Ministerial Code: Investigation of Potential Breach

Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Tuesday 23 May.

“The Ministerial Code sets out the standards of conduct expected of Ministers in how they discharge their duties. The code is the Prime Minister’s document, but Ministers are personally responsible for deciding how to act and conduct themselves in the light of the code and for justifying their actions and conduct to Parliament and the public. The Prime Minister is the ultimate judge of the standards of behaviour expected of a Minister and of the appropriate consequences of a breach of those standards. Ministers remain in office only for so long as they can retain the confidence of the Prime Minister.

The Independent Adviser on Ministers’ Interests is appointed by the Prime Minister to advise on matters relating to the Ministerial Code and, as honourable Members will be aware, that may include considering matters of ministerial conduct. The independent adviser has published terms of reference, which state that if

‘there is an allegation about a breach of the Code, and the Prime Minister, having consulted the Cabinet Secretary, feels that it warrants further investigation, the Prime Minister may ask the Cabinet Office to investigate the facts of the case and/or refer the matter to the independent adviser on Ministers’ interests’.

With regard to the matter concerning the Home Secretary, which has been the subject of recent coverage, the Prime Minister made it clear to the House yesterday that he is receiving information on the issues raised. Since returning from the G7, the Prime Minister has met both the independent adviser and the Home Secretary and asked for further information. It is right that the Prime Minister, as the head of the Executive and the arbiter of the Ministerial Code, be allowed time to receive relevant information on this matter. Honourable Members will be updated on this in due course.”

My Lords, the Prime Minister alone is the guardian of the Ministerial Code. The Prime Minister alone appoints the ethics adviser. The Prime Minister alone decides whether an alleged breach should be investigated; and whatever the outcome or conclusion of any report that is produced on a possible breach, the Prime Minister alone decides if a breach has actually occurred.

The Minister will be aware of demands and recommendations for greater independence. In the absence of such independence, and in light of the fact that so much lies with the Prime Minister, can she explain why calls for greater independence have been rejected by the Government? Will the Government publish the criteria on which the Prime Minister makes such judgments and explain today what those criteria are?

My Lords, the Ministerial Code sets out the standards of conduct expected of Ministers and how they discharge their duties. As the noble Baroness said, the Prime Minister is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards. That is indeed why he decides, as she has explained, but in light of advice from the independent adviser. The Prime Minister moved quickly to appoint an independent adviser, Sir Laurence Magnus, on whose advice he relies.

The noble Baroness asked why this system is not set up independently. This subject has been looked at by committees. Indeed, last year, as we discussed before, we did make some changes to the independent adviser’s powers and gave him more support. We believe that having an independent system would be a problem. An independent commission or system would amass considerable unelected power over the workings of government in somebody who does not have an elected mandate, without the checks and balances and accountabilities of elected politicians. We are here to debate, in a democratic way, circumstances that have gone on including, of course, the Home Secretary and the issue of the speed awareness course, which was the subject of this Question earlier in the week.

The criteria for investigating a breach, of course, depend on the circumstances. As the noble Baroness will know, the Ministerial Code is very wide ranging. It is the Prime Minister’s code, so he is rightly the decision-maker. The criteria for a particular investigation will depend on the issue being investigated.

My Lords, this is a small issue concerning a larger problem, which is the unconstrained and unaccountable prerogative powers of the Prime Minister and the deterioration of relations between the Civil Service and Ministers, which has come up again and again in recent years. I am puzzled and disappointed by the Minister’s reply to the Leader of the Opposition. The Answer in the Commons made a very strong point of saying, “This is the Prime Minister’s code and the Prime Minister is, in effect, the judge and jury of everything that happens”.

Toward the end of the last Labour Government, there were some rather good committee reports in the Commons on whether we now needed to limit the Prime Minister’s prerogative powers. I wonder whether, if the Conservatives found themselves in opposition again, they would not perhaps wish to revive that debate. I would hope that a Labour Government—or another Government of some sort—would begin to address that problem. If the independent adviser is really independent, why does he not have the ability to start his own investigations and then present them to the Prime Minister?

I will not speculate on what might happen under a different Government. I remind the noble Lord that there have been a number of reports on ethics and integrity, including from Nigel Boardman and the Committee on Standards in Public Life, and, as I said recently, we will lay our responses in Parliament in due course. However, I draw the House’s attention again to Sir Laurence Magnus, who has been appointed and has set off in a robust way. His report, which I promised would come out in May, is due to be published today—it may already have been or will be any minute.

I also draw attention to the fact that we strengthened the remit of the independent adviser in 2022. Slightly contrary to what the noble Lord was saying, the adviser now has the ability to initiate an investigation under the Ministerial Code after consulting with the Prime Minister, and the normal expectation is that the Prime Minister would agree to such an investigation. We have also updated the code to include more specific references to the duty on Ministers to provide the independent adviser with information reasonably necessary for carrying out the role. As I said before, we have also strengthened the arrangements for the office of the independent adviser, providing him with a dedicated secretariat of civil servants. However, I come back to the point I made before to the noble Baroness: this must be elective—it has to be democratic. That is why the Prime Minister decides on these matters.

My Lords, I am struggling here. It seems to be a basic principle that justice should not only be done but seen to be done. These processes seem so arcane and opaque that I wonder whether the noble Baroness can assure us how this process passes that test—or does it not apply to the Ministerial Code?

I simply do not agree with the right reverend Prelate. The Prime Minister has been clear that professionalism, integrity and accountability are core values of the Government. A number of inquiries have been set up by the Prime Minister. He has moved quickly to set them up and to take steps when they have been completed. Most recently, he moved very quickly on the matter of the Home Secretary, which was causing a distraction earlier in the week. He consulted the independent adviser, who advised that on this occasion further investigation was not necessary, and the Prime Minister accepted that advice. As I said before, we need to be very careful to ensure that the Prime Minister has ultimate responsibility for the Ministerial Code. He reissued it in December when he came to power and he has made it clear that it is important that it is followed.

Perhaps I can just ask for clarification from the noble Baroness. There was some discussion in 2018 about whether the Ministerial Code mandated Ministers to behave in a certain way. This related to compliance with international law. The noble Baroness will remember a certain Mr Brandon Lewis, who said in the House of Commons that he intended to break international law

“in a very specific and limited way”.—[Official Report, Commons, 8/9/20; col. 509.]

That led to the resignation of a top civil servant and of the noble and learned Lord, Lord Keen of Elie. However, it did not lead to the resignation of the then Attorney-General, who is the subject of this particular complaint. The young lady is not fit for high office in any case, but surely if the Court of Appeal says that the Ministerial Code does mandate compliance, how on earth can the Government justify any variation?

I was on the Back Benches when this important situation occurred in 2018, but I would say that the Ministerial Code is a matter for the Prime Minister and the Prime Minister’s judgment, as the noble Baroness said. I think she was trying to make a point about the current Home Secretary. However, I would say that we should allow the current Home Secretary to get on with her job. The distraction of the last week has been considerable. She is trying to do the right thing in a whole series of areas, from public order to immigration. She has apologised, expressed her regret on the matter of the speed awareness course and paid the fine for speeding. Some feel that that issue has been conflated and is a bit of a distraction. She needs to be given the opportunity to get on. The Prime Minister has looked into the matter and she has written at great length to explain the exact circumstances of it. You always end up looking at an individual case, as the noble Baroness did, but I am clear that this is the right approach.