Written evidence submitted by Mark Ryan,
Coventry University
1. My name is Mark Ryan and I am a Senior Lecturer
in Constitutional and Administrative Law at Coventry University.
I have a particular interest in constitutional reform and in recent
years I have submitted written evidence to a number of parliamentary
committees. My submission, however, is made in my own personal
capacity and indicates my personal observations on the Draft Cabinet
Manual. It in no way reflects the views of my employers (Coventry
University).
2. Question 1: At the outset the point must be
made that the Draft Cabinet Manual is to welcomed. It will be
of particular use to a wider audience (other than Government)
as it provides a very general overview of our uncodified constitutional
arrangements (albeit with a specific emphasis on Government within
the constitution). It is a valuable and accessible document in
that it uses plain English which is devoid of complex and convoluted
legalese.
3. In terms of the consultation process, the
question has to be raised as to whether a three month period (ie
until March 2011) is really sufficient given the breadth of the
subject manner detailed in the Draft. After all, the Draft is
not a narrow examination of one minor aspect of our constitution.
In fact, in the final analysis, time is hardly of the essence
in relation to the publication of the final Cabinet Manual document.
4. Questions 2/3: Although the time to examine
the Draft in fine detail was somewhat limited (in order to meet
10 January deadline), the Draft nevertheless would appear to provide
an accurate description of our current constitutional arrangements
pertaining to the Government.
5. Question 4: In Chapter 5 although Paragraph
205 refers to pre-legislative scrutiny, it could be argued that
the Draft should place more emphasis on the Government
to subject Bills (particularly those of a constitutional nature)
to pre-legislative scrutiny on the basis of it being sound constitutional
practice.
6. In Chapter 6, Paragraph 230 makes reference
to the High Court, but owing to reforms in this area in the last
decade, it is suggested that it would be preferable to refer to
the Administrative Court instead. In addition, although Paragraph
231 identifies the grounds of judicial review, given that ministers
are regularly subject to review (after all, this is the main way
in which the executive is typically held to account in law in
our constitution), it is submitted that these grounds should be
set out in more detail. In particular, the various different aspects
of the ground of illegality (jurisdiction, the notion of an abuse
of ministerial discretion, etc) could be usefully outlined.
7. Although in Chapter 6 the Human Rights Act
1998 is mentioned, it is suggested that it would be beneficial
to draw a distinction between the effect of the Act on primary
and secondary legislation (the latter can be invalidated
if it violates a Convention right - unless protected by its parent
Act). It would also be useful if Paragraph 248 detailed the important
system of remedial orders under section 10 which allows the Government
to respond to both an "internal" declaration of incompatibility
by a UK court, as well as to an "external" decision
of the European Court of Human Rights that our law violated the
Convention. Paragraph 249 should also make the point that any
statement made by a minister under section 19 is not binding on
the courts. In other words, the judiciary could decide that legislation
was inconsistent with the Convention, notwithstanding the fact
that a formal statement had been made by a minister under section
19 that the measure was compatible.
8. In Chapter 9, given the profound impact that
European Union law has had on our uncodified constitutional arrangements
(in particular our traditional understanding of the legislative
supremacy of Parliament), reference should be made to the principle
that underpins the European Union, viz., the primacy of European
law.
9 January 2011
| 
