Lie in office? Then sit in a cell

Readers of the New European will be well-acquainted with the Danish political drama Borgen, which has been on our screens in the UK since 2012. But a throw-away line in the final series, shown on Netflix in 2022, may offer a new route to helping restore public standards in UK politics.

In that final series former prime minister Birgitte Nyborg has become foreign minister and confronts the challenge of oil drilling in Greenland. Following her actions, she is told by her senior civil servant that she is in danger of breaching the Ministerial Responsibility Act and she subsequently faces a vote of no confidence.

Denmark’s Ministerial Responsibility Act isn’t well known in the UK, but in real life in 2021 the former Danish immigration minister was sentenced to 60 days in prison (suspended) after her impeachment for “a deliberate violation” of the act. Denmark has a special court to try ministers for malpractice or negligence in office. Under the act, ministers have a responsibility not to give untrue or misleading information to the Danish parliament, the Folketing, or to withhold essential information. Ministers have a legal responsibility to comply with the act.

Imagine if a similar act had been in operation in the UK since 2016? How many ministers would have been caught by the obligation to tell the truth and avoid misleading parliament? How much quicker might Boris Johnson’s exit have been achieved if a threat of legal action – with criminal sanctions – was in operation?

Since 2016, we have seen an increasing number of breaches of standards in public life, without sanction. A sense of impunity has ruled for too long. Two independent advisers to the prime minister on ministerial standards resigned their posts under Johnson. It’s far from clear that the standards set out in the Nolan principles still command common assent across parliament – or, indeed, in the Brexit-supporting media, which seems happy to turn a blind eye to standards breaches if committed by people they like.

It may be that the only way to restore standards in public life is to legislate, starting at the top. A recent report from the Governance Commission, chaired by former attorney general Dominic Grieve, proposes to do just this. It suggests that the integrity and ethics parts of the Ministerial Code should be put on a statutory footing. The core responsibilities of ministers would be set out, including duties to act in the national interest, to uphold the rule of law; to act with professional integrity; to account properly and truthfully to parliament; to avoid conflicts of interest between their public role and private interests; to uphold the political impartiality of the civil service; and to ensure the proper use of government and public resources. The commission believes that, on taking office, ministers should take an oath to uphold the code.

This would be a significant step in the direction of the Danish act, moving away from the amateur and almost laissez-faire approach that has operated in the past, on the basis that people in public life were “good chaps” who were bound by conventions and codes. Recent years have shown us how easy it has been to subvert those conventions – and, once gone, a reputation for fairness and integrity is hard to restore. Public trust has been lost.

As I argue in my new book, Ministerial Leadership, the Brexit populists have found easy enemies in a supposed Remain-supporting, obstructive “Blob”. This populist narrative has turbo-charged the doctrine that the civil service has no identity or responsibility separate from the government of the day. Some ministers and ex-ministers continually argue that civil servants should be mindful of that.

Following Sir Tom Scholar’s sacking by the Truss government in 2022, former cabinet secretary Lord Butler said that the government was ignoring the constitution, and should remember that the civil service is Her (now His) Majesty’s Civil Service. This carried the unspoken implication that the civil service has an independence and a duty beyond any one government.

The trouble is that Lord Butler’s constitution isn’t worth the paper it isn’t written on. It is a set of myths and conventions. When populists rule, determined, focused and ruthless activity can displace its checks and balances, as we saw in the 2019 prorogation of parliament.

Restoring public trust needs determined action. New statutory powers are needed to define the responsibilities of ministers and officials, setting out what is the appropriate stewardship role of the civil service for the long term, beyond the lifespan of any one government, and how ministers can more effectively ensure delivery of their goals, in accordance with the law and their responsibilities to parliament.

The “good chaps” no longer rule. Trust has been lost. The damage will be permanent unless steps are taken to enshrine a new settlement in legislation. Denmark has legislated for ministerial responsibility. New Zealand has legislated to protect the stewardship role of the civil service. It’s time we learned.

Leighton Andrews is professor of practice in public service leadership at Cardiff University. His latest book is Ministerial Leadership (Palgrave Macmillan). He was a Welsh government minister between 2007 and 2016