De-coding the constitution?

Andrew Blick
By: Andrew Blick

The Priti Patel affair highlights some general peculiarities of the UK constitution. At the centre of this episode lies a document, the Ministerial Code. This text, which formed the basis of the investigation into the Home Secretary, is regarded as having a central role in the ethical regulation of government. In his foreword to the 2019 edition, the Prime Minister wrote:

‘we must uphold the very highest standards of propriety – and this code sets out how we must do so.

There must be no bullying and no harassment; no leaking; no breach of collective responsibility. No misuse of taxpayer money and no actual or perceived conflicts of interest. The precious principles of public life enshrined in this document – integrity, objectivity, accountability, transparency, honesty and leadership in the public interest – must be honoured at all times; as must the political impartiality of our much admired civil service.’

I expect many would dispute how well Johnson has subsequently upheld the values he referred to here and which the main text of the code is intended to promote. The provision pertinent to the Patel case comes early on, in paragraph 1.2, which states that:

‘Ministers should be professional in all their dealings and treat all those with whom they come into contact with consideration and respect. Working relationships, including with civil servants, ministerial and parliamentary colleagues and parliamentary staff should be proper and appropriate. Harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated.’

But ultimately, the decision in the Patel case rested with the person who chose her for her role. As the code insists (paragraph 1.4):

‘It is not the role of the Cabinet Secretary or other officials to enforce the Code. 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, he may ask the Cabinet Office to investigate the facts of the case and/or refer the matter to the independent adviser on Ministers’ interests.’

Then, in paragraph 1.6:

‘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. He is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards.’

Whatever view one takes of the outcome in this specific case, and of the effectiveness of the code, it is clear that scrutiny of such documents has long since become a regular feature of political controversies. But their constitutional significance remains underappreciated, and requires closer consideration. Where did they come from, and what are their implications? The Ministerial Code first appeared in 1997 (when it changed its name from Questions of Procedure for Ministers). But its origins lie as far back as the First World War. After he became Prime Minister in 1916, David Lloyd George established what became the Cabinet Office to support the small War Cabinet he had established. This initiative was an important stage in the formalisation of UK government. Most famously, it denoted the beginning of properly recorded Cabinet meetings as understood today. Another practice that soon followed the establishment of this new institution was the production of documents intended to set out good practice for the functioning of government. We can trace a clear line from a text issued by Sir Maurice Hankey, Secretary of the War Cabinet, in January 1917, entitled Rules of Procedure, to the Ministerial Code of today.

In the intervening period, texts of this type have proliferated; and while originally they were secret documents intended for internal use only, many of them are now published and available online. Between them they deal with a wide range of activities, principles and ‘conventions’ (however defined), some of which are core to the constitutional system of the UK. Alongside guidance on good behaviour and propriety, the Ministerial Code, for instance, contains numerous other provisions, including the assertion (in paragraph 1.3c) of the vital requirement that:

‘Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister’

The code also describes how (paragraph 2.1):

‘The principle of collective responsibility requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached.’

The devolution Memorandum of Understanding seeks to provide a framework for territorial intergovernmental relations in the UK; while the Civil Service Code deals (as the name suggests) with the constitutional position of civil servants. The Cabinet Manual contains (among other content) accounts of the nature of constitutional monarchy, parliamentary sovereignty, and Cabinet government. It also tells us that (paragraph 3.1):

‘The Prime Minister is the head of the Government and holds that position by virtue of his or her ability to command the confidence of the House of Commons…By modern convention, the Prime Minister always sits in the House of Commons. The Prime Minister will normally be the accepted leader of a political party that commands the majority of the House of Commons.’

Such stipulations may seem obvious. But they are fundamental to our constitution. And – while they might be found in many textbooks – the closest they come to an official expression is in these documents. While other countries have publications of this type, they are of heightened importance in the UK given the absence of a ‘written’ or ‘codified’ constitution. Codes occupy a space that a full ‘written’ or ‘codified’ constitution might otherwise fill.

I could go on listing the vital provisions that are included in such texts, and have done in my 2016 book The Codes of the Constitution. In this blog, I want to make two points. First, these texts are as nebulous in nature as they are important. They lack direct legal force (though can potentially be taken into account in judicial review); and many of them have no basis in statute (a notable exception is the Civil Service Code, now issued under the Constitutional Reform and Governance Act 2010). It is not always clear whether they simply describe or are the actual source of the arrangements and principles set out within them. Given the vagaries surrounding these documents, perception is vital to their effectiveness. If a Prime Minister or ministers behave in ways which show disregard for them, their credibility might become compromised. That could be a serious constitutional problem for everyone – including the government itself, which might be undermining some of the foundations upon which its legitimacy rests.

Second, because of recent constitutional upheaval, many of these codes are out of date, particularly but not exclusively the Cabinet Manual. This text, the first and so far only edition of which appeared in 2011, is apparently being revised. How, precisely, the government is going about doing so is not entirely clear. But the way in which it handles this process could be an important test of goodwill. If it allows the impression to develop that it is carrying out a closed exercise, redrafting rules in ways that suit its own purposes, then it might find the very device it hopes to employ losing effectiveness. Conversely, a more open and inclusive approach could help solidify both this text and the constitution itself.

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.

Dr Andrew Blick is Head of the Department of Political Economy at King’s College London and Senior Adviser to The Constitution Society.