Lord Geidt’s resignation comes as no surprise, even if the final reason – a dispute over the government introducing protectionist tariffs – had not been predicted. A deeply uncomfortable performance in front of Parliament’s Public Administration committee saw Geidt all but acknowledge he had previously considered quitting as the prime minister’s independent adviser on ministerial interests, and 24 hours later he was gone. The question being asked is why anyone would want to take on a role whose limits have been so badly exposed in recent months. Just as important is what it means for the UK’s constitution if the public no longer feel that the government prefer to avoid scrutiny rather than making the changes that are now so sorely needed. 

The role of the independent adviser is badly damaged 

The government’s problem now is whether it can find anyone to fill the role, and what to do if it can’t. Anyone with integrity and credibility would be stuck in same position as Geidt and would probably feel the same frustrations. He was unable to get the prime minister to admit that being fined by the police for breaking covid restrictions might actually have breached the ministerial code. He found out that key whatsapps about the prime minister’s flat decoration weren’t given to him. The IfG and others have called for the adviser to be given statutory backing and proper independence to launch inquiries, but the prime minister has resisted. It is hard, therefore, to see who would put themselves in a position which Geidt described as ‘odious’. 

Boris Johnson could – and should – reshape how ministerial standards are overseen 

The prime minister’s spokesperson has said that the government is looking at making changes to the current system. But what will that mean?

There are major problems with taking out the ‘independent advisor’ entirely [1]. There are aspects that the cabinet secretary can lead on – as they have in the past, and the truth is that a lot of the detailed investigatory work that Geidt had responsibility for is undertaken by civil servants. Like Sue Gray’s report, it is others who do a lot of the fact finding that then leads to a final judgement by the independent adviser.  

But there are limits to what civil servants can do. If Gray’s investigation had been purely about the actions of officials and special advisers, it is understandable a civil servant leads on that and advises the prime minister. But if the issues then touch on the actions and propriety of the prime minister – breaking the law, allegations of misleading parliament knowingly – then it is a massive problem for any civil servant to do this job. As Gray discovered.  

More importantly, a reduced role for any future investigator or giving the job to the civil service would send a damaging public message. It would cement the view that the government preferred to avoid any scrutiny, rather than give someone the power to do the job properly. That means any new role or body taking on these functions needs to be more empowered, not less, as both the Committee on Standards in Public Life and the IfG have argued.  

Failure to reform ministerial standards will open up role of the courts.  

A bigger problem is what this means in the longer term for the UK’s constitution if the government do not fix this problem rapidly. Our uncodified constitution depends greatly on those at the heart of it abiding by its principles and conventions. The Ministerial Code typifies this. The government has argued that the document belongs to the prime minister and the Geidt role is purely an adviser to the prime minister: the implication is that both are based on whether the incumbent prime minister wants them and in what form.  

It is true that the code is issued by Johnson and only done so on the basis of convention. But what the code covers – principles of our constitution which underpin our democracy – exist beyond the code and are fundamental to the working of government. The Code and the person who oversees it are a means to hold government to account on those fundamental principles, and to bring about transparency when there has been wrongdoing. If the government fails to come up with a solution that fixes the problems, that means either a greater role for Parliament or for the courts.  

The government has argued that it is right that parliament, not unelected officials, hold the government to account. But Parliament cannot undertake the kind of work that the independent adviser does. Parliament is already able to look at whether ministers mislead it deliberately, but as we are seeing with the privileges committee investigation there is a high threshold for an inquiry happening and political factors easily get drawn in. Select committees already look into other aspects of how government functions and how well it is adhering to standards in public life, but it would never replicate the ministerial code system in its entirety and a government with a majority could ignore it as easily as it does some select committee reports. And the government has said that the adviser, and the code, is solely of the executive – it doesn’t want parliament involved at all. There are good reasons to ensure ultimate decisions stay with elected representatives, not unelected appointees, but if government doesn’t want parliament to get involved, and won’t do anything more itself, that risks only one other avenue.  

The government has often argued, over many issues, that the courts should not involve themselves in matters of politics. But if a system that is based on government willingness to open itself up to scrutiny has failed, then increased codification, including on the ministerial code or some equivalent, is more likely. Whether that happens incrementally as the courts stray further into using the code as source of rules, or with a new government making fundamental changes, those Conservatives who want to avoid such a change will find that they have provided the very ammunition that makes it a necessity.    

If the public feel that the principles at the heart of the code cannot be upheld by a system based solely on convention, they will press for strengthening. If they feel the prime minister does not seem to abide by the standards he claims to want to defend, and the system is unable to protect them from him, the inevitable solution is greater strengthening, therefore codification. This means bringing the courts further into the way our constitution works.  The careless act of losing two independent advisers might give this prime minister little concern in the short-term, but he would do well to appreciate seeds of change he has sown.   

 

Original source – The Institute for Government

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