For most of this last quarter‐century, the Nolan Report has provided the underlying ethical basis for public life in the United Kingdom. The recommendations of the Committee on Standards in Public Life (CSPL), which were formalised into the Ministerial Code (in addition to a Civil Service Code), are a core document underpinning the UK’s unwritten constitution and the basis for dealing with ministerial transgressions.
However, following the Conservative government’s loss of its parliamentary majority in the 2017 election, it is fair to say that the Nolan era is over. Prior to the Brexit vote, ministerial transgressions would have been accompanied by a public outcry which would have shortened the ministerial lives of those involved.
Post‐2016 they are being routinely ignored. In this new era, ministers can perform badly but not be sacked. They can mislead Parliament but escape punishment. Cabinet and other ministers can breach collective responsibility with impunity. Details of Cabinet meetings and indeed Cabinet minutes can be leaked without any sanction. Ministers can undermine civil servants without consequence to themselves. Ex‐Ministers can ignore Advisory Committee on Business Appointments (ACOBA) rules and a year later become prime minister.
These are, of course, unprecedented political times in the UK. 2018 saw a record number of ministerial resignations in a single year. The government has been found in contempt of parliament. It has suffered unprecedented defeats and has allowed opposition motions to go through with no government votes against in order to disguise the scale of defeat.
In this new era, does the Nolan report still apply?
The Ministerial Code is explicit about the duty of ministers to give “accurate and truthful information to Parliament”. It says that ministers who “knowingly mislead parliament” will be expected to offer their resignations to the prime minister.
In the summer of 2018, Esther McVey’s failure to resign after her comments on Universal Credit then was a stark contrast to the example of the former Home Secretary, Amber Rudd, whose resignation letter stated that she was resigning because she had “inadvertently misled” the Commons Home Affairs Committee over targets for removing illegal immigrants.
Why was one act of inadvertent misleading punishable by resignation while another was not? 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.
Business appointments and MPs’ interests
Nolan recommended that, like senior civil servants, ministers who leave office should seek permission from the Advisory Committee on Business Appointments (ACOBA) before accepting 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 Committee refused to grant retrospective advice, stating that Johnson’s actions were “a breach of the rules”.
In December 2018 Boris Johnson was also told by the Commons Standards Committee to apologise for his “over‐casual” failure to declare £52,000 worth of expenses. However, Johnson’s political career has clearly been unaffected by these transgressions.
Collective responsibility is not addressed in detail in the original Nolan report, but the principle of collective responsibility is set out in the Ministerial Code. The principle is intended to allow ministers to express their views freely in private but maintain “a united front” once decisions are reached.
The principle that Cabinet discussions should happen in private has been breached on a regular basis. Boris Johnson, exceptionally, briefed his views on what the Brexit deal should be in an article in the Daily Telegraph in advance of a Cabinet meeting in September 2017, but there have been regular leaks from Cabinet.
In June 2018, the Prime Minister ‘berated’ Chief Secretary to the Treasury, Liz Truss, over her public criticisms of Michael Gove. Andrea Leadsom’s comments at the Chequers Cabinet meeting were leaked to the Times. A confidential Cabinet note warning that Britain would not be ready for a no‐deal Brexit in October was leaked to the Financial Times in June 2019.
The Ministerial Code institutionalises the concept of ministerial accountability when it says that “The Minister in charge of a department is solely accountable to Parliament for the exercise of the powers on which the administration of that department depends”, and reminds ministers that they must comply with what parliament has set down on ministerial responsibility and accountability.
In 2017, three ministers – Michael Fallon, Damian Green and Priti Patel, resigned over Ministerial Code breaches of one form or another.
Other apparent breaches of the Ministerial Code, including the duty to avoid confusing ministerial and political work, and to avoid using government facilities for party political purposes, or transparency over meetings with lobbying groups, appear to have been ignored.
Steve Baker allegedly held undisclosed meetings with the European Research Group (ERG), and Boris Johnson hosted the launch of a think tank, the Institute for Free Trade (later re‐named the Initiative for Free Trade), at the Foreign and Commonwealth Office.
Neutrality of the sovereign
Chapter one of the Cabinet Manual is an upfront statement that the UK is technically a constitutional monarchy.
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”.
Despite warnings from the Cabinet Secretary, parliament was prorogued amid disorderly scenes in September. Following court action in Scotland and England, the Supreme Court ruled unanimously on 24 September that the prorogation was unlawful.
Impartiality of the Civil Service
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.
In early 2018, the then Brexit Minister, Steve Baker, was forced to apologise to the House of Commons after criticising Treasury officials over their forecasts of the impact of Brexit. The Chief Secretary to the Treasury, Liz Truss, explicitly attacked the bureaucratic machine as “gremlins of government” in June 2018. In October 2018, the then acting Cabinet Secretary, Sir Mark Sedwill, wrote 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.
Anonymous and on‐the‐record criticisms of civil servants continue.
In the so‐called ‘post‐truth’ world, academic research tells us that crises of legitimacy create space for demagogues to cast themselves as authentic speakers of truth to power, and give aggrieved publics cover to forgive breaches of norms that formerly would have been condemned.
The Nolan Report depended on a shared political consensus about the norms which underpin standards in public life. That consensus depended on peer endorsement within Westminster. It depended on peer pressure to uphold agreed standards. And it required a media that endorsed those standards.
On 20 September 2019, the Chair of the Committee on Standards in Public Life warned it was vital that “the tone of public debate should avoid abuse and intimidation, which have become increasingly widespread”.
Five days later, the Prime Minister accused the opposition of “political selfishness and political cowardice”, saying that they wanted to betray the people in support of the Benn‐Burt ‘surrender act’. He repeated the surrender act rhetoric on several occasions.
We live in a post‐Nolan age, and Boris Johnson is its embodiment.