Morgan McSweeney has told peers that a failure by elected governments to deliver can undermine their legitimacy “as much as” abuses of power.
McSweeney, the former chief of staff to Keir Starmer, gave evidence to the House of Lords constitution committee on Wednesday afternoon as part of its inquiry into the UK’s constitutional safeguards.
Addressing the cross-party group, McSweeney argued that constitutional democracies are always “under pressure to demonstrate that they work for people”, and identified two ways in which they can come under threat.
He stated: “The first is through abuse of power, and the second is through a failure of a democratically elected government to deliver on its lawful programme.”
He said it was on the second that “populists who want to undermine institutions” exploit weaknesses. “So my view is that when governments fail to deliver, it can undermine its legitimacy as much as it can when there has been abuses of power”, he told peers.
McSweeney resigned as Downing Street chief of staff in February at the height of the controversy over Peter Mandelson’s appointment as British ambassador to the United States. In a statement at the time, McSweeney said he took “full responsibility” for advising Starmer to appoint Mandelson.
His appearance before the Lords constitution committee represented a rare public intervention.
McSweeney said he wanted to see a review of the rules that govern how a prime minister exercises power. “They should be identified. There should be fewer of them. They need to be justified”, he said. “The ones that prevent the abuse of power should be kept. Everything else needs to be looked at in the round, so not just each individual one, but the cumulative effect of all of them.”
McSweeney said he would like to see “some sort of codification of the cabinet manual to make clear what the role of the prime minister is, what the role of the cabinet is, what the role of parliament and what the role of judiciary is”.
The cabinet manual, which was approved under David Cameron as prime minister in 2011, has no legal force and does not resemble the formal codified constitutions found in other countries. It provides an account of the sources of the UK’s uncodified constitution and explains how those sources operate in practice.
McSweeney said a review of the UK’s constitutional arrangements should address what he described as a “thicket” of accumulated rules, many of which were introduced in response to individual mistakes or incidents.
“I would have a wider review to clear out the thicket of rules that have been developed, often for reasons of something happened, like a mistake, and a minister wanted to ensure a mistake didn’t happen again”, he said.
“So a review body was set up, or an independent process was added here or there… I think these things have accumulated over a long period of time.”
McSweeney further argued that rules which prevent governments from delivering their programmes at the pace they require should be reconsidered.
He said: “Where there are rules that prevent governments from functioning at the speed it needs to, and delivering its lawful mandate or its lawful programme of government. Then I think those rules should be removed.”
Pressed on whether a prime minister could use that argument to weaken safeguards, McSweeney said constraints on abuse of power must remain in place.
“There are the courts. There is parliament that can reject and amend legislation. Cabinet can challenge. Cabinet can refuse to support, or ultimately cabinet members can resign. Civil servants can give strong written advice. Political parties can overthrow leaders. Elections can remove governments”, he said.
McSweeney added: “I don’t think that prime ministers should be able to usurp the powers of parliament. They should not be able to usurp the powers of the judiciary, and they should not be able to abuse human rights…
“But I think the safeguards that are in place need to be clear, need to be justified, and need to enable both the prevention of abuse of power and the ability of government to deliver. So I think both, and I don’t think they’re in conflict.”
Drawing on his experience of the Starmer government, McSweeney singled out “quasi-judicial processes”.
He said legislation declaring the secretary of state “shall decide” was often interpreted as preventing a collective conversation at cabinet level, and stopping a prime minister from asking for a decision to be taken quickly.
“I think there are some interpretations, either through its application or how the law was originally written, that slow the government down on some pretty big issues that the country faces”, he said.
On the power of the centre, McSweeney said that “size and strength are different things”.
He said: “I think that the state is in lots of ways misshapen. I think in some ways Whitehall is too centralised, and so the state is big, but in places it is out of shape.”
He said government communications was not centrally coordinated, so important issues were not worked on “because each individual department is just addressing media queries about its own department”.
He stated: “Government needs coherence. It needs consistency of approach. It can’t be developing different ways of thinking that come into conflict with each other.”
Asked whether the civil service should act as a guardian of the constitution, McSweeney said it should, but distinguished between a minister acting unlawfully and a prime minister “unwisely breaking a convention”.
He said: “Ministers ought to be able to and should question the advice that’s coming their way too. If they don’t agree of a civil servant’s interpretation of the rules or safeguards, then they ought to be able to question those as well.”
Describing his relationship with the civil service in his former role as chief of staff, McSweeney said he met the cabinet secretary regularly to surface issues “where the prime minister was feeling frustration within the system”.
He added: “Or if a cabinet secretary felt a minister or the prime minister was asking to do the wrong thing in a department, they would they would flag it with me and we try we try to resolve it…
“It’s a job of a chief of staff to understand what their prime minister wants. So chief of staff shouldn’t be really surprised if a prime minister is frustrated with how a decision’s been implemented.”
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