Constitutional implications of the Cabinet Manual - Political and Constitutional Reform Committee Contents


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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Prepared 29 March 2011