When an updated version of the Ministerial Code was published last month, most of the headlines focused on the idea that the under-pressure Prime Minister had watered down the Code in order to save his own skin. As constitutional observers were quick to point out, this wasn’t strictly true. A more proportionate system, where a range of sanctions reflect the seriousness of breaches of the Code, had in fact been recommended by the Committee on Standards in Public Life (CSPL) and accepted by the government in April 2021. Ministers were never really expected to resign over fairly minor breaches of the Code anyway – this reality is now acknowledged in the Code itself. However, the government did fail to implement other changes that would have strengthened the independence of the Code’s enforcement.
Perhaps unsurprisingly, the call to give the Independent Adviser on Ministers’ Interests the power to initiate their own investigations was declined (the Adviser would still need the Prime Minister’s permission). CSPL’s recommendation that the role of Independent Adviser and aspects of the Code itself be placed on a statutory footing was also rejected (on the basis it would lead to more ‘politically-motivated judicial reviews’). The (now former) Adviser himself, Lord Geidt, stated that the minor changes to his role and the Code represented a ‘low level of ambition’.
Geidt has of course now resigned, citing in part the inadequacy of the Prime Minister’s response to the Sue Gray report but also, more mysteriously, the fact that he had recently been asked ‘to consider measures which risk a deliberate and purposeful breach of the Ministerial Code.’ It seems the immediate issue was the government’s intention to continue applying tariffs on steel that would place it in breach of World Trade Organisation rules. It is not clear why Geidt was asked to consider this matter in the first place, which would appear to fall more naturally within the remit of the Attorney General. He has now clarified that his objection was to the government’s willingness to breach its obligations under international law more generally, the steel tariffs issue being but one example of this. Regardless, it’s been reported that the Prime Minister will not seek to replace him immediately and is said to be considering getting rid of the role altogether.
If the government is genuinely looking for ways to improve the system of executive ethics regulation, Lord Anderson’s recently announced private member’s bill, which would legislate for the CSPL reforms mentioned above, would be a good place to start. But genuinely independent regulation and a balanced and diffuse governance landscape is anathema to the government’s overarching constitutional approach. The constitutional thinking contained in the new foreword to the Code and the accompanying policy statement on standards in public life exemplifies this. The statements also indicate why the Prime Minister is more likely to scrap the role of Independent Adviser on Ministers’ Interests altogether than move in the direction of greater independence and ethics legislation.
The government’s statement of policy on standards in public life begins:
It is fundamental to the UK’s constitution, that the Prime Minister, as the head of the Executive, has sole responsibility for the organisation of Her Majesty’s Government. The Prime Minister is accountable to Parliament and the public for the use of these powers, including, ultimately, at the ballot box. In the same way, all Ministers, including the Prime Minister, are accountable to Parliament and the public for their actions and conduct more generally.
In and of itself, this is an accurate description of the UK constitutional position. But as the Institute for Government’s Catherine Haddon has pointed out, it omits a crucial aspect of the relationship between the Prime Minister and Parliament – that the PM only holds office by virtue of the confidence of the House of Commons. ‘The relationship to Parliament is not just accountability and PMs do not just serve until the ballot box decides differently,’ she commented shortly after the statement was published.
It has been noted that the Prime Minister’s new foreword to the Ministerial Code no longer mentions the requirement for ministers to ‘uphold the very highest standards of propriety’. Gone too are the specific references to bullying and harassment, as well as ‘actual or perceived conflicts of interest’. But the new foreword is also notable for what it does emphasise – namely, delivering ‘for the British people’ and a ‘broader duty to use our democratic mandate to the greatest possible effect’.
Both documents reflect an increasing tendency to emphasise the personal power of the Prime Minister and present Johnson as if he has a direct mandate from the public. The Conservative majority in the House of Commons is characterised as one dimension of the Prime Minister’s legitimacy – but not the fundamental premise on which it rests. This reflects a broader effort to shift the contours of constitutional understanding in the direction of a more presidential view of the Prime Minister’s role and power.
Jacob Rees-Mogg put this most explicitly earlier this year, when he said on Newsnight that we have moved ‘to an essentially presidential system’ where ‘the mandate is personal rather than entirely party’, and that an election would be necessary if Boris Johnson were to resign.
Although he didn’t put it quite as starkly, Rishi Sunak’s comment on the Today programme in 2021 that ‘I work for the Prime Minister … My job is to deliver for him … Ultimately, we all work for the Prime Minister’ was certainly telling of the way in which the PM’s position is now understood.[1] It’s a long way from the idea that the Prime Minister is ‘first among equals’ anyway.
Johnson’s own pronouncements have sought to encourage this view. He frequently refers to the idea that he was elected to deliver on the priorities of the British people and should go unchallenged in doing so, regardless of his own conduct. In his first Prime Minister’s Questions after the vote of confidence on his leadership, he said that ‘absolutely nothing and no one’ would stop him continuing in office. The subtext is that he will be judged at the ballot box, and the ballot box alone.
Johnson’s immediate reaction to the vote illustrates why these pronouncements are important. After losing the support of 41 per cent of his parliamentary party, he heralded ‘a very good’ and ‘convincing and decisive result’ result, which would mean that ‘we can move on and focus on the stuff that I think really matters.’
Carving out a democratic status for the Prime Minister independent of his ability to command a majority in the House of Commons shifts the boundaries of acceptability. By downplaying the fundamental importance of the confidence of the Commons, Johnson was able to claim that losing the support of a significant portion of his parliamentary matter is a ‘good’ result. In essence, if his democratic authority is partially vested elsewhere – derived directly from the 2019 election – then it does not matter so much that his authority in Parliament is severely weakened.
As Hannah White details in her recent book on the House of Commons, the government has shown a more general inclination to side-line Parliament and minimise its role. She writes that ‘Brexit and Covid-19 [have] reinforced a vicious cycle of decline in Westminster – of executive disregard for parliament, which undermines public trust in its role, and in turn further emboldens ministers to side-line the legislature, damaging parliament’s ability to play its part in our democracy.’[2]
The way in which Parliament was construed as an obstruction to delivering on the public’s wishes during the Brexit process – and thus failing in its democratic duty – has been well-documented. The most striking example of this rhetoric came in the form of Sir Geoffrey Cox, the Attorney General at the time, saying that the 2017-2019 Parliament was ‘a disgrace’ that had ‘no moral right to sit’. Old habits die hard, and the notion that Parliament has a duty to support the government in implementing ‘the will of the people’ – regardless of concerns about leadership, integrity and the method of delivery – remains pervasive.
This is not to argue that electoral mandates do not matter, or that implementing popular policies is not a crucial aspect of what we should expect of government. It’s clear that over the last twenty years globalisation has been experienced unequally, with some parts of the country growing richer whilst others have been left behind. There are regions of the UK that have long been overlooked by policy-makers, leaving them lacking in infrastructure and economic opportunities. But the political mode adopted by the government in response falls short of how we should want democracy to function, and arguably makes it more difficult to meaningfully address these challenges.
Instead of conceiving of politics as consisting of the navigation and negotiation of a diversity of interests and values, a homogeneous public will must be imposed in the face of resistance from a supposedly hostile establishment. The denial of pluralism this entails is dangerous as it casts those communities and interests not considered in keeping with the ‘will of the people’ as outside the demos, and not deserving of democratic recognition. Furthermore, it is constitutionally destabilising as it legitimises attacks on institutions characterised as obstructing delivery, regardless of their broader constitutional function.
This represents a form of what Alison Young has termed ‘pragmatic populism’ – whereby appeals to the ‘will of the people’ are used strategically as the means to particular ends. One dimension of this political approach is the replacement of deliberation with rhetoric. Policies themselves are deployed rhetorically rather than as serious proposals for addressing certain issues. Take the policy of deporting asylum seekers to Rwanda. Leaving aside questions of morality, the government will have been well aware of the legal difficulties the policy would face. Its lack of cost-effectiveness has also been admitted. But regardless of whether there is any evidence that it will actually help address the issue of people-smuggling and dangerous channel crossings; it allows a narrative to be set up that can be deployed strategically – one which the government clearly believes will appeal to a section of the electorate whose support it needs to win at the next election.
The counter-argument to some of these charges is that the Johnson administration is in fact seeking to return to a more traditional, conservative vision of how the constitution functions – one which emphasises the role of political decision-making and the unencumbered sovereignty of Parliament. This was acknowledged most explicitly by Robert Buckland when he was Lord Chancellor, who said in a speech that ‘we are attempting to return to the political constitution model that was the orthodoxy for much of the 20th century.’ Without getting into the ‘legal’ versus ‘political’ constitution debate, there are of course good arguments for a constitutional settlement that emphasises ‘legislative supremacy, responsible government and mechanisms of political accountability … capable of channelling the exercise of political power towards the common good’.[3]
But aside from doubts about whether there really is a golden age of the political constitution to return to, there are two further issues here. First, the shift to an increasingly presidential understanding of the UK constitution detailed above stands in contrast to the orthodox model of the political constitution cited by Buckland – which traditionally emphasises the decision-making of the democratically-elected representative chamber. Second, as we have seen, despite its frequent references to parliamentary sovereignty the government in fact tends to side-line Parliament. Many have highlighted the ways in which it has minimised the political accountability that is an essential feature of the political constitutional vision rather than heightened it (for example, relying extensively on delegated legislation which receives little parliamentary scrutiny and rushing through legislation in an inadequate amount of time).[4]
Appealing to the political constitution whilst also advocating presidentialism and operating a form ‘pragmatic populism’ leads to a highly powerful executive with little to counterbalance it. Government statements may seem like an immaterial part of this picture, but in subtle ways they help normalise and establish this constitutional vision. And they may, in turn, help provide a justification for why the Prime Minister does not in fact require anyone to advise him on the ethical conduct of his government. In response we should ask: is this what we want representative democracy to look like?
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.
[1] Rishi Sunak interview on Radio 4 Today, 8 July 2021; found in Robert Saunders, ‘‘Let Them Eat Cake’: Conservatism in the age of Boris Johnson’, Renewal 30/2.
[2] Hannah White, Held in Contempt, (Manchester: Manchester University Press, 2022), p. 4.
[3] Graham Gee, ‘The Political Constitution and the Political Rights’, King’s Law Journal 30(1) (2019), p. 149.
[4] See, for example, Hannah White, Held in Contempt, pp. 21-56.