Earlier this week, Deputy Leader of the Labour Party (and shadow minister of too many things to list) Angela Rayner gave a speech at the Institute for Government (IfG) outlining the party’s plans to clean up politics. Rayner attacked the current government for undermining integrity in public life; saving her most forthright criticisms for the Prime Minister himself, who she said was personally responsible for making the current system for upholding public standards not fit for purpose.
She went on to announce Labour’s proposed alternative: an Integrity and Ethics Commission. This would roll at least three existing bodies – the Independent Adviser on Ministers’ Interests, the Advisory Committee on Business Appointments (ACOBA), and the Committee on Standards in Public Life (CSPL) – into one overarching regulator. In contrast to the Independent Adviser, this new body would have the power to influence the content of the Ministerial Code, initiate investigations into possible breaches of the Code, and impose a range of binding sanctions. In addition to this, Labour would ban lobbying for five years after leaving public office, and give the commission the power to issue penalties for breaking the business appointment rules. The Ethics and Integrity Commission would also be able to conduct inquiries into standards across public life, as CSPL does ‘but with the power to ensure action is taken’.
As Rayner was on stage setting out this plan, it became clear that a reshuffle of Labour’s frontbench was taking place. This odd timing, coupled with the substantial changes to the shadow cabinet that emerged later in the day, meant that the substance of the speech was largely overshadowed. Nonetheless, Labour’s proposals warrant further attention. The approach the party is advocating goes beyond what CSPL has recommended, and would have constitutional implications that deserve careful consideration.
Committee on Standards in Public Life
At the start of November, CSPL published a major report on executive standards, putting forward 34 recommendations to make the system more effective. In her speech, Rayner praised the report saying it provided ‘a framework to improve standards in our public life’. However, as the Director of the IfG Bronwen Maddox was quick to point out, Labour’s proposals contradict those of CSPL in a fairly central way.
CSPL expressly recommended against amalgamating existing standards bodies into an overarching commission, arguing that this had the potential to create an unaccountable and overpowerful regulator. Rayner cited the ‘alphabet soup of different committees, advisers, rules and codes of conducts’ as a rationale for the centralisation of responsibility. This was a point CSPL considered, but the committee concluded that consolidation might not help with the overall complexity of the system as the different aspects of the standards regime would still need to be governed by different codes. This was a point Rayner seemingly conceded, saying that the work of the proposed commission might have to be undertaken by various sub-committees.
CSPL argued that a dispersed system also has its own advantages. For example, if one body is ineffective or suffers a scandal, the other parts of the system would not necessarily be affected.
When pressed on this difference of opinion, Rayner replied that the existing system needed to be strengthened by being placed in primary legislation. This may well be true – and it accords with CSPL’s conclusions – but it does not itself explain the need for a single Integrity and Ethics Commission. The existing bodies could be strengthened through new primary legislation without this requiring the creation of a consolidated commission.
Labour’s proposed model would also have significant constitutional implications.
On the Ministerial Code, Rayner said ‘there will be clear sanctions for breaches of the Code so the Prime Minister is no longer judge and jury over the conduct of Ministers.’ She added that one of the first tasks of the regulator will be to ‘consult on the changes that are required to update the Ministerial Code so it is fit for purpose.’
This raises a number of questions – one of which was asked in the Q and A that followed the speech: would the commission have the power to remove a minister from office for a serious breach of the Code? The answer to this was yes, and that a Prime Minister should not be able to veto the decision of the commission. Rayner also confirmed that the rules of the Code itself would be placed on a statutory footing, meaning that its application would be judged and challenged in the courts. Furthermore, it was left unclear as to what role, if any, the Prime Minister would have in issuing the Code, especially given that the commission’s first responsibility would be consulting on changes to the rules.
The sum of this would be to turn the Code from a political document owned by the Prime Minister into a set of legal rules enforced by a regulator with the discretion, in the final instance, to determine whether someone should stay in the government. Its decisions would open to review by the courts. Whilst there is a case for Labour to make that this is what is needed, it should be acknowledged that it would represent a significant shift in power and amend a fundamental constitutional principle: that it is the Prime Minister who ultimately decides who is in, or out, of their government.
Another important question asked was how individuals would be appointed to the commission. According to Rayner this would be the responsibility of a permanent secretary to the commission – in other words, a senior civil servant – which would allow it to ‘be completely outside of the remit of politicians and of the Prime Minister’.
There are several objections that might be put forward in response to this set up, and that Labour should consider. First, is it wise to create a single regulator with so much power? As others have pointed out, it creates a single point of failure and a single entity towards which political influence can be directed.
Second, as already mentioned, the appropriateness of handing an unelected regulator the last word over whether an individual should stay in the government might be questioned. Arguably, if the Prime Minister has the confidence of the House of Commons, they should have the final say over who is in their government.
Third, is it really possible to place a regulator of this nature outside of the political process? Or, indeed, would it be right to do so. As a recent IfG report on standards in public life concluded, ‘[there] can be no external, fully independent arbiter of standards who is completely apolitical. All roads in judging behaviour in public life must lead back to politics, and ultimately to the voters who pick MPs.’ For Labour’s Integrity and Ethics Commission to be legitimate, it must be in some way democratically accountable.
So, how might Labour counter some of these objections? One option is to place the various standards bodies on a statutory footing, but without consolidating them into a single regulator. As others have suggested, the legislation could include a requirement for the Prime Minister to issue a Ministerial Code, without putting all the rules themselves in statute. This is the model already followed for the Civil Service Code, the existence of which is provided for in the Constitutional Reform and Governance Act 2010. Some of the most fundamental aspects of the Civil Service Code are outlined in the Act alongside the role of the Civil Service Commission in enforcing them.
There is also precedent in the UK for placing a ministerial code in statute. In Northern Ireland, the St Andrews Agreement Acts of 2006 and 2007 amended the Northern Ireland Act 1998 to include the requirement for a ministerial code which includes certain fundamental provisions. A similar obligation for the government to produce the Business Appointment Rules could be stipulated in statute, along with a statement of the fundamental issues the rules should deal with.
Placing these obligations on the government in primary legislation would give the relevant standards bodies and the rules they oversee a firmer constitutional status, but without the inflexibility that might come from placing all of the rules of the codes in law. Furthermore, opting for this approach would assuage some of the concerns around the creation of an overmighty regulator, although it would perhaps be a less eye-catching reform.
However, if Labour decides to stick with the Integrity and Ethics Commission, it should ensure that there is democratic oversight and accountability for the new body. It is vital that a regulator of this nature be independent of the executive, but also that there is a link back to the electorate. The models used for existing bodies such as the Electoral Commission and the Parliamentary Commissioner on Standards might prove instructive in this respect.
The work of the Electoral Commission is scrutinised by the Speaker’s Committee on the Electoral Commission, which is made up of MPs but, until 2020, had no single party majority (it is still unclear why this changed). Alternatively, the Committee on Standards, which oversees the role of the Parliamentary Commissioner for Standards, includes seven members of the public alongside MPs, meaning there isn’t a Conservative majority on the committee. This kind of approach – mixing parliamentary and public involvement whilst ensuring the governing party doesn’t dominate – might prove an appropriate way of ensuring any Integrity and Ethics Commission is properly scrutinised and ultimately accountable to the public.
Alex Walker is The Constitution Society’s Communications Manager and Researcher. He edits and contributes to the blog.
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.