Written evidence submitted by the Centre
for Political and Constitutional Studies, King's College London
SUMMARY
1. The Cabinet Manual ("the Manual")
can be welcomed as an attempt to bring greater clarity to the
UK constitutional settlement.
2. The publication by the government of the Manual
in draft form—together with the opportunity to provide comments
on it—is to be welcomed also.
3. The Manual may prove to have greater significance
than its authors appear to be claiming for it; and it may contribute
to unintended change.
4. The process being used for producing and consulting
on the Manual has some potentially unsatisfactory features.
5. Difficulties exist in any attempt precisely
to reflect the UK constitution, which is to some extent inherently
amorphous in nature. A particular area in which these problems
are pronounced is in the definition of constitutional conventions.
There are also some methodological weaknesses in the approach
that has been taken to reflecting the UK constitution in the Manual.
6. In at least one instance the Manual seemingly
attempts to create a constitutional convention not resting on
past precedent.
7. Key features of and debates around the UK
settlement appear to have been overlooked.
8. There is seemingly an insufficiently clear
rationale for what should and should not be included in the Manual,
with some apparently anomalous inclusions.
What are the constitutional consequences of the
publication of the Cabinet Manual by the Government, and of the
process of consultation being adopted?
Constitutional consequences
9. Assessing the constitutional consequences
of the Manual at this stage involves a degree of speculation.
10. However, certain provisional observations
are possible.
11. The Manual shares some similarities with
a codified constitution. But it falls short of such a description
in a number of key areas.
12. Moreover, when Gordon Brown as Prime Minister
first announced that the Manual was in production, he portrayed
it as part of a process that could lead to a fully codified UK
constitution. This idea has seemingly been dropped and is not
mentioned in the draft.
13. Nonetheless, if the UK does develop a fully
codified settlement it is likely that the Manual will come to
be seen as having been an important step in this direction.
14. The Centre will address the relationship
between the Manual and the idea of a codified UK constitution
more fully in a separate, supplementary evidence submission to
the Committee.
15. The Manual may prove to have various other
possible constitutional consequences.
16. It may, as is the stated intention lying
behind its publication, serve as (p.3): "a source of information
on the UK's laws, conventions and rules, including those of a
constitutional nature, that affect the operation and procedures
of government". This application would be arguably the principal
direct value of the Manual, and provide a reason, from the perspective
of constitutional transparency, for welcoming its publication.
17. It is stated that the Manual will not
be a "driver of change" (p.3). However, there are grounds
for believing it may be.
18. It seems likely that the Manual will come
to be regarded by many—particularly in the media—as
the best available source on the UK constitution. Indeed it could
come to have more authority attached to it as a definitive statement
of the UK settlement than is intended for it.
19. It follows that any errors or omissions made
in the production of the Manual will have serious consequences,
since they may produce popular misconceptions about the UK constitution.
Since perception is an important ingredient in the un-codified
UK constitution, mistakes and gaps in the Manual may prove to
be self-fulfilling through helping bring about adherence to its
incorrect interpretations; or neglect of those features of the
constitution that it overlooks.
20. The inclusion of a particular law, rule or
convention within the Manual will by implication afford it a heightened
status (though not entrenchment in the sense of a codified constitution);
while those laws, rules or conventions which are omitted from
the Manual will by implication be downgraded through this exclusion.
21. The Manual may come to be used by those who
attempt to justify or criticise the actions of actors within the
executive, with claims being made about whether or not the Manual
has been adhered to.
22. The Manual may prove to be a "driver
of change" in other ways still. It may draw attention to
features of the UK settlement which some find objectionable and
encourage campaigns to alter them; or be criticised for misrepresenting
the UK settlement, leading to demands for the Manual to be altered;
or encourage some to demand that the Manual is succeeded by a
fully codified UK settlement, possibly involving a more inclusive
process than has been employed for the production of the Manual.
Process
23. Given these various possible forms of significance
that may attach to the Manual it is necessary to subject the process
by which it is being produced and consulted on to full scrutiny.
24. The process has been conducted largely within
the Cabinet Office. There has been private consultation with a
small number of experts selected by the Cabinet Office, on terms
of its choice. Before the present consultation began, the only
open consultation had been with the House of Commons Justice Committee
on what now forms Chapter 2 ("Elections and government formation"),
before the 2010 General Election (the draft has also been considered
by the present Committee, the Political and Constitutional Reform
Committee).
25. It appears that, after this consultation,
all final decisions about drafting will be taken within the executive.
26. The Cabinet Manual will then seemingly be
approved and owned by the Cabinet.
27. Were the Manual purely an internal executive
document, this closed approach and exclusive ownership might not
be as much of a problem.
28. However, though the Manual may be written
from the (p.3) "perspective of the Executive branch of government",
it will be a public document, and its production may have a range
of possible significant consequences as discussed above. Moreover,
it deals with issues that are not purely executive matters, such
as the selection of the Prime Minister following an inconclusive
General Election; relations between the House of Commons and the
House of Lords; and the possibility of altering devolution settlements.
29. Furthermore, through the present consultation,
the government is seeking views from outside the executive in
order to achieve, (p.6) "as far as possible…an agreed
position on important constitutional conventions". It would
be regrettable if the impression were created that the consultation
process being used amounts to an attempt to acquire for the Manual
a status as something more than just an internal executive document,
with a degree of consensus in the broader political community
surrounding it, but at the same to retain executive control and
ownership of it.
30. For instance where consensus about the nature
of conventions cannot be reached, the executive will presumably
have the final say about the interpretations to be advanced in
the Manual. This approach is a particular problem given that conventions,
since they by definition are not formally enforceable, may require
shared understandings between different actors in constitutional
processes, rather than unilateral impositions. The outcome could
be that, in seeking to clarify conventions, the Manual undermines
their effectiveness as constitutional instruments (the treatment
of conventions in the Manual is discussed further below).
31. There is a potential conflict of interest
in a document owned by the Cabinet setting out how government
transitions should be determined, since any given Cabinet is clearly
an interested party in such a process.
32. In more practical terms, 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 historic significance.
As well as its content, there is a need to consider more thoroughly
what is the appropriate form of ownership and approval for the
Manual and what role should be played by Parliament. Consideration
should be given as well to the apparent abandonment of the idea
that the Manual was initiated as part of a process that might
end with a codified UK constitution.
33. For all these reasons a lengthened consultation
period of perhaps six months might be more appropriate. There
does not appear to be any pressing need rapidly to produce a final
document, particularly if excessive haste leads to a flawed outcome.
34. Furthermore, the analysis below suggests
that some significant revisions and additions may be required
to the Manual. If the need for substantial redrafting is accepted,
then as well as a lengthened initial consultation period, a second,
revised, draft of the Manual should be offered for further consultation.
35. Finally, while the Manual states that it
will be (p.8) "regularly reviewed", it does not offer
a time-frame or description of the process that will be followed.
36. The following points about the content of
the Manual do not—for reasons of space—contain references,
although they can be supplied if required. Again for space reasons
further issues have been omitted, that could be raised were the
Cabinet Office to hold a longer, fuller consultation process.
Does the Cabinet Manual accurately reflect existing
laws, conventions and rules?
37. The Manual purports to be (p.3) a "factual
description of the situation today". Yet it makes certain
claims about the UK constitution which arguably cannot be advanced
with the degree of certainty that it suggests; and for which it
often offers little or no supporting evidence (for conclusions
for which no specific supporting evidence is offered, see paras
43-5 on confidence motions).
38. A particular problem to be addressed when
considering the accuracy of the Manual is its handling of constitutional
conventions, descriptions of which make up a significant proportion
of the text, reflecting their exceptional prominence within the
un-codified UK settlement.
39. Constitutional conventions can in a sense
be impossible precisely to reflect, since the analysis of them
can be characterised by a pronounced lack of consensus.
40. The study of constitutional conventions involves
the identification and interpretation of relevant historic events—often
labeled "precedents"—a practice inevitably involving
a degree of divergence and subjectivity. Different observers may
come to different conclusions. For instance, some would argue
that, on a basis of past precedent, in the event of a General
Election producing no single party majority in the House of Commons,
if the incumbent Prime Minister resigns, then the leader of the
largest opposition party should automatically be invited to form
a government. But the Manual does not stipulate such a practice.
41. Consequently it is difficult to make with
confidence a definitive "factual description" of the
nature of many constitutional conventions. However the Manual
as drafted at present attempts to do so. Moreover it also fails
to acknowledge differing interpretations that might exist; and
frequently does not explain how it has reached its conclusions
and the precedents on which they are based.
42. While the Manual acknowledges to some extent
the existence of (p.6) "doubt or disagreement" about
"important constitutional conventions", it is suggestive
of an excessive optimism on the part of its authors to reach satisfactory
resolutions.
43. There is a need to record more explicitly
at the outset of the document the difficulties involved in defining
conventions. Ideally, wherever a particular interpretation of
a contested convention is advanced it should be noted that this
conclusion is the one held specifically by the executive and is
not indisputable, with—perhaps in a footnote—some
reference to the evidence base that has been drawn upon, the reasoning
that has been followed, and different interpretations that exist.
44. Another specific query about the accuracy
of the Manual, or at least the way it has been drafted, arises
from consideration of the introduction to Chapter 4 (p.53), which
portrays a confusing picture of Cabinet. It states that:
Cabinet and Cabinet committees are the only groups
formally empowered to take binding decisions on behalf of the
Government. Cabinet and Cabinet committees consist of government
ministers. Only they—since they are accountable to Parliament—can
take binding decisions.
45. This wording is confusing, arguably contradicting
itself by stating first that only Cabinet and its committees
can take "binding decisions"; then saying that only
ministers can do so. The actual position is probably best
described as being that by convention major decisions are
taken collectively in Cabinet and its committees; while only individual
ministers can (often under statute) execute decisions, for
which they are held individually accountable by Parliament. It
would be better not to describe Cabinet as "formally empowered"
since Cabinet has a relatively informal existence, with
no statutory basis, as is accurately stated in paragraph 139,
which describes Cabinet as "established by convention".
Are there areas in which the Cabinet Manual appears
to alter existing conventions or rules, or create new ones, rather
than acting as a "factual record" based on precedent?
46. Chapter 2 on "Elections and government
formation" has been updated (p.6) "particularly in the
light of the experience gained in May 2010". But parts of
the text seem to reflect not the precedents set by this experience
(or any earlier "no overall control" Parliament) but
what some believe ought to have been the agreed rules by
which actors operated.
47. For instance it is not clear that the following
stipulation is based on actual events (para 50):
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.
48. The integrity of the Manual is in danger
of being compromised if it can be perceived as being used by those
who control it as an instrument for changing rather than reflecting
the constitution (regardless of whether the new arrangements being
promoted are sound).
Are there matters that are not adequately reflected
in the Cabinet Manual?
49. The relationship between the House of Commons
and the House of Lords (covered in paras 186-7) is not dealt with
satisfactorily. The Manual states (para 187) that:
under the Parliament Acts 1911 and 1949, a Money
Bill which has been passed by the Commons may receive Royal Assent
without being passed by the Lords
50. But the Manual does not offer a definition
of a "Money Bill" beyond that provided for in the Parliament
Acts—a controversial subject at present. There is also no
reference to the ability of the House of Lords, again under the
Parliament Acts, to veto the Commons if seeking to extend the
life of Parliament. Furthermore, the Salisbury/Addison convention
is not mentioned at all, at a time when there is doubt about the
way in which it might apply to the Coalition government.
51. In the section on Royal Prerogative powers,
there is no mention even of the possibility that there has developed
a broad convention that Parliament should be consulted over hostile
military action. The government should clearly state its position
on this issue and acknowledge the case that such a convention
may exist.
52. There is a need for a proper treatment of
the constitutional aspects of intelligence and security arrangements;
including the statutory basis of the Intelligence and Security
Agencies and mechanisms for oversight of their activities; and
the Civil Contingencies Act 2004, a key constitutional
statute providing for emergency powers which is mentioned only
in passing (para.111). It might be also be appropriate to note
that there is clear precedent for the establishment during military
emergencies of "war cabinets". (During both world wars,
these bodies were formally labeled "war cabinets" while
in subsequent more limited engagements they have had other names.)
53. There is no acknowledgement of the crucial
question of whether the holding of a referendum on a decision
can create a constitutional convention that, if this decision
is to be fundamentally reversed, popular consent through a further
referendum is required. For instance, it could be argued that
the devolution settlements for Scotland, Wales, Northern Ireland
and London are in practice entrenched in this way.
54. No reference is made to the long-established
statutory provision for Northern Ireland to detach from the UK.
55. The section on devolution ignores the devolution
settlement for Greater London. Nor is Greater London dealt with
in a meaningful way in the local government section, which briefly
refers to it in paragraph 296.
56. The local government section omits to mention
the Central-Local Concordat, negotiated between the Department
for Communities and Local Government (on behalf of the whole government)
and the Local Government Association in 2007, and supposedly setting
out the constitutional basis for relations between Whitehall and
local government.
Are there matters currently included in the Cabinet
Manual that should not be, or that should be given lesser prominence?
57. It is not entirely clear what is the rationale
for the inclusion or exclusion of particular matters in the Manual.
At present, there are certain apparently anomalous inclusions.
For instance, there is a detailed description of a recent innovation—the
use of departmental boards—in paragraphs 361-364; while
the equally recent departmental business plans and the Office
for Budget Responsibility are overlooked (the former seemingly
ignored altogether, while the latter gains only a passing reference
on p.76, fn.36).
58. In stating that (para 30) "Cabinet is
the executive committee of the Privy Council" the Manual
is once more making an unsupported assertion over which there
is not a consensus. Rather than enter into a longstanding debate—which
it is not strictly necessary for the government to resolve—about
whether or not Cabinet is a committee of the Privy Council, it
might be better simply to delete this point.
9 January 2011
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