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09 Dec 2022

Constitution

Alex Walker looks at two new sets of recommendations for ensuring integrity and ethics in government – one from the Public Administration and Constitutional Affairs Committee and the other from the Labour Party – suggesting that the proposals will add to the pressure on Rishi Sunak to make tangible changes to the system. 

A series of failures to uphold standards in government led, in the end, to Boris Johnson’s departure from Downing Street. Johnson’s conduct, as well as that of his ministers, has generated a host of ideas for better regulating behaviour in government and restoring public trust in politicians.

To differentiate himself from his predecessor, Sunak’s promised integrity and professionalism on his first day in office. Whilst his premiership has seen a shift in tone, there haven’t been any practical institutional changes to support this claim. Not least, Sunak is yet to find someone to take on the role of his ethics adviser, a post which has now been vacant since June.

Two new reports have now added their recommendations to the mix, which will place further pressure on the government to make some tangible changes to the system.

First, the Public Administration and Constitutional Affairs Committee (PACAC) called last week for the ethics adviser – who investigates and reports on potential breaches of the ministerial code – to be a role required by law, and that the process for appointing the adviser be made more independent and transparent. This chimes with what others have been suggesting for some time, including the Committee on Standards in Public Life (CSPL) and the Institute for Government (IfG).

The PACAC report does not go quite as far as these proposals (the committee recommends retaining a prime ministerial veto on initiating investigations, as is currently the case). The committee has a Conservative majority, and its report is the outcome of lengthy investigation into propriety issues, which started in the wake of the Greensill Capital affair. Its support for putting the adviser on a statutory footing will lend additional weight to the idea that the role must be strengthened by giving it a legal basis.

The other proposals for reforming the standards landscape have come from the Labour Party – in the form of Gordon Brown’s long-awaited Commission on the UK’s Future. Labour first said it would establish an Integrity and Ethics Commission to regulate government behaviour in December 2021, as Johnson was being engulfed in series of integrity-related scandals. The report of Brown’s commission puts much-needed flesh on the bones of this idea and irons out some constitutional issues the proposals appeared to raise in their previous form.

The report suggests that Labour would set up a commission to effectively take on the work of the ethics adviser. The previous policy involved amalgamating various different ethics regulators into a single body – which now appears to have been dropped. This shift should help avoid the charge of creating an overpowerful regulator, and a single point of failure or target for political capture.

The other development in Labour’s offering is the addition of a layer of public involvement and democratic oversight. Under Labour’s plans, after the Integrity and Ethics Commission has conducted its investigation, a panel of non-politicians would decide if they agree with the findings, and recommend an appropriate sanction from the ministerial code.

This may sound like a fairly radical proposal – allowing the public to sit in judgement on the conduct of ministers. And no doubt the apparently populist dimension of the policy will be emphasised by Labour in any campaign. But the model put forward closely resembles the existing process for regulating MPs’ behaviour, in which lay members sit on the committee tasked with deciding whether parliamentary standards have been breached.

The further innovation is that the work of the Integrity and Ethics Commission would be reviewed on an annual basis by a citizens’ jury (some may remember when Brown originally experimented with these back when he was Prime Minister).

This layer of public engagement will enable Labour to say that it’s serious about restoring public trust in politics – by giving the public a role in reviewing the ethical standards of government ministers.

But it is worth noting that the Brown commission itself was hardly a paragon of transparency and public engagement. It is not clear that the ‘listening exercise’ the report says the commission conducted involved talking to many beyond those already in Labour’s ambit. The party has said it will consult on the proposals set out in the report. It would do well to ensure it does so more widely than it has done up to this point – perhaps using some form of representative deliberative process.

The involvement of members of the public in overseeing the behaviour of ministers is a new proposal (although, as mentioned, not a radical departure from the process for MPs). But much like the PACAC report, Labour’s proposals in this area don’t in fact depart fundamentally from existing constitutional convention. In particular, neither suggest that the final say on the outcome of an investigation should lie with anyone but the Prime Minister of the day.

The common criticism of the existing system is that as long as the PM is the ultimate arbiter of the code, the government is essentially marking its own homework. This led to much of the distrust directed towards the present arrangements seen during Johnson’s tenure.

But as PACAC, and seemingly now also Labour, recognise there is no easy resolution to this dilemma. It would be constitutionally problematic for anyone other than the Prime Minister to have the final say over the composition of government.

Giving a regulator the power to compel the resignation of the Prime Minister or their ministers would be a significant constitutional change – and one that could be rightly criticised for lacking democratic legitimacy.

If the PM were to ignore or reject a finding that their own behaviour was in breach of the code, it is for the democratically elected chamber, or the PM’s ministers, to decide whether to maintain the support that enables them to continue governing. A negative finding would certainly apply serious pressure on the person in question to resign. But the mechanism of accountability should ultimately remain political, rather than regulatory or legal.

Most of the focus so far has been on Labour’s plans to replace the House of Lords with an elected second chamber. But now Labour has a more coherent and fleshed-out proposal it can start pointing to, Sunak will be looking for a response to neutralise this line of attack – in particular, the charge that he still hasn’t managed to appoint an ethics adviser. It may be that to find someone willing to take on the job, he has to take forward a package of changes that bear close resemblance to the proposals set out by PACAC last week.

By Alex Walker, Research and Communications Officer, UK in a Changing Europe. 

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