The Prime Minister in breach of the ministerial code?

Not for the first time, Owen’s blog points out a strange anomaly, not widely appreciated by the commentariat (although it was mentioned in passing the other day in a Newsnight interview by the admirable Chair of the House of Commons  Public Administration Committee, Dr Tony Wright MP). 

The Times today (1 March 06) reports that —

Downing Street yesterday continued to offer guarded support to Ms Jowell, while the review by Sir Gus O’Donnell, the Cabinet Secretary, into the financial affairs of the couple appeared to have developed into a full-scale inquiry. No 10 said that the “facts have to be established” as Sir Gus sought further clarifications from Ms Jowell to see whether she had complied with the ministerial code of conduct. David Cameron, the Tory leader, said that she would have to quit if Sir Gus found against her.  Friends of Ms Jowell were privately confident that Sir Gus would conclude that she had not broken the code. She is expected to issue a statement when Sir Gus announces his findings, probably tomorrow.  

So we don’t yet know whether Ms Jowell has breached the ministerial code of conduct.  But we do know that the Cabinet Secretary (pictured) is investigating her and that he was asked to do so by Theresa May MP, a front-bench Conservative spokesperson and, according to her website, the "Shadow Secretary of State for the Family".  It must be inconceivable that Sir Gus O’Donnell would have gone ahead and complied with the Opposition’s request without first receiving the agreement of the prime minister.  But by agreeing to the investigation of a minister by the Secretary of the Cabinet for a possible breach of the Code of Conduct for Ministers, the prime minister undoubtedly put himself in breach of the Code.  Paragraph 1.3 of the Ministerial Code of Conduct, whose Foreword is signed by Tony Blair, lays it down that —

1.3 Ministers are personally responsible for deciding how to act and conduct themselves in the light of the Code and for justifying their actions and conduct in Parliament. The Code is not a rulebook, and it is not the role of the Secretary of the Cabinet or other officials to enforce it or to investigate Ministers although they may provide Ministers with private advice on matters which it covers.  

Who, then, is going to investigate the prime minister and his behaviour in breach of the Code?  Since he is himself the final arbiter of ministers’ behaviour, he can hardly be required to investigate himself:

1.4 Ministers only remain in office for so long as they retain the confidence of the Prime Minister. He is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards, although he will not expect to comment on every allegation that is brought to his attention.

The fact is that the prime minister is himself responsible for this absurd position, whereby the only independent authority available to ‘investigate ministers’ and their behaviour is a civil servant whose duty is to serve and advise ministers, not to investigate them, as the Code itself stipulates.  The Parliamentary Commissioner for Standards and Tony Wright’s Committee have both recommended that the government should appoint an independent, non-political individual or panel of individuals, not a civil servant, who would be available to investigate allegations about ministerial behaviour and to report their findings to the prime minister and to parliament.  But the prime minister has ignored these recommendations.  He has only himself to thank.  Meanwhile he is in breach of his own Code.  This raises the tantalising possibility of the prime minister being obliged to resign for behaviour in breach of the ministerial Code — and if the prime minister resigns, all the other ministers automatically resign as well.  Including Tessa Jowell.

Quis custodiet ipsos custodes?  Not the Cabinet Secretary, according to the Code.  I wonder if Sir Gus pointed this out to Tony Blair when he was asked to investigate Tessa Jowell?

Update, 3 March 06:  It looks as if the Cabinet Secretary has been reading this blog (only kidding).  In his reply [pdf file] to Theresa May’s request to him to investigate Tessa Jowell’s affairs in relation to the ministerial Code of Conduct, Sir Gus O’Donnell boldly quotes the whole of para 1.3 of the Code (reproduced above) and then assures us that what he has done has not in any way been in conflict with the procedure laid down in the Code ("The Code is not a rulebook, and it is not the role of the Secretary of
the Cabinet or other officials to enforce it or to investigate Ministers"):

The process followed in this case has observed these clear procedures.  In the first instance the [Culture] Secretary … has worked closely with her Permanent Secretary, in close consultation with me, to establish the facts.  It is for me to provide advice as necessary to the Prime Minister and Secretary of State.  The work done relates solely to the Secretary of State’s responsibilities under the Code.  It is not an investigation of Mr Mills’ [sic] financial affairs…

So although he has been busy establishing the facts relating to Ms Jowell’s responsibilities under the Code, he hasn’t apparently been ‘investigating’ her, because the Code says that’s not his job.  Well, at any rate he hasn’t been investigating Mr Mills.  Some neat footwork here!  How strange that just about everyone else in the media and in politics has been referring to the Cabinet Secretary’s ‘investigation’ and its findings.  However, it seems to be generally agreed that the procedure needs to be changed and that in future the Cabinet Secretary ought not to be asked to investig– er, establish the facts concerning a minister’s behaviour; this should be done by some independent personage outside politics.  But that recommendation has been in the prime minister’s In Tray since the Flood and nothing has happened.

Brian