Lobby groups for a tighter standards regime had high hopes for the new government, with Dominic Grieve’s Commission on Governance and the UCL’s Constitution Unit to the fore. Policy Exchange has a longstanding scepticism about these ideas. In our paper Getting a Grip on the System, we identified the start of a new government as the period of maximum danger, with a risk that ministers might implement changes that they later come to regret.
The prime minister has issued a substantially rewritten version of the ministerial code. There are a couple of improvements, some areas of risk, but generally the verdict has to be that things could be a lot worse.
The government has fulfilled its manifesto commitment to give the independent adviser on ministerial standards independent power to investigate alleged breaches of the code without requiring prime ministerial agreement. Fortunately, there is no suggestion that the adviser should be allowed to recommend or impose sanctions, as some have called for.
As we said in Getting a Grip, “This neither makes the system more predictable, nor more democratic, as a watchdog effectively interposes itself between politicians and the electorate” .
There is ultimately no way comprehensively to codify behaviour. It is ultimately a matter for the voters. Setting up a separate arbiter risks creating confusion and further tension – either sanctions being imposed when ultimately the public is unconcerned about the behaviour in question, or clearing someone whose behaviour has actually outraged the public. We would strongly urge the prime minister to continue resisting calls to go further.
We are very pleased to see the cap on the number of special advisers removed, contradicting the Commission on Governance’s call for tighter limits. This was a major recommendation of the Getting a Grip paper, which noted how ministers were ever more outnumbered by the size of the senior civil service and the policy centre. While some including the IfG have expressed concerns that “not having any limit at all could mean huge teams that separate ministers from their departments”, this seems an odd concern given the 67% increase in the size of the SCS since 2012 and the 94% increase in the policy profession since 2016.
Some slightly odd wording has been added to the parts of the code dealing with civil service and public appointments, with a rather vague injunction not to abuse the public appointment process for 'partisan purposes'. On the face of it, this sounds reasonable. But it risks further complexities in the appointment process. Behind it is lurks perhaps a technocratic belief that there is a single objective criterion of 'merit' irrespective of whether individuals are in sympathy with the job ministers are asking them to do. We support more latitude for ministers, particularly on public appointments.
Our main objection is the reinstatement of the obligation to follow ‘international law’ which was removed in 2015. Professor John Finnis argued the case powerfully in a Policy Exchange blog back then: “Some rules of “customary” international law correspond to parts of our common law, some other rules have been adopted by Act of Parliament, and there is a legal presumption that Parliament intends not to defy or ignore international law or the UK’s treaty obligations. But none of this imposes on ministers (or civil servants) anything comparable to their personal obligation as citizens and ministers to comply with the law, that is, with the law of the land.”
Putting international law on the same footing as domestic law is accepting that it is legitimate for government to by-pass the legislative processes of Parliament by agreeing with foreign states a proposition that would impact on UK law.
Reinstating the obligation on ministers to comply with international law is also bound to revive, yet again, the question of whether the civil service code’s duty to ‘comply with the law’ also applies to international law, a longstanding argument of the FDA. Here too, our position is that this is quite mistaken, and we continue to support amending the civil service code to make it clear that civil servants’ duties are wholly to comply with domestic law.
Minister may grow to regret these concessions, as Tony Blair did the Freedom of Information Act and David Cameron the Fixed-term Parliaments Act and the restrictions on the number of spads. But assuming these are the only changes to the ministerial code made during this Parliament, we have perhaps got off lightly.
Stephen Webb is head of government reform and home affairs at the Policy Exchange think tank, lead author of its Getting a Grip on the System paper and a former director in the Cabinet Office