2 Purpose, status and consequences
8. The Cabinet Secretary's foreword to the draft
states that the Cabinet Manual will be a "guide" to
"the way in which government operates".[9]
It is "primarily written to provide a guide for members of
the Cabinet, other ministers and Civil Servants, but … also
… to inform the public whom the Government serves …
It is not intended to have any legal effect or set issues in stone".[10]
The Foreword acknowledges that "Some areas of the Manual
continue to be subject to public debate", but states that
it "does not seek to resolve or move forward those debates,
but is instead a factual description of the situation today. In
other words, it will be a record of incremental changes rather
than a driver of change".[11]
9. The Cabinet Secretary's stated intention is clear;
but it does not necessarily follow that this is how the Cabinet
Manual will be used in practice by those within and outside the
Executive. It is a new development in the United Kingdom context,
and its exact character and status are open to question and unexpected
development.
10. In the following paragraphs we identify areas
in which the Cabinet Manual risks straying beyond the limits described
for it by the Cabinet Secretary, and examine the potential consequences
of it doing so.
Who is it for?
11. The Cabinet Secretary told us that the Manual
would be "a guide for Ministers and civil servants"
but he added that "we also, by making it public, want to
help in general education".[12]
12. The tone and content of the Cabinet Manual are
not always obviously suited to its stated primary audience of
"members of Cabinet, other Ministers and Civil Servants".[13]
Rodney Brazier, Professor of Constitutional Law at the University
of Manchester, warns that "matters which might well be well
known to the main audience must be spelled out so as to make sense
to the interested citizen", and as a consequence "the
scope and breadth of the paper is possibly wider than it would
be if it were aimed only at those who work in Cabinet Government".[14]
He also highlights that at times more basic detail is given than
would be necessary if the document were purely aimed at the Executive:
If this draft Cabinet Manual were
conceived so as better to inform Ministers and civil servants
only - that is, if interested citizens were not among its planned
readership - then there would be areas where too much detailed
information is given. I take chapter 1 (The Sovereign) by way
of example. Why would all overworked Ministers and officials
throughout Whitehall need or want to know the details concerning
royal succession, coronations, arrangements in a Sovereign's absence
or incapacity, or the Established Church?[15]
13. Dr Michael Pinto-Duschinsky told us that "this
document is neither fish nor fowl and it is the worst of all worlds".[16]
Dr Stuart Wilks-Heeg, Director of Democratic Audit, agreed:
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 ... To my mind, that does not quite
make sense.[17]
14. Certainly, there are some statements in the draft
which are declaratory principles, more in keeping with a written
constitution than a technical manual:
- "The UK is a parliamentary
democracy…"[18]
- "General elections allow voters on the electoral
roll to cast their ballot for a Member of Parliament to represent
them in the House of Commons."[19]
- "Members of the House of Commons are directly
elected by universal suffrage of the adult population of the United
Kingdom."[20]
15. Conversely, the paragraphs in the draft on NATO
seem to contain information of relevance to very few Ministers
or civil servants.[21]
16. The publication of the draft Cabinet Manual
is a welcome signal of open government. The Manual will no doubt
be a useful point of reference for Parliament, the electorate
and those involved in public education on constitutional issues.
It is notable that the New Zealand counterpart on which it is
based is a more technical and well-referenced document.
Dealing with disagreement, ambiguity
and complexity
17. The foreword to the draft states that:
Some areas of the Manual continue to be subject
to public debate. The Manual, however, does not seek to resolve
or move forward those debates, but is instead a factual description
of the situation today. In other
words, it will be a record of incremental changes rather than
a driver of change. [22]
18. The Cabinet Secretary told us, however, that
"some judgment calls" had been taken in deciding how
to record areas of uncertainty in the draft, and that the Manual
will be "the Executive's interpretation".[23]
This gives weight to an argument put to us by Dr Pinto Duschinsky
that "it is inherently difficult if not impossible for a
written document to list existing, often unwritten, rules, conventions
and precedents without interpreting them in the process",[24]
and on similar lines, by the Institute for Government: "where
previous conventions had been tacit and implied, the mere fact
of publication can be seen as seeking to lay down one viewpoint
(primarily a Whitehall one)".[25]
The Institute for Government suggest as a consequence that "publication
of the Manual may have the constitutional consequence of hardening
up and entrenching certain practices in the short-term, even when
the intention is to permit discretion".[26]
19. The Centre for Political and Constitutional Studies,
King's College London, provide a concrete example: "In stating
that (para 30) 'Cabinet is the executive committee of the Privy
Council' the Manual is once more making an unsupported assertion
over which there is not a consensus".[27]
A further three examples are cited by Richard Gordon QC.[28]
The recommendation from the House of Lords Select Committee on
the Constitution that the Manual should be "fully referenced
throughout" would ensure at least that assertions were not
unsupported.[29]
20. The Lords Constitution Committee has recommended
that
where no convention exists, or there is doubt
as to its extent, this should be stated. As a description of the
current constitutional position, it is better for the Manual to
be open about areas of debate than to resort to potentially ambiguous
wording in order to cloud the issue.[30]
We agree.
21. We think that the Manual should include "judgment
calls" only where straightforward "factual description"
is impracticable, and that it should do so sparingly. The Manual
must, however, avoid presenting as unchallengeable fact a statement
that the Government knows to be disputed.
22. Where there is the potential for disagreement
or uncertainty, as there so often is on the meaning of unwritten
constitutional conventions, it is important that the Cabinet Manual
should signal the existence of this uncertainty. This would
be of enormous assistance to those involved in seeking to interpret
the text of the Manual and help to ensure consistency in interpretation,
and thus transparency.
23. Dr Wilks-Heeg has drawn attention to the sometimes
imprecise language used in the draft: "the Cabinet Manual
is ... vague in so many places using lots of phrases like 'ordinarily'
or 'normally' or 'as far as possible'".[31]
The draft contains 47 instances of 'usually', 32 of 'normally',
and three of 'as far as possible'.[32]
24. Iain McLean, Professor of Politics at the University
of Oxford, also illustrates this point:
At para. 56, "the Prime Minister is expected
to tender the Government's resignation, unless circumstances allow
him or her to opt instead to request dissolution". What circumstances
are these? This is a key point, which should be clarified. I
do not think that the [Manual] clarifies this point.[33]
25. Vague language—'usually this' and 'normally
that'—probably indicates a shorthand way of avoiding long
and detailed explanations of complex situations, but it risks
limiting the Manual's usefulness as a practical tool, unless the
Manual also makes clear where the more detailed explanations are
available.
Improving usability
26. Two rather prosaic practical additions would
improve the usability of the draft Cabinet Manual. One, as suggested
by Professor Rodney Brazier, would be to include an index.[34]
This seems to us consistent with a realistic idea of how the Cabinet
Manual will be used: as a point of reference, rather than a book
to be read from cover to cover.
27. The second suggestion is that the Cabinet Manual
should mirror its New Zealand counterpart by opening each chapter
with a list of sources of related information. This would be useful
to the reader, and would also make clear from the outset that
the Cabinet Manual is a starting point and reference guide, rather
than the only source of information on the areas it covers. The
lists should include not only published sources, but also relevant
unpublished internal government guidance, except in those rare
cases where the existence of this guidance would not be subject
to disclosure under Freedom of Information principles.
28. An index should be added to the Cabinet Manual
so that it can be more easily used as a point of reference. Sources
of related information, both published and unpublished, should
be listed at the beginning of each chapter to make clear to readers
the range of other guidance that exists.
Sources and references
29. As set out in paragraph 5 of the draft Manual,
constitutional matters have a number of sources, including statutes,
legal precedents and conventions, which are defined in the draft
as "rules of constitutional practice that are regarded as
binding in operation but not in law".[35]
The Institute for Government suggest that "there are subtle
but important distinctions between laws, conventions and rules
and it would be helpful if a clearer distinction were drawn between
what is required by these three categories".[36]
David Walker makes a similar point, writing that "the Manual
does not distinguish hard from soft convention, as opposed to
statute or fungible 'understandings'".[37]
30. It would not therefore be clear to Ministers
and civil servants using the current draft which of its provisions
they are bound by law to follow and which might be departed from
should circumstances render this appropriate. This kind of distinction
would also be of value to readers outside the Executive, and might
help them to fine-tune their judgments on whether a Minister or
civil servant has acted inappropriately when departing from guidance
contained in the Manual. We agree with the House of Lords Constitution
Committee that the Manual should "be fully referenced throughout".[38]
This would also help to prevent the Manual from unintentionally
taking a position on constitutional issues, as well as setting
out for those using the Manual the basis for the advice it contains.
Precedent book
31. In holding a consultation on the draft Cabinet
Manual, the government is inviting outsiders to comment on a text
a large proportion of which is made up of constitutional conventions.
These conventions in turn rely on precedents—events in the
constitutional past of the UK—for their authority. Some
of these precedents are widely known and publicly sourced, while
others are not.
32. It came to our attention during the course of
this inquiry that the Government keeps a 'precedent book' containing
the events upon which its operational understandings, its conventions,
are based; but that the current 'precedent book' and a number
of earlier editions remain classified.[39]
Without the 'precedent book' being available in the public domain,
it can be difficult for those outside the Executive to comment
with authority upon those parts of the draft that involve conventions,
yet it is this that the Government has asked us to do. We appreciate
that the 'precedent book' may contain within it information that
is personally sensitive, but believe there is a strong case for
the publication, at the earliest practical time, of a redacted
version of the 'precedent book', providing those outside the Executive
with a more informed opportunity to judge whether constitutional
conventions are accurately reflected in the draft. It would also
make a more general contribution to public understanding of the
British constitution as a whole.
Legal status
33. The foreword of the draft states that the Cabinet
Manual "is not intended to have any legal effect".[40]
This is clearly true in the sense that it has no statutory force
and would not be directly enforceable in court. However, both
Professor Lord Hennessy of Nympsfield and the Cabinet Secretary
suggested that there were circumstances in which the Manual might
be used in judicial review to establish "the normal expectations
of proper process".[41]
Richard Gordon QC argues that in one sense at least, the Manual
could come to have legal status:
if the Cabinet Manual comes to be used as a source
of guidance but contains incorrect statements of law it could
be the subject of declaratory relief by the Court … A possible
trend here is that if judges become used to issuing declaratory
relief about constitutional matters it may lead to greater judicial
involvement in areas that have previously been regarded as 'off-limits'.
If judges were to pronounce in this way on matters
contained in the Cabinet Manual it would be hard to deny that,
although not intended to have legal effect, the Manual was operating
as a constitutional catalyst and, at least in that sense, possessed
arguable legal status.[42]
34. It seems unlikely to us that the Cabinet Manual
will feature extensively in court proceedings. However, in a constitution
based on the rule of law judicial interpretation is always possible.
This is simply a further reason for the Executive and Legislature
to do all they can to ensure that the Manual is accurate, does
not mislead and is subject to due process.
Consequences of publication: a
life of its own?
35. The Centre for Political and Constitutional Studies
write that "The Manual may prove to have greater significance
than its authors appear to be claiming for it; and it may contribute
to unintended change".[43]
The Institute for Government suggest that "The mere act
of publication may mean that the Manual will become a reference
point against which future actions of ministers and the civil
service will be judged".[44]
On similar lines, the Centre for Political and Constitutional
Studies state that "The Manual may be come to be used by
those who attempt to justify or criticise the actions of actors
within the executive, with claims being made about whether or
not the Manual is being adhered to".[45]
Professor Margaret Wilson told us that in New Zealand there could
be consequences "in political terms or in media terms"
of not following guidance in their Cabinet Manual.[46]
36. Even if it is not intended to be binding, the
Cabinet Manual, when published, may set the expectations of the
media, the public, and of politicians. Even it has no legal force,
the political pressure created by publishing the Cabinet Manual
to comply with its provisions may make it hard to depart from
in practice. As Lord Hennessy told us "if it becomes part
of the warp and the woof of everyday business it gives it a great
salience; in practical terms it becomes very important".[47]
This is problematic if those outside Government are judged on
rules and conventions as set out in the Cabinet Manual, despite
the fact that they have not agreed to them. This effect would
also be particularly problematic if incorrect constitutional positions
were included. For example the inclusion of the footnote to paragraph
49 which quotes the Leader of the Liberal Democrat Party expressing
the view that following a general election "whichever party
has won the most votes and the most seats, if not an overall majority,
has the first right to seek to govern, either on its own or by
reaching out to other parties" gives the impression that
this is an accepted constitutional norm, which it very clearly
is not (see section 5, below).[48]
The foreword to the draft suggests that the Cabinet Manual
is a document of limited ambition, which is not intended to "set
issues in stone" or to "resolve or move forward"
matters of public debate. Despite these intentions, there is scope
for the constitutional impact of the Cabinet Manual to be greater
than this. This becomes particularly true where the Cabinet Manual's
content extends beyond matters that are purely for the Executive.
The role of Parliament
37. Part of the role of the sovereign United Kingdom
Parliament is to hold the Executive to account. It is for Parliament,
and not the Executive, to decide to what extent it is appropriate
for it to become involved in matters of the Executive. The Cabinet
Secretary states in his foreword to the draft that he expects
"to invite Cabinet to endorse a revised version of the Cabinet
Manual".[49] While
the Cabinet Secretary also says that he "would welcome further
comments in particular from ... the relevant committees of Parliament",
the Manual itself refers to no further involvement from Parliament.[50]
We expect nonetheless to engage in an ongoing dialogue with the
Government about the Cabinet Manual and its contents. The Cabinet
Secretary raised no objection to this in his oral evidence.[51]
38. We have heard different views on the extent to
which parliamentary endorsement of the Manual is appropriate.
Democratic Audit proposes that, given the importance of the Cabinet
Manual, it should be "the subject of debate in Parliament
and that ownership if the document should ultimately rest with
Parliament".[52]
39. In contrast, Professor Wilson said of the New
Zealand Cabinet Manual that for it to be endorsed by Parliament
"would give it a status beyond which it has".[53]
Professor Robert Hazell, Director of the Constitution Unit at
University College London, told us on similar lines:
I don't think it does need to be formally approved
by Parliament. This is ultimately a document of the Executive.
It has submitted it for public consultation and for scrutiny by
a parliamentary Committee, but at the end of the day it is the
Executive's document.[54]
The House of Lords Constitution Committee has also
concluded that the Manual should not be formally approved by Parliament,
stating that they "are strongly opposed to any suggestion
that the Cabinet Manual be formally approved by Parliament or
by any of its committees".[55]
We disagree, because we believe the Manual is or could become
the kind of document which requires a strong form of accountability
to Parliament, or at least to the elected House.
40. Whether or not the Cabinet Manual should be
open to amendment and decision by Parliament depends in our view
on what the Cabinet Manual is or might become. If it is simply
a document by the Executive, about the Executive and for the Executive,
then for Parliament to decide on its content would give it a status
it should not have. As the Constitution Committee has put
it:
The Manual is an official guide primarily for
ministers and civil servants and has some value as a reference
work and in illuminating the operation of government. It is, and
should be, no more than that.[56]
41. The Manual, however, seems in part to be intended
as—or might become, whatever the intention—the basis
for a shared understanding beyond the Executive of important parts
of the United Kingdom's previously uncodified constitution. Parliamentary
intervention would be entirely appropriate in such circumstances.
An official document, approved by the Cabinet, will have a status
unlike that of existing academic texts on the same subject. We
intend to monitor closely how the Cabinet Manual develops, and
how it is used both within and beyond Government during the life
of this Parliament.
42. Whatever the status of the Cabinet Manual
as a document, it covers ground which is significant enough to
merit regular debate in the House. We therefore propose that,
soon after the Cabinet Manual is finalised, the House should have
the opportunity to debate it as a whole and should seek the Government's
assurance that such a debate should become an annual fixture in
the parliamentary calendar. Alternatively, the debate could occur
twice during the course of a five-year Parliament - the first
debate within 30 months of the start of a fixed term five-year
Parliament, and the second debate within 30 months of the election
concluding the Parliament. Before each one, the Government should
publish a list of changes made to the Manual since the previous
debate. The Government should publish a list of changes made to
the Manual during the preceding year to inform this debate. As
the Manual is largely about the conduct of the Executive, we would
expect this debate to take place in Government time.
43. It would go against the spirit of discussion
between Government and Parliament so far if the Government were
to resist this proposal, but, were it to do so, we would consider
approaching the Backbench Business Committee.
9 Draft Cabinet Manual, Foreword Back
10
As above Back
11
As above Back
12
Q79 Back
13
Draft Cabinet Manual, Foreword Back
14
Ev w1, para 4 Back
15
Ev w1para 17. See also Ev w14, para 19 [Institute for Government] Back
16
Q59 Back
17
Q60 Back
18
Draft Cabinet Manual, para 1 Back
19
Draft Cabinet Manual, para 38 Back
20
Draft Cabinet Manual, para 186 Back
21
Draft Cabinet Manual, paras 323-327 Back
22
Draft Cabinet Manual, Foreword Back
23
Q103 Back
24
Ev 58 para 6 Back
25
Ev w14, para 13 Back
26
Ev w13, para 8 Back
27
Ev w10, para 58 Back
28
Ev w19, paras 37-47 Back
29
HL Paper 107 (see also para 30 of this Report) Back
30
HL Paper 107, para 52 Back
31
Q60 Back
32
'Ordinarily' does not in fact appear. Back
33
Ev 40, para 20 Back
34
Ev w4, para 18 Back
35
Draft Cabinet Manual, para 5 Back
36
Ev w14, para 11 Back
37
Ev 51, para 1.1 Back
38
HL Paper 107 Back
39
Q4 [Lord Hennessy] Back
40
Draft Cabinet Manual, Foreword Back
41
Q31, Q123. Back
42
Ev w16, para 5 Back
43
Ev w6, para 3 Back
44
Ev w13, para 7 Back
45
Ev w7, para 21 Back
46
Constitutional Lessons from New Zealand, HC747-i, Q34 Back
47
Q18 Back
48
Draft Cabinet Manual, para 49 Back
49
Draft Cabinet Manual, Foreword Back
50
As above Back
51
As above Back
52
Ev 55 para 10 Back
53
Constitutional Lessons from New Zealand, HC747-i, Q29 Back
54
Q7 Back
55
HL Paper 107, para 40 Back
56
HL Paper 107, para 41 Back
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