Like here in Aotearoa, the uncodified nature of the United Kingdom constitution offers great flexibility — but it relies heavily on the executive to respect its conventions. Perhaps some lessons for home.
It is said that the flexibility of the UK’s uncodified constitution is a great strength. While certainly true, our constitution can also be vulnerable to challenge.
We have seen it come under stress over recent years, most famously with the unlawful prorogation of parliament in 2019 — but also more subtly through the increased prominence of delegated powers that have shifted away from parliament to the executive.
The House of Lords constitution committee has been exploring how the executive protects the constitution and this week in a report it argued for stronger safeguards.
The prime minister is responsible for the government’s adherence to the constitution, but politicians in that role are extremely busy. The cabinet secretary, ministers (including the lord chancellor), the law officers and the civil service, all play a role in supporting them. In our view, this support should be led by a respected senior minister, and whose advice on constitutional matters they cannot lightly disregard.
The law officers — the attorney-general, solicitor-general and advocate-general for Scotland — are legal professionals. They, particularly the attorney-general, are the authoritative voice on legal matters in government, so they must place their duty to the rule of law above party political considerations. We urge the government to update their oath to reflect the primacy of this duty.
Nonetheless, a government action can be lawful while still being unconstitutional because much of our constitution relies on convention that is not enforceable by the courts. The sanctions for not abiding by convention are political in nature, playing out in parliament or through the ballot box.
The prime minister can, so long as it is legal, choose to ignore or violate a constitutional convention. This makes their personal respect for the constitution, and the advice they receive, not just on rule of law matters, particularly important to protect the constitution.
The cabinet secretary, the UK’s most senior civil servant, acts as a key constitutional adviser, and that role is itself supported by the civil service. In the recent recruitment for Simon Case’s replacement, we were surprised that this significant responsibility was not included in the job description. It should form part of the cabinet secretary’s official responsibilities and we urge the government to enact this now at the beginning of the new cabinet secretary’s tenure.
Nevertheless, guidance from individuals such as the cabinet secretary, however authoritative, is simply advisory, and responsibility lies with the prime minister. This, along with its flexibility, can leave the constitution open to neglect, or even abuse.
We urge the government to accept in full our report’s recommendations for strengthening safeguards within the executive, making it more effective at protecting our constitution, especially during difficult times.
First written by Jeannie Drake Thursday January 30 2025, 12.01am GMT, The Times