Introduction
Constitutional success heavily depends on actors who support and advise frontline decision-makers. This is definitely the case with the UK constitution, and it is likely the case with many constitutions around the world.Footnote 1 And yet, constitutional theory remains obsessed with frontline decision-makers such as presidents, prime ministers, and legislators, in addition to back-end actors such as judges. The focus on these prominent actors fits neatly within theories of constitutionalism and the separation of powers, which draw heavily on the various branches of government and the methods by which they can check one another.Footnote 2 This is also true when considering scholarship on why constitutions endure or why some constitutions wither and die.Footnote 3 The obsession with branches and the potential checks they can provide has even brought forward a new focus on so-called fourth branch institutions, which help monitor the political realm and sometimes contain powers to make critical decisions.Footnote 4 And yet, when it comes to protecting and defending constitutions there remain serious gaps regarding how this is done. Here I argue that a powerful voice, what I call ‘the influencers’, serves as a key component to constitutional protection. They may be especially important for political or unwritten constitutions that lack significant back-end protections, such as strong constitutional courts.
These important front-end constitutional actors have often been lost in terms of constitutional theory, even within the political constitutionalism literature.Footnote 5 As McLean notes, they have ‘long inhabited the margins’ of constitutional scholarship.Footnote 6 But that appears to be changing. A new focus on how these critical actors help protect and defend constitutions is emerging,Footnote 7 often aligned with third wave political constitutionalism’s ‘exercise in understanding’ how constitutions are enabled or stifled.Footnote 8 Some of these efforts focus on how civil servants can aid in implementing constitutional rights,Footnote 9 while other scholarship focuses more directly on the role of lawyers in government and in Parliament.Footnote 10 Wider efforts to capture executive responsibility for the UK constitution have also recently emerged,Footnote 11 which demonstrates that these once-marginalised actors are being taken more seriously. The executive oversight role is important, but it is also somewhat limited in that such inquiries do not account for other key individuals within Parliament, who also share a role in upholding the constitution and who frequently interact with frontline actors.Footnote 12
Another reason to examine these individuals is that prominent accusations of ‘deep state’ actors supposedly holding back governments from implementing policy – or more generally undermining elected officials – have recently come about. President Trump has made these accusations in the US,Footnote 13 and former Prime Minister Liz Truss has made similar accusations in relation to the UK civil service.Footnote 14 Thus, exploring the perspectives, values, and mentalities that these actors hold could be important to understanding whether these claims have merit.
This piece unfolds as follows: it first describes the study’s methods, including by delineating three types of core constitutional actors. Then, using interviews, I articulate how front-end actors influence frontline decision-makers. This is done by analysing responses from my interview data. Then, I explore the perspectives, values, and mentalities of the influencers. Implications for the UK constitution are explored next, followed by wider implications for constitutional theory.
1. Methods
In order to understand how the influencers impact the constitution and what methods, tactics, and mindsets they employ while doing so, I conducted 19 interviews from four key front-end groups: government lawyers (4); parliamentary counsel drafters (4); departmental permanent secretaries (2); and House authorities (9) (this final group includes clerks, select committee advisers, and other House officials).Footnote 15 In pursuing these four groups, I wanted to gain a wider and more comprehensive perspective of how the influencers functioned across the UK constitution. While it means that I was unable to tie my findings to one particular group (eg government lawyers, civil servants, etc), I was able to explore some overlaps and differences between the groups. The interviewees either held or previously held high-level positions in their respective groups, and have advised frontline decision-makers for many years. The average amount of years interviewees had been in public service at the time of interview was 29.5 years (median was also 29.5 years). Taken together, the interviewees combined for over 530 years of public service experience.
The interviews took place in Spring 2024. Most were performed in person in London, although a couple were performed online after the primary interview period. They were attained in part by building on relationships that I have developed in past work. The interviews were semi-structured, with a number of questions consistent across interviews and connected to the interview themes, but also with scope for follow-up and supplementary questions that went in various directions.Footnote 16 The three general themes I focused on were: the roles and responsibilities these actors possess; their institutional and professional values and mentalities; and their overall influence and impact upon the UK constitution. Regarding the last of these, I focused in on when interviewees have been surprised of their influence, but also their lack of influence at times. Thus, I attempted to explore not only the power and scope of their influence but also the boundaries of their influence. I tried to keep these themes, and the accompanying questions, consistent across interviews as much as possible, to increase reliability. In terms of the study’s external validity, I shall leave that to the reader to determine.
The study contains limitations, and especially in terms of generalisability. The findings presented here come from the high-level influencers interviewed for this project. They do not encapsulate the full range of front-end actors, but a small cross-section of this cohort and the sub-cohorts of which they are a part. Given their status and the need to keep confidentiality, I was the sole person doing the coding and analysing of the data. Additionally, many interviewees were currently serving in their roles, so I was constrained by what I could ask them and what they were willing to answer. This meant that some replies were curtailed in terms of detail and specific examples. While this project incorporated multiple groups of influencers, future research should focus in on specific groups to provide a more in-depth picture of how influence may operate,Footnote 17 perhaps using ethnographic methods. Additionally, archival research could be undertaken to provide a more complete picture of how the influencers have evolved throughout the years. Given the sensitive nature of the work performed by the influencers, archival work may capture a more accurate picture than interviews.
Finally, the way that I am using the term ‘influencer’ should be justified. The Cambridge Dictionary describes an influencer as ‘someone who affects or changes the way that other people behave’.Footnote 18 This is an adequate description of what I believe front-end influencers do. I should stress that I am not advocating for some type of ‘deep state’ protectionism by these constitutional actors, where political decisions are being subverted by unelected and unaccountable constitutional actors. The influencers I am focused on are there to aid frontline politicians and help them accomplish what they are trying to achieve. However, while doing this they protect and defend the constitution in various ways, as their advice impacts other constitutional actors and also helps shape the functioning of the constitution more generally.
2. Delineating front-end, frontline, and back-end constitutional actors
To better understand where front-end actors sit within the constitutional landscape, below I sketch out three types of core constitutional actors: front-end actors, frontline actors, and back-end actors. Surprisingly little practical or theoretical work has been done on delineating types of constitutional actors.Footnote 19
Of course, the functions of these actors may sometimes traverse the boundaries of these respective groups. Such is the nature of constitutional actors, that at times their duties can be multifaceted. Some may be called upon to provide duties outside their usual sphere (eg judges that lead public inquiries). Additionally, there may be mid-range constitutional actors that I have missed or cannot fully explore here. Perhaps journalists that help scrutinise government, police officers that enforce the law, or even academics that can influence the development of law and policy could be categorised as mid-range constitutional actors.Footnote 20 Additionally, there may be front-end influencers that I have overlooked or not included in this piece. A major one would be special advisers. However, there are already detailed studies into this group of actors.Footnote 21
(a) Front-end constitutional actors (the influencers)
This group is profiled in much more depth below, but generally it consists of advisers, authorities, and other key personnel that help influence and construct policy, legislation, or wider governmental decision-making (during the creative process and before these items are either enacted into law, implemented, or decided upon). The types of roles that front-end actors could have are wide-ranging. Some examples include: permanent secretaries; government or departmental lawyers; parliamentary counsel drafters; select committee advisers, parliamentary clerks and parliamentary lawyers, and special advisers. These roles often come with other responsibilities, such as wider civil service and budgetary considerations.Footnote 22
Importantly, this group usually possesses no formal levers of power or authority. Thus, a key characteristic of front-end actors is that their influence comes from their status, reputation, and the quality of advice that they provide to frontline decision-makers. Should frontline actors lose trust or faith in this advice, then front-end actors may have significantly less influence on the operation of the constitution. This has led some to characterise these actors as ‘auxiliary’ actors or guardians.Footnote 23 Even Hennessy acknowledges career civil servants, but does not really articulate their relationship with house authorities and how they may help protect the constitution from the front-end.Footnote 24 Ultimately, as important as they are to the constitutional system, I am also cautious of creating a ‘mystique of technical indispensability’ around these actors.Footnote 25
(b) Frontline constitutional actors (the decision-makers)
In simple terms, these are the decision-makers. The constitutional actors that make decisions, pass laws, decide on policy, and are usually able to be held responsible for those decisions. These actors would be people such as: MPs, Peers, the Speaker of the House of Commons, Cabinet ministers, the Prime Minister, the Law Officers, Committee Chairs, and others that take advice and ultimately end up making decisions. Thus, the decision-makers are usually MPs, and especially those that occupy distinctive roles within the constitution.
This group is undoubtedly important to constitutional success, as these individuals are making decisions about what laws and policies will come forward and how they will be implemented, where money and resources will be allocated, what rights and duties will be valued under a particular Government or Parliament, and more generally, how they will respond to or attempt to resolve the challenges of the day. These challenges may range from small or medium-scale issues that most governments or parliaments would encounter to the most significant generational challenges that nations face.
(c) Back-end constitutional actors (the fixers)
This group consists of those that attempt to correct mistakes or settle disputes regarding policies, legislation, or other types of decisions that have been made by frontline actors. Classic examples of these actors would be judges and ombudspersons, who hear cases about policies, laws or decisions that have gone wrong or that bring up difficult issues. The group is considered back-end because the decisions being made are decisions that take place after frontline decisions have been made. Thus, they can sometimes provide checks or vetoes on frontline decision-making. Examples of back-end decisions may be: deciding if a piece of legislation complies with human rights obligations; determining if an executive action is lawful; determining if maladministration has occurred and recommending what could be done to remedy it.
Back-end actors are undoubtedly important for protecting and defending the constitution. Their status is often respected and their judgments are usually complied with. Because they are removed from frontline decisions, they are often looked at as ‘independent’ actors that offer a unique constitutional perspective, and are not susceptible to being removed through election. There is some debate as to how important back-end constitutional actors are when it comes to effectiveness, but when looking at the range of constitutional actors, back-end decision-makers undoubtedly make key decisions that go towards protecting and defending the constitution.
3. Profiling the influencers
(a) Specific roles and responsibilities
Influencers often work in a constitutional context while advising frontline decision-makers. This means that they can frequently sit very close to the heart of government or to key institutions, such as Parliament or government departments. For instance, high-level government lawyers in the Government Legal Department (GLD) provide advice on a range of matters, from litigation strategy to the legality of government policy. They also provide advice on the Ministerial Code, the Cabinet Manual, and help to situate and allocate responsibilities for various government departments.Footnote 26 The head of the GLD is the Treasury Solicitor and a permanent secretary, and is also the main adviser to the Law Officers.Footnote 27 Similarly, statutory drafters play an essential front-end role. The First Parliamentary Counsel, head of the Office of Parliamentary Counsel (OPC), serves as constitutional adviser to the Cabinet Secretary and ultimately the Prime Minister. This includes a responsibility for the legislative programme, and advising on the relationship between central government and Parliament.Footnote 28 A range of other Parliamentary Counsel work with ministers and government departments to draft government legislation. In addition to providing the initial drafts of legislation, Parliamentary Counsel also provide amendments to Bills and advise on the handling of Bills as they travel through the legislative process. Other high-level influencers that touch the heart of government include departmental permanent secretaries, advisers to the Law Officers in the Attorney General’s Office, and advisers to Law Officers focused on devolved jurisdictions, such as the Advocate General for Scotland.Footnote 29
Some influencers do not possess such inherently close ties to government, but also provide significant constitutional advice. This could be high-level officials (eg lawyers and clerks) working in the House of Commons, who provide advice to the Speaker, to Opposition and backbench MPs that come to them for guidance, and to parliamentary committees. A House official that I spoke to said, ‘when I applied for the job … it was the first thing in the job description, adviser on constitutional law and constitutional matters’.Footnote 30 Other roles are less wide-ranging, but may have a focus on specific constitutional aspects, such as advising on House procedure, parliamentary privilege, or providing legal advice to a parliamentary select committee. One official whose remit was less wide-ranging considered her role ‘incredibly constitutional’, noting that she has a role in checking government.Footnote 31 House influencers also play an important role in the institution’s disciplinary structure, including enforcing the code of conduct or advising committees that police these issues, such as the Committee on Standards.Footnote 32
Influencers also highlighted the wider contextual role that they work in as being constitutionally significant. This was true for government lawyers, Bill drafters, and departmental permanent secretaries. One interviewee said that ‘all government lawyers have a really important constitutional role’,Footnote 33 while a parliamentary drafter said that ‘lawmaking is itself inherently constitutional’.Footnote 34 Similar thoughts were expressed about the Civil Service, which was recognised as having a constitutional role and for providing continuity during ministerial and governmental change.Footnote 35 Other House officials noted that they police the boundaries between Parliament and the courts, advising on parliamentary privilege and potentially intervening in such cases.Footnote 36
However, some of the influencers downplayed the constitutional nature of their roles, focusing on other aspects of their work. Those working in the House emphasised the procedural aspects of their roles and their focus on the chamber, noting that some clerks may shy away from explicitly designating their roles ‘constitutional’.Footnote 37 But even these officials acknowledged the constitutional aspects of House procedure, and others noted that parliamentary procedure contains ‘great constitutional significance’.Footnote 38
Overall, the influencers provide a range of advice to frontline decision-makers, many of whom sit close to the heart of government, while others may sit in institutional settings. A key feature of influencer advice is that it often takes place in a constitutional context.
(b) What influence do front-end actors possess?
Whereas frontline actors have decision-making authority and back-end actors are characterised by formal or statutory levers that they can draw on when making crucial decisions, the influencers tend to have a lack of these formal structures. One government lawyer bluntly noted that, ‘the only lever we have, really, is our influence’.Footnote 39 An OPC drafter echoed this, saying ‘often you don’t have formal levers’ when dealing with frontline actors.Footnote 40 This lack of formal levers means influencers rely on their reputation, quality of advice, and whether frontline actors consider them helpful and useful. This lack of formal authority and heavy reliance on informal authority are two more defining features of front-end actors. As one House official elegantly put it, ‘as constitutional front-end actors, ultimately our power is voice and exit’.Footnote 41
(i) How can they impact frontline and back-end constitutional actors?
The influencers provide advice to a wide range of frontline decision-makers, including: the Prime Minister, Cabinet Office and Government;Footnote 42 Ministry of Justice and Lord Chancellor;Footnote 43 Senior Officials;Footnote 44 ministers;Footnote 45 MPs (including backbench MPs, the Opposition, and Whips),Footnote 46 the Speaker and Deputy Speaker,Footnote 47 House Business Managers (Commons and Lords);Footnote 48 the Parliamentary Business and Legislation (PBL) Secretariat,Footnote 49 the Law Officers,Footnote 50 the Privy Council;Footnote 51 the Advocate General, the Secretary of State for Scotland,Footnote 52 the Presiding Officer of the Scottish Parliament; and Select Committee chairs.Footnote 53 Some also mentioned influence outside of frontline actors, such as influencing other permanent secretaries,Footnote 54 the wider Civil Service,Footnote 55 their own teams,Footnote 56 the public,Footnote 57 and other groups of interest (eg the legal profession).Footnote 58
The primary advice influencers provide to frontline officials concerns accomplishing what they are trying to achieve. A government lawyer stressed that, ‘our role is not only to be the guardians of the secure legal underpinnings, but actually help find the solution’.Footnote 59 Some noted that they do this by advising how to achieve things ‘in a better way’ than what was originally presented,Footnote 60 and that their advice could influence policy both on the micro and macro level.Footnote 61 This often involves interrogating policies and ‘pulling things apart’ to make sure that they are achievable and necessary.Footnote 62 Other times this may happen through the framing of legislation. As experts in drafting legislation, Parliamentary Counsel possess clout here, as they may know what could succeed in Parliament.Footnote 63 One interviewee stated that the legislative programme is an ongoing conversation about ‘what’s achievable’, and that drafters were integral to that conversation.Footnote 64 Another governmental lawyer noted that ‘you are helping the government achieve what it wants to do’, but ‘in a legally coherent way’.Footnote 65 The same was true of advice to parliamentary committees, which could ‘guide the members of the committee towards particular forms of action’.Footnote 66
The flip side is that there are moments when they may need to tell frontline decision-makers that their goals are unachievable or need reconsideration. This may happen through a type of risk-based analysis, which was repeatedly mentioned by interviewees.Footnote 67 This could also happen through more direct methods. There is scope for some front-end actors to challenge the government in terms of whether they need particular legislation. One drafter stated that ‘we regard one of our main roles as a challenge function to the department: do you need this legislation? Is it quite what you want? You say this, but do you mean this?’.Footnote 68 Another drafter noted that their office has a reputation for delivering, and that ‘when we say this cannot be done, people actually listen’.Footnote 69 Thus, their assessment of what is possible is taken seriously. Permanent secretaries may also push back at times. One noted that they may caution ministers not to do certain things, and also explicitly tell government figures that certain proposals were a ‘bad idea’.Footnote 70 Finally, the Law Officers can also be key here. One interviewee in this office said, ‘in a way we have more influence in that space, because ministers cannot break the law’.Footnote 71 Although he also noted there are ways to get around that, which are highlighted below.
Most interviewees indicated that their advice was taken. This is another aspect that may distinguish the influencers from other constitutional actors, who may make recommendations that go unheeded (such as the Leader of the Opposition or a recommendation from a parliamentary committee). One parliamentary official said their advice was taken ‘almost always’.Footnote 72 Others stated that advice was followed ‘many more times than not’,Footnote 73 or ‘mostly followed’.Footnote 74 Some were more pragmatic, noting that ‘your advice is not always going to be the advice that carries the day and there will be competing demands’.Footnote 75 Indeed, those who worked with the Speaker admitted their advice was not always accepted,Footnote 76 and a former member of the GLD noted that even though their advice was mostly followed, ‘there may be a process of testing and elaboration and development’.Footnote 77 This recognises that complex decisions often involve multiple competing factors, and that advice is far from the ‘last word’ on any particular matter. As one influencer said, ‘in the end, it’s ministers that decide, and if your advice isn’t followed, so be it’.Footnote 78
Besides direct advice, other methods can be used to influence frontline decision-makers. Some may attempt to get certain people together so particular individuals are in the same room. This could help them ‘facilitate and support’ one another, and to ‘broker solutions where there might be a difference of opinion’.Footnote 79 One drafter complemented this, stating that, ‘really it’s about knowing the right people to talk to when an issue comes up’.Footnote 80 Another indirect way of influence is speaking with those that have direct contact with frontline decision-makers, which can be just as valuable.Footnote 81 Others noted that they had reached out to specific groups of frontline actors that they – or their predecessors – had never done before.Footnote 82 As one committee official noted, influence requires being ‘strategic, and it’s about using your knowledge and expertise to identify what strategies can be effective’.Footnote 83
But there are certainly limits to influence. One House official lamented his lack of influence with parliamentary counsel drafters, and also notes that he complained about the pace of important legislation coming through the Commons, often to no avail.Footnote 84 Another respondent noted that she is occasionally ‘despondent at how little effect I’m having on a particular situation’.Footnote 85 And a government lawyer admitted that he would not be surprised if his advice ‘isn’t followed to the letter’.Footnote 86
Another group that front-line actors influence is back-end actors. Several interviewees mentioned that they either influence or interact with the judiciary, and that this interaction has become more common over the years. One drafter characterised interaction with the judiciary as ‘fairly new’, noting that judges may visit the office and be ‘frank’ with staff on particular drafting issues, which is something that they enjoy.Footnote 87 It was also mentioned that the Treasury Solicitor would interact frequently with judges and receive general feedback on their litigation before the courts.Footnote 88 Similar comments came from an adviser to the Law Officers, who stressed that he and his bosses have relationships with judges, and they listen, get feedback, and have discreet talks with judges on constitutional issues.Footnote 89 He also said these channels have ‘always been there’, and that judges ‘are very clear about the boundaries’.Footnote 90 Others noted that they respected the bounds of judicial independence, and acknowledged that is something they actively take into consideration if interacting with the judiciary. Finally, the House also has a liaison group which meets once a year with High Court and Court of Appeal judges to discuss matters of mutual interest.Footnote 91
(ii) Change in approach and saying ‘no’
There has been a step change in the relationship between some front-end actors and frontline decision-makers. It used to be the case that the influencers were much more strident in advising frontline decision-makers regarding what they could and could not do. This attitude came from departmental permanent secretaries, parliamentary counsel drafters, house authorities and others. However, this change seemed to be most notable for the Parliamentary Counsel, who have deliberately transitioned to being more helpful and less obstructionist. One drafter described the previous relationship as a ‘Wizard of Oz’ situation, where Counsel sat in their Whitehall ivory tower and there was an ‘unhealthy’ mystique and deference paid to drafters.Footnote 92 Others shared that they had heard stories of OPC drafters being ‘ferocious’, and ‘inspiring trepidation’,Footnote 93 and some past accounts support this description.Footnote 94 Daintith and Page’s work displays how things have changed. In their original account of executive power they described the OPC as the first check on constitutionality of statutes,Footnote 95 but in an updated account they noted how this view has come under attack, as Counsel are now perceived as being more sympathetic to government.Footnote 96 Indeed, the OPC does seem more focused now on collaboration and helpfulness. Reflecting on these issues, one experienced drafter said that the ability to prevent things from happening ‘is not a world that I recognise’, and that today it is more about articulating risk.Footnote 97
However, the change in relation to Parliamentary Counsel was an unwelcome development for some. A couple of interviewees lamented the fact that OPC drafters and the GLD refuse to tell the government ‘no’. They regarded the previous set-up as a significant internal accountability mechanism within the constitution, and its diminishment brought concern.Footnote 98 One House official noted that the OPC has become ‘less brave’.Footnote 99 Another senior House official noted that OPC drafters and house authorities used to share a common world view, which was ‘rather sceptical and detached both about ministers on the one hand and members on the other’, but ‘that model no longer exists’.Footnote 100 Given that drafters and House authorities have a close working relationship, the change has likely impacted how these groups interact. It seems that counsel may no longer be as open with House authorities about certain things, such as pointing out weaknesses in legislation. Nevertheless, House officials still regarded the OPC as ‘utterly professional’,Footnote 101 even if they did not welcome this changed approach.
The OPC also sits in a different position than other lawyers providing advice to the government, given that their role is the creation of legislation, which inherently changes the current law. As one former drafter remarked, ‘lots of lawyers in government are in the position of being able to say to ministers whether what they’re doing is consistent with the law’,Footnote 102 but that more direct option may not be available to OPC drafters. Thus, the conversation may be more nuanced, and revolve around the risk or danger of such a change, in addition to how the result may be achieved differently. Circumstances have definitely changed: the strident – one may say more obstructionist – approach of the OPC has given way to a more nuanced, facilitative approach.
(iii) Why influencer advice matters: constitutional functionality
Influencer advice often focuses on constitutional functionality and making government work. This is another important characteristic of the influencers. One OPC drafter stressed that ‘99% of what is done gets nowhere near a court’.Footnote 103 This point was made by others, who considered front-end actors as ‘completely vital’, given they are ‘actually shaping decisions and laws before they ever get to court’.Footnote 104 A House authority considered front-end actors ‘very significant’, as they were advising the Prime Minister and other ministers ‘all the time about what is constitutionally proper or not’,Footnote 105 making sure they stay on ‘the right side of the lines’.Footnote 106 And for some, such as those of the Law Officers, these are often the ‘most high profile and contentious legal issues’.Footnote 107 Indeed, one need not have an intricate understanding of the legislative or policy process to see that influencers in many ways are the ‘cogs that make the machine work’,Footnote 108 and that help shape constitutional issues long before courts would ever touch them.
This was not just true in terms of government, but also for Parliament. One House official articulated that, ‘the House authorities in both Houses are probably just as important because the process of getting to the final piece of legislation from the draft bill has to involve procedures that enable proper scrutiny and give space for proper debate of things that are going to affect everybody’s lives’.Footnote 109 Another House official described their role as ‘essential’, noting that Parliament could exist without select committees, but it would be very difficult to perform the ‘essential function of Parliament’ – legislation – without clerks.Footnote 110 These actors also recognise that their roles are ‘easily taken for granted’.Footnote 111
However, interviewees at times downplayed the importance of front-end actors. A committee adviser said front-end actors are ‘really important’, but qualified this by saying ‘the ones employed by the State aren’t always the most influential ones’, and sometimes committee advisers can feel ‘a bit peripheral’.Footnote 112 Others downplayed certain groups within the front-end spectrum. One House authority noted that Parliamentary Counsel were not as significant as other groups providing advice.Footnote 113 This was pushed back on by others, who stressed that ‘if legislation is bad, everything gets bad’, and that well drafted legislation is key to a properly functioning constitution.Footnote 114
The fact that the vast majority of government and parliamentary decisions never get near a courtroom is hugely significant to the importance of the influencers.Footnote 115 Either because these decisions are uncontroversial, unremarkable, or just unseen by the general public, it is worth acknowledging that much government and parliamentary decision-making relies on the input and advice of front-end influencers. As one House official said, ‘a lot of the back-office stuff is very indirectly supporting the constitution and the rule of law. If we haven’t got a functioning organisation, we haven’t in the end got a functioning parliament and if we haven’t got a functional parliament that obviously has consequences’.Footnote 116
(c) What perspectives, values and mentalities do front-end actors possess?
(i) Perspectives
The influencers often take wide-ranging and long-term perspectives on the challenges and issues that come their way. This is an aspect that differentiates them from frontline decision-makers, and aligns them more with back-end guardians.
A dominant narrative regarding the legislative and policy process is that it is mostly focused on short-term considerations. The environment is fast-paced, and people that work in this context are often firefighting. And yet, many of the influencers sit in roles that are cross-cutting and provide for long-term thinking about government and the constitution. Many interviewees took a detached and wide perspective on their offices and their constitutional roles, hitting on a mix of short-term and long-term considerations.
This perspective was certainly apparent in the OPC. One drafter noted, ‘we need to be listening to what’s being said outside [the Office] as well. We don’t have all the wisdom sitting here’.Footnote 117 The same drafter noted they have to look across the statute book and ensure that any potential legal changes are going to work in other contexts as well.Footnote 118 This was furthered by an adviser in the Attorney-General’s Office, who stated that they take a long-term view of the constitution, noting ‘we’re always advising on precedents, and long term implications of this, that, and the other’.Footnote 119 The same interviewee noted that ministers are often thinking this way, but if they are too focused on delivering then short-term considerations may trump long-term thinking. Of course, maintaining a long-term perspective is not easy. One permanent secretary noted that political reality and long-term stewardship can often ‘come into tension’.Footnote 120 This tension was also seen in other contexts. A House lawyer said she spends a lot of her time ‘firefighting’ and is very focused on current problems that arise, but that decisions are still taken with one eye on precedent.Footnote 121
But perhaps the best example of long-term thinking was the focus on constitutional principle by interviewees. In particular, the rule of law and democracy were both mentioned regularly.Footnote 122
Interviewees often focused in on the importance of the rule of law. This may surprise some, given that this principle is strongly associated with back-end constitutional actors. A member of the GLD bluntly said, ‘we help the government govern well within the rule of law, that’s our stated purpose. So the role that we take is absolutely speaking truth to power’.Footnote 123 One permanent secretary noted, ‘the rule of law is something which we all think about and worry about as important’.Footnote 124 And finally, a House lawyer called it ‘a guiding aspect of how I look at my work and how I identify what my priorities are in the job’.Footnote 125
There was also evidence that this was not merely rhetorical. A House lawyer noted that concepts such as inequality before the law, natural justice, effective cooperation between the three estates, and the balance of power between branches were ‘daily considerations’ and thought about ‘all the time’.Footnote 126 Another said they applied ‘quasi-judicial standards to internal processes’, and that the House also tries to meet certain requirements such as natural justice and fairness.Footnote 127 The latter was especially true when considering the work of committees.
The acknowledgement and adherence to this constitutional principle in some sense may be practical, reflecting wider changes in front-end alignment and in the operation of constitutional mechanics, such as judicial review.Footnote 128 One GLD interviewee noted that ‘when we first started, there was hardly any judicial review. There were sort of 10 people running that. We now have a team of 700 people, many of whom are doing judicial review cases’.Footnote 129 Interviewees noted other changes to the constitutional realm (eg devolution, freedom of information, and the Human Rights Act 1998), that were especially influential in terms of bringing about change.Footnote 130 One permanent secretary mentioned that ‘interpretations of legality have become more of a sensitive issue’ over the past couple of decades.Footnote 131
Others noted changes that affected legislatures. A government lawyer said that ‘constitutional cases have increased’, as the Scottish Parliament has different competencies compared to previously.Footnote 132 Relatedly, a House official said that the growth of parliamentary lawyers showed that ‘legal expertise can play a valuable role’, complementing the work of clerks and other specialists.Footnote 133 I address the rule of law more below, but suffice it to say that it was a consistent theme during interviews.
The other major constitutional principle that arose during interviews was that of democracy. There may be a perception in some quarters that the civil service does not care about democracy or attempts to impose their own views on elected officials.Footnote 134 My interviewees pushed back on this view. There were strong acknowledgements that the influencers seek to uphold democratic principles and were there to serve the government of the day. Even more, there was a keen appreciation that government and ministers were the ultimate decision-makers, and that it is not the influencers job to make decisions for them. Thus, in many ways the influencers confront similar issues to back-end actors, in terms of deference to elected authority.
A House official stated, ‘one of my values is, they’re elected, deference to the elected’,Footnote 135 while a parliamentary drafter noted, ‘That’s why people come into the civil service, because they believe in the system. They believe in the need for the government, the elected government of the day, to be supported to deliver its policy’.Footnote 136 After all, acknowledged another drafter, ‘a bureaucracy should facilitate the functioning of democracy. It shouldn’t prevent it from happening’.Footnote 137 Interviewees were adamant that this principle should trump one’s personal views, and that if someone cannot stomach taking a policy forward, then they should leave.Footnote 138
A key for many interviewees was the proper role of ministers to make the ultimate decisions. One government lawyer emphasised that, ‘We are always reminding ourselves what our role is and what a minister’s role is, and ultimately who is the decision-maker and accountable for the decision’.Footnote 139 Another official stressed that, ‘the ultimate levers, they come back to ministers. They’re the guardians. They’re the ones … guiding the ship’.Footnote 140 Another former parliamentary counsel said that it is ‘misconceived’, ‘undemocratic’, and ‘dangerous’ to think that civil servants should hold power over ministers.Footnote 141 Others accentuated that the government or ministers had ‘democratic legitimacy’,Footnote 142 a mandate from the will of the people,Footnote 143 and have been ‘returned by constituents’.Footnote 144
Of course, conflict between the rule of law and democracy was acknowledged by interviewees. A former government lawyer noted that, ‘the two elements of it are your job to support the democratically elected government of the day, but at the same time also to uphold the rule of law’, but stressed that these ‘rarely’ clash.Footnote 145 Meanwhile, a House lawyer noted that there is a tension between the two, but it is a ‘creative tension’, and they can work harmoniously together.Footnote 146 The one place where a slight anti-government tilt came into view was with parliamentary clerks.Footnote 147 This may be practical more than anything, as a good amount of a clerk’s time is spent advising the Opposition and backbenchers, given that the government has its own resources.
(ii) Values
As much as official codes, such as the Civil Service CodeFootnote 148 and the House Behaviour Code,Footnote 149 may matter in terms of training and development, these at times are the floor, and not the ceiling. Values that went beyond both codes were expressed by interviewees. One permanent secretary said the values of their department were ‘confidence, excellence, and teamwork’,Footnote 150 while others noted that being ‘helpful’, ‘creative’, and ‘expert’ were essential.Footnote 151 Some explicitly built on the Civil Service Code. For instance, a drafter noted that not just ‘integrity’ but ‘intellectual integrity’ is integral in their office.Footnote 152 Additionally, one former drafter mentioned that ‘loyalty’ can come into play, as the best possible advice had to be provided to ministers, regardless of personal preference.Footnote 153
However, the fact that many offices go beyond the official values does not mean that the codes are unimportant. One drafter referred to Civil Service values as ‘breathed all the time’, and ‘the soup in which we swim’.Footnote 154 A civil servant working in Scotland said that their office has ‘resisted having a published set of values’, and that when things get difficult he has ‘always gone back to Civil Service Code’ to seek guidance and answers.Footnote 155 He noted that this is especially the case when work is making the headlines, and he needs to ensure everyone is on the same page.Footnote 156 Others immediately mentioned either the House Values or the Civil Service Code,Footnote 157 stressing items such as independence, impartiality, and integrity.Footnote 158 One House official noted that their influence with MPs rests on their reputation for impartiality, explaining that their advice is only accepted because MPs ‘trust that we are doing it from an impartial viewpoint’.Footnote 159
Values on the devolved side differed slightly with values on the UK level. For instance, the Scottish Parliament values are ‘stewardship, inclusion, excellence, and respect’.Footnote 160 While these align with the UK Parliament in some ways (eg ‘respect’), the use of ‘stewardship’ and ‘inclusion’ expresses values slightly differently.
(iii) Mentalities
The mentality of interviewees varied, but there were some strong overlaps. A few mentioned being ‘helpful’.Footnote 161 One House official noted that this ‘expresses a positive, proactive, empathetic approach to members’.Footnote 162 Helpfulness certainly aligns with the main ethos of front-end actors – helping frontline actors achieve their objectives – but it also touches on other objectives, such as serving an accountability function (eg helping parliamentary committees scrutinise the government or helping backbenchers navigate parliamentary procedure).Footnote 163 If the influencers are not looked at as helpful, then frontline actors will not seek their advice. But tensions and difficulties can arise here, as some advisers are more proactive than others, which could bring forward questions related to independence and neutrality.Footnote 164 This could be especially apparent in the House, where sophisticated procedural mechanisms come into play. That being said, a senior House official recognised that it is not their job to ‘shape members’ responses’ to legislation, but did note that it was perfectly valid to ‘criticise, challenge, contest, and seek to amend’ legislation, and that the Opposition should have its say.Footnote 165 Overall, being helpful is practical and connects to the more general ethos of the influencers.
Others mentioned ‘collegiality’ as a more general mentality.Footnote 166 This quality demonstrates that interviewees were not out to ‘leave their mark’ or make a name for themselves, but value a collective and unselfish approach to their work. One drafter noted that robust criticism of each other’s work was commonplace, as ‘everybody’s just trying to work together to make the best product they can’.Footnote 167 Complementing this, a GLD lawyer explained that, ‘we’re not as competitive with one another as lawyers in other situations are. And I think all of that really helps’.Footnote 168 This collegial nature of the influencers connects to the idea of public spiritedness, as the group recognises the importance of their work and how it may impact people’s daily lives. This was recognised by some interviewees,Footnote 169 and it provided a sense of grounding: to help one another create the best outputs possible.
Another less prevalent theme was various types of caution, such as being ‘risk averse’Footnote 170 or having an ‘an institutional caution’.Footnote 171 After all, the risk that one may be wrong – especially in high-stakes situations – is something that is not lost on front-end actors. No official wants to be the ‘one that gets it wrong’,Footnote 172 and it is recognised that doing so could be ‘quite embarrassing and public’.Footnote 173 This latter feature may also act as an accountability mechanism, and possibly even help ensure constitutional stability.
The influencers believe these strategies are useful for a variety of reasons. One may be that their jobs are more satisfying when they are helping people. Another reason may be that it protects them from bullying by MPs.Footnote 174 After all, a lot of what frontline decision-makers may want to do could be difficult or technically challenging, and if they can help MPs navigate these situations they are likely to earn their respect.
4. Implications for the UK constitution
The above material explores some of the major themes that were asked about during the interviews. This section attempts to take this material a little further, examining some specific implications for the UK constitution. It also draws on the interview material, but in a more targeted manner and with a view to focusing on some of the current constitution’s flash points.
(a) Disregarding influencer advice can boil over
If frontline decision-makers disregard advice from the influencers, this can sometimes boil over into a larger row, causing embarrassment or consternation for the decision-maker in question, be it the government or an individual frontline actor. This is not least because the influencers have options at their disposal to push back. Some of these are time-honoured and some of them are fairly new. Two recent episodes help demonstrate how influencers can push back.
(i) SNP Gaza amendment
In February 2024 the SNP was in charge of an opposition day in the House, and had laid a motion to debate an immediate ceasefire in Gaza. The Labour Party found this uncomfortable given their position on the issue, and tried to remedy it by softening the language. They laid an amendment to debate a ‘humanitarian ceasefire’, which was less demanding than the SNP motion. The Conservative Government at the time refused to move their own motion on the issue, as they likely wanted to see Labour members vote on the SNP motion. Under House rules, the SNP motion should have been chosen. However, after thinking about the issue and its implications, Speaker Hoyle ended up selecting the Labour motion, disregarding House precedent and throwing the House into tumult.Footnote 175 The SNP walked out of the chamber and started a no-confidence petition in the Speaker, which ultimately failed.
This episode demonstrates that the influencers may not possess formal levers, but they still can retaliate. In particular, the Clerk of the House of Commons, Tom Goldsmith, filed a letter with the House of Commons Library shortly after the incident, noting that his advice was not taken by the Speaker.Footnote 176 This was the first time that such a letter had ever been filed. In some way this was able to hold Speaker Hoyle to account, as it officially put on record that Hoyle disregarded the advice from his top adviser. A previous House official noted that if the mechanism had been available before this, then more letters would have been filed, especially during John Bercow’s time as Speaker.Footnote 177
Whether such a mechanism would have constrained a Speaker like Bercow is another question. After all, he was ‘the Speaker who challenged norms’,Footnote 178 and often used to ask his advisers: ‘Where does it say in the rules I can’t do [it]’?Footnote 179 He disregarded official advice on numerous occasionsFootnote 180 and was especially bullish when it came to determining whether he could make his own decisions on whether something was privileged. One House official noted that Bercow often had to be ‘talked down from some high wall he wanted to jump on’.Footnote 181 Nevertheless, as the House advice system has evolved, there is now a formal mechanism by which the Speaker’s main adviser can lodge a formal letter noting that specific advice was not taken. That is a hugely significant step for an advice system that operates largely out of the public eye. However it is also important to note that a Clerk’s letter does not change the outcome, but merely records that specific advice was not taken.
This incident also demonstrates that what may be regarded as technical and relatively insignificant to many people, House procedure, can manifest as important and central to the operation of the constitution. Such ‘trench warfare’ between parties often relies on advice by the influencers,Footnote 182 who can steer MPs in various directions but also ensure that rules are adhered to.
(ii) Jonathan Jones’ resignation
The legislative experience of the Internal Market Act 2020 is another recent episode that shows how the influencers can bring an issue to boil. This piece of legislation brought forward issues in relation to Northern Ireland, which was and remains a tricky situation when it comes to goods and services flowing between the UK and Ireland. When the Internal Market Bill was published, the minister in charge acknowledged that it would break international law in a ‘specific and limited way’.Footnote 183 This went too far for the head of the GLD at the time, Sir Jonathan Jones, who resigned his position just before the legislation was introduced.Footnote 184
It is difficult to calculate the impact of Sir Jonathan’s resignation. It seems obvious that it put more pressure on the Government, and that personally it gave him a significant platform to criticise the Bill and even the trajectory of the Government more generally. In the end, the Government negotiated a new arrangement with the EU in relation to Northern Ireland, and the controversial provisions were stripped out before the Bill’s passage.Footnote 185 Whether the provisions were more of a negotiation strategy than anything remains unknown, but the Prime Minister definitely used them in talks with EU leaders.Footnote 186
As one influencer noted above, the only levers available to the influencers are usually ‘voice and exit’.Footnote 187 In relation to Sir Jonathan’s situation, that came to fruition. He chose exit, and it ended up adding more pressure to the Government during an already difficult time regarding Brexit.
(b) Back-end guardians are not the sole preserve of the rule of law
The rule of law is famously associated with back-end constitutional actors, especially the courts, but one of the surprises in my interviews was how much the rule of law was mentioned and discussed.Footnote 188 The principle was not peripheral, but central, to how many influencers think of their roles and how they fit within the wider constitutional system. In fact, it was one of the first things that interviewees mentioned. An adviser for the Law Officers noted that the office mantra was: ‘making law and politics work together at the heart of the UK constitution’.Footnote 189 He also said that he ‘would definitely put them in that order’, noting that they were lawyers providing a service to government, but that ‘you couldn’t do a good job if you were insensible to the political context’.Footnote 190
The influencers pay attention to developments in the courts and direct their advice accordingly.Footnote 191 One interviewee said they would ‘absolutely’ take into consideration how the courts would respond, as the idea of legal risk is built into their advice.Footnote 192 Another interviewee said they ‘massively’ pay attention to developments in the courts,Footnote 193 while a House lawyer noted that they keep up with legal judgments, and especially those concerned with anything constitutional.Footnote 194 She also noted that the impact of the rule of law is discussed regularly, especially in relation to the implications of particular legislation.Footnote 195
Acknowledging that the rule of law plays a key role in front-end discussion and debate contains implications. One may be that courts should not present themselves as the sole bearers of the principle, or suggest that front-end actors do not really understand this principle. For instance, in UNISON the Supreme Court seemed to chastise other constitutional actors by remarking, ‘The importance of the rule of law is not always understood’.Footnote 196 The court’s presentation of this issue made it seem that front-end and frontline understanding was flawed or inherently problematic. The court went on to detail the principle’s importance, again as if this principle was somehow alien to front-end actors or had not received proper consideration.Footnote 197
The rule of law is a key part of the front-end discussion, and in the lives of many influencers it is front and centre to their roles and responsibilities. Any suggestions to the contrary are far from reality.
(c) Filling a decisive scrutiny gap
A flurry of literature has recently come out regarding Westminster, with a good portion of it revolving around how the legislative process is flawed and can be improved.Footnote 198 Consensus amongst constitutional watchers is that MPs, and Parliament more generally, do not scrutinise legislation as much as they used to. This obviously has significant implications for back-end guardians, as if this is the case then they may have more issues coming their way, given that legislation not fixed or amended during the legislative process would likely be in need of further scrutiny and repair. However, the implications are potentially most significant for front-end actors. If front-end actors are not doing their jobs correctly or there are flaws in the front-end process, then the potential constitutional implications are much more significant, as procedures and institutions may not be operating in the way they should be.
Interviewees generally pushed back on parliamentary scrutiny or legislative procedure being ‘broken’, but they did honestly confront shortcomings. A number of them expressed concern about the ability of Parliament to scrutinise legislation. One drafter noted that when it comes to MPs, ‘law-making for them and the scrutiny of legislation is not high on their list of the things that they do’,Footnote 199 while another noted that ‘Parliament as a scrutinising body has declined very markedly over the last 30 years’.Footnote 200 A House official was even more blunt, noting that MPs do not ‘have a lot to bring to the party in terms of drafting’.Footnote 201 Many of these critiques align with the recent literature, expressing doubts about the current state of legislative scrutiny.
If these allegations are true, and Parliament does not scrutinise legislation as thoroughly as before, then potentially even more weight comes down on the influencers. After all, getting legislation right is no easy task. The good news is that some elements point to a robust front-end process. Front-end dialogue appears vigorous and considered. The perspectives that influencers take, and especially in considering principles such as the rule of law and democracy, means that virtually nothing is off the table during discussions and decisions can be made by weighing all relevant aspects of any issue or problem (eg constitutional principles, practical issues, short-term and long-term considerations, etc). This is something unique that the front-end context can help facilitate. Back-end actors cannot engage with the full range of debate, and are usually curtailed to issues such as legality, maladministration, or other predominantly legal considerations.
There are also some internal scrutiny measures that attempt to balance out this lack of parliamentary scrutiny. One drafter noted that all their Bills go to peer review before they are introduced. The peer-review panel may consist of specialists in a particular area of policy or law, but largely appears to be an ‘in house’ procedural mechanism within the OPC. This is a step beyond the ‘four-eyes principle’ that the OPC already operates on, which ensures that there are at least two people working on every draft Bill.Footnote 202 These mechanisms are certainly not substitutes for the parliamentary process, but they may help to ensure that legislation is properly drafted, thus decreasing problems down the line.
Some interviewees took a realist approach to the issue around scrutiny, noting that MPs are ‘not elected for their ability to read complex legislation’,Footnote 203 and that their ‘massive’ roles stretch far beyond the legislative process – especially in relation to their constituents.Footnote 204 Others noted that MPs never read the whole of Bills, and that their more important functions are providing democratic legitimacy for policies and holding the government to account.Footnote 205 That being said, clerks are more alert to the importance of getting new MPs to understand procedure,Footnote 206 and one former drafter admitted that ‘when parliament does really get into the nitty-gritty of the legislation it does improve it’.Footnote 207
5. Implications for wider constitutional theory
This study contains implications for the UK constitution, but the project also brought up wider implications for constitutional theory. Below I discuss how the influencers may challenge typical constitutional narratives (especially those from political constitutionalism and public choice theory), and also how their presence may impact wider success or failure on the constitutional level.
(a) Challenging typical narratives
At a time when constitutional studies has expanded well beyond the formal and textual nature of constitutional operation,Footnote 208 it is interesting and somewhat surprising that some critical groups still remain under-explored. Indeed, the presence and impact of the influencers challenges current narratives within some prominent theories. This is true for aspects of political constitutionalism, public choice theory, and perhaps even other significant constitutional theories.
Political constitutionalism has vigorously articulated its scepticism to one set of officials, namely judges,Footnote 209 but it has failed to explain where officials such as the influencers fit within its contours. In fact, the vast majority of political constitutionalist scholarship has ignored the influencers.Footnote 210 But there is little doubt that the two groups share common characteristics. One of the main critiques of judges is that they are unelected; so too are the influencers. And yet, the same scorn is not levelled at front-end officials. Additionally, both sets of officials have a significant impact on constitutional operation and development. This is undoubtedly true from the judicial perspective. But the influencers have a similar type of impact, which is evident in relation to how frequently their advice is taken, and that they advise on a vast range of issues that will never make it to a court. This type of unelected influence seems ripe for political constitutionalists to assert similar treatment on the influencers; and yet this has not occurred.
Of course, there are major differences between these two sets of officials. The influencers do not claim to possess the final word on particular decisions. The ones I interviewed were adamant that frontline decision-makers had the final word. Judges may be less likely to concede such grounds, especially when it comes to issues around vires or determining whether human rights obligations have been breached. The influencers may also provide a unique perspective because of the position that they occupy, straddling the border between law and policy in a way that frontline decision-makers and back-end actors may not recognise. After all, just as they hold both democratic and rule of law values, the influencers often interact with both sets of actors and have a keen eye on developments in both the legal and political sphere. This could be one reason that frontline decision-makers value their insight and advice, and do not perceive them as a threat. But ultimately, political constitutionalism should justify why one set of influential unelected officials presents such a problem, while another important set of unelected officials does not pose such a problem.
The experience of the influencers also challenges narratives prevalent in public choice theory in a couple of significant ways. This theory has been hugely influential throughout the twentieth and twenty-first centuries,Footnote 211 and its view of the political realm is largely negative.Footnote 212 The first challenge comes to the idea of political short-termism, which public choice theory has championed in relation to the political realm.Footnote 213 Although there was some evidence to counter this in relation to ministers, the influencers demonstrated that long-term strategic thinking is often present in the advice they give to frontline actors. Cross-cutting governmental perspectives and time-honoured constitutional principles often come into play.Footnote 214 For many these were not secondary considerations, but a main element of their jobs and how they went about their daily interactions with colleagues. Thus, even if politicians are concerned with short-term considerations about the economy or impending elections, the influencers are generally not focused on these issues, as their jobs are not on the line. Thus, similar to back-end actors that can take a more detached view of constitutional issues, the influencers can often take a more considered long-term perspective on issues when they arise, and ensure that frontline actors at least confront these considerations before making decisions.
The second way that the influencers challenge public choice theory is regarding the typical public choice narrative that the self-interested bureaucrats will only seek to expand their powers. This was not the case with the influencers interviewed, who frequently recognised that their roles were to help and assist frontline decision-markers, not make decisions for them.Footnote 215 They also repeatedly mentioned democratic considerations in relation to ensuring that those making decisions were able to be held to account. Some offices even seemed to be actively divesting power that they had previously held. In particular, the experience of the OPC directly contradicted the typical public choice narrative. Instead of attempting to expand their powers and remit as an office, they appear to have consciously rethought their position within the constitutional landscape. Long regarded as one of the front-end actors willing to say ‘no’ to ministers and government departments,Footnote 216 over the past few decades the Office has made a considerable effort to change this disposition, acknowledging that the previous status quo does not serve them well and does not fit into the wider constitutional architecture of the current system. This is a prominent example that bucks the public choice narrative regarding civil servant actors.
Similar challenges to acknowledge and situate the influencers may arise in other prominent theories, such as democratic constitutionalismFootnote 217 or comparative political process theory.Footnote 218 Both of these attribute significant roles to back-end officials (judges), but do not really take influential front-end officials into consideration. Thus, the implications of the influencers likely reaches even wider into constitutional theory.
(b) The influencers can significantly impact constitutional success (or failure)
The influencers are not peripheral figures that affect the constitution only when exceptional cases or controversies arise. They touch the constitution on a daily basis, affecting numerous decisions made within government and Parliament. Their advice is present right from the very beginning of policy formation all the way through a piece of legislation’s passage in Parliament. But it is not limited to policy formation or legislation, and can touch on a variety of constitutional aspects. If frontline actors did not receive the careful and considered advice that the influencers provide, many constitutions would look radically different. That is definitely the case with the UK constitution, and it is probably the case with many constitutions around the world.Footnote 219
Above I have pointed out that the influencers form a significant constitutional functionality mechanism. The constitution relies on these people to advise frontline decision-makers on a range of constitutional matters, from adhering to constitutional principles to following established House procedures. The influencers also perform accountability functions in various ways. They can help frontline actors hold governments or other constitutional actors to account, as is seen in the advice they give select committees, the Opposition, or backbenchers. Additionally, they possess some limited means of holding frontline actors to account through their ability to resign, therefore attracting attention to issues and potentially putting increased pressure on government. And through their collaborative mentality, they also help to hold each other to account, ensuring that the advice they give or the output they put forward (eg draft legislation) is the highest quality it can be.
The quality of advice the influencers provide is also key to upholding the constitution. The varied and collective nature of influencer advice usually militates against one key individual or one bad piece of advice becoming the official line provided to frontline decision-makers. However, a recent disturbing report that UK ministers were advised by civil servants to break the law shows that the advice given to ministers can sometimes fall short.Footnote 220 Although it appears extremely rare for this to happen,Footnote 221 should substandard or questionable advice rule the day, this becomes a significant threat to constitutional health, and could potentially lead to constitutional breakdown or even constitutional failure.
It should also be acknowledged that, just as other constitutional actors possess limitations on their roles and authority, so too do the influencers. They are not decision-makers, and are therefore reliant on others to ensure that particular decisions get made. They are also not back-end actors that can correct problematic or faulty decisions made on the front end. As noted above, a lack of formal levers is one of the characteristics of the influencers. But none of this should negate the significant contribution the influencers make to protecting and defending the constitution on the front-end.
Conclusion
Constitutional theory remains obsessed with frontline and back-end constitutional actors, who undoubtedly make a significant contribution to any constitutional system. But front-end constitutional actors are also hugely important when it comes to protecting and defending the constitution. Some have called these individuals ‘gatekeepers’,Footnote 222 but a more accurate label would be ‘influencers’. Indeed, the advice given by the influencers helps guide and shape – rather than constrain – governmental thinking. Above I have sketched out how this happens in the UK system, in addition to articulating some of the qualities that these front-end actors possess. But this paper has only provided a glimpse into how important these actors are to the constitutional system. If scholars truly want to understand how constitutions are protected, defended, and maintained they should further delve into how these key front-end actors contribute to their respective constitutional systems. Doing so will provide the field with a more nuanced understanding of how constitutions are upheld and maintained and, ultimately, why they may succeed or fail.
Open access
