UK Constitution: Oversight and Responsibility (Report from the Constitution Committee)

Baroness Twycross Excerpts

Friday 4th July 2025 Lords Chamber

[Lord Neuberger of Abbotsbury (CB)]

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.

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—

[Baroness in Waiting/Government Whip (Baroness Twycross) (Lab)]

If the noble and learned Lord were able to wind up shortly—

[Lord Neuberger of Abbotsbury (CB)]

I have just finished—thank you. I am sorry to have overrun.