Constitution Committee

Uncorrected oral evidence: The UK’s constitutional safeguards

Wednesday 2 September 2026

10.30 am

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Members present: Lord Strathclyde (The Chair); Lord Beith; Lord Bellamy; Lord Bichard; Lord Burnett of Maldon; Lord Griffiths of Burry Port; Baroness Hamwee; Lord Jones of Penybont; Lord Murphy of Torfaen; Lord Waldegrave of North Hill.

Evidence Session No. 2              Heard in Public              Questions 12 – 27

Witness

Lord O’Donnell, former Cabinet Secretary and Head of the Civil Service.

USE OF THE TRANSCRIPT

1. This is an uncorrected transcript of evidence taken in public and webcast on www.parliamentlive.tv.
2. Any public use of, or reference to, the contents should make clear that neither Members nor witnesses have had the opportunity to correct the record. If in doubt as to the propriety of using the transcript, please contact the Clerk of the Committee.
3. Members and witnesses are asked to send corrections to the Clerk of the Committee within 14 days of receipt.

20

Examination of witness

Lord O’Donnell.

Q12            ​​​The Chair:​ Welcome to this meeting of the House of Lords Constitution Committee. Today we are holding the second evidence session of the committee’s new inquiry into the UK’s constitutional safeguards. We are delighted to be joined by Lord O’Donnell, former Cabinet Secretary and Head of the Civil Service. I look forward to hearing what he has to say. I remind members to declare any interests that are relevant to this inquiry or today’s meeting the first time they speak. I have no relevant interests to declare.

Lord O’Donnell, you held the post a relatively long time ago, which gives you a good deal of perspective on how it has developed and how Governments have worked with Cabinet Secretaries, including yourself. Our first question is on the threats to the constitution and how you assess the constitutional safeguards in the UK—how effective they are. Where are their most significant weaknesses and what should we do about them? It is a very broad question, but different members of the committee will come in at different times to give you time to expand on the subject.

​​Lord O'Donnell:​ I am delighted that the committee is looking at this subject because it is incredibly important. If you think about what Governments are really for, to my mind they are about improving the well-being of the citizens of the nation—their life satisfaction. If you look at those countries with very high life satisfaction and the Economist Intelligence Unit index of democracy, there is a massive overlap. Six countries—the Scandies—do incredibly well in both indices. How well have we done? We are 16th. We are not in the top 10. We are nowhere near it for the index of democracy, nor are we in the top 10 happiest countries either. Nor is the US—on democracy the US was 28th. In a year it has gone back to 34th, which probably does not surprise any of you.

It is a massively important subject to get right. I have been through various Cabinets where we have discussed a lot of the issues that we will talk about today. One of the issues that the committee needs to face is that we know most of the answers to this. To use one example, we know that the House of Lords needs reform, but it is not going to happen. Why is that? What could we do to finally break that logjam? When I talk to friends they say, “Oh, well, turkeys do not vote for Christmas”. They think that it is us as Members of the House of Lords who stop it. I think that it is the House of Commons because they do not want a more politically legitimate and therefore more powerful second Chamber. That is the real problem. With all the things that we have done in the Lords, the Burns report and all the rest of it, we have a good tale to tell.

On how effective our constitutional safeguards are, we have been a “full democracy” in the Economist Intelligence Unit definition and remain a full democracy. That is not bad. We have not had some of the disasters that others have had. We have had peaceful transitions between different parties, which is very important to note. That is not just between Labour and Conservatives; we have also had peaceful transition to a coalition. That is good.

Where we have not been effective is in trust. Public trust in politics and politicians has declined significantly. That is a real problem. There is a tendency for Governments of all shapes and sizes to overpromise and underdeliver. I should declare an interest as president of the Institute for Fiscal Studies. Before the last election I said that there was a conspiracy of silence and that none of the parties was facing up to the issues, which were the issues on the “Today” programme this morning at 8.10 am and will be the issues running up to the Budget and beyond. They are not changing.

Trust is a big problem. Populism will be a significant issue. I am not sure how effective we are in managing that issue. We have demonstrated that we can manage a full coalition, which is a success. However, imagine electoral fragmentation with five parties. Imagine a governing party that gets a majority in the House of Commons with less than 30% of the vote. That will put severe strains on the system which we have not seen before. How will we respond to it? How will the public respond to that?

There are some significant weaknesses in the system. However, on how effective we have been, while the quality of democracy may have diminished somewhat—the public trust and all the rest of it—we have managed peaceful transitions and are still a full democracy.

​​The Chair:​ It is a very good analysis and your example of five parties and a Government governing with less than 30% is a good one. However, to put the question back to you, do you think that the policies and procedures that support the institutions of government are strong enough to deal with that? I am suggesting that ultimately the British people will decide at an election. If they do not like five parties of similar size, at some stage they will coalesce behind the bigger parties. 

​​Lord O'Donnell:​ If that happens, we will avoid the problem completely, but it might not. It is very important in doing preparation and thinking about our constitutional situation to be ready for the unexpected, to prepare for worst-case scenarios and to have planned them through. This is always very difficult. I had it in preparing for coalitions. The incumbent Government are extremely nervous of anyone planning for things that do not involve the continuation of them in government. Imagine during Brexit the problems of doing preparation for both outcomes. There is a significant ongoing problem when the public are going to vote on something and you are not allowed to do the proper preparation for both outcomes. 

​​​​The Chair:​ Who then is best placed to address these problems? Is it within the Cabinet Office?

Lord O'Donnell:​ As Cabinet Secretary I thought to raise it at the time. We take for granted access talks. That is now in the Cabinet Manual, but it is still at the behest of the current Prime Minister. If, running up to an election, the current Prime Minister said, “No, none of you can talk to any of the other parties”, we would not be able to. There would be no preparation between civil servants and shadow Ministers at all. We could try to firm up what is in here. Quite a lot of my job as Cabinet Secretary was trying to establish some precedents to say, “This is the norm”, and establish those things as being what good Prime Ministers should do. The Cabinet Manual helped quite a bit in this. However, I had no formal power without the Prime Minister’s explicit permission. 

Q13            ​​Lord Bichard:​ Following up on this issue of trust, some of us were speaking last night at Second Reading on the Public Accountability Bill. That assumes that there has been a significant decline in standards—infected blood, Grenfell, the Post Office. Do you think that this is the case? Do you think that is a threat to constitutional democracy? It goes beyond your point about promises broken. Do you think that the decline in standards exists? Is it a threat to our constitutional democracy? Are there things that the Cabinet Secretary could do to turn that around if it is a problem? 

​​Lord O'Donnell:​ All those things are disasters that should never have happened. However, they point to systems that are far from perfect. We could find ways to do things better. One of my primary desires is for the National Audit Office to stop thinking of itself as an ex-post body that audits after the event. I would like it to be saying, “Okay, there is this thing called Horizon, a massive project. Let’s have a look at it, see if it makes sense. Let’s look at HS2. There is a cost-benefit analysis. This looks a bit dodgy to me. Can we go through it before we do this?” They are all in the ex-post game. I want to be in the ex-ante game, to prevent these things. You are right. There are various things that we could do which would ask questions. Parliament has a role in this. It would be stopping things in advance and saying, “Does this make sense? What could go wrong with this?”

The one that really gets me is robodebt in Australia. This is a classic example. It is called AI, but it is more a digital thing. A system that was automated went wrong and people ended up in jail and a Prime Minister going. There were political consequences. As we move towards more use of AI in government, there will be more things where we need to think about safeguards very early on, what it can do and where humans are getting involved to make sure that the machine is not making big mistakes, as happened in Horizon a long time ago. 

​​Lord Bichard:​ You have answered my question by talking about systems. The more uncomfortable question is whether personal behaviour and personal standards have failed. I was involved a little in the Infected Blood Inquiry. There were clear examples there of civil servants behaving dishonestly and of focusing more on the brand reputation of a department than on the citizens who were dying in their thousands. Have we seen a decline in personal behaviour? Your role includes being Head of the Civil Service. Is there more that the Cabinet Secretary could do? 

​​Lord O'Donnell:​ I did not answer your question because I do not know. How would you know if there had been a decline in standards? You would have to have measured it in some proper, objective, empirical way and now be able to say, “Over the 1930s, 1940s, 1950s, 1960s, 1970s, 1980s and 1990s we can see this change”. Really? There is a much more transparent system, so we do find out about these things. I imagine that they were covered up in the past. Yes, some people did wrongly think that this was the right way to protect the brand. From a Cabinet Secretary point of view and from a Head of the Civil Service point of view, what was important for civil servants first and foremost was their values—honesty, objectivity, integrity, impartiality. I wanted on top of that for them to have the approach which I call my four Ps—pride and passion about serving the public well and pace and professionalism in how they did it.

My message as Head of the Civil Service was always that this was our core. If you cut a civil servant in half—there are probably people around this table who would have loved to have cut me in half at times—then that is what you should see. That is our nature. Not everybody lives up to it all the time. A number of the examples you are giving are probably of the wider public sector as well as the Civil Service. Things have gone wrong, most certainly. Has that been a decline over time? I honestly do not know. I am not quite sure how anyone would back up that statement.

​​Lord Bichard:​ I am bound to ask this, though. Point to something such as infected blood 10, 15 or 20 years ago, where 3,000 people died and there is clear evidence of dishonesty in the Civil Service. That is quite convincing evidence that we have a problem with standards. 

​​Lord O'Donnell:​ That is certainly a problem, but your question was whether it has changed. My answer is that I do not know. I hope to goodness that all the things that we try to do in the Civil Service have got across to it the need to live by all the things that I talked about, our values and our standards. There are times when civil servants are put under a lot of pressure and do not do the right thing. 

​​Lord Bichard:​ The other part of my question was whether you thought that, if there has been a decline, it is a threat to our constitutional democracy. 

​​Lord O'Donnell:​ It is important that we have clear standards for the Civil Service and the public sector in general and that people adhere to those standards.

Q14            ​​Lord Burnett of Maldon:​ You gave a very interesting example of access talks being essentially a convention which a Prime Minister could simply refuse to do. This leads me to ask a not very focused question, for you to give an overview. To what extent is the constitution protected ultimately by a Prime Minister who behaves properly? To define properly is very difficult. Also, is that the ultimate safeguard. Also, to what extent are there conventions which could usefully be put into primary legislation so that there would be a legal obligation upon the Government and Civil Service to do things? I am not making a case for your example of access talks, but it strikes me as being quite a useful example. One could think of many others. 

​​Lord O'Donnell:​ It is a very good question. I confronted that question when I put together the Cabinet Manual for the first time. What struck me, being not a lawyer but an economist by background, was how much we relied on precedents. I would ask, “What legal standing does a precedent have?” The answer was very vague—almost nothing at all. A precedent is a precedent until someone decides to do something else. 

​​Lord Burnett of Maldon:​ It provides an example of what was done in the past, which can inform what you do today and in the future.  

​​Lord O'Donnell:​ We have seen examples in Parliament of Speakers changing the precedent. I was very worried when I did this that we rely on precedent so much. Why do people stick by precedents? Then you get to Lord Hennessy’s “good chaps” theory—that good chaps obey the precedents, so you do not need it in law because law would be very rigid. Therefore, we have precedents and a “good chaps” theory. That is very scary. I would not want to rely on those two things too much.

I would love to have been able to say, “Well, Prime Minister, that is not such a good idea because it is illegal”. That would have been the end of the conversation. The beginning would be, “You might think that, but I disagree” and I do not have the power.

A general point about Prime Ministers and Cabinet Secretaries on power is that the relationship changes radically. When I was appointed by Tony Blair, I was his third Cabinet Secretary. He had been Prime Minister for a long time. He knew how the job operated. I was the new boy. If I was trying to get him to change his mind on things, we started from a position of, “Look, Gus, I have been here a long time. I have been through all of this”. Come the coalition, I remember David Cameron from when I was John Major’s press secretary. David Cameron was there in the background as a very junior spad. Now I am the Cabinet Secretary and he is my third Prime Minister—that power relationship is therefore very different.

When Tony Blair and David Cameron became Prime Ministers, they had never even been junior Ministers. It is a massive jump. In what other life do you not go through the ranks? Imagine becoming Lord Chief Justice without having gone through the ranks, Cabinet Secretary without having been a Permanent Secretary. There are reasons why you go up through the ranks. It does not happen with Prime Ministers. They can be there having never been even a PPS. There is a power imbalance. At times you can set the framework very early on. At other times, it is much harder to change because they have established certain patterns and behaviours. They feel that they have worked and that you are pushing against them. Then it is much harder. 

Q15            ​​​​Lord Waldegrave of North Hill:​ It is clear that in one sense a successful Cabinet Secretary needs to be there for some time. He needs to know what the precedents are and, if he has only been there for two years, that is unlikely. You are nodding, which might mean that you think that it is a bad idea that the Cabinet Secretary should change too often.

Lord O'Donnell:​ I do.

Lord Waldegrave of North Hill:​ On the other hand, you can imagine a perfectly democratic but radical Government who want to make major changes to how Whitehall works. There should be no argument against that if they have thought them out properly. They might want to do away with the office of Cabinet Secretary. There is indeed one party which has produced proposals to do that very thing. Does that make it more urgent that we might put some of these precedents into legal form of some kind? 

Lord O'Donnell:​ I would like to see us have a legal framework which did safeguard the important parts of the constitution. I point the committee to what Australia has done in legislation, which I am sure that you have looked at. Stewardship is in their legislation and there is a longer-term role. That is important. On how you organise things, there will be different ways of doing things. You could imagine a situation where you do not have a Cabinet Secretary but powerful officials who can do that job. It might be more than one. I would be against that. I think that the Cabinet Secretary post has proved itself over many decades. I would stick with it. However, you must recognise that the relationship between the Cabinet Secretary and the Prime Minister is very important and that they need to work together. If you have a Prime Minister who does not think that the Cabinet Secretary role is useful role, that will be very awkward. 

​​Lord Waldegrave of North Hill:​ When I was a civil servant, 100 years ago, Burke Trend was not Head of the Civil Service—William Armstrong was. Arguably William Armstrong was a closer adviser to the Prime Minister of the day than Burke Trend was, so you can imagine different structures there. The present Prime Minister talks about rewiring the constitution and rewiring the country. If we are going into a radical time, it is more important that those things which are embodied are made explicit and formal.

​​Lord O'Donnell:​ Totally; my solution to this problem would be, “Take this thing that I wrote far too long ago”. I said at the time that it should be revised frequently. We have had Brexit, coalitions, Covid, all sorts of things going on and it is massively out of date. There are things in there that I do not like, which I look back on and think, “Well, I got that wrong”. We need a clear document which gets Parliament’s approval and says, “This is the view of the Executive”, laying out what the Executive think the rules of the game are. That would be massively useful. 

​​Lord Waldegrave of North Hill:​ This committee was very pleased when the just-departed Prime Minister said that he would produce a revision of the Cabinet Manual and that we would be involved in the discussions about it. We pushed for that and we hope that the new Prime Minister continues with it. 

Lord O'Donnell:​ I will be surprised if he does not, but I would like to see him get on with it. 

Q16            ​​Lord Beith:​ Is one of the forms of advice that you might have given to your Prime Minister as follows? “I can understand why you want to do this. It is consistent with the Government’s policy. However, the secondary consequences of doing it are that future Cabinet Secretaries will have to accept it as a precedent and will not be able to give you appropriate advice on why you or your successor shouldn’t do a quite different thing in the future.”

​​Lord O'Donnell:​ Gosh, that is complicated.

​​Lord Beith:​ I will make it less complicated. Are there times when you must advise the Prime Minister that whatever the merits of the course of action that he is proposing, it has consequences far beyond what he is trying to address?

​​Lord O'Donnell:​ Oh my goodness, yes. My favourite example is not from Cabinet time but from when I was Permanent Secretary at the Treasury. Gordon Brown was Chancellor at the time and there was a lot of discussion about the winter fuel allowance—well, there was not much discussion about winter fuel allowance, because they kept it quiet for a very long time. I was bitterly opposed to it. This was an amount of money that was given to people irrespective of their needs. It was very expensive administratively. I just did not get why this was happening. However, the point about when you do these things and being very much into the behavioural economics school is that loss aversion is such that you cannot undo them. They are there for ever. You have seen the attempts to undo them and the mess that the current Government got into—the strange situation that we are in at the moment. There are lots of policies which you can see are not ideal but also bad in that they are terribly difficult to undo.

​​Lord Beith:​ You cannot really say, “I will be here after you have gone and we have got to take the consequences”, because it may not be the case. 

​​Lord O'Donnell:​ I have often said, “What about your legacy? Do you really think that this is going to be a good legacy, that it will stand the test of time? It will be a real problem at some point in the future. People will look back and say, ‘Why did we do that?’”

Q17            ​​​Lord Bellamy:​ Can we go back to this question of writing things down? I want to explore exactly what sort of document we have in mind. Perhaps you could give us an example of one subject that it might address. There are written constitutions all over the world. We know that there are dictatorships with beautifully written constitutions. Writing things down does not ensure that it is going to happen. It might even freeze things and make it more difficult to change things later, especially if it is in primary legislation. It might be, and I do not know whether you would agree with this, that whatever you write down, the success of the constitutional safeguards ultimately depends on the integrity and courage of those that are responsible for guarding the realm, as it were. So what is it that we should be writing down, if we can think of an example?

Lord O'Donnell: Sure. Let me give you the example of the 2010 coalition talks. In general, your point about legislation is a very good one, because legislation—I say this all the time—is very rigid and gets out of date very quickly. Trying to legislate for AI regulation, for example—oh my God. I like the idea of things like the Cabinet Manual. I like the idea of us producing something which said—again, against the possibility of electoral fragmentation and all those sorts of things—“Here are the rules of the game when it comes to an unclear result from Parliament. You have got multiple parties. What do you do?”

I will be honest with you: I was making it up as I went along part of the time, because there was not a precedent. I did consult my predecessors, as any good Cabinet Secretary does. They are a very wise bunch, and they said, “Well, this has not happened before in the UK. There are some examples from the devolveds and from elsewhere”. Make it clear that it is the Cabinet Secretary’s job and civil servants’ job to continue to support the current Prime Minister until there is a new one—make that absolutely black and white plain—and that you are not prejudging any outcomes by doing that; that is what our system requires you to do because we need a Prime Minister in place. But there should be a requirement, as there is sort of in precedent, that if a big issue comes up during that time there will be some consultation with other party leaders.

Secondly, when it comes to getting everybody around the table and they are coming up with talks about what they might do and all the rest of it, then there should be some rule about briefing. I made up the rule about briefing. We provided briefing to all the parties who are doing a negotiation on the rule that, if we gave it to one party, we would give it to the other. It was the same briefing, because it was an objective piece of Civil Service advice. It might say, “You are thinking of doing this. Curiously enough, that is illegal. You cannot do it. It is just a non-starter”, or “You would have to have primary legislation to change this”. There should be some rules about how the briefing goes on, and some rules about interaction with the sovereign—some process things, which will be really helpful, about how you do this. That document might not have legal status; that is a real question for the committee. Your collective knowledge around this table is such that it will be incredibly useful for you to opine on that and how to make that work, because it is very difficult to think of the future circumstances. When I was thinking about hung Parliaments, I thought about supply and confidence, and about varying degrees of coalitions. I did not think about multi-party situations.

Lord Bellamy: May I just, Chairman, follow up for a moment? I can see that it is quite important to have a record of what happened in that situation and to stress the things that were particularly important—that we should support the Prime Minister, we should carry on with the briefings, access and so forth. But as you yourself say, you were making up the rules as you went along, and it is rather difficult to legislate in advance for a situation thar has not yet happened, as it were.

Lord O'Donnell: There are things that we could say should happen. You talked about making notes of what is going on. Basically, another of my multiple failures was that, when the Conservative and Lib Dem negotiating committees were getting together to discuss their programme for government, I said I thought it would be very helpful if we had a civil servant in there to make a note of what they decided. Then two of the members of the negotiating team came up to me and said, “If we were to write a note on this, would it be FOI-able?” I said, “Well, everything’s FOI-able subject to public interest, so I cannot guarantee that it is not”. They said, “Thank you very much, Gus. No civil servants”. So it is quite important that we establish some precedents, like that having some formal notes of things is a good idea. You could at the same time say that there will be safeguards on these things, because it is obviously very politically charged. Let me give you a hypothetical that two parties come into a room and one party says, “Here are some things in my manifesto that would be really good to drop”, and the other party said the same, “because I had to put those in for various reasons. And I am going to blame you for dropping them and you are going to blame me and that’s fine.” That gets you to a very good outcome—but do you want that public?

Lord Bellamy: This document is still a document of convention rather than a document of legal force.

Lord O'Donnell: Most certainly. Yes. Absolutely. Putting it to legal force would be complicated.

The Chair: Just on that, are you suggesting amending the way FOI works in practice by law?

Lord O'Donnell: I have always had real problems with this. FOI has been brilliant in that what it has mostly done is got us to consider whether, if an FOI request came in, we would publish it. If the answer is yes, then why do we not publish it in the first place? But then there are issues about things like the discussion I just had where you would say, “Actually, can’t we have some proper exemptions for things, which will actually lead to better decisions and better outcomes?” The trouble is, all exemptions are subject to a public interest case test, which means that you do not know whether it is actually going to come out there or not. If you have got any uncertainty about this, then you can not have the civil servant in the room or you can do it all on WhatsApp. I am afraid it leads to a deterioration, in my view, in the quality of government.

The Chair: I call Lord Murphy, to take us in a slightly different direction now.

Q18            Lord Murphy of Torfaen: Fascinating points. You mentioned earlier the inexperience of new Ministers. My recollection of 1997, when I first became a Minister, is that, of the 100-plus Ministers, only six had been very junior Ministers millions of years before. Therefore, the role of the Cabinet Secretary and the role of the Civil Service generally was absolutely critical in forming the new Government and what we were to do. Incidentally, you mentioned FOI, and I was seriously worried about it when I was Northern Ireland Secretary, because of the implications of having negotiations and discussions and suddenly those being FOI-ed and I would be back to square 1 again.

The point I wanted to ask you is about the role that you held as Cabinet Secretary, as being, in a sense, a constitutional guardian. Normally, we say that the House of Lords is the constitutional guardian, but I think the Civil Service, the Head of the Civil Service and the Cabinet Secretary could be classified as a constitutional guardian. We have talked today about the ways in which that could be formalised and the Cabinet Secretary being given formal powers. To be honest—this comes later on as well—the Cabinet Manual is a handbook, nothing else. It is handy and useful; it gives you precedents, so far as that matters—you can overturn it in a second—but there is nothing formal about it. As the Chair just said, whether that could be put in formally into legislation I do not know. But do you think that the role of the Cabinet Secretary as the constitutional guardian, including the sort of things you did in 2010, could be much more formalised than even it is at the moment in the Cabinet Manual?

Lord O'Donnell: Can I make two points? One is on your bit about Ministers and churn. When I had the access talks with David Cameron when he was the Leader of the Opposition, he went through all the things that he wanted to do in government, and we had that proper discussion. Then he said to me, “Gus, is there anything that you would want from me?” I said, “The number one thing I would like from you is Ministers to stay in post for as long as possible”. He said, “Okay, I hear what you say”. I do think that keeping Ministers in place for a long time is a good idea.

You made a point about the constitution. David Cameron, in the foreword to the Cabinet Manual, says, “Cabinet has endorsed the Cabinet Manual as an authoritative guide for ministers and officials, and I expect everyone working in government to be mindful of the guidance it contains”. Mindful? That is all I could get. I pushed. Yes, I would love it to have stronger backing. It needs that. As Cabinet Secretary, I thought that I had a constitutional role to play. There were complicated issues such as returning justice and policing to Northern Ireland. There are huge amounts of constitutional stuff. I got involved in lots of constitutional issues, mostly behind the scenes. You do not have any formal powers.

A good analogy was pointed out to me by somebody of whom you may have heard, Olly Robbins. He had a short break at the Blavatnik School of Government at the University of Oxford, where he did some very interesting work on the role of Cabinet Secretary, which I do not think he ever finished because he got called back to do other things. I would listen to him a lot. You would like there to be stronger powers, but his analogy was, “What is the Prime Minister’s power?” The Prime Minister has the power to sack members of the Cabinet and appoint his Ministers but, beyond that, we do not have a written set of formal powers for a Prime Minister, which is quite interesting.

You look at formal powers for Cabinet versus Parliament. One of the debates that people will remember was about war powers in the Cabinet Manual. Some people were saying that the war powers bit should say that Parliament should be consulted before troops are on the ground. That never got in there. The Chiefs of Defence Staff were a bit wary about it slowing things down.

There are some big issues which could be confronted. It is about anything that you could do to strengthen the role of the Cabinet Secretary in all this. He should be a long-serving and objective guardian, with the Australian thing about there being an explicit role for the Cabinet Secretary and the Head of the Civil Service in safeguarding the constitution such as it is. The problem for us would be, “What constitutes the constitution?” That might be very difficult, but at least it would be the kind of role where the Cabinet Secretary could say, “I think that you need to consult Parliament about that”.

Lord Murphy of Torfaen:​ Very interestingly, you said earlier on that in 2010 you did what you did very successfully but that there had been no real precedent or historical example of that for donkey’s years or ever. All your predecessors from the Second World War until recently would have been used to a two-party system. That changed with the coalition but is changing even more radically now to a multi-party system. The role of Cabinet Secretary becomes much more significant in that situation.

​​Lord O'Donnell:​ Yes. On taking the job, it did not cross my mind that I would end up in the middle of coalition talks. However, having done it once is useful. I did not have the privilege of being able to go to a Robin Butler, Andrew Turnbull or Richard Wilson to say, “Tell me what it was like”, because they had not done it. Hopefully I will be around and be able to.

Lord Waldegrave of North Hill:​ Robert Armstrong had done a bit of it in 1974.

Lord O'Donnell:​ Exactly.

Lord Murphy of Torfaen:​ They will be coming to you now.

Q19            ​​Baroness Hamwee:​ Can you say a word about the combination of the roles of Cabinet Secretary and Head of the Civil Service? We have been talking very much about the former.

​​Lord O'Donnell:​ I was passionate about wanting to do both. I thought that the Civil Service needed someone who had the ear of the Prime Minister. That was the key to me. If you have a separate Head of the Civil Service, as we have done, they become “someone who’s in charge of HR and the Civil Service”. With Prime Ministers, it will go in the diary but nine times out of 10 it will come out of the diary. It will never happen. They do not get in there, whereas when you are Cabinet Secretary the Prime Minister needs you. There are conversations that you need to have with the Prime Minister. You should have a very strong relationship with the Prime Minister. You can say, “There are some issues about the Civil Service that I need to raise with you”. They might grumpily go, “Oh, okay, then”. There have been some real problems with how the Civil Service has been run that I did not manage to resolve. However, at least I had a chance to put my case.

​​Baroness Hamwee:​ Are you saying that it would be helpful to have a post-holder maybe half a rung down, heading the Civil Service with your ear?

​​Lord O'Donnell:​ No. I would have Cabinet Secretary and Head of the Civil Service and then someone underneath that who reported to me—a chief executive officer of the Civil Service, someone with experience, a chief operating officer.

Baroness Hamwee:​ That is what I meant.

Lord O'Donnell:​ That works well. I was very lucky. I had good HR people working for me, but I also had a combination with Jeremy Heywood, who went on to be a great Cabinet Secretary. We managed things very closely. Jeremy would quite often be doing the day-to-day, “The Prime Minister wants this by nine o’clock”. I could sit back and do the strategic stuff. That works as long as the two of you completely trust each other. It also helps massively that you live around the corner from each other. You come in every day in the same government car and discuss what has been going on. Quite often when you are in that car, the Prime Minister would phone one of us to complain about the other one. You are then able to manage that situation quite easily.

Q20            ​​Lord Jones of Penybont:​ As a veteran of coalition discussions in a political system where no party has ever won a majority, we never had civil servants involved because they would have been drawn into a world of politics that they should not be involved in. We would take advice from civil servants once something was proposed but not during the discussions. That is not what they are there to do.

I was interested in what you said about the powers of the Cabinet Secretary being written down—written down as what? Would it be as one document? How would that be drawn up and who would approve it? Would it be on the face of a Bill, which gives it a sense of permanence? The inflexibility is granted but permanence would otherwise not be the case if it was a convention. Conventions can be thrown out the window. I have seen that done often enough with Sewel over the years. If it is included in secondary legislation, that can be changed by Ministers. Are we talking about creating a sense of solidity for those powers through primary legislation or through some other method?

​​Lord O'Donnell:​ We did primary legislation for various aspects of CRaG. There are elements of this that you could put in primary legislation. You need to be very careful because of the points that many people have made about the need for flexibility. To take that minor point about access talks, the Prime Minister should be prepared to allow sufficient time for the Civil Service to interact with the opposition ahead of an election. That could be formalised. The presumption must be for the Prime Minister to do it. The problem is timing.

One of the things that I dislike about our current system, which is not very democratic, is that the Prime Minister gets to fire the starting gun for an election. I was quite a strong fan of fixed-term Parliaments, which I know will cause different views. If you have a system where the Prime Minister can say, “We are having an election tomorrow”, what has happened to access talks? They have completely gone. There are some big issues that get brought up there. I have been through fixed-term Parliaments, which created all sorts of issues too.

​​Lord Murphy of Torfaen:​ If, as a Cabinet Secretary, you were confronted by the actions of a Prime Minister that were clearly historically unconstitutional, how far can you go before you resign?

​​Lord O'Donnell:​ That is a good question. I was never put in that situation, fortunately. It is a personal issue. To me there are very clear demarcations where you would say, “Okay, Prime Minister, you can do that but, just so you know, I am going to resign”. Similarly, we have the power of getting a direction from a Minister. A Minister might say, “I want to spend on this project” and you say that it is incredibly poor value for money and a waste of time or that it gives money only to certain small groups that they want to support for political reasons. There are times when you would then say, “I need a direction for this”, such as on the value-for-money thing. If it was a big constitutional issue such as refusing to have an election, I would then say, “I am off”.

​​The Chair:​ I suppose that is the answer on the tension between protecting the constitution and advising the Prime Minister. Your option as Cabinet Secretary is to say, “If you do that, I will not be able to put up with it and I will resign”, which would create a huge story.

​​Lord O'Donnell:​ Hopefully it would. You never know with these things, but that is your ultimate power.

​​Lord Jones of Penybont:​ If powers were on the face of an Act and a Cabinet Secretary wished to act in excess of those powers—or a Prime Minister wanted to prevent a Cabinet Secretary from exercising those powers—how would that be policed?

​​Lord O'Donnell:​ That is a good question. There are various Select Committees that would look at these things, such as PACAC. I was called before multiple Select Committees. You would like to think that someone in Parliament would say, “That does not seem to be in line with the legislation”. As Cabinet Secretary, you would be saying in advance, “If you do this, someone’s going to notice and this will cause all sorts of problems”.

The experience that we have of Prime Ministers who step over the boundary, mislead the House or whatever, is that those safeguards which we have do work. You are reliant on someone picking it up and making a point of it. There may be a case where a Cabinet Secretary would have to say, “If you do that, I am going to have to make it public that you have done this and that I disagree with it”. That, again, would be a nuclear option.

Q21            ​​Lord Burnett of Maldon:​ If there is a legal obligation in legislation which anybody decides to defy, the option is for somebody to apply to a court and get an order. Lord Sedwill talked about something that was very public at the time—that the Prime Minister of the day was not keen to write the letter about Europe that Parliament had said that he should have written. It was written, so the issue did not result in legal proceedings. However, had there been legal proceedings, there would have been an order that it had to be written.

Then one gets into an extremely difficult situation. The courts are brought into the political process. What do you do if a Prime Minister, as it might have been in that instance, defies the order of the court? Is it seriously to be contemplated that the court does contempt proceedings and puts the Prime Minister in prison? I would not wish to be the judge. We are talking about extreme examples which one hopes would never arise, but it does bring me back to my question of how central the integrity of senior politicians is in all this.

​​Lord O'Donnell:​ I wish that these things never applied but they do. I will give you my example. You will all remember “cash for peerages”. Tony Blair was being investigated by the police. The police asked for all sorts of access to things which were wildly outside the remit. I was having to say no. We were getting into very difficult situations between what the police were saying that we should do and wanting to co-operate fully with them.

There was the whole question of “We might arrest the Prime Minister”. You will know this much better than me, but I did talk to my colleagues about what evidence you need to arrest someone. It is quite low. I was amazed at how low that bar is. They were talking about arresting a serving Prime Minister. You do get into some of these things where you have to work behind the scenes and say, “Look, this is ridiculous. You cannot do this”. Ultimately, the courts do have a role but dragging them into this is the last thing that we want to do.

​​The Chair:​ In that example, you would like to think that the police who you were interacting with also felt some responsibility and saw things the way that you did.

​​Lord O'Donnell:​ Ultimately, I think that they did in that they did not arrest the Prime Minister.

​​The Chair:​ It took them a long time to get there.

​​Lord O'Donnell:​ That the question even arose was ludicrous. There were never any proceedings in that case.

Q22            ​​Lord Bichard:​ At the beginning of this session, the Chair asked whether the constitution was under threat, under strain, and if so how. I am reflecting on that because we are all constitutional nerds in this room. This has turned into a conversation about processes, conventions, tensions and systems, which is not unusual. If you were to ask someone out there what the threats to the constitution are, they would probably come up with things such as interference with the electoral system, artificial intelligence and terrorism. Can you reflect again on that first question?

​​Lord O'Donnell:​ You are absolutely right. I was taking it in a very narrow way. For me it is the growth of social media, the absence of objective news and how we now know that the algorithms work. You could talk to Nick Clegg about how they were set up because I think that he opposed it. They feed stuff to people.

​​Lord Bichard:​ That is exactly the sort of thing that I was thinking about. Are there others in that category?

Lord O'Donnell:​ If I was talking about how to improve our democracy, I would start with strengthening the BBC. With BBC Verify, I would love there to be verification of all channels and news. I would love there to be stronger regulation. I have talked to Ofcom about this and quite often it says that it simply does not have the powers to do these things when I say, “This looks completely wrong”—that a programme has mixed up the presenters with the political actors and things like that.

The big issue for democracy is people not caring. After the coalition was formed, on the referendum on the voting system, which might be a solution to some of these problems, the majority of people did not bother to vote. We are possibly about to extend voting to 16 and 17 year-olds. Where is the civics training? Where is the training for the people who are going to vote? Where is the political understanding? At the moment, most people are getting their political understanding, not, as in our day, from newspapers, but from social media. That is scary, the ability of AI and bots to influence things.

In terms of risks to democracy, those things are by far the most important in my mind. It is having objective information.

​​​The Chair:​ That is a very significant statement—that social media is a major threat to how we run our affairs in terms of the constitutional things that this committee is interested in.

​​Lord O'Donnell:​ Absolutely, I totally agree.

​​Lord Bichard:​ There is also the lack of citizenship development in education which we will come back to, I am sure.

Q23            ​​Lord Waldegrave of North Hill:​ There are two kinds of democracy. We have a parliamentary democracy. You might argue that the rise of populism has been supported by those politicians who have referendums about everything. This is a crude comparison, but juries precede parliamentary democracy. When it came to whether we hanged someone, we did not allow it to be the lynch mob. We said, “Let’s have 12 people to look into this carefully”. That preceded democracy and arguably was the seed of parliamentary democracy.

We now say, “We don’t want to bother with the 600-odd people whom we have elected to look into this. Their opinions are not important. We’ll have a direct referendum on it”. This feeds into the populism which you have been talking about, does it not? When we say “defend our constitution” it may be “defend our parliamentary form of democracy” that some of us are talking about.

​​Lord O'Donnell:​ Yes. I do not like the idea of lots of referendums, especially about complicated things. If we had held a referendum on getting rid of the death penalty the answer would have been no if the polls—

​​Lord Waldegrave of North Hill:​ Let alone if you had a popular vote on whether to hang an individual person. The danger for parliamentary democracy comes also from the overuse of referendums.

​​Lord O'Donnell:​ Yes. Curiously enough, I am not a fan of referendums.

Q24            ​Lord Griffiths of Burry Port:​ Thank you for the lucid way in which you are explaining complicated matters. I am not a nerd; I am the sour cream put in just before the recipe becomes what you want it to be. However, I am probably as near to being an ordinary citizen as anybody could be. My problem regarding trust concerns when bodies such as this and others throughout this building, and at a greater distance, synthesise and distil their responses to the big questions that we are wrestling with and come to some kind of conclusion. Let us call that X. What happens once we reach a settled position—although it is very difficult to imagine coming to many settled positions in these fragmentary times?

I did a lot of work once upon a time on Judge Atwell in the Court of Appeal, who managed with a plethora of precedents to get a principle that, in his view—I think it was a successful view—would pull these precedents together. It was called a duty of care. Once you have reached what feels to be the logical, obvious, humane thing to do, how do you get the message out to an untrusting population whose views are formed via social media? I have only just seen some of the ways in which important matters are dealt with there, but there is also a pretty vicious press.

Yesterday the Prime Minister in Parliament tried to establish what he was calling a more optimistic and positive view of things. I do not form a judgement about that, but read the press today. He is pilloried for daring to say certain things that touched nerves, as political statements often do. I am not sure how you generate the trust for the wise outcomes of the processes that we are involved in during times such as these. It raises the question of governability. Your office would be in a key position.

When I mentioned something like this to Lord Sedwill, he was very nice but said that the questions I raised would probably make a good discussion after dinner. Perhaps he is right, but my problem regards black kids in London, questions of migration that I deal with all the time at the Council of Europe, the movements of population, the injustices, the differences between the haves and the have-nots. These are the people whom I am dealing with all the time. How do you translate the wisdom of a body such as this and its related bodies into a conversation that engages the attention and aspires to engage the commitment of people such as those?

​​Lord O'Donnell:​ You lead me to think of that famous Juncker phrase: “We all know what to do, but we don’t know how to get re-elected once we have done it”. That is part of the problem that you are talking about. How do we engage people?

This comes back to Lord Bichard’s point about civics. We need to spend a lot more time teaching people about this. We have got an obsessed Department for Education, for which certain exam results are what it is all about. Education is so much broader than that. It is important that we teach people what to trust and what not to trust. Politicians can have a big part to play in this—telling the truth, being objective, confronting difficult situations. We have gone through a long time of overpromising, underdelivering and not confronting what we all know to be the big issues.

​​Lord Griffiths of Burry Port:​ Are we not afraid of admitting failure when the processes that publicise these sorts of things hark back 10 or 20 years to when you said something and say, “Why are you now doing something different?” People do make mistakes and do grow and learn.

​​Lord O'Donnell:​ It is almost the opposite. If you do not make mistakes, you are making a massive mistake. You are not trying things. If we are going to experiment in the world and have trials, then things are not going to work all the time. That is what really annoys me about some of the NAO stuff. We need to say to people, “Yes, it did not work. What did you learn from that? Are we doing something better now?” If we are going to do stuff that is innovative and that will work and get better value for money, we are going to experiment and there will be some mistakes. Grown-ups, most entrepreneurs around the world, have failed two or three times along the way. That is part of the learning process. In America that is completely accepted. We look on it as something terrible.

I made loads of mistakes when I was press secretary, huge mistakes every day. You would see them in the papers the next day. However, you learn very quickly. That feedback mechanism is important. As long as we learn, I do not worry about making mistakes, but the public need to understand. It comes back to how to build trust with the public. You are right. You build trust with the public by doing what you say you will do, not overdoing it and all the rest of it. One of the paradoxes is this—and I do not know the answer to this question. I have lived in America twice. In America, if there is a problem and someone says, “Well, the Government should fix that”, they say that the Government are the last people who should do it. In the UK, if there is a problem there is a clamour from everybody: “Why is the Government not doing more about this?” They say that they do not trust government, yet they want government to do ever more.