Written evidence submitted by Professor
Vernon Bogdanor, King's College London
I am very glad that the draft Manual has been published.
I believe that it was right for the civil service to produce such
a document on behalf of the government of the day. It seems to
me a great step forward towards making government more transparent
and comprehensible to the citizen. But the precise constitutional
status of the Manual is far from clear.
The Manual is intended as a guide to practice rather
than a normative statement. It includes, therefore, matters which
might perhaps be best described as usages, and which are not really
of constitutional importance. For example, the Manual notes that
the Cabinet currently meets on Tuesday mornings. If the Cabinet
decided to meet on Wednesday mornings instead, the constitution
would not suffer. But the Manual also describes important conventions,
for example, ministerial responsibility, which are part of the
morality of the constitution, and which would no doubt form part
of a codified constitution were we ever to develop one. Obviously
it is not possible for a government to alter the rule of ministerial
responsibility. It is reasonable to suggest that usages are mostly
"owned" by the government in that they could be altered
by a future government if it so wished; but conventions are not
so owned. My understanding is that in New Zealand it is held that
the Cabinet Manual as a whole is `owned' by the government, but
this seems odd since there are obviously some rules which the
government cannot alter. Perhaps this distinction ought to be
drawn in a revised version of the Manual, and it should be made
clear which of the rules described are within the power of a government
to alter at its discretion and which are not.
Some matters are either not discussed at all or discussed
only very briefly. For example:
- 1. The procedures to be followed in the case
of war cabinets.
- 2. The procedures to be followed in the case
of national emergencies.
- 3. The constitutional status of the intelligence
service.
- 4. The Salisbury convention in relation to
disputes between the Lords and Commons. Methods of resolving disagreements
between the houses.
- 5. The central/local concordat of 2007 between
central government and local authorities.
- 6. The government of London, which has the
first directly elected mayor in British history.
- 7. Directly elected mayors and the referendum
procedure.
Ought these matters not be given fuller treatment?
There are also some detailed matters.
Paragraphs 1, 3, 4, 9 and 286 - and perhaps elsewhere
- refer to a sovereign Parliament. In doing so, the draft Manual
takes sides on a matter which is much disputed by constitutional
lawyers - viz. - whether the United Kingdom in joining
the European Community in 1973 surrendered its sovereignty. In
the view of some, the European Union constitutes a legal order
superior to that of the member states. The present government
of course takes a different view. Nevertheless, might it not avoid
controversy were the word `sovereign' to be replaced by `supreme',
a word which has no metaphysical connotations?
In paragraph 4, it is said that `the sovereignty
of Parliament is therefore unrestrained by such a court'. Does
not this beg the question of whether Parliament is bound by judgments
of the European Court of Justice? Some interpretations of Factortame
would suggest that it is.
I believe that paragraph 50 is mistaken, and could
lead to a clash between an incumbent Prime Minister, the Cabinet
Office and the Palace. The incumbent Prime Minister has a right
to remain after an election in a situation where no single party
enjoys a majority, but not, in my view, a duty. The decision as
to when to resign is in my view a political one with no constitutional
implications. In any case, I am not clear what is the provenance
of the proposed rule as stated in the draft Manual. There seems
no obvious precedent, and no basis for the proposed rule.
17 February 2011
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