Politics and Governance in the UK

Second edition

by Michael Moran

Update 35 – July 2012

The Ministerial Code and Jeremy Hunt

The Leveson Inquiry has provided many dramatic moments, but I postpone an examination of the Inquiry until the publication of the Leveson Report, which is due later this year. One of the most dramatic hearings, however, took place on 31 May 2012 when Jeremy Hunt, Secretary of State for Culture, Media and Sport, gave evidence about his relations with a lobbyist for News Corporation. My focus here is not the substance of that issue, which was endlessly analysed in reports on the Leveson hearings, but on an esoteric, yet important, part of the machinery of government: the Ministerial Code and the role of the Prime Minister’s advisor on that Code. The Code was briefly brought to wider public attention by the claim that Mr Hunt’s behaviour in relation to News Corp and its lobbyist had breached the code. The Code governs the declaration. of Ministers’ personal interests and their behaviour towards interests affected by their decisions.

The Code is the product of an important development in the culture and constitution of the UK, one that is a major theme of chapter 4 of the 2nd edition of Politics and Governance in the United Kingdom: the trend towards increasing codification, normally in the form of written documents and guidelines, of rules of procedure and behaviour which traditionally had been the subject of conventional, informal, and largely confidential understandings. A major driver in this change, and an important source for the development of the Ministerial Code, has been the Committee on Standards in Public Life (http://www.public-standards.gov.uk/) which has been issuing reports on a wide range of areas of public life now for nearly twenty years. There were rules governing ministerial conduct well before the publication of the Code, but in the manner of the traditional, informal constitution they were skeletal and, above all, unpublished: Questions of Procedure for Ministers existed in the 1980s as a confidential Cabinet Office document. The first published Code appeared under John Major’s premiership, in 1992; it was also Mr Major who established the original Committee on Standards in Public Life to try to cope with the many ‘sleaze’ scandals which afflicted his government. Since then, by convention, each new Prime Minister has issued a fresh version of the Code on assuming office. Thus the Code under which Mr Hunt operated was published in 2010 on David Cameron’s election. A major issue surrounding the code is obvious: how is it to be interpreted and enforced? Gordon Brown was the first Prime Minister to appoint a Special Adviser on Ministerial Interests – in effect an interpreter and enforcer. The Special Adviser publishes an Annual Report. The most recent is downloadable at
http://www.cabinetoffice.gov.uk/sites/default/files/resources/Annual_Report_%20December_2010_11.pdf

The Hunt affair highlighted two big issues with the operation of the Code. First, intervention by the Special Adviser is at the discretion of the Prime Minister; no Prime Minister has been prepared to surrender control over this, because no Prime Minister wants to surrender control over the fate of Cabinet Ministers. Second, the understanding of the Code in Mr Hunt’s case touched on a key issue which also lies at the heart of the wider matter of individual Ministerial responsibility. The Code says: ‘the responsibility for the management and conduct of special advisers....rests with Minister who made the appointment.’ Mr Hunt’s Special Adviser was obliged to resign because of inappropriate contacts with a lobbyist for News International, over an issue where Mr Hunt was responsible for making a key decision about a proposed merger affecting the interests of the firm. But Mr Hunt argued, among other things, that he could not reasonably be held responsible for all the actions of his Special Adviser. The Prime Minister evidently accepted this, because he announced that he would not be referring Mr Hunt to the Special Adviser. There is a very good discussion of the wider constitutional issues raised by all this on Jacob Rowbottom’s entry in the UK constitutional law blog series: at
http://ukconstitutionallaw.org/2012/06/07/jacob-rowbottom-ministers-media-and-the-decision-to-investigate/