Less than three years into his premiership, Boris Johnson will (presumably) soon be appointing his third Independent Adviser on Ministers’ Interests. Today, the most recent incumbent, Lord Geidt, resigned. In a resignation statement that was Delphic and succinct in equal measure, he said: ‘With regret, I feel that it is right that I am resigning from my post as Independent Adviser on Ministers’ Interests.’ Geidt’s resignation comes less than two years after that of his predecessor, Sir Alex Allan, who resigned in November 2020 when the Prime Minister refused to accept Allan’s finding that the Home Secretary, Priti Patel, had breached the Code by bullying officials.
Since Geidt resisted any temptation he might have felt to explain why he considered it right to resign, we can only speculate — but it is not exactly difficult to infer what must have brought him to this point. The proximate cause may well have been his appearance earlier this week before the House of Commons Public Administration and Constitutional Affairs Committee, during which he was pressed on matters including Partygate. One way of describing the evidence session would be ‘uncomfortable’; less generous terms were adopted by the Guardian’s John Crace. Until recently, it had appeared that Geidt’s patience — and his associated willingness to act as one of the Prime Minister’s many human shields — was infinite. But some notable red flags were discernible in the foreword to Geidt’s latest annual report, published at the end of May.
Against the background of Partygate — and, in particular, the Prime Minister’s failure to address the Ministerial Code in relation to it — Geidt archly noted that ‘[i]t may be especially difficult to inspire … trust in the Ministerial Code if any Prime Minister, whose code it is, declines to refer to it’ and that ‘[i]n the case of the Fixed Penalty Notice recently issued to and paid by the Prime Minister, a legitimate question has arisen as to whether those facts alone might have constituted a breach of the overarching duty within the Ministerial Code of complying with the law’. Geidt went on to explain that he had repeatedly advised that the Prime Minister should ‘offer public comment on his obligations under the Ministerial Code … to ensure that the Prime Minister should publicly be seen to take responsibility for his own conduct under his own Ministerial Code’. Yet, Geidt lamented, ‘That advice has not been heeded and, in relation to the allegations about unlawful gatherings in Downing Street, the Prime Minister has made not a single public reference to the Ministerial Code.’
The Prime Minister subsequently wrote to Geidt, claiming that he had not breached the Code because, he said, he had not intended to break the law, and that his failure to address the Code publicly was attributable to a ‘failure of communication between our offices’. Johnson’s argument thus reduced to the proposition that he could not be held to have breached the substance or spirit of the Code because (he claimed) he had not known when he unlawfully attended a party that he was breaching the law by doing so, while he was free from blame regarding his failure to address the Code because he had not known that Geidt wanted him to. Yet it is telling that a Prime Minister fined for breaking the law should need to be instructed by his Independent Advisor to address the implications of such a finding with reference to the Ministerial Code, given that the letter places front and centre an ‘overarching [Ministerial] duty … to comply with the law’. It is telling too that Johnson has now rewritten the foreword to the Code, removing all reference to the seven principles of public life, which include integrity and honesty.
As it is presently understood, the UK constitution works, to the extent that it works at all, on the basis that those who operate it — from the Prime Minister down — accept the importance of observing certain norms of conduct and standards of behaviour. The Ministerial Code and the arrangements for its enforcement — the Code is the Prime Minister’s document and the Independent Adviser can merely make recommendations to the Prime Minister — graphically illustrates this point. The system as presently conceived cannot accommodate a Prime Minister who eschews accepted norms of constitutional behaviour, since it accords the role of guardian of constitutional standards to the principal miscreant.
This point can readily be taken further. Beyond the purely political realm, judicial scrutiny and legal control of Government is ultimately available only to the extent and subject to the terms that our sovereign Parliament — which is necessarily dominated by the governing political party — is prepared to allow. In the last two years, the Government has already fired warning shots across the courts’ bows via its reviews of administrative law and the Human Rights Act 1998. And now, following the intervention of the European Court of Human Rights in relation to the implementation of the Rwanda deportation policy, the Government has signalled that even the UK’s association with the European Convention on Human Rights may be in question. Absent constitutionally hard-wired legal restrictions on Government, then, even these judicial safeguards are vulnerable to the populist instincts of a Government with a large majority in a Parliament that is not itself subject to any legal limitations on its legislative power. More generally, the Government’s kneejerk reaction to the European Court’s interim decision on the Rwanda policy illustrates a wider tendency to push back against other institutions — whether political or judicial, domestic or international — that seek to hold it to account. The Government’s unlawful attempt to prorogue Parliament itself necessarily looms large here.
Lord Geidt’s resignation, and the circumstances and culture that have brought it about, are thus part of a much larger picture — one that features a Government and Prime Minister that appear to be allergic to scrutiny in a wide variety of forms. Increasingly, such scrutiny is mischaracterised as an unwelcome interference with the Executive’s right to govern or — more fundamentally — as an attack on democracy itself. But this is a misguided and myopic view. A properly functioning democracy requires government to be held to account — by reference to both political standards, such as those set out in the Ministerial Code and policed by the Independent Adviser, and legal standards, such as those provided for by the law of judicial review and by the Human Rights Act. In truth, therefore, it is not the practice of scrutiny in relation to Government that is a threat to democracy: the real threat to democracy is represented by the Government’s ongoing and increasingly obvious aversion to legitimate scrutiny. Indeed, a hallmark of true democracy is a government’s preparedness to be subjected to meaningful and effective scrutiny; resistance to such scrutiny is the hallmark of another form of government altogether.