We must not make a scarecrow of the law, Setting it up to fear the birds of prey, And let it keep one shape, till custom make it Their perch and not their terror. (Measure for Measure, II.i.1-4)
Angelo may have been the bloodthirsty antagonist who becomes an abuser of the very law he enforces, but his speech opening Act II of Measure for Measure recognises the impotence of law without proper enforcement. While few are calling for the legal system to act as a ‘terror’ to deter rule-breakers (Angelo had a penchant for execution), recent events have led to concerns that the Ministerial Code has become a rather comfortable ‘perch’ for ruling politicians. The code—which outlines standards of conduct for government ministers—is a set of guiding principles rather than law (it has no statutory footing) but the opening quotation resonates with the ongoing debate about the extent to which those in power are held to account in Britain.
In particular, various controversies over alleged breaches during Mr Johnson’s premiership have contributed to a perception that there is an issue with the application of the Ministerial Code, namely, that apparent contraventions do not appear to result in sanctions.[1] In the opening months of 2022, many, including members of Mr Johnson’s own party, expressed concern at his failure to resign despite being the first sitting Prime Minister to be sanctioned for breaking the law and in spite of multiple claims that he misled Parliament about Downing Street parties during lockdown (at the time of writing these claims are being investigated by the Privileges Committee). In May 2022, within days of the publication of senior civil servant Sue Gray’s report, which found ‘failures of leadership and judgment [in] No 10’, Mr Johnson responded by publishing an ‘updated’ Ministerial Code which was met with controversy in the press, not least because of the timing.
The Prime Minister is the ultimate arbiter of the Ministerial Code: only the Prime Minister can initiate or consent to the launch of an inquiry into whether a Minister has broken the code, but the Prime Minister does not have to accept such an inquiry’s findings. It is for the Prime Minister to decide what, if any, sanctions should be applied. In a sense, it is up to the Prime Minister to ‘shape’ the code.
Thanks to its previous drafting, popular conception has been that any breach of the Ministerial Code should result in dismissal or resignation, but Mr Johnson’s recently updated code has introduced a range of sanctions available for breach, which has led to some critics alleging a watering-down. The updated code does retain the only specific breach with a defined punishment: knowingly misleading parliament. It keeps the pre-existing clause that ‘[i]t is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity’ and that Ministers ‘who knowingly mislead Parliament’ will ‘be expected to offer their resignation to the Prime Minister’.[2] It seems that its original writers did not conceive that the Prime Minister may be the person so accused.
‘Partygate’ and other recent scandals are far from the first ministerial breaches that have engaged a possible misleading of Parliament. Applying the terms of the title quotation to selected examples over time, has the Ministerial Code served more as a ‘terror’ or a ‘perch’?
Background to the Ministerial Code
Mr Johnson’s Foreword to the previous code (before his recent update) summarised the standards expected of Ministers as follows,
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.
The updated code includes a new Foreword which removes references to ‘integrity, objectivity, accountability, transparency, honesty and leadership’ (although the principles are embedded in the code itself).
The Ministerial Code started life in 1945 as two documents, ‘Cabinet Procedure’ and ‘Questions of Procedure’, both introduced by then Prime Minister Clement Attlee.[3] In 1946, Attlee re-issued the guidance as one document called ‘Questions of Procedure for Ministers’. The code is generally revised at the start of each new administration and it remained confidential until John Major approved its publication in May 1992, opening it to external scrutiny. The code was given its current name under Tony Blair’s government in 1997.
The Ministerial Code’s guidelines are intended to serve as a yardstick of procedure and conduct for all ministers, including the Prime Minister.
However, as noted, the Prime Minister is the ultimate judge of breaches of the code and this has been the case since 1997.[4] Prior to then, the code stated that it was for ‘individual Ministers to judge how best to act in order to uphold the highest standards’. The First Report of the Committee on Standards in Public Life recommended that the code be changed so that ‘It will be for individual Ministers to judge how best to act in order to uphold the highest standards. It will be for the Prime Minister to determine whether or not they have done so in any particular circumstance’.[5] This recommendation is reflected at paragraph 1.6 of the current Ministerial Code.
The Ministerial Code and Misleading Parliament
One of the most high-profile ministerial resignations in the 20th century was that of John Profumo in 1963. Profumo, then Secretary of State for War, denied his affair with Christine Keeler stating there was ‘no impropriety whatsoever’ (impropriety in this case meaning sexual relations), thereby knowingly misleading the House of Commons.[6] The relevance of the relationship was not purely a moral issue; Ms Keeler was also involved with Colonel Yevgeny Ivanov, a naval attaché at the Soviet Embassy. Lord Denning’s subsequent inquiry into the scandal was primarily concerned with the potential security risk. Then Prime Minister, Harold Macmillan, lamented the level of the lie in the debate following Profumo’s resignation, stating:
I do not remember in the whole of my life, or even in the political history of the past, a case of a Minister of the Crown who has told a deliberate lie to his wife, to his legal advisers and to his Ministerial colleagues, not once but over and over again, who has then repeated this lie to the House of Commons as a personal statement which, as the right hon. Gentleman reminded us, implies that it is privileged, and has subsequently taken legal action and recovered damages on the basis of a falsehood. This is almost unbelievable, but it is true.[7]
In Profumo’s case, there was no question that he had blatantly misled the House of Commons. Once the truth came out, he had no choice but to resign. Breach of the Ministerial Code was not necessarily the only factor behind the resignation but the single misdemeanour that should prompt resignation in today’s code—knowingly misleading Parliament—was enough to do so then, tilting the balance towards the code at least having teeth, if not serving as a ‘terror’.
However, subsequent examples are not as clear-cut. The Scott Inquiry was launched in 1992 after government lawyers instructed prosecutors to stop the trial of executives from machine tool firm, Matrix Churchill, who were accused of selling arms-related equipment to Iraq in breach of export controls.[8] The collapse of the trial led Prime Minister, John Major, to launch an inquiry under Sir Richard Scott, resulting in the publication of the Scott report in 1996 which found, amongst other things, that government ministers had misled Parliament over the export policy.
The report concluded with the seemingly clear indictment that, ‘[i]n the circumstances, the Government statements in 1989 and 1990 about policy on defence exports to Iraq consistently failed, in my opinion, to comply with the standard set by paragraph 27 of the Questions of Procedure for Ministers and, more important, failed to discharge the obligations imposed by the constitutional principle of Ministerial accountability’.[9] However, in a vote over the findings of the report, John Major’s government narrowly survived (by a single vote) ‘by quite simply brazening it out and by openly disagreeing with the verdict that the Scott report had reached’.[10] The report led to no resignations.
At the time of the Scott report’s publication, only William Waldegrave (who had been a junior minister in the foreign office), remained in office from the time period in question. Following the report’s publication, there were calls for Mr Waldegrave to resign—as Adam Tomkins writes, ‘on a number of occasions, the Scott report did find that Mr Waldegrave had misled Parliament, albeit without apparently realizing so at the time’.[11]
Tomkins queries, ‘[h]ow did we get from the strong words (‘inaccurate’, ‘misleading’, ‘designedly uninformative’) of the Scott report to the position where no minister resigned?’ and proffers a variety of reasons in answer to this.[12] These range from the fact that the Major government had access to the report prior to its publication meaning they had time to analyse it and ‘[p]ublish an extremely partial (in two senses) and in places positively (i.e. knowingly and deliberately) misleading summary of and response to the report’, to the lack of highlighted conclusions in the report’s dense 1806 pages, which in themselves were not ‘sharp verdicts’.[13]
In relation to Waldegrave, the report held that he did not intentionally mislead Parliament (even though Parliament was indeed misled and he ought to have realised the same). Further, there was no ‘duplicitous intention’ behind potentially misleading statements by government ministers to Parliament.[14]
This is an example of a literal interpretation of the wording of the Ministerial Code being utilised in the government’s favour, in doing so potentially rendering it more of a ‘perch’ than a ‘terror’, particularly in the context of the wider report’s findings on government failings. This calls to mind some potential similarities with the current ‘Partygate’ scandal and, as with the Scott report, specifically, the Ministerial Code’s prescription that a Minister must ‘knowingly’ mislead Parliament. Boris Johnson has stated,
Let me also say—not by way of mitigation or excuse, but purely because it explains my previous words in this House—that it did not occur to me, then or subsequently, that a gathering in the Cabinet Room just before a vital meeting on covid strategy could amount to a breach of the rules [emphasis added].[15]
Mr Johnson’s defence here relied on inadvertent error and a more literal application of the Ministerial Code’s wording that only those who ‘knowingly mislead’ Parliament are expected to resign.
A contrasting example of the inadvertent misleading of Parliament came to the fore in 2018 when Amber Rudd resigned as Home Secretary after unintentionally misleading the Home Affairs Select Committee within the context of the Windrush Scandal. Arguably, ‘[i]n constitutional terms, this is a precedent’.[16]
Amber Rudd’s resignation letter to Prime Minister Theresa May was produced in response to a leak of an internal document setting out immigration targets. In the letter, Ms Rudd described her resignation as necessary ‘because I inadvertently misled the Home Affairs Select Committee over targets for removal of illegal immigrants during their questions on Windrush’. Although Ms Rudd continued to deny any awareness of specific removal targets, she accepted that ‘I should have been aware of this, and I take full responsibility for the fact that I was not’. Arguably, this indicates that a literal application of the linguistics of the Ministerial Code is not always appropriate or sufficient and the question is whether a minister ‘should have been aware’ and should therefore, as Rudd did, take responsibility.
There were a number of other high-profile resignations under the May administration for improper behaviour that could be seen to breach the standards expected under the Ministerial Code. These included Secretary of State for Defence Michael Fallon, Secretary of State for International Development (and current Home Secretary) Priti Patel, and First Secretary of State Minister for the Cabinet Office Damian Green. Theresa May has been viewed by various political commentators as a ‘stickler for the rules’.[17] This raises the speculative question of whether the behaviour in question would have resulted in resignations had it occurred under a different administration led by a different leader.
Scarecrow of the law?
In his book The Good State: On the Principles of Democracy, A C Grayling quotes Roman poet Juvenal’s question, ‘quis custodiet ipsos custodes? (who watches the watchmen?)’ in relation to the House of Commons Code of Conduct.[18] The same might apply to the Ministerial Code. The instances explored above are merely selected examples and are too few and unrepresentative to seek to arrive at a definitive evaluation—there are obviously a myriad of factors that contribute to any ministerial resignation. However, they do illustrate that the Ministerial Code, with its lack of statutory footing, appears to have been applied inconsistently over time, depending on the current administration and Prime Minister. The code consequently operates with an extremely wide discretion and, to some degree, at the whim of the incumbent Prime Minister.
Returning to the title quotation, would Angelo consider the Prime Minister’s approach to ministerial breaches to be making a ‘scarecrow’ of the Ministerial Code by offering the sanctuary of a ‘perch’ instead of serving as a ‘terror’? Almost certainly yes. However, Angelo calls for the law to be carried out to the letter and without discretion in order to be adhered to. This is not necessarily the answer either, not least given that the code’s historic lack of specificity on sanctions often led to a perception or expectation that any breach should lead to a blanket resignation, regardless of the scale or significance of the breach in question. This may alter now that the updated code provides for a range of sanctions, presumably to be applied proportionately with the gravity of the breach.[19] However, enforcement still relies on each Prime Minister’s discretion.
Angelo may have been the chief advocate for rigid enforcement of definable rules, but at the end of Measure for Measure his own life is spared (after breaking those same rules) by an act of political mercy. As the title of the play suggests, balance is key. Shakespeare well understood that neither ‘perch’ nor ‘terror’ equates to good governance: a helpful reminder when considering the Ministerial Code and how it might best serve its purpose.
Shulamit Aberbach, Mishcon de Reya
Shulamit Aberbach is an Associate in the Politics & Law Team at Mishcon de Reya. Shulamit regularly advises clients in relation to political disputes and public law. She has acted for members of various political parties in a range of disputes, including in relation to internal party disciplinary procedures. Shulamit also contributed to the firm’s responses to the Judicial Review and Human Rights Act government consultations.
Mishcon de Reya is an independent law firm, which now employs more than 1200 people with over 600 lawyers offering a wide range of legal services to companies and individuals. With presence in London, Singapore and Hong Kong (through its association with Karas LLP), the firm services an international community of clients and provides advice in situations where the constraints of geography often do not apply.
This sponsored article was written in May 2022.
[1] For example, the scandal surrounding Priti Patel’s alleged bullying of Home Office civil servants (paragraph 1.2 of the Code states that bullying and harassment by Ministers ‘will not be tolerated’). Sir Alex Allan, the then Independent Adviser on Ministers’ Interests, found that Ms Patel had not consistently met the ‘high standards required by the Ministerial Code’, concluded that on occasion her treatment of civil service staff amounted to behaviour that could be described as bullying and confirmed that her behaviour was in breach of the code. Notwithstanding Sir Allan’s conclusions, the Prime Minister took the view that her behaviour did not breach the code and declared his full confidence in Ms Patel, resulting in Sir Allan’s resignation. [2] Ministerial Code, para 1.3(c). [3] Although based on an earlier document, ‘The War Cabinet: Rules of Procedure’, produced in 1917—see FDA v Prime Minister [2021] EWHC 3279 (Admin) [5]. [4] ibid [12]. [5] ‘The First Report of the Committee on Standards in Public Life’ (1995) 49. Proposed addition emphasized. [6] HC Deb 22 March 1963, vol 674 col 810. [7] HC Deb 17 June 1963, vol 679 col 55. [8] Richard Norton-Taylor, ‘Iraq arms prosecutions led to string of miscarriages of justice’ The Guardian (London, 9 November 2012). [9] See HL Deb 26 February 1996, vol 569 col 1238. [10] Adam Tomkins, The Constitution After Scott: Government Unwrapped (Oxford University Press 1998) 36. [11] ibid 35-6. [12] ibid 36. [13] ibid 36-7. [14] ibid and see HL Deb 26 February 1996 vol 569 col 1259. [15] Boris Johnson, ‘Easter Recess: Government Update’ Hansard, vol 712, debated on 19 April 2022. [16] Mike Gordon, ‘The Prime Minister, the Parties, and the Ministerial Code’ (UK Constitutional Law Blog, 27 April 2022). [17] ‘Britain’s good-chap model of government is coming apart’ The Economist (London, 18 December 2018). [18] AC Grayling, The Good State: On the Principles of Democracy (Oneworld Publications 2020) 88. [19] The Institute for Government’s July 2021 report in fact recommended an updated code including, amongst other things, a range of possible sanctions. Tim Durrant, Jack Pannell, and Catherine Haddon, ‘Institute for Government: Updating the Ministerial Code’ (July 2021). In April 2021, the Committee on Standards in Public Life called for the same. See the letter from Lord Evans, Chairman of the Committee, to the Prime Minister dated 15 April 2021.