REPORT Good Chaps No More? Safeguarding the Constitution in Stressful Times Andrew Blick and Peter Hennessy About the Authors Andrew Blick, Reader in Politics and Contemporary History and Director of the Centre for British Politics and Government at King’s College London, is Senior Adviser to The Constitution Society. Peter Hennnessy, FBA, Attlee Professor of Contemporary British History, Queen Mary, University of London, is an independent crossbench peer and member of House of Lords Select Committee on the Constitution. He writes here in an individual capacity. Good Chaps No More?: Safeguarding the Constitution in Stressful Times Executive Summary • A key characteristic of the British constitution is constitutional principles. the degree to which the good governance of the • It may be that changed circumstances in the United Kingdom (UK) has relied on the self- current political ecology, in particular the Brexit restraint of those who carry it out. turbulence, have made it difficult for those who • Unlike nearly every other democracy in wish to behave properly to ascertain correct the world, we lack a ‘written’ or ‘codified’ courses of action. Perhaps, more widely, the constitution. The UK has, therefore, no single current political environment has tended to text setting out the core principles, institutions elevate ‘chaps’ who are less inclined to be ‘good’. and procedures of the system, protected from It could, moreover, be that the ‘good chap’ casual alteration by amendment procedures, system was always flawed, that it was neither and enforceable by the judiciary. desirable nor as effective as was imagined, and and any success that it appeared to attain owes • Instead, in the UK, we have trusted politicians much to a measure of fortune, that has now to behave themselves. We have long assumed expired, exposing its fragility. that those who rise to high office will be ‘good chaps’, knowing what the unwritten rules are • Prompted by these diverse and disturbing and wanting to adhere to them. possibilities, the present paper performs three tasks. First, it considers what are the main • Recent events suggest it is worth considering the rules of the political system, against which it implications of a decline in the viability of the is possible to judge the conduct of those who ‘good chap’ system in this country. occupy positions of authority, and how well • The period since the European Union (EU) defined those rules are. Second, it evaluates referendum of June 2016 has seen a series of the mechanisms by which they are protected disputes about whether constitutional abuses against abuse. We approach both these tasks have taken place. They have touched upon many through considering in turn each of the three of the main governmental organs: the Cabinet, central branches of the UK constitution – the the Civil Service, Parliament, the judiciary, the executive (including the Cabinet and the Civil devolved institutions, and even the monarchy. Service), the legislature, and the judiciary. Third and finally, we propose means by which • Whatever view one takes of each particular the core aspects of the UK system might be recent incident, collectively they serve to better defined and shielded in future, thereby demonstrate potential weaknesses in the reducing dependence on the presence of ‘good traditional model of constitutional regulation. chaps’ in positions of authority. If general standards of good behaviour among senior UK politicians can no longer be taken for • We do not claim that the UK constitution is granted, then neither can the sustenance of key on the brink of unravelling. A more likely 3 Good Chaps No More?: Safeguarding the Constitution in Stressful Times pessimistic scenario is a gradual fraying by new equipoise between the moving parts of the stages. This outcome is particularly anxiety- British constitution on which the working of inducing, since it would be hard to recognise the system of government depends. It may be a and could be more readily accepted as normal. source of regret for some, but certain elements Even if, over coming months and years, the of the venerable perhaps romantic ‘good chap’ present difficulties appear to subside, it would state of mind need now to be codified in cold be a mistake to assume that there was no hard prose. threat. We should remember this experience, regardless of whether on this occasion it encounters even more serious problems. • It may prove difficult to induce adherence to higher standards of conduct among those who do not wish to meet them or do not fully appreciate their importance. But it should be possible to formulate more fully and to promote the values and rules that underpin the system. We can also seek ways of strengthening the position of those – including within the Civil Service, Parliament and the judiciary – who have a role in upholding those norms. • We offer a menu of proposals, ranging from the more established to the more experimental, by which the country might approach this task after the coming General Election. They are: – A Royal Commission; – A parliamentary inquiry; – A Speaker’s Conference or Commission; and – A Citizens’ Convention comprising a representative sample of members of the public chosen at random. • We have great faith in the deep wells of civility, tolerance and good sense that still irrigate British public and political life most of the time. But the system by its normal standards has experienced a genuine shock, not confined to but exemplified by the great prorogation stand-off. It needs urgent attention. We need a 4 Good Chaps No More?: Safeguarding the Constitution in Stressful Times Introduction Her Majesty the Queen showed considerable powers to it need to be very carefully crafted and to carry of prophecy with her parting words on leaving a wide consent. Amidst the cacophony of a general constitutional seminar at Queen Mary and Westfield election campaign it is usually very difficult for College, University of London, in the autumn of constitutional questions to get a hearing. But given 1992. ‘The British constitution has always been their centrality to the kaleidoscopic nature of the puzzling and always will be’, she said.1 Given that current political debate, they deserve their own the constitution lives and breathes in her name, her place within the often baffling threnody. words had real force a generation ago. They have an The nature of its constitution tells you a great deal even greater bite today. The stresses and strains of about a country, its society and the way ruling three-and-a-half years of post-referendum Brexitry power is calibrated and constrained within it. A have left significant parts of the British constitution key characteristic of the British constitution is the molten. The constitution has always been mercurial degree to which the good governance of the United and more than a touch mysterious – a mixture of Kingdom (UK) has relied on the self-restraint of robust statutes, rather more fragile conventions, those who carry it out. Unlike nearly every other difficult to understand royal prerogatives, and some democracy in the world, we lack a ‘written’ or even more evanescent ‘tacit understandings’2 about ‘codified’ constitution. The UK has, therefore, the conduct of those whose responsibility it is to no single text setting out the core principles, ‘work’ the British constitution (to use a verb applied institutions and procedures of the system, protected by Mr Gladstone3). from casual alteration by amendment procedures, Of all the instruments of state an incoming and enforceable by the judiciary.4 Instead, in the UK, government inherits, the constitution has special we have trusted politicians to behave themselves. We properties. It is a creation of history, the work have long assumed that those who rise to high office of many hands and minds that reflects a myriad will be ‘good chaps’, knowing what the unwritten of experiences. A government-of-the-day is its rules are and wanting to adhere to them, even if custodian but not its sole owner. The constitution doing so might frustrate the attainment of their is a shared possession of the nation as a whole policy objectives, party political goals, or personal which imposes a special duty of care on Prime ambitions – the argument being that ‘good chaps’ Ministers, Cabinets, and Parliament too. Changes (of different sexes) know where the undrawn lines 1 Quoted in Peter Hennessy, The Hidden Wiring: Unearthing the British Constitution (Gollancz, London, 1995), p.33. 2 Sidney Low, The Governance of England (Fisher Unwin, London, 1904), p.12. 3 W. E. Gladstone, Gleanings of Past Years, volume 1 (John Murray, London, 1879), p.243. 4 Cabinet Office, The Cabinet Manual: A guide to the laws, conventions and rules on the operation of government (Cabinet Office, London, 2011), p.2. 5 Good Chaps No More?: Safeguarding the Constitution in Stressful Times lie and come nowhere near to crossing them: hence their friends. They must declare and resolve any ‘the good chap theory of government.’5 The ‘good interests and relationships. chap’ principle emerged over a long period of time. Its existence was assumed rather than expressly 3. Objectivity defined. As Gladstone put it in 1879, the British Holders of public office must act and take decisions constitution ‘presumes more boldly than any other impartially, fairly and on merit, using the best the good sense and good faith of those who work it.’6 evidence and without discrimination or bias. What we might regard as the closest equivalent 4. Accountability to a formal codification of what is expected of a Holders of public office are accountable to the public ‘good chap’ came relatively recently in the form of for their decisions and actions and must submit the Seven Principles of Public Life. First issued by the themselves to the scrutiny necessary to ensure this.