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

Baroness Coffey Excerpts

Friday 4th July 2025 Lords Chamber

[Baroness Coffey (Con)]

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.

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.