Cummings and the constitution: continuity or change?

Alex Walker
By: Alex Walker

Dominic Cummings’ departure from No. 10 has been widely been framed as a ‘reset’ moment for the government. But will it reset the government’s approach to the constitution?

It seems that Downing Street is keen, at least on some level, to encourage the impression of a general reboot – with briefings that control of special advisers will be handed back to ministers and meetings between disgruntled backbench groups and the PM already taking place. These indications of a new management style aside, it remains to be seen to what extent the absence of Cummings will mean a change in policy. This includes the government’s various constitutional reform plans. As emblematic of a destructive disposition towards the UK’s constitutional arrangements as Cummings became, it would perhaps be a mistake to expect a significant change of course.

In some instances, processes of change are already in motion. The Independent Review of Administrative Law, which came off the back of the 2019 manifesto promise that judicial review should ‘not be abused to conduct politics by another means,’ is due to report by the end of the year. Furthermore, in a recent appearance before the Joint Committee on Human Rights, the Lord Chancellor, Robert Buckland, reaffirmed the government’s commitment to ‘updating’ the Human Rights Act 1998.

Buckland was also asked about reports that plans were being drawn up to reform the Supreme Court. Whilst refusing to be drawn on the specifics, he said that it would be entirely appropriate for the government to review the 2005 legislation that established the court, in line with its commitment to ‘look carefully at all aspects of our constitution.’

The fear from some quarters is that these various reviews are a means of clipping the judiciary’s wings in response to their perceived obstructionism over Brexit. Buckland was keen to try and allay concerns of any ‘attack’. This is the kind of pitched institutional battle that Cummings might have been keen for the government to fight. Nevertheless, Brexit-related animosity towards the judiciary is not uncommon amongst Conservative MPs or ministers. Whilst we may see fewer hostile briefings, the review process is underway and given this sentiment it would be difficult now to do nothing.

Civil service reform has long been seen as a flagship Cummings concern. Again, it seems that the ball is in motion on certain changes, such as moving more civil servants out of London. However, more substantial plans were not in the end forthcoming. The onus for pursuing civil service reform is on Minister for the Cabinet Office, Michael Gove. Gove addressed the topic in his July Ditchley Lecture, stressing the need for greater diversity of skills, better use of data and less London-centrism. His points echoed many of those made by Cummings, but minus much of the vitriol. If Gove returns to the issue, this less aggressive approach may prove more successful.

For now, it seems that Gove’s focus is on the looming end of the Brexit transition and fears over the future of the union. The government’s heightened concern on this second front reflects the majority for Scottish independence now indicated consistently by opinion polls. The latest effort to preserve the UK comes in the form of a ‘union task force’ made up of Conservative MPs from the different nations tasked with making the case for the union. It has been suggested that this renewed focus on the union reflects the sacking of the PM’s chief aide. However, these fears have been growing in government for some time and several iterations of this idea have been floated over the last year. Furthermore, Johnson’s comments on Monday that ‘devolution had been a disaster’ highlight that the absence of Cummings does not necessarily mean an end to incendiary or unhelpful statements from the PM. 

Cummings was only an adviser and, as the above indicates, it may be too hasty to assume a change in the government’s constitutional plans purely on the basis of his departure. Nonetheless, it easy to see why it might be tempting to anticipate a change in attitude towards the constitution, in particular the conventions and standards that are an integral aspect of the UK’s uncodified system. Cummings and his Vote Leave acolytes prided themselves on breaking with established norms and exploiting loopholes to achieve their ends. The attempt to prorogue parliament in 2019 is often seen as emblematic of this approach; likewise, the often-underhand tactics deployed during the subsequent election campaign. Their indiscriminate disdain towards traditional institutions and constitutional norms ended up alienating many Conservative MPs and grandees, many of whom have been relieved by the sackings. With two key Vote Leave figures now gone – Cummings and Lee Cain, former director of communications – a more consensual, conventional approach might be expected.

This is certainly not impossible, and many in the Conservative Party will likely be hoping as much. But it should not obscure the fact that transgressions of accepted standards and conventions have been widespread in the present administration. This was a theme addressed by the Chair of the Committee on Standards in Public Life, Lord Evans, in his recent Hugh Kay lecture. In particular, Lord Evans mentioned the outcome of the investigation into alleged bullying by the Home Secretary, Priti Patel, which at this point was yet to be made public or commented on by the Prime Minister. After a lengthy delay, the conclusion of the report – that Patel’s behaviour breached the standards set out in the ministerial code – has now been made public. Despite this, the Prime Minister has stood by the Home Secretary. In doing so, he has disputed the findings of his independent adviser on ministerial standards, Sir Alex Allan, resulting in his resignation.

Coming exactly a week after Cummings’ departure, the willingness of the Prime Minister to retain the Home Secretary contrary to convention in such instances is a strong indication that the attitude of the leadership towards constitutional standards remains much the same. Other examples raised in Lords Evans’ speech include the increased politicisation of the independent public appointments process and the lack of responsibility taken by ministers for recent major blunders. Cummings may have helped create this culture of disregard towards unenforceable constitutional principles, but many others in government have participated in and benefited from it. It is doubtful that we’ve seen the end of this way of thinking.

Underpinning much of this is a mindset which sees barriers to executive action as an illegitimate hinderance. It is evident that this was a view shared and promoted by the PM’s chief aide. However, although Cummings was no doubt influential across government – arguably far too much so – this particular perception of political legitimacy to a certain extent preceded him, and seems unlikely to be entirely uprooted with his exit. As long as this view remains prevalent, the government’s constitutional trajectory will likely stay broadly the same.