12
Examination of witness
Lord Case.
Q39 The Chair: Welcome to this meeting of the House of Lords Constitution Committee. Today we are holding the third and fourth evidence sessions of the committee’s inquiry into the UK’s constitutional safeguards. Following from the discussions that we had with Lord Young earlier this morning, we are now joined via Zoom by Lord Case, former Cabinet Secretary and head of the Civil Service. Lord Case, welcome to the committee. You are very welcome to be here and we are extremely pleased to see you. We have a number of questions. You probably know everybody who is here. We are looking to investigate the thoughts and ideas that we have on the constitution.
Let us start off with a general one: how would you describe the constitutional role of the monarch in the present-day governance of the UK? That is not a question for you. This is the question that I had for you: what is the role of the Cabinet Secretary in the functioning of the UK constitution? Would you describe the Cabinet Secretary as a constitutional guardian? That was a deliberate mistake because, of course, Lord Young dealt with that question admirably and we do not need Lord Case doing it as well.
Just to repeat what I said, the question is about the Cabinet Secretary and how the Cabinet Secretary operates in the functioning of the constitution. Does the Cabinet Secretary act as a constitutional guardian? I think your answer will be “yes”.
Lord Case: Good morning, Chair. Thank you very much for inviting me and arranging this so that I could follow Lord Young. He and I had many happy years working together. I managed to listen to some of his evidence and was reminded fondly of time spent on a Wednesday evening having a glass of something downstairs while our bosses were discussing matters upstairs.
Yes, the role of the Cabinet Secretary is one of the constitutional guardians. I would describe the Cabinet Secretary as I would describe the role of principal private secretary to the Prime Minister and the private secretary to the sovereign: as a tier 2 guardian, not a tier 1 guardian. Ultimately, the tier 1 guardians are the monarch, the Prime Minister and maybe one or two others.
I say that because the Cabinet Secretary, principal private secretary to the Prime Minister and private secretary to the sovereign do not really have much of a—let me not use the word “constitutional”—legal status of their own separate from their bosses. The serious entities are their principals, the sovereign and the Prime Minister, and these are the support cast to those principal figures.
In terms of the role of the Cabinet Secretary, I can be very brief. As I just said, you have had very good descriptions from two of my predecessors, Lord Sedwill and Lord O’Donnell. You are there predominantly to advise the Prime Minister on constitutional matters. There are times in extremis where you might be drawn into conversations with the sovereign but probably more likely with the private secretary to the sovereign. I will leave it there and let you go on with questioning.
Q40 Baroness Laing of Elderslie: Good morning. I was going to ask you how you had navigated any particularly complex or novel constitutional issues during the time that you were Cabinet Secretary. It then occurred to us that you navigated in quick succession four Prime Ministers, which is a rather different challenge to that of any of your predecessors. What can we learn from that and how you navigated it?
Lord Case: I suspect most of the lessons are to do with the internal operation of political parties and less to do with the actual constitution. I was reflecting on my period earlier on this morning while talking to the dog on a walk. During my time as Cabinet Secretary, we had reign change; we had four Prime Ministers in quick succession; we had a global pandemic, which had different constitutional aspects but put enormous strain on our devolution settlement, something that I know Lord Jones would have very strong views on; and a number of other things. Yes, there was plenty going on constitutionally.
My answer on how we navigated them is very similar to the answers that you heard from Lord Young and others. At the heart of navigating these things is a trusting relationship with your key colleagues and access to your predecessors. I was lucky enough to study under the likes of Lord Hennessy, so I had some academic training in thinking about the constitution as well.
I will give you an example of something that flashed up. I mention this simply because the 1950 “Senex” letter has already been mentioned in the earlier session with Lord Young. On those couple of extraordinary days when Boris Johnson’s Cabinet Ministers were resigning left, right and centre and his Government were falling apart, some—I will leave them unnamed—uninformed individual around Boris Johnson decided to float the idea of whether it would be time to call a general election as a way of avoiding him being brought down by his own party.
That was one of those very good examples where, as Cabinet Secretary, you have to get the Lascelles principles and that “Senex” letter out of your desk, show it to them and say, “Here are all the reasons why I do not think that is a very good idea and why the sovereign might be within their rights to refuse to allow you to call a general election, so do not pursue that line”. You need to be able to draw on your own experience and your interactions with your colleagues to navigate these things in this unwritten and highly uncodified world of our constitution.
Baroness Laing of Elderslie: That is a very interesting answer. Can I lead you down that path? Does that mean that the person holding the post of Cabinet Secretary has to have, in addition to the theories that come from Lord Hennessy and other sources, access to their predecessors? Do you have to be strong enough, therefore, to stand up to an outspoken Cabinet Minister who thinks that he has public opinion on his side?
Lord Case: Yes, you do. You need to be very confident of your ground, what are facts, what is your judgment and what is opinion, and you have to be willing to explain that to a Prime Minister, a Cabinet Minister or some such other person.
Baroness Laing of Elderslie: It is very interesting that you mentioned that having access to and therefore, one would assume, support from your predecessors and others around you is an essential part of that.
Lord Case: It certainly helps. As lots of people around your end of your table would understand, many leadership roles can often be very lonely. Key judgments can fall on your shoulders. Having the comfort of consulting your predecessors and having good relationships with critical colleagues, such as the private secretary of the sovereign, is absolutely essential.
I was very lucky that, on the constitutional aspects of being Cabinet Secretary, I had been principal private secretary to the Prime Minister. I had done that role. I had also served for two years in the Royal Household as private secretary to Prince William. On these questions of the interaction between the sovereign, the Royal Household and Government, I had seen quite a bit of this personally. That certainly helped.
Baroness Laing of Elderslie: There is a body of people, of experience, informally brought together, that forms a guardianship of the constitution.
Lord Case: I would say so. I will declare a broader view now: I think that it is inadequate. I started off as a PhD student under Lord Hennessy observing the glories of our unwritten constitution and celebrating them in that Bagehot and Hennessy tradition. As time has gone on—I am one of those people who has been on a rather long journey on this—I have become more and more convinced that we should be heading towards a more codified and written constitution.
Certainly, having seen the constitution up close and personal in a number of roles, like Lord Young, I absolutely loathe the “good chaps” phrase to describe this. Of course, when you look back at the history of this country, nearly all the people who have operated in these guardian roles in fact were chaps, and probably “chaps” was a very good description of them because many of them had been to school together; they had been to university together; they had come from the same social classes; they had come from the same backgrounds. I do not think that is a justifiable way of managing a 21st-century G7 economy.
Q41 The Chair: I just want to pick that up. I completely agree with you and Lord Young on this phrase “good chaps”, but at its heart there is something quite important, which you mentioned earlier on, about trust, confidentiality and knowledge. The Cabinet Secretary, the PPS to the Prime Minister and the PPS to the monarch—the tier 2s—need to have a relationship. Again, Lord Young emphasised the private nature of the conversation between the monarch and the Prime Minister. Presumably, the Cabinet Secretary also has to have the ability to hold deeply private and highly complex discussions, when required, with the PPSs that exist. Do you agree?
Lord Case: It is absolutely essential. In exactly the same way that Lord Young described the upstairs discussion going on between the Prime Minister of the day and the sovereign and that high degree of confidentiality and trust, exactly the same has to be going on downstairs, in my view. No matter who the people are, no matter their backgrounds and no matter their roles, there must be a trusting relationship between the two.
That is one of the many reasons why a rapid changeover of PPSs to the Prime Minister and Cabinet Secretaries is a bad idea. It is a bad idea for a number of reasons, but, sticking to the purpose of your committee’s interests, it is particularly bad for forming those trusted relationships that really matter when the constitutional chips are down.
Lord Beith: Did you find that you had to educate Prime Ministers on constitutional principles of which they were unaware or unfamiliar?
Lord Case: Yes. Despite many of them having been to some of the nation’s finest schools and universities, it turned out that some bits of their education had been missing.
Q42 Lord Murphy of Torfaen: Does the Cabinet Secretary, whether it is a chap or, as my old boss Mo Mowlam used to say, a chapess, have any weaknesses as a constitutional guardian? If those weaknesses are so prevalent that you were not able to persuade a Prime Minister or a Government that what they were doing was fundamentally wrong constitutionally, at what point would you resign?
Lord Case: Yes, there are inherent weaknesses. It settles on the fact that you are appointed and dismissed at the will of the Prime Minister. In the end, the hiring and firing power, which has been used a number of times in the recent past, now creates an inherent problem in the power dynamic: the Prime Minister is the boss; the Cabinet Secretary is an adviser to the Prime Minister. If the Prime Minister ultimately does not like the advice and chooses to ignore it, the Prime Minister, in extremis, could dismiss the Cabinet Secretary and say, “Bring me someone else who will give different advice”. The Cabinet Secretary, again in extremis, could say, “I am sorry. You are not listening. This is not a point of policy where it is judgment. I think this is a critical point of almost constitutional safety. Therefore, I am going to resign over this”. You could imagine that.
The Chair: It would be a very powerful thing as well. I think it was Lord O’Donnell who said that, if something was illegal, that was very helpful because you could say, “Prime Minister, do not do that. It is illegal”. But, where something was not illegal but constitutionally extremely difficult, there was a final position where the Cabinet Secretary could resign and that in itself would lead to some form of constitutional crisis.
Lord Case: That is right. In the modern cut and thrust of British politics, I am not entirely sure that the resignation of a Cabinet Secretary would have that impact. Perhaps in years gone by, that might have been true, but Cabinet Secretaries these days are becoming a little bit like Prime Ministers and London buses, in that they come and go. The personalities and the context would determine it, of course, in the end. That is always going to be the same.
Lord Murphy of Torfaen: There is a difference in being sacked and saying, “I am going because I think you are doing the wrong thing”, and then making sure the world knows about it. That is why you have gone. There is nothing private about it: “I am going because you are making a major constitutional mistake here”. Would that have an impact?
Lord Case: It would. It is entirely dependent on personalities and context, but it is one of those reasons why I have become more and more convinced that we need to head much further down the road of codifying these things. Leaving it to the chance of a Cabinet Secretary having to resign and making the right fuss as he or she walks out of the door feels to me like a rather unreliable way of bringing to the nation’s or Parliament’s attention that something very seriously and constitutionally unwise or unsound is going on.
The Chair: Lord Young made quite a neat distinction about something that was in a recently elected Government’s manifesto but was constitutionally offensive in some way. That would be much harder to block. I suspect you agree with that.
Lord Case: I heard it and could not agree more. It is a very good way of distinguishing. That comes back to the great challenge for anybody who is unelected. Whether sovereign or official, in the end, if the Prime Minister of the day, supported by Cabinet and Parliament, is carrying out some activity on the basis of a manifesto, anybody who is unelected pretty much has to get out of the way, ultimately.
Q43 Lord Burnett of Maldon: Good morning, Lord Case. I am intrigued that you have twice used a phrase to the effect that you are convinced that we need a more codified constitution. Can you tease that out for us a little? One could imagine that aspects of what are currently governed by constitutional conventions might be put in legislation. That is a step in the direction of codification, which is a long way short of a written constitution.
Speaking for myself, I would be concerned about a written constitution because it thrusts the judiciary into the position of being the final arbiters. I just wonder whether you could give us some examples, if you are thinking of the former, of aspects of the constitution that could be codified in legislation, or are you thinking of something—I will use this description—more radical, along the lines of a formal written constitution?
Lord Case: Personally, I am at the more radical end. It has been a long journey to get to this point. I am also a pragmatist, in that it will be a very long time until we have such a thing. You need a very particular set of circumstances as a nation to arrive at a written constitution that can be accepted. If you look around the world, written constitutions have only been born out of a very extreme set of circumstances for nations. Although many things around the world lead us to have more concern about the fate of our nation, we are not yet in an extreme case.
A pragmatic approach will be required. You suggest a middle way of more codification. Look at something such as the Cabinet Manual, for example, which is woefully out of date. It is ludicrous that it has not been updated. As Cabinet Secretary, I produced an updated draft, now three or four Prime Ministers ago. All of them have said, “Yes, we will publish an updated draft”, but it has not been done. It is absolutely crazy.
Nevertheless, it was a step forward to have a Cabinet Manual, but it still has absolutely no authority or effect. It just sits there as a public document that can be called upon in parliamentary or broader discussion. It has no effect. I am not sure that that is particularly wise. There are aspects of the Cabinet Manual that might be worth bringing forward into legislation.
One very important example, which I know Lord Young mentioned, to give you a specific, is a requirement to have a Deputy Prime Minister. After the episode that Lord Young mentioned, with Boris Johnson potentially facing having to go on to a ventilator and that sort of thing, we looked at what we could do to strengthen that public order of precedence within Government. I said to the House of Commons Select Committee that we had put in place arrangements to make sure that we always had a Deputy Prime Minister thereafter—for exactly that scenario and others. The Covid inquiry took evidence on this and agreed with that approach.
However, I notice that the current Prime Minister has not appointed a Deputy Prime Minister. Despite our sound reason for saying, “It is very advisable to have a Deputy Prime Minister for these sorts of scenarios”, it was still totally open to a new Prime Minister to say, “No, thanks. I am not going to do that”. For the safety and certainty of managing the nation, I am just not sure we should be leaving that sort of thing up to the whim of a Prime Minister of the day.
Q44 Lord Cryer: Lord Case, you have sort of talked about this. What role does the principal private secretary to the Prime Minister play during decision-making on constitutional issues?
Lord Case: This is probably the least understood corner of the golden triangle. In the interaction between, as Lord Young put it, the two ends of St James’s Park, in my experience the principal private secretary to the Prime Minister is the much more frequent conduit of the exchange of information between the Government and the sovereign, if we include the sovereign’s staff in that.
As principal private secretary to the Prime Minister, I would be talking to Lord Young in his role and his predecessors several times a week about what was going on. That would be all on the principle of trying to deliver the “no surprises” approach to the constitution. Of course, that is not to suggest that multiple times a week we had to talk about some grand constitutional crisis. It is not that at all. It is just part of the important flow of information between both ends of the park about what is going on, what is on the Prime Minister’s mind, what is happening in the conduct of a military campaign somewhere given that the Armed Forces operate in the sovereign’s name and all that kind of thing, or what is going on in Parliament. A lot of those interactions go from private secretary to private secretary.
Cabinet Secretary interactions are much fewer and usually only when you really are starting to cross the threshold of a serious constitutional issue, when the Cabinet Secretary comes into the conversation. The PPS to the Prime Minister is critical for the operation, at the government end, of the “no surprises” approach to the constitution.
Lord Cryer: Just on the “no surprises” element, you talked about how you thought that a system had been established to make sure that Prime Ministers would appoint a Deputy Prime Minister. That has not happened. My understanding was that historically—this was not set in stone—there was an understanding that the Leader of the House of Commons was the number two. I am talking 40 or 50 years ago. If something happened to the Prime Minister, the Leader of the House of Commons would take over. Since we have not had a Deputy Prime Minister, the title has changed and we have a First Secretary, who is Louise Haigh. You would assume that, if anything happened to the Prime Minister, the First Secretary would take over, but it is still in doubt. We are still in the position that you described: if anything happened, everybody would have to get together and come up with a solution, which would probably be the First Secretary, but we do not know.
Lord Case: I completely agree with you. My assumption is the same as yours. This title of First Secretary of State was first invented for Peter Mandelson, if I remember correctly, by Gordon Brown. It conveys the sense that this person fulfils that deputy role but, as you said, we are making assumptions. We are a $4 trillion economy, a nuclear power, a P5 nation; you and I should not be sitting here having to make assumptions about who is in charge if the Prime Minister is unavailable. Come on.
Lord Cryer: Yes, fair enough.
Q45 Lord Bellamy: Lord Case, good morning. Could we just come back to your comment a moment ago? You said something to the effect of, “Anyone who is not elected has to get out of the way, whether official or otherwise”. I just want to explore for a moment how this might work in circumstances where the Government of the day have quite a narrow parliamentary majority but are in a real minority as far as the popular vote is concerned. We may have all kinds of political parties in future. We have a more fragmented scene. Does that scenario affect what you were saying at all?
Lord Case: In the end, the principle remains the same. There is a group of unelected people, from sovereign through to official, who undoubtedly have significant power and influence over the operation of the state. In my view, if you are unelected, you have to be extremely conscious about the fact that you are unelected and therefore wield the power that you have and the advice that you give appropriately, and recognise that you have to consider yourself ultimately secondary to any Government who are elected.
As you explored with Lord Young, there is a whole range of scenarios that would test that. Perhaps the most extreme ones are where the sovereign’s prerogative powers are called into effect. Before doing that, an unelected figure, whether sovereign or not, would need to be very sure of the ground that they stood on. You would need to take very broad advice to make sure that, if you were starting to operate and influence matters of democracy, you were very sure of the ground that you were standing on and that you have the support of a number of important people.
Lord Bellamy: Does it follow from that that the monarchy as such is quite a weak constitutional safeguard in extreme circumstances?
Lord Case: In my view, yes.
Q46 Lord Burnett of Maldon: One of the issues that we are interested in is your view about the importance of the golden triangle in safeguarding the constitution. Many of your answers thus far have begun to illuminate that, but they have largely been in the context of what seems to me to be the golden triangle lubricating an engine that is working pretty well. We are interested in how the golden triangle would and should operate if that engine is breaking down. That is the scenario that is prompting so much interest in constitutional matters at the moment. I wonder whether you might be able to expand upon that.
Lord Case: As a historian of these things, it is a rather interesting question to look at how the golden triangle functions in practice. If you go back to 1974, it operated in practice by walks around St James’s Park. On more than one occasion, I remember having a walk around St James’s Park with Lord Young. Walks around the park continue to be an important part of the operation of the golden triangle.
More seriously, let me give you a concrete example, which I have already referred to, of those couple of days at the end of Boris Johnson’s time when people were thinking about whether we could call a general election to save his premiership. As soon as that came to me as a question, even though I dealt with it pretty quickly, I was immediately on the phone discussing that with other members of the golden triangle, to say, “There is something that might be happening here that we need to know about. We need to step up our golden triangle DEFCON level. We need to be communicating with each other a lot. It is time to stand on alert because there are significant constitutional things being discussed”.
In the end, the primary task between that group of people is the exchange of information and possibly the triangulation of advice: “This is what I am saying to the Prime Minister”. “This is what I am saying to the sovereign”. Can we make sure that, even if, in the end, these are matters of judgment for Prime Ministers and sovereigns, at least the facts on which we are drawing our advice are consistent, we are all aware of the same precedents and we are reading them in the same way?
In the end, the golden triangle are advisers. They are advisers to two of the critical constitutional principals. It is always important. Although we have given it this slightly silly name of the golden triangle—we are elevating it in some constitutional fantasy league way—the reality is that all the members of the golden triangle are advisers to principals. They are not principals in and of themselves.
The Chair: I thought you described very well the idea of a tier 1 and a tier 2 earlier in your evidence. You also said a moment ago, in answer to Lord Cryer, that you thought the monarch as a constitutional safeguard was on the weaker side. Would you choose to strengthen it? If so, how? Is it right that it is a relatively weak safeguard and the real constitutional backstops end in Whitehall or Parliament, either in the Head of Government or with the Cabinet Secretary?
Lord Case: I would not strengthen the role of the monarch. In 21st-century modern democracy, strengthening that role of a beloved but still unelected Head of State would feel to me to be going against the flow of our nation’s history.
In terms of strengthening the backstop, it is the strength of that backstop that leads me on this very strange journey that I have been on through my career to conclude that probably the best backstop is a written constitution.
I certainly do not think that that backstop should be in the hands of anybody in Whitehall. It is important and right to have gatekeepers or guardians such as Cabinet Secretaries. I was going to say that these things ultimately need to rest in settled law and, although I cannot currently see Lord Burnett’s face, I know what face he might be pulling if I tried to describe anything that is going on in any constitutional environment as settled law, given the amount of battles that are going on. I would not strengthen the monarchy. That would be inviting even more weight or pressure down on the very existence and role of the monarchy.
Q47 Lord Murphy of Torfaen: Could I just question a little what I see as a contradiction in what you have said? On the one hand, you argue for a written constitution, where I suspect the role of the monarch would be much more defined in writing; on the other hand, the strength of the present situation is that it is not defined in writing. Is that not a contradiction?
The Chair: I am sure you have heard that argument before.
Lord Case: This is a wonderful essay question that is hammered out in many seminar rooms all around the country. As I say, I learned my constitutional thinking originally under Peter Hennessy. As I said, on a week-by-week basis, we celebrated the glories of our unwritten constitution and how that flexibility created strength.
I have seen it up close, and my experience fits with points that I know have come up in the committee’s previous sessions around transparency in how our constitution operates and the fundamental questions of who in this country wields power, in whose interests they are wielding that power, who put them in place and how you get rid of them if they are not acting in the interests of the majority. Those sorts of factors have led me on this very strange journey towards thinking that a written constitution might, in the end, be the right answer for this country.
Q48 Lord Jones of Penybont: Given that you name-checked me, I feel I should say something, as somebody who did operate within a written constitution. Devolved Wales, like devolved Scotland, has a written constitution. There are four founding documents that are Acts of the UK Parliament and it works pretty well. It did improve over the years, which is something I was quite used to but, like you, I am pragmatic enough to know that a written constitution is not around the corner and it is not necessarily, of itself, a safeguard as we see in other parts of the world that I will not name.
I was going to ask you this. Short of a written constitution, is there anything that could be done to strengthen our constitutional safeguards?
Lord Case: It is obviously for the committee to reach its own conclusions, but—this is the thread that Lord Burnett was pulling on earlier—identifying some of those critical things that we might look to move from the precedent book, the Cabinet Manual or something and bringing them into legislation feels like a good idea.
If you take the grand sweep of history, there is an enormously significant thing happening constitutionally at the moment in Parliament, which is changing the law so that a Roman Catholic or Jewish Prime Minister could be involved in the appointment of bishops in the Church of England. What on earth is this all about? If you look at our nation’s history, that is a really significant historical, constitutional and societal move.
Perhaps rather more seriously, I would look at these questions around the order of precedence: “Who do you call if X or Y is unavailable?” and those sorts of things. We should be taking away the ambiguity and choice in the assumptions that Lord Cryer and I were discussing earlier. You would not run a business like that, so why are we trying to run a country with this level of uncertainty?
Q49 Baroness Hamwee: I think I know the answer to the question about changes that could be made to better protect the constitution. Perhaps the preliminary question, Lord Case, is not about the constraints on the individual postholders, if I can call them that, but whether the constitution overall is vulnerable. If so, in what ways is it vulnerable?
Lord Case: Over recent years, we have seen an amazing amount of freedom for a Government of the day to ignore precedent and ignore the advice that is drawn from that “good faith” theory of constitution.
Is it truly a growing trend? I do not know, but it feels like one to me. Therefore, things that used to be pencil lines in and around our constitution perhaps should be turned into inked lines. Even in my world, where we might end up with a written constitution, personality and context will always be absolutely critical. I am not remotely naive about politics.
I dug out this morning a quote from a speech that Leo Amery gave just after the war, in which he described the constitution as “a living structure, continuously shaped in the course of history by the interaction of individual purposes and collective instincts with the requirements of ever-varying circumstances”. It is wonderful. We often quote Bagehot liberally, but Leo Amery’s description is a very good one.
I come back to the point. Should we really be operating a 21st-century G7, P5, nuclear-armed state in that way? It would be good, as I said, to have a few more inked lines in the constitution.
Baroness Hamwee: Can I ask you about getting from here to there, if we were to aim for a written constitution? In your experience, would it gum up everything else that needs to happen?
Lord Case: It would be extremely difficult to achieve as part of the normal run of politics and how we run the country. As I mentioned earlier, the circumstances in which you shift to a written constitution are coming out of very large-scale national or international crisis. It is liberation. It is those moments where restating or creating a new platform for all of your national institutions really matters.
I am highly pragmatic about how you would get there. We see this with the endless constitutional tinkering that goes on at the moment. Take House of Lords reform: the moment you go into that, it can gum everything up. I would be very cautious about jumping all the way to a written constitution through the normal times of Parliament.
The Chair: Thank you very much. We have come to the end of our questions. I want to thank you for taking the time and trouble and being very candid in what you have said. I am sure Lord Hennessy will be very pleased and impressed, and I am sure he is listening in.
Lord Case: He will wildly disagree with large chunks of it.
The Chair: I know. You talked about what Lord Burnett’s face might have looked like after his question and your views. Of course, we are all unelected here as well, but we feel that we have a role in trying to shed light on this. One of the things that we are trying to do is to look ahead, over the next 10 to 15 years, at what the constitutional weaknesses are and whether we need to strengthen the safeguards to protect us from uncertainty and some of the dangers that you know well. Is there anything else that you would particularly like to finish on?
Lord Case: No. Thank you very much. More power to your elbow.
The Chair: Thanks a lot. I now would like to draw this session to a close.
