House of Commons - Political and Constitutional Reform Committee

Constitutional implications of the Cabinet Manual - Political and Constitutional Reform Committee Contents

Written evidence submitted by Richard Gordon QC

LEGAL STATUS OF THE CABINET MANUAL[21]

INTRODUCTION

1. The Foreword to the draft Cabinet Manual states explicitly that it is not intended to have legal effect:

"The Cabinet Manual is intended to be 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. It is written from the perspective of the Executive branch of government. It is not intended to have any legal effect or set issues in stone. It is intended to guide, not to direct" [Underlining added]

2. In this respect it is similar in intent to the New Zealand Cabinet Manual.[22] However, the New Zealand experience demonstrates that documents of this kind can "become part of normal accepted constitutional arrangements".[23] In similar fashion it is probable that a Cabinet Manual in the United Kingdom would acquire some constitutional status at least both in terms of its content and also in terms of the procedures for revising its content.

3. As explained below, despite the clear intention to promote a Cabinet Manual that does not attract legal status, it is probable that some legal issues will arise in respect of such a document and that some legal status will attach to it. This is so for at least three reasons.[24] In outline:

The very fact of such a document having constitutional status raises potential legal issues concerning the relationship between the courts on the one hand and, on the other, the Executive and Parliament.
The need for a Cabinet Manual to be comprehensive and, if possible, agreed and revised through a consultation process may create procedural issues of law over the process by which such Manual is produced.
The fact that a Cabinet Manual will, of necessity, be reduced to writing following such a process creates ostensible legitimacy. If the Manual makes statements over areas that overlap with matters within the remit of the courts, the accuracy of such statements could be questioned in legal proceedings.

4. Two questions arise in this context. The first is whether or not the judiciary will be asked by litigants (and, if so, whether it will respond to such invitations) to adjudicate on elements of the Cabinet Manual once it has been finalised or revised or on aspects of the process leading to the creation or revision of such Manual. A second (and contingent) question is whether if the judges do decide to resolve particular questions relating to the Cabinet Manual (including procedural questions) this might create opportunities for the judges to pronounce on constitutional questions on which they have, thus far, remained silent or at least reticent to decide.[25]

5. If judges were to pronounce in this way on matters contained in the Cabinet Manual it would be hard to deny that, although not intended to have legal effect, the Manual was operating as a constitutional catalyst and, at least in that sense, possessed arguable legal status. In any event, it is in this sense that I use the concept of legal status in what follows.

OUTLINE OF ISSUES INVOLVED IN CONSIDERING THE LEGAL STATUS OF THE CABINET MANUAL

6. In this Paper I sketch short responses to the following questions:

Is a Cabinet Manual in substance a written Constitution or at least the first stage towards a written Constitution?[26]
Are there any constitutional axioms? If not, can matters of law be separated from constitutional questions?
If there is some overlap between law and constitutional questions what is the potential for a Cabinet Manual to be the subject of judicial adjudication?
What potential for legal status might the processes of creating and/or revising the present draft Cabinet Manual involve?
What potential for legal status might the content of the present draft Cabinet Manual involve?

Question 1—Is the Cabinet Manual a Written Constitution or at least the first stage to one?

7. There is a key distinction between a written Constitution operating as the source of legal authority within a State ("the first sense") and a codified Constitution which, though it may be in writing, does not purport to be more than an attempt to describe a number of current constitutional arrangements reflected in a hitherto unsystematic set of constitutional principles, laws and practices ("the second sense").

8. The United Kingdom is sometimes said to have an "unwritten" Constitution. But the position expressed more accurately is that many (though not all) constitutional rules, practices and arrangements are expressed in writing but not in any systematic way. It is the entrenchment of constitutional provisions that creates the dividing line between a written Constitution in the first sense and an organically evolving set of laws that may or may not be codified (though is likely to have some of its provisions in writing) but can be repealed by a majority vote (over 50%) in Parliament. What the United Kingdom does not currently possess is a constitution that is either written in the first sense or codified in the second sense.[27] Nothing in the constitutional arrangements for the United Kingdom is entrenched.

9. I have no difficulty in identifying the intended Cabinet Manual, at least at this stage, as the start of a codified Constitution in the second sense. The present document makes clear in a number of places that it merely seeks to record and to clarify present practices. It is not intended in any way to be a reforming document but it is concerned to be comprehensive and to represent an agreed position on the operation of central government.

10. Thus (from the Foreword):

"... it will be a record of incremental changes rather than a driver of change ...

Publishing the Cabinet Manual in draft has two main aims:

first, to ensure that—as far as possible—the Cabinet Manual reflects an agreed position on important constitutional conventions. Where there is doubt or disagreement, we hope consultation will help clarify the position and achieve a common understanding; and

second, to check that the draft covers the issues which need to be covered (that there is nothing missing which should be included and that nothing is included which does not need to be included in a Cabinet Manual), and that it does so in a way which is easy for the intended audience to follow.

It is important to remember that the Cabinet Manual is intended to record the current position on the operation of central government. We are not seeking comments on laws, rules or conventions that people may wish to see changed in the future."

11. Whatever the professed intention of the Cabinet Manual, and whatever its actual content, it could not as a matter of current constitutional theory ever operate to create a written Constitution in the first sense. This is because of the doctrine of Parliamentary sovereignty which places the Queen in Parliament acting by Act of Parliament as the supreme legislator with no superior authority and with unlimited legal effect.[28]

12. This has the necessary consequence that any prior Act of Parliament can always be repealed by a later Act. It follows that no written Constitution in the first sense could ever, consistent with current constitutional theory, be established because it could never operate to bind Parliament or the Courts permanently. Expressed shortly, if Parliament can create a "Constitution" it may also repeal it because it is sovereign.

13. Nonetheless, it is also clear that in practice constitutional conventions can operate to have binding effect in practice. Thus (for example) whilst as a matter of constitutional theory the Westminster Parliament could legislate on devolved (non-reserved) matters without first having to seek the consent of the Scottish Parliament, a constitutional convention (the Sewell Convention) means that for all practical purposes the consent of the Scottish Parliament must be sought before this could occur. The development of constitutional conventions (even perhaps constitutional practices) can operate to place practical constraints on how both the Executive and Parliament may function.

14. A question therefore arises as to whether the development of a Cabinet Manual may, both in terms of its content and the process by which it evolves, lead to the creation of a written Constitution in practice if not in theory.

15. The concerns that have been expressed about this issue are that, by codifying our constitutional arrangements in a Cabinet Manual, there is a practical de facto entrenchment so that, at one and the same time, entrenchment is achieved in substance by the process of codification.

16. These concerns seem to me not to be justified provided that the stated objectives set out in the draft Manual are adhered to. If the Cabinet Manual is intended (as it seems to be) merely as a descriptive and less than comprehensive document[29] it cannot, by definition, go beyond the contours of our present constitutional arrangements. In particular, it cannot erode Parliamentary sovereignty.[30] However, the process of writing down constitutional arrangements in a systematic way brings with it at least the possibility of a new constitutional dynamic emerging that would create its own momentum for an entrenched Constitution. That possibility is outside the scope of the present Paper since if that possibility crystallised it would lead to the creation of something that went much further than a Cabinet Manual. A Cabinet Manual stricto sensu is neither a written Constitution nor the first stage to such a Constitution.

17. In terms of its legal status, the risks are different. The more that a Cabinet Manual purports, by a defined process, to set out written constitutional rules as an indicator of present arrangements, the more scope there may be for judges to become involved in both the process and the content of such a document. This is the topic of the remaining sections of this Paper.

Question 2—Are there any Constitutional Axioms?

18. The reason for posing the Question in this way is as follows. If there is a clear demarcation between constitutional principles that are simply not justiciable in the courts because they represent "first order" constitutional principles, practices or axioms (collectively "axioms") that the Courts cannot or do not concern themselves with then it may be supposed that a Cabinet Manual that is merely descriptive of such existing "axioms" would not raise any obvious concerns of legal status in the sense in which I have used that term in this Paper.

19. If, however, there are no such axioms or that question is itself the subject of contention between the Courts and the other arms of the State (Parliament and the Executive) then it is distinctly possible that concerns of the legal status of a Cabinet Manual could arise as described below. This is because there could be ambiguity as to the precise dividing line of that which is, on the one hand, the remit of the judiciary and, on the other, that which is the province of Parliament and/or the Executive. If that is the position then, as I seek to suggest, both the process of developing a Cabinet Manual and the content of the Manual could raise issues as to their legal status.

20. It seems to me that, with one important exception, there are few (and perhaps no) true constitutional "axioms". The exception is that of constitutional conventions which have usually been thought to be outside the reach of the Courts altogether. Conventions are, it is often said, non-legal rules and the Courts do not have jurisdiction to adjudicate upon them. Although the Courts have rarely been called upon to address constitutional conventions the distinction between legal and non-legal rules has been recognised and Courts have, when confronted with the issue, recognised the existence of Conventions without adjudicating on them or being able to enforce them (see: Attorney-General v. Jonathan Cape Ltd (1976[31]) and Reference re Amendment of the Constitution of Canada (1982)[32]).

21. If, therefore, a Cabinet Manual were to confine itself to a recitation of agreed constitutional conventions it is not likely that this would raise issues of legal status.

22. However, conventions aside, I have some doubt as to whether any constitutional principle is unequivocally outside the reach of the courts. Parliamentary sovereignty (described above) is sometimes thought to be the bedrock of our Constitution but the historical provenance of sovereignty is by no means clear and the attitude of the judges to parliamentary sovereignty is conflicting. Similar difficulties attach to ostensibly bedrock notions such as the rule of law and the scope of Parliamentary privilege. I will give some examples of these difficulties in my presentation.

23. For the moment I simply wish to suggest that there is no clear division between law and most constitutional axioms. That being so, great care needs to be taken in the development and drafting of a Cabinet Manual in order to avoid or at least to minimise the potential for disputes to arise in the Courts over the legal status of the Manual.

24. Moreover, even if these problems were surmounted, the difficulty of reaching consensus on any clear constitutional (and, hence, concomitant legal) status for a Cabinet Manual should not be under-estimated.

25. Previous attempts to codify the practices of Executive government suggest that the status of the resulting document is not always apparent even to those responsible for its content. For example, in The Hidden Wiring (Victor Gollancz (1995)), Peter Hennessy, referring to the document Questions of Procedure for Ministers[33] queried whether it was a code or "merely some tips for beginners—a book of etiquette".[34] Professor Hennessy "had no hesitation" when asked by one of his students in describing the document as a constitutional convention. However, this was not the view of Sir Robin Butler, then Secretary of the Cabinet who wrote that "I don't regard it as having any constitutional force at all."[35]

26. This anecdotal example perhaps reinforces the point that it is unlikely that clear dividing lines will be capable of being drawn between constitutional and legal matters or even as to the true status of the Cabinet Manual.

Question 3—What is the potential for a Cabinet Manual to become the subject of legal adjudication?

27. Given the ambiguity that can exist between law and constitutional principles a Cabinet Manual could possibly become the subject of legal adjudication in two ways, namely:

Procedurally; or
Substantively

28. Procedurally, a Cabinet Manual could become the subject of disputes in the Courts through legal challenges to the process or absence of process by which such Manual is created and subsequently revised.

29. It is now established in at least some contexts that even where there is no obligation to act in a particular way (as for example no obligation to give reasons or to engage in consultation) where a process is started it must be conducted lawfully, rationally and fairly so as to comply with public law standards. Closely related to this is the concept of public law legitimate expectation whereby if a public body makes a clear promise or gives a clear assurance or engages in a specific past practice it may be compelled to comply with the promise or assurance or continue the past practice or, at the very least, to consult before the promise, assurance or practice can be altered.

30. There have, in particular, been a number of cases in the courts that have greatly expanded the concept of legitimate expectation into, amongst other areas, the "macro-political field".[36]

31. Thus if and to the extent that the creation of a Cabinet Manual depended on a process of consultation, the fairness of the consultation process (in terms of length, sufficient information etc, breadth of consultation) might be capable of being challenged in the Courts as might a failure to comply in the future with specific procedural statements or promises made in that Cabinet Manual.

32. Substantively, in terms of its content, a Cabinet Manual could become the subject of disputes in the Courts if the accuracy of its content were to become the subject of an application for judicial review for a declaration as to the incorrectness of particular statements.

33. It is also established that the accuracy of guidance issued by a public body may be challenged in the Courts by way of judicial review for declaratory relief.

34. If, therefore, a Cabinet Manual were to make any statements considered to be of a legal nature it might be open to third parties to bring proceedings by way of judicial review in the public interest for a declaration that the Cabinet Manual had stated the law incorrectly.

Question 4—Procedural challenges to the processes for creating and/or revising the Cabinet Manual

35. There would appear to be two possible temporal points for a legal challenge to the procedure by which a draft Cabinet Manual becomes converted into a final document. These are:

(i) The fairness of the initial consultation process.[37]
(ii) Any failure to follow a fair (perhaps the same) procedure whenever the Manual comes to be revised. As the Foreword states:

"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. 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".

Question 5—Substantive challenges to the content of the Cabinet Manual

36. If the Cabinet Manual confined its ostensibly descriptive statements to statements of clearly agreed constitutional conventions or day-to-day administrative matters it is unlikely that there would be much, if any, scope for judicial interference.

37. However, at least the current version of the draft Manual intrudes into constitutional matters that could raise judicial hackles. For example:

"In the exercise of its legislative powers, Parliament is sovereign. In practice, however, Parliament has chosen to be constrained in various ways—for example by its commitment to the rule of law, through its Acts, and elements of European and other international law" (Paragraph 9)
"Ministers act pursuant to statutory powers conferred on them by Parliament, to the Royal Prerogative and to inherent or ?common law? powers. They are required to act in accordance with the law. The courts and other bodies have a role in ensuring that ministerial action is carried out lawfully" (Paragraph 12) (underlining added)
"Equally, however, the courts can recognise prerogatives that were previously of doubtful provenance, or adapt old prerogatives to modern circumstances. For example, the Secretary of State's prerogative power to act to maintain law and order where no emergency exists was not widely recognised until identified by the Court of Appeal in 1989" (Paragraph 110)

38. Taking each of these briefly in turn:

39. First, the notion that the rule of law is merely adhered to by Parliament out of choice is by no means uncontroversial. The rule of law is seen by many judges as a prior constitutional check on both Parliament and the Executive.

40. In a recent case in the House of Lords,[38] Lord Steyn made these comments:

"…The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism."

41. What Lord Steyn is saying (and he is not alone)[39] is that Parliamentary sovereignty was created by the judges and could as easily be abolished by the judges. This statement, if correct, suggests that it is (unelected) judges who lay down the ground rules of our constitution.[40]

42. The suggestion that unelected judges may create new and binding constitutional principles under the umbrella of the common law may or may not be correct but it is in direct conflict with the statement of the constitutional position as set out in the draft Cabinet Manual (as cited above).

43. Secondly, the scope of the so-called Ram doctrine by which Ministers may act save as constrained by law in the same way as a natural person because they are emanations of the Crown is highly controversial. Parliamentary Questions have been raised as to its content and its origin is a Ministerial memorandum as opposed to a judgment of the Court.

44. It is instructive to trace through the genesis of the above-mentioned Ram doctrine. It originated as ministerial advice given in 1945 (though only recently made public) given by Granville Ram who was First Parliamentary Counsel between 1937 and 1945. Although legally qualified "Ram was not a lawyer of academic stamp ... He was inclined to be impatient when the niceties of the law or the details of administration got in the way of the form a Bill should take...".[41]

45. That the Ram doctrine was, in such circumstances, likely to be declarative of Ministers' common law powers is highly questionable. Moreover, it seems to be the case that the doctrine has developed creatively in Parliament rather than through the courts. Lord Lester of Herne Hill Q.C. has, for example, observed that:

"Ram did not refer in his memorandum to ministers and their departments as having common law powers which derive from the Crown's status as a corporation sole. That reference to the corporate personality of the Crown is contained in the minister's written answer of 25 February 2003, that glosses Ram's advice." [Underlining added].[42]

46. Once again, therefore, statements that appear in the current version of the draft Cabinet Manual on the source and scope of Ministerial power may be at variance with the correct legal position.

47. Thirdly, the Courts have never held that they can expand the royal prerogative. The statement here appears to derive from the perceived logic of a single case (not analysed in the Manual) (R v Home Secretary, ex p, Northumbria Police Authority[43]) in which the Court of Appeal held that the Secretary of State could maintain a central store which provided police riot equipment both in statute and under the prerogative. However, the Courts have consistently held that the manifestations of the prerogative are fixed and cannot be expanded.

48. The underlying point—relevant to each of the above-mentioned exemplary statements of law contained in the Manual at present—is that if the Cabinet Manual comes to be used as a source of guidance but contains incorrect statements of law it could be the subject of declaratory relief by the Court (see cases such as Royal College of Nursing v. Department of Health and Social Security;[44] Gillick v. West Norfolk and Wisbech Area Health Authority[45] where the Courts granted declarations to settle arguments about the legality of action recommended in circulars issued by Government Departments which themselves had no direct legal force).

49. A possible trend here is that if judges become used to issuing declaratory relief about constitutional matters it may lead to greater judicial involvement in areas that have previously been regarded as "off-limits".

30 January 2011

21 The evidence given here is a much expanded treatment of themes addressed by me in a Paper given to the All Party Parliamentary Group on the Constitution on 17 January 2011 which is published on the website of the Constitution Society UK (www.re-constitution.org.uk). The analysis here goes beyond that in my original Paper. Back

22 The New Zealand Cabinet Manual was launched in 2001 and has proved to be successful in practice. It has been subject to revision and monitoring since then. The scope of public law in New Zealand is quite similar to that in the United Kingdom and, as far as the author is aware, there have been no legal proceedings in which either its content or developmental process has been called into question. Back

23 These words are cited from a Paper delivered by Professor Margaret Wilson to the All Party Parliamentary Group on the Constitution on 17 January 2011 which is published on the website of the Constitution Society UK (see fn 40 above). Back

24 This is so whether or not the intent behind the Manual is intended to have the attributes claimed for the New Zealand Cabinet Manual by Professor Wilson in her above-mentioned Paper, namely that it is intended: (i) to be descriptive rather than prescriptive, (ii) to be subject to revision, (iii) to be designed to promote greater transparency and (iv) not to create a de facto written Constitution. Back

25 This Paper does not seek to comment on the desirability or otherwise of the courts deciding or pronouncing on such questions. One view that has been voiced within the House of Lords (perhaps shared by some members of the House of Commons) and of which I am aware is that there is nothing objectionable in judges deciding these kinds of question and that the process of judicial review creates a more transparent society and more accountable Executive. Back

26 This Question is conceptually separate from the others. If a Cabinet Manual were, indeed, the precursor to a written Constitution its legal status would be the same as that of any written Constitution. It would then alter our entire constitutional arrangements. As explained below, however, I do not consider this to be its effect. The remaining Questions are linked each to the other and address what I have described as the core question of how the judges are likely to treat both the processes by which a Cabinet Manual evolves and the content of such a document. Back

27 See, also, the late Lord Bingham's review of Vernon Bogdanor's "The New British Constitution" (Hart, 2009) in (2010) LQR Volume 126 where these distinctions are also explored. As Lord Bingham explains, the crucial legal distinction in terms of constitutional arrangements is whether or not provisions of a Constitution are entrenched. Back

28 See Richard Gordon "Repairing British Politics-A Blueprint for Constitutional Change" (Hart, 2010) especially the section entitled "Setting the Scene". Back

29 Being purportedly concerned solely with executive Government Back

30 Again, this Paper does not seek to address the merits of a written Constitution in the first sense. Moving to a written Constitution with entrenched provisions as the supreme source of authority has many advocates but this has nothing to do with the legal status of a Cabinet Manual of the type currently envisaged. Back

31 [1976] QB 752 Back