Chapter 2: The centre of government
The role of the Prime Minister
12.Witnesses emphasised the primacy of the Prime Minister in safeguarding the constitution.8 The UK Government told us 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.”9 This was echoed by Lord Sedwill, former Cabinet Secretary and National Security Adviser, who said that “the Prime Minister, as the First Minister to the sovereign, bears the fundamental responsibility” for most constitutional matters.10 Alex Thomas, Programme Director at the Institute for Government, agreed, saying that it “is hard to think about these [constitutional] questions without always circling back to the responsibilities of the Prime Minister, as the prime mover in the Government”.11 He suggested that responsibility for the constitution is an “elevated” responsibility.12
13.The Rt Hon Pat McFadden MP, Chancellor of the Duchy of Lancaster, noted that “[c]onstitutionally, the Prime Minister has a lot of responsibilities, but in the real world a Prime Minister … is a very busy person”.13 Therefore, in their responsibility for constitutional safeguarding, the Prime Minister needs to be closely supported by advice from the Cabinet Secretary, the Law Officers, and a range of other ministers across the Government.14
14.The Prime Minister holds ultimate responsibility within government for safeguarding the constitution. They are supported in discharging that role by close advisers, including, for example, the Cabinet Secretary, the Law Officers and the Lord Chancellor.
The role of the Cabinet Secretary
15.The Cabinet Secretary is the most senior policy official to the Prime Minister. Lord Sedwill told us that the Cabinet Secretary has a “pivotal role” in constitutional stewardship, particularly in times of stress.15 Mr Thomas argued that the Cabinet Secretary’s role when it comes to constitutional safeguarding is particularly important because of their proximity to the centre of government and the Prime Minister.16 Advice and expertise from across the civil service should be brought together by the Cabinet Secretary, a source of constitutional authority, and given to the Prime Minister.17
16.In particular, the Cabinet Secretary plays a key role in identifying issues of constitutional concern, bringing them to the attention of the Prime Minister and then providing advice on how they ought to be handled.18 Lord Sedwill described his previous role in this regard: when an issue “has significant potential constitutional implications … the Cabinet Secretary is one of the crucial voices in working through how to deal with it.”19 He said this included advising the Prime Minister on constitutional convention, and the relationship between different conventions. Whilst the Cabinet Secretary can advise, the ultimate decision on whether to proceed with a particular course of action, on most occasions, lies with the Prime Minister, assuming no question of legality arises.20 Nonetheless, the Rt Hon Michael Gove, former Secretary of State and Minister for Intergovernmental Relations said that the ability of the Cabinet Secretary to constrain actions which they believe are unconstitutional from happening is “pretty significant”.21
17.Witnesses gave the example of Lord Sedwill and Helen MacNamara, as Cabinet Secretary and Deputy Cabinet Secretary, advising Boris Johnson in 2019 that, despite not wanting to, he must comply with the provisions of the European Union (Withdrawal) (No. 2) Act 2019 (known as the Benn-Burt Act) requiring him to formally seek an extension to the UK’s membership of the EU.22 Their advice was that not doing so would be both unconstitutional and unlawful, and this was ultimately complied with.23
18.The Cabinet Secretary is supported in providing constitutional advice by the civil service and, in particular, by the Propriety and Constitution Group in the Cabinet Office, discussed further below. Lord Sedwill spoke about how he would also engage with individuals outside of government, such as constitutional historians, for guidance on tricky issues. For example, in 2020, when Boris Johnson went into intensive care, he considered what the implications would be of the Prime Minister’s death in office: “I talked to various constitutional historians about what had happened under Bonar Law, when Churchill had his stroke, Macmillan’s illness in 1963, et cetera.”24
19.Despite us hearing from witnesses how constitutional safeguarding is a key part of the Cabinet Secretary role, we note that this was not explicitly included in the job description as part of the recent recruitment for a new Cabinet Secretary.25
20.The Cabinet Secretary plays a significant role in supporting the Prime Minister in their responsibility for safeguarding the constitution. In doing so, they act as the focal point for civil service advice around the constitution. This role, given its significance, requires appropriate official support and should be set out as part of the Cabinet Secretary’s official responsibilities.
An impartial and expert civil service
21.The civil service, in particular the Propriety and Constitution Group in the Cabinet Office, plays an important role in supporting the Cabinet Secretary and ministers in exercising their constitutional responsibilities. The Propriety and Constitution Group provides advice to ministers, special advisers and civil servants on the constitution, devolution, standards and propriety, and the relationship with the monarchy.26 This directorate is comprised of several teams, including a propriety and ethics team, a core constitutional policy team, and a devolution team. Lord Sedwill called this group the “gearbox” of advice, whilst not necessarily being the source of it.27 The teams draw on their own expertise, from that elsewhere in the civil service, such as from legal advisers, and externally, and use this to pull together advice for ministers or the Cabinet Secretary on constitutional matters.28 Lord Sedwill further explained that these teams are similar to others in the civil service, in that there is a degree of churn, with civil servants fairly regularly moving between teams and building up expertise on the job.29 As Mr Thomas said, “officials move around and come and go”.30
22.Components of this directorate have, particularly in recent years, moved between departments. Originally in the Cabinet Office, officials responsible for devolution and elections policy moved to the Department for Levelling-Up, Housing and Communities (DLUHC) in 2021. This was when Michael Gove became Secretary of State for that department and was given the new role of Minister for Intergovernmental Relations, previously having held the role of Chancellor of the Duchy of Lancaster.31 That team moved back to the Cabinet Office over the summer of 2022, before returning to DLUHC in October 2022 when Michael Gove once again became the Secretary of State.32 This team has now, under the new government, returned to the Cabinet Office.33
23.Mr Thomas argued that the Government’s constitutional function should ideally sit close to the centre of government.34 This was both “because constitutional issues are of fundamental import to the way government works” and because of the relative ease of providing direction from the centre rather than from another department. He also suggested that this should be a permanent function embedded in the Cabinet Office to allow for expertise to be built up into a “centre of excellence”.35 Nonetheless, this function should not replicate the policy work done elsewhere across government, such as elections policy which is owned by the Ministry for Housing, Communities and Local Government.36 Instead, it should “make the links and have the sufficient expertise and knowledge about the constitutional aspects of those things so that you can, in effect, join the dots in terms of how government policy is being developed”.37 Professor Jim D Gallagher CB FRSE agreed that responsibility for the constitution should be at the centre of government, both to enable strategic management and to ensure a UK-wide focus, which would be much more difficult in a department with policy responsibility primarily for England.38
24.We recommend that the Propriety and Constitution Group remains as a permanent function in the Cabinet Office to enable expertise to be built up with minimal disruption. To help protect against the potential impact of future machinery of government changes, we recommend that constitutional precedent should be consistently recorded within government by the civil service to strengthen institutional memory and improve the quality of advice to ministers and the Cabinet Secretary around these issues. This would enable the Propriety and Constitution Group to become a centre of excellence on constitutional matters, able to support the Cabinet Secretary more effectively.
8 Q 2 (Alex Thomas), Q 90 (Lord Sedwill), written evidence from Prof Jim Gallagher (EOS0004), the UK Government (EOS0002), and Prof Robert Hazell (EOS0001)
14 Ibid.
17 Ibid.
22 Written evidence from Alex Thomas (EOS0006), Q 71 (Rt Hon Michael Gove) – both citing Out: How Brexit Got Done and Four Prime Ministers Were Undone by Tim Shipman.
23 Ibid.
25 Civil Service Jobs, Cabinet Secretary and Head of the Civil Service Job Advert (October 2023)
28 Ibid.
29 Ibid.
32 Ibid.
34 QQ 13, 17 and 28 (Alex Thomas)
35 Ibid.
37 Ibid.