Picture a scenario in which Boris Johnson had chosen Lord Geidt, his ‘independent adviser on ministerial interests’, rather than cabinet secretary Simon Case, to investigate whether rule-breaking parties were held in No.10 during lockdown. What difference would this have made? The involvement of the Metropolitan Police would have meant a Geidt-led report would not have put a full stop on the partygate saga any more quickly. The independent advisor would have found himself in the same position that Sue Gray – who took over when Case recused himself – does now.

But if Geidt had led the official inquiry, then the role of the ministerial code would not have been undermined in the way it has been since the civil service-led investigation was announced in December 2021. Geidt investigating would have shown that scrutiny of the prime minister through existing mechanisms is possible. The question of whether Johnson had misled parliament would have been a central question from the start, not a side-issue that could only be looked into once parliament was able to undertake its own inquiry. Instead, as the House of Commons privileges committee joins the investigatory circus, Geidt remains on the sidelines. He should be asking himself why – and asking what he could now do differently.

There is still good reason for Geidt to investigate the prime minister

While it’s rather late in the day, Geidt could still ask to undertake an inquiry. With Gray’s report already finished, and the Met investigation ongoing, Geidt does not need to conduct a full investigation but could instead apply his judgement to the specific question of whether the ministerial code has been broken. The most difficult aspect is whether Johnson knowingly misled parliament. Here Geidt would be competing with the privileges committee, but the difference is that he could start work at once. The team that supports Geidt – the Propriety and Ethics team, in the Cabinet Office – are the same people who have been supporting Gray in her investigation.

They already have reams of evidence and, if Gray has not asked directly, would themselves be able to ask the really pertinent questions: is Dominic Cummings right that the prime minister was directly warned at the time that the BYOB party organised by Johnson’s private secretary might breach Covid rules? And when the prime minister first came before parliament to respond to partygate revelations, did he discuss with his team whether such breaches had occurred or might have occurred? These questions go to the heart of Johnson’s argument that he had no idea that any of his or No.10’s activities might have breached Covid rules.

Geidt should now tell the PM that he thinks there is a case for such an inquiry (indeed he should have last December). The answer might well be a resounding no. But if Geidt is refused permission to investigate, and if Johnson refuses to give him the power to initiate his own investigations, then at least he knows where he stands and can face down his next dilemma.

If Johnson fails to strengthen the adviser role then Geidt should consider his position

Geidt is due to agree the new terms of his position with the prime minister. After the revelations that he had not been given access to crucial WhatsApp messages during his previous investigation into the Johnsons’ flat renovations, he agreed with the prime minister that the pair would review the role in time for his annual report (due in April, now reported to be likely later in May). No doubt there will be lots of language implying how much the prime minister values the role: the only question that matters is whether Geidt is given powers to initiate his own investigations.

Partygate has underlined the importance of the adviser’s powers. Not only are these the only defence against the prime minister refusing to let a matter be investigated, they provide a crucial way to demonstrate the adviser’s independence. Without this reassurance, public confidence in the role and, more generally, in the ministerial code will remain low. Lacking the power to decide for himself what he looks at and being prevented from investigating a major political controversy involving the prime minister would demonstrate starkly the impotence of both the ministerial code, and the person who investigates potential breaches of it. If he ends up in this situation, Geidt should ask himself whether he is able to continue in the job. 

If the prime minister fails to support these changes it will also, quite understandably, increase the calls for codification of the UK constitution and the involvement of the courts in matters of ministerial impropriety. It may well be too late for the government’s wish to conserve the current uncodified approach. It is already clear we need a more fundamental look at whether the UK’s reliance on conventions has been undermined by repeated failures to respect them and whether those people who guard and enforce our constitution have the powers to do the job, including parliament.  

But these are questions that will take time to resolve. Right now, the big constitutional question is whether the main check on ministers and prime minister’s behaviour – the ministerial code – can survive if there is not an effective mechanism for investigating possible breaches, let alone enforcing the code. The answer rests on the decisions Geidt, and the prime minister, make in the next few weeks.

Original source – The Institute for Government

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