Partygate: did its ramifications influence revisions to the Ministerial Code?

Prime Minister Boris Johnson has written to Lord Geidt this week, the Conservative Party’s ethics adviser and former Private Secretary to the Sovereign, in response to the latest annual report from the Independent Adviser on Ministers’ Interests. The letter comes just days after the government announced revisions would be made to the Ministerial Code and to the Terms of Reference for the role of the Independent Adviser on Ministers’ Interests.

One reason for the change was to avoid incentives for “trivial or vexatious complaints” which may be made for partisan reasons.

What is the Ethics Advisers’ Role?

The Independent Adviser provides the Prime Minister with independent advice on matters relating to the Ministerial Code, as well as providing advice to Ministers on the management of their interests.

There have been reports by The Times that Lord Geidt reportedly threatened to resign on Tuesday if the PM did not provide a letter as a means of public explanation for what could be considered a breach of ministerial conduct over attending Downing Street parties (Partygate) held when the rest of the country was asked by the PM and his advisers to socially distance and avoid gatherings during the COVID pandemic.

The Times report said:

Lord Geidt, the independent adviser on ministers’ interests, said Johnson’s breach of the law threatened to undermine the role and risked leaving the system open to ridicule

How does the PM influence the terms of the Ministerial Code?

Under the terms of the Ministerial Code (1.4):

• “If there is an allegation about a breach of the Code, and the Prime Minister, having consulted the Cabinet Secretary, feels that it warrants further investigation, he may ask the Cabinet Office to investigate the facts of the case and/or refer the matter to the independent adviser on Ministers’ interests.”
• Where, in the assessment of the Independent Adviser, he believes an allegation about a breach of the Code might warrant further investigation, he will raise the issue confidentially with the Prime Minister.
• The decision on whether a Minister remains in office after an investigation sits with the Prime Minister, as “the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards” (1.6).
• The Prime Minister may ask the Independent Adviser for recommendations about the appropriate sanction where the Prime Minister judges there to have been a breach of those standards. These recommendations will remain confidential.

Given that the published changes to the Ministerial Code have come out before the PM’s letter of explanation to Lord Geidt, some questions could remain for MPs over why these policy changes were made at this exact time and who is to gain most from them, if not the public. Could the timing of the changes undermine the sanctity of holding public office?

The PM and policy statement says the Ministerial Code will “continue to reflect” that the Prime Minister, as the democratically accountable leader of Her Majesty’s Government, has responsibility for the Ministerial Code and appoints an Independent Adviser on Ministers’ Interests.

Included in the policy statement are:

• Revised Terms of Reference for the Independent Adviser have been published which include an enhanced process for the initiation of investigations under the Ministerial Code. This includes the ability for the Independent Adviser to initiate an investigation, following consultation with the Prime Minister so that the potential for any public interest reasons not to proceed can be raised.  In such an event, the Independent Adviser may require that the reasons for an investigation not proceeding be made public, unless this would undermine the grounds that have led to the investigation not proceeding.
• The Ministerial Code has been re-issued to reflect these changes, including that the Prime Minister will normally consent to such investigations, and to include a more specific reference to the role of the Independent Adviser and the duty on Ministers to provide the Independent Adviser with all information reasonably necessary for the discharge of his role.
• The updated Ministerial Code also includes new detail on proportionate sanctions for a breach of the Code, as recommended by the Committee on Standards in Public Life and Lord Geidt.
• Under the revised Terms of Reference, the Independent Adviser will in future be consulted about revisions to the Code, including how it can be made simpler and clearer.
• The Independent Adviser will be supported by a dedicated secretariat of civil servants, with its own GOV.UK page and responsibility for managing its own affairs and correspondence.

In reaching these conclusions, the government has said that it has been mindful of the need to avoid incentives for “trivial or vexatious complaints” which may be made for partisan reasons.

The government stated in the policy change announcement letter:

“Such complaints can undermine public confidence in standards in public life rather than strengthen it. In addition it has considered the constitutional framework for ministerial office and the division in our constitution between the executive and the legislature and the need to avoid the judiciary being dragged into consideration of political matters.”

Taken together, these reforms provide a “measured and principled approach” to ensure high standards in public life, whilst ensuring democratic accountability of elected representatives to the British people via the ballot box.

The PM and the Chancellor of the Exchequer have gone to Lord Geidt in a span of weeks when MPs had called into question their ethical conduct and others under the Ministerial Code, which Boris Johnson reminds us in his letter  to Lord Geidt that the PM is the “ultimate arbiter of the Code.”

Read the PM’s letter to Lord Geidt in full here