Ministerial Code

Lord Norton of Louth Excerpts

Thursday 12th March 2020 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I congratulate the noble Lord, Lord Tyler, on initiating this debate. It is, I think, worth emphasising that the Ministerial Code has developed over decades, emanating from the Questions of Procedure for Ministers, drawn up under Clement Attlee and variously revised since. As we know, the document was formally secret, until John Major authorised its publication in 1992.

As Amy Baker notes in her book, Prime Ministers and the Rule Book, publication

“was a significant step towards a more open and transparent system of government.”

She also draws attention to an important difference in perceptions, one very germane to today’s debate. The view of Ministers and officials is that it is a guide. The public perception, certainly that of the media, is that it is a means by which to judge ministerial behaviour. There may well be a case for a thorough review of the code—as the noble Lord, Lord Tyler, has suggested—both its content and its status. But there is a warning, in that we need to be clear as to the purpose of a review, given who undertakes it. Is the review for the purpose of facilitating good government—ensuring greater clarity over what is expected of Ministers—or to enhance prime ministerial control of the Executive? The code has been variously revised, including in a way that strengthens the grip of No. 10. Some may focus, as the noble Lord, Lord Tyler, has, on special advisers. I would mention paragraph 3.9 in respect of Parliamentary Private Secretaries.

The code is an extensive document, embodying some requirements that are precise and others that are general and amenable to interpretation. Some at times are honoured more in the breach than the observance. Under the principle of collective responsibility, the views expressed by individual Ministers while a decision is being reached should not be disclosed. The Prime Minister’s preface to the latest issue says “no leaking”. As we know, leaks of Cabinet deliberations have been taking place for years.

There are also sections that are remarkably light. This is notably so in respect of relations between Ministers and civil servants. Paragraph 5.2 lends itself to a considerable breadth of interpretation. It is in the interests of the Prime Minister and Ministers to have a more precise document, ensuring that Ministers are clear on what is expected of them, and hence reducing the potential for transgression and bad publicity.

The code, as I have touched on, has become more cluttered over time, extending beyond procedure to encompass behaviour. I draw to the attention of the House the suggestion proffered in Prime Ministers and the Rule Book, namely that the code be split into two documents, one comprising guidance—the original purpose of the publication—covering internal practices and procedures, and the other a free-standing code of conduct. If one were to pursue that recommendation, there is then the issue of who would have responsibility for drafting the documents. The first could be internal, but the latter could draw on others beyond No. 10.

As for strengthening the code as it stands, there may be a case for more consistent practice when the Prime Minister decides there is a prima facie case for investigation. However, there is a problem in enforcement, not just of the sort that the noble Lord has mentioned. Parliament has a role in respect of the requirements identified in paragraph 1.7 but, as has been touched on, ensuring compliance with the code rests on the will of the Prime Minister. That will is necessary but it may not be sufficient. It requires not only political will but political authority to ensure compliance. Normally, that is not a problem, but the circumstances of the last Parliament show what can happen when a Prime Minister lacks the authority to enforce all elements of the code. That was most apparent with enforcing collective responsibility.

Providing the means for more consistent enforcement would have the merit of reducing the gap between the public and official views of the code, reducing, as I say, the potential for ministerial transgressions. Put more positively, it could be seen to ensure that the Government are committed to high standards. On that analysis, everyone benefits.