Ministerial Code

Baroness Smith of Basildon Excerpts

Thursday 12th March 2020 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I first thank the noble Lord, Lord Tyler, for instigating today’s debate. I must admit, I had some concerns initially that it might end up being a narrow debate focused on one particular complaint. I am glad to see that my fears were unfounded; it has been a very wide-ranging debate, looking at issues such as the role of the Prime Minister, Ministers, civil servants and special advisers. I make particular reference here to the speech of the noble Lord, Lord Young of Cookham. I hope the Minister will be able to answer those questions today or put responses in the Library so that we can consider them.

As a former Minister, including at the Cabinet Office, I have always thought that the Ministerial Code is essential for the confidence it should give in four key areas, which have been touched on by the noble Lord, Lord Butler: the principle of collective responsibility in government; ensuring proper engagement with Parliament; reducing conflicts of interest; providing for the proper use of government resources. However, as it has developed and, as the noble Lord, Lord Butler, said, become a public document—against his advice—Professor Leighton Andrews at Cardiff University has identified the code as becoming a

“core document underpinning the UK’s unwritten constitution”.

But the code is only as good as its enforcement. Being found in breach of the code can be a sign of its effectiveness, but only if the sanctions are an effective punishment and deterrent. That, as we have heard, is dependent on the Prime Minister of the day. The foreword to the current version says that the code ensures Ministers

“uphold the very highest standards of propriety”.

That statement is by the Prime Minister, who was himself accused of failing to adhere to it after he resigned as Foreign Secretary and restarted his paid column in the Daily Telegraph too early.

Recently, as we have heard, the code has morphed into a document beyond its traditional remit, following misconduct allegations against the current Home Secretary, Priti Patel, the former Defence Secretary and former First Secretary of State. As the noble Lord, Lord Norton, touched on, when the 2019 code was published, the press comments from the Prime Minister were more about internal Cabinet discipline than the other issues in the code.

The most important change made in 2019 was the entirely new reference to harassment and inappropriate behaviour, which is a significant departure from the original purpose of the code. Disappointingly, given the nature of this change, there was no real discussion of whether this was the right vehicle to handle such issues. No new processes regarding transparency and accountability were included. It is that new section which has led to the inquiry into allegations against the Home Secretary following the recent resignation of Philip Rutnam. There are two issues here. First, as we have heard, the ultimate arbiter of what action, if any, will be taken is the Prime Minister, who has already been visible and vocal in his support for the Home Secretary. Secondly, there is no independent assessment of the inquiry and no understanding of what the appropriate sanctions are or would be.

Obviously, Prime Ministers can and do hire and fire Ministers at will. However, by bringing personal behaviour issues into the code without any clear guidance or independence, there is a now a much more difficult judgment to be made, particularly given that other issues in the code are much clearer regarding what is and is not appropriate. There is not the same kind of benchmark for personal behaviour issues.

As we have said, none of us can comment on the current inquiry or its outcome and I am not convinced that a breach of the code should lead to an update of it. It can be argued that if someone is found in breach of a code, that proves it works, if the sanctions are appropriate. However, it would be remarkable if the code was updated for a second time following the actions of one Minister. It brings to mind Oscar Wilde: to paraphrase, to be responsible for one new clause in the code would be unfortunate—two would be a scandal.

The relationship between Ministers and civil servants is multifaceted. I feel fortunate to have worked so often with some of the best. Civil servants deserve the respect and support of those they serve, as well as a proper outlet to bring forward any concerns.

The First Division Association has called for an independent complaints procedure to replace the current arrangements. The general secretary, Dave Penman, has correctly stated that civil servants need a clear process, independent of political interference, that has transparency and confidentiality at its core. I will support such a reform, and this debate today has provided very useful guidance for any Ministers considering what reforms are to be included.