Protect the constitution, says Lords committee

The constitution has been placed under significant stress over the last few years, according to the House of Lords Constitution Committee.  

Examples include the unlawful prorogation of Parliament in 2019 and the Prime Minister being in intensive care during the pandemic.  

In its report published today, the Committee examines how the Prime Minister and their Government - the executive - protect and respect our constitution and proposes improvements to these ways of working.   

Given that so much of the responsibility within the executive for safeguarding the constitution sits with the Prime Minister, it is important that they fully embrace their  constitutional responsibilities and take them seriously. Otherwise, there is a risk of the erosion of constitutional norms.  

The role of the courts and political controls such as elections are not sufficient constitutional safeguards in and of themselves. The Committee considers that more formal measures are necessary. The possibility that individuals might neglect or abuse their constitutional responsibilities, when combined with the flexibility of the UK's constitution, makes their existence particularly important. Institutional safeguards can help to ensure that oversight of the constitution is robust and effective, and they can mitigate, to an extent, the risk of abuse.  

Such institutional safeguards, for example formalising the role of the Cabinet Secretary in supporting the Prime Minister with their constitutional obligations and emphasising the primacy of the Attorney General's duty to the rule of law are particularly important during times of stress or crisis where constitutional integrity may not be a government priority and where there may be incentives to abandon constitutional norms.  

The report makes the following recommendations: 

• As the Prime Minister holds ultimate responsibility within government for safeguarding the constitution, and they are extremely busy, there should be a senior minister responsible for advising them on discharging this responsibility. The Committee believes that whoever the Prime Minister appoints to such a role should be a senior and authoritative figure, whose advice on constitutional matters cannot be lightly disregarded. 

• The appointment of such a minister could be supplemented by putting the role of the advisory bodies, such as the Commissioner for Public Appointments, into statute. The Government should review the current status of these bodies and consider whether giving them a statutory role would be desirable. 

• The Propriety and Constitution Group should remain a permanent function in the Cabinet Office to enable expertise to be built up with minimal disruption. To help protect against the potential impact of future machinery of government changes, the Committee emphasises that constitutional precedent should be consistently recorded within government by the civil service to strengthen institutional memory and improve the quality of advice to ministers and the Cabinet Secretary around these issues. This would become a centre of excellence on constitutional matters, able to support the Cabinet Secretary more effectively. 

• The Law Officers are the definitive source of legal advice for the Prime Minister when discharging their responsibility for safeguarding the constitution. Therefore, the Attorney General must place their duty to the rule of law above party political considerations, and their oath should be amended to reflect the primacy of their duty to the rule of law. 

• The creation of the Union and Constitution Cabinet committee is welcomed as a positive change to increase the profile of constitutional issues within government. Nonetheless, constitutional considerations should be more firmly embedded in the policy and decision-making process, such as by requiring officials to formally record constitutional considerations in the form that is used for write-rounds seeking collective agreement. 

• The Government should set out who within the UK Government is responsible for the Council of the Nations and Regions. Transparency and clarity of ownership is important even if responsibility is dispersed. 

Baroness Drake, Chair of the House of Lords Constitution Committee said: 

“Though the flexibility of the UK constitution is a strength, it also means that it can be vulnerable to erosion. The integrity of our constitution relies, to a considerable extent, upon individuals respecting and complying with constitutional norms (which include constitutional conventions, such as the Sewel or the Salisbury-Addison conventions, and constitutional principles, such as the rule of law). 

“Several ministers have constitutional responsibilities. For example, the Lord Chancellor has a statutory duty to defend the rule of law and independence of the judiciary. However, only the Prime Minister is ultimately responsible, within the executive, for safeguarding the constitution. In this significant responsibility, they are supported by officials, most notably the Cabinet Secretary, and the law officers.  We think that they should be further supported by a senior minister who holds responsibility for safeguarding the constitution. 

“In recent years the constitution has been placed under stress in a number of ways and we hope that the recommendations laid out in our report today will aid the Government in strengthening the safeguards to protect our constitution, and to help those within the executive with constitutional responsibilities to carry out their duties with expertise and honour.  

“I will also reiterate that the Council of the Nations and Regions requires serious and sustained engagement by the UK Government and the other parties involved to ensure that it is able to deliver the positive and effective engagement across the UK that is intended.”