NEW INITIATIVE: United Kingdom Constitution Monitoring Group

Andrew Blick
By: Andrew Blick

The Constitution Society is supporting a new initiative: the United Kingdom Constitution Monitoring Group (UKCMG). The UKCMG was formed in 2020 in the light of sustained controversies surrounding arrangements for the governance of the UK. Its principal purpose is to assess developments – actual and anticipated – in the UK constitution. Comprised of a group of distinguished experts and practitioners, it will evaluate proposals and initiatives through considering the analysis in which they are grounded, and how far they are likely to deliver the objectives claimed for them. It will also identify and assess trends and events that are significant from a constitutional standpoint. The Group is impartial in its work and has no party affiliation.

The UKCMG currently has nine members, with expertise and experience ranging across different aspects of the UK constitution. The members, as it stands, are: Professor Linda Colley; Lord Thomas of Cwmgiedd; Professor Michael Kenny; Professor Katy Hayward; Sir Thomas Legg; Sir Richard Mottram; Dr Hugh Rawlings; Professor Petra Schleiter; and Professor Alison Young. More information on the membership can be found here. The UKCMG’s areas of interest include – but are not confined to – government accountability; arrangements for the upholding of the rule of law and individual rights; the territorial governance of the UK; and how the key aspects of such issues can be distilled and communicated to the public.

So far, the UKCMG has submitted written evidence to the Public Administration and Constitutional Affairs Committee’s inquiry into the Government’s Constitution, Democracy and Rights Commission; and the Common Frameworks Scrutiny Committee’s inquiry into Post-Brexit common frameworks, both of which can be read online

In addition to this, in the absence of a codified constitution for the UK, the UKCMG has identified a set of general and desirable guiding principles to form a basis for its work. They express what the Group believes to be core values underpinning the proper operation of the UK system of governance. This statement of principles is reproduced in full below.

The list currently consists of 20 items – but is neither exhaustive nor final. It is potentially subject to subsequent refinement, expansion, or addition. Where appropriate, the texts of laws and official documents in the public domain have been drawn on directly (using italics). In other instances, the Group’s own words have been used (unitalicised). Sources are indicated. These principles can be applied in a variety of different ways. Some of them could legitimately change; but the UKCMG believes that any such alterations should take place in a considered fashion and as far possible on a basis of consensus, in accordance with item 20 on the list. As a whole they are intended to provide reference points against which to assess key developments significant to the UK constitution, and thereby form a foundation for the future work of the UKCMG.

The Constitution Society will be providing research and administrative support to the UKCMG. Updates on the activities of the Group will be published on The Constitution Society website. We look forward to sharing further work from this initiative in due course.

Statement of Principles

Governments and their accountability to legislatures

1. The UK is a representative democracy. The existence of devolved and UK governments is derived from the broad support of the respective legislatures [see e.g.: Cabinet Manual, 2011, paragraph 2]. The UK House of Commons and the devolved legislatures in turn derive legitimacy from the free and fair election of their members held at intervals of no more (except in the most exceptional of circumstances) than four or five years.

2. Ministers are accountable, individually or collectively, to their legislatures for the exercise of their Ministerial responsibilities, and for the activities of the publicly-funded bodies within their remits. (see e.g.: Ministerial Code, 2019, paragraph 1.3b). Ministers must provide information that is both accurate and truthful to their respective legislatures, and should correct unintended errors they make as soon as possible (see e.g.: Ministerial Code, paragraph 1.3c). Devolved and UK ministers should be as open as they can in their interactions with legislatures and the public. They should withhold information only if to do otherwise would compromise the public interest, as set out in the Freedom of Information Act 2000 and other specific legislation (see e.g.: Ministerial Code, 1.3d).

3. Governments should not use their powers to compromise the ability of legislatures autonomously to perform the constitutional functions they carry out on behalf of the public, such as holding the executive to account and making law.

4. At UK level, the House of Commons is rightly acknowledged as in a position of primacy over the House of Lords. But the House of Lords has a legitimate role in parliamentary processes, including scrutiny of primary and delegated legislation, and its special interest and expertise in constitutional matters should be acknowledged.

5. Civil servants are accountable to ministers, who in turn are accountable to Parliament [Civil Service Code, 2015]. There are limited exceptions to this general principle, including the role of Accounting Officers, who at UK level are personally responsible to the House of Commons Committee of Public Accounts for keeping proper accounts; for the avoidance of waste and extravagance; and for the efficient and effective use of resources [Ministerial Code, paragraph 5.3].

Legal powers and obligations of ministers

6. Ministers are under an overarching duty to comply with the law, including international law and treaty obligations, uphold the administration of justice and protect the integrity of public life. They are expected to observe the Seven Principles of Public Life: selflessness, integrity, objectivity, accountability, openness, honesty and leadership (Cabinet Manual, paragraph 3.46. See appendix).

7. Ministers’ powers are derived from legislation; UK Ministers may also exercise powers derived from the common law, including prerogative powers of the Crown. Ministerial powers should normally be specified in primary rather than secondary legislation. Such powers are subject to limits and constraints; they should be exercised, and public expenditure approved, only for the purposes authorised by the relevant legislation, and in accordance with established norms and reasonable expectations. The exercise of Ministerial powers should only exceptionally be immune from challenge in the courts (see e.g.: Cabinet Manual, 2011, paragraph 3.24).

8. [UK] Ministers must ensure that no conflict arises, or could reasonably be perceived to arise, between their public duties and their private interests, financial or otherwise (Ministerial Code paragraph 7.1). Ministers must not use government resources for Party political purposes (Ministerial Code, 2019, paragraph 1.3i) These principles extend to devolved ministers also, and all holders of public office.

Civil Service

9. Civil servants, with the exceptions of “special advisers” and certain others, must be recruited on merit on the basis of fair and open competition. They should be promoted on merit usually following a competitive process. They must be required to carry out their duties with integrity and honesty, and objectivity and impartiality. They must serve the government to the best of their ability in a way which maintains political impartiality, and act in a way that deserves and retains the confidence of ministers in the government of the day, while ensuring they will be able to establish the same relationship with those they may be required to serve in a future government. (see: Constitutional Reform and Governance Act 2010, Part 1 for the UK, Scottish and Welsh governments; Civil Service Codes; and similar provisions for the Northern Ireland Civil Service).

10. [UK] Ministers must uphold the political impartiality of the Civil Service, and not ask civil servants to act in any way which would conflict with the Civil Service Code and the requirements of the Constitutional Reform and Governance Act 2010. [Ministerial Code, paragraph 5.1j]. [UK] Ministers have a duty to give fair consideration and due weight to informed and impartial advice from civil servants, as well as to other considerations and advice in reaching policy decisions, and should have regard to the Principles of Scientific Advice to Government [Ministerial Code, paragraph 5.2] These principles should extend to devolved ministers also.

11. ‘Special advisers’ to Ministers are temporary civil servants who are not required to be recruited on merit through competition or to carry out their duties with objectivity and impartiality. They are an accepted part of government but should act in accordance with prescribed limitations (see: Constitutional reform and Governance Act 2010, part 1; Special Advisers Codes, and similar provisions in Northern Ireland).

Devolution and the Union

12. The devolved institutions of Wales and Scotland are ‘permanent’ parts of the United Kingdom constitution (see: Scotland Act 2016, section 1; Wales Act 2017 section 1). The devolved institutions of Northern Ireland are also constitutional fixtures; subject to the proviso that Northern Ireland can, after approval via a referendum, leave the UK (once the UK Parliament has legislated to this effect) and join the Republic of Ireland. The UK government has previously conceded the principle that Scotland could become independent from the UK subject to a referendum.

13. In those spheres of operation which have been devolved in Wales, Scotland and Northern Ireland, or those devolved in Scotland and Northern Ireland but not in Wales, responsibility for those functions in relation to England or England and Wales are exercised by ‘UK government’ Ministers answerable to the UK Parliament.

14. The devolved institutions have the right to legislative and executive autonomy in their respective spheres of operation. [T]he UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. [Memorandum of Understanding, 2013, paragraph 14] The devolved institutions have a proper interest in decisions taken at UK level that impact upon them, and over international agreements entered into by the UK when their implementation would fall within devolved competence.

15. Appropriate structures, regulations and practices should exist to ensure that the principles set out in items 12 and 14 above are fully realised. They should allow in particular for liaison, coordination and genuine co-decision-making between devolved and UK executives; and between devolved and UK legislatures.

The judiciary and the rule of law

16. The judiciary interprets and applies the law in its decisions. It is a long-established constitutional principle that the judiciary is independent of both the government of the day and Parliament so as to ensure the even-handed administration of justice. Civil servants, ministers and, in particular, the Lord Chancellor are under a duty to uphold the continued independence of the judiciary, and must not seek to influence particular judicial decisions. (Cabinet Manual, paragraph 16. See also: Constitutional Reform Act 2005 part 2)

17. The courts scrutinise the manner in which [UK ministers’] powers are exercised. The main route is through the mechanism of judicial review, which enables the actions of a minister to be challenged on the basis that he or she did not have the power to act in such a way (including on human rights grounds); that the action was unreasonable; or that the power was exercised in a procedurally unfair way (Cabinet Manual, paragraph 3.39).

18. The activities described in 16 and 17 must be recognised as central to the maintenance of the rule of law. All institutions and office holders dealt with in these principles are required to promote the rule of law. It encompasses concepts including the law being clear and possible to know; access to the law; equality before the law; governors and governed alike being subject to the law; impartiality in the application of the law; adherence to international law; and the protection of human rights.

Constitutional monarchy

19. The monarchy should not be drawn into party political controversy. The powers formally attached to the monarchy should not be deployed in ways that undermine the principles outlined in this text.

Nature of UK constitution, and constitutional change

20. It is essential that the constitutional arrangements of the UK are clear and knowable; that they should be, wherever possible, subject to robust and impartial enforcement; and that they should as far as possible command consensus. Constitutional change should take place in a considered fashion and as far as possible on a basis of consensus. The legislative authority of the UK Parliament should be exercised subject to underlying constitutional principles including those outlined in this text.

Appendix: The Seven Principles of Public Life (1995)

‘1.1 Selflessness

Holders of public office should act solely in terms of the public interest.

1.2 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, or their friends. They must declare and resolve any interests and relationships.

1.3 Objectivity

Holders of public office must act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias.

1.4 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.

1.5 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.

1.6 Honesty

Holders of public office should be truthful.

1.7 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.’