By whose authority? Sue Gray’s Report and the Ministerial Code
I am not writing about the substance of the much anticipated report by the Cabinet Office civil servant Sue Gray on the gatherings held in Number Ten Downing Street and in its garden in contravention of then prevailing regulations to control the spread of the Coronavirus. Nor is it about the ongoing inquiry by Durham Police into refreshments served to Sir Keir Starmer and entourage on the evening of his political engagements in that city. Nor does it set out to consider whether or not the behaviour of the Prime Minister and the Leader of the Opposition were or were not comparable.
Quite enough has already been said about all this, not to mention the additional acreage of comment soon to come.
As a political scientist, my focus is on the rules — if there are any — which govern (or should govern) these matters. The Ministerial Code has been repeatedly cited as if its words are gospel, when it states at 1.3 [c] that “Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister”. This, in turn, is stated as consequential to the Seven Principles of Public Life propounded by Lord Nolan, as founding chair of the Committee on Standards in Public Life following its establishment by the government of John Major in 1994 in the aftermath of the “ Cash for Questions ” scandal.
The Ministerial Code is a mix of the extremely vague and the exceptionally precise.
The Nolan Principles add up to a set of saintly aspirations, a political counterpart to the Seven Deadly Sins. For the few readers ( or politicians ) on whose hearts these principles are not already engraved, they are: selflessness, integrity, objectivity, accountability, openness, honesty and leadership. In setting out their application, the Ministerial Code includes guidance on such specifics as whether air miles earned during flights on government business belong to the relevant Minister (answer at 10.17: no, with exceptions detailed in the text) and whether a Minister may accept a foreign honour and, when this is allowable, whether the medal given with the honour may be worn. ( Answer 7.19: “generally permission to wear will not be granted … where the FCO considers that cause for restricted permission to wear might meet a national interest the FCO will consult the Prime Minister who will make the final decision.”)
The basic question, of course, is the authorship and status of the Code. The Institute for Government points out that it has no legal status. I believe the Code’s legitimacy has been considerably exaggerated.
This might not matter much were it not part of a series of concerning and — contrary to the Nolan Principles — largely unaccountable back-stairs constitutional developments. We have been seeing, on the one hand, the gradual loosening of time-honoured constitutional conventions and, on the other hand, the introduction of rules and codes without legal status, but commonly projected as binding and formulated largely by civil servants with heavy input from lobbies which have taken the form of specialist think tanks or university-based units.
Concerning a matter such as the Downing Street gatherings during the Covid lockdown periods, the traditional doctrine would have related to ministerial responsibility. This recognised that ministers did not in practice take or even know of all decisions and actions taken within their departments. However, by making them responsible for them all, it created the incentive to ensure that their senior civil servants ran their departments efficiently and properly. If an NHS hospital were so defective that there were multiple avoidable deaths of patients, the question would arise of why the chief managers had failed and why, in turn, the minister had not kept on top of his or her brief. In the case of the Downing Street lockdown gatherings, the question would not have been (as under the terms of the Ministerial Code) whether the premier knew of them and misled the House of Commons about the state of his knowledge, but whether he had run his office in a manner that ensured that he did know.
Obviously, it puts a huge burden on the person at the top of any massive organisation to get on top of every low-level detail or error. With the growth in the scope of government, ministers sometimes have escaped having to take responsibility by resigning for every error, including errors committed before their term.
The doctrine of ministerial responsibility, though battered, is not yet extinct. Home Secretaries, who head a department with exceptionally diffuse functions, have felt obliged to take responsibility and to resign. In 2008, Charles Clarke resigned because of departmental failure to locate and deport foreign criminals on release from prison. In 2018, Amber Rudd resigned because, amid the Windrush scandal, she had not known about her department’s targets for removing illegal immigrants and thus had misled the House of Commons. Likewise, the practice of cabinet responsibility has become far less strict.
The growth of “codes”, formulated largely by civil servants and seemingly nodded through by the premier and the Cabinet, has in my opinion proved unsatisfactory and even dangerous. A particular example of changes with arguably partisan implications was the rushed introduction before the 2010 general election of a so-called “Cabinet Manual”. Under the guise of codifying existing practice, it introduced potentially significant changes in the procedure for forming governments after general elections which produced hung parliaments. The changes not only suggested what effectively were alterations in the role of the Monarch but also favoured coalition ministries following negotiations which permitted a third party — in 2010 the Liberal Democrats — to play the two main parties off against each other in offering policy concessions to the Liberal Democrats. I have given evidence and have written about this elsewhere.
What made the manoeuvres concerning the Cabinet Manual a matter of special concern was the seemingly influential role of the Institute for Government (set up with core funding of £15 million by a former minister of state in the Tony Blair’s Labour government, Lord [David] Sainsbury) and of the UCL Constitution Unit. Both bodies were and remain of the highest repute. Nevertheless they could reasonably be seen as expressing a particular approach. More recently, the Constitution Unit’s study and recommendations concerning a future referendum on Irish unification may possibly be seen as indirectly promoting the aims of the Irish government and serving to undermine the territorial integrity of the United Kingdom. The Unit’s role following the Brexit referendum of 2016 was in need of greater challenge.
In short, and looking beyond the immediate controversies concerning the alleged disrespect in high political (and, for that matter, civil service) circles for Covid rules which others, ranging from the Queen to ordinary citizens, were expected to follow, there is a deeper, longer term issue. This is the danger of mission-creep by civil servants relating to some constitutional matters.
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