5 Process and consultation
80. The Cabinet Manual was drafted by Cabinet Office
(originally Ministry of Justice) civil servants.[105]
Some of our witnesses were among the "constitutional experts
and others"[106]
involved to differing degrees in the development of the draft.[107]
Alongside publication of the draft in December 2010, the Cabinet
Office announced a twelve-week public consultation period. This
ended on 8 March 2011.
Consultation before publication
81. Some of those not involved in the development
of the draft suggested to us that they and others should have
been involved at this early stage.[108]
Democratic Audit, for example, describes "private consultations
between Cabinet Office officials and a small number of invited
'constitutional experts'".[109]
Lord Hennessy described his role in the process as follows:
... over a sandwich lunch, we were consulted
about this. I don't want to be funny about it, but it is a funny
country where, over a 90-minute lunch and rather indifferent sandwiches,
you try and fix, as best you can, these tacit understandings of
Sidney Low's so that they are made more explicit.[110]
82. Given what we have been told, the wider consultation
on the draft that followed was clearly necessary in order to fulfil
the professed desire for "greater transparency".[111]
Consultation after publication
83. The twelve weeks of public consultation on the
draft allowed for by the Government in this case is the Government's
own minimum standard:
Under normal circumstances, consultations should
last for a minimum of 12 weeks … If a consultation exercise
is to take place over a period when consultees are less able to
respond, e.g. over the summer or Christmas break, or if the policy
under consideration is particularly complex, consideration should
be given to the feasibility of allowing a longer period for the
consultation.[112]
84. It has been suggested to us by a number of people
and organisations that this consultation period should have been
longer.[113] The Centre
for Political and Constitutional Studies argued that the complexity
of the document demanded greater scrutiny:
A three month consultation period may accord
with best practice, but best practice has not been established
with a document of this nature in mind. The Manual is complex
and wide ranging; and of potential historical significance.[114]
The twelve weeks also included a Christmas break,
which is cited in the Code of Practice as another reason for considering
a longer period.
85. Witnesses have also queried why there is any
urgency to finalising the Cabinet Manual, particularly given the
long period between the Government announcing the project and
the publication of the draft.[115]
Dr Wilks-Heeg, told us that
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.[116]
86. The Cabinet Secretary defended the length of
the consultation period.[117]
It is open to question whether a longer consultation period would
have elicited a substantially broader or more informed response,
but we feel it was insufficient for a document of such significance.
A longer consultation period would have allowed for a more detailed
examination by a sovereign Parliament. This would have been wholly
appropriate given the constitutional and political importance
of the matters described in the Manual.
Updating the Cabinet Manual
87. The foreword to the draft states that
After the final version of the Cabinet Manual
has been published, it will be regularly reviewed to reflect the
continuing evolution of the way in which Parliament and government
operate.[118]
88. The Cabinet Office has not yet made clear by
what process the Cabinet Manual will be updated, nor how often.[119]
If the Cabinet Manual is used extensively by the public, there
is a balance to be struck between updating the Cabinet Manual
regularly enough so that it accurately reflects current practice,
and allowing time for an appropriate period of consultation and
reflection before publishing a new edition.
89. The Cabinet Secretary told us that he expected
"there to be some factual revisions as legislation changes,
which are done as and when appropriate, but significant changes
[would be] somewhat rare".[120]
He also told us that "If there are broader issues that are
not as clear-cut as that, then it will be an interesting question
for future Cabinets to decide precisely how they want to consult
on such changes".[121]
90. It seems to us that it will often be a matter
of judgment as to how revisions are made and whether new developments
should or should not be included in the Manual, even where these
relate to matters of fact. We therefore favour an open process
of revision of the Manual, rather than one conducted entirely
within Government. There needs to be a clear and published
process, agreed with us, for updating the Cabinet Manual once
it has been finalised. This process should be as open as possible,
to allow for the consideration of comments and concerns about
proposed changes before they are included.
105 Q78 Back
106
Draft Cabinet Manual, Foreword Back
107
Q9 [Lord Hennessy] Back
108
Ev 55, Ev 57 Back
109
Draft Cabinet Manual, Foreword Back
110
Q9 Back
111
Draft Cabinet Manual, Foreword Back
112
HM Government, Code of Practice on Consultation, paras
2.1-2.2 Back
113
Ev43 [Democratic Audit], Ev w6 [Mark Ryan] Back
114
Ev w8, para 32 Back
115
Ev55 [Democratic Audit], Ev w6 [Mark Ryan], Ev w7 [Centre for
Political and Constitutional Studies] Back
116
Q70 Back
117
Q94 Back
118
Draft Cabinet Manual, Foreword Back
119
Ev w13, para 4 [Institute for Government] Back
120
Q113 Back
121
Q 115 Back
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