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28 May 2021

Holding ministers to account: the issues with self-regulation

4 mins

If you are a regulated individual, you should be familiar with your regulator’s standards of conduct, performance, and ethics. If a referral or complaint is made about you to your regulatory body, and your regulatory body decides that there is a case to answer that you may have breached one of its standards, you will likely be required to attend a hearing. At this hearing, a decision will be made as to whether you remain fit to practise and whether you should continue to be part of the profession. If misconduct is found, a range of sanctions can be implemented, the most severe sanction being removal from the profession.

The Ministerial Code

Those in some of the most influential positions in the UK, Ministers of the Crown, must abide by the Ministerial Code, based on the ‘Nolan principles’ of conduct in public office. For those regulated by the Code, the decision maker of any potential breach is the Prime Minister, who is also subject to the Code. The conventional structure is therefore self-regulation.

Issues with self-regulation

As with any other self-regulation, this leads to a number of issues, primarily the lack of independence and/or the perception of a lack of independence of the decision maker. The clearest recent example of this was the lack of any action taken by the Prime Minister against Home Secretary Priti Patel after she was accused of bullying and found to be in breach of the Code by an inquiry.

Self-regulation depends on everyone involved respecting the standards agreed, despite the inherent incentives to ignore the rules. When these standards are no longer respected, one of the key mechanisms to hold people to account will have inevitably failed. Consequently, the need for an independent decision maker will be, and has been, voiced. Self-regulation has another inherent issue – even if the decision maker does act on potential breaches of the rules, there will always be questions about the appearance of partiality.

To move to a regulated system for individuals holding public office presents its own issues, in particular, who would act as the independent decision maker and how would they be appointed? If the people appointed to the regulator are decided by the government, is this not self-regulation only one step removed? Certainly, passing the issue to the courts risks politicising the judiciary and causing damage to its appearance of political neutrality. The same damage may befall any responsibility placed on the Civil Service, who must also be seen to be politically neutral whichever government is in power.

Some may ask if there is even a need for regulation of Ministers, given the other mechanisms of accountability, prime among them the public’s ability to vote a person out of office at the next election. There is also criminal law to sanction the most serious offences, and judicial review of decisions made by Ministers that are illegal, procedurally unfair, or irrational. What these do not account for is behaviour not amounting to decision making in office, such as bullying, during the course of the individual’s term. This must have an effective remedy, or risk further damaging the public’s trust in the political process.

Breaching the standards of your regulatory body

Seeking legal advice at your earliest opportunity is your best defence against unfounded or inaccurate allegations. If you are or think that you might be subject to disciplinary proceedings with your regulator, it is imperative that you act quickly to protect your interests and safeguard your ability to work. We have both the understanding and experience to know how to robustly defend your position and to help you manage the process.

If you require advice on an employment or professional discipline matter including regulated activities, please contact our employment and professional discipline team, who will be happy to assist you.

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