In an era of intense and continuing controversy over the rules of political responsibility, the question of how to reform the current framework of constitutional standards applicable to politicians requires serious consideration.  In addition to the regularity with which allegations about ministerial irresponsibility are being raised and sometimes (eventually) addressed, there are clearly structural challenges relating to these accountability processes and practices.  There are legitimate concerns about the consistency, certainty, efficacy, independence and transparency of decision-making in this context.  These concerns apply to the way in which potential violations of ethical standards are investigated, and also to the way in which sanctions are (or are not – or are not for long) imposed on political actors who are found to have broken the rules.  The systemic nature of the UK’s failings in this area shows the need to consider potentially radical constitutional reforms.

However, the particular nature of the constitutional rules relating to political responsibility makes reform a complex proposition.  Most of the core rules and principles relating to ministerial standards are found in constitutional conventions – the fact that these rules are not legally enforced, but derive their obligatory force from the practice and expectations of constitutional actors, makes top-down reform difficult to deliver in an effective way.  While the norms themselves might be easily refined or redefined (for example, by the Prime Minister rewriting the Ministerial Code), institutional reform is arguably required to make any such change substantive rather than merely formalistic.  The most prominent current proposal for institutional reform is that of the Labour party, which has indicated it would establish an Integrity and Ethics Commission if it were to form a government following the next general election.  But the case for such a Commission is far from universally accepted, and the details of its potential remit and operation are yet to be fleshed out.

Consequently, the aim of this blog post is to explore the case for an Integrity and Ethics Commission.  It first considers the merits of this (still evolving) proposal.  It then considers how this kind of institutional reform might be implemented, and four challenges delivering this reform would pose, relating to the scope, powers, judicial oversight and composition of a potential Integrity and Ethics Commission.

The Case for an Integrity and Ethics Commission

The Labour proposal to establish an Integrity and Ethics Commission was outlined by the party’s deputy leader, Angela Rayner, in November 2021.  The Commission would ‘clean up politics’, replacing a ‘broken system’ with an independent body which would ‘stamp out corruption in government, strengthen the rules and ensure they are enforced’.  The proposal was also included in the report of the Labour Commission chaired by Gordon Brown, A New Britain: Renewing Our Democracy and Rebuilding Our Economy, published in December 2022.  According to LabourList, the proposal also appears to be part of the policy programme which could form the basis for Labour’s election manifesto in 2024.

However, there remains a considerable degree of scepticism about the creation of an Integrity and Ethics Commission.  Crucially, the influential Committee on Standards in Public Life (CSPL) concluded in its Standards Matter 2 review in November 2021 that such a policy should not be pursued.  The CSPL argued that:

The establishment of a single commission could, however, come with considerable disadvantages. A single commission would amass significant unelected power over the workings of government. If created as a merger of existing standards regulators, such a body would have the ability to oversee the work of ministers, civil servants, and special advisers, as well as the processes of public appointments, business appointments, appointments to the House of Lords, and lobbying. The concentration of such power to a body without an elected mandate, and without the checks, balances and accountabilities of elected politicians, seems disproportionate and does not sit well in our democratic system.

[2.46]

In addition to this overarching democratic concern, the CSPL concluded that the creation of a single commission would increase ‘the vulnerability of the regulatory scheme as a whole’.  It believed that there would be ‘less risk in a pluralist approach to ethics regulation, and a consolidated commission is more likely to be targeted by politically motivated criticism.’ [2.48]

The idea of a single ethics commission has also been rejected along similar lines by the Public Administration and Constitutional Affairs Committee of the House of Commons (PACAC).  In its report into the Propriety of Governance following the Greensill lobbying affair (HC 888, December 2022), PACAC concluded that ‘[t]he various ethics regulators should continue to be separate and should not be consolidated into a single ethics regulator’ on the basis that ‘one size does not fit all and the differences in their functions should be maintained’ [104].

These are important concerns.  Yet there is still an alternative case to be made in favour of the creation of an Integrity and Ethics Commission.  This is based on the idea that, in the aftermath of successive ethical scandals, it would be constitutionally significant to consolidate the operation of some of these regulatory processes for clarity, reinforce them to improve their effectiveness, and signal the (in theory) renewed importance of political responsibility to the political class.

To achieve these goals it would appear that the design of an Integrity and Ethics Commission ought to have three aims.  First, to externalise accountability assessments to some extent, so that politicians (or their direct appointees) are no longer entirely in control of the investigation and (perhaps) enforcement of political standards.  Second, to establish a clearer process which introduces some level of consistency to decision-making and practice in this area, rather than the current ad hoc approach whereby, at different times, senior civil servants (such as Sue Gray), a political appointee independent of government (such as Sir Laurie Magnus, the current Independent Adviser on Ministers’ Interests), or an externally appointed lawyer (such as Adam Tolley KC) have been tasked with reporting on potential violations of ethical standards.  Third, to signal the constitutional significance of the standards of political responsibility to the people and political actors in government and Parliament alike, using institutional change as the vehicle for this rather than merely abstract constitutional declarations of principle.

Of course it would be possible to establish a Commission in a different way.  For example, as noted in a briefing paper by Spotlight on Corruption, it would be conceivable to see a Commission not as a regulator directly, but as a ‘convening’ or ‘coordinating body’ bringing together the existing range of regulators to share practice and experiences.  However, while that approach may be less vulnerable to the objections made by the CSPL and PACAC, this does not seem to reflect the direction of Labour’s proposals.  And, moreover, as noted in the Spotlight on Corruption paper itself, this approach ‘may not be a sufficient level of change to restore public trust in a broken regulatory system’ (p.7).

Even if we accept the three broad aims of creating an Integrity and Ethics Commission set out above, to make this substantial reform to the UK’s political standards architecture would raise a number of constitutional challenges.  In particular, as Labour has proposed, it seems likely that this would need to be delivered using new primary legislation, with the Commission established by an Act of the UK Parliament.  In thinking about how the proposal might be implemented in this way, we need to consider (i) the potential scope of the Commission’s remit, (ii) the nature and extent of its powers, (iii) its susceptibility to judicial oversight, and (iv) how it would be composed.  These four issues are considered in the next section of this post.

Implementing the Proposal – Four Challenges

(i) The Scope of the Commission’s Remit

Given the breadth of a potential Commission’s remit is one of the criticisms made by the CSPL, clarity about the scope of its responsibilities would be important to try to allay that concern.  Rather than absorbing all existing regulation covering ethical standards and public appointments, as the CSPL report appears to assume, the Commission could focus exclusively on standards.  That appears also to be the position favoured in the Brown report, which argued that the Commissioner for Public Appointments and the Civil Service Commission have been ‘disregarded or bypassed’, and should be merged into a separate ‘more powerful appointments regulator’ [p.131]. 

Similarly, given existing mechanisms relating to parliamentary standards, and in light of the UK Parliament’s constitutional privilege to regulate its own internal affairs, the focus of the Commission could be narrowed further to focus on standards within government at the central level.  The Commission would not need to extend to the different devolved governments – a statutory Commissioner for Ethical Standards already operates in Scotland, with a remit covering public standards and public appointments, although not including complaints about MSPs acting in a ministerial capacity.  Complaints about ministerial conduct are also beyond the scope of the Senedd Commissioner for Standards in Wales, although, in contrast, they can be investigated by the Standards Commissioner for the Northern Ireland Assembly.

Even if the focus of the Commission was narrowed to ethical standards applicable to ministers in the UK government, a further question of scope is whether it would have responsibility just for the application or also for shaping the content of these rules.  The original proposal made by Angela Rayner argued for both: ‘one of the first things the Integrity and Ethics Commission will do is consult on the changes that are required to update the Ministerial Code so it is fit for purpose’. However, determining and enforcing these rules arguably ought to be distinct functions.

The Brown report appeared to take this narrower view, with the Commission to be focused on investigation, in effect replacing the position of Independent Adviser: ‘Instead of the impossible position of the Prime Ministers’ advisor, an Independent Integrity and Ethics Commission should take on the role of investigating alleged breaches of the code … It should be able to do so whether the Prime Minister of the day agrees or not, and the Cabinet Secretary and other permanent civil servants who work for the government should be under a legal obligation to cooperate with it’ (p.129).  The Brown report also saw review of the substance of the standards themselves (such as the well-established Seven Principles of Public Life) as a continuing matter for the existing CSPL (which would be placed on a new statutory footing, (p.131)).  The Brown report additionally endorsed Labour’s proposal for a separate Anti-Corruption Commissioner (p.133).

The remit of an Integrity and Ethics Commission could therefore be sensibly focused on the investigation of alleged failures within government to comply with existing standards of individual and collective ministerial responsibility.  But it would also be important that the breadth of this remit was not expanded via the backdoor.  So, for example, the Brown report’s somewhat curious proposal to make ‘the existing cabinet manual … part of the ministerial code of conduct’ (p.130) is not persuasive.  There may be merit in the suggestion that the Cabinet Manual should be ‘approved by Parliament’ (and indeed, at a more basic level, it simply needs to be updated).  Yet adopting the idea that ‘failure to follow the principles of that Manual should be regarded as a breach of the ministerial code of conduct’ would extend the role of the Commission into potentially unlimited and unnavigably broad territory.

(ii) The Nature and Extent of the Commission’s Powers

The powers exercised by a Commission raise further questions.  A power to investigate allegations exercised on the Commission’s own initiative – which has been much discussed, and not quite conceded, in relation to the Independent Adviser on Ministers’ Interests – is almost universally favoured, and recommended in both the Rayner speech and the Brown report.  A Commission could scarcely be considered an independent body if the Prime Minister was able to decide whether to veto a request to investigate, as at present (see the Ministerial Code, para 1.4(b)).

More controversial is whether decisions made by a Commission should be binding or advisory.  Angela Rayner’s speech appeared to suggest the former (‘there will be clear sanctions for breaches of the Code so the Prime Minister is no longer judge and jury over the conduct of Ministers’) whereas the Brown report proposed a more elaborate process:

decisions about whether the rules have been breached should be made by a wholly independent body of people who are not politicians, after reviewing the case from the Integrity and Ethics Commission and any representations the minister wishes to make. This panel should also recommend the appropriate sanction under the ministerial code. Ultimately it would be then up to the Prime Minister or Parliament itself as appropriate to decide whether to accept that recommendation.

(p.132)

This would ultimately be a model based on making recommendations to the Prime Minister, following a beefed-up investigatory process with the independence of the Commission and the decision-making panel intended to pressure the relevant political actors into accepting their findings.

A model based on formal recommendations regarding sanctions being made to the Prime Minister would of course be more consistent with the prevailing constitutional approach.  Currently the responsibilities of ministers are captured in constitutional conventions rather than legal norms, and enforced (at least in theory) by the internalisation of those standards by political actors, in addition to their reactions to waves of political, media and public pressure.  Preserving the Prime Minister’s absolute discretion concerning the composition of their government – rather than giving the Commission a power to insist on ministerial sackings – would also be consistent with the present constitutional rules on Cabinet formation.  It would probably also therefore be the most favourable solution for any future Prime Minister promoting legislation to implement reform in this area.  A ‘recommendations based’ model would also limit (to some extent) the need for elaborate appeal mechanisms to be devised, as might be necessary if the Commission obtained the power to impose penalties for itself.

However, a model based purely on recommendations to the Prime Minister would potentially fail to secure the externalisation of accountability assessments to a substantial degree.  There are clearly difficult trade-offs here, but it may be worth exploring whether some ‘sanctions’ could be imposed definitively by the Commission, such as the power to censure or compel a public apology from a minister, even if leaving decisions about whether to insist on resignations to the Prime Minister.

(iii) Judicial Oversight of the Commission

The extent to which an Integrity and Ethics Commission has powers to impose sanctions on political actors would clearly shape the extent to which rights of appeal would need to be integrated into the decision-making process.  In some ways, there is a parallel here with debates about the legal consequences of Parliament legislating to create (or re-establish) a power to impose criminal sanctions on witnesses who refuse to attend select committee inquiries (proposals which the government considers to be problematic).  If a public authority’s decision has a direct negative impact on an individual, the argument that it ought to operate in accordance with principles of procedural fairness, including rights to contest the workings of the process, becomes more difficult to resist.  In that sense, there is an interplay between the powers of the Commission and any potential judicial oversight of its decisions.

Yet simply putting the Commission ‘on a statutory footing enshrined in legislation’ (as proposed in Angela Rayner’s speech) would clearly increase the (already present) potential for litigation relating to the decisions of such a Commission.  The High Court of England and Wales has already held in FDA v Prime Minister [2021] EWHC 3279 (Admin) that the Ministerial Code is potentially justiciable, in the context of Boris Johnson’s decision to overrule his then Independent Adviser, Sir Alex Allan, and decide that the alleged bullying of civil servants by the Home Secretary, Priti Patel, did not violate the Code.  While in my view this is a problematic decision, not least given the fact that the Code is a source of political rather than legal norms, it suggests that the decisions of a Commission based in statute would be susceptible (at least in principle) to judicial review.

This does not mean, of course, that judicial review will be an effective tool to challenge decisions made by the Commission.  As the FDA judgment shows, the courts can struggle to translate ideas of political accountability into legal outcomes, with the High Court in that case tying itself in knots concerning whether the Prime Minister had relied on a defensible definition of bullying (or indeed any definition at all) in making his decision.  And in Northern Ireland, where the Ministerial Code already has a legal statutory basis, arguably little concrete has been achieved in cases such as Safe Electricity A&T Limited [2021] NIQB 93 and Napier [2021] NIQB 86 and [2021] NIQB 120, via attempts to use the courts to resolve fundamental problems with the practice of politicians (or more specifically in these cases, the consequences of the absence of politicians from certain decision-making processes).  Against this backdrop, it seems clear that judicial review of a statutory Integrity and Ethics Commission would be potentially messy, and of questionable utility.

It would therefore be important to consider whether ouster clauses ought to be used to prevent or delimit judicial review of the Commission’s investigations and decisions (especially if it is simply making recommendations).  The options might include a full ouster clause protecting this as a sphere of essentially political activity, mirroring the protection that parliamentary standards investigations obtain from Article 9 of the Bill of Rights 1689.  A clause similar to s.3 of the Dissolution and Calling of Parliament Act 2022, which precludes judicial review of the (political) choice to call a general election, might achieve that objective.

Alternatively, a partial ouster clause could be considered, perhaps similar to s.2 of the Judicial Review and Courts Act 2022, which ousts judicial review of decisions of the Upper Tribunal concerning permission to appeal (so-called ‘Cart’ judicial reviews).  The clause does, however, preserve judicial review in relation to certain exceptional categories of issue, including whether the Upper Tribunal was dealing with a valid application, whether it was properly constituted, and whether it had acted in bad faith or ‘in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice’.

The attitude of the courts to such clauses remains somewhat unclear after the decision in Privacy International [2019] UKSC 22, with Lord Carnwath appearing to regard ouster clauses as susceptible to override on rule of law grounds, whereas Lords Reed and Sumption’s judgment anticipated the legitimacy of partial ouster clauses of the kind enacted in the JRCA 2022.  The recent decision in Oceana [2023] EWHC 791 (Admin) suggests that s.2 has been a legally effective ouster of most judicial review claims.  Moreover, given the fundamentally political context in which an Integrity and Ethics Commission would be operating, there is a good contextual argument that in this arena – and in light of the principle of parliamentary sovereignty – a full ouster clause could be justified.

(iv) The Composition of the Commission

The final issue to consider here is how the composition of the Commission would be determined.  It seems clear that the Commission would need to be ‘independent’ of government.  But there are a series of questions about what this means in practice: how many people would sit on the Commission?  How long would their terms last?  What background or expertise would they be required to have?  What resources and support staff would they have access to?  But two questions perhaps stand out as the most crucial.

First, who would appoint them?  If the Prime Minister, it seems doubtful whether that would truly engender independence – would Parliament therefore be involved, whether in selecting or approving candidates?  And would there be any representatives of the established constitutional institutions on the Commission?  The Judicial Appointments Commission, for example, must include a total of nine judges and legal practitioners among its fifteen Commissioners.  Should an Integrity and Ethics Commission (albeit while exercising different functions from the JAC) include any parliamentarians or other politicians, from different parties, past or present?

Second, would there be a role for ‘ordinary’ citizens in the Commission?  The Brown report recommended that ‘[t]here should be a greater role for the public in making and enforcing the rules followed by politicians’ (p.132), an understandable aspiration if standards of political responsibility are seen as failing due to self-interested enforcement by political actors.  There is some support in the academic literature for constitutional reforms which give a formal institutional role to randomly selected citizens as a means of (among other things) generating external accountability within the political system, such as the work of John P. McCormick on Machiavellian Democracy (2011).

Yet while the Brown report is radical in proposing the use of randomly selected citizens’ juries in this context, that radicalism is tempered by the fact that their role would be to ‘review the operation of the system and issue an annual report on the standards followed by ministers and MPs and the investigations, judgments and sanctions that have been made and applied, with an assessment of how these arrangements have worked and whether they have secured the public’s trust’ (p.132).  It is perhaps surprising that, on this proposal, citizens’ juries would be annually convened to review the operation of the system of political responsibility as a whole, rather than deployed in a way which parallels their use in a criminal justice context, where juries are tasked to hear evidence and make decisions about specific cases.  If citizens’ juries are to be part of this new accountability infrastructure, it would arguably make more sense to have them operating within the procedural architecture of the Integrity and Ethics Commission, rather than as yet another ad hoc standalone body in an already crowded and complex field.

Conclusion

The aim of this post has been to map out the key challenges, and some of the potential solutions, facing a government attempting to create a statutory Integrity and Ethics Commission for the UK.  While the proposal has influential detractors (for legitimate reasons), there is a serious constitutional case to be made for this reform.  But to pursue this proposal would require some difficult choices to be made, and it would need to be implemented in a considered and delicate way to ensure it does not create new constitutional issues.  In that sense, the case for an Integrity and Ethics Commission also depends on how well it is designed, and the detail of that work will need to be carefully developed from the current starting points.

With many thanks to Paul Scott and Se-shauna Wheatle for their very helpful comments on an earlier draft.

Mike Gordon, Professor of Constitutional Law, University of Liverpool

(Suggested citation: M. Gordon, ‘Creating an Integrity and Ethics Commission in the UK: The Case for Reform and Challenges for Implementation’, U.K. Const. L. Blog (22nd June 2023) (available at https://ukconstitutionallaw.org/))