Written evidence submitted by Professor
Iain McLean, Oxford University
1. I am a professor of politics at Oxford University
and author, most recently, of What's Wrong with the British
Constitution? (Oxford University Press 2010). I was a member
of the Independent Expert Group, Calman Commission on Scottish
Devolution, 2008-09. I am a Fellow of the British Academy.
2. I respond below to some of the Committee's
questions. This supplements my message to the Committee of 20
December 2010, which enclosed my original response to the Cabinet
Office, covering the use of the word Sovereign; the position
of those who refuse to swear oaths; and the Scottish and English
church oaths taken by a new Monarch.
What are the constitutional consequences of the
publication of the Cabinet Manual by the Government, and of the
process of consultation being adopted?
3. The constitutional consequences are excellent.
In my What's Wrong...? I criticised earlier ways of stating
constitutional conventions. For example, an anonymous letter to
The Times in 1950 signed "Senex", who was believed
to be the Private Secretary to George VI, stated that certain
constitutional conventions should not be revealed to the public.
4. I also have comments on the constitutional
consequences of some individual paragraphs, of the Draft Cabinet
Manual, as under:
5. Paragraph 46 removes a dangerous confusion.
Previously, constitutional texts conflated "the leader of
the largest party" and "the person ... most likely to
be able to command the confidence of the House". As they
may, obviously, be different people, the wording of Paragraph
46 is a clear improvement.
6. The constitutional consequence is that it
removes the temptation (or the need) for Monarchs to be drawn
into active Prime Minister-making, as they were in 1834, 1880,
1886, 1892, 1893, 1910, 1931, and 1963; and as tempted in 1913
(discussed below). I think this is a desirable consequence.
7. Does para. 48 adequately cover the events
of May 2010, or any future repetition of them? On the whole, I
think so. Some have argued that Nick Clegg's announcement on the
morning after the General Election that he was entering talks
with the leader of the party that had won the most seats and votes
undermined either the convention outlined in para. 48, or the
position of Prime Minister Gordon Brown, or both. I think that
any fault lies rather with journalists and others who accused
PM Brown of "squatting" and other forms of improper
behaviour, until his resignation. It is now clear that his behaviour
was entirely proper.
Does the Cabinet Manual accurately reflect existing
laws, conventions and rules?
8. In the subsection European Union and other
international law (paras 17 and 18) there should be a specific
reference to the Human Rights Act 1998's incorporation of the
European Convention on Human Rights, and of the jurisprudence
of the European Court of Human Rights. There could then be a cross-reference
to the detailed discussion at paras 248-50 and 321-2.
9. There is a minor inconsistency at para 26,
(restrictions on the powers of a Regent) with its reference to
"as before, to assent to any Bill for ... repealing or altering
the Act preserving the system of Presbyterian system of Church
government in Scotland". But that Act has not yet been mentioned
in the draft Manual. If its mention in para. 37 is moved up, as
I have already recommended, to para. 24, the inconsistency disappears.
10. I find paragraph 59 troubling. It is one
of those that may have to be changed in the light of the progress
made by the Fixed-term Parliaments Bill. In my What's Wrong
with the British Constitution? I analyse the most recent known
occasion on which the Monarch and/or his advisers threatened to
use the reserve powers to dismiss the Prime Minister or make a
personal choice of successor. This was in 1913, when King George
V was being pressed by the Opposition, and certain law professors
and military officers, to do this. He passed his concerns on to
Prime Minister Asquith, who wrote in reply:
The Sovereign undoubtedly has the power of changing
his advisers, but it is relevant to point out that there has been,
during the last 130 years, one occasion only on which the King
has dismissed the Ministry which still possessed the confidence
of the House of Commons. This was in 1834, when William IV
(one of the least wise of British monarchs) called upon Lord Melbourne
to resign. He took advantage (as we now know) of a hint improvidently
given by Lord Melbourne himself, but the proceeding was neither
well advised nor fortunate. The dissolution which followed left
Sir R. Peel in a minority, and Lord Melbourne and his friends
in a few months returned to power, which they held for the next
six years. The authority of the Crown was disparaged, and Queen
Victoria, during her long reign, was careful never to repeat the
mistake of her predecessor. (HHA to KGV, [11] Sept. 1913. Underlined
passage was underlined by recipient. Source: Royal Archives, quoted
in McLean, What's Wrong... , appendix to Chapter 12).
11. Asquith was a master of this sort of correspondence.
His reference to Queen Victoria is particularly subtle, since
the king's advisers knew that she had come very close to repeating
William IV's mistake in 1880, 1885-86, and 1892-93. Only the refusal
of Unionist politicians to help her block Liberal governments
led by Gladstone and Rosebery had prevented her from meddling
with the electorate's choice on those three occasions. Asquith's
letter implicitly warns the king's secretaries against encouraging
any repetition of his grandmother's attempts to undermine democracy.
12. Asquith's handling of George V and his advisers
in 1913-14 may likewise have saved the Monarchy from itself and
its advisers. In the end, George V did not use his reserve powers.
If he had used them, he would have been become openly partisan
in the bitter party politics of the day. As the powers have not
been used in the UK since 1834, and then by "one of the least
wise of British monarchs", I recommend that paragraph 59
of the Manual be rewritten, or even deleted.
13. If rewritten, it should say that the reserve
powers are in desuetude. It should note that they were last used
in 1834, in a way that undermined the respect in which the Monarchy
was held. It should also refer to the use of the power made by
the Governor-General of Australia, Sir John Kerr, on 11 November
1975, which has had seriously damaging effects on the standing
of the Monarchy in Australia.
14. The paragraph may need further rewriting
if and when plans for an elected Upper House make progress. In
that case, the UK will be in the same situation as Australia in
1975: ie, a mechanism for breaking deadlock between the houses,
in the case of divided government, will be needed. Such mechanism
must not encourage the Monarch to take sides, as Sir John Kerr
did.
15. At para. 78 "The Prime Minister's other
responsibilities include recommending a number of appointments
to the sovereign. These include high ranking members of the Church
of England..." How (if at all) should this be changed in
the light of Prime Minister Brown's announcement of his Government's
withdrawal from these appointments in the Governance of Britain
Green Paper of July 2007?
16. At para. 100, note 17, the statutory definition
of Secretary of State is circular. This is not the fault
of the Cabinet Manual, and should be referred to the Law Commission
or other competent body.
17. At para. 108, the power to deploy armed forces
is defined as a prerogative power. How is this affected by the
decision of the previous Government that any proposal to deploy
troops will be put before Parliament?
18. At para 287 the last sentence ("Government
places no conditions on expenditure of the Devolved administrations")
seems too sweeping, as Government may place conditions on their
capital expenditure (see, eg, Statement of Funding Policy
2010 edition para. 2.20).
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?
19. I am not aware that the procedure outlined
in paras 51-55 was ever used before 2010. However, the events
of 2010 now constitute a precedent, one which I support.
Are there matters that are not adequately reflected
in the Cabinet Manual?
20. At para. 56, "the Prime Minister is
expected to tender the Government's resignation, unless circumstances
allow him or her to opt instead to request dissolution".
What circumstances are these? This is a key point, which should
be clarified. I do not think that the current para. 58 clarifies
this point.
21. The Cabinet Manual refers (eg, p2, second
paragraph) to the Ministerial Code. That in turn refers to other
constitutional or quasi-constitutional documents, eg, at 5.1 and
5.2 of the Ministerial Code to the "Civil Service Code
and the requirements of the Constitutional Reform and Governance
Act 2010... [and] the Principles of Scientific Advice to
Government".
22. There are more detailed cross-references
to the Civil Service Code at paras 265 sqq of the Cabinet Manual
draft. It is inconvenient to have to refer back to a chain of
documents in this way. It would be better if the Cabinet Office
could produce an omnibus Manual, opening with the governing statutes,
and continuing with an amalgamated list of conventions, including
(as relevant) the Civil Service Code, the Ministerial
Code, and the Cabinet Manual in a single document.
3 January 2011
| 
