or not – seems zealously committed to ensuring Cummings remains his chief adviser.

This inevitably leads to frustration that there is no mechanism to force a different outcome, when potentially serious violations have been committed.  Yet while opposition MPs have sought to draw in the Cabinet Secretary to investigate Cummings’ conduct, this has unsurprisingly been unsuccessful.  In identical letters to the SNP’s Ian Blackford and Labour’s Rachel Reeves on 27 May, Mark Sedwill simply noted that the Prime Minister had responsibility for these decisions, and reiterated Boris Johnson’s questionable conclusion that Cummings had acted ‘reasonably, legally’ and ‘with integrity’.   

Some of these difficulties with accountability flow from the fact that special advisers are different, and difficult to fit neatly into existing constitutional accountability structures.  While special advisers are political actors, like ministers, they are not held to the same detailed standards of individual and collective responsibility as a matter of constitutional convention.  But while special advisers are temporary civil servants, they are released from many of the strictures applicable to public officials which ensure continuity of appointment as governments come and go.  As a result, special advisers are subject to lower standards of accountability than either of their closest comparators.  Yet the (potential) trade-off is their particular vulnerability – they can be removed from their posts relatively easily if they step out of line, given they explicitly lack the job security of either the permanent civil servants who serve under rotating administrations, or the ministers who (at least between elections) can return to being a backbench MP or peer if they are dismissed from the government.

Yet there is also much here which is anomalous with reference to Dominic Cummings in particular.  If he were a minister, then constitutional conventions would apply to structure his political responsibilities, perhaps (but certainly not necessarily) hastening his departure from a position of authority (as with the shadow Labour whip Rosie Duffield), or at least providing a clearer and more elaborate set of standards for public evaluation of his actions.  And if he were a non-political adviser, he might be more readily eased from a position of influence (as with Dr Catherine Calderwood and Professor Neil Ferguson).  Yet in his actual role of chief special adviser, Cummings, and the Prime Minister responsible for him, seem to believe he transcends the very idea of political responsibility.  This concept itself appears to have been entirely absent from their reaction to Cummings’ conduct being exposed, and is most obviously reflected in the fact there has been no apology, no regrets, no resignation and certainly no sacking.

There is much to lament here, and questions to ask about whether it would be possible for the accountability of special advisers to be reinforced in a meaningful way – or at least, for the existing Code of Conduct to be less flagrantly ignored. 

However, when we look at accountability in a broader sense, it is also clear that the Prime Minister has paid a heavy political price for his decision to back Cummings.  Boris Johnson has gone from a leader with a substantial parliamentary majority gained at the 2019 election, to coping with open dissent in the parliamentary party and government, with one junior minister resigning.  The Cummings affair has seen both the Prime Minister and his chief adviser relentlessly criticised in the media, in newspapers across the political spectrum.  There have been major falls in public opinion, both in approval ratings for the government and the Prime Minister personally.  A majority of the public think Cummings broke the rules, and the Prime Minister is out of step with popular opinion.  Boris Johnson has appeared vague and aggravated at press conferences and in his (belated) appearance before the House of Commons Liaison Committee, being placed under pressure about the extent to which his defence of Cummings will undermine public compliance with lockdown measures (now or in the future).  The wider credibility of the government’s handling of pandemic was already a matter of considerable debate, to which now can be added the fact that a number of expert advisers have publicly criticised the decision not to sack Cummings, due to its potentially troubling impact on public health messaging when the public see influential political figures avoiding rules intended to apply to all.

The overall consequences for the government could, therefore, be profound.  Whether Dominic Cummings ultimately leaves his position or not, these failures of political responsibility cannot now be undone.  Yet the failure to accept and address them at an individual level – on the part of both Cummings and the Prime Minister – seems to have fuelled a climate of greater accountability more generally, in which the government’s ongoing response to the pandemic can be ever more closely scrutinised and challenged.  Consequently, it may be the case that the Dominic Cummings affair has, in different senses, generated both less accountability and more accountability than we might have expected.

Mike Gordon, Professor of Constitutional Law, University of Liverpool

(Suggested citation: M. Gordon, ‘Dominic Cummings and the Accountability of Special Advisers’, U.K. Const. L. Blog (3rd June 2020) (available at https://ukconstitutionallaw.org/))