Can anyone explain the British constitution?
Peripheral Vision, 11 November 2023
I’m encouraged by positive feedback on my last post to venture further into the nature of the continuing confusions about the respective role in UK government of the roles of Ministers, civil servants, parliament, the judiciary and voters.
No less a body than the House of Lords issued a report last month (October) which probably served to further the confusion – with the exciting title “The Appointment and Dismissal of Permanent Secretaries and other Senior Civil Servants”, attracting a useful response from the Constitution Society - with a brief background report from Martin Stanley who runs this excellent site about the civil service
But the most concise answer to the question which heads this post is probably given in the 2019 report from the Constitution Society with the revealing title of “Good Chaps No More”
The ‘good chap’ principle emerged over a long period of time. Its existence was assumed rather than expressly defined. As Gladstone put it in 1879, the British constitution ‘presumes more boldly than any other the good sense and good faith of those who work it.’ What we might regard as the closest equivalent to a formal codification of what is expected of a ‘good chap’ came relatively recently in the form of the "Seven Principles of Public Life". First issued by the Committee on Standards in Public Life in 1995, they are known as the ‘Nolan Principles’, after the inaugural chair of the committee, Lord (Michael) Nolan (who served in this post from 1994 to 1997). These standards supposedly apply to all exercisers of public functions, though they have no legal force. The principles, with official explanatory texts, are:
1. Selflessness; Holders of public office should act solely in terms of the public interest.
2. Integrity Holders of public office must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work. They should not act or take decisions in order to gain financial or other material benefits for themselves, their family
3. Objectivity; Holders of public office must act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias.
4. Accountability Holders of public office are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this.
5. Openness Holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for so doing.
6. Honesty; Holders of public office should be truthful.
7. Leadership; Holders of public office should exhibit these principles in their own behaviour. They should actively promote and robustly support the principles and be willing to challenge poor behaviour wherever it occurs.’
The period since the European Union (EU) referendum of June 2016 has seen a series of disputes about whether constitutional abuses have taken place. They have touched upon many of the main governmental organs: the Cabinet, the Civil Service, Parliament, the judiciary, the devolved institutions, and even the monarchy. From being a by-word for tedium the condition of the UK constitution has become a first order question cracking with political electricity. ….To provide a perspective on the extent to which previous assumptions have been challenged, it is worth considering an aforementioned document published in 2011, “The Cabinet Manual - A guide to the laws, conventions and rules on the operation of government”, it provides an account, from the perspective of the executive, of the working of the political system. Like the “Seven Principles of Public Life”, it has no direct legal force. But it provides the fullest account, in an official text, of the overall configuration of the UK constitution. Its opening paragraph states:
‘The UK is a Parliamentary democracy which has a constitutional sovereign as Head of State; a sovereign Parliament, which is supreme to all other government institutions, consisting of the Sovereign, the House of Commons and the House of Lords; an Executive drawn from and accountable to Parliament; and an independent judiciary.’
The manual makes no mention at this point of the role of referendums
In our consideration of the draft manual, we called for some clarification of the role of referendums in the final text, that was not provided, though we did not anticipate the scale of disruption that has come about following the 2016 European referendum - or that such exercises in direct democracy might override the fundamental principles set out in this paragraph. It does not suggest that the monarch, Parliament and courts might be required to facilitate the objectives of an executive claiming to be the vehicle for such a supposedly irresistible expression of popular will. Indeed, the word ‘referendum’ does not occur until page 37 of the manual. It is used a total of six times in the text, once in a footnote relating to suspensions of collective responsibility
None of these applications of the term suggest that referendums could take on an overweening constitutional significance. Yet from the time of the public vote of June 2016 onwards, the UK government – including within it politicians who were ministers at the time the Cabinet Manual was issued in 2011 – maintained that a referendum had indeed upended arrangements as presented in its opening paragraph.20 Nor does the Cabinet Manual touch on the difficulty of reconciling plebiscitary democracy with representative democracy with which Parliament has wrestled for nearly three-and-a-half years. On the basis of this premise, the executive has for more than three years exhibited patterns of behaviour that are troubling and ominous regarding the sustainability of constitutional norms and standards of behaviour in the UK….
The law plays an important part in the maintenance of constitutional norms, as we discuss later in this report. But many of the most fundamental ethical and operational rules applying to the executive do not have full legal force, taking the form of conventions. These types of rules can be amorphous in nature. They rest on precedent, usage and interpretation, and can come into being, change, and disappear without any specific player within the political system intending them to. Conventions rely on those involved in their operation recognising and choosing to abide by them. They may not be written down in any official document; and disagreements may arise about whether they exist at all, their precise nature, and how they apply in a specific case. Increasingly, however, the executive has taken to publishing descriptions of some of the most important conventions to which it is subject. The accounts contained in these texts should not necessarily be regarded as the final word, and may be disputed. But between them they take us as close as is presently possible to a formal account of a number of key features of the UK constitution….
We do not claim that the UK constitution is on the brink of unravelling. A more likely pessimistic scenario is a gradual fraying by stages. This outcome is particularly anxiety-inducing, since it would be hard to recognise and could be more readily accepted as normal. Already, a generation whose conscious experience of politics began mid-way through the present decade may regard ongoing turbulence, a lack of clear principles and flagrant challenges to the system as standard features of politics. This perception is liable to exploitation by those who wish to circumvent the rules, or change them for malign purposes. Even if, over coming months and years, the present difficulties appear to subside, it would be a mistake to assume that there was no threat. We should remember this experience.
Further Reading
Constitution and Governance in the UK (the UK in a changing Europe 2022)
Role and status of PM Office (House of Commons 2021)
Beyond Brexit – toward a British Constitution Vernan Bogdanor 2019
Codes of the Constitution Andrew Blick 2016
UPDATE
Just arrived - an important report
