Boris should scrap the Ministerial Code

Last week, Boris Johnson’s ethics advisor - a role that must sit alongside Vlad the Impaler’s anger management therapist in the annals of doomed job descriptions - resigned. Downing Street so far hasn’t commented on whether Lord Geidt will be replaced, with a spokesman saying only that Johnson will ‘take time’ to consider the decision. Well, here’s a hint: you don’t respond to the failure of a chocolate teapot by buying a second one. And while you’re at it, scrap the Ministerial Code too.

For all the Westminster rigmarole currently focused on them, neither of these institutions is particularly old. The Ministerial Code dates back to 1997 and Tony Blair’s election landslide, the ethics advisor to 2006. These are not core structures of the British constitution, in place since time immemorial. They have not proven their worth by resisting centuries of evolutionary pressure. They are recent innovations still in their trial period. And at this point, we have enough evidence that they don’t really work.

Lord Geidt resigned over being asked to advise on a policy which risked ‘a deliberate and purposeful breach of the Ministerial Code’. His predecessor Sir Alex Allan resigned in 2020, when Boris Johnson refused to fire Priti Patel. The Code itself has proved to have all the restraining force of wet tissue paper. As multiple ministers have shown, so long as you hold the confidence of the PM, and the PM has the confidence of the House, you can pretty much ignore it. And if you still don’t like it, you can rewrite it.

One of the reasons both code and advisor lack teeth is that they replace discussions over whether a Minister’s actions were good or bad for the country with lawyerly debates over whether the code was or was not breached. Geidt’s resignation is a good example of exactly this problem: having made it past partygate, and the ‘legitimate question’ over whether Boris’s fine was a breach, he eventually stepped down over ‘what might yet constitute deliberate breaches… [of] international law’. The explicit requirement to abide by international law was removed in 2015 - Geidt’s resignation rested on the interpretation that the duty to abide by the law still included it.

Now take a step back for a moment. Imagine, just for the sake of argument that, while dishonourable and detrimental to Britain’s long term interests, breaking international law would not breach the code. Would anyone’s position change? Geidt would still feel that the action was unethical, the QCs on Twitter would still bemoan the end of Britain as a serious country, Cabinet Ministers would still loyally back Boris until they spotted a better opportunity to slip the knife in.

Framing discussions in terms of whether or not the code is breached changes the standard for resignation from one of consequences to one of process. It completely disregards whether the action was detrimental to the wellbeing of the nation. This would be less of a problem if the code stood apart from the executive. To borrow from contract theory, nobody expects laws to be ‘complete’; it isn’t possible to spell out every possible state of the world, and whether or not a breach has occurred. In criminal and civil law, these gaps are filled by judges and the common law.

For the Ministerial Code, that role is played by the Prime Minister. It offers us the worst of both worlds; by attempting to codify a specific set of rules, it brings all the ambiguity and haggling over fine details that entails. And by leaving the authority to decide to the Prime Minister, it removes the possibility of an impartial interpreter.

The weakness of the code and the lack of enforcement means that it only presents a real check on the behaviour of those who tend to respect norms and procedure. They, in turn, are unlikely to need it. The lack of binding force means that it doesn’t enforce the behaviour it’s supposed to, even from its supporters. After introducing the code, Blair faced calls for an investigation over whether he breached it by keeping legal advice on the Iraq war from the Cabinet. And, of course, the temptation to point to it in political argument and pretend that it is actually significant means that it occupies the space a system that might actually work would need.

Finding a replacement for Geidt - whether an individual or, as has been mooted, a panel of civil servants - won’t fix these issues. Nor will updates to the Ministerial Code. The core problem of their decorative nature will remain. Attempts to find a legally binding and impartial framework, meanwhile, would just offload more power to the ‘Whitehall Blob’. Instead, Downing Street should consider whether a replacement is needed at all. Fundamentally, it is for voters to decide whether a government acts with integrity, and in their interests.

Electoral discipline sets a high bar on these issues, which suggests in turn that people may not care too much about Westminster rigmarole unless it has actual, meaningful consequences. At the end of the day, if a government is constantly beset by scandal, and governing poorly, then it will lose at the ballot box. And if people decide they can put up with the scandal in return for good performance, Westminster should fall in line.