Is the Ministerial Code harder to break than the Enigma Code?

Summary

Cameron, Hunt and the Ministerial Code.

The past week has been a bit like Glastonbury or a Test Match but for legal and political types. Big political hitters vs big legal hitters? A line up with lots of big names appearing ‘on stage’? How was Leveson for you? Don’t expect to see the art critics reporting on this one…okay, maybe on Jay’s choice of ties but that’s about it.

The great thing for me about Leveson is that the evidence sessions have allowed the public to make their own minds up about all of the people involved. Ditto with the evidence.

Same process, different approaches. Why?

What struck me this week was how different the approaches were between Vince Cable and Jeremy Hunt. Cable’s department seemed to play it ‘by the book’ as far as the takeover bid was concerned. Being the judge in a quasi-judicial process he and his advisers separated themselves from the lobbying, correspondence and the meetings that News International were pushing for. Quite the opposite with Hunt at the DCMS. From a public administration perspective, the significant difference in approaches is a matter of great concern.

Irrespective of the departments and ministers concerned, there should have been some consistency in the process. Why then does it appear not to have been the case? This for me is something that either the Public Administration Select Committee or the Justice Committee of the House of Commons need to investigate as soon as the whole Leveson process is over. In particular what were the roles of the permanent secretaries in all of this? What advice were they giving to ministers and lead officials? What advice did they seek and from whom? David Mellor – one of Hunt’s predecessors during John Major’s administration makes this very point: Where was the civil service in all of this?

Did Hunt mislead Parliament?

Top legal blogger David Allen Green has identified three specific points where he accuses Hunt of doing so.  Labour are also accusing Hunt of misleading Parliament. It’s also interesting to note that as soon as Parliament returns, Labour will force a Commons vote on whether Hunt’s conduct should be referred to Sir Alex Allan - the Independent Adviser on Ministerial Interests. It’s interesting because they could otherwise have tabled a motion of no confidence in the Culture Secretary. Politically the House would probably have divided on tribal lines. In the case of the motion Labour are tabling, dividing on tribal lines is that little bit harder given the allegations concerned, the amount of evidence made public by Leveson and that the recommendation at the end would come from someone apolitical.

Is Hunt guilty of gross incompetence?

This is what Professor Vernon Bogdanor accuses Jeremy Hunt of. It’s slightly awkward for the Prime Minister given that Bogdanor was one of his professors at Oxford – and possibly that of several other MPs and ministers too, as well as being an expert in the field of all things UK politics. In terms of managing a quasi-judicial process, there are awkward questions for both Hunt and the civil servants around him – as I stated in my blogpost about Adam Smith. Was it that Hunt’s alleged bias towards News International clouded some of the key judgements that he needed to make on the process? What questions did he and his DCMS officials ask of their counterparts at BIS regarding the running of the process? (Or did they at all?) How many – if any at all – civil servants switched from BIS to DCMS when the task was switched from one department to the other? i.e. Did the management of the process move from one group of civil servants familiar with takeover issues to another group that had little – if any at all?

Did Hunt act unlawfully at any point in the process?

This is what top legal blogger Carl Gardner accuses Hunt of. Gardner’s arguments speak for themselves. The point of note that some of my expert finance and economics social media friends and correspondents have focussed in on is the alleged leaking of market-sensitive information.

Where does this leave Jeremy Hunt?

Safe – for now - although Tom Harris MP accuses Downing Street of releasing news of the Prime Minister’s backing prior to Hunt’s appearance at Leveson under an embargo. It could be that Labour’s motion referred above is passed by the Commons and Sir Alex Allan recommends that Hunt had breached the Ministerial Code, leading to the latter’s downfall. Alternatively, it’s plausible that such an investigation could be delayed till after recess and a wider significant machinery of government restructure that would lead to the scrapping of the DCMS, moving its functions into BIS and thus leading to Hunt stepping down from the Cabinet anyway once the Olympics is over.

Where does this leave the Ministerial Code?

In tatters? Irrelevant? The International Development Secretary was quoted as saying Hunt need not resign because of past conduct by Labour ministers and special advisers. Given that it’s widely acknowledged UK politics needs a big cleanup, it seems strange that anyone would want to refer to questionable conduct that took place pre-MPs’ expenses scandal as a marker for how politicians in this current climate should behave. Surely as an institution you want to raise the bar?

Ministers have resigned over less – though in recent years it seems like it has been harder to shift ministers out of the door than in times gone by. Or am I looking at the past through rose-tinted specs? To be accused of misleading Parliament, of being incompetent running a quasi-judicial process and/or management of a special adviser AND to be accused of acting unlawfully in the same process takes some doing. The whole thing leaves a very nasty taste.

Why is all of this important?

We’re not talking about party-political mudslinging or people partaking in extra-curricular horizontal activities in the bedchamber. We’re talking about some constitutional processes that in part underpin the core principles of our political system. Fair and transparent quasi-judicial processes are one of them. Not misleading Parliament being another. In recent years the number of decisions the Home Secretary has been able to take in a quasi-judicial capacity has been reduced by a series of legal rulings. Has it come to the time where we need to remove all politicians from acting in a quasi-judicial capacity and leave it to the judiciary or other independent-of-government bodies? Planning for large infrastructure projects was going to go that way in the final years of Labour before the Coalition scrapped it – bringing the final decisions on large planning applications back under ministerial remits. (The argument being that elected ministers need to make such decisions and be held accountable by Parliament for them – something more difficult with an independent body).

The one person who is coming out of this well is Robert Jay QC. Is forensic style of questioning and use of evidence is a lesson for many a politician charged with scrutinising an organisation – whether councillor, assembly member or MP. Jay weaves a web using closed questions, before firing the “Please can you help us with…” or, Lt Columbo style “Just one other thing…” or “We’ll come back to this later…” There must be a market for making stationary or crockery with Jay’s top lines in this Inquiry. In recent select committee hearings that I’ve seen, the only MP I can think of that has used this style of questioning in a high profile evidence session is Tom Watson. Which is why the suggestion that select committees should have lead counsel attached to them is something I’m quite sympathetic to.

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3 Responses to Is the Ministerial Code harder to break than the Enigma Code?

  1. Is the Ministerial Code broken and in tatters, or has it just not been applied by Hunt’s immediate line manager and HMG CEO, Call Me Dave? Hunt will get away with it for the time being, but if it does finally catch-up on him and he goes, you’d also have to look at his manager who failed to pursue the Ministerial Code and wield the axe.

    Turning to your last points about Robert Jay QC and Tom Watson MP’s similar style of questioning. It’s worth revisiting some quotes cherry-picked from Watson in John Harris’ interview with him from The Guardian in August 2011:

    “When Myler and Crone first turned up, my knowledge was novice-level,” he says. “I knew about three facts. But what I knew was that in any great scandal, you’ve got to follow the money. They were hick, amateur questions: I think I opened with: ‘When did you tell Rupert Murdoch [about the payment]?’ I thought that you might as well start at the top.

    “They said: ‘Oh no – we didn’t tell Rupert Murdoch.’ Then it was, ‘Well, who did you tell? Who authorised it?’ Myler got frustrated me with me, because I came back to this four or five times. He ranted. And don’t forget: Crone had already tried to get me off the committee. So at that point, I thought: ‘You’re rude, you’ve tried to remove me from this committee, you’ve put me under extreme pressure for a number of years – there’s more to this, and I’m getting to the bottom of it.’ “When Myler was so over the top . . . it was like there was a big neon light behind his head, saying, ‘Dig here.’”

    “I have changed. This has been a profoundly life-changing event for me, in many ways. It’s certainly changed my politics. When I was first elected, I was a completely naive and gauche politician. You look at the pillars of the state: politics, the media, police, lawyers – they’ve all got their formal role, and then nestling above that is that power elite who are networked in through soft, social links, that are actually running the show. Why didn’t I know that 10 years ago, and why didn’t I rail against it? Why did I become part of it? I was 34. I’m 44 now. I was naive. But I’ll never let that happen again.”

    http://www.guardian.co.uk/politics/2011/aug/02/tom-watson-phone-hacking

    ——————–

    What I take from this – particularly the few sentences – is that it’s taken Watson quite some years to “get it” and operate properly as a questioning, demanding inquisitor (as that’s my understanding of the main role of an MP on a select committee, and a back-bench MP when challenging the executive). Something that Jay QC has been trained to do.

    Rather than attach lead counsel to select committees, is there any scope to beef-up the induction process MPs go through, and speed-up what seems in Watson’s case to have been a 10-year apprenticeship? Though that leads to problems with how to spot and deal with those MPs who, for whatever reason, don’t “get it”.

    Maybe the correct thing to do is both – improve the training of MPs and augment select committees with lead counsel. Oh, and while we’re at it, can we also make those testifying in front of them swear an oath like at US Senate committee hearings?

  2. Pingback: Alex's Archives Age, ignorance or incompetence? | Alex's Archives

  3. Pingback: Our constitution, July 2012: Public ethics | Edinburgh Eye

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