There are two stories one can tell about the ongoing storm in a teacup that is the row over Suella Braverman and her speeding fine.
First, there is a political story about whether the Prime Minister might jettison his Home Secretary, either due to press pressure or using the media furore as happy cover to strike at one of the leading internal critics of the Government’s de facto immigration policy.
Alternatively, there is a breathless procedural story about whether or not Braverman breached the Ministerial Code; official advisors must be summoned, the rule of law itself hangs in the balance.
There are two problems with the second story: it is nonsense, and it is playing a huge role in shaping coverage of events. Which is why, as I argued elsewhere yesterday, Tea-Storm Suella makes a strong case – albeit one it is politically impossible for Rishi Sunak to make – for scrapping the Ministerial Code (‘the Code’) altogether.
As with so much else which is now cast as a foundation stone of the constitution, the first iteration of the Code dates back only to 1997, New Labour’s Year Zero. The current version was published in 2010.
In theory, perhaps, there’s nothing wrong with having a formal list of what is expected of ministers. The prime minister of the day remains the arbiter of the Code, and service in the Cabinet is at his or her discretion – as it must be, in a democratic and political constitution.
Yet theory and practice so often diverge in unhappy ways, especially in matters constitutional. And this innovation is proving no different in that to New Labour’s other works.
The key thing to note is that the Code is not a tight list of high misdemeanours: it covers everything, right down to sternly affirming that ministers shouldn’t leak to the press – and, indeed, that they shouldn’t seek official support for personal business.
So they shouldn’t. But being thus drafted means that a) full enforcement of the Code is actually impossible and b) it is perfectly possible to something to be a breach of the Code whilst being utterly trivial. Indeed, the sheer triviality of the allegations against Braverman is something even her fairer-minded critics are conceding:
“Caught speeding, she asked her civil servants if they could arrange for her speed awareness course to be done privately. They said no. That’s it. Call this “minister tries to dodge speeding fine” and it sounds terrible. Call it “minister asks innocent question” and it sounds like almost nothing at all.”
This wouldn’t be a problem if politicians and commentators were content to let the Code sit in the background and discuss each case of alleged wrongdoing on its own merits.
But they’re not. In much of the commentary – this Guardian headline is an illustrative example – the point of focus is not the specifics of the case but “Braverman’s alleged breach of ministerial code”.
When I did Ayesha Hazarika’s show on Sunday (segment starts ~1.10), it was mentioned in the introduction; when the Home Secretary’s previous resignation was mentioned, it was for “breaching the ministerial code”, rather than any description of the actual case (emails, remember?).
Opposition politicians were quick to use the peg to link this “breach of the ministerial code” to others, and launch into grand narratives about the moral decay of the Government which would have sounded, frankly, quite deranged if they had been launched from the meagre platform of the facts of the case as we currently know them.
The danger is obvious: that any and all breaches of the Code get elided, in commentary and the public imagination, into a sort of unified offence – and that this becomes a sacking offence. After all, if a prime minister dismisses one colleague “for breaching the code”, they might struggle to justify retaining another who does so, even if the actual misconduct is on a completely different scale.
Worse still, because the Code is so broad as to be impossible to enforce thoroughly, there is the added danger that enforcement starts to be, or at least appear to be, selective, which will do nothing good in the long run for relations between politicians and officials.
Another risk is the de facto accrual of power to officials. It will often be convenient for a prime minister to shelter behind the ruling of an ethics adviser – but they can only do this if they always, or nearly always, defer to such rulings. Our politicians have seldom proved hesitant to outsource responsibility for difficult decisions; we should be wary of any structure that encourages them to do so.
That’s why I think we should simply scrap the Code altogether. It would change nothing about the de jure operation of the Cabinet: ministers would serve at the prime minister’s discretion, and the prime minister would be accountable to the House of Commons (and the nation) for their choices.
But it would deprive scandal-seeking commentators of a vague, catch-all offence over which to clutch their pearls, and cowardly politicians of a means of hiding behind officials, at the expense of ceding real power to officials. The latter, when considering the long-term impact of this trend on their own position, might do well to meditate on these lines from Kipling:
“Peering through reverent fingers I watch them flourish and fall;
And the Gods of the Copybook Headings, I notice, outlast them all.”