Written evidence submitted by the Institute
for Government
INTRODUCTION
1. The publication of the draft Cabinet Manual
is important, overdue and welcome. But its status can easily be
misunderstood. It is primarily a document produced by the executive
as a guide to how government operates. It is not a step towards
a codified or written constitution. That is a quite separate debate
which raises far wider questions about entrenchment and the role
of the judges in relation to primary legislation.
2. Parliament is quite rightly being involved
in the consultations, and should have a continuing role, both
to suggest improvements in the light of fresh developments, such
as the formation of the coalition in May 2010, and to discuss
the impact of legislative changes, such as the current Fixed Term
Parliaments Bill.
3. The priorities for the PCRC should be, first,
establishing the status of the draft Manual; second, examining
whether it accurately and fairly reflects existing laws, conventions
and rules; third, discussing whether these laws, conventions and
rules are satisfactory or should be changed; and, fourth, considering
how, and when, the draft Manual should be revised. These distinctions
are crucial since there is a danger of criticising the Manual
for setting out practices of which the writer does not approve,
whereas the true function of the Manual is to describe current
practices.
4. As the foreword by Sir Gus O'Donnell, the
Cabinet Secretary, makes clear, the draft is not a static document.
Many key sections are very different from what they would have
been before the May 2010 general election and the formation of
the coalition as a result of new precedents created by these events.
Moreover, many parts will have to be revised again in the light
of current Government legislation. But there are uncertainties
and ambiguities about how this process of revision should occur.
What are the constitutional consequences of the
publication of the Cabinet Manual by the Government, and of the
process of consultation being adopted?
5. The Manual as such has no direct impact on
the constitution insofar as it sets out existing rules, conventions
and guidance in a single place. But, by doing this, it is likely
to have a big indirect impact on parliamentary, media and public
understanding of how the constitution operates. To an extent,
the Manual builds on existing internal Whitehall documents such
as the Precedent Book to deal with events such as changes of government
after elections and lays out existing conventions building on
past experience of, say, hung parliaments, as after the February
1974 election.
6. The full draft Manual now published is specifically
not seen as a step towards a written or codified constitution,
even though it includes many of the building blocks which would
be used if such a constitution was being drafted. On page 3, the
Cabinet Secretary's foreword states: "It is not intended
to have any legal effect or set issues in stone. It is intended
to guide, not to direct". That is correct in legal terms
but not necessarily in political ones.
7. The mere act of publication may mean that
the Manual will become a reference point against which future
actions of ministers and the civil service will be judged. The
Manual is therefore likely to play a part in future controversies
over the conduct of ministers and the executive. This is what
happened when Questions of Procedure for Ministers (now the Ministerial
Code) was first published in 1992. It was initially described
as uncontentious guidance for ministers, and successive Prime
Ministers and Cabinet Secretaries resisted any suggestion that
it was a rule book. However, it has been regularly cited by Opposition
politicians and journalists whenever allegations have been made
about the conduct of a minister, so that someone has been accused
of being in breach of the Ministerial Code. This led belatedly
to the appointment of an investigator to be involved when a Prime
Minister decided to order an inquiry into any allegations of misconduct
by a minister.
8. A more recent example is what happened after
Sir Gus O'Donnell published the draft chapter on Elections and
Government Formation in February 2010. His intention was to put
in writing the existing position and not to carve out new ground.
He largely succeeded in this aim. However, not only was the draft
chapter challenged by some after the election (see the questions
of its role in the "five days in May", as aired in earlier
hearings before the PCRC, and in the books by Rob Wilson MP and
David Laws MP), but the mere fact of publishing the previous understandings
changed their status. The Manual is, at one level, being presented
as a compendium of time-honoured practices, while, at the same
time, it is acknowledged that it will have to be updated regularly.
The reality is that the conventions and understandings are those
of the time and have always been modified and clarified in the
light of experience. However, the publication of the Manual may
have the constitutional consequence of hardening up and entrenching
certain practices in the short-term, even when the intention is
to permit discretion. This may produce the need for regular amendments.
For instance, the December 2010 version of the Manual amends the
February 2010 version by clarifying the position of an incumbent
Prime Minister where there is a hung parliament in par 50 on page
25. The clarification—stating 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"—accurately restates what the main participants
understood before the election. However, this clarification was
made necessary by the subsequent events.
9. There is an interesting contrast with the
Precedent Book, which is unavailable in its current form and only
in its past form in the National Archives under the rules on the
public release of official documents. This is an internal Whitehall,
and particularly Cabinet Office, reference point for the operation
of government, and both the "dignified and undignified"
parts of the constitution. This has always been seen as an evolving
document, incorporating new events and experience. This is inherently
easier to update in private than public.
10. The Manual is an executive document, not
a parliamentary one, and should remain so as long as it remains
in its current form. The Manual undoubtedly represents a codification
of current practices, but it is completely different from a statutory
written constitution, or if the constitutional practices described
in the Manual were placed on a statutory or otherwise legislatively
entrenched footing. While the Manual was discussed by the Home
Affairs Committee of the Cabinet, which suggested some amendments,
and then endorsed on the day of publication by the full Cabinet,
the document was conceived and written by the Cabinet Secretary
and his officials. It is therefore a hybrid, unlike the policy
statements of a government, which are ministerial products in
every sense, but it is not independent of the government of the
day. It is absolutely correct that Parliament, and, in particular,
the PCRC, should be involved, both now in discussing the current
draft and making suggestions on any changes, and, in the future,
in considering any proposed revisions to the contents of the Manual.
This follows the precedent of the Cabinet Secretary's decision
to publish the draft chapter in February 2010 and to seek the
views of MPs via the Justice Committee. Ideally, there would have
been a longer consultation period, but there was not time to undertake
this before the general election. The publication and discussion
at the public evidence taking session was widely welcomed at the
time. This process proved its worth by helping to reduce possible
misunderstandings in the media and in financial markets over the
key weekend over the general election, even though there was subsequent
controversy about what happened.
Does the Cabinet Manual accurately reflect existing
laws, conventions and rules?
11. The draft Manual represents a reasonable
statement of the current position as seen from the Cabinet Office,
with some caveats expressed below. There are subtle but important
distinctions between laws, conventions and rules and it would
be helpful if a clearer distinction were drawn between what is
required by these three categories. Most of the discussion about
the role of the Cabinet reflects precedent and the particular
view of senior civil servants about the desirability of collective
decision making through Cabinet and its committees, not always
followed in practice by recent Prime Ministers. Moreover, as noted
earlier, many of the most important areas are in themselves fluid.
The Manual is stronger on exposition rather than explanation.
It tells us the what of the current rules, norms, conventions
and practices, but rarely explains the why, and is therefore limited
on points where existing practice is either challenged or is changing.
12. An important role for the PCRC should be
to identify and discuss areas where there is no consensus (covered
in the next question), as well as to establish how the Manual
will be revised. The Cabinet Secretary states on page 7 of his
foreword that, "after the final version has been published,
it will be regularly reviewed to reflect the continuing evolution
of the way in which Parliament and government operate. We envisage
that an updated version will be available on the Cabinet Office
website, with an updated hard copy publication at the start of
each new Parliament". This follows the New Zealand experience.
However, the Manual needs to be treated more as a living document,
with revisions every year after reports to Parliament on amendments.
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?
13. The distinction is not always clear because
of changing events and experiences. In most areas, the Manual
provides a factual description of current rules, such as the position
of the sovereign, ministers and the law, etc. However, in other
areas, where previous conventions had been tacit and implied,
the mere fact of publication can be seen as seeking to lay down
one viewpoint (primarily a Whitehall one). So while, say, chapter
2 on Elections and Government Formation is a balanced statement
of the current conventions, particularly in the light of the May
2010 experience, it deserves to be widely discussed. This should
cover not just whether this chapter is an accurate description
of the conventions (as it largely is), but the PCRC should also
consider recommending possible improvements to the conventions
themselves, such as an increased role for Parliament via an inauguration
vote to approve the choice of a new Prime Minister ( as happens
with the election of the First Minister in the Scottish Parliament),
and as suggested by the Institute for Government in its written
submission to the PCRC in October 2010.
14. In some areas, the Manual sets out a particular
view of how participants ought to behave, rather than necessarily
how they do behave. In para 51 on page 26, there is ambiguity
about what role the civil service should have in supporting negotiations
over forming a government if there is a hung parliament. Similarly,
the PCRC, and other Commons committees, would no doubt have a
view on the reference in para 205 on page 73—"ministers
should consider publishing bills in draft for pre-legislative
scrutiny, where it is appropriate to do so". This statement
would be seen as far too discretionary and permissive by many
in the Commons.
Are there matters that are not adequately reflected
in the Cabinet Manual?
15. The Manual is intended to be mainly about
the operations of the executive, and is less specific on other
areas, notably relations with other organisations such as Parliament,
local government and arms length bodies. The discussion on select
committees and parliamentary questions is perfunctory but that
is really a matter for Parliament to make its own views known.
16. The Manual is essentially written as if there
is still single-party government, with just some amendments to
take account of the existence of the coalition. There is no mention
of the Programme for Government. The section on Cabinet committees
on page 55 onwards does not give any detail on the specific processes
established for coalition rule, which are obviously highly relevant
to the working of government now. This illustrates the problem
of updating the Manual to take account of current experiences.
There is a strong case for a separate section outlining the practices
that are being adopted within government and the Cabinet system
specified in response to the challenges of coalition government.
Some have been set out in the "Coalition Agreement for Stability
and Reform", but in tune with the approach in the rest of
the Manual, they could usefully be brought together.
17. There is an inconsistency of approach in
relation to new developments. While some implications of the formation
of the coalition are barely discussed, the novel Backbench Business
Committee and the new Board structures for departments are treated
as if they are well-established parts of the system.
18. There are some curious omissions. For instance,
why is the Human Rights Act not included in the list of constitutionally
important statutes in para 5 on page 10?
Are there matters currently included in the Cabinet
Manual that should not be, of that should be given lesser prominence?
19. Some parts of the Manual read like parts
of a civics course, notably the sections on the Sovereign and
on the European Union and other international bodies. Are these
essential? The relevant point is how far membership of international
organisations affects the workings of British Government, as it
obviously does in the case of the EU.
CONCLUSIONS
20. There should be a clearer distinction between
what is required by statute and what has been established by precedent.
Moreover, greater provision needs to be made for its status as
a living, and evolving, document. That has two aspects: first,
public consultation and discussion by PCRC on how the Manual is
affected by recent experience (notably, say, the aftermath of
the May 2010 election); and, second, the need for the revision
in the light of legislative changes, as discussed on pages 3 to
5 of the Manual.
21. Overall, however, the publication of the
Manual represents a big step forward by the Cabinet Secretary
in opening up the workings of government.
10 January 2011
FURTHER READING
http://www.instituteforgovernment.org.uk/blog/1398/why-fears-the-cabinet-manual-is-a-step-towards-a-written-constitution-are-unfounded/
Making Minority Government Work: Hung Parliaments
and the Challenges for Westminster and Whitehall, December 2009,
edited by Robert Hazell and Akash Paun, published by the Constitution
Unit and the Institute for Government
Transitions: Preparing for Changes of Government,
November 2009, by Peter Riddell and Catherine Haddon, published
by the Institute for Government
Constitutional process following a general election,
House of Commons Justice Committee, Fifth Report of Session 2009-10
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