How the Government can better protect and respect the constitution - Baroness Drake

The UK has an unwritten constitution and it is often said that its flexibility is a great strength. Whilst certainly true, it is also the case that our constitution can be vulnerable to challenge.

To help prevent the erosion of the constitution, or it simply being ignored, there are a number of guardians and ‘checks and balances’ which seek to protect the constitution. These include many institutions and individuals including the law officers, the advisory bodies, the civil service, and even the Constitution Committee. Fundamental parts of our constitution, such as Parliament, the courts and the executive are key constitutional guardians in themselves.

The Prime Minister is ultimately responsible for the Government’s adherence to the constitution. But they are, by definition, an extremely busy individual and will have their own priorities. One key finding of our work is that if the Prime Minister does not take their duty to protect the constitution seriously then the risk of it being damaged or ignored is far greater.

It is crucial that the Prime Minister is well supported in this responsibility to protect our constitution. We heard that the Cabinet Secretary, other Ministers such as the Lord Chancellor and the law officers, and the civil service all play a role in supporting them to do their job. In our view, this support should be led by a single senior minister who is well respected and whose advice on constitutional matters cannot be easily ignored.

The Cabinet Secretary, as the UK’s most senior civil servant, also acts as a constitutional adviser to the Prime Minister. We heard about the significance of this role from both a former Cabinet Secretary and current and former senior Ministers and so were surprised to find it was not included in the job description when a new Cabinet Secretary was recently recruited. We are clear that this role should form part of the Cabinet Secretary’s official responsibilities.

We heard that the civil service team responsible for providing advice and developing policy around the constitution has moved between departments several times over recent years. We believe that these teams can, and should, become a centre of excellence, able to supply the Cabinet Secretary and the Prime Minister with the information, context and precedent that they need to ensure that the constitution is well understood, properly considered, and thus protected. In our report, we urge the Government to ensure that this team becomes a permanent presence within the Cabinet Office.

Finally, the rule of law and independence of the courts are fundamental principles of our constitution. There are specific members of the Government and around the Cabinet table who act as the definitive source of advice on rule of law matters – these are the law officers. The Attorney General in particular is the authoritative voice on matters of legality within the Government. Because of the significance of this role, they must place their duty to the rule of law above party political considerations, and their oath should be updated to reflect the primacy of their duty to the rule of law.

Jean Drake is a member of the House of Lords.