Examination of Witnesses (Questions 51-74)
DR STUART WILKS-HEEG, DR MICHAEL PINTO-DUSCHINSKY
AND DAVID WALKER
3 MARCH 2011
Q51 Chair: Michael,
how are you?
Dr Michael Pinto-Duschinsky:
Very well. Thank you very much, nice to see you.
Chair: Good to see you.
Thank you for coming. Stuart, welcome. Thank you for coming. We
have an hour and 15 minutes or so, and we would like to get your
views on the Cabinet Manual. I think you have slightly different
views from the last set of witnesses that we had, so we are interested
in some of the differences and where your views on the Cabinet
Manual come from. Would you like to have a minute to tell us generally
where you come from, and then colleagues can ask you questions,
or are you happy with what you put in?
Dr Stuart Wilks-Heeg:
I am quite happy to make a very short opening statement.
Chair: Yes, Stuart, kick
it off.
Dr Stuart Wilks-Heeg:
By way of observation partly, and to explain where I and Democratic
Audit are coming from on this issue, I think it is quite remarkable
how a document of interest to such a small community has divided
opinion so much, as I am sure the Committee will be aware. Obviously,
that difference of opinion relates very much to whether this should
be seen, or could be seen, in any way as a step towards a written
constitution. For the record, I don't think it could or should
be seen as a step towards a written constitution.
Q52 Chair: You do
not agree with the former Prime Minister.
Dr Stuart Wilks-Heeg:
I think we would have to look—I am sure that will come up
in the discussion about the origins of the idea of having this
document. I do agree the original intention was clearly to look
at the possibility of codification, but somewhere along the line
the intentions have changed, and the apparent purpose of the document
was changed, so I think that is something we need to clearly discuss.
Q53 Chair: But you
are agreeing with the change. You are disagreeing with the originator
of the proposal.
Dr Stuart Wilks-Heeg:
No, I am not agreeing with the change. As we have got into this,
I will elaborate. The origins of the document I think are clear.
There were Gordon Brown's statements in the midst of the expenses
crisis—the debates about constitutional reform, and so on—about
whether we should move to some form of codification, which has
clearly been a long running debate, and during the 2000s there
were more and more senior Labour figures who I think moved towards
favouring some form of codification. So the statements made by
Gordon Brown clearly indicated that this document in preparation
was seen partly in that light. Parallel to that, we clearly had
the suggestion being made, as it looked likely we were going to
have a hung parliament, that something should be attempted along
the lines of the New Zealand model of a Cabinet Manual to explain
what should happen in those circumstances, as the Committee will
be aware.
That seems to me to have been a rather curious situation,
in which the perceived need to have very clear rules about what
would happen in the situation of a hung parliament drove the process
in many ways. In many ways, that is one of the most problematic
parts I think of the document. So that is something I think we
need to address. It does seem to me the original intention has
been forgotten about somewhat. The things that we were told by
Gordon Brown about what would happen with the document once published,
we seem to have moved away from those intentions as well, because—as
my understanding of it is—there was going to be a wider
public debate about this document, about whether this could be
moving towards a written constitution for the anniversary of Magna
Carta, and so on. So, just to clarify that, that is how I understand
it.
If I could just add: the other thing I want to say
in opening, I think it is also very curious, despite these differences
of opinion you will find on this document, there is also—as
I am sure you have noted—an incredible amount of agreement
about some of the questions about what is potentially missing
from the document; perhaps what has been over interpreted; perhaps
precedents that have been asserted; which perhaps have been over
asserted; and so on. So I think the way the Committee has framed
its request for written evidence—separating out the constitutional
implications from those other matters—is very helpful indeed.
Q54 Chair: To pick
up one question, you say they sort of got off track in terms of
seeing this as the very first step on a written constitution.
How would you suggest that they get back on track, or would you
suggest that they do not get back on track?
Dr Stuart Wilks-Heeg:
If we wanted to get back on track towards codification—I
mean this document now exists, so you can't take it away, so it
would clearly be there in the mix—I would like to see a
much broader debate of the type that I think Gordon Brown was
signalling. Ideally, some form of constitutional convention at
some stage, I think, would be necessary to look at these issues.
I do not think you can simply go to the existing statutes and
conventions, attempt to write them down and then consult on the
document and assume that takes you towards an appropriate written
constitution for the United Kingdom. So it would be an entirely
different process, if that were the objective.
Q55 Chair: Have you
thought this through? Is there something we could read on this
or do you know of people in your field who have thought about
this?
Dr Stuart Wilks-Heeg:
There are lots of people in the field who have made suggestions.
In fact, as I am sure you will be aware, Chair, there are various
different attempts that have been made to produce written constitutions.
Some of them to try to accurately describe UK constitutional arrangements;
some of them to try to describe perhaps what it should look like
under certain, I suppose, normative assumptions of what a UK constitution
should be like--there are various suggestions I would put on the
table about how that could be run through. There is no doubt that
it would be a huge and difficult task, given the enormous body
of written and unwritten material that currently make up the UK
constitution. So the idea that it could be done in time for 2015,
the anniversary of the Magna Carta—the 800th anniversary,
I think—was always very ambitious, but personally I have
no doubt that it is feasible, if the process can be defined in
a way which is workable.
David Walker: I
can't help you a great deal on the genesis of this. You have talked
to people who have given you that. I suppose I come here as a
journalist—in distinction to my academic expert colleagues—but
someone who perhaps knows something about how government functions,
and perhaps then about the relationship between the business of
government and the formal processes of government that might be
called "constitutionalism".
I offer you a very brief vignette to indicate what
I am sure is perfectly obvious to you, which is that this is a
moving feast and capturing it is extremely difficult. I went to
an event yesterday evening at which the Permanent Secretary in
the Cabinet Office was speaking. He has the title ascribed—presumably,
by the machine and him—to himself, which is the Government's
Chief Operating Officer. This title wasn't in existence in my
recollection before approximately October 2010. Is this a constitutional
innovation? Does his reach trespass upon the understood ambit
of the Cabinet Secretary's responsibilities? Are these constitutional
matters or are they matters to do with banal business of government?
One of my problems with this document was that it
did not help us with understanding whether there was a realm of
more abstract constitutional conversation to be had, from which
we could distinguish the ongoing business of government in which
daily things get done, definitions change, and one reason one
might say it is good to have a committee like yours, is there
needs to be a constant daily invigilation of these changes that
could become encoded in constitutional understanding.
I have given one or two examples in my written submission
but capturing this thing is extremely difficult. I am not sure
we are any nearer that distinction between the more permanent
entelechy—to use that Greek word—about the state on
the one side and what is happening in terms of the way a Government
runs. Obviously a lot has changed in the way Government runs since
May last year.
Q56 Chair: I think
you raised the question of authority and legitimacy because, of
course, changing title to Government Chief Operating Officer at
one level could be internal. It could be the Executive talking
about the Executive—to use the phrase—but our Executive
derives its authority from Parliament. Therefore, shouldn't it
be for Parliament to say whether, "This is a banal piece
of trivia. We don't want to get involved in this" or, "Here
is a fundamental change. Here is potentially the development of
an office of Prime Minister", an executive office, per se,
as common in genuinely separated powers, democracies. Do you feel
that we do have that interaction and that we are indeed the people
who can ultimately say, "We would like to see a bit more
about this. We would like to see this document"? I sometimes
get the sense that that is the very last thing on the agenda,
even of the people who put the Cabinet Manual into the public
domain.
David Walker: Two
points: one, why wasn't it in a sense you—the House of Commons
Parliament—that issued this draft constitution? Aren't you
as much owners of it as the Executive that put the document into
circulation? Second, to answer your question substantively, it
is quite apparent Parliament is not in control of the Executive.
That is demonstrated in this document by the sketchiness of the
paragraphs devoted to finding the relative responsibilities of
Ministers whom you can interrogate occasionally at least, and
the civil servant—the machine—which is arguably supposed
to be answerable to those Ministers.
It is as unclear to me from this, as it has always
been, exactly where the moral, political and constitutional responsibilities
of paid executive civil servants end and those responsibilities
of Ministers begin. That confusion, if I am right, does say something
about the capacity or the will of the House of Commons, MPs in
Parliament, over past times to try and get to grips with this
thing that, notionally, you are responsible for.
Q57 Chair: That is
my problem—even occupying this Chair—that I don't
know, and one of the ways to find out is to see something that
defines what I can know and to define things that are outside
my legitimate ambit. That is why I think the question of having
these things in the public domain becomes very important.
I had a letter in evidence—I don't know if
it has reached the office and, therefore, to the Members yet—from
Robin Butler, who argued against codification saying that there
would be endless debates about what is ultra vires and
intra vires, and one person's endless debates about ultra
vires and intra vires is another person's debates about
the life blood of democracy, about who is meant to be doing what.
Would you agree, David, that unless we know what is going on we
can't begin to divide up those issues and allocate accountabilities
and responsibilities unless it is clear and in the public domain?
David Walker: Absolutely.
The rejoinder to Robin Butler has to be: there is a large sphere
of Government activity that happens to impinge most closely on
real people—your constituents—which is codified; which
is based on statute; which manages the problem of vires
and ultra vires on a daily basis. I am talking not just
about the elected local government, although that does that, but
others, the NHS, where most of the activities of that service
are based upon statutory responsibilities. So, in a sense, we
have solved that problem in the delivery of public service and
governance out with the central portion of the state.
Dr Michael Pinto-Duschinsky:
I hope that the Committee would recommend not just the amendment
of this document but its complete abandonment. You spoke in an
earlier meeting about a very strong width of illegitimacy about
the document. Reading through evidence to other Select Committees,
I see that your view is very widely shared. It is certainly a
view that I share and indeed the doubts—the serious doubts—are
so widespread that I think it lacks the consensus needed for a
document of potentially constitutional importance. It is muddled
in its status and audience. It is said by some that it is by the
Executive for the Executive. On the other hand, it is said that
it is for the media to help people to understand. We are told
that it is merely descriptive but on the other hand that it sets
out good practice, namely, that it is prescriptive. We are told
that it is not legal but that it may have legal significance.
We are told that it is based completely on precedent but, when
one looks at it, by some conjuring trick precedents are used to
produce some systems that are completely new to British politics
and are just conjured up like a magician there. So I think it
is a very bad document indeed.
If one looks at the background of the document, I
think it is quite simply that certain people wanted to help the
Liberal Democrats win power in a hung parliament and wanted to
advocate a fairly definitely new system that would enable them
to maximise their chances in the event of a hung parliament. If
one looks at the background and the way in which this document
was presented to the public at the time of the election, I think
that conclusion becomes compelling. If I am right in that, then
it also follows that, in putting forward this document, the neutrality
of the Civil Service has been endangered. So this is why I would
agree about the width of illegitimacy and the danger of this document.
If I can give one or two examples of this, I have
referred in my evidence to what I have called "the auction
method". In other words, the method of trying to keep an
existing Prime Minister who has lost the election in office so
that the pivot party—the third party—can go from one
to the other of the main parties and have them leading an auction
for their favours. For that it was necessary to persuade Gordon
Brown to remain in office.
If one looks slightly before the election, three
or four days before the election one of those most closely associated
with the process, Professor Robert Hazell, wrote in The
Mail on Sunday saying that Brown had to remain in office
if he lost the election. "The Queen will not accept his resignation"
he wrote. I have asked Professor Hazell what the basis of this
is, and he told me the first time that he was going to Canada
and was therefore too busy, the second time that he was not my
research assistant and the third time that every expert agreed
with his view. I do think that some justification for that view
is needed.
I am told by the Cabinet Office that there is no
precedent for the Queen refusing a Prime Minister's wish to resign.
I think that Professor Hazell was wrong but that putting his view
forward in that way had the effect of trying to put pressure on
Gordon Brown at that time.
Now, at the same time Professor Hazell wrote—
Chair: I think, Michael,
it is a little unfair if we take too much of your views in respect
of Professor Hazell if he is not able to defend his position.
Dr Michael Pinto-Duschinsky:
I think he certainly should be able to defend his position.
Chair: If you could stick
to the principle we would be very pleased.
Dr Michael Pinto-Duschinsky:
I think that is right, but what we were told in the press was
that the new Cabinet Manual stated that the Prime Minister should
not resign until it is clear who can command confidence in his
place. Well, nowhere in the draft Cabinet Manual before the election
was that stated. In other words, the Manual itself was misquoted
in order to create this auction situation, and I see the real
danger of what happened was that it was a highly political process
masquerading as a set of historical precedents.
If I go on to something else not involving Professor
Hazell, the best precedent was the 1929 election, when Baldwin
resigned and his advisors said that he could resign when he wanted,
which I think is the situation. Now, I gather that the Institute
for Government study did not look at the advice given in 1929.
It just looked at the result but not at the advice. In other words,
I think that things were rather geared—they were tendentious—towards
a certain conclusion, the conclusion being that we should move
towards a continental system of coalition bargaining. The excuse
that you always had a Government, a continuing Government, by
having a caretaker Government under a coalition bargaining system,
is fairly absurd when one looks at countries like, say, Belgium
where you have a caretaker Government but that can last for a
number of months. In fact, I read that the wives of Belgium politicians
are so fed up with these negotiations lasting so long and being
without a Government, that they are looking back to ancient Greek
time and threatening a sex strike to make their husbands go ahead
and form a Government. So the notion that we should change the
system to one of coalition bargaining because the Queen's Government
must continue does not follow.
The way in which the Queen's Government continues—according
to the British tradition—is the Prime Minister is free to
resign, does not have to resign after an election until defeat
in the House of Commons, and then the Queen asks for somebody
else who—if they are not confident that they will be able
to form a Government—accepts an exploratory commission,
which is perfectly normal in British political tradition.
So I think I have made clear that I very much suspect
the political motives in this and the effects, which I think are
undesirable.
Q58 Chair: I think,
Michael, to an extent, the fact that these things happened and
the Cabinet Manual was not in the public domain made those things
possible.
Dr Michael Pinto-Duschinsky:
It was in the public domain because the relevant chapter, number
six, was published shortly before the election. However, I gather
that it never went through the Cabinet. It was a production of
the Secretary of the Cabinet. He had been given authorisation
by the Prime Minister to go ahead with the exercise but the draft
did not go to the Cabinet. I don't know if it went to the Prime
Minister. It was not subject to proper review by any parliamentary
committees. The Justice Committee received evidence in a hurry
so that opponents—such as those who might be here today—were
not given a chance to express their opposition. It was rushed
through.
Q59 Chair: So in
a future situation where the whole of the Cabinet Manual is in
the public domain and had been viewed and examined by Parliament
as a whole, and in detail— possibly by this Select Committee—to
raise detailed issues, which are very difficult to do on the floor,
but where this Committee perhaps had examined detailed issues
and made proposals and sought to enter a process of negotiation
on behalf of the legislature with the Executive, the likelihood
of that sort of bias, let us say, would be diminished?
Dr Michael Pinto-Duschinsky:
I think that I tend to agree with Stuart Wilks-Heeg on this, that
if you are to go towards a written constitution you need a fully
fledged discussion about it. It can't be done casually. I think
this document is neither fish nor fowl and it is the worst of
all worlds. If there are those who argue for a written constitution,
we have to go through a constitutional convention, and that is
the best way of doing it. If we keep to our traditions then we
keep to ours, but the halfway house, where there is unclear wording
and ambiguity that comes time and again in this document, is undesirable
constitutionally.
Chair: Michael, thank
you.
Q60 Mrs Laing: I
am concerned about—and everybody has addressed this this
morning, and our previous witnesses did as well—what kind
of creature is this Cabinet Manual. We can't recommend whether
it is a good thing or a bad thing unless we know just what it
is, and a document is not necessarily what it purports to be merely
because somebody says that is what it is. I would suggest that
what matters is the manner in which it has been acted upon, the
way in which it has been used or could be used in future. So I
have a couple of questions relating to that. I have to go back
to Professor Hazell. Professor Hazell suggested to us, and so
did our witness from New Zealand, that their Cabinet Manual—and
Professor Hazell said this is the same for this Cabinet Manual—is
merely an operating manual for the Executive, but I would ask
then: is it merely for the Executive?
I notice I asked Professor Hazell this question and
he answered a different question, now that I go back and look
at the minutes, but what politician can possibly criticise anyone
for answering a different question to that which is put to them?
So I don't criticise him for that, but he did not answer the question.
This Cabinet Manual was acted upon not only by the
Executive but by those who were not members of the Executive,
notably leaders of other political parties and others, but especially
leaders of other political parties. So, who acts upon it? Secondly,
is it innovation? Is it something new in our system? Thirdly,
is it justiciable? Because the question of whether it is justiciable
takes us to the centre of what kind of creature it is. We have
been given some evidence—some opinions—that it is
not justiciable and some that it is, and I wonder if our witnesses
this morning would like to consider those three points: who acts
upon it? Is it innovation? Is it justiciable?
Dr Stuart Wilks-Heeg:
There is a series of questions there and very important ones.
I think the issue where you started: what is this document exactly,
and some of Michael's points, are extremely relevant here. I think
there is a muddle. It has been described in many different ways.
Yes, operational manual for the Executive. That is one way it
has been described but there have been many other terms. It has
also been described as being directed at various different audiences.
I do have concerns that a document, which on one level is meant
to be written by the Executive for the Executive is supposed to
also be a document that explains how government operates to the
general public, because we have heard both things from the Cabinet
Secretary. To my mind, that does not quite make sense.
Who will act upon it? Well, yes, once you have this
document, once it exists, once it is in the public domain—which
it is—it is not only going to be acted upon by the Executive
branch, clearly others will have an interest in what this document
says; clearly they will refer to it and brandish it at certain
points if they think something is happening that is not as laid
out in the Cabinet Manual, and the fact that the Cabinet Manual
is so vague in so many places using lots of phrases like "ordinarily"
or "normally" or "as far as possible", all
these kinds of things, you can see how much contention there could
possibly be.
Is it something new? Is it an innovation? Clearly,
it is something new and constitutionally it will have significance.
We can see from the New Zealand experience that that has happened.
If you look at how the New Zealand manual is now described, it
is described as a key source document in relation to the New Zealand
constitution. So we can expect with time it will acquire that
kind of status. That is absolutely clear.
Is it justiciable or not? This is really tricky and
I am probably not best to judge. Clearly, it does not have legal
status and it can't have. Whether it could be referred to in a
court of law; well clearly, yes. What weight that would carry?
It is very, very difficult to say.
David Walker: These
observations are negative and probably don't help. This isn't
the Executive. The National Audit Office—when I last checked—is
an organisation answerable through and to this House. There is
a lot in here about the National Audit Office. There is a lot
in here about the relationship with the National Audit Office
and Accounting Officers in the Civil Service. Immediately you
are into the terrain of: what is your collective competence as
representatives of the people in this House and, indeed, Parliament?
So it can't just be defined as something by and for the Executive.
It involves you and obviously these hearings are in part an attempt
by Parliament to assert itself in the face of what is, by definition,
a product of the Executive.
My great puzzle with this was how to make sense of
a mixture of high flown and—I used the word earlier—banal
to do with business. For example, there are several paragraphs
in here about the appointment of non-executive directors to Whitehall
Departments. Again, this is new. It was discussed under the previous
Government as being put into effect partially under—now
is that a constitutional question or is it again a mere matter
of how Secretaries of State choose to run themselves? I confess
sheer puzzlement as to what essentially is now meant to be cast
in stone, so that all departments in future will organise their
relevance in the following way. I don't think so. It is a very
brief observation of what necessarily will change because I can
already go around the departments and say, "These have done
it. These haven't done it".
One interesting question about this: as you know,
there is a meeting every Wednesday of the Permanent Secretaries
of all departments convened and chaired by the Cabinet Secretary.
I wonder if you were to eavesdrop on that or had eavesdropped
on that since the draft came out, how many Permanent Secretaries—out
with maybe the Treasury and maybe those around No. 10—have
even cast their eyes over this? I don't think this is a collective
product of the Whitehall machine. I think it is a partial document
from a section of the Cabinet Office, produced for reasons you
have been discussing, but its generality is not, I think, evident.
Dr Michael Pinto-Duschinsky:
I looked through the evidence given to the Select Committees on
this. It is remarkable how many different versions come out and
ones that can't all be true at the same time. We are asked to
believe that it is not new, on the other hand that it is completely
new and a marvellous new production; that it is not prescriptive
and yet it is; it is not legal and yet Lord Pannick, who I think
is an authority on this—and he was on the Lords Constitutional
Committee—warned that it was likely and inevitably would
be legal, whatever people were saying.
I think that the way I interpret it is that, if you
want to introduce something new and important without making people
too nervous, you tell them, "Don't worry, it isn't this;
it isn't that; it isn't the other".
Mrs Laing: Precisely.
Dr Michael Pinto-Duschinsky:
Then once it is in, they will say, "Look at it. There it
is".
Mrs Laing: Yes.
Dr Michael Pinto-Duschinsky:
So I don't believe it is as innocent as it is made out to be.
When leading public servants say there are all sorts of myths
about this, well if there are myths it should not be written in
such a way that gives rise so easily to myths. I think it is absolutely
inevitable that it will lead to controversy about its status,
which is one reason I don't think it should go ahead.
Q61 Chair: I think
you are all saying, to some degree, that the way this was introduced—going
back to Gordon Brown's original speech, and then the publication
of one chapter—that this was not introduced openly and transparently
as a very early step on some sort of wider codification. This
was a typically British sort of smuggling something out and see
what happens and, "We'll do a bit of it and get a reaction
and—"
Dr Michael Pinto-Duschinsky:
I don't know if it was typically British in that way, because
there is no precedent for the way in which this was done. I have
asked the Cabinet Office, "Is there any previous example
in history of a Secretary of the Cabinet issuing a statement before
an election about the rules of those elections?" and the
answer is, "No". This is an unprecedented thing to come
from the Civil Service in an area that is potentially political.
So I don't see where the precedents are. The fact that there is
a precedent in New Zealand, there is no British precedent for
doing this.
Chair: No, I was referring
to the precedent of we are not very good at doing the big bang
constitutional stuff. We do little bits of reform around the edges
and a bit of tinkering with this, that and the other, and see
what the reaction is and then withdraw if the horses get frightened.
I am sorry, I am diverting—
Dr Michael Pinto-Duschinsky:
If there were a bit of tinkering, but done in the correct way,
that is fine, you can have piecemeal reforms. But this was something
that was not introduced through any accepted constitutional or
institutional precedent. It was done in a way that we have not
seen before.
Chair: Although the Prime
Minister did launch it in effect and then shortly—
Dr Michael Pinto-Duschinsky:
No, he did not. I am sorry, because the evidence you had on 13
January was that his permission was obtained but that the Prime
Minister felt that it was being obtained for something else; that
his IPPR speech was about his general constitutional plans. Yet
that permission was used to produce a manual, which was not what
the Prime Minister had intended. That was the evidence given by
the gentleman who appeared before you in January.
Q62 Chair: We have
the quote on the record from the Prime Minister, "There is
a wider issue. The question of a written constitution, an issue
on which I hope all parties can work together in a spirit of partnership
and patriotism. I can announce today that I have asked the Cabinet
Secretary to lead work to consolidate the existing unwritten piecemeal
conventions that govern much of the way central Government operates
under our existing constitution, into a single written document".
I think that was the Prime Minister saying, "This is the
first step".
Dr Michael Pinto-Duschinsky:
Yes, but that was not necessarily a Cabinet Manual.
Chair: No.
Dr Michael Pinto-Duschinsky:
His understanding was that it was the beginning of a much longer
process of constitutional reform, and that there was some misunderstanding
as to what he was proposing. On his part, he felt he was proposing
what you have said, which is the wider process, whereas what the
Cabinet Office was doing was producing a more limited document
to apply to try and change public perceptions of what you would
do in the event of a hung parliament.
David Walker: Usually
an outgoing Prime Minister asks something to happen and it then
cools off. Isn't the puzzle about this that it has continued as
a piece of work by the Cabinet Office under a Government whose
interests are, it seems, quite different, whose dynamic is quite
different? You could interpret the way it has come out as the
Civil Service saying, "Basically, we had to do it because
Gordon asked us but it is not terribly important any more and
we have other fish to fry". You could envisage circumstances
after May when it could have been dropped. Maybe the nature of
coalition building in those days of May gave Gus O'Donnell the
sense that he had to somehow encode what he had accomplished.
I don't know. It was to me slightly puzzling that they bothered
to continue something that was enjoined by an outgoing—and
some might say discredited—Prime Minister.
Q63 Tristram Hunt:
That is the interesting point. I think the criticisms we have
heard today are, in a sense, Stuart suggesting the process was
in many ways illegitimate in the way that this was done; David
suggesting it was slightly unsophisticated in its approach to
the complexities and modernity of the nature of government today;
and Michael worrying about—quite rightly I think—the
political consequence of the codification process.
I suppose my question is partly about what happens
next because, as Stuart said, this is out there; it can't simply
be withdrawn. We as a Committee, having engaged on this question,
it behoves us to come up with something useful to say rather than
on the one hand or on the other. What should Parliament do about
this? Should we try and take hold of it and re-write it? Should
we send it back where it came? What would be a useful step that
we as a Committee can recommend to our colleagues in Parliament
to do with this manual?
Dr Stuart Wilks-Heeg:
That is a very important question. I think, a general principle,
Parliament needs to be assertive in relation to this. Therefore,
this inquiry is incredibly important. I may have this wrong, but
I think there may be one other Select Committee looking at this
issue as well.
Tristram Hunt: There is
always another one.
Dr Stuart Wilks-Heeg:
I think it is crucial that Parliament is assertive in response.
Could the Select Committee attempt to re-write it? I don't know.
One thing, and this might seem a slightly trite suggestion, but
it does seem to me if the Executive branch can write a manual
by itself for itself perhaps so can Parliament write a manual
as it sees the way things work. Perhaps so too could local government.
Then we could look at how all these things match up or don't match
up from the different perspective of the different constituent
parts of government in the UK. As I say, it might be a slightly
trite suggestion but it might reveal some interesting problems
that we haven't thought of yet.
It is not really for me to say precisely what Parliament
should do, but I think Parliament should do something. I think
it is very important that Parliament grasps some kind of role
in relation to this document and isn't fobbed off with the argument
that this is a document by the Executive for the Executive, which
is the line it seems to me consistently still taken in New Zealand.
Given that they have had their Cabinet Manual since 1979, I think
it would horrify me if, after that much time had elapsed in the
UK, we were still in that position, that Parliament didn't seem
to have any purchase on the document.
Q64 Chair: To interject
there, an informal process could be agreement on the floor to
the principle and examination in detail by a Select Committee,
which I think would be ourselves; a formal process could be that
this is a code and it needs statutory authority, and that would
mean then it would go upstairs into Committee and a Public Bill
Committee. The downside of that is, of course, that is government
versus the rest and there is a whipping, and the rest of it, and
you may end up with absolutely zero flexibility and then it is
whipped through on the floor similarly. So I think Tristram's
question is an incredibly valuable one and I don't know the answer
to it. But we need a process because I think the Government and
the Executive here are seeking some form of engagement to their
great credit, and publication is to their great credit. So I think
it does behove us, as Tristram said, to find a way.
David Walker: Repeating
what I said earlier, you are corners of whatever the constitution
is; you are its pivot; you are its major element. If you don't
have considerable input into whatever might be a description of
the constitution, it will inevitably be a broken bat. Tristram
might imagine one of his Victorian heroes—Gladstone—fobbing
off the work of the constitutional definition to clerks. I don't
think so. I think this is a task for politicians and parliamentarians.
I have to say, if I may, notwithstanding issues about expenses,
some of the revenues of this body—which arguably should
be larger—could be spent upon the enterprise of development.
You could commission distinguished academics to help you in the
task of putting together a draft constitution. I don't think it
is an Executive responsibility.
Again, you do have an arm—I repeat it—in
the National Audit Office. There are other ways in which you could
mobilise some small resource to help you in something that I think
is yours to do. Clearly, in dialogue but it is as much yours to
initiate and to accomplish as it is the Executive's.
Dr Michael Pinto-Duschinsky:
I think there is a background to this, that in the coalition the
Minister responsible for the constitution is the Deputy Prime
Minister and the machine works to him in constitutional matters.
Some people may see a sort of underlying compromise where the
Liberal Democrats in the coalition will give way on university
fees, on various other things to do with substance of policy,
but will get their way on constitutional reforms that are the
centre of their attention and what they are really after. So I
think that is why the process of the Cabinet Manual has gone on
through the coalition process.
What we don't want is deep reform that is either
partisan or rushed through. Reform is something that needs to
have all party consensus and needs to be looked at very seriously.
So I do think that if there is a will to look at codifying our
constitution it needs to be done on an all party basis, in a very
serious way and, as you say, with Parliament involved. So I think
that would be what you are suggesting, which is a wider and more
serious process would be a better way of going if one was going
down that direction.
Q65 Tristram Hunt:
But doesn't that point to, in many ways, the dangers and intellectual
problems of constructing a written constitution after a nation
has existed for however many hundreds of years, rather than the
beginning of the nation? Because, in whatever context you do it,
it is going to be a reflection of those specific contexts. It
is a reflection of the debate surrounding the 2010 election rather
than the 1929 election. So in the Cabinet Manual we have the ridiculous
footnote eight on page 26, inserted by our fanciful Deputy Prime
Minister, about a precedent about the Leader of the Liberal Democrats
expressing a view that whichever party has won the most votes
and the most seats, if not an absolute majority, has the first
right to seek to govern. To insert that from nowhere, but because
he is a Deputy Prime Minister and was in the room he can put that
in, that is the illegitimacy of it, isn't it?
Dr Michael Pinto-Duschinsky:
I tend to agree. I think that there are questions as to whether
a country like the UK should now go towards a written constitution.
It may well be that we find ourselves involved in an exercise
that is not worth the trouble. On the other hand, there are people
who believe that we should go for a written constitution. I think
it is a legitimate argument and, therefore, I would respect what
the Chair wants, which is to move towards a written constitution
as I understand it. What I have no sympathy with is this sort
of halfway house, so either do it all or do none of it but don't
mess around in the middle.
Q66 Mr Turner: Can
you remind me: I was on the Justice Committee on 24 February when
it went before that Committee. Were any other committees invited
to put the same piece of information beforehand, before the Justice
Committee?
Dr Stuart Wilks-Heeg:
Not that I am aware of.
Dr Michael Pinto-Duschinsky:
I would need to look in detail at this, but my impression is that
the Justice Committee was recruited to look at this after PASC—the
Public Administration Select Committee—said that it couldn't
and that the request came from members of the group, the academics—I
mean the Institute for Government, the Constitution Unit—who
were pursuing this. The idea was to get some public mileage out
of it. There was no real attempt to keep to the timetables normal
for a committee, or to have in evidence those who might doubt
what was being suggested. It was a quick fix with the view that
was being put forward being presented but without any opposite
view.
Q67 Mr Turner: The
success of the Justice Committee, of course, was that it helped
to have a Liberal Democrat in charge?
Dr Michael Pinto-Duschinsky:
Alan Beith, who was a university contemporary of mine, is, of
course, a Liberal Democrat.
Q68 Mr Turner: Can
you tell me something else, which I am not clear on. We know this
phrase, "The Queen in Parliament", what happens to the
Queen when Parliament isn't there?
Dr Michael Pinto-Duschinsky:
Sorry, what happens to the—
Mr Turner: To the Queen
when Parliament isn't there, because Parliament is dissolved.
What is the role of the Queen because this is the most significant
point about whether there are rules that affect the Queen, and
the really significant point is: what do these people do where
they would otherwise have resigned? Gordon Brown would have resigned
but he didn't, was that because of information that was coming
to his office after the closure of the polls, but before the Tuesday
that followed or what? I am just trying to work out—your
finding is quite clear that people were trying to get Gordon Brown
to remain in office longer than he otherwise would have done,
and eventually he said, "I'm going", but that was four
days later, and you are saying the position is, when you have
lost the best thing to do is go.
Dr Michael Pinto-Duschinsky:
I want to be clear on this. The Queen in Parliament I think refers
to legislation, if I am not mistaken. Obviously when Parliament
is dissolved the Government continues and so executive actions
can happen. The Queen has, as the prerogative, the ability to
appoint and, indeed, to dismiss a Prime Minister but my understanding
of democratic convention is that a Prime Minister remains Prime
Minister until he or she is defeated in the House of Commons on
a motion of confidence. So, it is possible for a Prime Minister
to remain on after being defeated in an election, there is no
doubt about that.
The expectation, democratically, would be that if
a Prime Minister has been defeated that they are perfectly free
to resign. Indeed, in my view, I think it is better that they
go fairly quickly, that would be the democratic expectation, but
they legally can continue. Now, in 2010 it is arguable that Gordon
Brown remained in office not because he had to, but because he
genuinely felt that he could form a coalition and that therefore
it was the political logic and not the institutional logic that
led him to stay on. On the other hand, it certainly is clear that
there was a lot of pressure on him from those who supported the
Cabinet Manual to indicate that it was not right for him to resign
and, indeed, that he could not resign. So, that may not have been
decisive but that was the attempt and that was the spin that was
put on to try and persuade him not to resign and, as David Laws
said, I think to this Committee, that was in the interests of
the Liberal Democrats because they could bargain from one side
to the other on the alternative vote.
Dr Stuart Wilks-Heeg:
If I could interject, I think what lies behind this question is
really this sense of absolute muddle, particularly in that chapter
and particularly in this dreaded paragraph 50, and Michael suggested
we should press the delete button on the whole document. I don't
think we can do that but I think we can probably argue for pressing
delete on paragraph 50, which is the one causing so much trouble.
The role of the sovereign in the situation of a hung
parliament I think is at the core of this muddle and it is partly
because—we talked about the case of 1929. There were other
cases in the 1920s with hung parliaments where the sovereign got
more involved than we would expect now. A lot of time has elapsed
between the 1920s and now in terms of how we would expect the
sovereign to get involved in that kind of process. But when we
look at those different scenarios of those different hung parliaments,
whether the Prime Minister has resigned or not and how the sovereign
got involved or not, we clearly had quite different scenarios
in each case.
In 1929 the Conservatives had clearly lost on vote
share, they had clearly lost on the number of seats; Labour was
clearly the largest party and so on. If we look at what happened
in 1923, something different happened. Again the Conservatives
had lost but Baldwin chose to face Parliament in that instance.
In 1974, the situation in which Heath stayed in office for a number
of days to the utter bewilderment—if we go back to the press
coverage at the time—of everybody concerned who expected
he would just resign, that somehow has become the precedent ignoring
everything before it. What we have to remember about what was
going on at that time is that election was unbelievably close.
I think the Conservatives actually won just on vote share, not
that that counts, and Labour had a few more seats—I think
three or four more seats—incredibly close.
It had been called the election on the issue of who
governs, et cetera, it really was not clear what was going to
happen next and you could see how that situation developed. To
argue that that set some kind of precedent I think is deeply problematic.
I agree with much of what Michael says on this but not the kind
of Lib Dem, Trojan horse perspective on how this rule book came
about. It strikes me that a key driver was this sense of deep
concern that if we ended up with a hung parliament, if it was
not clear what would happen next, that there would be a media
feeding frenzy, there would be panic, the financial markets would
panic and so on. So, the desire was to have a set of procedures
in place that would deal with a situation of absolute confusion.
That was not a constitutional driver, it was a concern about what
the financial markets might do, in my view, which I think is what
accelerated this process of getting that draft out. It was a cause
of much of the confusion and muddle that we now have on this.
David Walker: We
do need some clarity on this. Again speaking about the Civil Service,
the doctrine was quite clearly stated by the now Lord Armstrong
of Ilminster, Sir Robert Armstrong. In 1986 he said, "The
Civil Service has no constitutional personality or responsibility
separate from the duly elected Government of the day". When
there is no Government of the day what are civil servants supposed
to do? Now, ad hoc, empirically, Gus O'Donnell managed this process,
for ill or better that is to be judged, but he took it upon himself
to be a constitutional personality, a lynchpin of continuity.
Is that appropriate behaviour? Is that expected? Somebody, you
or somebody else, has to say, because clearly we will confront
parallel circumstances in future and we need to have a doctrine.
The Armstrong doctrine is quite clearly, even at the time, anachronistic.
Dr Michael Pinto-Duschinsky:
I think the situation is clear, or should be. Namely that we have
a Government until the Prime Minister resigns, so Gordon Brown
remained Prime Minister and there was a Government. Where I think
the difference of opinion rests is about the parameters, or the
pressures on Gordon Brown as to whether to resign or not to resign
and the traditional view, and I think the correct view, is that
that is purely a political decision. That if Gordon Brown wishes
to resign before meeting Parliament then as Prime Minister he
is entitled to do whatever he wishes. That was the advice to Baldwin
in 1929. He does not have to continue while party negotiations
carry on. He can if he wants, but there is no constitutional obligation,
either express or implied. It is in trying to change perceptions
to say that there is an implied expectation or duty on the Prime
Minister to continue that the system has been changed, and I think
illegitimately. Because it should just be left to the politicians
and that is the best way of keeping the monarch out of things.
Q69 Mr Hamilton:
My recollection of 1974, and I was there—
Chair: Fabian, do forgive
me, Chris has to go and he did tell me. Do you mind?
Mr Hamilton: I am so sorry.
No, no, of course not.
Chair: Excuse me, Fabian,
my mistake.
Q70 Mr Chope: It
is just that I have a first order question. Can I follow up on
what Tristram was saying, what are we going to do about this?
Are you all agreed that there is no rush for this? Because it
seems as though there is a pressure to try and push it through
now and get some sort of endorsement for it when we know that
the Fixed-term Parliaments Bill is still unresolved, we have the
AV referendum still waiting, we have the reform of the House of
Lords, we don't know what that is going to be, and the critical
parts of this Manual only apply to the period when there is a
change of Government really. The rest of it is a mixture of, as
you have said, the banal and the normal.
Would it be a good idea to strongly recommend that
we should not be rushing about this? Am I right in interpreting
your criticisms being really you think that an idea expressed
by the previous Prime Minister has been seized upon by the Civil
Service in order to manipulate a situation where they are making
an unwritten constitution into a written one to suit their own
purposes? Do you think that what this manual does is it elevates
ad hoc measures of political expediency into the status of constitutional
norms? If we really laid into this, with your help, would we be
able to try to prevent this becoming, or being seen as part of
our constitution rather than as a bit of wishful thinking perhaps
on the part of a mixture of some senior civil servants and perhaps
some senior elected politicians?
Dr Stuart Wilks-Heeg:
There are several parts to the question, and a very good question.
I will take them more or less in turn I think. Would we argue,
or would I argue, that there is no particular rush? Yes. As I
said in my written evidence, Sir Gus O'Donnell himself said we
have been waiting decades and decades for this. I think if that
is true then we can presumably wait a few more months and perhaps
have a better consultation process. I think the idea that this
should be subject simply to a three-month public consultation
because that is best practice or the norm really is not appropriate
because we are talking about something here—despite all
the claims that this document is modest I really don't think it
is that modest and it clearly is not the norm. So I would agree,
why the rush? Let us have a more considered approach to this.
Does it elevate ad hoc political expediency to the
status of some kind of constitutional norms or conventions even?
Possibly, yes, and I think the answer I was giving in relation
to what happened in the event of a hung parliament in 2010, there
is that risk there and there probably are genuine issues there.
So, I think, yes, there is no reason why this should not be slowed
down. I think particularly—and I think this is the view
that has emerged across the three of us—that the original
purpose of this manual, the original intention, that we do seem
to have moved on from that, very, very clearly.
The association with the process of moving towards
codification, as we said, that seems to have been dropped and
the document has come out anyway. Whether in the process, as I
think you are implying, it has become something of a Civil Service
power grab, I am not so sure about that and I think it has just
been put out with a different rationale from the one originally
given to it. I think that is a reason why we should now take the
time to reconsider.
David Walker: Absolutely,
there is no rush, but don't leave it too long. Things happen out
there—for example, out there in the constitutional landscape
the Welsh are voting on a major extension of the legislative capacity
of the Welsh Assembly. It is conceivable that issues involving
the relationship between the devolved Administrations of this
House and the centre will erupt—who knows? One of the weaknesses
I think, in this document, is the fact that it does not discuss
devolution in any major way.
If I can betray a private grief, in your earlier
life you will have had encounters with the Audit Commission, which
the Government has announced the abolition of. That may or may
not trespass upon the constitutional but it does touch on quite
teasing issues of the place of local government and so on. Again,
very much a changing picture. Some of that does need at least
not codification but certainly re-description, and your re-description
would be as useful as anyone's. So, all I would say is by all
means don't rush but do feel the need for this work to be done.
Dr Michael Pinto-Duschinsky:
I appreciate that as a Committee you are trying to look at practical
responses rather than a merely negative response and I agree first
that this should not be rushed, that there isn't any need to go
ahead within this time. I suspect that it may become a matter
of honour and pride to get it through since it has been put on
the table but I cannot believe that this is the most important
thing to be going through, especially as there are other constitutional
issues of great importance. We are coming up to the AV referendum
and fixed-term Parliaments. There is major legislation on the
House of Lords in the offing that is likely to be controversial.
I think there is only so much that can be chewed on at one time
and I think that it would be reasonable to say that in view of
the other constitutional changes that are in the offing at the
moment that it is sensible to put off this until we know more
about what happens with these other measures. Then revisit this
issue as to whether one wants to move towards a general review
of the constitution, whether one wants to move on the other hand
to a few particular areas where clarification is needed of Civil
Service practice and that this discussion should be parked for
now and then revisited later, but maybe not too much later.
Q71 Mr Hamilton:
The point I was just going to make to Stuart is in 1974, you are
quite right, the votes and the seats were almost exactly the same
with nobody having a majority. But wasn't the reason that Ted
Heath stayed in office, was to try and negotiate a coalition with
Jeremy Thorpe, or at least the support of the Liberal Party, to
keep him in office, rather than anything else? Wasn't he right
to do that because nobody had a mandate? That is just a point
I throw on the table.
Dr Stuart Wilks-Heeg:
You are right, yes.
Mr Hamilton: But that
is very different to what happened in 2010 is my point. Labour
clearly lost in 2010.
Dr Stuart Wilks-Heeg:
Absolutely, but I think my point is that when we look at the different
types of hung parliament that we have had throughout the 20th
century, and you can go back to the 19th century, you have many
different types of scenarios and I think Tristram's point about
that rather unhelpful footnote that has been inserted is quite
significant in relation to that history when we look at it.
Q72 Mr Hamilton:
Absolutely. I just wanted to come back to a point that David Walker
made right at the beginning about the appointment of a chief operating
officer of the Government and these internal changes that are
made. Is it a banal detail about how the Government—the
Executive—functions, or is it something that we, as Parliament,
should be concerned about? I just want to go back to something
that happened when I was on the Foreign Affairs Committee. The
Foreign and Commonwealth Office decided to have a board—I
can't remember what they called it, a board of directors if you
like—with outside appointments. People who are not diplomats
or career civil servants being involved. How much is that a constitutional
issue or how much is it a banal detail of how the Government chooses
to run itself? Is it something that Parliament should be concerned
about?
David Walker: Exactly,
it is a constitutional issue because it touches on the sphere
and capacity of the representative part of our political system,
that is to say the House of Commons. If you interrogate Ministers
in the knowledge that those Ministers are now answerable to an
autonomous or semi-autonomous board that surely trespasses upon
their responsibility to you and a previous doctrine of ministerial
accountability. The present Government has said the Secretary
of State will chair departmental boards but what then is the position
of junior Ministers? All sorts of questions could be opened. I
don't think they will be, but they could be opened by that kind
of, as you say, apparently innocuous sort of administrative-type
change. So, it is partly a matter of defining what constitutionalism
is, but it is also I think, the Chairman may reference this, your
capacity to oversee what is being done with public money in the
name of the people by an Executive which, despite freedom of information,
still operates pretty much in shadow.
Q73 Mr Hamilton:
From what you say you would probably agree that we are rather
out of balance in that Parliament, and the House of Commons especially,
should be the sovereign body of the nation from which the Executive
derives its power, this is what we have been talking about with
reference to the Cabinet Manual, however, with these boards and
with these rather shady administrative solutions, Parliament is
rather out of control. We could argue, of course, that Parliament
really has not had much control following a general election and
a Government being formed with a majority, because the greatest
strength of Parliament, its sovereignty, is also its greatest
weakness if the party of Government has complete, whip control
and a majority and can therefore do what it likes, as we saw during
many of the Labour years. How do we reassert the authority of
Parliament? Is it through a written constitution—which I
know is controversial, something I certainly do agree with—and
wouldn't a written constitution ensure that that constitution
would be the sovereign document, as it were? We would look to
that to see how things should be done rather than a Cabinet Manual
or any ad hoc other administrative methods.
But following on from what Michael said in the reply
to Christopher Chope earlier, with all these other things going
on and the impending reform of the House of Lords as well, shouldn't
we then look at every corner of our constitution and try and bring
them together? Because surely it is very dangerous to start making
major reforms like Fixed-term Parliaments or alternative vote
systems and a completely new House of Lords without looking at
the effect all these reforms have on every other part of our unwritten
constitution.
David Walker: Absolutely,
one delves into deep territory when one considers the capacity
of the House of Commons and the House of Lords to oversee executive
government. Clearly, partisanship has always been a major impediment
to the corporate capacity of the House of Commons. Can I just
make one point, though? This document refers to—you all
know what an Accounting Officer is, the most senior civil servant
in the Department or Agency who is financially responsible. Why
not broaden that concept? At the moment Accounting Officers answer
to, through the National Audit Office, notionally the Public Accounts
Committee (PAC). The Public Accounts Committee is broader in its
interests and co-operation maybe than it has been, and that is
a good thing, but you do have in the Commons an existing capacity
to reach into executive government and get knowledge and secure
some accountability. I think, if I may say, if you were perhaps
more muscular in Select Committees, perhaps more in collaboration
with the PAC, a lot could be done short of that wider set of redefinitions
that you are right to characterise.
Dr Stuart Wilks-Heeg:
I completely agree with the point about if we are going to make
all these incremental constitutional changes we need to think
about how they need to be connected up, and the obvious way to
do that is through some form of written constitution. The Chair
made the point earlier that there are these apparently modest
changes being made over time and many of them are not particularly
modest. I think a lot of them are quite profound within the context
of our constitutional arrangements. I think we are getting into
a situation where the pace of change now, as it was in the late
1990s under Labour, really is quite profound, and some major reforms
are being made without any reference to other reforms that are
known to be coming down the line. So, to reduce the number of
MPs to 600 on—I think we would all agree—an arbitrary
basis, while there is a plan to reform the House of Lords to make
it either wholly, partly or mostly elected—nobody is sure
and nobody is sure what electoral system—this really is
deeply problematic territory, and I think it does, in my mind,
make the case very strongly to look at this in the round and in
the context of a clear, written constitutional settlement.
Q74 Chair: Gentlemen,
thank you very much for your assistance. I think we can release
David because we are going to go on for a very brief 20-minute
session with Michael and Stuart on the European Court of Human
Rights. David, you are most welcome to stay with us, but we will
direct our questions to Michael and Stuart.
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