That this House takes note of the Report from the Constitution Committee Executive oversight and responsibility for the UK constitution (6th Report, HL Paper 72).
My Lords, I will speak to the Constitution Committee’s report, published in January, on Executive Oversight and Responsibility for the UK Constitution. I speak in place of the noble Baroness, Lady Drake, who was chair of the committee during this inquiry but is unfortunately unable to be here today. I pay tribute to her excellent chairmanship, which was fair, firm, fruitful and always friendly.
The UK constitution requires active stewardship. Its flexibility is a strength that allows for pragmatism and evolution, but it also leaves our constitution vulnerable to erosion and challenge. There is a key distinction between lawfulness and constitutionality. As we said in the report, paraphrasing the noble Lord, Lord Sedwill,
“if the Attorney General had advised that a course of action was unlawful and the Prime Minister chose to pursue it nonetheless, then he, as Cabinet Secretary, would advise that the civil service would not be able to support it because doing so would be in contravention of the Civil Service Code. By contrast, if the Cabinet Secretary advised that an action was unconstitutional, for example, in violation of a clear convention, then, so long as it was lawful, the civil service would be able to support its delivery if the Prime Minister chose to go ahead”.
Obviously, there are some constitutional issues which get resolved in the courts, Prorogation being perhaps the most dramatic recent example. However, the existence of an area of constitutional issues which cannot be tested in the courts but which could lead to the Government acting unconstitutionally underlines the importance of the various methods for safeguarding the constitution. There is a complex network of guardians on whom we rely to safeguard the constitution. Parliament itself is a significant guardian and the Constitution Committee has a vital role to play, scrutinising all legislation for its constitutional implications and drawing them where necessary to the attention of the House, as well as holding the Government to account on constitutional matters.
My Lords, it is a pleasure to follow the noble Lord. I congratulate all the members of the committee and the chair for the report they have produced and their success in getting this debated. It is always a good idea to debate our constitution, and I regard today’s debate as a welcome chance to take the temperature of the health of our democracy.
Mind you, it is not the only debate on the constitution this week; Members present on Wednesday will have heard the noble Lord, Lord Roberts of Belgravia, tell us that the word “historic”—much overused—nevertheless applied to the Bill under consideration on Wednesday. I say Wednesday but, actually, as I was on the Woolsack until well past midnight, I regard it as yesterday’s debate. But many interesting speeches were made then, some of which touch on today’s issues. Of course, this is the type of debate where I would rather like to see Walter Bagehot sitting in the Gallery or, if not, then perhaps a more modern equivalent: my noble friend Lord Hennessy of Nympsfield.
The Select Committee on the Constitution is one of the House’s most important committees. If that looks to the Whips like an application to join it, then I am afraid it probably is. As the House knows, over the centuries we have been engaged in a constant struggle between the Executive and the legislature. The powers of the King have gradually been replaced by the powers of the Prime Minister, and it is the position of the Prime Minister which is at the centre of this report. It is important that whatever arrangements we make for safeguarding our constitution are robust and flexible, just like the constitution itself. The report rightly states that the Prime Minister remains the monarch’s principal advisor and has
“ultimate responsibility within government for safeguarding the constitution”.
I sometimes think that we forget the role that oaths of office play in our political life. After all, each of us as a Member has to swear or affirm an oath of office before we are allowed to take our seat. The current Oath of Allegiance—not so much feudal—dates back to the 15th to 17th centuries. At one stage, Members of Parliament had to take three oaths: of supremacy, of allegiance and of abjuration. At various stages, oaths took on political and religious characteristics which were tailor-made for the political circumstances of the time. It was only in 1858 with the oaths of allegiance Act and in 1866 with the Parliamentary Oaths Act that the modern parliamentary oath crystallised into the form it exists today. There have been several updates and consolidations, the most recent of which I think was in 1978.
My Lords, it is a pleasure to follow the noble Viscount, Lord Stansgate, whose wisdom on many subjects is welcome in this House and I hope may be welcome for much longer.
I was not a member of the Constitution Committee at the time of the writing of this important report, as I am now, but I would have endorsed its conclusions with pleasure—with one exception, and it is the same exception mentioned by the noble Viscount, Lord Stansgate. I think that responsibility has to rest with the Prime Minister but that it is also the duty of all Ministers—more widely than simply the law officers or others—in charge of departments to ensure that they act constitutionally. I will say a little more about that in a moment.
I have spoken previously in this House of my admiration for the behaviour of the noble Lord, Lord Sedwill, then Cabinet Secretary, and Helen MacNamara as Deputy Cabinet Secretary, on the occasion described in paragraph 17 of the report. Their behaviour in defence of the constitutional principle that the Government must obey the law was a fine example of the system working even at a moment of great stress, and when advocacy of potentially unconstitutional behaviour apparently emanated from the Prime Minister and those around him.
In the report, it is clear and—in my experience—accurate that attention is focused on the responsibility of the Cabinet Secretary and his or her vital role. I would add only that it is my belief, having observed various models in action, that it is best if the Cabinet Secretary is also head of the Civil Service: he or she then speaks not only for themselves but as the voice of the Civil Service as a profession.
There is one matter which leaves a residual anxiety from the famous story dealt with in paragraph 17. Helen MacNamara is alleged by various memoir writers to have stood her ground by saying to a political adviser, “We do not work for you. We work for the Queen”. That is exactly what I would have said in her place, if I had been brave enough. Of course, under our constitution, the monarch only acts on the advice of the Prime Minister, so the standing ground becomes a little shaky. It may need to be made clearer in law that a civil servant may refuse an illegal or unconstitutional order and that if the crisis persists, some procedure akin to the accounting officer’s report to the Public Accounts Committee should be available to put the dispute before Parliament.
My Lords, I apologise for turning up a few minutes late; I am afraid I was misinformed about the starting time of the debate. It is a pleasure to follow the noble Lord, Lord Waldegrave of North Hill, whose many achievements, both in and out of government, make him a fitting recent member of the Constitution Committee.
This country is almost unique in having no formal written constitution. We have the bedrock of parliamentary sovereignty, superimposed on which is a mishmash of repealable and amendable statutory provisions and conventions. This make-it-up-as-you-go-along constitution has served us pretty well over the past centuries, and it has the attraction of flexibility, a particular virtue in a fast-changing world. But the danger of a flexible system is that it transmogrifies into an arbitrary system. The fast-changing world to which I refer means that the challenge we now face is ensuring a degree of restraint and propriety in a political culture that increasingly rewards speed, dominance and spectacle.
The extent of that challenge is illustrated by a number of worrying developments over the past few years. They include the excessive use of skeleton Bills and over-broad delegated powers, Bills which shamelessly have proposed breaches of international obligations, inappropriate government influence over independent regulators, the spread of ouster clauses, and questionable private sector retirement posts being taken on by former Ministers and civil servants. Particularly in the case of a constitution so much based on convention, the most serious and dangerous constitutional erosions are often cumulative minor breaches rather than sudden major ones: a by-passed Select Committee, an ignored code of conduct, an appointment made without the requisite scrutiny, a Henry VIII clause in a Bill—each individually minor, but as they seep into the culture they gradually undermine the system.
My Lords, I thank the noble Lord, Lord Beith, for initiating this debate and the Constitution Committee for its thought-provoking report. It is also a great pleasure to follow the noble and learned Lord, Lord Neuberger, as well as the other noble Lords who have contributed so far to this debate. There is much thought in what they have said, and I hope that others will have a chance to read it.
In the time available to me, I want to touch on one of the subjects the report deals with, the role of the law officers. I was Solicitor-General in the early part of the Cameron coalition, and I was shadow Attorney-General under his leadership in the year before the 2010 general election. Before that, I was also shadow Attorney-General under the leadership of my noble friend Lord Hague of Richmond.
The committee said that the law officers were
“the definitive source of advice on legality for the Prime Minister”,
and therefore had a significant constitutional role. It reiterated the recommendations it had made in an earlier report on the law officers that the Attorney-General must
“place their duty to the rule of law above party political considerations”.
I agree.
Giving evidence on 6 July 2022 to the committee in that earlier inquiry on the role of the law officers, I referred to the experience of the late Peter Rawlinson, Lord Rawlinson, a former law officer under the Governments of Macmillan, Douglas-Home and Heath. As I told the committee, he explained in his autobiography that:
“When he was appointed Solicitor-General after the night of the long knives in 1962, he was given a half-hour seminar by Harold Macmillan about the role and history of the law officers. Macmillan told him that his first priority was to uphold the rule of law, his second was to be responsible and accountable to Parliament, and his third—very much his third—duty and loyalty was to Macmillan’s Administration”.
My Lords, it is a pleasure to contribute to today’s debate on the constitution. I have been in government more recently than some of the people speaking today, although perhaps I am not the most recent.
It is fair to say that our constitution continues to evolve. That is why it should not be codified and why we should not set in stone a number of the recommendations before us today. One of the most important things that happens in this country is that the Prime Minister meets our monarch every week. It is a private conversation, but the Prime Minister having that direct interaction is one of the biggest safeguards on our constitutional life, and that should not be underrated.
In terms of thinking through, the Prime Minister has to be ultimately responsible. To be candid, it would be quite odd to involve another Minister with a separate responsibility and who may not even be privy to a lot that goes on when you are a very senior Cabinet Minister. People on the National Security Council and all sorts of bodies have information that many other people in this country simply will never know about and have to keep secret. That is also an important part of how they consider how they are responsible for the country as a whole. So when we consider having a separate Minister—unless it was, in effect, the Deputy Prime Minister or equivalent—we must remember that nobody else would ever have the same amount of information that the Prime Minister has when they are making the decisions of the day.
The noble and learned Lord, Lord Neuberger, referred to Covid. It was a big discussion in Cabinet that we could have used the Civil Contingencies Act to manage Covid, but it was decided, out of respect for Parliament, that we would introduce legislation—because we had some time—to get on and to get that view of both Houses of Parliament. That was respect for the constitution of this country and the important role of Parliament.
My Lords, I was once told that the constitution was best left to the lawyers, the historians and the former Cabinet Ministers. So naturally, here I am, a musician turned town centre advocate, about to offer my thoughts, very much aware of the esteemed company in which I do so. I thank the noble Lord, Lord Beith, for introducing this important debate and for, I am sure, skilfully participating in the committee that brought it to us.
I come to this not even as a constitutional theorist, but as someone who has spent much of his life trying to make things work on the ground: in communities, town centres and within local partnerships. Much of today’s discussion will rightly centre on the risks to our constitution, such as executive overreach, erosion of convention and the creeping use of powers that bypass proper scrutiny. I share those concerns, but I speak in cautious praise of the constitution as it currently stands. Yes, it is uncodified, untidy and sometimes obscure, but its flexibility is, in many ways, its quiet genius.
As we have already heard alluded to today, we have weathered recent constitutional storms—Brexit, Prorogation, Covid emergency powers—without paralysis or collapse. That is no small thing. It shows that our system, for all its flaws, still rests on something more than law. It rests on values, precedent and a shared expectation that power must answer to principle.
The so-called good chaps theory of government, as already referred to by the noble and learned Lord, Lord Garnier, has taken a few knocks of late, let us be honest, but it has not collapsed entirely. Perhaps it is time we updated the idea to be less about “chaps” and more about a culture of stewardship that reflects modern governance and today’s public.
How do we safeguard this quiet genius without fixing it in stone? Perhaps inevitably, as we have already heard, one of the committee’s recommendations is the appointment of a senior Minister for constitutional responsibility. The answer to many a problem in Whitehall has been to appoint a Minister for something. We have to acknowledge the Government’s response to that point and the difficulties with it, as we have already heard alluded to. Perhaps the answer lies not in centralising that responsibility, but in sharing it. Perhaps the committee could undertake an annual constitutional audit across both Houses, which could help embed a longer-term sense of constitutional care, one that is not so easily swept aside in reshuffles or by headlines. In my experience, including in my daily work, for which I refer the House to my register of interests, the most effective accountability often comes not from central control, but from shared, distributed responsibility, as indeed we may experience in this very place.
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The focus of this inquiry was on the role of the Executive as constitutional guardian. We also took an early look at the Council of the Nations and Regions, to which I will refer later. I will begin with the very centre of government. The Prime Minister is ultimately responsible for safeguarding the constitution within government. This is a significant responsibility which ought to be taken seriously but, in reality, the Prime Minister is much more likely to be held to account for failure to deliver on policy objectives than on constitutional responsibilities, and may find that the latter get in the way of the former.
Increasingly, Prime Ministers are tested on whether they deliver on their policy promises. Two recent Prime Ministers did not really consider themselves inhibited by constitutional principles and norms. That was bad news, but most Prime Ministers sincerely believe in the constitution and their role in defending it, in theory if not always in practice. We have to recognise how much pressure they are under to deliver on their promises rather than worrying about the constitution. This happens, for example, when Governments seek to achieve their policy objectives via secondary legislation, thereby greatly enhancing the power of the Executive relative to Parliament. An interesting comparison is President Trump’s use of the executive order to bypass Congress and state legislatures.
The Prime Minister is supported by a number of close advisers. Significant among them is the Cabinet Secretary, who plays a vital role in advising on constitutional matters. Given its significance, it was disappointing to see that this responsibility was not explicitly included in the job description during the recent recruitment for that post and that our recommendation to include it going forward was not accepted by the Government. Yet the Cabinet Secretary can also be affected by the priority given to delivery and be expected to ensure that the Civil Service is fully committed to securing the Government’s policy objectives. Warnings of constitutional impropriety can be made to look like obstruction and delay.
Supporting the Cabinet Secretary, as well as Ministers, officials and special advisers, is the Propriety and Constitution Group in the Cabinet Office. It provides advice on constitutional issues, devolution, standards and the relationship with the monarch. However, it has been shuffled around between departments, in particular the Cabinet Office and the Department for Levelling Up, Housing and Communities, several times in recent years. We recommend in our report that it be made a permanent fixture within the Cabinet Office, enabling it to become a true centre of excellence.
Institutional memory is another concern. Constitutional precedent must be consistently recorded. Without this, Ministers and officials are left navigating complex issues as they arise without the benefit of deep institutional knowledge. This weakens the quality of advice and risks undermining constitutional norms.
I turn to the role of other Ministers. We recognise that constitutional responsibility is not confined to the Prime Minister. The Lord Chancellor has a statutory duty to defend the rule of law and judicial independence. The law officers, particularly the Attorney-General, are the definitive source of legal advice for the Prime Minister. We were pleased to see the new Attorney-General swear a new version of the oath that included a commitment to the rule of law. This is a welcome affirmation of this element of his role. In the current Government, there is a Minister for the Constitution, but his constitutional responsibilities appear to be limited and sit alongside very different issues such as EU engagement and the Infected Blood Inquiry.
We recommended the appointment of a senior Minister with broader responsibility for advising the Prime Minister on constitutional matters—a role which used to be filled by the Lord Chancellor when they were a Member of this House. This individual should be senior and authoritative and someone whose advice cannot be lightly disregarded—preferably somebody at a senior stage in their career rather than looking for their next job. The Government did not accept this recommendation. We urge them to give further thought to the issue.
It is important that all Ministers, particularly the Prime Minister, take their constitutional responsibilities seriously. Otherwise, given that in most matters the only sanctions are political, there is a risk that constitutional norms are gradually eroded. This risk means that it is particularly important for there to be effective constitutional safeguards. We recommend that the Government should review and strengthen the status of advisory bodies such as the House of Lords Appointments Commission and consider whether it would be desirable to place them on a statutory footing.
We welcome the creation of the Union and Constitution Cabinet committee as a positive step towards raising the profile of constitutional issues within government. We said in our report that we would welcome an annual meeting between the deputy chair of this new Cabinet committee, the Constitution Committee and the Cabinet Secretary to discuss outcomes. The Government told us that they would be unable to disclose specific details of the Cabinet committee’s work because of the convention of collective Cabinet responsibility. Nevertheless, we would be happy to find ways to make such a discussion possible while respecting the convention of confidentiality. I hope the Minister will take us up on this request.
I turn to the Council of the Nations and Regions. We chose to take an early look at the council both as a follow-up to our recent report on the governance of the union and because it now forms part of the institutional safeguards around intergovernmental relations within the UK. Transparency and clarity of ownership around the council are important. We need clarity about its management, which was notably absent when the noble Baroness, Lady Gray, was briefly appointed as the Prime Minister’s envoy to the nations and regions but did not take up the job. Has someone since been appointed or was the role never needed?
We were disappointed that information about the second meeting of the council is not yet available, and we urge the Government to publish the communiqué without further delay. It is important that the council effectively complements the existing intergovernmental structures and does not leave anyone unrepresented, particularly those in much of England who do not have a metro mayor. The Government told us that these areas will be represented on the council if they choose to join with others to create a metro mayor. It is very odd to make a central part of the intergovernmental machinery contingent on a political decision to opt for a mayoral system of local government. We are concerned about their representation in the meantime and would welcome clarity from the Government on how the council will ensure that the interests of much of England are heard.
To be successful, the council requires serious and sustained engagement by the UK Government and the other Governments and regions in the United Kingdom. We look forward to reviewing the utility and success of the council in due course; I think the jury is still out on whether the council is going to become a really significant element in our constitutional structure.
The fact that we have a constitution which is not to be found in a single document and large parts of which are not enforceable in the courts provides, particularly for overseas observers, a mixture of puzzlement and admiration—but very definitely both. Essentially, it works because we have a culture of constitutional government, and general acceptance that we should observe constitutional conventions and that long-established practices have merit; they can be changed, but they need to be changed on the basis of consensus. We have tried to look at the machinery by which, within the Executive, these things are examined and, where necessary, enforced. We urge wider interest in the issues we have raised. On that basis, I beg to move.
The point of my digression is this: I am one of those who think that there is a case for requiring the Prime Minister to take a special oath of office that would incorporate a requirement to uphold the constitution of the country. I make this suggestion because as the Prime Minister has replaced the King as the fount of political power and it is, in practice, the Prime Minister who has the ultimate responsibility for the constitution, a special oath might be appropriate.
I was interested in the evidence the noble Lord, Lord Gove, gave to the committee, when he said that he was
“very conscious of having sworn an oath”
in his role as Lord Chancellor. I think this indicates that there is merit in considering the role of an oath for the Prime Minister. If it weighed on the noble Lord’s mind then, all the more would an oath of office weigh upon a Prime Minister’s, especially when considering action that would have a constitutional significance. I hardly need add that it would cost virtually nothing.
The position of the Cabinet Secretary is the modern “buckle” that connects the Civil Service to the Prime Minister, and it is a crucial role. Again, I was interested to read the evidence submitted by the noble Lord, Lord Gove, where he said that the Cabinet Secretary’s capacity to “constrain” the actions of a Prime Minister was “pretty significant”. I am bound to say that I did not see this reflected in the events of 2019 and the attempted Prorogation of six weeks. We all know what happened as a result.
On the increasing importance of the law officers, which the noble Lord, Lord Beith, referred to, we know that an oath applies to them. Although the Lord Chancellor is required to take one, we heard earlier this week that the Attorney-General has chosen to take one voluntarily, which is a good thing.
Turning to some of the other elements of the committee’s report, I think it asks some pertinent questions. First, how active is the Union and Constitution Cabinet Committee? I am not convinced that it meets very often. The suggestion is made for it to have an annual meeting with the Chancellor of the Duchy of Lancaster. For all I know, it might be the only time that committee meets at all.
Secondly, how often does the Parliamentary Business and Legislation Committee really reject skeleton Bills or Bills with excessive delegated powers? I do not claim to know but there is no doubt that over the past few years we have seen far too many examples of both; indeed, we had a debate a few years ago on skeleton Bills.
Thirdly, there is the suggestion that there is a role for statute in consolidating the protection of our constitution. When it comes to HOLAC, there is a case for putting it on a statutory basis, and I supported the case made by the noble Lord, Lord Norton of Louth, in his Bill, although I do not believe that its advice to the Prime Minister, however important, should be binding.
Fourthly, I come to the committee’s conclusion that a Minister should be allocated specific responsibility for the constitution. Here I part company with the committee. I am not sure that a role as important as that of being responsible for the constitution can or should be formally devolved to another Minister. It would fetter the discretion of the Prime Minister and I am not sure that any Prime Minister would wish to be constrained in this way. I do not really think that would work.
I have one final point to make. When about 15 years ago the then Prime Minister Gordon Brown authorised the publication of the Cabinet Manual, it immediately made its mark. It was described as
“a guide to the laws, conventions and rules on the operation of government”.
In my view, its very existence helped us to understand better the way in which in our system of government works—or did then. It shed light on the mixture of things that make up our unwritten constitution and hence made it easier for us to understand how its conventions, customs and practices could and should be protected.
The Cabinet Manual owed its existence to the support of the Prime Minister and the genius of the noble Lords, Lord O’Donnell and Lord Hennessy of Nympsfield, but where is it now? My noble friend the Minister said in reply to my most recent Parliamentary Question on the subject:
“The Government takes the function of the Cabinet Manual seriously and we will keep it under review”.
Is there anything more that my noble friend can tell us? I hope that the whole House would be interested to know whether there has been any progress.
For my part, I remain to be convinced that there is neither an appetite for nor an interest in No. 10 in tackling it at the moment. Mind you, the previous Government originally promised to produce an updated version by Christmas 2023 and nothing came of that. But there are obviously several major areas where it needs updating, such as the impact of Brexit and leaving the EU, the Supreme Court decision of 2019, the development of devolution, and the modern operation of a peacetime coalition Government. It would be in the spirit of the Constitution Committee’s report if a valuable document such as this was redrafted for the current age. If I succeed in being selected for the committee, I shall bring my suggestion with me.
My own belief is that the relationship between the Prime Minister and Cabinet Secretary should be replicated in every department by means of an exactly parallel relationship between the Permanent Secretary and the departmental Secretary of State. The Permanent Secretary should have the right to challenge his or her Secretary of State on what is perceived as an unconstitutional action. In cases of dispute, the matter would obviously be elevated to the Prime Minister and Cabinet Secretary to judge.
My final point takes me into very dangerous territory into which experts in the political trivia of the past will remember I once before stumbled, to the delight of the media. All action in politics is covered by ordinary morality. To my mind, there is no such thing as a separate ethical realm of “reason of state”. Any constitution depends on those working within it acting morally, as the noble Lord, Lord Beith, said eloquently in his introductory speech. The dilemmas we find when moral imperatives clash with each other exist just as much in politics as in ordinary life. Is there always a categorial imperative in ordinary life to tell the truth, for example? I believe not; sometimes it is right not to tell the homicidal maniac that you know where the axe is hidden.
In this country we are extremely proud of our capacity to deceive our enemies in wartime. Massive and successful strategies were deployed to mislead the Germans as to where and when the D-Day landings were coming. No one doubts that those lies were necessary and admirable. On the other hand, truth-telling to Parliament is a constitutional principle in the United Kingdom, and rightly so. Deliberate deception of either House is a resigning matter: without true facts laid before them, proper constitutional democratic debate cannot take place. However, there are difficulties about constant candour in public, as in private. Well-established conventions allow Ministers to refuse to answer questions on, for example, secret security matters, but what if a clever questioner traps you on a matter when telling the truth is impossible? I irritated a former Prime Minister—whom I greatly admired—because I said long ago that of course he could not give a candid answer when asked whether he was contemplating devaluing the pound. He thought I was saying that he was dishonest, which was the last thing I intended. But he could not fulfil his duty as Chancellor of Exchequer at the same time as properly telling the whole truth on that matter.
But 99% of the time, my friend Peter Oborne is right to deprecate what he sees as a radical increase in political lying. Telling the truth is a vital condition for democratic debate. How on earth are we to decide when a lack of candour—or even a lie—is justified? Some good steps have been taken since the date of my media fracas; for example, the establishment of the Office for National Statistics, which calls out misuse of statistics by Ministers or anybody else. But what about straightforward factual lies? In retrospect, the lies told at the heart of government at the time of Suez surely crossed the line—I take that example because all the protagonists are safely dead. There have been other incidents since, the protagonists of which are not safely dead, so I will not specify them now, but others can do so to their own satisfaction.
I will make one modest suggestion that might help in certain situations—though not all—the seeds of which are already sown. I believe that in those past cases, it was a failing of the very top members of the Civil Service not to protest on ethical grounds. I also think that in a democracy, the elected Ministers, if backed by the Prime Minister, should prevail and answer in the end to the political process of Parliament and the electorate. However, the constitution would be well served if the Cabinet Secretary or Permanent Secretary had the right to record their objection publicly if they felt they had to surrender their professional ethics to the ultimate power of democracy, just as they do to the PAC when overruled on value for money. Like all good deterrents, such a procedure would most likely never be required. However, this, or something like it, more formal than we have now, would strengthen one vital part of the constitutional balance so well described in the report under debate.
Without wanting to seem alarmist, we have thus seen a real erosion of constitutional propriety over the past quarter century. In particular, the lack of even elementary constitutional awareness at all levels of government was demonstrated during the Covid-19 pandemic, and I am afraid that that accords with my experience of dealing with Ministers and civil servants when I was senior judge. It is only fair to add that, in the past year and to some extent the past three years, things have got somewhat better, but there is real cause of concern. Institutional memory, perhaps particularly important in a system in which convention plays such a large part, has been eroded over the past couple of decades due to ministerial turnover, civil service job rotation and ad hoc government.
There are various Ministers who can be said to be responsible for aspects of the constitution, but save where the courts get involved—and they rarely get involved in matters of convention or what goes in Parliament—the Prime Minister can fairly be characterised as the ultimate guardian of constitutional propriety. It has become apparent that many aspects of our constitution can be abused with impunity if the Prime Minister wishes, or does not care enough. In its excellent report, to which I pay tribute, the committee mentions that the Prime Minister was described by a serving Minister as “a very busy person”. The pressing demands of the office must mean that his role in safeguarding the constitution will not be uppermost in his mind, save perhaps in times of constitutional crisis. The remedies for prime ministerial failures in this connection are vague and often impractical.
In any event, there is an inherent paradox in the head, or indeed any part, of the Executive arm of government being the ultimate guardian of the constitution. After all, a very major purpose of the constitution is to control and limit the powers of the Executive, so there is force in the notion that the Government, or any member of the Government, cannot simultaneously be the custodian of the constitution and the principal risk to its integrity. Self-regulation is generally deprecated these days when it comes to other institutions.
Both the experience of the past few years and principle suggest that there is a need for increased support for constitutional propriety and that it should not simply come from Ministers or civil servants in their departments. For this reason, I must confess to some doubts about the report’s recommendation that there be a new post of a Minister responsible for advising the Prime Minister on constitutional matters. If there is to be such a post, I say—echoing the noble Lord, Lord Beith—that it should be held by a very senior politician with considerable experience of law and politics and who has no political ambitions.
We can draw considerable experience from the change in the role of the old style Lord Chancellor. Maybe that was inevitable, as was the creation of a Secretary of State for Justice, but the consequences for the rule of law of replacing a very experienced, respected lawyer with no political ambitions, who could be relied on to speak up for the rule of law, by a career politician, at best a middle-ranking member of the Government, normally with little if any experience of the law, suggests that the new Minister with a constitutional advisory role will be of no real value unless he or she is somebody with considerable authority and experience.
Having said that, I support another of the report’s suggestions: putting bodies such as HOLAC on a statutory footing with a view to providing a hard-edged framework in which the Prime Minister could exercise his current powers. I would include among these bodies not only HOLAC but ACOBA, the Advisory Committee on Business Appointments, and a body to supervise the Ministerial Code. This was one of the recommendations made in January 2024 in a paper by a UK governance commission chaired by Dominic Grieve, of which I was a member. As we pointed out, such a course would not entail any major expenditure, and it could be expected to help to re-establish some degree of public faith in our democratic processes. The extent, if any, to which the Prime Minister should delegate his powers to the relevant body, or what should happen if he did not do that but did not follow its advice, should obviously be a matter for detailed discussion.
The report we are considering also refers to the Government’s intention to introduce an ethics and integrity commission, which would, I agree, add coherence to the range of what the report refers to as “ancillary structures”, including the Civil Service Commission and HOLAC. This is a manifesto commitment of the Government, and I agree that its discharge—hopefully imminent—represents an opportunity to give both teeth and coherence to quite a wide range of important constitutional watchdogs. Again, details of how this might most effectively be done were given in the paper produced by the UK governance commission to which I have referred. These details include proposals as to how the Committee on Standards in Public Life would feature in a newly coherent structure. Again, implementation of these proposals would be a contribution—
My noble friend Lord Cameron appointed me in a three-minute telephone call, but I expect he had rather more important things to get on with.
I suspect there are no more misunderstood posts in government than those occupied by the Attorney-General and Solicitor-General. Being a law officer is not like being a political Minister in other departments. If, for example, you are the Secretary of State for Health, you have an intensely political and economic role. Every minute of your day is concerned with designing and implementing policy and working out how to pay for it. Then you tell everyone else how well you have done it. The law officer’s department is not traditionally a policy-making department; it is largely reactive. It only rarely introduces legislation. I used to describe our role as being like the lawyer in the cupboard. The Prime Minister or Secretary of State for a Whitehall department opens the cupboard and says, “What’s the answer to this problem?”. You tell them the answer, then they put you back in the cupboard and shut the door. Occasionally they might say thank you, but that was not guaranteed.
I have also described the law officers as submarines. Submarines are most effective when unseen, unheard and operating without drawing attention to themselves. I came up with this rather laboured naval metaphor in October 2010 when HMS “Astute”, then a new submarine conducting sea trials, had just run aground off the Isle of Skye. If a law officer surfaces or runs aground, either the Government are in trouble or he is in trouble—or sometimes both. The knowledge that they are patrolling somewhere in the depths of Whitehall and Westminster ought to be sufficient to persuade Government Ministers to behave by the rule of law, and to comply with the Ministerial Code and the other rules and conventions that govern government behaviour.
As the late Lord Mayhew said, the Attorney-General
“has a duty to ensure that the Queen’s ministers, who act in her name, or purport to act in her name, do act lawfully because it is his duty to help to secure the rule of law, the principal requirement of which is that the Government itself … acts lawfully”.
It will not be forgotten that when he was Solicitor-General, he threatened to ask the police to raid No. 10 to find out who had unlawfully leaked his confidential opinion on the Westland affair.
I was grateful to the noble Viscount, Lord Stansgate, for referring to the noble Lord, Lord Hennessy, because I am very fond of his “good chaps” principle. Call it something else if you like, but good government requires leadership, example from the top and mutual trust and understanding. The law officers cannot work or advise in isolation. They cannot just talk to themselves. It is essential that they are seen to be part of the government team, albeit a semi-detached part of that team. They should not ignore what their duties are, and nor should other members of the Government take them for granted.
One of the things I have worried about over the last several years is that the fellowship of lawyers and Members of Parliament, between the judiciary and government, and between the judiciary and Parliament, has gone. We no longer speak the same language. When I took a Lord Chancellor to dinner in my inn, she appeared to feel that she was going into a foreign country, whereas not so very long ago the Lord Chancellor would not only have known most of the people there but would have appointed many of the judges in that room. There would have been a shared constitutional understanding about their separate roles, about the role of Parliament, the role of the Executive and the role of lawyers and the judiciary, and the Lord Chancellor would have defended the judges against the press and Parliament had any of them been attacked as enemies of the people.
That has gone. It is a great pity, and it discourages practising members of the Bar and solicitors from coming into Parliament. Why give up a good practice? Why swap all that for the public obloquy that goes with being a Member of Parliament in an era of social media? I know plenty of people younger and much younger than me who would have made excellent Members of Parliament, excellent Ministers and, more particularly, excellent law officers, but they will not come anywhere near Parliament because, to them, it is poison.
I am not the first to resort to the metaphor of the sea when referring to the law officers. David Mallet’s The Life of Francis Bacon portrays the offices of Attorney-General and Solicitor-General as
“rocks upon which many aspiring lawyers have made shipwreck of their virtue and human nature”.
Sadly, we have, in the relatively recent past, had law officers who strayed way outside their remit or gave questionable legal advice. They were not the first, and perhaps they will not be the last to do so, but I hope that properly informed public opinion, and thus government and Parliament, will continue to see the benefit of the current system with our law officers being Members of your Lordships’ House or the other place.
As an institution, we need to encourage many more really good lawyers, from all political parties and none, to play an active role in politics, but for them also not to lose sight of their legal roots and heritage. We see a number of them in the Chamber most days of the week, but we need—they are not among us today, but I apologise if I cause them embarrassment —more young Wolfsons, Faulkses, Andersons, Pannicks and Banners. I could name others, but it is their younger equivalents who we need to get into the Commons. The other place no longer attracts such people, and our constitution is less well served as a consequence, because that fellowship of which I spoke has largely vanished.
In terms of other aspects of how things have evolved, reference was made to the Council of the Nations and Regions and moving around who was in charge of intergovernmental relationships. When devolution first started, the Secretary of State for Scotland was the direct link to the First Minister of Scotland. That has evolved in terms of expectations. It is almost seen as a snub if the Prime Minster of the day is not the person having the calls with the First Minister—that has changed. If we start to codify a number of these things, we will not actually keep up with what is needed. That then gives some justification to Governments and the Executive to try to put as many Henry VIII clauses into legislation as possible. I would not say that they are not useful, but we just need to be careful about how they are used.
I spent three years in charge of a department that was Great Britain-wide. I was also in charge of a department where my responsibility was principally England but also international—that was a very different dynamic. One thing that has somewhat shaken the constitution, despite having good intentions, was the United Kingdom Internal Market Act. That in itself needs a revision, or thinking through how that helps the balance that we have.
I was one of the Secretaries of State who really pushed our law officers to take the Scottish Government to court when they were stepping over the line. I was also involved in two very important rulings that came ultimately from the Supreme Court—under the presidency of Supreme Court justice the noble and learned Lord, Lord Reed—about making sure that the UK Parliament was the primary Parliament and, frankly, that NGOs should stop trying to use the courts and case law to overturn policy or, more importantly, legislation that had been passed by a democratically elected Parliament.
In terms of the role of the law officers, I think they are exceptionally important—of course they are. It was interesting to me that—without question—we had a lot of legal cases in Defra and DWP. There was one case where I wanted to test the patience of the courts, because it was to do with what we were doing around the changes in EU law. Our lawyers wanted me to concede, but I was not prepared to do that. Working with the amazing Sir James Eadie and others, I learned that one thing that is not written down in the Ministerial Code is that, if you go to a law officer for a decision, their decision is final. That is what I wanted: I wanted the Attorney-General at the time to make that decision, and I would have abided by it. Interestingly, however, there was so much pushback that I had already left office by the time that was concluded. This example unveils the curtain, as it were, to show that government actually does work, and it shows that it is usually Ministers, rather than the Civil Service, who are very mindful of aspects of the parliamentary relationship. It is also important that the Ministerial Code includes all the aspects of the law that we have to be mindful of and that we of course have to respect.
One thing the committee could have considered is the role of the Civil Service Code. There were several occasions when I was advised by civil servants to knowingly break the law. They may have been only minor infringements, but I challenged them on how it was possible, under the Civil Service Code, “that you are in your advice and in your inaction advising me to knowingly break the law”. I was not prepared to do that. I would encourage the committee—I am not suggesting that we have even more reports—to genuinely think about that.
I will give another weird example—it is not exactly breaking the law. Quite early on in office, I learned through Twitter that my shadow Secretary of State had written to me—I only knew it because he also published my response to him on Twitter. I had never seen the letter from the shadow Secretary of State; I had never seen the letter written in my name, but there it was: my response and my signature. Unfortunately, with these sorts of things, in the Civil Service Code, it should have been more serious than it was. Noble Lords may think that I am trying to deflect from where we are going to, but the one thing I agree on is that moving civil servants around from department to department, just following a Minister, does not work—the group should absolutely stay in the Cabinet Office.
Sometimes people try to suggest that it is just politicians trying to do this, that and the other. I am not accusing the Civil Service, but its job is to try to manage. Ultimately, I could go on about another legal case where I was named as the defendant; I did not know until the ruling had come against me formally. I am afraid that these things happen, so it is important that, when we consider the role of Ministers and how we potentially try to bind their hands, we also try to make sure that we keep the focus on the civil servants who give advice to Ministers. Sometimes it can be difficult and demanding; nevertheless, next time, have a think about how the Civil Service Code really works in practice.
I do not for a moment suggest that we rest easy, nor should we rush to codify or concrete a system that, for all its quirks, has helped us adapt, absorb shocks and correct course where necessary. In a world where constitutions are increasingly polarised or ignored, ours, unwritten though it may be, has so far held. Perhaps this report shows us how to hold it better—not by rewriting the rules, but by renewing the responsibility. For that, it deserves our thanks.