Good Chaps No More?


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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 the degree to which the good governance of the United Kingdom (UK) has relied on the selfrestraint of those who carry it out.
• Unlike nearly every other democracy in the world, we lack a ‘written’ or ‘codified’ constitution. The UK has, therefore, no single text setting out the core principles, institutions and procedures of the system, protected from casual alteration by amendment procedures, and enforceable by the judiciary.
• Instead, in the UK, we have trusted politicians to behave themselves. We have long assumed that those who rise to high office will be ‘good chaps’, knowing what the unwritten rules are and wanting to adhere to them.
• Recent events suggest it is worth considering the implications of a decline in the viability of the ‘good chap’ system in this country.
• The period since the European Union (EU) referendum of June 2016 has seen a series of disputes about whether constitutional abuses have taken place. They have touched upon many of the main governmental organs: the Cabinet, the Civil Service, Parliament, the judiciary, the devolved institutions, and even the monarchy.
• Whatever view one takes of each particular recent incident, collectively they serve to demonstrate potential weaknesses in the traditional model of constitutional regulation. If general standards of good behaviour among senior UK politicians can no longer be taken for granted, then neither can the sustenance of key

constitutional principles.
• It may be that changed circumstances in the current political ecology, in particular the Brexit turbulence, have made it difficult for those who wish to behave properly to ascertain correct courses of action. Perhaps, more widely, the current political environment has tended to elevate ‘chaps’ who are less inclined to be ‘good’. It could, moreover, be that the ‘good chap’ system was always flawed, that it was neither desirable nor as effective as was imagined, and and any success that it appeared to attain owes much to a measure of fortune, that has now expired, exposing its fragility.
• Prompted by these diverse and disturbing possibilities, the present paper performs three tasks. First, it considers what are the main rules of the political system, against which it is possible to judge the conduct of those who occupy positions of authority, and how well defined those rules are. Second, it evaluates the mechanisms by which they are protected against abuse. We approach both these tasks through considering in turn each of the three central branches of the UK constitution – the executive (including the Cabinet and the Civil Service), the legislature, and the judiciary. Third and finally, we propose means by which the core aspects of the UK system might be better defined and shielded in future, thereby reducing dependence on the presence of ‘good chaps’ in positions of authority.
• We do not claim that the UK constitution is on the brink of unravelling. A more likely

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Good Chaps No More?: Safeguarding the Constitution in Stressful Times

pessimistic scenario is a gradual fraying by stages. This outcome is particularly anxietyinducing, since it would be hard to recognise and could be more readily accepted as normal. Even if, over coming months and years, the present difficulties appear to subside, it would be a mistake to assume that there was no 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
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new equipoise between the moving parts of the British constitution on which the working of the system of government depends. It may be a source of regret for some, but certain elements of the venerable perhaps romantic ‘good chap’ state of mind need now to be codified in cold hard prose.

Good Chaps No More?: Safeguarding the Constitution in Stressful Times

Introduction
Her Majesty the Queen showed considerable powers of prophecy with her parting words on leaving a constitutional seminar at Queen Mary and Westfield College, University of London, in the autumn of 1992. ‘The British constitution has always been puzzling and always will be’, she said.1 Given that the constitution lives and breathes in her name, her words had real force a generation ago. They have an even greater bite today. The stresses and strains of three-and-a-half years of post-referendum Brexitry have left significant parts of the British constitution molten. The constitution has always been mercurial and more than a touch mysterious – a mixture of robust statutes, rather more fragile conventions, difficult to understand royal prerogatives, and some even more evanescent ‘tacit understandings’2 about the conduct of those whose responsibility it is to ‘work’ the British constitution (to use a verb applied by Mr Gladstone3).
Of all the instruments of state an incoming government inherits, the constitution has special properties. It is a creation of history, the work of many hands and minds that reflects a myriad of experiences. A government-of-the-day is its custodian but not its sole owner. The constitution is a shared possession of the nation as a whole which imposes a special duty of care on Prime Ministers, Cabinets, and Parliament too. Changes

to it need to be very carefully crafted and to carry wide consent. Amidst the cacophony of a general election campaign it is usually very difficult for constitutional questions to get a hearing. But given their centrality to the kaleidoscopic nature of the current political debate, they deserve their own place within the often baffling threnody.
The nature of its constitution tells you a great deal about a country, its society and the way ruling power is calibrated and constrained within it. A key characteristic of the British constitution is the degree to which the good governance of the United Kingdom (UK) has relied on the self-restraint of those who carry it out. Unlike nearly every other democracy in the world, we lack a ‘written’ or ‘codified’ constitution. The UK has, therefore, no single text setting out the core principles, institutions and procedures of the system, protected from casual alteration by amendment procedures, and enforceable by the judiciary.4 Instead, in the UK, we have trusted politicians to behave themselves. We have long assumed that those who rise to high office will be ‘good chaps’, knowing what the unwritten rules are and wanting to adhere to them, even if doing so might frustrate the attainment of their policy objectives, party political goals, or personal ambitions – the argument being that ‘good chaps’ (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.
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Good Chaps No More?: Safeguarding the Constitution in Stressful Times

lie and come nowhere near to crossing them: hence ‘the good chap theory of government.’5 The ‘good chap’ principle emerged over a long period of time. Its existence was assumed rather than expressly defined. As Gladstone put it in 1879, the British constitution ‘presumes more boldly than any other the good sense and good faith of those who work it.’6
What we might regard as the closest equivalent to a formal codification of what is expected of a ‘good chap’ came relatively recently in the form of the Seven Principles of Public Life. First issued by the Committee on Standards in Public Life in 1995, they are known as the ‘Nolan Principles’, after the inaugural chair of the committee, Lord (Michael) Nolan (who served in this post from 1994 to 1997).7 These standards supposedly apply to all exercisers of public functions, though they have no legal force. The principles, with official explanatory texts, are:
‘1. Selflessness
Holders of public office should act solely in terms of the public interest.
2. Integrity
Holders of public office must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work. They should not act or take decisions in order to gain financial or other material benefits for themselves, their family, or

their friends. They must declare and resolve any interests and relationships.
3. Objectivity
Holders of public office must act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias.
4. Accountability
Holders of public office are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this.
5. Openness
Holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for so doing.
6. Honesty
Holders of public office should be truthful.
7. Leadership
Holders of public office should exhibit these principles in their own behaviour. They should actively promote and robustly support the principles and be willing to challenge poor behaviour wherever it occurs.’
We leave readers to judge how well those serving at

5  Clive Priestley, formerly a senior member of the Prime Minister’s Efficiency Unit, referred to the ‘good chaps [sic] theory of government’ at an Adam Smith Institute conference at St. George’s Windsor in 1985, speaking to a group of officials from the Ronald Reagan administration. See: Clive Priestley, ‘Promoting the efficiency of central government’, in Arthur Shenfield et al., Managing the Bureaucracy (Adam Smith Institute, London, 1986), p.117; Peter Hennessy, ‘“Harvesting the Cupboards”: Why Britain has Produced no Administrative Theory or Ideology in the Twentieth Century’, Transactions of the Royal Historical Society 4 (1994), pp.203-219, p.205. For recent analysis of the concept and its perceived decline, see eg: ‘Goodbye, good chap: Britain’s good-chap model of government is coming apart’, The Economist, 18 December 2018.
6  Gladstone, Gleanings of Past Years, volume 1, p.243.
7  For a recent assessment of how ethical regulators promote these principles in practice, see: Committee on Standards in Public Life, Striking the Balance: Upholding the Seven Principles of Public Life in Regulation, Sixteenth Report, CM 9327 (Stationery Office, London, 2016).

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Good Chaps No More?: Safeguarding the Constitution in Stressful Times

high level have adhered to these principles in the current political cycle. Perhaps the need to write them down was itself the symptom of a long-term decline in the effectiveness of self-regulation.8 Recent events suggest it is worth considering the implications of a decline in the viability of the ‘good chap’ system in this country.9 Certainly, there has been much speculation, both in the UK and international media, that it is in peril.10 It is worth remembering that the Nolan Principles have been woven into the expectations of governing behaviour for nearly a quarter of a century and have a place in the Cabinet Manual11 and Ministerial Code12, with which we will deal shortly.
The period since the European Union (EU) referendum of June 2016 has seen a series of disputes about whether constitutional abuses have taken place. They have touched upon many of the main governmental organs: the Cabinet, the Civil Service, Parliament, the judiciary, the devolved institutions, and even the monarchy.13 From being a by-word for tedium the condition of the UK constitution has become a first order question cracking with political electricity. Whatever view one

takes of each particular recent incident, collectively they serve to demonstrate potential weaknesses in the traditional model of constitutional regulation. To provide a perspective on the extent to which previous assumptions have been challenged, it is worth considering an aforementioned document published in 2011, The Cabinet Manual. Subtitled A guide to the laws, conventions and rules on the operation of government, it provides an account, from the perspective of the executive, of the working of the political system.14 Like the Seven Principles of Public Life, it has no direct legal force. But it provides the fullest account, in an official text, of the overall configuration of the UK constitution. Its opening paragraph states:
‘The UK is a Parliamentary democracy which has a constitutional sovereign as Head of State; a sovereign Parliament, which is supreme to all other government institutions, consisting of the Sovereign, the House of Commons and the House of Lords; an Executive drawn from and accountable to Parliament; and an independent judiciary.15’

8  For discussion of the possibility that the ‘good chap theory’ was already under pressure in the late twentieth century, see: Hennessy, The Hidden Wiring, p.137.
9  For a recent expression of concern regarding adherence to standards by the present chair of the Committee on Standards in Public Life, see: ‘Open letter from Jonathan Evans, Chair of the Committee on Standards in Public Life, to all public office holders’, 20 September 2019, available at < https://www.gov.uk/government/news/open-letter-from-the-committee-on-standards-in-publiclife-to-all-public-office-holders > last accessed 1 October 2019.
10  See eg: ‘Goodbye, good chap: Britain’s good chap model of government is coming apart’, Economist, 18 December 2018’; Ruadhán Mac Cormaic, ‘Government by “Good Chaps” unlikely to survive much longer’, Irish Times, 7 September 2019; Sam Knight, ‘Boris Johnson’s Brexit carnage’, The New Yorker, 5 September 2019.
11  Cabinet Office, The Cabinet Manual, refered to pp.26; 59.
12  Cabinet Office, Ministerial Code (Cabinet Office, London, 2019), referred to p.1 and reproduced in Annex A, p.27.
13  For a provisional list of constitutional issues raised by Brexit, see: Andrew Blick, Stretching the Constitution: the Brexit shock in historic perspective (Hart/Bloomsbury, Oxford, 2019).
14  For an assessment of the Cabinet Manual by the present authors while it existed in draft form, see: Andrew Blick and Peter Hennessy, The Hidden Wiring Emerges: the Cabinet Manual and the working of the British constitution (ippr, London, 2011).
15  Cabinet Office, The Cabinet Manual: A guide to the laws, conventions and rules on the operation of government (Cabinet Office, London, 2011), p.2.

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Good Chaps No More?: Safeguarding the Constitution in Stressful Times

The manual makes no mention at this point of the role of referendums16, or that such exercises in direct democracy might override the fundamental principles set out in this paragraph. It does not suggest that the monarch, Parliament and courts might be required to facilitate the objectives of an executive claiming to be the vehicle for such a supposedly irresistible expression of popular will. Indeed, the word ‘referendum’ does not occur until page 37 of the manual. It is used a total of six times in the text, once in a footnote relating to suspensions of collective responsibility17; four times in an account of past referendums held in Scotland and Wales18; and once in a list of ‘Reference Documents’, one of which includes the word ‘referendum’ in its title.19
None of these applications of the term suggest that referendums could take on an overweening constitutional significance. Yet from the time of the public vote of June 2016 onwards, the UK government – including within it politicians who were ministers at the time the Cabinet Manual was issued in 2011 – maintained that a referendum had indeed upended arrangements as presented in its opening paragraph.20 Nor does the Cabinet Manual

touch on the difficulty of reconciling plebiscitary democracy with representative democracy with which Parliament has wrestled for nearly three-anda-half years.
On the basis of this premise, the executive has for more than three years exhibited patterns of behaviour that are troubling and ominous regarding the sustainability of constitutional norms and standards of behaviour in the UK.21 For the main triggers of this anxiety, see the section below. It is not only the executive that has been involved in a stretching of the constitutional boundaries. Partly prompted by the insistence of successive premiers on the ultimate authority of the government as implementer of the referendum result, both Parliament and the courts have chosen or felt forced to expand into areas of activity beyond their more regular terrain – the legislature, for instance, seeking to determine the diplomatic policy of the UK22; and the judiciary making rulings with direct consequences for matters of immense political controversy.23 These activities may have imposed control on the executive. But they have also added to the general condition of flux.

16  In our consideration of the draft manual, we called for some clarification of the role of referendums in the final text, that was not provided, though we did not anticipate the scale of disruption that has come about following the 2016 European referendum. Blick and Hennessy, p.27.
17  Cabinet Office, The Cabinet Manual: A guide to the laws, conventions and rules on the operation of government (Cabinet Office, London, 2011), p.37.
18  Cabinet Office, The Cabinet Manual: A guide to the laws, conventions and rules on the operation of government (Cabinet Office, London, 2011), p.64.
19  Cabinet Office, The Cabinet Manual: A guide to the laws, conventions and rules on the operation of government (Cabinet Office, London, 2011), p.106.
20  For an early and firm assertion of this proposition, see Theresa May’s speech to the Conservative Party conference, 2 October 2016, available at: < https://www.politicshome.com/news/uk/political-parties/conservative-party/news/79517/read-full-theresamays-conservative > last accessed 1 October 2019.
21  For an outside view from the United States, see: James Grant, ‘Boris Johnson, Brexit and Britain’s Constitutional Quagmire’, The Atlantic, 30 August 2019, available at: < https://www.theatlantic.com/international/archive/2019/08/boris-johnson-brexit-andbritains-constitutional-quagmire/597097/ > last accessed 1 October 2019.
22  See eg: European Union (Withdrawal) (No.2) Act 2019.
23  JUDGMENT: R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland), available at: < https://www.supremecourt. uk/cases/docs/uksc-2019-0192-judgment.pdf >, last accessed 1 October 2019.

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Good Chaps No More?: Safeguarding the Constitution in Stressful Times

Constitutionally problematic conduct: some recent examples
On 2 October 2016, in her first speech to a Conservative Party conference as leader, Theresa May insisted that:
‘it is not up to the House of Commons to invoke Article Fifty, and it is not up to the House of Lords. It is up to the Government to trigger Article Fifty and the Government alone.
When it legislated to establish the referendum, Parliament put the decision to leave or remain inside the EU in the hands of the people. And the people gave their answer with emphatic clarity. So now it is up to the Government not to question, quibble or backslide on what we have been instructed to do, but to get on with the job.
Because those people who argue that Article Fifty can only be triggered after agreement in both Houses of Parliament are not standing up for democracy, they’re trying to subvert it. They’re not trying to get Brexit right, they’re trying to kill it by delaying it. They are insulting the intelligence of the British people. That is why, next week, I can tell you that the Attorney General himself, Jeremy Wright, will act for the Government and resist them in the courts.
Likewise, the negotiations between the United Kingdom and the European Union are the responsibility of the Government and nobody else. I have already said that we will consult and work with the devolved administrations for Scotland, Wales and Northern Ireland, because we want Brexit to work in the interests of the whole country. And we will do the same with business

and municipal leaders across the land.
But the job of negotiating our new relationship is the job of the Government. Because we voted in the referendum as one United Kingdom, we will negotiate as one United Kingdom, and we will leave the European Union as one United Kingdom. There is no opt-out from Brexit. And I will never allow divisive nationalists to undermine the precious Union between the four nations of our United Kingdom.’
These words set the general tone for what would follow, though it steadily deteriorated as time progressed. Such rhetoric presented Parliament, the rule of law, the devolved institutions, and other aspects of the constitution, as subordinate to a supposed popular will, to be interpreted and implemented by the UK executive. Within this constitutional context, a series of problematic tendencies and episodes manifested themselves. They include:
The attempted prorogation of Parliament of late August 2019, deemed illegal by the Supreme Court on 24 September 2019
All eleven members of the court found that: ‘the decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification… This means that the Order in Council to which it led was also unlawful, void and of no effect and should be quashed. This means that when the Royal Commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been

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Good Chaps No More?: Safeguarding the Constitution in Stressful Times

prorogued.’24 This episode was regrettable both because it represented an improper attempt to circumvent Parliament; and because it drew the monarchy, its powers and functions into party political controversy. There is further worrisome evidence of disregard for the need to protect the neutrality of the head of state. The media, reporting a ‘senior source’, related on 6 October that, even if the Prime Minister lost a confidence vote and there was a clear replacement for him, he would refuse to resign and ‘dare’ the Queen to ‘sack’ him.25 Even though this scenario never came to pass in the autumn of 2019, if ministers or ministerial aides were the source of such speculation, that they were promoting such possibilities was in itself constitutionally undesirable as well as demonstrating their tin ears for the subtle cadences of the ‘good chap’ theory.

subject of great contention. Most notoriously, the Daily Mail ran a story under the headline ‘Enemies of the People’, referring to the High Court judges who made an initial ruling against the government on 2 November 2016.27 The Lord Chancellor is required (along with other ministers) by Section 3 (1) of the Constitutional Reform Act 2005 to ‘uphold the continued independence of the judiciary’, but the Act does not specify precisely how to do so. On 1 March 2017, when Truss appeared before the House of Lords Select Committee on the Constitution, Lord Brennan put it to her that:
‘a few months ago, in the Daily Mail, we had the headline “Enemies of the people” describing our Lord Chief Justice and those sitting with him. For many, that was simply abuse…can we look forward to you and your Ministry robustly defending judges against that kind of abuse in future?’28

Unsatisfactory behaviour of ministers with respect to the rule of law
The then-Lord Chancellor, Liz Truss, was criticised for failing to respond directly late in 2016 to hostile media treatment of the judiciary.26 The legal challenge to the ability of the government to begin the process of leaving the EU by activating Article 50 of the Treaty on European Union had become a

Truss responded that:
‘I will always speak out and say how important having an independent judiciary is. I have also said that the individuals involved in both cases—the High Court and the Supreme Court— are people of integrity and impartiality, and that is very important. Where perhaps I might respectfully disagree with some who have asked

24  From the judgement summary available at: < https://www.supremecourt.uk/cases/docs/uksc-2019-0192-summary.pdf >, last accessed 13 October 2019. Full judgement available at: < https://www.supremecourt.uk/cases/docs/uksc-2019-0192-judgment.pdf >, last accessed 13 October 2019.
25  Tim Shipman and Caroline Wheeler, ‘“Sack me if you dare,” Boris Johnson will tell the Queen’, Sunday Times, 6 October 2019.
26  See eg: ‘Attacks on judges undermine law – Supreme Court president’, BBC website, 16 February 2017, available at: https:// www.bbc.co.uk/news/uk-38986228 >, last accessed 13 October 2019.
27  James Slack, ‘Enemies of the People: Fury over “out of touch” judges who have “declared war on democracy” by defying 17.4 million Brexit voters and who could trigger constitutional crisis‘, Daily Mail, 3 November 2016, available at: < https://www.dailymail. co.uk/news/article-3903436/Enemies-people-Fury-touch-judges-defied-17-4m-Brexit-voters-trigger-constitutional-crisis.html >, last accessed 13 October 2019. For analysis of media coverage and reactions to it, see: Claire Phipps, ‘British judges react to judges’ Brexit ruling: “Enemies of the People”’, Guardian, 4 November 2016, available at: < https://www.theguardian.com/politics/2016/nov/04/ enemies-of-the-people-british-newspapers-react-judges-brexit-ruling >, last accessed 13 October 2019.
28  House of Lords Select Committee on the Constitution, Corrected Oral Evidence, Oral Evidence session with the Lord Chancellor and Secretary of State for Justice, 1 March 2017, available at: < https://www.parliament.uk/documents/lords-committees/ constitution/Annual-evidence-2016-17/CC010317lordchancellor.pdf >, last accessed 13 October 2019.

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Good Chaps No More?