How Brexit cancelled Nolan.

Public Standards need to be underpinned by legislation.

After regular parliamentary scandals, persistent breaches of the ministerial code, and the confirmation by at least one of the ethics bodies designed to police ministerial conduct, the Advisory Committee on Business Appointments (ACOBA), that it is powerless to sanction former ministers who breach its rules, the Nolan principles feel like a testament from another age.

The original Nolan Committee on Standards in Public Life was set up by Prime Minister John Major in November 1994. His hope was that the Nolan Inquiry would be something of ‘an ethical workshop’. It’s fair to say that since its report was published in 1995, the Committee on Standards in Public Life (CSPL) has become an integral institution within the Westminster machinery. Its remit was expanded in 1997 by Tony Blair to look at party funding; it has taken on work in emerging areas of public concern, such as intimidation in public life and the use of artificial intelligence in the public sector. The Nolan principles were widely adopted, including by the devolved administrations whose work is now technically outside the CSPL’s remit.

Since the Brexit vote in 2016, however, breaches of the ministerial code, and of other public standards codified by Nolan and his successors in the CSPL, have regularly occurred. Prior to the Brexit vote, these transgressions would have been accompanied by a public and media outcry which would have shortened the ministerial lives of those involved; post-2016 they have, in many cases, been tolerated.

The Nolan consensus depended on peer endorsement within Westminster, peer pressure to uphold agreed standards; and on a media that endorsed those standards and ways of operating, and which refused to downplay breaches of norms simply because the politician affected shared their views on a particular issue. The Daily Telegraph which exposed the MPs expenses scandal in 2009 is not the Daily Telegraph which has defended breaches of the Nolan principles by Brexit-supporting politicians and regularly publishes calls for an end to meddling public bodies policing the activities of elected politicians.

Where did this collapse of the Nolan consensus begin? It started on Theresa May’s watch. Public standards are rooted in a consensus – a consensus about the appropriate way of behaving in public service in a parliamentary democracy. Brexit uprooted that consensus. Brexit gave us ‘the will of the people’ a flexible authoritarian – or at least majoritarian – slogan to justify any activity which could get Brexit done.

When Theresa May became Prime Minister in 2016, she could have sought to unite a country divided 52-48 on the basis of the referendum vote., Instead, she sought to unite the Conservative Party against the rest of society, castigating ‘citizens of nowhere’ in her October 2016 conference speech.

if you believe you’re a citizen of the world, you’re a citizen of nowhere. You don’t understand what the very word ‘citizenship’ means.

https://www.spectator.co.uk/article/full-text-theresa-may-s-conference-speech/ 

The next month after the Supreme Court ruled that Parliament would have to vote to trigger Article 50, the Daily Mail ran its infamous headline Enemies of the People, as authoritarian populist assault on the rule of law and on accepted political norms – in the name of the will of the people.

Theresa May’s government failed to defend the judges.

By January 2017, Theresa May was making the case for undiluted Parliamentary Sovereignty in contrast with the written constitutions of most EU countries:

Unlike other European countries, we have no written constitution, but the principle of Parliamentary Sovereignty is the basis of our unwritten constitutional settlement.

In that same speech, she set the UK on the course for a harder Brexit than was ever suggested in the 2016 referendum debates. making the entirely false claim that

both sides in the referendum campaign made it clear that a vote to leave the EU would be a vote to leave the Single Market.

So she ruled out membership of the Single Market, and the Customs Union as it actually existed, and committed to triggering Article 50 before deciding what Brexit meant.

She then raised the prospect of a ‘no deal Brexit’, which had never been mentioned in the Brexit referendum debates:

            no deal for Britain is better than a bad deal for Britain.

As Anand Menon and Jill Rutter have written, she had let the no deal ‘genie out of the bottle’ .

With the loss of her majority in the 2017 election, things got worse for Theresa May. She needed the constant backing of the hard-line Brexiteers – the people who, in Danny Finkelstein’s memorable phrase, wouldn’t take Yes for an answer.

Although Theresa May had dealt with breaches of the Ministerial Code in line with Nolan principles in her first period as Prime Minister, prior to the 2017 election, after she lost her majority in 2017 a wide variety of code breaches were tolerated, as she couldn’t afford to sack people on the Brexit side, as I have previously written in Political Quarterly here.

In the summer of 2018, Esther McVey, then the Secretary of State for Work and Pensions, made a number of statements to Parliament in respect of the National Audit Office’s opinions of her department’s progress on implementing Universal Credit which were incorrect. In an unprecedented move, the Comptroller and Auditor-General wrote to her to correct three statements. Following receipt of the letter, Ms McVey went before the House of Com-mons to apologise for ‘inadvertently misleading’ the House. The Ministerial Code states that ministers who discover ‘any inadvertent error’ must correct it ‘at the earliest opportunity’. Ms McVey’s apology was given swiftly following the receipt of the letter, enabling the Prime Minister to operate the letter of the Ministerial Code and keep Ms McVey in post, even if many felt that the tone of her apology, and her original statements, were a clear breach of the spirit of the code.

McVey’s failure to resign then was a stark contrast to the example of the former Home Secretary, Amber Rudd, who resigned because she had ‘inadvertently misled’ the Commons Home Affairs Committee over targets for removing illegal immigrants. A later inquiry by former Ministry of Justice Permanent Secretary Sir Alex Allan was, in Civil Service terms at least, scathing about the Civil Service support given to the Home Secretary.

Why one act of inadvertent misleading should be punishable by resignation while another is not is unclear and certainly inconsistent. It is hard to escape the conclusion that, in July 2018, on the eve of the Chequers Cabinet on the Withdrawal Agreement, Brexit pressures were more acute.

This is not to say that Theresa May was not prepared to sack people where the case was overwhelming. Her letter to Gavin Williamson following an inquiry into a leak (over a plan to allow Huawei limited access to help build the UK’s new 5G network) from a National Security Council meeting stated that his ‘conduct has not been of the same standard as others’; there was ‘compelling evidence’ that he was behind the leak, that ‘no other, credible version of events’ could explain it, and that she could no longer ‘have full confidence’ in him is, in the history of ministerial sackings, pretty brutal and emphatic.

Nolan had also recommended that ministers who leave office should seek permission from the Advisory Committee on Business Appointments (ACOBA) before accepting and taking up a business role. In July 2018, within a week of resigning as Foreign Secretary, Boris Johnson signed a contract with the Daily Telegraph to write a weekly column. He did not apply to ACOBA for permission until two weeks after signing the contract. The Chair of ACOBA, Baroness Browning, wrote to Johnson on 8 August, saying: ‘The committee considers it unacceptable that you signed a contract with The Telegraph and your appointment was announced before you had sought and obtained advice from the Committee, as was incumbent upon you on leaving office under the Government’s Business Appointment Rules’. The letter pointed out that the rules were contained within the Ministerial Code and this was ‘a failure to comply with your duty’ to seek advice. Johnson had been reminded in a letter from his Permanent Sec- retary on leaving office of his duties. He claimed that he did not receive this letter before signing the contract.

in December 2018 Johnson was also told by the Commons Standards Committee to apologise for his ‘over-casual’ failure to declare £52,000 worth of expenses in an incident which the Parliamentary Commissioner for Standards said was ‘a lack of attention to House requirements, rather than inadvertent error’.

In 2023, Boris Johnson informed ACOBA only half an hour before he accepted the post of Daily Mail columnist.

This month (April 2024), the current chair of ACOBA, Lord (Eric) Pickles wrote to Deputy Prime Minister Oliver Dowden regarding Boris Johnson’s relationship with the Hedge Fund Merlyn Advisors. He said Johnson had been ‘evasive in his dealings with the Committee on this matter, has avoided answering specific questions, and refused to be open about his relationship with Merlyn Advisors’. Pickles said that the Rules governing ex-ministers ‘no longer have relevance in the modern world and are. Unenforceable to applicants determined to ignore them’.

In the same week, the Cabinet Office said that Liz Truss was in breach of the Ministerial Code in that she had failed to make the amendments to her autobiography which it had requested.

Rules on Cabinet Collective Responsibility were also repeatedly broken during Theresa May’s premiership. The principle of collective responsibility is set out in the Ministerial Code. The code explains that the principle is intended to allow ministers to express their views freely in private but maintain ‘a united front’ once decisions are reached.

Following the Chequers Cabinet discussion on Brexit in July 2018, Theresa May wrote to Conservative MPs stating that collective responsibility, which had been suspended during the referendum in 2016, was now being ‘fully’ restored. This appears to have been a post hoc justification of two years of Cabinet dissent. Indeed Mrs May had said in her January 2017 Brexit speech that she expected discipline from her ministers on the Brexit negotiations:

That is why I have said before – and will continue to say – that every stray word and every hyped up media report is going to make it harder for us to get the right deal for Britain. Our opposite numbers in the European Commission know it, which is why they are keeping their discipline. And the ministers in this Government know it too, which is why we will also maintain ours.

As I listed here, public Cabinet disagreements, and regular leaks, were constant during the May years.

The Ministerial Code’s guidance to ministers has been reinforced since 2010 by the Cabinet Manual. Chapter One of the Cabinet Manual is called ‘The sovereign’. It is an upfront statement that the UK is technically a constitutional monarchy. The manual states in its introduction: ‘The UK is a Parliamentary democracy which has a constitutional sovereign as Head of State’.

The Cabinet Manual makes clear the role of the sovereign in the prorogation of Parliament:

Parliament may be prorogued before being dissolved or may just adjourn. It has not been modern practice for Parliament to be dissolved while sitting. Prorogation brings a Parliamentary session to an end. It is the Sovereign who prorogues Parliament on the advice of his or her ministers.

The idea that Parliament might be prorogued to enable a no-deal Brexit was advocated by Conservative leadership candidates in 2019. Since the sovereign had to prorogue Parliament it would inevitably bring the Queen into a controversy that has divided the people of the UK, threatens the Union and affects relationships with neighbouring states. The Cabinet Secretary publicly warned Conservative leadership candidates about this.

Yet, of course, in mid-August 2019, the new Prime Minister Boris Johnson determined to seek the prorogation of Parliamentbefore finally despatching the Leader of the House of Commons to Balmoral to seek the Queen’s agreement.

Following court action in Scotland and England, the Supreme Court ruled unanimously on 24 September 2019 that the prorogation was unlawful, stating ‘it is impossible for us to conclude, on the evidence which has been put before us, that there was any reason— let alone a good reason—to advise Her Majesty to prorogue Parliament for five weeks’.

The Ministerial Code places a responsibility on all ministers ‘to uphold the impartiality of the Civil Service’. They should be professional in their dealings with the Civil Service and give due weight and respect to the advice that they are given. These issues are again reinforced in the Cabinet Manual.

Again, during Theresa May’s period as Prime Minister, in October 2018, the then acting Cabinet Secretary, Sir Mark Sedwill, had to write to The Times defending the impartiality of the Civil Service following a series of anonymous attacks on civil servants over both the Brexit negotiations and Brexit implementation. Sedwill said that ‘sniping’ by ‘anonymous sources’ had to stop.

As I argue in my recent book, Ministerial Leadership, the relationship between civil servants and ministers more strained than ever, with routine ministerial criticism of the civil service ‘Blob’

The ‘Blob’ has been usefully defined by one pro-Brexit journalist as:

the nexus of mandarins, policy advisers, quangocrats and other government agents, a class of “public servants” who don’t really like the public and are increasingly convinced that they have a constitutional duty to constrain and contain elected politicians.

The ‘Blob’ is a term which the current Cabinet Secretary has described as ‘insulting, dehumanising and totally unacceptable’ and from which Prime Minister Rishi Sunak has distanced himself . The term ‘Blob’ is evidence of post-Brexit populism in government.

The destruction of norms continued of course throughout the Johnson and Truss premierships. I will not address here the scandal of Covid procurement contracts. Johnson was ultimately brought down by lying to Parliament. He lost two Independent Ethics Advisers along the way. Truss sacked the Treasury Permanent Secretary and has gone on to blame the ‘deep state’ for her self-destruction as prime minister. As I pointed out above, both continue in their defiance of the ministerial code.

Though Rishi Sunak began his time as Prime Minister with a promise to restore ethical life in government, bringing back the Prime Minister’s Independent Ethics Adviser and overseeing the forced resignations of Nadim Zahawi and Dominic Raab, complaints over breaches of norms, including the confusion of government and party spending on government advertising, misleading parliament, and a range of backbench sexual indiscretions, continue.

I suggested in my 2019 Political Quarterly article that the Nolan era was over. Ministers could mislead Parliament but escape punishment. Cabinet and other ministers could breach collective responsibility with impunity. Details of Cabinet meetings and indeed Cabinet minutes could be leaked without any sanction. Ministers could undermine civil servants without consequence to themselves. Ex-Ministers could ignore ACOBA rules without sanction. Five years on, I am even more convinced that the Nolan era is over. Brexit has wrecked it.

In November 2020, the previous chair of the Committee on Standards in Public Life, Lord Evans delivered a lecture entitled ‘are we living in a post-Nolan age’, saying

In recent months we’ve heard a new phrase used by academics, commentators, and members of the public who have an interest in public standards. That phrase is a “post-Nolan age”.

Evans stood up resolutely for public standards and the Nolan principles. In November 2021, after the Government had disgracefully whipped Conservative MPs to oppose the Standards Committee’s report into Owen Patterson, he said

In my view yesterday’s vote on the report of the Commons Standards Committee was a very serious and damaging moment for Parliament and for public standards in this country.

It cannot be right that MPs should reject, after one short debate, the conclusions of the independent Commissioner for Standards and the House of Commons Committee on Standards - conclusions that arose from an investigation lasting two years.

The Committee on Standards in Public Life published a report on leadership standards in public life in early 2023, recognising that the enforcement of standards depends on leadership at all levels.

The problem that the Committee on Standards in Public Life really faces is that Brexit has shattered the Nolan consensus. There are loud voices arguing that Parliament should not be fettered by unelected bodies, as suggested by both the unelected former Brexit negotiator Lord (David) Frost and the unelected former Telegraph editor Lord (Charles) Moore. This, of course, was an argument raised against Nolan’s recommendations in the first place, almost thirty years ago.

We cannot get easily back to the 1990s Nolan Consensus. It is more likely that legislation will be needed to enshrine public standards, placing the integrity and ethics elements of the ministerial code on a statutory footing, maybe setting up a formal Office of Government Ethics to take over the work of ACOBA, letting the Prime Minister’s Independent Adviser instigate investigations without referral from the Prime Minister, and ensuring real sanctions for former ministers who breach the rules, leading to the loss of post-office pay-offs or the removal of privy counsel status. New Zealand of course has protected its civil service by enshrining their stewardship role in legislation. Denmark has a Ministerial Accountability Act which essentially makes misleading the Danish Parliament a criminal offence.

The Nolan consensus can no longer be assumed. It was broken by Brexit. It will require concerted action to reset public standards, and a new government must make that an immediate priority.