With the UK in the midst of its latest political corruption crisis, the question of the (in)adequacy of the current infrastructure concerning standards in public life is once more in the spotlight.  Immediately prior to the parliamentary farce over the Owen Paterson lobbying affair, the Committee on Standards in Public Life published a significant report, Upholding Standards in Public Life: Final Report of the Standards Matter 2 Review (November 2021), outlining a number of potential changes to the system for holding politicians to account for their conduct.  This blog post focuses on one of the Committee’s recommendations: that the Ministerial Code be provided with a statutory basis through a ‘requirement for the Prime Minister to issue the Ministerial Code’ being ‘enshrined in primary legislation’ (Recommendation 4).

To analyse the implications of such a proposal may well be academic, under a government which initially decided it would rather see an end to the current system for determining the compliance of MPs with standards in the House of Commons, rather than risk a potential end to the career of Owen Paterson.  And despite what will surely become an infamous u-turn by the government, which ironically only hastened Paterson’s departure from the Commons, there seems little prospect of Boris Johnson’s administration bringing forward a substantial package of reform to the public standards system.  Indeed, the Prime Minister has most recently argued that the existing rules need to be applied and enforced, which, along with his suggestion that the UK is ‘not remotely a corrupt country’, would appear to indicate the endurance of the status quo is most likely for now.  If this is the case in the context of standards for MPs in general, it is almost certain to apply also in the slightly different context of the Ministerial Code, which covers the standards applicable to government ministers in particular.

Nevertheless, whether it is imminent or not, the idea of grounding the Ministerial Code in statute, when that Code is currently understood to capture a set of non-legally binding constitutional conventions, raises a number of potential challenges.  And given the importance of identifying real options to address some of the UK’s systemic failings in relation to political accountability, the proposal is worth evaluating to understand what contribution, if any, it could make to improving adherence to ethical standards in government.

The Proposed Reform

The proposal of the Committee on Standards in Public Life to introduce a statutory requirement for the Prime Minister to issue a Ministerial Code must be understood as one part of a wider package of reform to the content of the rules, and the role of the Independent Adviser on Ministers’ Interests in investigating potential breaches.  Some of these proposals would be clearly advantageous – for example, the idea that the Independent Adviser should be given the power to initiate their own investigations into ministerial conduct is already strongly implied in the very title of the role.  Similarly, the process (or lack thereof) for appointment of the Independent Adviser is indefensibly opaque and could only be improved by integrating it into a reformed regime for significant public appointments.

Other reforms proposed by the Committee might be less straightforward – for example, while the Ministerial Code is currently a badly structured mix of ethical standards, Cabinet procedures, and political and constitutional responsibilities, it is not clear that the Code should be ‘reconstituted solely as a code of conduct on ethical standards’ (Recommendation 3).  To remove principles like collective responsibility would give an incomplete account of the obligations of a minister, and fail to reflect the multiple, cross-cutting lines of accountability to which ministers are subject – to the Prime Minister, to each other within Cabinet, to Parliament, and to the electorate.  The authority of the Code as a ‘one stop shop’ for ministers would also potentially be undermined.

As part of this package of reform, the Committee’s justification for introducing a statutory requirement to issue the Code is to grant it ‘a more appropriate constitutional status’ [3.21].  It rejects the idea that Parliament should gain the right to draft or approve the contents of the Code – it would still, in that sense, be ‘owned’ by the Prime Minister.  And the legislative conditions envisaged by the Committee would be similarly minimalist – the legislation ‘need only specify that a code be produced and that it should be based on the Seven Principles of Public Life’ [3.21].  The Committee also recommends that the Independent Adviser should be consulted on and able to suggest any revisions to the Code (‘as has occurred in the past’), but it does not make a clear recommendation that this should be an obligation or power with statutory force [3.22].  Other ‘key features’ of the Independent Adviser’s role would, however, be ‘established in primary legislation’, the Committee recommends.  This would include the appointments process, the term length (a single non-renewable term of five years, as has been agreed for the current Adviser, Lord Geidt), and the dual functions of producing the List of Ministers’ Interests and investigating potential breaches of the Code [3.48].

The Committee’s recommendation to give the Code a statutory grounding, understood in the context of its other relevant proposals, is therefore one which is carefully, indeed cautiously, framed.  The core idea reflects the fact that, in the UK’s uncodified constitution, the prime marker of constitutional significance is establishing a set of arrangements in primary legislation, following debate and scrutiny in the UK Parliament.  Whether similar efforts to establish declaratory significance through Acts of Parliament have been successful will be a matter for debate.  For example, statutory declarations of the continuing significance of parliamentary sovereignty make little substantive impact when they are removed from the complexity of the situations they are intended to simplify – s.38 of the EU (Withdrawal Agreement) Act 2020 is an obvious example, given it ultimately amounts to a set of claims about the effects of other provisions in the legislation, while leaving the actual effects of those provisions entirely unchanged.  Equally, the statutory recognition of the Sewel convention in the Scotland Act 2016 and the Wales Act 2017 did little in the context of Brexit to persuade a government which viewed devolved consent as dispensable that it was in fact of deep constitutional significance.

So while there is room to doubt whether a very basic statutory requirement to produce a Ministerial Code will do very much to enhance its constitutional weight, if this is a part of a package of reform which institutionalises the role and powers of the Independent Adviser on Ministers’ Interests, it might seem illogical for such legislation to omit any reference to the Code which that office holder will be asked to enforce.  But even on this more modest basis, there are still a number of potential challenges to the idea of incorporating the Ministerial Code into statute.  I will focus on two: first, the role of the courts and judicial review in this context; second, the implications of the Ministerial Code becoming dominant over wider principles of ministerial responsibility.

Challenge One – The Role of the Courts in Relation to the Code

The first challenge posed by attempts to give the Ministerial Code a statutory grounding relates to the role of the courts.  Any incorporation of the Code in statute would raise questions about whether the application of these conventional rules would become susceptible to judicial review. 

The Committee on Standards seems clear that any legalisation of the Ministerial Code should not lead to the judicialization of its rules: ‘The issuing of sanctions must be a decision solely for the Prime Minister.  To create a situation where any independent regulator of the Ministerial Code would effectively have the power to fire a minister would be unconstitutional’ [3.28].

On the relatively minimalist proposals made by the Committee, which would not see the substantive provisions of the Code set out in the primary legislation, there would be clear space to argue that the courts would not obtain jurisdiction to hear challenges to the decisions of the Prime Minister.  Instead, as in accordance with past and present versions of the Ministerial Code, the Prime Minister would remain ‘the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards’ (2019, 1.6).

However, there are two complications.  First, other proposals to give the Code a statutory basis have been less cautious on this point.  For example, the Institute for Government (‘IfG’) report Updating the Ministerial Code (July 2021) argues that ‘[t]he existence of the ministerial code and the principles it contains, as well as the existence and role of the independent adviser, should be put into statute’ (p.7, my emphasis).  In common with the Committee on Standards in Public Life, the IfG report specifically identifies the Seven Principles of Public Life as being suitable for statutory incorporation, but elsewhere also highlights ‘deeper constitutional and legal expectations’, including the idea that ‘ministers use the powers of government appropriately’ (p.9-10).  And while the IfG report does not explicitly suggest this broad principle would be suitable for conversion into a legal norm, the potential for legislative creep is apparent, especially given one of the tests of the reform’s success is that the Code must obtain ‘strong enough constitutional status to ensure it cannot be ignored’ (p.8). 

Indeed, the IfG report notes that ‘[i]f the legislation is properly drafted the scope of the courts to intervene would not be substantially increased’ (p10).  Yet this therefore assumes that there would be some increase in the powers of the courts flowing from the incorporation of the Code in legislation.  Even the Committee on Standards’ minimalist statutory basis has the potential for a Miller (No.2) style legal challenge based on the scope rather than the exercise of the Prime Minister’s power – the issuing of a Ministerial Code thought to be deficient in some respect could be argued to be a purported Code not a real Code, or the compliance of a Code with the Seven Principles of Public Life could be argued to be insufficient. 

This might seem unlikely in the abstract, but it is surely not now unimaginable, not least due to a second complication in this area: the courts are already being invited onto this terrain in the UK.  This week, the High Court of England and Wales will hear an application for judicial review of the decision of the current Prime Minister to determine that his Home Secretary, Priti Patel, did not engage in bullying of civil servants to the extent that she violated the Ministerial Code.  Boris Johnson’s decision was reached in contravention of the advice of his (then) Independent Adviser, Alex Allan, who resigned from his post in protest.  In FDA v Prime Minister [2021] EWHC 2192 (Admin), a civil servants trade union has been granted permission to argue that the Prime Minister acted unlawfully in applying a different concept of bullying than that set out in policies applicable to the civil service, which use similar language and terminology to that found in the Ministerial Code.

Of course, that a full hearing of this application has been granted means that at this point it is simply arguable, rather than likely to be successful.  And there are a number of potential problems with this claim – while the Civil Service Code has had a statutory basis since the Constitutional Reform and Governance Act 2010, it does not mention bullying specifically, and it remains debatable whether even equivalent language in that text could give the Ministerial Code any legal salience.  Moreover, there is an issue with remedies – the original complainant in relation to Priti Patel has settled an employment claim, the courts cannot order the Minister to be sacked when it is a discretionary matter for the Prime Minister, and even a general declaration that the Ministerial Code had been misinterpreted would have little effect when the courts cannot enforce those rules.  It also seems certain that any judicial intervention in an area of such political sensitivity as the composition of the Cabinet (regarded as non-justiciable by Lord Roskill in GCHQ) would play into the hands of those within government who have criticised the courts for overstepping their boundaries in ways which would previously have been difficult to imagine.

But the FDA judicial review is still being heard, even absent any statutory basis for the Ministerial Code.  Elsewhere in the UK, in Northern Ireland, there is a Ministerial Code with a statutory basis in s.28A of the Northern Ireland Act 1998 (inserted pursuant to the Northern Ireland (St Andrews Agreement) Act 2006).  And recent case law in the High Court of Northern Ireland indicates that a statutory Ministerial Code can have ‘significant legal effects’, as noted by Scoffield J at [101], in the case of Safe Electricity A&T Limited [2021] NIQB 93, which concerned a clash between the requirements of legislation and of the Ministerial Code in the context of collective NI executive decision-making on infrastructure projects.  In contrast with the FDA application relating to Priti Patel, the Safe Electricity case did not relate to unethical behaviour by a specified minister.  Yet in another recent Northern Irish case, Napier [2021] NIQB 86, the statutory Ministerial Code was relevant (in conjunction with other statutory obligations) to a decision (again of Scoffield J) that a political boycott by the DUP of the North South Ministerial Council, held between ministers of the Northern Ireland Executive and the Irish Government under the terms of the Good Friday Agreement, was unlawful.  The consequences of this decision – both legal and political – are still being played out as the DUP has refused to end its boycott.

It therefore seems clear that any statutory basis for the Ministerial Code at UK level would increase the already present possibility of judicial review claims concerning its provisions.  If the aim of a statutory basis for the Code is to enhance its constitutional weight, it may consequently be necessary to consider whether the inclusion of a clause ousting judicial review would be a worthwhile trade-off.

The possibility of an ouster clause to insulate decisions made under and concerning a statutory Ministerial Code from judicial review raises yet further uncertainty.  In Privacy International, the UK Supreme Court (at least by a majority) took a hostile approach which would purport to render any such clause illegitimate, in what would be a direct challenge to the doctrine of parliamentary sovereignty.  And on the other hand, in a consultation following the Independent Review of Administrative Law, the UK government appeared to fetishise the idea of ouster clauses for its own sake, in airing curious proposals for general framework legislation clarifying the effect of these provisions in the abstract (which were ultimately withdrawn).

Yet beyond these extreme positions, there are surely some specific contexts in which it is legitimate for Parliament to try to create an area of political discretion which is not subject to oversight through judicial review.  Decisions concerning the calling of general elections is surely one such area, and while the approach taken by the Dissolution and Calling of Parliaments Bill is in a number of ways regrettable (especially its attempt to simply restore the old prerogative powers to replace the Fixed-term Parliaments Act 2011), there is a credible justification for the ouster clause included in clause 3, and the decision to give the ‘dissolution principles’ a non-legislative status.

There is also recent evidence of a judicial approach which is sensitive to wider context and different modes of political decision-making in relation to constraints on (although not the ouster of) judicial review.  In R (Fylde Coast Farms) v Fylde Borough Council [2021] UKSC 18, the Supreme Court upheld a series of staggered time limits on judicial review claims relating to different stages in the process of approving Neighbourhood Development Orders, in part on the basis that the legislative scheme had been designed to ensure that decisions taken in local referendums held to approve these planning frameworks were not subsequently frustrated (esp at [44], [55]).

While the insertion of an ouster clause into legislation establishing a statutory basis for the Ministerial Code would no doubt be controversial, there is both scope and a compelling political justification to do so.  The role of the courts with respect to such legislation may present a challenge, but it is a surmountable one.

Challenge Two – The Dominance of the Code over the Conventions of Ministerial Responsibility

A second challenge raises broader questions about the relationship between the Ministerial Code and the conventions of ministerial responsibility which underlie its specific codified rules.  In giving greater constitutional authority to the Ministerial Code, its statutory recognition could entrench the dominance of the Code over the conventions.  This is potentially problematic in three ways.

First, the Prime Minister defines the content of the Ministerial Code without the input or approval of Parliament, something the Committee on Standards in Public Life recommends should continue.  Yet the Ministerial Code is arguably one (executive oriented) manifestation of the rules of ministerial responsibility.  And Parliament has a crucial role in shaping the wider constitutional conventions – after all, the conventions concern the responsibility of ministers to Parliament, individually and collectively.  Both the Commons and the Lords have also adopted their own Resolutions concerning Ministerial Accountability to Parliament, in addition to a range of select committee reports on the topic.  While the Ministerial Code is certainly a convenient statement of many key norms, whether it would be right for Parliament to privilege the government’s own statement of what accountability requires is debatable.

Second, if a statutory Ministerial Code were based primarily or exclusively (as the Committee on Standards recommends) on the ethical rules relating to ministers’ conduct, it would largely become focused on one facet of individual responsibility – the personal conduct of ministers – and potentially neglect their official responsibilities for departmental performance and acts of their civil servants.  This ethical accountability would also be entirely hived off from ministers’ collective responsibilities.  This has the potential to create a hierarchy of accountabilities which diminishes concerns about governmental performance.  That might be doubly problematic in a context when ministerial accountability for policy failures is already a second tier issue, and the majority of resignations which do occur in the context of individual responsibility are for bad individual conduct rather than being an inadequate minister.

Third, to extend the authority of the Ministerial Code through statute could further embed an emerging legalistic approach focused on technical (non-)compliance with the codified rules.  We can arguably see this tendency, for example, in relation to the resignation of Amber Rudd as Home Secretary in 2018 for misleading a select committee over the existence of immigration removal targets in a hearing over the Windrush scandal.  If a minister resigns for a more technical breach of the Ministerial Code, it can detract attention – and diminish accountability in relation to – the underlying policy failures in issue.  In Rudd’s case, to resign for misleading Parliament might give a veneer of accountability, while leaving bigger questions about the aims and consequences of government policy unresolved (and in this case, also distracting from the accountability of the then Prime Minister, and former Home Secretary, Theresa May).  While allegations of breaches of the Ministerial Code offer easy oppositional politics, again this puts the focus on narrower issues rather than the overarching performance and accountability of government.  Such an approach to accountability based on legalistic analysis of rules might also, incidentally, have the potential to invite more legal challenges via judicial review.

There might, of course, still be worthwhile gains from ensuring better ministerial compliance with either the ethical or technical norms contained in the Ministerial Code.  But there are at least some assumptions here about what statutory recognition of the Code could achieve which need to be evaluated before that step is taken.

Conclusion

In identifying these challenges to establishing some kind of statutory basis for the Ministerial Code, I do not intend to be overly hostile to the idea.  The proposal has a number of attractive elements, including emphasising the importance of accountability while retaining Prime Ministerial flexibility, and creating scope for a stronger institutionalisation of relevant regulatory actors.  But there are also potential challenges, which make an initially appealing idea less than clear cut.  In any event, it seems extremely unlikely that even binding legal frameworks (whether applicable to MPs or ministers, enforced by the courts or not) could ‘change the culture, calibre and cost of politics overnight’.  The greater, much more difficult task is the constitutional (re)invigoration of a culture of ministerial responsibility and political accountability.  Putting the Ministerial Code on a statutory basis might be part of that process, but it also might be a slightly too easy way out.

With many thanks to Alison Young for her comments on my draft text.

Mike Gordon, Professor of Constitutional Law, University of Liverpool

(Suggested citation: M. Gordon, ‘A Statutory Basis for the Ministerial Code – the Challenges’, U.K. Const. L. Blog (16th Nov. 2021) (available at https://ukconstitutionallaw.org/))