BLURB
The UK’s Ministerial Code is designed to control ministerial behaviour and ensure political accountability. But high-profile controversies like Partygate and debates over the Prime Minister’s unchecked discretion have raised questions about its effectiveness. This article argues that, despite these criticisms, the Code remains an effective mechanism for keeping ministers in check. Recent reforms under PM Keir Starmer show how its ‘evolving’ nature allows an opportunity to address and correct previous shortcomings, which is key to ensuring political accountability. The High Court’s ruling in R. (on the application of FDA) v Prime Minister [2021] EWHC 3279 (Admin) further increases its effectiveness by subjecting parts of the Code to judicial scrutiny. This article examines both its strengths and weaknesses to highlight how the Code functions as a crucial, if limited, check on ministerial behaviour.
Accountability is a key feature of democracy. As rightly observed by Bovens, ‘democracy remains a paper procedure if those in power cannot be held accountable in public for their conduct.’[1] This article analyses the political accountability framework of the United Kingdom, particularly the effectiveness of the Ministerial Code (the Code)[2], which plays a key role in this apparatus. Primarily, the Code prescribes the standard that ministers are expected to comply with. But despite its seemingly democratic purpose, the Code faces criticisms, namely – its failure to curb instances of ministerial misconduct in the past; the Prime Minister’s (the PM) primacy as its ultimate arbiter; its limited workability under populist governments; and the non-enforceability of its non-justiciable provisions. This article contends that the Code, though imperfect, still retains important merits which must not be overlooked, namely – its capacity to accommodate change; the safeguards it preserves to promote accountability despite the PM’s primacy; the FDA ruling[3] confirming the justiciability of certain provisions; and its role within the broader framework of political accountability, complementing other important instruments. Thus, its limitations may be real, but its strengths enable it to serve as an effective check over ministerial behaviour to a limited but meaningful extent.
To assess this, the article first sets a definition for what is meant by ‘effective’. Since the Code operates alongside other constitutional conventions, such as ministerial responsibility,[4] it forms part of the broader framework of political accountability. Thus, it will be effective only if it contributes to that underlying purpose – namely, ensuring that ministers are answerable for exercising their duties responsibly. In other words, the Code functions as an effective guiding document only insofar as it strengthens ministerial accountability. In this sense, this links to the idea of considering law from an outcome-based perspective, which emphasises the effectiveness of law ‘when desired results are effectively achieved and the public interest which justifies the rule has been safeguarded.’[5]
But strictly speaking, the Code is not a constitutional convention, which makes it doubtful as to whether it genuinely enhances ministerial accountability. Dicey defines constitutional conventions as ‘customs, practices, maxims, or precepts which are not enforced or recognised by the Courts’.[6] This serves as a useful starting point for understanding the working of conventions, but it must be respectfully added that it is not wholly accurate. First, Dicey asserted that no limitation could be imposed on the absolute authority of Parliament,[7] and therefore, Parliament could not create a legislation that a future Parliament could not repeal. Jennings famously challenged this, arguing that in some situations, Parliament can bind its successors. This is because Parliament has the ‘power to make laws of any kind in the manner required by the law’,[8] including ‘the power to change the law affecting itself’.[9] Second, Dicey’s account is not accurate because, contrary to his view, ‘conventions can be distinguished from non-legal ‘practices’ by their normative force.’[10] For instance, actors following a mere practice do not consider themselves to be bound by the rule. On the other hand, constitutional conventions are the unwritten rules by which all parties have ‘implicitly agreed to abide’.[11] Since the Code is something that ministers are merely expected to abide by,[12] it follows that it is not in itself a constitutional convention.
Although the UK’s legal and political systems rely heavily on constitutional conventions, this dependency does not automatically enhance political accountability. This is because of two reasons. First, although courts may recognise conventions, they refuse to enforce them, even when it is set out in a statute such as the Sewel Convention.[13] Second, Taylor distinguishes between foundational conventions, ‘which govern unelected constitutional actors’ such as the monarch, and regulatory conventions, ‘which govern elected actors’ such as MPs and the Government.[14] He argues that neither type enhances political accountability – unelected actors do not fear any political sanctions for breach, while elected actors, especially the Government, need not worry about sanctions for breach as they enjoy a majority in Parliament.[15] Therefore, conventions do not, by themselves, ensure accountability.
This makes it necessary for another regulatory framework, such as the Code, to step in and supplement constitutional conventions to prevent office-holders from misusing power and to limit the concentration of power of the state. Ensuring that ministerial behaviour is kept in check is therefore fundamental to the very existence of an accountable government. This article contends that the Code remains significant as it is a formal codification of important rules and principles setting out standards of ministerial conduct.[16] By serving as ‘the reference point whenever allegations are made about misconduct by ministers in office’,[17] it allows the public and the other political actors, such as opposition MPs, to base accusations of ministerial wrongdoing on a formal document. This underscores the importance of the Code in achieving accountability.
Yet it is questionable whether the Code provides the right framework to achieve this accountability. In other words, is the Code an effective non-legal document? The remainder of this article demonstrates that its strengths ultimately outweigh its criticisms, and that the Code continues to play an important role in enhancing ministerial accountability, making it an effective guiding document.
First, doubts regarding the Code’s effectiveness have arisen due to the multiple incidents of unacceptable ministerial conduct in the past – most notably the Partygate scandal, and the bullying allegation against the then Home Secretary, Priti Patel – despite the existence of the Code. During Partygate, senior ministers, including the then PM Boris Johnson, attended gatherings that breached COVID-19 lockdown regulations which their own government had imposed on the public.[18] This amounted to a breach of the Code on two counts – first, by violating ‘the overarching duty on Ministers to comply with the law and to protect the integrity of public life’ (now Paragraph 1.6); and second, by Johnson misleading Parliament in his frequent denial of any knowledge of the lockdown parties (now Paragraph 1.6c).[19] Further, in 2020, a Cabinet Office inquiry found evidence that Patel had breached paragraph 1.2 of the Code (‘harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated’). But Johnson rejected the inquiry’s findings, effectively disregarding the Code.[20] These instances highlight unacceptable ministerial conduct despite the Code’s existence, and raise doubts about its effectiveness in constraining ministers.
While this concern is valid, this article argues that the Code is a ‘living document’, one that evolves over time by learning from past shortcomings and adapting to new expectations. After Johnson removed the Seven Principles of Public Life[21] – a code of conduct applicable to anyone working as a public office holder – from the body of the Code, it was this evolving character of the Code that allowed PM Keir Starmer to reinstate these principles.[22] Similarly, following pressure from organisations like the Institute for Government, the PM’s adviser on ministerial standards now has the power to start their own investigations into breaches of the Code.[23] These developments reflect a willingness to correct past mistakes to uphold the ideals of democracy and good governance. This effort to maintain credibility, in turn, encourages public confidence in the democratic framework and ensures that public debate remains meaningful. Thus, while it remains far from perfect, the Code’s capacity to accommodate change – and the fact that successive PMs continue to use it – ensures that it provides the right framework to achieve accountability, thereby functioning as an effective guiding document.
Nevertheless, concerns about its effectiveness continue to exist, particularly given the PM’s primacy in being the ultimate arbiter of the Code. This is echoed by commentators such as Stuart Wallace, who persuasively highlights that such an arrangement undermines the accountability framework as it allows the PM to exercise unchecked discretion, which may well be misused.[24] A clear example of this, again, is the bullying allegation against Patel, where Johnson dismissed the finding that there was breach of the Code despite the supporting evidence.[25] Such an unchecked discretion can be employed to favour allies or to even coerce others through the threat of political sanctions. Adequate checks ensure that an institution, such as the executive, ‘does not abuse its power’.[26] But in the absence of such restraints, ministerial misconduct becomes more likely. This poses a serious threat to democracy as public servants could prioritise personal gain over the public interest, which is contrary to ideals of good governance. Hence, if the Code fails in effectively controlling ministerial behaviour, the implications would extend far beyond individual misconduct. For instance, there may be cases where ministers turn a blind eye to an impending problem but instead focus on a problem which somehow benefits them, affecting public policy and governance. This would hamper public accountability too, as the ministers would feel at liberty to do anything without the fear of political sanction. So, if there isn’t sufficient safeguard to regulate ministerial conduct, the Code would fail in terms of effectiveness.
However, such a systemic breakdown has not materialised in the United Kingdom. While it is true that the Code is only one component of the democratic framework, it is nonetheless a crucial one.[27] The system’s efficacy still depends heavily on ministers, including the PM, acting responsibly and in adherence to principles of ministerial conduct. As noted above, since 2024, the independent adviser on ministerial standards has been given the power to launch their own investigations without asking the PM.[28] Allowing an impartial authority this autonomy serves two purposes – first, it forces ministers to act responsibly by strengthening the likelihood of scrutiny; and second, it shows a modest but meaningful constraint on the PM’s own discretion, as their approval is no longer required to trigger an inquiry. Accordingly, while the centrality of the PM’s role to the entire apparatus raises a legitimate concern, claims that it fundamentally undermines accountability are overstated. Therefore, the Code retains important safeguards which prevent it from becoming an ineffective guiding document.
Yet this proposition is put to challenge if the Code is examined in the context of a government marked by populism and indifference to conventions. Would its resilience persist even under a populist government – one that claims to embody the true will of the people and therefore views democratic processes as obstacles to its legitimacy? [29] It is also possible that a future PM and cabinet may choose to play ‘constitutional hardball’ and defy norms limiting executive power.[30] For instance, a PM could decline to investigate or punish close political allies, as was seen in relation to the bullying allegations against Patel. This can lead to the perception that breaches of the Code carry no political or legal consequences. Such behaviour risks rendering the Code ineffective and undermining the entire accountability framework.
However, it is submitted that the High Court’s decision in R (FDA) v Prime Minister[31] provides a partial safeguard. In this case, there were two questions before the High Court – first, whether the Code is justiciable; and second, whether the PM misdirected himself as to the meaning of the word ‘bullying’ in paragraph 1.2 of the Code.[32]The Court dismissed the contention that the Code is simply a political document issued in a political context, and thus beyond the reach of legal scrutiny. Without disputing that certain provisions of the Code, such as those concerning ‘political matters’ or ‘ministerial relations with Parliament’, are non-justiciable, the Court stated that this does not make all parts of the Code immune from legal review.[33] This means that Part C of the Code, which deals with ‘Minister’s Procedures of Government’,[34] would fall outside the scope of judicial scrutiny as it addresses duties of ministers relating to government functioning, departmental operations, and relations with Parliament. Crucially, however, the Court held that the paragraph 1.2 of the Code is justiciable.[35]
This judgment is significant because it establishes that certain parts of the Code are capable of being interpreted by the courts, enabling them to issue a declaration if the PM misinterprets those provisions. By making such declarations possible, the FDA ruling indirectly requires the PM to interpret the Code accurately, thereby imposing an indirect constraint on the exercise of prime-ministerial discretion. This, in turn, strengthens accountability and helps resolve concerns about the PM acting as the Code’s sole arbiter. As Hooper rightly observes, the courts remain the ultimate arbiters of questions of law,[36] which invariably extends to aspects of the Code itself. Hence, by limiting prime-ministerial discretion in those justiciable areas, the Court attenuated the centrality of the PM, ensuring that even a populist government cannot entirely place itself beyond judicial review.
Further, the Court rejected the narrow view that the sole purpose of the Code is to determine whether a minister retains the confidence of the PM. Instead, it held that the Code sets out broader behavioural standards and guidance applicable to all ministers.[37] In doing so, it emphasised the Code’s broader objective, indicating its importance as a crucial guiding document. Thus, the Code is not merely the ‘PM’s code’ but a crucial instrument of political accountability, incorporating standards of ministerial responsibility. Nevertheless, courts cannot enforce the non-justiciable provisions of the Code, which remain vulnerable to executive indifference. These include, among others, consulting the Law Officers before the government makes critical decisions involving legal commitment,[38] and ensuring the use of government systems for all government business.[39] For this reason, the FDA decision is best understood as establishing only a partial safeguard against such circumstances.
Even so, when these shortcomings are weighed against the Code’s broader influence, it can still be regarded as a successful oversight mechanism. So far, this article has addressed the Code’s major criticisms and shown how these have been mitigated by its positive aspects. But it would be skewed to argue that these strengths make up for its flaws and render the Code a fully effective instrument of restraint. The question, then, is the extent to which the Code’s strengths tip the balance towards efficacy. Due to the Code being an imperfect document, certain flaws – as reflected in the criticisms outlined above – will inevitably emerge. As these gaps pose a threat to ministerial accountability, and therefore to the Code’s effectiveness, they will require correction in the future for the Code’s proper functioning. Nevertheless, the fact that reforms do occur – for instance, the reinstatement of the Nolan Principles[40] – and that some aspects of the Code may even be scrutinised by courts, reinforces confidence in its long-term effectiveness. Thus, although the balance between the Code’s merits and demerits is not perfect, it is also not wholly unsatisfactory. Rather, its strengths ultimately outweigh its weaknesses for several reasons. First, the criticism regarding past instances of ministerial misconduct is significantly mitigated by the Code’s unique ability to accommodate change and thus, evolve in response to its own shortcomings. Second, concerns about the breadth of prime-ministerial discretion have been substantially addressed by the FDA ruling, which limits that discretion in relation to the Code’s justiciable provisions. Third, the power given to the independent advisor to initiate investigations without the PM’s consent further reduces the PM’s centrality and increases the likelihood of scrutiny, encouraging ministers to act responsibly to avoid sanction. Taken together, these strengths create a setting wherein ministerial accountability is promoted and thereby reinforced. This makes the Code an effective oversight mechanism to a limited but meaningful extent.
Further, it must be emphasised that the Code does not function in isolation. As Gordon aptly notes, it cannot be regarded as a “de-facto replacement” for the deeper constitutional conventions of ministerial responsibility.[41] Instead, the Code operates alongside other instruments of political accountability such as ministerial responsibility, parliamentary scrutiny, and deliberations by select committees. Its limited effectiveness therefore complements these mechanisms, collectively enhancing the overall robustness of the accountability framework. In this sense, the Code’s imperfections do not necessarily result in ministerial misconduct. Rather, its positive aspects continue to serve as a crucial check on ministerial behaviour, maintaining its constitutional importance despite its flaws. These considerations further suggest that the Code’s strengths tilt the balance in favour of efficacy. But given its inherent imperfections, it is most accurate to view the Code as an effective check over ministerial behaviour to some, yet still significant, extent.
In conclusion, this article has addressed the major criticisms of the Code and argued that its strengths ensure that it remains an important check on executive power. Its ‘evolving’ characteristic, along with potential of partial judicial scrutiny, has significantly increased its effectiveness, thereby reinforcing public confidence in the accountability framework. While the Code is far from perfect, it retains constitutional significance and operates in tandem with other political conventions such as ministerial responsibility. Taken together, these considerations demonstrate that the Code continues to play a modest but important role in ensuring that the democratic government in the UK remains accountable.
[1] Mark Bovens, ‘Public Accountability’ in Ewan Ferlie, Laurence E. Lynn, and Christopher Pollitt (eds), The Oxford Handbook of Public Management (OUP 2007) 182
[2] Cabinet Office, Ministerial Code (November 2024)
[3] R. (on the application of FDA) v Prime Minister [2021] EWHC 3279 (Admin), [2022] 4 WLR 5
[4] Mike Gordon, ‘A Statutory Basis for the Ministerial Code – the Challenges’, U.K. Const. L. Blog (16 November 2021) < https://ukconstitutionallaw.org/2021/11/16/mike-gordon-a-statutory-basis-for-the-ministerial-code-the-challenges/>
[5] Maria De Benedetto, ‘Effective Law from a Regulatory and Administrative Law Perspective’ (2018) 9 European Journal of Risk Regulation 391, 395; see also H Xantaki, ‘Quality of legislation: an achievable universal concept or a utopian pursuit?’ in M Tavares Almeida (ed), Quality of Legislation (Nomos 2011) 81.
[6] A.V. Dicey, Introduction to the Study of the Law of the Constitution (first published 1885, OUP 2013) 277
[7] Ibid., 67
[8] Ivor Jennings, The Law and the Constitution (first published 1933, University of London Press 1959) 153
[9] Ibid.
[10] Roger Masterman and Collin Murray, Constitutional and Administrative Law (3rd edn, CUP 2022) 49
[11] Mark Elliott and Robert Thomas, Public Law (5th edn, OUP 2024) 71
[12] Peter Riddell, ‘The new Ministerial Code must be the first step in a wider programme to strengthen standards in public life’ (The Constitution Unit Blog, 10 November 2024) <https://constitution-unit.com/2024/11/10/the-new-ministerial-code-must-be-the-first-step-in-a-wider-programme-to-strengthen-standards-in-public-life/>
[13] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.
[14] Robert B Taylor, ‘Foundational and Regulatory Conventions: Exploring the Constitutional Significance of Britain’s Dependency upon Conventions’ [2015] PL 614
[15] Ibid.
[16] Catherine Haddon, Alasdair de Costa, and Patrick Mcalary, ‘Ministerial Code’ (Institute for Government, 26 April 2019) < https://www.instituteforgovernment.org.uk/explainer/ministerial-code>
[17] Riddell (n 11)
[18] ‘Partygate: A timeline of the lockdown parties’ BBC News (London, 21 March 2023) <https://www.bbc.co.uk/news/uk-politics-59952395>
[19] Meg Russell, ‘Partygate illustrates the fundamental constitutional responsibility of government MPs’ (The Constitution Unit, 14 April 2022) <https://constitution-unit.com/2022/04/14/partygate-illustrates-the-fundamental-constitutional-responsibility-of-government-mps/>
[20] Rajeev Syal and Heather Stewart, ‘Bullying inquiry ‘found evidence Priti Patel broke ministerial code’’ The Guardian (London, 19 November 2020) < https://www.theguardian.com/politics/2020/nov/19/boris-johnson-expected-to-rule-on-priti-patel-bullying-claims-within-weeks>
[21] Committee on Standards in Public Life, The Seven Principles of Public Life (GOV.UK, 31 May 1995)
[22] Tim Durrant and Sachin Savur, ‘Keir Starmer’s rewrite of the ministerial code is long overdue’ (Institute for Government, 6 November 2024) <https://www.instituteforgovernment.org.uk/comment/starmer-new-ministerial-code>
[23] Ibid.
[24] Stuart Wallace, ‘The 2024 Ministerial Code: Weak Reforms and Missed Opportunities’ (The Constitution Society, 19 February 2025) <https://consoc.org.uk/2024-ministerial-code-weak-reforms>
[25] Helen Catt, ‘Priti Patel: Bullying inquiry head quits as PM backs home secretary’ BBC News (London, 20 November 2020) <https://www.bbc.co.uk/news/uk-politics-55016076>
[26] Alison Young, Unchecked Power?: How Recent Constitutional Reforms are Threatening UK Democracy (Bristol University Press 2023) 89
[27] Riddell (n 11)
[28] Tim Durrant and Patrick Mcalary, ‘Independent adviser on ministerial standards’ (Institute for Government, 23 July 2025) <https://www.instituteforgovernment.org.uk/explainer/independent-adviser-ministerial-interests#footnoteref31_67axrhb>
[29] Jan-Werner Müller, What Is Populism? (University of Pennsylvania Press 2016) 3
[30] Mark Tushnet, ‘Constitutional Hardball’ in Richard Bellamy and Jeff King (eds), The Cambridge Handbook of Constitutional Theory(Cambridge University Press 2025)
[31] R. (on the application of FDA) v Prime Minister [2021] EWHC 3279 (Admin), [2022] 4 WLR 5
[32] Id. at [24]
[33] Id. at [39]
[34] Cabinet Office, Ministerial Code (November 2024) 19
[35] [2022] 4 WLR 5 [42]
[36] Hayley J. Hooper, ‘The Ultimate Arbiter of the Code’ (2022) 26 Edinburgh Law Review. 239
[37] [2022] 4 WLR 5 [41]
[38] Cabinet Office, Ministerial Code (November 2024) [para 5.11]
[39] Id. at [para 5.15]
[40] Durant and Savur (n 20)
[41] Mike Gordon, ‘The Prime Minister, the Parties, and the Ministerial Code’ (U.K. Const. L. Blog, 27 April 2022) <https://ukconstitutionallaw.org/2022/04/27/mike-gordon-the-prime-minister-the-parties-and-the-ministerial-code/> accessed 2 August 2025.
Karmanya Sharma
Year 2, LLB, University College London (UCL)