Opinion

Chris Cook: This code is too easy to break

Friday 20 November 2020

The rules for ministerial behaviour aren’t rules at all. All that really matters is what the prime minister thinks


Priti Patel, the home secretary, is currently defending herself from allegations that she bullied Home Office staff. Sir Philip Rutnam, her permanent secretary, resigned on account of her behaviour last year. It’s expected that the home secretary will be found to have breached the “ministerial code” – the document in British public life that purports to set rules for people who ascend from the legislature into public executive office.

Sir Philip said that Patel created a “climate of fear” inside the department. According to the BBC, a civil service review of his allegations found that the “home secretary had not met the requirements of the ministerial code to treat civil servants with consideration and respect”. This is not a high bar: the ministerial code says “harassing, bullying or other inappropriate or discriminating behaviour” will not be tolerated.

Prime ministers have, in the past, ordered investigations into breaches of the rules as a prelude to firing errant ministers. That is not expected to happen this week; Patel is expected to remain.

But this week’s events may be significant within Whitehall and Westminster if they serve to clarify that the ministerial code has no real force or power. It is, at root, a political document – drawn up by the executive, for the benefit of the executive.

The code is not new: It was first published in 1992 and took its current name in 1997. Its construction and precise meaning has been contested and clarified in court. But it is worth being clear about what the ministerial code actually does. It does not have an adjudication system. There is no mechanism by which conclusions can be drawn and ministerial firings enforced. There is no recourse if someone breaches the code. It says:

Priti Patel, the home secretary, is currently defending herself from allegations that she bullied Home Office staff. Sir Philip Rutnam, her permanent secretary, resigned on account of her behaviour last year. It’s expected that the home secretary will be found to have breached the “ministerial code” – the document in British public life that purports to set rules for people who ascend from the legislature into public executive office.

Sir Philip said that Patel created a “climate of fear” inside the department. According to the BBC, a civil service review of his allegations found that the “home secretary had not met the requirements of the ministerial code to treat civil servants with consideration and respect”. This is not a high bar: the ministerial code says “harassing, bullying or other inappropriate or discriminating behaviour” will not be tolerated.

Prime ministers have, in the past, ordered investigations into breaches of the rules as a prelude to firing errant ministers. That is not expected to happen this week; Patel is expected to remain.

But this week’s events may be significant within Whitehall and Westminster if they serve to clarify that the ministerial code has no real force or power. It is, at root, a political document – drawn up by the executive, for the benefit of the executive.

The code is not new: It was first published in 1992 and took its current name in 1997. Its construction and precise meaning has been contested and clarified in court. But it is worth being clear about what the ministerial code actually does. It does not have an adjudication system. There is no mechanism by which conclusions can be drawn and ministerial firings enforced. There is no recourse if someone breaches the code. It says:

“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. However, Ministers only remain in office for so long as they retain the confidence of the Prime Minister.”

This is the key point: breaching the rules has no consequence, unless the prime minister wants to fire you. But that is true anyway. So being in breach of the rules has no consequence. Without the code, the fact that ministerial office is just held at the prime minister’s whim would be clearer.

The only real effects of the code are external: it encourages people to take simple political questions – Has this person acted honorably? Is this conduct becoming of a minister? – and judge them against a set of rigid rules. The net effect of the ministerial code has been to create loopholes, not to close them. 

Suella Braverman, the attorney general, breached the code earlier this year. Her support of the Internal Market Bill – a bill that proposed breaching the Withdrawal Agreement agreed between the European Union and the UK – meant she supported breaking the law. But, the Guardian tells us, there was a dispute inside government about the meaning of the word “law” in the Code – and whether “law” should be taken to meet “all law”. 
This gets to a core problem with British public life: there are institutions intended to hold the government in place. There are lots of rules and conventions. They often look like they might do something – but they do not restrain governments with majorities. It would be better not to rely on them. If a minister can be found to have bullied a senior civil servant with no consequence, that would be rendered undeniable.