Comment: Fox scandal shows need to reform ministerial code

We can't keep on allowing the prime minister to police the code as if he's an impartial observer.

By Dr Matthew Ashton

Regardless of the outcome of the inquiry into Liam Fox's relationship with Adam Werritty, this week's scandal has shone a welcome light onto the rules that govern ministers' behaviour.

Whenever I speak to people about the ministerial code they're always surprised that it's such a recent innovation. The first document to go by this title was introduced in 1997 by Tony Blair, although it has its roots in the 'Questions of Procedure for Ministers' introduced by the Major government. Since then it has become a tradition for an incoming prime minister to create their own version of the code to suit the times. More often than not it's been a PR exercise to prove that they're a new broom sweeping away the sleaze of the previous administration.

David Cameron in the preface of the code issued in May of 2010 speaks specifically about the need to restore public trust in the government after the expenses scandal. However I'd argue that the code as it currently exists is not up to the job, both it in terms of the way it's written, interpreted and administered, and that we need a more root and branch reform.

Part of the problem lies in the fact that political scandals in Britain always follow a pretty similar path. The politicians either manage to stay in office or resign, but there is a brief general consensus that the rules governing their behaviour need to be tightened up. Inquiries are promised with the often repeated mantra that 'lessons have been learnt and this will never happen again'. But why do we have to wait for a scandal before reforming public life in Britain? After the expenses debacle the rules were changed and after the phone hacking scandal of the summer a new section was added to the ministerial code that spoke of the need for greater transparency for the relationship between governments and the media. Now why did we have to have these scandals for this to happen? Surely to any impartial observer it should have been blindingly obvious that there should be clear rules and regulations governing how one very powerful set of people interact with another set of extremely powerful people.

There are three main problems with the ministerial code as it currently stand. Firstly it's far too vague. Vagueness can sometimes be a good thing. The US constitution is purposefully written to be vague so that it can be reinterpreted by successive generations. However there are problems with this. When it talks about impeaching the president it refers to 'high crimes and misdemeanours'. This has meant a huge amount of debate over the years in terms what this actually involves and several presidents have used this to flagrantly bend and break the law.

I'd argue that several sections of the current ministerial code are similarly open to interpretation. The section that most concerns Liam Fox, 7.1, speaks of the need to ensure that 'no conflict arises, or could be perceived to arise, between their public duties and their private interests, financial or otherwise'. Now this leaves an awful lot open to interpretation and it isn't helped by the fact that in section 7.2 it states that it's up to the minister in question to decide what steps need to be taken to avoid a conflict of interest. Because the code frequently uses language like this there are a lot of potential loopholes for ministers to jump through if they took a mind to. The code should be made much more rigid to enforce clearly set out standards in public life.

Secondly, the code needs to be enforced and overseen by a body outside government. The fact that the government in power is allowed to both set up and define the terms of reference for the inquiry is deeply worrying. Investigations of such importance should be overseen by a truly independent outside body who will decide for themselves what a suitable scope of inquiry is and what the timeframe should be, rather than one decided by the prime minister based on what's politically convenient.

The final issue relates to the sanctions offered by the code. At the moment pretty much the only offence in the code guaranteed to force you to resign from government is lying to the House of Commons. Of course this is problematic because you have to prove that the minister was lying as opposed to merely mistaken in their facts. Ultimately however the Code is interpreted by the prime minister and he also decides on the severity of the punishment.

In Alice through the Looking Glass, Humpty Dumpty tells Alice that 'words mean what I want them to mean'. Much the same could be said of a prime minister's relationship with the ministerial code. Do they ultimately decide whether a minister has to go or not based more on what the public, parliament or the press think, rather than the reality of the rules? Perhaps this is why ministers sometimes have to resign when others who have committed similar breaches have not. It's also why some are so quickly welcomed back on to the front benches.

We shouldn't wait for the next scandal before implementing reform. It should be done now.

Dr Matthew Ashton is a politics lecturer at Nottingham Trent University. Visit his blog.

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