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

Lord Garnier Excerpts

Friday 4th July 2025 Lords Chamber

[Lord Garnier (Con)]

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 Lord Peter 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 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.

--- Later in debate ---

[Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)]

My Lords, I thank my noble friend Lady Drake for securing this excellent and informative debate, and for her time spent chairing the Constitution Committee, during which it produced the report we are debating. I thank the noble Lord, Lord Beith, for leading the debate and making sure that we were well structured before we started. I thank all noble Lords for their contributions to what I think has been a rich, interesting and, as always, challenging debate.

The Government’s commitment to upholding the UK’s constitutional arrangements is one we take very seriously. Since the election, the Government have worked to return to a politics of service. This extends from our commitment to maintain high standards in public life and the rule of law to the delivery of the reform agenda set out in the manifesto—including the reform of the House of Lords, which we debated extensively, again, this week—and resetting the UK Government’s relations with the devolved Governments in Scotland, Wales, and Northern Ireland.

As noble Lords have referenced throughout the debate, the UK does not have a codified constitution. Instead, the UK’s wide-ranging and complex constitutional arrangements have evolved over time and continue to do so. They consist of various institutions, statutes, conventions, judicial decisions, principles and practices. As several noble Lords, including the noble Baroness, Lady Coffey, my noble friend Lord Pitkeathley and the noble Lord, Lord Harper, reminded us, there are significant benefits to having this level of flexibility. The Government believe that this characteristic is not merely a feature of our constitutional arrangements but a fundamental advantage that allows us to respond flexibly to meet the complex challenges that are a feature of the modern world.

The Government are of course committed to ensuring that Parliament is able to play its crucial role in scrutinising the work of government. Allowing Parliament the time it needs to properly scrutinise and debate legislation is at the core of maintaining a high quality of legislation. The Government greatly value the work of your Lordships’ House and the revising function it performs. The other place, as the democratically elected Chamber, has a vital role to play in representing the interests of its constituents and holding the Government to account.

The Government are also committed to ensuring that other constitutional safeguards are able to work effectively. This is why the Prime Minister has given the independent adviser on ministerial standards the power to initiate investigations without needing the Prime Minister’s approval. I will return to that role in response to the question from the noble Baroness, Lady Finn.

Regarding the role of Ministers, which was an important theme of today’s debate, the report suggests that constitutional oversight be given to one senior member of the Cabinet. This has sparked an interesting debate, with varying views. The Government, unsurprisingly, agree with the noble Viscount, Lord Stansgate, the noble Lord, Lord Waldegrave, and many others, when we suggest that this role is better fulfilled by all members of His Majesty’s Government in carrying out their duties. Noble Lords are aware that, as the sovereign’s principal adviser and the most senior member of the Government, the Prime Minister is ultimately responsible for overseeing the UK’s constitutional arrangements. In addition, the Prime Minister has a specific constitutional role in advising the sovereign on the exercise of the royal prerogative in relation to the appointment, dismissal, and acceptance of resignations of other Ministers. He is supported in this role by the Cabinet Secretary.

At this point I want to reference the point made by several noble Lords, including the noble Lord, Lord Beith, and the noble Baroness, Lady Finn, regarding the role of the Cabinet Secretary. I appreciate the point raised in the report. In evidence to the Public Administration and Constitutional Affairs Committee in the other place, the Cabinet Secretary himself in February stated:

“The Cabinet Secretary’s job is to bring together all those sources of constitutional thought and give the Prime Minister some advice on which they can then properly and well-informedly make their decision”.


While it is not explicitly stated in the job description, as pointed out by noble Lords on the committee, I believe that both the current occupant and all previous Cabinet Secretaries believed upholding the constitution to be implied in the very definition of their role.

Going back to Ministers, certain Ministers will naturally have a portfolio that places constitutional matters at the centre of their decision-making. The Cabinet Office serves as the home of policy relating to the UK constitution and devolution, working closely with the Secretaries of State for Scotland, Wales, and Northern Ireland. The Chancellor of the Duchy of Lancaster has oversight for all Cabinet Office policy. He is supported by the Minister for the Cabinet Office, who is also the Minister for the Constitution, and by the Minister of State who supports on intergovernmental relations—otherwise known as the brother of my noble friend Lady Alexander.

The machinery of government change that took place following the election, moving union and devolution policy from the Ministry of Housing, Communities and Local Government back to the Cabinet Office, further strengthens the Cabinet Office’s role as the centre of expertise on the constitution within government. The Government believe that the current arrangement, in which constitutional consideration is incumbent on all Ministers, is preferable to one where responsibility sits with a single Minister.

I do not think any of us would want Government Ministers to think that matters of the constitution and the strength of the union are someone else’s responsibility and will be dealt with by them, particularly as what could be considered constitutional goes much further than the roles I have listed so far—something the Constitution Committee has recognised in its descriptions of the five key tenets of the constitution.

For instance, the Lord Chancellor, as we have discussed, has a specific responsibility to protect the independence of the judiciary. Likewise, the law officers, as chief legal advisers to the Crown, have an important constitutional role in advising Ministers on their legal obligations and promoting the rule of law at home and abroad. In fact, the importance that this Government place on Ministers performing their constitutional duties is demonstrated in the oath sworn by the Attorney-General on taking office, which commits them to respecting the rule of law and serving the King in its first line.

The Leader of your Lordships’ House and the Leader of the other place act as the Government’s representatives in the legislature and the representatives of either House in the Government. The Leaders are responsible for representing the interests of both Houses and ensuring that the customs and principles that make Parliament unique are properly represented. Considering the wide range of subjects that a single Minister responsible for constitutional matters would be expected to cover, the Government believe that it is appropriate to maintain the current approach.

Moving on temporarily to intergovernmental relations, the Government’s manifesto commitment to reset the relationship with devolved Governments and to ensure that the structures and institutions of intergovernmental working improve relationships and collaboration on policy is key. That is why, almost a year ago today, the Prime Minister spoke to the heads of the devolved Governments within hours of taking office. The Government have continued in that vein. We have spent the last year working across all levels of government to deliver for every part of the United Kingdom and are using, and will continue to use, the intergovernmental structures to collaborate with the devolved Governments.

We have recommitted to the IGR structures, as has been evidenced in recent weeks. At the end of May, we held the second Council of the Nations and Regions in London. This brought together the Prime Minister, the Deputy Prime Minister, the Chancellor of the Duchy of Lancaster, the heads of the devolved Governments and the regional mayors from across England for the second meeting since we took office. Alongside the council, the Prime Minister and the Chancellor of the Duchy of Lancaster met multilaterally with the heads of the devolved Governments. This was in addition to the bilateral meetings the Prime Minister held with them on the same day.

On the question from the noble Lord, Lord Beith, on a communiqué related to this meeting of the Council of the Nations and Regions, the Government have published the current terms of reference for the council and value the scrutiny of both Houses of Parliament of the worth of the governance of the council through inquiries, Parliamentary Questions and regular engagement with departments as part of the scrutiny of government activity—I have responded to much of this in my role. So, although a communiqué was not published on this occasion, Ministers will continue to update both Houses through the regular scrutiny mechanisms.

The noble Lord, Lord Beith, raised how other organisations that are not part of the Council of the Nations and Regions get to engage. Minister Alexander has been appointed as Minister of State to support cross-government co-ordination and engagement with the devolved Governments. This appointment shows how serious the Prime Minister and this Government are about working with the devolved Governments to deliver for citizens across the UK.

The English Devolution White Paper sets out that the mayors of strategic and established mayoral authorities will be able to be members of the CNR, as we have referenced. The Government want to see all of England benefit from devolution, with full devolution coverage across the country, with an ambition for all areas to have a mayor. We are committed to working productively with local government, and the Government have established the Leaders’ Council to bring together other local leaders and Ministers to identify and tackle strategic challenges facing local government.

The Chancellor of the Duchy of Lancaster has travelled, alongside the Secretary of State for Northern Ireland, to Belfast, where they chaired the first east-west council under this Government. They then attended the 43rd summit of the British-Irish Council in Newcastle, County Down, where the Chancellor of the Duchy of Lancaster met bilaterally with the heads of the devolved Governments. A fortnight later, the Chancellor of the Duchy of Lancaster and other UK Ministers met with the Ministers responsible for intergovernmental relations from the devolved Governments at the Interministerial Standing Committee.

We are genuinely seeking to engage using the current structures and the new Council of the Nations and Regions structures to make sure that engagement in formal intergovernmental forums and informal everyday contact at official level works better than it has historically done. Through this, we are ensuring that there is genuine respect and collaboration across the different Governments who make up the United Kingdom and are focusing on a future built on partnership and recognition.

The noble Lord, Lord Beith, raised the representation of English regions and counties without a mayor. As is always the case with our diverse intergovernmental structures, there are other mechanisms for engagement and we will continue to ensure that we progress with them.

I turn to some of the specific points raised by noble Lords. The noble Lord, Lord Waldegrave, made an interesting suggestion about the right for the Cabinet Secretary and others to record public dissent. The very suggestion of that might also suggest that some changes would happen in government, but I look forward to reflecting on that in the department and will report back in due course.

Noble Lords will be aware that I am an honorary captain in the Royal Navy, so I am ever so sorry to other participants but the analogy from the noble and learned Lord, Lord Garnier, was my favourite, not least because HMS “Astute” was in the bay at my wedding in Gibraltar in recent months. I would like to gently remind the noble and learned Lord of something. I appreciate his concerns, but I remind him that the Prime Minister and my noble friends the Attorney-General and the Scottish Advocate-General have had distinguished careers at the Bar. This may be one point where it is clear that those at the top of our Government have complete respect for the role of the judiciary and some respect for the legal profession, given that they are all from it.

[Lord Garnier (Con)]

No doubt the noble Baroness will have noticed that I was not referring to any of those three people.

[Baroness Anderson of Stoke-on-Trent (Lab)]

I absolutely did, but I think on this occasion we can suggest that this Government are very clear in their commitment to the rule of law and the people who are in post.

There was a great deal of discussion about good chaps—I like to think chaps and chapesses—at the heart of which, as touched on by my noble friend Lord Pitkeathley, was the culture of stewardship that we have a collective responsibility to deliver with regard to our constitution. We all have an extraordinarily privileged position in sitting in your Lordships’ House and being part of our constitution. Therefore, the onus is on us to make sure that we work as members of the Government and as Members of Parliament to deliver on it.

I will write to the noble Baroness, Lady Bennett, about Bristol City Council. I went to school in Bristol, so I have a particular interest there. The noble Lord, Lord Bates, gave us a masterclass; I loved his historical comparisons and imaginative use of ChatGPT. I speak in your Lordships’ House on many different issues, and AI always manages to get into the debate. I did not think it would do so today, but I appreciate the ingenuity.

My noble friend Lady Alexander made a fascinating and very important point on the devolution settlement and the role of the Lord Chancellor. It is a position we have discussed in great detail in recent days and which I will reflect on, given the responsibilities we place on it. I am proud of the work that our party has done to drive the devolution agenda to deliver for people. We will continue to do so through the English devolution settlement and by making sure that devolution continues to work.

The noble and learned Lord, Lord Bellamy, raised a very interesting point about ensuring deeper public understanding of our constitution. As I said, there is an onus on all of us to do that; it is incredibly important for all citizens and lots of parliamentarians do extraordinary work to support public understanding. I will take away his suggestion, but I am not sure that a single programme led by government on promoting the constitution would be effective.

Having said that, the noble Lord, Lord Norton, touched on active citizenship. Citizenship is on the national curriculum. We are currently undertaking a review of the national curriculum and I hope that when we get the outcome of the review, we will be able reflect on this and other issues related to citizenship.

The noble Lord, Lord Hannan, knows that I genuinely enjoy his oratory in your Lordships’ House, not least because it forces me to question my own opinions every time to make sure that my views are in line with my values as much as his align. It will not surprise him, therefore, that although his speech was fascinating as ever, I still believe in the role of the Human Rights Act in ensuring that there are safeguards for the operation of government and the other safeguards that were touched upon by the noble Lord, Lord Wallace.

Returning to the noble Lord, Lord Norton, I thank him for his decades of work on constitutional protections. The Government have well-established parliamentary and devolution capability programmes for civil servants, but there is always more to be done. I will go back and look at exactly what we need to do and the suggestions we need to follow.

I can reassure the noble Lord, Lord Wallace, about the current political environment. I remind noble Lords there are four years until the next general election, and we will see how many political parties we will be facing in four years’ time, but I do reflect upon the seven that are now in existence. Noble Lords who are aware of my own personal travails will be aware of what I think of the establishment of the most recent of those political parties. His suggestion regarding the 1868 oaths Act is an interesting one, and I will have a conversation about it in the department. I also thank him for reminding us of the important role the monarch plays within our constitution, but also the subtle way that conversations can be had that give a level of importance to the Prime Minister.

To the noble Baroness, Lady Finn, I say that the Cabinet Secretary’s filing system sounds all too familiar and similar to my own. All members of the Government should reflect on our own filing systems, in both our emails and on paper. She had interesting thoughts on the Propriety and Constitution Group, and I would welcome a further conversation with her outside your Lordships’ House to consider what next steps we might need to take and possible areas of reform. I reassure all noble Lords that members of the Propriety and Constitution Group are accountable to the relevant Ministers, as is normal for all civil servants. For a moment during the noble Baroness’s speech, I thought she was about to suggest that we need another arms-length body, and I was amazed, but absolutely not—she did clarify that that was not something she would welcome.

The noble Lord, Lord Beith, also raised a point about the Propriety and Constitution Group. I reassure him that while the union and devolution teams have moved from and back to the Cabinet Office, the Propriety and Constitution Group has consistently been in the Cabinet Office. This gives us the opportunity to preserve institutional memory, as was touched upon by the noble and learned Lord, Lord Neuberger.

On the Cabinet Manual, the Government are focused on delivering the commitments outlined in our manifesto. We know the importance of the Cabinet Manual and while we do not currently have plans to update it, we are keeping it under review.