Boris Johnson was mainly forced from 10 Downing Street by concerns over his integrity and standards in public life. That led to two-fifths of Conservative MPs voting against him in a confidence vote and then a record number of ministers resigning, saying “enough is enough”. Yet these issues of standards have hardly featured in the subsequent Conservative leadership campaign. But they will provide a crucial indicator of whether, or not, the new prime minister wants to make a break from the Johnson era.
For all the formal commitments to maintaining high standards, the omens are mixed. While the outgoing prime minister was the most visible underminer of accepted ethical standards in government, there has been a much wider challenge to accepted constitutional conventions and the institutions which sustain a pluralist democracy. This has ranged from the populist criticism of the judiciary and the civil service to a willingness to breach the rule of law and international commitments. Many ministers have brushed aside parliamentary scrutiny, notably in skeleton bill and excessive use of delegated legislation.
The Johnson administration, in the recent evidence to MPs of cabinet secretary Simon Case, “believe they have a mandate to test established boundaries. They take a robust view of the national interest and of how government should protect and focus very much on accountability to people in parliament, not on the unelected advisory structures”. A necessary rebalancing will take time even if there is the desire to do so, which is in doubt.
The new prime minister faces an immediate test in appointing a new independent adviser on ministerial interests following the resignation of Lord Geidt in June, and the earlier resignation of Sir Alex Allan in 2020. Officials have been reviewing the role – whether it should any longer be undertaken by one person – and the method of recruitment and appointment. The government response is also overdue to the Committee on Standards in Public Life report on upholding standards in public life, published last November, which recommended a series of changes to strengthen the position of a number of constitutional watchdogs.
It is not just a question of who becomes the independent adviser but, crucially, on what terms. The Geidt/Allan resignations showed the present system is not working and the government’s proposals in May did not satisfy the CSPL. Ministers pocketed the recommendation they liked – that there should be a graduated system of sanctions in the hands of the prime minister – but did not give the adviser full independence in initiating inquiries, since the PM has first to be consulted and give their consent. Initially, and reluctantly, Lord Geidt sought to make the best of this compromise since he had not been obstructed so far. However, his decision “by a very small margin” to carry on did not last long in view of his underlying frustrations and then the last straw was being consulted over measures which risked “a deliberated and purposeful breach of the ministerial code”.
"It is not just a question of who becomes the independent adviser but, crucially, on what terms. The Geidt/Allan resignations showed the present system is not working"
The adviser also needs to be allowed to take a view on whether the code has been breached before the prime minister decides on what should be done. This would protect the prime minister’s power to determine any sanctions and, crucially, whether a minister should remain in their government. This would preserve the balance between the independent advice of the regulator and a final prime ministerial decision – which goes to the heart of the constitutional position of regulators.
This still leaves the problem of what happens when the prime minister is the subject of an investigation, as Boris Johnson was a number of times over his period in office. This is what Sir John Major – the prime minister who set up the CSPL in the mid-1990s – described as the “elephant in the room”. As Sir John said: “The prime minister is responsible for his own conduct because he is judge and jury of it, but that leaves a problem when the judge is in the dock.” His solution – delivered in little-noticed evidence in mid-July to the Public Administration and Constitutional Affairs Committee – is to share responsibility for the appointment and accountability of the independent adviser between the prime minister and parliament as represented by a committee of senior privy councillors. Any disagreement would lead to a debate on the floor of the Commons.
The Major plan would, he admits, not leave the prime minister “with absolutely untrammelled power without seeking advice and without seeking to convince”. When a PM’s conduct is under question, there are no easy solutions. Past experience going back decades has shown how unfair it is to ask the cabinet secretary or another senior official to undertake an investigation.
That is why the role of independent adviser is so important and why the position needs to be strengthened. But any change – whether the CSPL proposals or the radical Major plan – would involve the prime minister accepting that enforcement of the ministerial code is not exclusively a matter for the executive and that both an independent regulator and parliament should have a role, even while the final decision on sanctions and membership of the government rightly remains with the PM.
A bold new prime minister could provide a major reassurance that they are determined to uphold – and restore – standards in public life. That is why these issues need to be debated now.
Sir Peter Riddell is an honorary professor at the UCL Constitution Unit. He was commissioner for public appointments from 2016 to 2021 and is a former director of the Institute for Government.