Supplementary written evidence submitted
by Rodney Brazier, Professor of Constitutional Law in the University
of Manchester
INTRODUCTION
1. I have now had the advantage of reading the
written evidence published by the Committee on 14 January 2011,
and of watching the webcast of oral evidence given on 13 January
2011.
2. May I highlight a number of points of detail
which arise from that evidence? I do so from the perspective of
a constitutional lawyer.
THE SOURCES
USED FOR
THE Cabinet Manual
3. I agree with the sentiment expressed in the
evidence from the Institute for Government (CICM08, para 30) that
it would be helpful if the Manual could specify the sources
for its innumerable propositions, whether statute, common law,
constitutional convention, or practice. If that could be
done, well and good. But to do so would require an early start,
because it would be very time-consuming. And often it would be
hard to specify a universally-accepted source if it were based
in constitutional convention or on practice, because people argue
all the time about conventions and practice. The incorporation
of sources might also hamper the flow of the text, and be off-putting
for the target audience.
THE SOVEREIGN'S
RESERVE POWERS
4. The draft refers to these reserve powers in,
eg, paras 6 and 59. The language used in para 59 accurately and
appropriately reflects those powers and should not be changed.
(I declare an interest: the phrase "reserve powers"
was first coined by me in the first edition of my book Constitutional
Practice, published in 1988, to embrace this particular collection
of prerogative powers.)
5. It has been suggested that the Manual be
amended to describe those powers as being "in desuetude".
But such a description, if added, might raise doubts about whether
the powers still exist. They do. The Cabinet Office's legal advisers
can confirm the following (and I will spare the Committee case
references). The reserve powers are part of the royal prerogative,
which is recognised by the courts as being part of the common
law. No rule or power established as part of the common law ceases
to exist just because it hasn't been used for a long time. Only
the courts, through judicial decisions, or Parliament, through
overriding statutory provision, can alter that part of the law.
Neither has done so in the context of these particular powers.
Unless and until the judges or Parliament make changes to the
law, the Manual should not sow any doubt about the continuance
in law of the reserve powers.
6. Now of course these reserve powers may never
fall to be used again. But I remain a robust supporter of leaving
this bit of the British constitution as it is—just in case
some unforeseeable future grave constitutional crisis could only
be settled by royal intervention after politicians had failed
to do so. To use a very tired phrase, lessons have been learned,
no doubt, from the very old precedents in which Sovereigns have
acted unwisely, and from the events in Australia in 1975. "Extreme
caution" would be a modern Sovereign's watchwords. And so
let the well-drafted para 59 stay as it is, with the reserve powers
continuing, as it were, to rest peacefully in the bottom drawer
of the Sovereign's desk—just in case.
PUBLICATION OF
THE PRECEDENT
BOOK
7. I disagree with the suggestion that the current
version of the civil service Precedent Book be published. As the
Institute for Government says in its written evidence (CICM08,
para 9), this Book is "an evolving document, incorporating
new events and experience. This is inherently easier to update
in private than public". Moreover, it was never compiled,
and is not maintained, with a view to contemporaneous or early
publication. Its writers have a legitimate expectation that this
internal working document, designed to guide officials rather
than Ministers or the public, will be kept confidential—until,
of course, a particular version falls to be published in the National
Archives at the time prescribed by law. The Precedent Book should
not be compared with the proposed Cabinet Manual, and should
remain confidential.
THE HUMAN
RIGHTS ACT
1998
8. I agree with Mr Ryan's submissions (Ev w6)
and with those of Professor McLean (Ev 39) about the Human Rights
Act and urge that they be adopted.
OATHS OF
ALLEGIANCE
9. Concern has been expressed about the position
of anyone who has to take an oath but objects to swearing it.
But an affirmation can, of course, be made instead: Oaths Act
1978, ss 5, 6 (re-enacting earlier statutory provisions).
INDEX
10. Bold and radical as the suggestion is in
relation to documents such as the Manual, might it be given
an index, so as to make it easier for all to use?
18 January 2011
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