22 May 2023

Suella, the speeding course ‘scandal’ and why it’s time to scrap the Ministerial Code


In Suella Braverman, Rishi Sunak made a rod for his own back. It is almost certain that, had he actually won a leadership contest and assembled a Cabinet on his own initiative, she would not have featured in it.

But to a Prime Minister who inherited his Chancellor, the most important person in his government save perhaps himself, using the Home Office to buy off the right must have seemed like small beer at the time.

It was never likely to end well, though. On a policy level Sunak, as a creature of the Treasury, was unlikely ever to be sincere about reducing immigration. 

More prosaically, given the circumstances under which she had only recently resigned the post of Home Secretary, his claim on the steps of Downing Street that his government ‘will have integrity, professionalism and accountability at every level’ all but invited a media free-for-all. As the grotesque tabloid magnate Sir Bruce Bullerby puts it in To Play the King:

‘And they’ve all played the personal morality card. Every one of them. Which means, in my book, that everybody’s private life is now up for grabs. And I mean everybody’s!’

Such language was understandable; Sunak needed to draw a line under Boris Johnson’s time in office. But we’re paying the price for it now.

I am not a fan of Braverman’s, and perhaps the official ethics adviser Sir Laurie Magnus will uncover compelling new details, but the current furore over whether she asked the Civil Service to help arrange a private speed-awareness course has led me to a radically unfashionable conclusion: we might need to scrap the Ministerial Code.

This is not because standards in public life are not important. Rather, it is because the Code itself is on the way to becoming a sort of Magnus Carta: a hallowed text, the invocation of which at once amplifies the apparent seriousness of any offence and let’s us avoid thinking about any individual act of alleged wrongdoing on its own merits.

The current story is a case in point. It appears that the Home Secretary asked civil servants about the possibility of arranging a speed-awareness course privately, was told it was not a matter for officials, and left it there.

Whatever you think of Braverman and her politics, if that is the sum of the story then it is utterly, bone-crushingly trivial. 

Yet rather than focus on such triviality, opposition politicians and commentators alike can clutch their pearls and claim breathlessly that she broke the Ministerial Code! A form of words which, as the Code compasses misconduct from the grossest to the pettiest, has the happy side-effect of turning pretty much anything into a sacking offence.

It also encourages Sunak to outsource his thinking to poor Sir Laurie, rather than making a five-minute political judgement and carrying the can for it.

The latest iteration of the Ministerial Code dates only to 2010; the first only to 1997. Yet it has benefited from that strange constitutional alchemy whereby stuff that post-dates New Labour is a hallowed pillar of the rule of law (stuff that predates the Year Zero, 1997, is invariably crying out for reform).

In principle, there’s nothing wrong with something emerging this way. Our organic constitution allows things to evolve in this manner, as did the Lascelles Principles.  

Likewise, the theory of the Ministerial Code is perfectly fine. The prime minister of the day is responsible for enforcing it, and remains the ultimate arbiter of who gets to serve in Cabinet. In a political and democratic constitution, it could be no other way.

Yet as so often, the theory and the practice are different. There are plenty in Westminster circles who take a dim view of the vulgar exercise of political power, and seek ever to subsume it beneath the operation of court judgements, official guidelines, independent quangos appointed by independent panels, and the other assorted instruments for what Peter Mair dubbed Ruling the Void.

We can see the influence of this mindset in the creeping notion that it is intrinsically improper for a prime minister to retain a minister who has sinned against the Ministerial Code, or to draw a different conclusion to their – independent! – ethics advisor. And when a new story breaks, the question swiftly moves on from the specifics of the allegations to the heart of the matter: did they break the Code?

This makes it easier for opportunist politicians to peg grand narratives about the moral decay of the Government to even the smallest alleged offences, in a manner that would look foolish if they had to refer too directly to the actual events in question.

Combine this with the increasingly toxic public attitude towards politicians which has emerged since the expenses scandal – the acidic ‘the-bankers-the-bonuses’ bullshit that attends any politician who doesn’t check the ‘sackcloth and ashes’ box when booking a restaurant for an official visitor, or buying a plane ticket – and it’s a recipe for disaster. (Not for nothing did Sir Humphrey Appleby deploy ‘Operation Hairshirt’ to cripple the effectiveness of Jim Hacker in Yes, Minister.)

In such an environment, it will never not be tempting for a prime minister to hide behind the Ministerial Code, and the pronouncements of its clerisy, than directly exercise their own political judgement. But that in turn will mean the gradual but real transfer of power to officials. As Venkatesh Rao noted in The Gervais Principle:

“I was just doing my job” or “I don’t make the rules” is not a defence if you have a history of deciding what your job actually is, and selectively breaking or bending rules.

Barring actual criminal or security concerns, service in Cabinet should be at the discretion of the prime minister, and he or she should have to answer directly for their decisions to the Commons and the nation. Critical politicians and journalists should have to engage with the substance of any allegation of misconduct, and not be permitted to elide them into a single, fatal misdemeanour of transgressing against a sacred text that is not yet old enough to vote – even in Sir Keir Starmer’s Britain.

Sunak, the inheritor of a bonfire and stalked by the shambolic ghost of the Johnson era, is in no position to free himself or the rest of us from Magnus Carta. But we must pray for the day when we have a prime minister sufficiently self-confident, and committed to the political constitution, to tear up the Ministerial Code.

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Henry Hill is Deputy Editor of ConservativeHome.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.