What does the new Prime Minister mean for the constitution?

The Constitution Unit held an event in November at which three expert panellists discussed the potential constitutional impact of newly appointed Prime Minister Rishi Sunak, discussing the problems posed by concerns about ministerial standards, the government’s decision to proceed with several bills that pose worrying constitutional questions, and the future of the devolution settlement. Alice Hart and Hashmath Hassan summarise the contributions.

On the day that the UK Supreme Court ruled that the Scottish Parliament cannot legally hold another independence referendum without Westminster’s approval, the Constitution Unit held an event to discuss the potential constitutional impact of the new Prime Minister, Rishi Sunak. The event was chaired by Professor Meg Russell, Director of the Constitution Unit, and brought together three expert panellists: Jill Rutter (a Senior Research Fellow at UK in a Changing Europe and a Senior Fellow at the Institute for Government); Dr Ruth Fox (Director of the Hansard Society); and Professor Colm O’Cinneide (Professor of Constitutional and Human Rights Law at University College London). The summaries below are presented in order of the speakers’ contributions. 

Jill Rutter 

Jill Rutter discussed the need to repair the damage done to the perception of standards in public life during Boris Johnson’s time as Prime Minister. Johnson suffered the resignation of two Independent Advisers on Ministers’ Interests in as many years, tolerated misbehaviour from his MPs and was ‘fast and loose with the facts’ in parliament. Sunak’s commitment to the integrity agenda is unclear, Rutter stated. He has made assurances that he will appoint an Independent Adviser (unlike his predecessor, Liz Truss, who indicated that she did not need one) and has appointed a barrister to lead an independent inquiry into bullying allegations against Deputy Prime Minister Dominic Raab. However, questions remain about Sunak’s approach to his new Independent Adviser, such as whether he will provide the postholder with sufficient resources (as promised by Johnson to former Independent Adviser Lord (Christopher) Geidt) and whether he will make any effort to ensure their independence in terms of both the publication of reports and initiation of investigations without the approval of the Prime Minister.  

Other than these immediate actions, little is known about Sunak’s plans to restore integrity and trust in government. Clamping down on lobbying may be a good place to start, Rutter suggested: she noted that the Gordon Brown review of the constitution commissioned by the Labour Party is planning to propose limitations on MPs’ second jobs. She provided some examples of big ideas that Sunak could adopt, such as Labour’s proposal to establish an Integrity and Ethics Commission and the Australian government’s introduction of an anti-corruption commission. A key challenge for Sunak, Rutter suggested, is dealing with Johnson’s and Truss’ lists of nominations to the House of Lords – especially with regard to how they may affect trust in politics.  

In terms of professionalism, Rutter was encouraged by Sunak’s approach: she said that he takes governing very seriously, has made a good start in building a relationship with the civil service, and attended the British-Irish Council, demonstrating his commitment to the devolved institutions. However, she emphasised how much is still unknown about his views and wider constitutional agenda, including his approach to devolution – a timely question given the UK Supreme Court’s decision on the Scottish draft referendum bill – and whether he can empower his government to have a cordial relationship with the civil service. 

Dr Ruth Fox 

Ruth Fox started by suggesting that a constant theme running across the Johnson administration and into the Truss government was the sidelining of parliament. There has been a trend of ministers avoiding select committee scrutiny and, more generally, policies, such as the UK’s trade deal with Australia and former Chancellor Kwasi Kwarteng’s ‘mini budget’, have been subject to insufficient scrutiny. In light of recent ministerial turnover, select committee reshuffles, and the appointment of former select committee chairs to the ‘heart of government’ (such as Jeremy Hunt), Fox raised questions regarding how select committees will settle down with new chairs and members and whether we can expect a different approach and tone towards such committees under Sunak. On the legislative side, she said that the government has got into the habit of bringing forward underprepared bills and skeleton legislation filled with powers delegated to ministers. Consequently, following royal assent, the operation of these bills is at the discretion of ministers. Given the commitment to implementing the 2019 manifesto, Fox expressed doubt that Sunak’s government will change this approach. Instead, she suggested that a coalition of backbenchers, wary of a future Labour government in which ministers might have more discretion to act without parliament’s approval, may be the most realistic hope for a rethink.  

Fox talked specifically about the House of Lords’ involvement in the constitutional problems surrounding the Northern Ireland Protocol Bill and the Retained EU Law (Revocation and Reform) Bill. For example, there are questions about whether the Lords will agree to the Protocol Bill, given its incompatibility with international law, whilst its (future) position will likely impact ministers’ powers in light of the Retained EU Law Bill. 

Professor Colm O’Cinneide 

Colm O’Cinneide suggested that Sunak inherits four particularly problematic ‘constitutional conundrums’: regarding the UK’s human rights law (and the relationship between the judiciary and other branches of government more generally), Northern Ireland (especially the Northern Ireland Protocol), wider issues of devolution (highlighted by the UK Supreme Court’s judgment on a draft Scottish independence referendum bill), and the UK’s relationship with the EU. A commonality is that if the proposed legislation to deal with these problems (such as the Bill of Rights Bill, the Northern Ireland Protocol Bill and the Retained EU Law Bill) become law, there will be a significant transfer of power to the executive and, consequently, further pressure on parliament’s already overstretched scrutiny mechanisms.  

UK human rights law has been a constant source of political agitation and tension since David Cameron promised to devise a ‘British bill of rights’ in 2006. After Truss halted the proposed Bill of Rights Bill, it is back on the table under Sunak. O’Cinneide noted that the bill is essentially Dominic Raab’s ‘personal project’, so its status will largely reflect his own position in government. Also, drawing upon the legal community’s criticisms of the bill, O’Cinneide suggested that it is ‘challenging’ for various technical reasons and is ‘crying out’ for debate, contestation and reinterpretation in the House of Lords. The Northern Ireland Protocol Bill (the fate of which is bound up with that of devolution in Northern Ireland) is going through the Lords while, simultaneously, the government is making it clear that negotiations with the EU are ongoing. A degree of ambivalence amongst ministers, according to O’Cinneide, has had an interesting impact on parliamentary scrutiny of the bill.  

Panel discussion 

In the ensuing panel discussion, each of the panellists were asked who is putting pressure on Sunak and (potentially) preventing him from pursuing his desired agenda. Fox suggested that for the Retained EU Law Bill there are tensions between the original Brexiteers (who would like the bill to go through as quickly as possible) and realists in the Cabinet and on the backbenches (who recognise the enormity of the review exercise). In turn, this divide exposes tensions in the Cabinet and Conservative Party more generally. Rutter indicated that, with regards to the ethics and integrity agenda, Sunak has limited outside pressures, except for holding on to the premiership during an atmosphere of ‘regicide’. An example of this was Sunak’s appointment of Suella Braverman (who was previously forced to leave office over breaches of the Ministerial Code) – an apparent bid to keep the Braverman supporters within the party satisfied. 

The panellists all agreed that Sunak’s more collegiate approach represents a change in attitude compared to that of his predecessors. O’Cinneide noted that Sunak faces a fundamental problem because his ‘knotty constitutional conundrums’ do not lend themselves to easy solutions. Fox questioned at what point Sunak will stand up to his backbench opposition to define his position on key issues. Rutter suggested that there are opportunities for Sunak to strengthen institutions, potentially by working with opposing parties. 

Q&A 

The panel discussion was followed by a Q&A session with the audience. When asked about the potential connection between constitutional issues and Sunak’s electoral strategy, Fox argued that the salience of economic issues meant running on a constitutional platform would provide little electoral advantage. Rutter agreed that the next election will be predominantly about economic issues, and expressed fears that this could lead to populism and an attack on the establishment and its institutions. However, she suggested that there may be strong inter-party competition running up to the election with regards to which party is better suited to restore trust in politics.  

In response to a question regarding the possibility of a wider constitutional convention, O’Cinneide noted that the Conservatives, Labour and the SNP will not be able to come to a collective agreement on the UK’s constitutional future, but a convention might be useful to redirect the emphasis away from constant antagonism and contestation and towards consensus. 

On the Northern Ireland Protocol, Rutter suggested using third party processes, similar to those used regarding the Belfast/Good Friday Agreement, to facilitate transparency. This could also be an opportunity for dialogue, Rutter asserted, such as assessing how well the Agreement institutions function and the future of the power sharing arrangements.  

This is a very brief summary of the main points made during the event, which is available free of charge in audio and video formats.

About the authors

Alice Hart and Hashmath Hassan are research volunteers at the Constitution Unit, working on the Democracy in the UK after Brexit project.

Featured image: Prime Minister Rishi Sunak leaves for PMQs (CC BY-NC-ND 2.0) by UK Prime Minister.

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