Safeguarding the constitution is a job for a 'serious and authoritative figure' whose advice cannot be lightly disregarded, peers tell the government today. In a report on executive oversight and responsibility for the UK constitution, the House of Lords select committee on the constitution proposes more formal safeguards for the uncodified constitution.
At the moment, the duty of safeguarding the constitution is split between several ministers, the report concludes. Apart from the prime minister and lord chancellor, ministers with responsibility for constitutional policy include the chancellor of the Duchy of Lancaster and the secretary of state for housing and local government.
Given so much of the responsibility for safeguarding the constitution sits with the prime minister 'we consider that more formal constitutional safeguards are necessary', the committee states. This might include appointing a minister with specific responsibility for advising on constitutional safeguarding, as well as creating a statutory role for existing advisory bodies.
The minister responsible for advising the prime minister need not necessarily be the lord chancellor but must be 'a senior and authoritative figure whose advice on constitutional matters cannot be lightly disregarded'.
The report is the latest from the committee to note the changes to the role of lord chancellor and law officers since the 2005 Constitutional Reform Act. One effect of abolishing the convention that the lord chancellor must be a senior lawyer is to increase the relative importance of the law officers, it notes. Thus the attorney general must ‘place their duty to the rule of law above party political considerations’.
The report also notes a 'key distinction' between lawfulness and constitutionality. The Civil Service Code bars civil servants from supporting an action that the attorney general advises is unlawful. However no such block exists on an act deemed unconstitutional - for example, in violation of a clear convention - so long as it is lawful.
If the prime minister violates the constitution 'the only possible sanctions are political in nature, whereas action which is potentially unlawful ... can ordinarily be challenged before the courts', the report states.
Committee chair Baroness Drake (Jeannie Drake) said: 'In recent years the constitution has been placed under stress in a number of ways and we hope that the recommendations laid out in our report today will aid the government in strengthening the safeguards to protect our constitution.'
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