Saturday 28 May 2022

It's not just Johnson, it's the system


It's a long-standing flaw in the UK Constitution, such as it is, that so much of it is based on precedent, understanding, and an assumption that the country is run by ‘decent’ people. One particular example of that is the code of conduct which binds Ministers of the Crown to certain standards of behaviour. The code has absolutely no statutory basis and can be changed or torn up on the whim of the PM of the day, as we discovered yesterday. The interpretation and application of the Code is entirely down to one person, and even without tearing it up, the findings of any investigation under its terms can be overturned by its sole custodian, as we learnt when Priti Patel was excused for bullying.

Johnson’s decision to remove “all references to honesty, integrity, transparency and accountability” as required attributes for ministers has attracted some criticism, but it merely formalises the status quo. Such attributes are not only not required from ministers in the current government, they are positively frowned upon. The more significant change is the one which says that breaches of the ministerial code will no longer be expected automatically to lead to ministerial resignations. In one sense, there is something not entirely unreasonable about the idea that ‘minor’ breaches should be treated differently from ‘major’ breaches; after all, the penalty for parking on yellow lines isn’t the same as the penalty for murder. There is a key difference, though: someone deliberately deciding whether to park illegally or murder someone knows in advance that one is a ‘minor’ offence whilst the other is a ‘major’ offence, and also knows that different penalties apply. In Johnsonland, whether a breach of the code is minor or major, and what the punishment will be, are not defined in advance, only after the event; and he is the sole person who will make that determination.

It reminds me of the old story about the husband and wife who, prior to marriage, decided that he’d make all the major decisions and she the minor ones. After 20 years of marriage, he was asked how this arrangement had worked. “Great! in all these years I’ve never had to make a major decision.” One suspects that for Johnson, like the wife in the case of that story, there is nothing that any cabinet minister could do which would ever be considered a ‘major’ breach of the code. Nothing that he does could ever be considered a resigning matter, and holding any of his subordinates to a higher standard will only expose his own failings.

The issue is being highlighted by the fact that no-one would, with any credibility, describe Johnson as a ‘decent chap’ of the sort upon which the smooth operation of the UK constitution depends. And, whilst it might be a particularly undecent chap exposing the problem, he isn’t the real problem. The real problem is that the lack of statutory definition and effective checks and balances allows this to happen. If Johnson helps people to understand why a country needs a proper written set of rules with legal force, he might – wholly unwittingly (although that’s the way he seems to do most things) – have done us all a favour, even if it takes time to implement the necessary changes once he’s gone. I suspect, though, that his eventual departure will simply be marked by a huge sigh of relief (not least on his own side), and ‘normal’ service will be resumed. The sooner Wales opts for becoming an independent state, with a written constitution, the better.

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