A matter of judgement
One man’s observance of the spirit is another’s technical breach
Tucked in among the improving reading that burdens the desk of a new government minister are two vital documents. One is the long-standing Ministerial Code. This states the ground rules for ministerial conduct: avoiding conflicts of interest, conducting government business properly, and following the so-called Nolan Principles of Public Life, an open-textured list of virtues such as openness, objectivity and leadership drawn up by the Committee on Standards in Public Life, or CSPL. The other is the Governance Code, a 2016 document dealing appointments to quangos and quasi-governmental bodies.
Parts of the Ministerial Code are black-and-white in that they are either observed or not, most aren’t
Both of these are currently enforced largely through a combination of convention and moral suasion. But for how much longer is not clear. Last week the CSPL called for important changes to both documents, the formalisation of the processes they embody and their enshrining in statute. These proposals are meant to exude sweet reasonableness and appear as a blow for accountable government. Dig a bit deeper, however, and they become a good deal less reassuring.
As regards the Ministerial Code, the CSPL does not at all approve of the arrangements for investigating allegations that someone has breached it. Currently these are relatively informal – at least by administration standards. An incoming Prime Minister appoints an independent adviser on ministerial conduct, whom he can subsequently ask to report to him on any suggestion of a breach. If he reports something less than satisfactory, the PM then decides what (if anything) to do about it.
The CSPL finds all this not nearly formal enough. The independent adviser must, it says, be appointed not by the PM but by a committee following a formal process (though with the PM having the final say). Further, he should be able to investigate complaints off his own bat and report definitively and publicly if there has been misbehaviour, even though for reasons of constitutional propriety any sanction still has to be left to the PM.
The first difficulty with this is that while parts of the Ministerial Code are black-and-white in that they are either observed or not (for example, the rule against banking officially-obtained air miles for personal use), most aren’t. Requirements like showing high standards of propriety, treating people with respect or avoiding apparent conflicts of interest, and still more the open-ended Nolan Principles, are not things whose breach or non-breach can be determined as a matter of fact by some all-wise independent third party. They are much more issues of a continuum between the virtuous and the not-so-virtuous. In other words, it’s all a matter of judgment.
This whole backing for formalisation looks suspiciously like a discreet move to cement the status quo
Not only judgment, moreover: most issues arising under the Ministerial Code are fundamentally a matter of political judgment: one man’s observance of the principles in spirit is another’s technical breach, and possibly yet another’s serious breach. But if that is right, it is perverse to seek to take matters out of the hands of the government and the PM. The latter has after all been elected, and he knows better than most that his own position may depend on the public perception of his ministers and what he does to keep them in order. Setting up a consensus-appointed third party who does not necessarily hold the PM’s entire trust, and giving that person the power officially to second-guess the PM and perhaps condemn a minister who otherwise has the confidence of both government and a majority of the public is not only a recipe for discord. It also shows a slightly peculiar idea of what parliamentary democracy entails.
More to the point, this whole backing for formalisation looks suspiciously like a discreet move to cement the status quo. It is no secret that one of the inspirations of the CSPL report was the Priti Patel affair last year. The Committee was, it is pretty clear, deeply unhappy that Priti Patel had survived the allegations of bullying made against her, and got away with challenging the unwritten Home Office rule that life has to be made impossible for any Home Secretary whose policies don’t tally with their senior mandarins’ ideas. What better to prevent a repetition of such an unfortunate event than to endow a senior member of the great and the good with the power publicly to tell the PM that, while the ultimate decision is of course his, such a minister really ought to go?
The Ministerial Code aside, the other thing that disquiets the CSPL is the machinery for appointments to government bodies and quangos, and in particular to their headships. The Commissioner for Public Appointments, an official in charge of the general process of appointment to elevated positions in the gift of the government, should, it says, have to be consulted on the composition of every panel set up to appoint a senior quangocrat, in order to ensure appointments were made on merit alone with no hint of cronyism. And while ministers should retain a constitutional power to disregard such a panel, they should not appoint anyone deemed unappointable by it. True, constitutionally they must retain the power to do so: but they should have to appear before the relevant Parliamentary Select Committee if they actually have the temerity to exercise that power.
The problem with this is much the same as with the Ministerial Code. It’s all very well to talk of appointments to public bodies as something to be made objectively on merit by some independent committee. In practice, however, there is no such thing as an objectively most meritorious candidate here. Merit in practice tends to be that involved in successfully climbing the greasy pole of quangocracy – something which those on any appointing committee are also likely to be expert at.
There is no such thing as an objectively most meritorious candidate
Just as with the Ministerial Code and Priti Patel, what seems to have got the CSPL’s goat was episodes like Boris’s attempts to appoint a controversial outsider to the Office for Students, or to break the hold of the liberal establishment on institutions like the BBC or Ofcom. The demand that a committee of the great and the good decide all such appointments, and be given the next best thing to a veto over candidates it disapproves of, is as good a means as any of ensuring that attempts like this to rock the boat in future will not succeed.
The CSPL make a good many references to democracy in their report, and to their belief that what they propose will improve the processes of the UK’s democratic culture. Scratch the surface, however, and you see something rather anti-democratic and indeed reactionary: namely, a bid from a super-establishment body to make sure that, however much an elected government might wish for radical or unorthodox measures, the great and the good and those who agree with them can as far as possible preserve their hold over the levers of administration and insist things continue to be done in the way they like. The proper reaction of a forward-looking and decently democratic ministry to proposals like this is clear. It should have nothing to do with them.
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