17
Examination of witness
Lord Sedwill.
Q1 The Chair: Welcome to this meeting of the House of Lords Constitution Committee. Today, we are holding the first evidence session of the committee’s new inquiry, which will look at the UK’s constitutional safeguards. We are delighted to be joined by Lord Sedwill, who is a former Cabinet Secretary, head of the Civil Service and National Security Adviser. Lord Sedwill, welcome back to the committee. You are very welcome. I remind all members to declare any interests relevant to this inquiry or today’s meeting the first time they speak. I have no relevant interests of my own to declare.
We have not actually launched our inquiry. We are slightly toying with exactly which direction it will go in and what we will look at. We started off thinking about the threats to the constitution; we may well come back to those. We are also thinking about who carries responsibility for advising and knowledge; where they get that knowledge from; the people who best support our idea of a constitutional Government; and how it all hangs together. In essence, that is what we are looking at. On that theme—we will get right into it—who would you identify as the principal constitutional guardians, as some might call them, in the UK’s political system?
Lord Sedwill: It is very good to be here. As a Member of the Lords, for the record, I have no relevant interests to declare; mine are all on the register, as are yours, and I have nothing relevant to this inquiry.
An interesting question that we might come to on guardians is, “Who guards the guardians?”—the “Quis custodiet ipsos custodes?” question. There are guardians distributed across the legislature, the Executive and the judiciary of our rather complex constitution, which is sometimes described inaccurately as “unwritten”. It is not so, of course; it is not written in a document called The Constitution, but it is written in all sorts of places. There are constitutional conventions, some of which have been encapsulated in writing but are not always clear. The job of constitutional guardians and interpreters—this was certainly the case when I was Cabinet Secretary—is to interpret different conventions and components of the constitution, how they overlap, whether they are in tension and what that might mean for a decision. I can give a couple of examples of that.
It is important to note that, to the extent that we have guardians, they are distributed across all three branches of government. Within the legislature, there are committees, but one would think in particular of Mr Speaker having a particularly important role in the governance of the House of Commons. Within the judiciary, as we discovered through various cases—one of which Lord Burnett was involved in when he was Lord Chief Justice—we have the judiciary itself and, ultimately, the Supreme Court, which will make judgments on matters of both constitutional law and constitutional convention should they come to a point of tension.
Within the Executive, it is important to remember that the Prime Minister bears the primary responsibility for the good conduct of the constitutional conventions, advised by the Cabinet Secretary. Obviously, there is the sovereign and the so-called golden triangle, which enables that relationship between the Head of State and the Head of Government. In essence, the Cabinet Secretary is at the heart of it but the sovereign, the Prime Minister and their principal private secretaries are another element of the Executive. Finally, bridging the two are the Attorney-General and the law officers.
The Chair: When you were thinking about some great constitutional issue on which you needed to advise the Prime Minister or the Palace, where were you getting your material and more informal knowledge from?
Lord Sedwill: I covered some of this in the last hearing but it was from two sources. One was in the Civil Service; it was the responsible team in the Cabinet Office, which also tends to deal with other issues such as propriety, ethics and so on. In that classic way, it was from civil servants in the system. When I was dealing with some knottier questions—related to the Fixed-term Parliaments Act 2011 and so on—I would call in genuine constitutional experts, in particular historians, such as Lord Hennessy and Vernon Bogdanor, and constitutional lawyers. I also had extensive conversations with the Attorney-General and other law officers of the day.
Q2 Lord Murphy of Torfaen: I come to your former role as Cabinet Secretary. What do you think the role of the Cabinet Secretary himself or herself is in safeguarding the constitution, particularly when rather complex and novel constitutional issues might arise, as they have done?
Lord Sedwill: Fundamentally, it boils down to advising the Prime Minister on the correct decision within the constitutional conventions. Obviously, a tension arises when the issue is the Prime Minister’s own decisions in policy areas, but, fundamentally, the role of the Cabinet Secretary is to advise the Prime Minister, who is, of course, the principal adviser on constitutional matters to the Sovereign within our conventions.
As I say, tensions can arise there. The Cabinet Secretary then has a particular role to play, where, in essence, one has to advise both the Head of Government and the Head of State and try to maintain integrity in doing so. Our entire settlement of the role of the Civil Service is that we do not have a separate constitutional legal personality from Ministers. We advise Ministers—in this case, the Prime Minister. There is then the question of what happens if that advice on a constitutional matter is not followed.
The Chair: There are issues that can be confusing and difficult to work out. For instance, I am thinking, off the top of my head, of where a Prime Minister wants to have an election fairly early on in their term of office. What advice would you give to the Palace on whether you thought that was feasible? This is genuinely hypothetical, but it is a good hypothetical.
Lord Sedwill: One would rest on the Lascelles principles in the famous Senex letter from 1950, which said, in essence, that only in exceptional circumstances would the Sovereign not grant a Dissolution to a Prime Minister who has sought one. This was somewhat different under the Fixed-term Parliaments Act 2011; we can talk about that if you wish. That has now been repealed, so we have restored to the previous position. In that letter, two of those principles still apply; the third was, in essence, if it would damage the national economy, which any Sovereign would regard as a fundamentally political decision rather than one for them.
The other two principles were, first, if the Sovereign concluded that an alternative Government could be formed with a working majority that would command the confidence of the House of Commons at that time. Therefore, in effect, the Prime Minister would be seeking a personal Dissolution, almost, as opposed to a governmental Dissolution. One can imagine that being particularly pertinent under minority Governments. The other factor is, in essence, if there had only just been a Dissolution or an election. Some of this does not come down to hard and fast principles.
We are currently two years into a Parliament; we were two years into one in 2017 and 2019, when the issue of governmental transition and the question of whether there might be an early election arose. It is very much a matter of judgement. My expectation is that only in exceptional circumstances would the Sovereign apply that reserve power to deny the request of a Prime Minister to dissolve.
Lord Murphy of Torfaen: You touched on this in your introductory remarks when you said, interestingly, that you may well call on the services of constitutional experts and historians; you named two very distinguished individuals. Was that something that really appealed to you or that, in your experience, other former Cabinet Secretaries might do?
Lord Sedwill: Other former Cabinet Secretaries would also be part of the group with which one might speak in those circumstances, of course. To take the example of my successor as Cabinet Secretary, he was taught by one of the two people I mentioned. I imagine that he would have readily sought his advice were he to face that kind of challenge.
The way that conversation tends to go, though—I can give an example if that would be helpful—is that one reasons it through partly from one’s own knowledge. Someone with a diplomatic background who spends their life dealing with this kind of issue does not end up as Cabinet Secretary without having a reasonably good appreciation of the constitutional principles. One puts the dilemma to them then says, “Here’s what I’m thinking. Here’s how I’m thinking my way through it. Am I getting it wrong? Are there options I haven’t thought of?” One is not just throwing it open and having a seminar; one is making a proposition then seeking challenge and insight on that.
I give the example—it relates to the period of the Fixed-term Parliaments Act 2011, although that was not particularly pertinent in the case—of the 2019 transition from Theresa May to Boris Johnson. It was a minority Government supported in a confidence-and-supply arrangement by the Democratic Unionist Party. Given the fractures in the Conservative Government and the Conservative Party at the time, it was not clear that the incoming Prime Minister would necessarily command the confidence of the House of Commons. He was right on a knife-edge, in any event, with a minority Government, and there were certainly some who said that they might not support him in a matter of confidence. It was unlike other transitions—the 2007 one being an obvious example, but also the 2016 one—where there was a clear majority, it was clear that the party would rally behind whoever had been elected and so the Prime Minister would be able to command confidence.
The issue then was whether that transition should take place—as the current transition is about to take place—after the parliamentary Recess. My advice to the outgoing Prime Minister was that they should conclude the leadership election and select the new leader of the Conservative Party—and thus the next Prime Minister—before the Recess so that, if Parliament chose to test the confidence in the new Prime Minister under a minority Government, it would have an opportunity to do so. I felt that this mattered because, otherwise, the new Prime Minister would have been appointed by the late Queen and been in place for six weeks to two months before Parliament had the chance to do that. If they then lost a vote of confidence immediately, they would go into the election with all the prestige and panoply of being the sitting Prime Minister and would have, in effect, drawn the Sovereign into a potentially politically biased decision.
I felt that the two constitutional principles of commanding the confidence of the House of Commons and the strict neutrality of the Sovereign were colliding. There was only one way to resolve it: to create an opportunity for Parliament to have its say while still sitting. There was no direct precedent for that; I could not find one. I had exactly this conversation with constitutional experts and said, “This is what I’m thinking. This is the advice I'm planning to give to the Prime Minister. Does that make sense?” I gave that advice and she accepted it; that is how it played out.
The Chair: I make an observation. You talked a moment ago about it being a question of judgement. That is what we would love to hear more about during the course of our questions: how you get to that judgement, how we encourage Cabinet Secretaries to have good judgement and how we can avoid people with poor judgement getting into your role.
Lord Sedwill: That would apply to a much wider range of roles.
Lord Waldegrave of North Hill: I want to explore this transition. I was a junior person in No. 10 Downing Street in February 1974 when there was another interesting transition; Robert Armstrong has written about what happened. It was relatively straightforward: when the Prime Minister of the day decided that he could not make a deal with Jeremy Thorpe, the leader of the Liberal Party, he stood down, but it was in effect a Cabinet decision.
Hypothetical questions are a bad idea but we should look at this one. The electoral system is quite plausibly going to deliver a situation, after the next election, where there is no clear winner; a variety of groupings could potentially make a majority. It might not be that either the perhaps retiring Prime Minister or the leader of the biggest single party could put together a coalition in the House of Commons that would work—at least, for a time.
Those interesting and rather 18th or early 19th century-like situations will surely mean, potentially, a very large role for that magic triangle of the King’s private secretary, the Cabinet Secretary and the Prime Minister’s private secretary. Do you think that you or your successor should be taking some steps to make rather more formal arrangements in advance? They might not be needed, but they would be easier to explain to the public than saying, “I rang up a couple of my predecessors and the very distinguished historians Peter Hennessy and Vernon Bogdanor”?
Lord Sedwill: Yes. I suggest that it is well worth pursuing this topic in more detail with Gus O’Donnell when he is here, because he faced exactly this in the 2010 election, which has now set the precedent for these circumstances. If one looks back to previous precedent, when the Sovereign tended to play a more active role in such circumstances—in the 19th century but right up to 1931—it is clear that they wanted to avoid that happening, given that, in the 2010 election, although things were not quite as fragmented as in our current political scene, it looked likely that there would be an outcome in which a party did not have a majority. Of course, that is how it turned out.
What Gus O’Donnell did in his conversations beforehand was try to put in place a mechanism to avoid the late Queen being drawn into a fundamentally political matter—and, indeed, for the Civil Service to avoid doing that. The key principle that he was trying to ensure there was a mechanism to deliver was that this was a political matter and, therefore, the politicians had to work their way through it and be provided with the facilities to do so. In that case, the key phase was the negotiations for several days between the Conservatives and the Liberal Democrats, but, of course, there was a parallel negotiation going on between the sitting Prime Minister and the Liberal Democrats.
In the February 1974 election, it was constitutionally correct—although, politically, he took a lot of heat for it—for Edward Heath, knowing that it might be possible to secure a majority that commanded confidence, also to seek to do so with the Liberal Party. Only when he realised that he could not do so did he advise the Queen to send for Harold Wilson, who would also have a minority Government; it would at least give him the chance to test the confidence of the House of Commons, even though he might not be able to secure it, in which case there would have been a further election.
In those circumstances, one would draw on the 2010 mechanisms that Gus O’Donnell put in place, which would facilitate whatever conversations the various party leaders might wish to have but force the conversation into the political space and keep it away from the Civil Service, the Palace and the Cabinet Secretary. The Civil Service was not involved in those conversations, except logistically; they were fundamentally conducted by the politicians, and that has to be right.
Q3 Lord Jones of Penybont: We live in a world of extremes, so I am going to put an extreme scenario to you; I am interested in your view. Obviously, the sovereign has been very careful over the years to make sure that he or she is seen as constitutionally neutral, but I wonder how that might be tested in future. A dominant Executive controlling a compliant Parliament can do whatever they want. They can move forward with legislation or policies within or without their manifesto. You might have a Government decide that judges are going to be appointed directly by the Government for their political views and not because of their ability, undermining the judicial system. A Government might decide to suspend civil liberties, using Parliament to do it. They could even abolish habeas corpus if they wanted to do so, if parliamentary sovereignty is taken to this extreme view.
You mentioned that the monarch takes advice from the Cabinet Secretary—and others, no doubt. What happens in a scenario where you have a Government moving ahead with actions that are outside their manifesto and undermine the constitution? What sort of advice might be given to the monarch to dissolve Parliament in those circumstances, without a request from the Prime Minister? There is a precedent, of course: the Whitlam Government in Australia, where that scenario emerged in 1975. You are not in the role now, so we can speak more freely. If you were faced with that scenario—we have never faced it before in this country, but who knows what will happen in future—what would your advice be?
Lord Sedwill: The first point I should make—do not worry; I am not going to duck the question—is that it is important to record that the Prime Minister is the Sovereign’s First Minister and has a constitutional responsibility to advise the Sovereign and do so in a way that preserves the Sovereign’s neutrality. The Prime Minister takes that seriously. Obviously, in these circumstances, one is thinking about the separate, almost dotted-line channel of communication, where there is a direct channel between the Cabinet Secretary and the Sovereign as Head of State via their private secretary. We have never faced a position—including in my time—where a Cabinet Secretary has had to advise the Head of State versus the Head of Government. Let us hope that it never arises because, fundamentally, in the end, the Cabinet Secretary is primarily responsible to the Prime Minister; one would have to recognise that.
The truth is that the Sovereign could not become directly involved in that. One would be relying on Parliament itself—the House of Lords—because, of course, there are exceptions to the Parliament Act where the House of Commons can override the Lords, such as in the extension of Parliament beyond its normal terms. One would be relying on the checks and balances in the legislative and political system, in the end, as well as on the courts. Anything of this kind would almost certainly be challenged. Unless the legislation had already been repealed with the House of Lords’ consent, the courts would seek to enforce the law and the constitution as it stood.
The truth is that, during times of emergency—the Second World War being the obvious example—we have suspended constitutional protections such as habeas corpus and extended Parliaments beyond their natural term, but that has been done by and with the consent of the political system. In the absence of a supermajority requirement in our system, of the kind in other jurisdictions, to override or change the written constitution, we have the sovereignty of Parliament and what Lord Hailsham referred to as the “elective dictatorship”.
We are, therefore, relying on conventions and the checks and balances in the parliamentary system to constrain the scenario that you set out. It would be a failure of our political system were we to try to reach for the Sovereign to do so. It would also be highly controversial—as it was in the Gough Whitlam case, when the Governor-General did that—for the Sovereign or representative to become involved.
Q4 Lord Beith: In the circumstances we have been thinking about—attempts to get a Dissolution and have an election—in terms of the advice that you would give the Prime Minister, on which they would make their decision about what to advise, would you not be saying, “It would not be helpful to put that question to the sovereign; the consequences of doing so would extend beyond the election that we are talking about and significantly impact the sovereign’s status and position when they act in future”?
Lord Sedwill: Yes; that is exactly how one would express it. One would always want to get the Prime Minister, were they tempted to take some other course, to remember their own constitutional responsibilities—in this case, to maintain the neutrality of the Sovereign. Thus one would exercise that old, Bagehot phrase of the Cabinet Secretary’s right to warn the Prime Minister, “You would be putting the Sovereign in an invidious position were you to pursue this course of action”. Obviously, one’s advice in those circumstances would be not to do so.
Lord Beith: Obviously, it is a three-way conversation between the Prime Minister, yourself and the palace officials who are involved. I remember asking one of the late Queen’s private secretaries, “What happens if the Prime Minister persists at the end of the day?” His reply was, “Our job is not to get to the end of the day”.
Lord Sedwill: That is almost the quote from the famous “Yes, Prime Minister” exchange about making sure that the chips are never down. It is absolutely correct: one never wants to reach the point at which the Sovereign has to exercise one of those very limited—rightly so—reserve powers, but they exist.
One of the most important features of our constitutional conventions—this goes to a point that is often made about having the late Queen, and now the King, as the Head of State—is that it is not about the power they exercise; it is about the power they deny. We do not have an imperial premiership in the way one sometimes sees imperial presidencies in other jurisdictions. That is because the focus of the nation’s loyalty—certainly that of public servants, the military, civilians, et cetera—is to the Crown and the Sovereign under the direction of the elected Government of the day. Those are distinct, though. Having the Sovereign denies abusive power to others, to some extent, but that only works if it is never put to the test.
Lord Bellamy: That is very interesting. One does not want to look at apocalyptic scenarios, but I want to understand what you have been saying. You see yourself as having the dual role of advising the Prime Minister and the monarch. I think I caught you saying that, if push came to shove, your primary duty would be to advise the Prime Minister, rather than the monarch; perhaps I misunderstood what you said.
Lord Sedwill: That is correct. If you look back at the Armstrong Memorandum of the mid-1980s, he is quite clear—it has been clear since—that, as a civil servant, one does not have a legal or constitutional personality that is separate from the elected Government of the day. That is a long-standing part of our system. One is a channel of communication between the two; one might try to manage the communication in the way Lord Beith just expressed it.
There is also a responsibility to the constitution, the Crown and the Head of State. Again, one would always seek to avoid having to exercise separately in a point of tension from advice to the Prime Minister. I do not think that we have ever faced this—to be clear, I did not face it—but I suppose that what one might try to do in those circumstances is share one’s advice to the Prime Minister with the Palace if the Prime Minister were then minded to go to the Palace on a course of action against that advice. On Lord Beith’s remark, one would seek to avoid that situation ever arising.
Lord Bellamy: As I remember and understand it from constitutional law seminars years ago, the Civil Service works for the Crown.
Lord Sedwill: Indeed.
Lord Bellamy: There is this subtle distinction between the Government and the Crown, but I think you are saying that, in your particular role, it would have to be your advice to the Government and the person of the Prime Minister that was the decisive factor.
Lord Sedwill: Yes. To use the example I gave earlier, which was far from any of the more extreme examples, in the end, the Prime Minister could have decided not to accept that advice and say, “I get your point but I don’t want to do that”, for whatever reason. That would have been that, because there was no clear constitutional precedent that it would have breached. It was my judgement and interpretation—supported by all the advice I had—that that was the correct constitutional way to proceed. We were setting a new precedent on the basis of the standing principles, and the Prime Minister chose to accept the advice, but she did not have to do so. It was not an acute enough example that it would have ended up in the courts or crossed the line into the reserve powers of the Sovereign.
The Chair: Lord Bichard is joining us remotely.
Q5 Lord Bichard: Yes, sorry—I am in the bear pit at the moment. I want to take us down a slightly different route. There are those—I probably count myself among them—who think that there has been a significant decline in standards of behaviour, ethics and integrity in both Whitehall and Westminster. They would evidence that claim with a whole series of cases, such as infected blood, the Post Office, Hillsborough, which we heard about yesterday; I could go on. We should always be conscious of the fact that, if the public lose faith in our constitutional democracy, that is a very serious situation for us to be in. First, do you think that standards have declined?
Secondly, if they have, do you think that we have in place strong enough arrangements to protect standards? We have codes and individuals, but are they strong enough to protect against the decline I am talking about? Thirdly, does the Cabinet Secretary have a particular role here? I noticed that the current Cabinet Secretary’s objectives do not include anything about standards or ethics, for example. I noticed that the job description put out when Simon Case was appointed made no reference to these issues in the Cabinet Secretary’s role. Is that right?
Lord Sedwill: That is a complex set of issues; let me unpack them. On the premise of your first point—whether standards have declined—my answer is no. I take your point about Hillsborough, infected blood and so on, but let us not forget that they are long-standing, decades-old scandals that have only been revealed and addressed in the modern era.
I am not going to say that standards have improved; it just seems to me that, because the current scandals being addressed have been revealed over many years, one has to be careful about suggesting that that somehow or other means that modern standards are deficient. Actually, modern standards have forced those issues out into the open with the consent of Parliament, legislation, et cetera. If one thinks back to things such as the cover-ups relating to undercover policing, again, I am not suggesting that nothing like that could happen in the modern era, but the modern era has been the period in which these things have come to light.
There is a greater culture of transparency in modern political culture. Of course, there is legislation seeking to entrench the duty of candour, et cetera, but this modern culture of transparency was not apparent in the same way in the 1970s and 1980s, when I was first becoming politically aware. We also have, not least in the Supreme Court and the judiciary, a very active doctrine around judicial review and public inquiries, which force transparency around these issues.
I do not accept the premise that standards have declined, but that does not mean that your second set of points is not important; it is. It is clearly important that the Cabinet Secretary, as the head of the Civil Service, both exemplifies and enforces the values set out in constitutional law, the Constitutional Reform and Governance Act and the Civil Service Code. Perhaps the reason why some of these things are not explicit is that it is simply taken as read that the Cabinet Secretary, as the head of the Civil Service, must exemplify and enforce the Civil Service Code; all of this is set out in there, along with a range of other issues. Modern public servants hold themselves to a very high standard and are probably held more accountable for that than was the case in the past because there is a culture of transparency.
Lord Bichard: May I add to that? One would take for granted the fact that Cabinet Secretaries are there to improve productivity and ensure effective delivery. Those things are mentioned in the objectives and job descriptions. Ethics and standards are not. I do not want to get into an argument about this, but Hillsborough was not that long ago. We heard yesterday that there was almost a conspiracy to ensure that the true facts of Hillsborough were not brought out into the open.
Lord Sedwill: That is a fair point. It was 40 years ago.
Lord Bichard: We are all getting older.
Lord Sedwill: I was at university when the tragedy happened; of course my successor and the current Cabinet Secretary would have been at school. I went through this question acutely when I was ran the Home Office. We had the child sex abuse scandal come up, and there was the whole question of what happened back in the 1980s and 1990s around the destruction of material and so on. These issues are deeply uncomfortable for the public service because you look back and realise that there were cover-ups, which were sometimes more or less apparent to the public.
There is a strong presumption in the modern era that we are going to be held accountable. That may be immediately because there is a culture of accountability and we have freedom of information, much more aggressive media and an active doctrine of judicial review. We also have parliamentary accountability, of course, which is much more intrusive on civil servants than used to be the case when civil servants could shield behind Ministers.
There are definitely periods in my career when I had wished that that was still true. I was certainly held personally accountable by the Home Affairs Select Committee for what happened when I was running the Home Office. We are very conscious—every civil servant is—that anything really significant will find its way into the public domain or a public inquiry. We have people in the public service who are still as ethically strong—and, in many ways, stronger than they were before. They are also conscious that we are in a period of transparency where they are going to be held accountable either immediately or in retrospect for decisions.
I would have no argument with you, Lord Bichard, about including this issue in the key objectives of the Cabinet Secretary. All I am doing is explaining why it is perhaps an understandable omission. Were this committee to feel that it was important to set that out as a key objective of a Cabinet Secretary of the day—on the point about loyalty to the Crown and the wider constitution, as well as ethics and values—I do not think any Cabinet Secretary would argue with that addition to the job description.
Q6 Baroness Hamwee: In view of the last exchange, for complete transparency, I should mention that I have a Private Member’s Bill on undercover policing; it will have its Second Reading the day after tomorrow. One thing we want to explore is the overall role of certain players in this arena. How much of it is horizon scanning? You have described a lot of extreme examples. What is it like in peacetime—or is there never a peacetime?
Lord Sedwill: Politically, we live in a more turbulent period. As Lord Waldegrave indicated, this is a feature of more fragmented politics than was the case in the past. I would describe it as scenario planning rather than horizon scanning. As we were discussing—I am sure that Lord O’Donnell will be able to talk about this in a much more informed way than I can—in the run-up to the 2010 election, we certainly did horizon scanning or scenario planning around what might happen were there to be an indecisive outcome, including how to handle that and how to ensure that those discussions, as I described, took place in the political arena and did not draw in those who were politically neutral or politically impartial.
I did horizon scanning in the context of the 2017–2019 elections. I had to think very hard about potential scenarios relating to the Fixed-term Parliaments Act 2011 during the Brexit period and the various pieces of legislation that had us leaving on certain dates. I had to consider how those two pieces of legislation might interact, with or without a deal. I had to address the question of what would happen in that two-week standstill period under the Fixed-term Parliaments Act 2011 after the loss of a vote of confidence, on which Parliament had been silent. How would we deal with that? What did the conventions say about it?
Some of those conversations were very informal—just with my own team—and some were with constitutional experts, including my predecessors. I genuinely enjoyed the horizon scanning, brainstorming conversation, as one does with other issues. Like all scenario planning, a lot of it is about trying to keep on informing oneself and testing one’s own thinking, understanding and recollection of precedent in order to digest and be better prepared. I think it was Eisenhower who said, “The plan is nothing but planning is everything”. Planning helps build the musculature to deal with the issue when it arises, even if the scenario itself is different.
Q7 Lord Burnett of Maldon: I was going to ask you a follow-up question about relationships with the sovereign, but the moment has passed, so I will pick up a slightly different point; I hope that it fits the developing narrative. In the course of your observations, you have mentioned constitutional conventions. We know that constitutional boundaries exist between the different arms of the state and, more widely, between independent players, government and so on. When I was the Lord Chief Justice, we had a certain number of dealings together in not altogether unturbulent times. I saw one of my roles as patrolling those constitutional boundaries; that was, if I may say so, necessary from time to time.
Do you think that, in the political world, some are not as sensitive to conventions and boundaries as they should be; and that this is introducing tension? There is certainly widespread commentary to that effect. I seem to remember that you had to deal with a particular issue about whether a letter would be written that Parliament had mandated in an Act of Parliament; in the end, it was written, but there was a very public row over whether it would be written. That is an example in my mind.
Lord Sedwill: Yes; it goes to the point about extreme scenarios. There is a hard cases/bad law point here. We should be candid: it was clear during the Brexit period that there were protagonists—they were on both sides of the argument; it is important to make that point—for whom their position on Brexit, for or against, overrode their concern for the constitution or the union. They were prepared to put both the constitution and the union at risk in order to pursue their view on Brexit; they felt that it was so important it overrode those things. As a public servant and a Crown servant, my view was that we had to deliver the result of the referendum, but—to go to a slightly different version of Lord Beith’s point—we had to do so in a way that did not put either the constitution or the union in jeopardy. I felt that both things were obviously important.
In the most acute examples, it was an argument about our entire national identity. We saw echoes of this in the Scottish public service in the 2014 and 2016 Scotland referendums. In those circumstances, that is the real test of whether the checks and balances work and whether the judicial role, the role of the Attorney-General, the role of a Cabinet Secretary and even the latent role of the Sovereign—never exercised, hopefully—are important. We just about came through it in the Brexit period. As you say, the letter was written in the end, because the Prime Minister of the day recognised that he had to respect the law—even though he disliked it—and the constitution survived. It certainly got bruised, but the constitutional checks and balances still managed to apply even under the most intense pressure. We should take some comfort from that; most of the time, we will not face that kind of pressure.
Lord Waldegrave of North Hill: I have a footnote to that. Nobody quite knows what was said, but nobody is denying that your Deputy Secretary said, “We do not work for you, Dom; we work for the Queen”. That is what I would have said in her position, had I been brave enough. However, that argument does not quite work, does it, because the Prime Minister is the principal adviser to the monarch?
Lord Sedwill: That is correct, but it goes to the acute point we were discussing earlier. The Prime Minister absolutely has primary responsibility to advise the monarch on such matters and to maintain the neutrality of the Sovereign. In those acute circumstances, and in those internal debates, the question is: what happens if the Prime Minister—or their adviser, in that case—crosses a boundary? How does one deal with that? For reasons you will understand, I will maintain the confidence of those conversations, but it was certainly in my mind that I had to try to ensure that, whatever anyone else was saying, when the Prime Minister himself made his decision, he stayed within the boundary and did not put the Sovereign into that position. Fundamentally, we all work for the Queen—now the King—and we were all acutely conscious of that. To be fair, the Prime Minister of the day respected that as well, notwithstanding the fact that he tested it.
Q8 Lord Waldegrave of North Hill: I want to pursue Lord Bichard’s question on morality using an example that happened before anybody in the room was involved, so it is safe. It is the clearest example of the failure of the British state to behave in a respectable manner—namely, the Suez crisis, when the Government lied about the existence of a secret treaty with the French and the Israelis and destroyed their own copy of it. Only one person resigned: Anthony Nutting, a middle-ranking Minister in the Foreign Office. No civil servant resigned; as far as I know, the Cabinet Secretary and the head of the Foreign Office did not protest. Would that still happen now?
Lord Sedwill: One can never guarantee anything, but I would hope not. In those circumstances, speaking as the former Cabinet Secretary, I would expect the Cabinet Secretary to say, “I’m sorry, I can’t tolerate this, so I have to go”. One would always hope to avoid that, not least because the threat would of course expose the issue. I can absolutely understand all the pressures not to take that action during the Suez crisis. It was a war; one does not want to undermine the Government in those circumstances and there was a big question of national security. I come from a world where we keep secrets for many decades—in some cases, for all time—but that is different to lying about them. One finds a way of saying, “This is a secret matter; I’m simply not going to comment on it”. That applies to lots of other issues. You are right that Suez is an example of where the conventions—and, arguably, the law—were breached.
Lord Waldegrave of North Hill: It would have to be not just a resignation but a resignation and a statement explaining why; otherwise, the guardian just resigns and you get a more compliant one, which is no help.
Lord Sedwill: We are talking about very extreme circumstances, where the threat of a resignation is in itself a constraint; in that particular case, the secret treaty would have become known, and the Prime Minister would have come under intense pressure. He might well have changed course.
Lord Bichard: I do not want to get into a debate, but I would love to have a discussion with you on whether the incidents I talked about were historical. I was not talking about when Hillsborough occurred; I was talking about what happened afterwards, a lot of which is quite recent. Although it is not an interest, I should have declared that I chaired one of the infected blood advisory boards. It was clear from my involvement that people were telling lies right at the beginning of the process. The point is that, at the moment, there are a lot of people in this country who, rightly or wrongly, have lost faith—we can agree on that—in our constitutional democracy because they have seen too many examples of these things happening. It is important that we take that on board. That is why I was suggesting that it is important that the head of the Civil Service is seen to defend this matter above just about anything else.
Lord Sedwill: I agree, but Lord Burnett would say that it is also a job for the Lord Chief Justice and other prominent figures. In answer to your Hillsborough timing point—without going round and round—you asserted that standards have declined. My point was that I do not think that they have declined; the scandals themselves are decades old, and it is in the modern era that they have been revealed. This does not mean that they could not happen again. It does not mean that people still do not get these things wrong, cover their backs, tell lies and so on—they always have. As Lord Waldegrave just pointed out, Suez is perhaps the most acute example: it was generations ago, and that has not happened in the modern era. I am not suggesting that standards are better, but one has to be very careful about saying that they are worse.
It is absolutely right that Cabinet Secretaries now have a higher public profile than was the case when I first entered the Civil Service. Sir Robin Butler—Lord Butler—almost never found himself in the news during his period as Cabinet Secretary, and he did it for 10 years, whereas I was in the news the whole time during my period. One has to accept that that goes along with shouldering more public responsibility for maintaining a commitment to these standards and reassuring the public. I accepted that.
Q9 Lord Jones of Penybont: On standards changing, look at the resignation of Lord Carrington during the Falklands War. He resigned for something that was not his fault; nevertheless, he felt that, as a matter of honour, he should resign. It is difficult to imagine that happening now.
To return to the apocalyptic theme, if I may, we have discussed one example, and you have given examples, of where you have had to deal with difficult issues. What other potential scenarios do you think the UK constitution might face that would put it under significant strain, and what would be the role of the Cabinet Secretary?
Lord Sedwill: Without trying to hypothesise about scenarios—partly because I have not had a chance to think about that point and I do not want to riff on it in a parliamentary session—the role of the Cabinet Secretary fundamentally comes down to being the principal adviser to the Prime Minister on matters. If necessary, it involves warning: warning against things and warning of the consequences, which might include Ministers or civil servants deciding that they are going to resign, the intervention of the judiciary and so on. Fundamentally, it is to advise and, if necessary, to warn.
Q10 Baroness Laing of Elderslie: You mentioned a while ago the accountability of the Civil Service. The current Cabinet Secretary said recently that there is a need to improve accountability—particularly direct line accountability—for the delivery of the Government’s objectives. Could there be a danger that putting greater emphasis on the accountability of civil servants might lead to a culture of risk aversion and, therefore, a reluctance to take positive action in pursuing the Government’s objectives, especially where those objectives might be controversial?
Lord Sedwill: There is clearly that risk; you are absolutely right. It goes beyond the Civil Service, but the truth is that it depends on the nature of the accountability. Let me give you a different example: I chaired a Policy Exchange commission on regulatory reform, and one of the points I made was exactly your point about risk aversion. If you are an individual regulator and some academic can demonstrate that the cumulative effect of your regulation will be to knock 0.01% off growth, that is not going to make the front pages. However, if there is a failure that means, for instance, that a citizen loses their savings, or some other acute failure, you will be dragged into Parliament and held personally accountable. That creates a risk avoidance bias in the system.
In order to find a way of maintaining the transparency and discipline of accountability, the key point is that accountability should not be the bear pit and knockabout that everyone around the table will recognise that it can be sometimes. Professionals—whether civil servants, regulators or others—should have the backing of Ministers when they go into those sessions. Accountability is absolutely right, but the grandstanding element of accountability, which is more about the person asking than the person answering—not in this House but perhaps in the other place sometimes—creates a culture of risk aversion. I have certainly experienced that. One must have mature accountability and a mature way of holding people accountable. In the modern era, it is no longer tenable for officials to step completely into the shadow of Ministers and expect Ministers to cover absolutely everything when, in truth, so much of the delivery of government policy is down to individuals or teams of civil servants.
Q11 Lord Griffiths of Burry Port: Thank you for coming alone and being subjected to all this interrogation. I read the account of your previous appearance. One or two of the exchanges were quite terrifying—they would be to me, anyway—so thank you for being brave enough to come here.
My questions are always a little different. You talked about history. People here have experience that is second to none of being involved in various aspects of governing, the interpretation of law, the evolution of law and so on. My interests have always been cultural and historical but also philosophical. Sometimes, I wonder whether the way we govern ourselves takes cognisance quickly enough of the fact that what were facts yesterday are not facts today. For example, I am very involved in questions related to immigration; indeed, my own doctoral studies were to do with Black societies at the end of the 18th and early 19th centuries. At one particular moment, many Black people were considered chattels. Our universities are now teeming with post-colonial studies and the question of reparations. You have various people appealing to bodies of truth that are diametrically opposed to each other and emerge from different perspectives.
I am also on the team representing this Parliament at Strasbourg; I sit on the migration committee there. The European convention of 1951 spelled out very clearly the treatment and all the rest of it to which people were entitled if they landed on anybody’s shore—we all signed the paper to say that that was the case—but recent debates suggest that it is no longer the case and that it is questionable whether someone arriving on our shores has a right to be heard and so on. How can you make laws that continue to hold confidence and practice in the political realm, and which can be spelled out meaningfully to the public at large, when you are dealing with vociferous and fragmentary material of this kind in our culture?
We are living in post-modern times. The idea of truth—of everything—has changed. I could go on to talk about similar developments in the field of technology; it is going faster than any of our conventions and ways of behaving, as is climate change. We are trying to govern ourselves sensibly, responsibly and accountably in an environment where everything seems to change all the time. My intervention was to say that, if your job were ever on the market, I would not apply for it.
Lord Sedwill: I will address the substance of your point in a second, but to go to that very final point—it relates to Baroness Laing’s point earlier—there are people coming through the system who decide that they do not want to become Permanent Secretaries or rise to the very top because they do not want the public exposure. They can pursue a very successful career to the level below that and stay somewhat in the shadows. I have certainly talked to people who have said, “Look, I just don’t want to do it”. The same is true in other areas; your risk aversion point can also have an effect on the quality of the public service, not just the Civil Service.
All the issues you have described would probably make for a fascinating conversation over dinner but, fundamentally, for the purpose of this evidence session, they are in the realm of politics. That is why we elect politicians: to recognise that there are different interests, different versions of the truth, conventions to which we have adhered and which some consider no longer relevant, et cetera. Fundamentally, that is for politicians to decide. To go to Lord Bichard’s point, you will find an absolute commitment to the fact that they have a mandate, and we do not. That is not written down either, but we say to ourselves, “Look, in the end, they’re elected”. Our job is to respect the rule of law and respect the constitutional conventions but to deliver the mandate that the Government have set. In the end, these matters are matters to be thrashed out in political debate.
One has to be very careful about saying that some impartial body should step into the arena and decide what is true and what is not. You did not suggest that, but I just want to register the point because it sometimes comes up in the questions of democratic security, election security, Russian bots and all that intervention. In the end, politicians have to fight it out, because that is by far the safest way of dealing with such matters in a democratic system.
The Chair: Lord Sedwill, we have been discussing these things for over an hour, which is probably enough. I will draw the public session to a close. We will continue our evidence-taking sessions with many other people in the autumn. Thank you very much for your contribution.
