On 6^th November, Prime Minister Keir Starmer published his (long awaited) revised version of the Ministerial Code.  A written statement in Parliament by the Chancellor of the Duchy of Lancaster, Pat McFadden, accompanying the release of the updated text suggested that ‘[t]he new code will be instrumental in setting out the high standards that the British people expect and that Ministers must follow’.  The updated Code has had a largely positive reception so far, with (for example) Tim Durrant and Sachin Savur of the Institute for Government describing this as ‘a wholesale, and long overdue, reset of ministerial standards’.

Yet the emerging consensus that this has been a positive development, even if with some caveats, deserves further scrutiny – especially when the Ministerial Code is unilaterally published by the Prime Minister and subject to no requirements of public consultation or external oversight.  As this post argues, rather than being an important moment in enhancing the UK’s constitutional system of political ethics or ministerial standards, the release of this new Code in isolation from wider reform of those regimes (or even hints at what reform might be coming) is quite underwhelming – especially when Labour made a number of significant reform proposals in opposition, including to create a new Ethics and Integrity Commission.  When we also consider the approach taken by the government to its first major ministerial resignation – that of Louise Haigh as Secretary of State for Transport – it provides further reason for believing that Labour is off to an unconvincing start in this area.

The Revised Code

As has been widely acknowledged, the publication of the new Code was significantly delayed, coming 4 months after Starmer’s appointment as Prime Minister on 5^th July 2024 following the Labour party’s comprehensive election victory in the July 2024 general election.  It took Starmer substantially longer to issue his Code than his predecessor – Rishi Sunak took just over 8 weeks after becoming Prime Minister to reissue the Code produced by Boris Johnson (Liz Truss having not lasted long enough in office to produce her own version).  This is especially surprising given Labour’s prior commitments in opposition to bring about reform in this area.  Indeed, Starmer’s New Year speech in January 2024 reiterated this aim: ‘We need to clean up politics…. I will restore standards in public life with a total crackdown on cronyism.’

The new Code has made some changes to the 2022 Sunak version, including:

• Restructuring the document into three Parts, dealing respectively with Standards of Conduct, Ministers’ Interests, and Procedures of Government;
• Reinserting a specific reference to the need to comply with international law;
• Integrating the seven principles of public life – the so-called ‘Nolan Principles’ – into the main text of the document;
• Reforming the rules regarding receipt and declaration of gifts and hospitality;
• Providing the rebranded ‘Independent Adviser on Ministerial Standards’ with a power to initiate investigations into ministerial conduct without the approval of the Prime Minister.

But overall, these amendments are either formal and superficial, highly reactive to the recent ‘freebies’ scandal, or of limited practical significance.

The reorganisation of the document, for example, into three more coherent Parts does improve the overall structure.  But that seems of limited practical importance in terms of the way it guides the conduct of ministers or enhances ministerial standards.  Instead, this is perhaps a reflection of the ongoing constitutional evolution of the Code from a document written for use by ministers, to a document written primarily for wider public consumption.  This subtle shift might also be evident from the fact that, for the first time, this Code includes a photograph of the Prime Minister accompanying the traditional (and always highly political) foreword at the outset of the document.  As well as vividly emphasising this Prime Minister’s personal ownership of the document, this also suggests that the target audience of the Code is increasingly beyond the government (given Ministers can presumably already identify the Prime Minister without further assistance).

The re-addition of a specific reference to the need to comply with international law is also largely symbolic – after this was controversially removed by David Cameron in 2015, the Court of Appeal held in the case of Gulf Centre for Human Rights [2018] EWCA Civ 1855 that the language which remained in the Code, referring to ‘the overarching duty on Ministers to comply with the law’, already included an implied obligation for ministers to comply with international law.  Indeed, this could hardly be otherwise since, as the court held, the Ministerial Code could not in any event alter the legal obligations to which government ministers were already subject.

Similarly, the importance of integrating the seven principles of public life into the main text of the Code – having previously been included in an Annex since Tony Blair’s second Code in 2001 – can be readily overstated.  While this may be more effective from a presentational perspective, neither the substance of the principles nor the obligation to comply with them has been changed.  And given the seniority of the politicians to whom the Ministerial Code applies, it should not be the first time in their careers that they have been exposed to the defined requirements of selflessness, integrity, objectivity, accountability, openness, honesty, and leadership.

There are some changes to the substance of the Code concerning gifts and hospitality.  The Cabinet Office will now publish a monthly ‘Register of Ministers’ Gifts and Hospitality’ (para [3.26]).  But while this is an improvement on the previous position, these changes are primarily reactive to the recent ‘freebies’ controversy concerning the receipt of clothing, designer glasses, and concert tickets by a number of senior Labour politicians prior to the 2024 election, including of course the Prime Minister himself.  In some ways, then, this feels like political firefighting as much as proactive and considered reform to political standards.  And after all, this is primarily bringing the registration arrangements in relation to declaration of ministerial gifts and hospitality into line with the existing arrangements applicable to MPs – it is equalising these different regimes to rectify an anomaly, rather than pioneering a new system or raising standards overall.

Ministers are also still broadly being left to decide for themselves what is and is not appropriate (para [3.23]), other than in relation to the firmer rule that gifts valued over £140 must be given to the department (or purchased on a personal basis, with the minister paying the excess amount).  Yet the £140 limit applicable to gifts received by government ministers (as distinct from MPs or members of the shadow cabinet) is also not new – it has been a feature of the Ministerial Code since it was first published by Tony Blair in 1997.  Further, the newly inserted guidance that ‘Ministers should also take into account any relevant security considerations’ when deciding whether to accept hospitality (para [3.27]) appears to be an attempt to formalise the Prime Minister’s own justification for the special (and costly) arrangements which must be made to facilitate his attendance at Arsenal matches.

Finally, the change to the powers of the (renamed) Independent Adviser on Ministerial Standards had been long anticipated, and was also the subject of a specific Labour manifesto commitment.  But the right of the Adviser to initiate investigations without requiring the consent of the Prime Minister is surely the bare minimum required for the holder of that office to be credibly described as ‘independent’.  And the difference in practice is likely to be minimal.  For while a Prime Ministerial veto over the Adviser’s initiation of investigations was written into the Johnson Ministerial Code when these powers were originally upgraded in 2022, no such veto ever appears to have been exercised.  Even if an especially proactive Adviser had been refused the opportunity to investigate by the Prime Minister, they still had the option to ‘require that the reasons for an investigation not proceeding be made public unless this would undermine the grounds that have led to the investigation not proceeding’ (para [1.4](b), 2022).  The current Independent Adviser, Sir Laurie Magnus, described this as a ‘strong position’ with which he was ‘very comfortable’.  Presumably this would also amount to a resigning matter for an Adviser who was overruled, as with Sir Alex Allan when his conclusions regarding Priti Patel bullying civil servants were rejected by Johnson in 2020.

It is also worth noting that the new Code does not give exclusive jurisdiction to the Independent Adviser in relation to the investigation of ministerial conduct.  Starmer’s Code explicitly retains the option for the Prime Minister to ask the Cabinet Office to investigate as an alternative to referring the matter directly to the Independent Adviser (para [2.6](a)).  The potential for uncertainty about who ought to be asked to investigate what – and the scope for public confusion about the operation of, and overlaps between, various different limbs of the ministerial standards system – therefore remains.

In summary then, this is best understood as a ‘continuity Code’ rather than any major step change in the ministerial standards system relating to the UK government.  In turn, this raises broader questions about the Labour government’s plans for reform in the area of political standards.

Stalling Standards Reform

Against this backdrop, Labour’s lack of progress in relation to its more headline grabbing reforms is concerning.  There appears to have been no progress yet on Labour’s manifesto plans to make ‘post-government employment rules’ legally enforceable in relation to former ministers.  On this issue the new Code simply restates the previous position about the need to seek and abide by the advice of the Advisory Committee on Business Appointments (para [11.2]).

There are also no apparent developments in relation to Labour’s key proposal to establish an Ethics and Integrity Commission, a commitment which was at the centre of the constitutional proposals made in Labour’s 2024 manifesto.  On 25^th July 2024, the senior Cabinet Office minister Pat McFadden was asked about these plans in the House of Commons, and indicated these proposals would be a matter of ‘show, not tell’ from the government.  This does not sound like an especially open attitude to political reform, and the absence of a Bill on this topic in the July 2024 King’s Speech suggests that there will not (at least initially) be a legislative dimension or underpinning to the proposed Commission.

Similarly, giving evidence to the House of Lords Constitution Committee on 20^th November 2024, McFadden and the Minister for the Constitution, Nick Thomas-Symonds, were asked about plans for the Commission.  While Thomas-Symonds reiterated that it was ‘important’, the government’s plans for the Commission were still expressed in brief and very general terms.  The intention is to ‘create coherence’ in the undoubtedly convoluted ‘ethics and integrity landscape’, which is currently inhabited by a range of different institutions.  Thomas-Symonds noted that the proposal was ‘perhaps’ about introducing ‘the idea of a one-stop shop’ – yet this still leaves open almost all of the key questions about how a Commission would be constituted, what it would replace, and what powers it would have.

It is worth comparing the current thinking with Labour’s previous attempts to outline the role of an Ethics and Integrity Commission. After the idea of a Commission was outlined in November 2021, the most detailed statement was provided by Angela Rayner, now the deputy Prime Minister, in a speech in July 2023.  Rayner argued that ‘Labour’s new Independent Ethics & Integrity Commission will oversee and enforce standards in Government, ending the current situation in which the Prime Minister is the judge and jury on every case of ministerial misconduct’.  To achieve this, ‘[t]he Commission will subsume the Independent Adviser on Ministerial Interests’. The new Commission would ‘have the power to initiate investigations into ministers without asking permission from the Prime Minister’. It would also ‘be able to determine breaches, and again recommend sanctions’, albeit the final decisions on any resignations would (appropriately) rest with the Prime Minister. Yet crucially, unlike the Independent Adviser, appointment of the Commission would not rest with the PM: ‘We will remove the power to appoint the ethics watchdog from the hands of the Prime Minister entirely’ using a ‘parliamentary backstop’.  And finally, there would be a ‘statutory footing’ for the Commission, establishing its powers and remit, to minimise ‘[t]he risk of political capture or interference’.

Labour’s vision for the Commission therefore now seems to have shifted, and it is unclear whether this more ambitious investigatory role is still under consideration. This raises two basic issues: first, no matter how good the performance of an Independent Adviser, if that role is now to persist, is one individual selected by the Prime Minister without open competition really good enough to hang this entire system upon?  And second, what specific roles will a ‘one-stop shop’ Commission perform in an already crowded and confusing landscape?  This is not to argue for the proposal to be abandoned (nor do I think it would be a solution to rebrand the existing Committee on Standards in Public Life as the new Commission – this might be a convenient political fix, but it would not be adequate to fulfil the substance of the commitment to establish a genuinely new body). Rather, it simply seems that Labour’s plans here appear to be no further forward than in 2021, and indeed they are now arguably a step back from where they were in 2023.

Understood in this wider context, it also becomes clear that mere revision of the Ministerial Code would never have been capable of bearing the weight of the promises made in opposition to restore public confidence in the political system.  In the absence of further details concerning wider reform (and compounded by the wait for the Code to emerge) it may have become a vessel for ambitions such a Code could never satisfy.  In that sense, the limited impact of the updated Code is itself a demonstration of why institutional reform is needed, and why the sense that these wider plans have stalled raises concerns.

A First Test of Labour’s Approach

As if to compound this general uncertainty further, we have now seen the first ministerial resignation from Keir Starmer’s Cabinet.  Louise Haigh resigned as Secretary of State for Transport on 28^th November 2024, after it emerged that she had been convicted of a criminal offence in 2013.  After being the victim of a mugging in London, Haigh misinformed the police that her work mobile phone had been among the items stolen, as it later emerged it was in her house.  Haigh claimed in a statement that this was a ‘genuine mistake’, and that she pleaded guilty in a magistrates’ court on the advice of a solicitor.  Yet it has also been widely reported that she disclosed the existence of this conviction to Keir Starmer before she was appointed to his shadow Cabinet in 2020, creating considerable uncertainty as to why she has now resigned – whether voluntarily or with encouragement – due to a historic, relatively minor, and now spent conviction.

Frustratingly, the opportunity to explain any relevant constitutional basis for this resignation was not taken in the usual exchange of letters between Haigh and the Prime Minister.  Haigh stated that the main reason for her resignation was the well-established trope that ‘this issue will inevitably be a distraction from delivering on the work of this government’.  In a strikingly short three-sentence reply, Starmer made no reference to the reason for the resignation.  This is especially disappointing when these documents are in effect a source of narrative constitutionalism, providing key actors the opportunity to articulate the principles relevant to such important decisions, and explain the application of those principles to the wider public.

It may be, of course, that there is no real constitutional basis for Haigh’s resignation – that it is simply pure politics all the way down, especially when Haigh and the Prime Minister have already had one notable public disagreement relating to government policy in the first few months since Labour attained office.  Yet for a government committed to ‘restoring trust in politics’ to leave the precise reasons for a major ministerial resignation open to speculation seems most undesirable – especially when subsequent opportunities to clarify the situation in the aftermath of the resignation have not been taken. The failure to be clear and open about why ministerial resignations occur, and leave the conduct of a minister shrouded by some general sense of ill-defined impropriety, is also arguably a significant failure by the government to adequately engage with the system of political ethics.  This unconvincing start provides further evidence, if it were required, of the need for reform in this area.

Conclusion

The overall picture is therefore one which leaves the present government with a number of challenges to address.  The risk for Labour is that without substantial progress soon, the commitments made in opposition could retrospectively appear to be political opportunism.  The risk for everyone interested in ethics reform is that at a time when the absence of political trust raises major democratic issues, the status quo is looking extremely resistant to change.

If accompanied by real political impetus there was a clear window here for innovation and serious institutional reform, after the tribulations of the May and Johnson era, which showed no sign of abating under Truss or Sunak, despite the latter’s initial claims.  In many ways it was a perfect storm in an area characterised by voter disillusionment and party political self-interest – but this opportunity, perhaps a ‘once in a generation’ alignment of circumstances, is in danger of being squandered.  The overriding concern is that, already under Keir Starmer’s government, the window for real change is nearly closed.

Many thanks to Se-shauna Wheatle and Paul Scott for their comments on an earlier draft.

Mike Gordon, Professor of Constitutional Law, University of Liverpool

(Suggested citation: M. Gordon, ‘Labour’s Ministerial Code and Political Standards Reform’, U.K. Const. L. Blog (5th December 2024) (available at https://ukconstitutionallaw.org/))