Breaching the ministerial codes: Not just a Scottish special concern

Jonathan Deans casts an eye down south to survey a climate of political unaccountability.

For many months, Scottish politics was engrossed with the inquiry into the Scottish Government’s handling of sexual harassment and misconduct allegations against Salmond. The connected Hamilton inquiry also investigated whether Sturgeon had breached the Scottish Ministerial Code by knowingly misleading Parliament as to when she was first aware of the allegations. If she did so, then she would be expected to resign. The Hamilton inquiry concluded Sturgeon did not breach the ministerial code, and that while Parliament was misled, she did not do this knowingly or purposively.

Members of the current Conservative Government, however, have escaped calls to resign and media scrutiny over comparable and arguably worse acts while holding public office. Priti Patel, Home Secretary, was found by an inquiry to have breached the Ministerial Code by bullying staff. Matt Hancock, Health Secretary, acted unlawfully by failing to publish contracts for PPE during the coronavirus pandemic. Robert Jenrick, Housing Secretary, unlawfully approved a housing development sought by a Tory donor.

In February 2020, Philip Rutnam, the most senior civil servant in the Home Office, resigned, accusing Patel of a ‘vicious’ campaign of bullying against him. It then transpired she had faced bullying complaints from staff in 2015, when she was Employment Minister; in 2017, when she was Secretary of State for International Development; and in 2020 from multiple staff members in the Home Office.
A Cabinet Office inquiry concluded in November 2020 that Patel had breached the ministerial code by failing to treat civil servants with consideration and respect during her time in all three departments. However, the PM rejected the inquiry’s findings and refused to take any action, causing Alex Allan, the Prime Minister’s chief advisor on the Ministerial Code, to resign in protest.

In March 2021, the Government paid Rutnam £370,000 (plus legal costs) from taxpayers to settle his employment tribunal claim without Patel’s conduct being called into question in a public tribunal. It was also revealed that a similar claim against Patel was settled back in 2015, to the sum of £25,000. So far, Patel’s actions as a bullying leader have cost taxpayers £395,000 (plus legal costs on both sides), along with the cost of investigating her behaviour.

In February 2021, the High Court in England ruled Hancock breached his legal obligation to publish ‘Contract Award Notices’ within 30 days of contracts for PPE being awarded to private companies. This is a legal requirement detailed in the Public Contracts Regulations 2015 and, as it applies to all public contracts entered by the Government, no competent Secretary would be ignorant of this requirement.

It is important to note that acting ‘unlawfully’ is not the same as acting ‘illegally’. Hancock did not commit a crime here, instead he, whether negligently or maliciously, failed to comply with regulations. However, Hancock could have fixed this error immediately by his department release the Contract Award Notices. Instead, as noted by the High Court Judge, he ordered that the legal case be defended fully in Court, causing £207,000 of taxpayer money to be spent on legal fees for a case which was unwinnable, as the obligation was clearly detailed in the regulations. Furthermore, the Good Law Project, the organisation which won the initial High Court case, has had to raise further court proceedings in March 2021, as Hancock’s department has continued to act unlawfully by heavily redacting the contracts that they have released. The public has a right to this information and Hancock’s department is breaching the law to prevent the contents of these contracts being disclosed.

Aside from the incredibly questionable use of the ‘Towns Fund’, where the Government distributed £3.6bn of funding across constituencies which were Tory targets in the 2019 election, Jenrick has also been involved in a more straightforward breach of ethics in public office. In May 2020, he overruled the Planning Inspectorate to approve a £1bn luxury housing development for Richard Desmond, a prominent Tory donor. The timing of the approval allowed Desmond to avoid a council-imposed infrastructure tax, which would have cost him £50m. A judicial review action was raised, which would have forced the Government to disclose documents between Jenrick’s department and Desmond. To avoid this, Jenrick conceded that he acted unlawfully and had shown ‘apparent bias’.

In June 2020, Labour used an opposition day debate to force the Government to disclose those communications. They showed that Desmond had lobbied Jenrick from November 2019, shown him a promotional video at a private fundraising dinner, and then exchanged texts and emails discussing how planning permission would be obtained. One of the emails showed that Jenrick had directly pressured members of his own staff to figure out the quickest way to overrule the Planning Inspectorate. At this time, Jenrick had not disclosed his own conflict of interest to his department.

So, ministers in Johnson’s government have breached the Ministerial Code, acted unlawfully, and acted where they had a clear conflict of interest. These ministers have not faced the same clamour for resignation as Sturgeon has in Scotland. This may be because the SNP was a minority administration while Tories have an 80 seat Westminster majority and the SNP Scottish Government was in the run up to facing the electorate in May this year, making this the ideal time for political point-scoring, while Johnson’s government will likely not be facing an election until 2024.

However, these matters are serious enough that they should not be seen as mere party-political issues. The opposition should be calling on these ministers to resign and the press should be placing the Government under more scrutiny. It should be remembered the opposition did manage to get Leon Brittan to resign in 1986 over the Westland Affair, and Nigel Lawson to resign in 1989, despite Thatcher’s Government having a majority of 102 seats, and the next election being far off in 1992.

Jonathan Deans is a newly qualified solicitor and Treasurer of Dennistoun Community Council. He is a registered member of Scottish Labour.