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

Lord Beith Excerpts

Friday 4th July 2025 Lords Chamber

Moved by

[Lord Beith]

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).

[Lord Beith (LD)]

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.

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.

--- Later in debate ---

[Lord Beith (LD)]

My Lords, I thank the House for a truly excellent debate. I know it is conventional to say what a good debate we have had, but I genuinely think that the committee’s work has been greatly helped by the way its report has been considered, including the detailed way in which the Minister has responded, even though I am disappointed by some of the things that she has not committed herself to—perhaps I was not as good as my noble friend at getting her into trouble.

One of things that became quite clear in the debate is that there is an appreciation that, although most people want the Prime Minister to retain the responsibility for adherence to constitutionality, the pressures on the Prime Minister are considerable, and some other ways have to be found of making sure that this is not an unrealistic way of dealing with the matter. There are some differences of view as to whether we create a senior Minister with this role or simply make sure that all Ministers at every level are more firmly committed to dealing with constitutional matters and providing appropriate advice to the Prime Minister.

There is a very good degree of acceptance in the House of almost all the other recommendations made by the committee. We will reflect on what the debate has brought forward and what the Minister has said, which will be relevant to the committee’s current and future inquiries. I also assure the House that the committee will continue, week by week, its work of examining all the legislation that comes before the House to see whether it has constitutional implications and, when it does, to make them clear to the House.

I am sure the House will agree that it has taken note of the committee’s report.

Motion agreed.