4 Content: Analysis of two chapters
55. In this section we examine briefly Chapter 5
of the draft, 'Ministers and Parliament', to illustrate some of
the potential problems with the draft, and Chapter 2, to address
some of the specific concerns raised by witnesses about this section
of the draft. We do not attempt in this Report to deal with other
points raised with us about specific parts of the Manual. We trust
that the evidence we have received will be treated in its entirety
as part of the Government's consultation on the text of the Manual.
Chapter 5: Ministers and Parliament
56. A comparison of Chapter 5 with its equivalent
in the New Zealand Cabinet Manual, The Executive, Legislation,
and the House, reveals a significant difference in scope and
tone.[70] The New Zealand
chapter contains practical information on, amongst other things,
how to develop and draft legislation, the process by which Ministers
should draw attention to conflicts with other important legislation,
and when Ministers should make proposals for legislation to be
included in the Government's legislative programme.[71]
57. Much of this information is largely absent from
the United Kingdom draft, almost certainly because it is already
published elsewhere.[72]
The problem is that, perhaps as a result, what is included often
seems not to relate to the Executive's role and responsibilities,
but rather to those of others.
58. The first two paragraphs of Chapter 5 of the
United Kingdom draft contain general statements about Parliament,
describing the membership of both Houses and the relationship
between them. The chapter goes on to make statements about the
functions of parts of the parliamentary machine for which the
Executive is not responsible, such as the Backbench Business Committee.[73]
PARLIAMENTARY INVOLVEMENT IN DECISIONS
TO COMMIT TROOPS TO ARMED CONFLICT
59. While Chapter 4 states that any decision to take
military action will "normally" be considered by Cabinet,[74]
Chapter 5 fails to mention the convention that the Executive should
also give the House of Commons the opportunity to debate any such
decision.[75] Both the
Deputy Prime Minister and Cabinet Secretary have acknowledged
that this convention exists.[76]
The Cabinet Secretary has made clear that the debate would take
place before troops are committed to conflict "except in
emergency situations".[77]
60. It was by no means obvious, however, that this
convention existed in the run-up to the Iraq War. Parliamentary
debate on the decision to go to war came about only after tremendous
pressure had been exerted on the Government, both inside and outside
Parliament. Following the Iraq war, the House resolved that "that
the time has come for Parliament's role to be made more explicit
in approving, or otherwise, decisions of the Government relating
to the major, or substantial, deployment of British forces overseas
into actual, or potential, armed conflict" and called "upon
the Government, after consultation, to come forward with more
detailed proposals for Parliament to consider".[78]
The Government of the day published a draft detailed resolution
in 2008,[79] but this
was never formally considered by the House. This indicates that
the nature of the convention, if it indeed exists, is by no means
clear. We regard it as vital that this matter is clarified, and
we intend to investigate it separately.
61. Given the high political and public profile of
this issue in the context of the decision to go to war in Iraq,
we find surprising the omission from the draft Manual of the convention
that the Executive will give the House of Commons the opportunity
to debate any decision to take military action. This is a prime
example of a convention which involves Parliament, but which relies
on the very Executive which Parliament is holding to account to
take the initiative to allow Parliament to hold a debate. The
Cabinet Secretary stated in evidence that he would look carefully
at this omission.[80]
The chapter of the Cabinet Manual on Ministers and Parliament
should focus on the role and responsibilities of central Government.
Conventions which rely on the Government to take the initiative
need to be included: a salient example—and a surprising
omission from the draft—is the convention, acknowledged
by the Government, that Parliament should have the opportunity
to debate decisions to commit troops to armed conflict, and that
the debate should take place before the troops are committed,
except in emergency situations. This convention, as the Executive
understands it, should be included in the revised Manual. We also
intend to inquire separately into whether the Government's understanding
of the existing convention is correct and complete—and whether
it goes far enough to ensure appropriate parliamentary involvement
in any future decisions to go to war.
MINISTERIAL RESPONSIBILITY TO PARLIAMENT
62. Elsewhere in the draft, in Chapter 3, it is stated
that "Parliament will normally understand that the many comparatively
routine decisions that departments make in carrying out their
responsibilities are not ones for which the minister can be held
responsible" (except in certain limited circumstances).[81]
This apparently banal statement is problematic in no fewer than
three different ways:
i. This is a matter central to the constitutional
relationship between Parliament and the Executive, and we are
surprised that it is not included in Chapter 5.
ii. It does not seem right to us that the Executive
should seek to read the mind of Parliament in a document of this
kind, certainly not without reference to a parliamentary decision
supporting this point of view.
iii. The most recent parliamentary decision in
this area does not in fact support the contention set out in the
draft Manual. The House resolved on 19 March 1996 that "Ministers
have a duty to Parliament to account and to be held to account,
for the policies, decisions and actions of their departments and
Next Steps Agencies", without exception. The paradigm of
ministerial responsibility is often cited as that of Sir Thomas
Dugdale, who resigned from the Ministry of Agriculture in 1954,
"as a result of an error by a civil servant of which he had
not been aware over an issue in which he had not been involved
in any way".[82]
There is at the very least an "uncertainty at the heart of
the modern interpretation of Ministerial responsibility".[83]
63. Descriptions of Parliament's expectations
of Government, where it is appropriate to include them, need to
be based on evidence, such as resolutions of either House, and
the Manual should be amended to reflect this evidence.
Chapter 2: Elections and Government
formation
64. Our Report on Lessons from the Process of
Government Formation following the 2010 General Election included
recommendations relating to Chapter 2 of the draft.[84]
Some further observations, however, have been made during this
inquiry.
65. A driving factor in the production of the Manual
seems to have been the perceived need before the 2010 general
election to set out the procedures to be followed in the event
of a hung Parliament. Dr Wilks-Heeg told us that
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.
[85]
66. David Walker has suggested that the novelty of
coalition formation in May 2010 could have ensured the survival
of the Cabinet Manual initiative from the previous Government:
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 ... Prime Minister.[86]
67. We also heard the allegation that some of the
contents of Chapter 2 might be politically motivated, that
"certain people wanted to help the Liberal Democrats
win power in a hung parliament".[87]
Dr Wilks-Heeg disagreed with what he described as a "kind
of Lib Dem, Trojan horse perspective on how this rule book came
about".[88] The
Constitution Unit also disagreed, arguing that the idea that the
Cabinet Manual is a power grab by the civil service is
a wild allegation, which is mistaken on two grounds.
First, there were no significant changes to constitutional conventions.
The civil service did their best to set out the existing rules
on government formation. Second, these were not 'secret' rules:
they were published on 23 February, over two months before the
election.[89]
The Cabinet Secretary unsurprisingly also denied
the allegation.[90]
68. We do not agree with the view that any part
of the Cabinet Manual represents an attempt to bias the political
process. The draft may, however, be misleading in some places,
probably as a result of an understandable desire for a degree
of clarity that does not exist.
69. Two statements in Chapter 2 have raised particularly
forceful concerns. Both appear to be attempts to provide clarity
where none exists. The first is paragraph 50, which states that
The incumbent Prime Minister is not expected
to resign until it is clear that there is someone else who should
be asked to form a government because they are better placed to
command the confidence of the House of Commons and that information
has been communicated to the Sovereign.[91]
70. This paragraph did not appear in the draft of
Chapter 2 which was published before the general election and
appears to have been added in response to confusion around the
issue during the May 2010 election.[92]
Professor Vernon Bogdanor, Research Professor at King's College,
London, writes that
paragraph 50 is mistaken, and could lead to a
clash between an incumbent Prime Minister, the Cabinet Office
and the Palace. The incumbent Prime Minister has a right to remain
after an election in a situation where no single party enjoys
a majority, but not, in my view, a duty. The decision as to when
to resign is in my view a political one with no constitutional
implications. In any case, I am not clear what is the provenance
of the proposed rule as stated in the draft Manual. There seems
no obvious precedent, and no basis for the proposed rule.[93]
71. Professor Brazier describes paragraph 50 as one
of the areas in the Cabinet Manual that "indicates changes
in practice".[94]
Dr Pinto-Duschinsky states that the paragraph is "ambiguous"
and "implies something stronger" than the constitutional
position as he understands it.[95]
72. The Cabinet Secretary made clear to us that the
guidance on this issue is intended to establish an expectation
rather than an obligation:
The question is what should the expectation be
about what Prime Ministers should do? Prime Ministers will always
be able to do whatever they want in those circumstances. The convention
can say what they should do.[96]
The problem is that our evidence suggests that this
expectation is not widely shared.
73. The foreword to the draft states that one aim
of the consultation has been "to ensure that - as far as
possible - the Cabinet Manual reflects an agreed position on important
Constitutional conventions".[97]
This is a laudable aim and the debate that has arisen around paragraph
50 demonstrates the value of publishing the Cabinet Manual in
draft. In our Report on the May 2010 election we recommended that
There needs to be clear and well-understood published
guidance about when an incumbent Prime Minister should resign
and when he has a duty to remain in office, in particular whether
this extends to a duty to remain in office until there is clarity
as to the form of an alternative Government, as opposed to simply
the name of an alternative Prime Minister. Reaction to the events
of May 2010 suggests that more detailed guidance was needed then.
Reaction to the revised text in the December 2010 Cabinet Manual
suggests that it may not go far enough.[98]
74. The evidence indicates that there is a continuing
dispute over the extent to which a Prime Minister has a duty to
remain in office when it is unclear who else might be best placed
to lead an alternative government. The Cabinet Manual needs to
give clarity to the extent of this uncertainty, rather than to
attempt to resolve the argument. We agree with our colleagues
in the House of Lords in this respect.[99]
The inclusion of references would allow readers to inform themselves
on the different views that have been given on this question.
75. The second part of Chapter 2 that has raised
concerns is the footnote to paragraph 49 which states that
In 2010, the Leader of the Liberal Democrat Party
expressed 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, either on its own or by reaching out
to other parties".[100]
76. Dr Wilks-Heeg called the footnote "rather
unhelpful".[101]
Professor Hazell told us that the footnote should be "struck
out":
It is not a constitutional principle. The constitutional
principle in any newly elected Parliament is that that person
who can command the confidence of the House of Commons shall be
appointed as Prime Minister, and, as we saw in May of last year,
it is up to the political parties to negotiate to try to work
out who can command confidence in the new House. But there are
no set rules ... about how those negotiations should be initiated
or by whom.[102]
77. The Lords Constitution Committee has concluded
that
the statement contained in the footnote to paragraph
49 of the draft Manual does not reflect the current constitutional
position on which party has the first right to seek to govern.
The footnote should therefore be removed.[103]
78. The Cabinet Secretary told us that he would be
recommending that the footnote should be removed because it is
not "a convention in the sense that it should be binding
on future party leaders".[104]
79. There
appears to be widespread agreement that the footnote to paragraph
49 represents a political negotiating position adopted in 2010
rather than a statement of an existing constitutional convention
or practice. It should be deleted from the Manual.
70 New Zealand Government, Cabinet Manual 2008 Back
71
As above Back
72
For example, Cabinet Office, Guide to Making Legislation. Back
73
Draft Cabinet Manual, para 190 Back
74
Draft Cabinet Manual, para 150 Back
75
Ev56, para 18 [Democratic Audit] Back
76
Political and Constitutional Reform Committee, The Coalition
Government's programme of political and constitutional reform,
HC 358-i, Ev19, Q3 [Deputy Prime Minister]; Q118. Back
77
Q130 Back
78
HC Deb, 15 May 2007, col 492 Back
79
Ministry of Justice, The Governance of Britain - Constitutional
Renewal, Cm 7342-I, March 2008, p53 Back
80
Q130 Back
81
Draft Cabinet Manual, Para 116 Back
82
Institute for Government, Ministerial Accountability in an
Era of Devolved Public Services, November 2010 Back
83
As above Back
84
Justice Committee, Fifth Report of Session 2009-10, Constitutional
Processes following a General Election, HC 396 Back
85
Q68 Back
86
Q62 Back
87
Q57 [Dr Pinto Duschinsky] Back
88
Q68 Back
89
Ev42, para 2.5 Back
90
Q140 Back
91
Draft Cabinet Manual, December 2010 Back
92
See Political and Constitutional Reform Committee, Fourth Report
of Session 2010-11, Constitutional Processes following a General
Election, HC 528, Ev76 Back
93
Ev w25 Back
94
Ev w3, para 14 Back
95
Ev 60, para 10 Back
96
Q137 Back
97
Draft Cabinet Manual, Foreword Back
98
Political and Constitutional Reform Committee, Fourth Report of
Session 2010-11, Constitutional Processes following a General
Election, HC 528, para 27 Back
99
HL Paper 107, para 59 Back
100
Draft Cabinet Manual, para 46 Back
101
Q71 Back
102
Q38 Back
103
HL Paper 107, para 63 Back
104
Q84 Back
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