Breaking the code


The government seems to believe pragmatism and practice should outweigh the law or international treaties


The phrase “breaching the ministerial code” continues to ricochet around Westminster. From appointing a lover to a departmental board to bullying civil servants, the charge sheet is growing. There’s also a growing sense that, in this administration, you can get away with just about anything. Although this crop of ministers is not necessarily more poorly behaved than their predecessors, what is striking is that breaches of the code and calls for investigations have been so readily dismissed by the prime minister.

Johnson overruled Alex Allan, his inde- pendent adviser on ministerial interests, when he found that Priti Patel had indeed harassed staff. He failed to reprimand Matt Hancock for breaching Covid regulations. He refused to investigate housing secretary Robert Jenrick’s ties with property developer and Conservative Party donor Richard Desmond. In fact, the last time a minister resigned for breaching the code was in 2017, when an inquiry found Damian Green had misled the public about some pornography found on his computer nine years previously.

Running to 36 pages and most recently updated in 2019, the ministerial code is a mix of ethics, accountability and housekeeping, rules and guidelines. Its ten sections contain lofty steers about proper behaviour towards civil servants, private secretaries, parliament, travel and the presentation of policy. It requires ministers to disclose interests, ensure an official is present when discussing government business and report back immediately if an unofficial meeting takes place. If you seek guidance on whether to publish a memoir or accept a decoration from a foreign state, it’s all covered here. It is, according to Alex Allan, altogether a “rather strange document”.

Initially drafted in 1917 and rarely used, it was changed by Clement Attlee in 1945 who’s retitled Questions of Procedure for Ministers (QPM) enhanced the business-like efficiency of his ministers and combatted a problem with leaks.

Five years later, reinstated prime minister Churchill largely abandoned QPM, reflecting the document’s flimsy status. But subsequent prime ministers returned to it and added elements on an ad hoc basis.

A real overhaul occurred in 1992 when John Major first published the QPM, which had up until then been a Downing Street secret. The decision was not without controversy. “If you are in government,” Major explained, “there is always someone who will suggest that you ought not to open it any further than it has his- torically been opened.”

Signalling a break with the sleaze-tinted past and as a yet-untainted new government, Tony Blair rebranded QPM the ministerial code in 1997. He added his own personal foreword, a “strong personal commitment to restoring the bond of trust between the British people and their government”. This act established the convention of publishing a new code with each new administration. However, one vital point remains constant: should a minister contravene the code, the final decision on what action should be taken sits with the prime minister.

Back in 2000, John Major told a parliamentary select committee that, when an alleged breach occurred in his government, his approach was to leave a “large glass of brandy and a pistol in a darkened room for the minister to make up their mind… the implied threat [being] that they would be removed by the prime minister if that was necessary”.

But what if the prime minster never offers you a pistol – and you feel no inclination to do the honourable thing? In July, the Institute for Government said: “The ministerial code is not working, is being undermined by the prime minister and requires urgent reform.” The report criticises the limited power of the adviser, who is effectively under the prime minister’s thumb, and proposes the appointee be allowed to instigate investigations and publish findings.

Perhaps recent lapses in individual ministerial behaviour simply ape the conduct of the government they form. The cumulative effect of the illegal proroguing of parliament and breaking international law on its own Brexit treaty suggests an attitude that the rules don’t apply to them. As one civil servant told Pepys: “This government seems to believe pragmatism and practice should outweigh the law or international treaties.”

As shifting Covid compliance has demonstrated, guidelines are easy to ignore. Once you’ve stopped routinely wearing your mask on public transport or in the supermarket, it’s easier to lapse again. Similarly, if the ministerial code is not given statutory underpinning, there’s little to stop the infection of misconduct spreading further.

4th November 2021