Politicians, not officials, are responsible for judging whether the Prime Minister’s behaviour is acceptable

21 Apr

According to Peter Hennessy, we are in “the most severe constitutional crisis involving a Prime Minister that I can remember”.

Hennessy, born in 1947, touches nothing that he does not adorn. He is a witty, erudite and penetrating historian of modern British politics, who in 2010 was elevated to the House of Lords, where he sits as a cross bencher, as Baron Hennessy of Nympsfield.

So Hennessy’s denunciation on Sunday of Boris Johnson on Broadcasting House, which begins at minute 34 of this recording, attracted considerable attention. He called the Prime Minister:

“…the great debaser in modern times of decency in public and political life and of our constitutional conventions, our very system of government.”

After giving an account of Johnson’s statement at Chequers on 12 April about the Fixed Penalty Notice imposed by the Metropolitan Police, Hennessy went on:

“The Prime Minister sealed his place in British history as the first lawbreaker to have occupied the premiership, an office he has sullied like no other, turning it into an adventure playground for one man’s narcissistic vanity. Boris Johnson has broken the law, misled Parliament, and has in effect shredded the Ministerial Code, which is a  crucial part of the spinal cord of the Constitution.”

All this is questionable, but the only part I wish to question here is the last bit, about the Ministerial Code.

Authorities on the British Constitution, of which Hennessy is unquestionably one, tend to regard any breach of the Ministerial Code as an offence which merits the severest sanction.

They regret that the Prime Minister is the arbiter of whether the Ministerial Code has been broken: Hennessy says this is the “the great weakness of the system”.

They also object that only the Prime Minister can order an investigation into whether the Code has been broken. The Institute for Government is among those urging that Lord Geidt, the Independent Adviser on Ministers’ Interests, should have the right to commence investigations of suspected breaches.

Members of the official class treat this proposition as self-evidently true. Rules, in their view, are made to be kept, and the guardians of the rules should be senior members of the official class.

But were it ever to be adopted, this reform would have the catastrophic effect of undermining political accountability.

The Prime Minister would no longer be responsible for deciding who will serve as a minister, and who to back or sack when it is alleged (as often happens) that a minister has offended against the Ministerial Code.

Let us glance at the Code for a moment. It is an odd mixture of pious aspiration and necessary practical guidance on what, for example, ministers should do about their financial interests.

In the fourth paragraph, we find the Prime Minister declaring that there must be “no leaking”. How many ministers would survive the strict enforcement of this clause?

And how many political journalists have never profited, and delighted to profit, from breaches of this part of the Ministerial Code? And do we really wish to return to the deep secrecy with which the British state once sought to cover up its incompetence?

Not long ago, a test case arose. Priti Patel, the Home Secretary, was accused of bullying. Sir Alex Allan, the Independent Adviser on Ministers’ Interests, was called in, and in November 2020 his ruling was published:

“My advice is that the Home Secretary has not consistently met the high standards required by the Ministerial Code of treating her civil servants with consideration and respect. Her approach on occasions has amounted to behaviour that can be
described as bullying in terms of the impact felt by individuals. To that extent her behaviour has been in breach of the Ministerial Code, even if unintentionally.

“This conclusion needs to be seen in context. There is no evidence that she was aware of the impact of her behaviour, and no feedback was given to her at the time. The high pressure and demands of the role, in the Home Office, coupled with the need for more supportive leadership from top of the department has clearly been a contributory factor. In particular, I note the finding of different and more positive behaviour since these issues were raised with her.”

What should be done? This was a political decision. The United Kingdom and the European Union were approaching, under great pressure, the decisive moment in the negotiation about their future trading arrangements.

If Johnson had sacked Patel – a devout Eurosceptic – this would undoubtedly have been portrayed as the British Government starting to fall apart, and there would have been a greater danger either of reaching a less favourable settlement with Brussels, or of reaching no settlement at all.

What was the Prime Minister to do? He had to weigh up many different factors, and there was no easy answer. This was ultimately a question of political judgment, for which he would be held accountable. He stood by Patel, and Sir Alex Allan resigned.

Those who elevate obedience to the Ministerial Code above all other considerations fail to see how difficult, and how political, such judgments are.

In July 2018, three days after resigning from the post of Foreign Secretary, Johnson signed a new contract with the Daily Telegraph to write a weekly column, for which he was to be paid about £250,000 a year.

The Advisory Committee On Business Activities (ACOBA) said this was “unacceptable”: according to the Ministerial Code, he should have consulted the committee first about any paid employment he took in the two years after leaving the government, and former ministers were also required to observe a three-month cooling off period before they accepted any paid work.

Johnson got away with breaking the Code. From a strictly official point of view, he ought not to have got away with breaking it.

But as a politician, one of his selling points is that he believes rules are made to be broken. To the official mind, this attitude is unacceptable.

In reality, however, a degree of flexibility is sometimes required. One of the glories of our Constitution is that is allows for such flexibility, because not all of it has been written down.

Prigs and pedants who suppose themselves brilliant enough to draw up rules which will cover every eventuality cannot see that in a free and democratic country, a degree of latitude, even of uncertainty, is an advantage rather than a scandal.

Ultimate responsibility should rest with elected politicians, not with unelected officials.

The acceptability of Johnson’s conduct will be decided by Conservative MPs, who in turn will consult public opinion – which is sometimes not fully aligned with the Ministerial Code.