THE Scottish Ministerial Code has its origins in a document I found in a dusty Whitehall drawer in 1980, called “Questions of Procedure for Ministers”, issued the previous year by the prime minister to members of her new government.
It was about government procedure – and what Professor Peter Hennessy has rightly called “etiquette”: how to function as a minister in the Whitehall maze, how to deal with parliament and – prophetically enough – how to claim your expenses. Its real significance was that it explained the doctrine of collective responsibility, and how Cabinet and its committees worked. In Britain’s legendarily unwritten constitution, this obscure bit of Whitehall guidance was the only place that principle was set down in black and white.
Over time, the document’s constitutional status became clearer, and eventually it became public, as the Ministerial Code. Its obverse was the Civil Service Code, setting out how they were supposed to support Ministers. So in 1999, there had to be a Scottish Ministerial Code, based closely on its Whitehall counterpart, and this too entered the public domain.
Understand one key thing about it: it’s a set of guidance issued by the First Minister about how ministers should behave. If they fail to follow it, it’s up to him to deal with them. The code is a set of instructions from the boss, and ultimately he judges whether they’ve been followed and what happens if they are not. Governments need this kind of thing: the rules are not set out in law. They could differ from one government to another, a coalition, say, needing different procedures from a single party government.
The code also deals with issues of propriety rather than procedure. After the expenses scandals, it’s hardly surprising there is an intense focus on the use of public money, and the separation of ministerial and party functions and resources. Ministers need some rules for this – for their own protection as much any other reason – and standards for their interaction with parliament and others.
But how can the code be applied to the First Minister? Mr Salmond has adopted the approach of appointing advisers to judge on whether his ministers have complied, and he asks them to make similar judgments on him too. While the First Minister should certainly follow his own code, it’s not at all obvious that this procedure is right.
The reason is the principle of natural justice – no man should be a judge in his own cause. Assume the best of intentions and the most scrupulous of advisers. Still a system under which the First Minister writes the code, appoints the persons who make judgments under it, and decides whether or not his own behaviour should be scrutinised, and by which advisers, very blatantly fails that test.
You wouldn’t have to be very cynical to conclude that the chances of such a procedure finding any FM guilty of wrongdoing don’t look high. And so it seems: Mr Salmond tells us he’s been cleared six times. Even if the First Minister were as pure as the driven snow, and advised by the angel Gabriel, the process would still be tainted.
It seems Gabriel was not available this time, but Sir David Bell has been able to clear the FM of impropriety. His report is not, to put it kindly, easy to follow. Its logic appears to be that the FM got muddled about different kinds of legal advice, and didn’t mean to breach the code, so he didn’t. Whether that conclusion’s right or not, the process that reached it fails the test of disinterestedness.
Surely this system could be improved? The First Minister does need some protection from the dafter sort of accusation, but can’t keep appointing his own judges and prosecuting himself. The most obvious improvement is to make the code – so far as it relates to propriety – parliament’s, not the FM’s. After all it’s parliament ministers are accountable to. It would follow that the advisers were appointed by parliament, and references to them made by, say, the standards committee. Parliament would have to behave in a non-partisan way to make this work properly – but they are no less likely to than the First Minister.
In practice, the words of the code might be not very different, and the advisers the same sort of people, but some legitimacy would be gained. But even a more legitimate code would be irrelevant to the current debate. It’s about whether the First Minister said something untrue to a journalist, and misled the public about seeking Law Officers’ advice on an important question. People will make their own judgments. The interview is easy to find online. If they think he did, the penalty will be a political one – his opponents will talk about little else, and people will be less inclined to believe him in future.
Politicians on both sides will have their say on what this tells us about the First Minister’s character, and about Scotland and the European Union.
But we can draw some other lessons from the mess. First, for ministers: when you make a mistake, correct it right away, and don’t dig yourself deeper in. A former politician said to me if he had mis-spoken on so serious an issue, a permanent secretary would have shimmered in with a statement of “what the minister meant to say was…” For all I know, one did this time, and the FM is kicking himself for disregarding him.
Secondly, perhaps the Ministerial Code can be rescued from being just another card to be played whenever it suits in the political game. There is scope to improve it, by splitting questions of procedure and propriety. The procedure bit belongs in government, but should be published for openness.
The propriety rules should be agreed by parliament. Parliament should decide whether any minister should be investigated, by advisers it appoints, and parliament, not another minister, should be the court which judges the outcome.
Perhaps the standards committee should look at this. Some good might then emerge from this bourach.
• Jim Gallagher is a fellow at Nuffield College, Oxford, visiting professor at the School of Law at Glasgow University and former head of the Scottish Justice Department