During Boris Johnson’s tenure as Prime Minister, the UK experienced extreme turbulence related to the standards of ministerial behaviour. It wasn’t so much that ministers were behaving particularly badly, this happens to varying degrees during every administration, the issue was a collapse in the PM’s willingness to enforce standards of ministerial responsibility. The Independent Adviser on Ministerial Interests (recently retitled Ministerial Standards) is meant to advise the Prime Minister and ministers about adherence to the Ministerial Code. Johnson burned through two Independent Advisers in quick succession. First, Johnson ignored Alex Allen’s findings that Priti Patel had breached the Ministerial Code by bullying staff members and refused to sack her, which led to Allen’s resignation. Later Johnson got on the wrong side of Allen’s successor, Christopher Geidt, who resigned over the so-called partygate scandal and being asked to offer a view on proposed actions which risked “a deliberate and purposeful breach of the Ministerial Code”. There followed a lengthy 6-month interregnum during which no Independent Adviser was appointed. It has been a tumultuous time for this office, which plays a crucial role in securing accountability of ministers in public office.
When Keir Starmer took office, there was an impetus to hold ministers to higher standards after a challenging few years. In the foreword to his version of the Ministerial Code, published in November 2024, the Prime Minister observed that “restoring trust in politics is the great test of our era”. Starmer responded by making changes to the Independent Adviser’s role and amending the Ministerial Code. The changes have been met with scepticism from some parties and optimism from others. The Independent Adviser can now, for example, initiate an investigation into a matter that has not been referred to them without seeking the Prime Minister’s consent, which was required under the previous version of the Ministerial Code. The Independent Adviser has also acquired a clearer role in advising on whether the code has been breached and recommending what sanction should be considered. These are, however, minor changes and the overarching consensus seems to be that this area of the constitution is in need of much deeper reform.
A central weakness of the Ministerial Code and its accountability structures is the centrality of the Prime Minister to the entire apparatus. There is a tension at the heart of this area, a need to balance what can be competing interests. One the one hand, no one would deny that the PM should retain a very high level of control over who is part of their Cabinet. On the other, we rightly expect high standards of those holding public office, we expect scrutiny of their behaviour and for them to be held responsible where they fail to meet these standards. At present, the Prime Minister is responsible for the contents of the Ministerial Code, so they can effectively set the rules that the ministers must follow. They also play a significant role in investigations of breaches of the Code, referring cases to the Independent Adviser or the Cabinet Office and then determining what to do once investigations have been completed. As the Code itself states, the PM is “the ultimate judge of the standards of behaviour expected of a minister”. Problems arise because ministers are often appointed to Cabinet precisely because they are close political allies of the PM. This means the Prime Minister may not be the most impartial reviewer of their actions.
The PM is also supposed to be subject to the same rules as the other ministers. So, who is to be the ultimate judge of whether prime ministerial behaviour conforms to the ministerial code? A PM themself? The system conflicts with one of the most basic principles of justice – nemo iudex in causa sua – you cannot be judge in your own case, and any Prime Minister would struggle to remain unbiased and impartial when faced with the prospect of sacking a close ally, a friend or indeed themself. Under the current system, the PM is rule maker, enforcer and controller of investigations all in one, and it is a system wide open to abuse.
There are other problems with the Code too. The PM retains the power to appoint the Independent Adviser in the first instance. While the office is supposed to be independent and expected to provide impartial advice, the fact that the PM can choose their own adviser is problematic. There is no open recruitment process for the role and it is difficult to understand the basis on which previous appointees have been chosen. The role would require the holder to carry out investigations, evaluate matters of professional ethics and conduct some auditing. Yet, recent appointees have included a former chairman of Historic England, Laurie Magnus, and a former private secretary to the Queen, Christopher Geidt, who do not appear to possess particular expertise in any of these fields. Shortly before Christopher Geidt resigned from the post, John Crace described him as “the ultimate establishment stooge”. It reflected a perception in some quarters that the adviser is a Westminster insider, incapable of objectively scrutinising the Cabinet. To avoid such accusations (or appearances), the responsibility for choosing the Independent Adviser needs to be taken away from the PM and placed in the hands of a more neutral party. This would ideally be done by a different branch of government e.g. the Parliament.
Secondly, the division of responsibility for investigations of breaches remains unclear. The current code states
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 Ministerial Standards.
The fact that an allegation of a breach can be referred to either the Cabinet Office, the Independent Adviser or both is problematic. It creates scope for confusion over who should investigate what and the potential for the PM to pick and choose their preferred investigator. The PM arguably has much greater sway over the Cabinet Office, calling into question its impartiality. It would make sense for the Independent Adviser to have sole responsibility for investigating breaches of the Code.
Finally, the sanctions for breaching the Code should also be made clearer. At present there are several options available to the PM to punish breaches, which include making some form of public apology, “remedial action” or removal of a ministerial salary for a period. However, it is not clear when each sanction should be utilised. There has been a tendency to demand the resignation of ministers for any breach of the Code, but that is clearly not envisaged by the Code itself. In fact, only one infraction in the Code – knowingly misleading Parliament – creates a clear expectation that the minister will offer their resignation. The consequences for other types of infraction remain opaque. Giving some guidance on this would be beneficial for all parties. A failure to sack an errant minister can be seen as a sign of weakness for a PM or showing favouritism to political allies, yet if the sanctions are clearer from the outset, such claims are diffused. It would also clearly establish the expectations for people following the code.
Reform of this area of the constitution is on the cards, and Labour has made a manifesto commitment to establish an “Ethics and Integrity Commission” to “ensure probity in government”. However, the status of that proposed reform remains unclear as the Party have not brought forward legislation this term to address it. While the government clearly have a long to do list, momentum on this issue seems to have stalled. This should be addressed as a matter of priority if the government’s rhetoric of being a “government of service” is to ring true.
Stuart Wallace.
Stuart Wallace is an Associate Professor at the University of Leeds where he teaches constitutional law and international human rights law. He is a contributing writer for the Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.