Yuan Yi Zhu is the author of Policy Exchange’s new report, ‘Upholding Standards; Unsettling Conventions’.
Later today, the House of Lords will debate the perennially vexed question of standards in public life. If previous debates are any indication, there will be renewed calls for a strengthened standards regime, in the shape of a statutory ministerial code and of a more powerful and statutory Independent Adviser on Ministers’ Interests, key recommendations of the Committee on Standards in Public Life (CSPL) in its 2021 Standards Matter 2 review.
Some would go even further: in 2021, the Labour Party pledged to create a super-quango with autonomous powers to investigate and sanction ministers for breaches of the Ministerial Code.
At a time of heightened public anxieties about the behaviour of senior politicians, such proposals will no doubt find a receptive audience. Yet, as I argue in a new report for Policy Exchange, there are very strong reasons to resist calls for such reforms.
Not only would they undermine political accountability through the democratic process, the best safeguard for standards in public life, but they also risk bringing the courts deep into political waters, bringing judges into what are quintessentially matters of political judgment and contestation.
The CSPL’s recommendations are based on a simple premise: standards in public life cannot be effectively regulated and upheld by conventions and norms alone. Therefore, what is needed is to put rules governing such standards on a statutory footing, as well as the granting of greater powers to independent advisers and a codified ministerial code, as opposed to the present one, which is not enshrined in legislation.
As evidence for this proposition, it points to an alleged perception of declining standards in public life.
But this overlooks the nature of the existing system, which largely relies on the political process and conventions to achieve its goals. An inherent feature of such a system is that dirty laundry is aired and debated in public – through newspapers, social media, and Parliament -instead of opaque investigations by unelected bureaucrats.
Such a system is messy, but the messiness is part of its effectiveness. It is therefore important not to mistake the salience of high-profile controversies over the conduct of politicians as a sign that the system is failing; indeed it often is the exact opposite.
As a sign of the effectiveness of the current regime, one needs to look no further than the premiership of Boris Johnson. Whatever one thinks of the merits of the issues which brought about his resignation, there can be no denying that he was deposed as prime minister remarkably quickly following the uproar over Partygate, as the result of political pressure from his own MPs and minister as well as from the media.
The formal Parliamentary Privileges Committee investigation into Johnson’s conduct, by contrast, lasted for the better part of a year after his resignation, and was marred by legal controversies, involving expensive lawyers on both sides and drawn-out arguments about due process rights.
The controversy over the Privileges Committee’s report raise another important point, namely that a statutory norms enforcement regime will inevitably lead to greater intervention by courts through applications for judicial review, thus dragging senior judges into matters of acute political controversy.
Under the present regime, ministers serve at the pleasure of the King, which in practice means that of the prime minister. They are liable to be dismissed at any time for any reason, be they political, ethical, or anything else. In a very meaningful sense, no one has the right to be a minister, unlike many employment situations.
This means that a prime minister can dismiss a minister for relatively small ethical lapses which may or may not give rise to a breach of the Ministerial Code. Conversely, a prime minister can choose to keep a minister despite an ethical breach, as long as he is willing to answer for his decision to the electorate.
Under a statutory regime, the dynamic will be very different. Under existing case law and legal doctrines, decisions by the statutory regulator will be much more susceptible to judicial review, something that the CSPL itself accepts would be highly undesirable. An aggrieved dismissed minister may for instance choose to challenge an adverse finding in the courts and even seek reinstatement to ministerial office.
Lest it be thought far-fetched, such lawsuits by ex-ministers have already occurred in Canada, a country with constitutional arrangements very similar to the UK’s. Meanwhile, in Northern Ireland, which has a statutory ministerial code, the courts have already been drawn into matters of acute political controversy involving political decisions by ministers as a result of the statutory code, effectively giving courts the right to adjudicate on matters which are inherently the preserve of the democratic process.
Closer to home, when Ken Livingstone, then Mayor of London, was reported to the Standards Board for England for making remarks that compared a Jewish journalist to a Nazi concentration camp guard, the resulting hoo-ha cost the taxpayer £200,000, before ultimately seeing Livingstone’s suspension quashed by the High Court.
Far more satisfactory would have been to simply allow the voters of London to take such behaviour into account at the ballot box.
In short, while it is heartening that there is widespread consensus about the importance of standards in public life, one must be mindful that public controversies about ministers’ conduct are a sign that the conventions- and politics-based regime of norms enforcement which currently exists is a sign that the system is functioning as intended.
Moves toward a highly-codified system of standards enforcement risk undermining the efficiency of the regime and upsetting the constitutional balance between the political institutions of the British state and the courts. Ultimately, political culture and accountability at the ballot box, more than legal strictures, is the best guarantor of standards in public life.
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