Written evidence submitted by Dr Michael
Pinto-Duschinsky
1. Parts of the proposed Cabinet Manual are elementary:
Lord Norton of Louth has called it a, "Janet and John introduction
to British Government".i However, the document
as a whole presents dangers. These far outweigh the claimed educational
advantages. The Manual's function is unclear. The text slips in
constitutional innovations which are ill considered and arguably
partisan in their effects. Moreover, the under-the-radar manner
in which some of these innovations were introduced is bound in
the end to prove controversial.
2. My brief replies to the first three questions
of the Political and Constitutional Reform committee are as follows:
(1) What are the constitutional consequences
of the publication of the Cabinet Manual by the Government, and
of the process of consultation being adopted?
The Cabinet Manual is controversial in parts because it attempts
to bestow legitimacy on back-door innovations whose political
neutrality is open to question. It thus risks the politicisation
of the role of the Cabinet Secretary and Monarch.
(2) Does the Cabinet Manual accurately reflect
existing laws, conventions and rules?
It is inherently difficult for a written document to do this.
(3) 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?
Yes. In particular the paragraphs concerning governmental
formation.
3. Academic discourse on constitutional matters
in the United Kingdom has tended in recent years to be dominated
by proponents of reform. This camp consists of a relatively tight-knit,
influential elite of experts who put forward views which are not
necessarily representative and which are open to dispute.
In broad terms, the academic reformers prefer the
political arrangements typical in Continental Europe to the Westminster
Model.
The Political and Constitutional Reform Committee
already has heard in details from experts with this approach.
The Committee needs also to consider opposite views.
4. I have extensive experience as an adviser
on constitutional and related matters to international organisations,
governments, public authorities, political parties and NGOs in
over 20 countries. In a previous British general election, I was
tasked with preparing advice for one of the major parties on the
consequences of a hung election which did not materialise. My
experience is summarised in an endnote.ii
5. The background to the proposed Cabinet Manual
is the advice offered in 2009-2010 by a relatively narrow group
of constitutional specialists particularly from the Constitution
Unit at University College London and the Institute for Government
about the constitutional position in the event of a hung parliament
in 2010.
The grounds for criticism of this advice are: (a)
under guise of setting out existing conventions, it advocated
innovations; (b) these unduly favoured the third largest political
party, (c) the advice was promoted on the dubious premises that
a hung parliament risked bringing the Monarch into political controversy
and that it could produce uncertainties on the stock market.
The Cabinet Manual may thus be seen as an attempt
to legitimate controversial novelties
6. I start by addressing in more detail the Committee's
initial question:
"What are the constitutional consequences
of the publication of the Cabinet Manual by the Government, and
of the process of consultation being adopted?"
(a) The claim in the Foreword to the Draft Cabinet
Manual (Page 2) that the Ministerial Code provides a precedent
for the Draft Cabinet Manual is unhelpful and misleading.
There is a distinction between, on the one hand,
advice by the Cabinet Secretary to the Prime Minister and to members
of the Cabinet about very specific matters such as the rules about
their private financial interests and those of family members
and, on the other hand, much more general statements bearing on
the nation's constitutional arrangements as a whole.
The Ministerial Code sets out the rules on such matters
of detail as whether Ministers are able to claim for their personal
use "Air miles" awarded by airlines or the threshold
value of gifts which a Minister is permitted to retain (currently
£140). This obviously is a valuable and precise tool.
By contrast, the Manual covers a much broader field.
(b) Equally misleading is the justification of
the Draft Cabinet Manual in the same Foreword on the ground that
it follows the precedent of a country "with a 'Westminster-style'
system similar to the UK" such as New Zealand. Despite New
Zealand's origin's, its current system cannot now be characterised
as "Westminster-style" since its adoption of proportional
representation means for the national legislature now means that
its party system now has more in common with those of Continental
Europe.
Admittedly, New Zealand had a Cabinet Manual before
it moved to PR, but this is no longer relevant since the existing
Manual reflects the logic of a PR system and not that of the Westminster
Model. It may reasonably be supposed that the appeal to New Zealand
practice is attractive to those wishing to introduce Continental
European models to the UK because it does so in a less obvious
manner.
(c) As mentioned in #2 above, it is inherently
difficult if not impossible for a written document to list existing,
often unwritten, rules, conventions and precedents without interpreting
and changing them in the process. There is a case, in the opinion
of some, for the UK's adopting a comprehensive written constitution.
This would reasonably require extensive public debate and adoption
by a large majority of the electorate (say, two to one) in a referendum
or by an equal margin in the House of Commons. If the Cabinet
Manual is to be regarded as a proto-constitution, it is undesirable
because it will not go through the process of review appropriate
for a basic constitutional document.
(d) Rt Hon Peter Riddell of the Institute for
Government, one of those involved in its preparation, has written
to assure the public that "fears the Cabinet Manual is a
step towards a written constitution are unfounded".iii
The very fact that he felt it necessary to soothe public concern
indicates that there is a real problem about the way its function
is likely to be perceived. If the Manual is to have the radical
effect suggested in Professor Rodney Brazier's memorandum to the
Committee of consigning pre-2010 precedents concerning governmental
formation to history, the problem concerning the Manual's status
and legitimacy is even greater.
The Cabinet Secretary felt obliged to qualify the
document by assurances that the Manual "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". These assurances are unsatisfactory.
For how can the Cabinet Secretary guarantee that it will not have
any legal effect, despite stated intentions to the contrary?
If it is not intended to "direct", and
it is merely is written "from the perspective of the executive
branch of government", what is its value? The Cabinet Secretary's
formulation serves as an emollient but at the expense of storing
up problems for the future.
That the document is to be "owned" by the
executive alone is a weak excuse for escaping full parliamentary
debate and approval.
Lack of clarity about the status of the Manual means
that its contents too must inevitably be unclear.
If the objective is supply to incoming Ministers
an informal constitutional guide without any formal status and
without introducing anything new, the project of a Manual is trivial.
As Norton has noted, the Foreword makes the "quite
remarkable" statement that "… there has never been
a single source of information on how the Government works and
interacts with the Sovereign, Parliament, the judiciary, international
organisations, the Devolved Administrations and local government."
He comments: "I know Whitehall mandarins are supposed to
be a little detached, but has no senior civil servant ever set
eyes on an introductory text on British politics?"iv
In fact, senior mandarins are anything but naïve
and it must be supposed that the objective of the Manual is less
innocent than suggested.
(e) The form of "consultation" that
has been adopted may be the worse either than having no consultation
or a much fuller consultation. Since the document arguably changes
the operation of the British Constitution, the consultation method
is inappropriately obscure. It supplies a fig leaf of consultation
as an easy but inadequate way to legitimate the proposed document.
(f) The Foreword to the Manual gives an inadequate
explanation of its rationale when it refers to the "uncertainty"
of some existing conventions and rules.
Of course there are uncertainties and there always
will be. This is for the simple reason that it is impossible to
anticipate all the eventualities of public life by setting out
the precise course of action in every conceivable future circumstance.
As far as the past is concerned, there is no shortage of lengthy
constitutional commentaries. The attempt to shoe horn every precedent,
convention, rule and practice into a relatively short document
leads to statements which either will be vague generalisations
or, if more precise, will risk being the cause of dispute.
(g) If clarification is the objective, the Manual
frequently fails to provide it since it includes qualifications
and vague terms. As per #362, oversight of arm's length bodies
must be "appropriate". It would be surprising to expect
anything else. According to #396, a department should consult
the Cabinet Secretary "in good time"—whatever
that means. In #399 the prohibition listed applies only "as
a general rule" which needs to be "balanced" against
other considerations. And so on.
(h) Since 1997, there have been many reforms
in the way government and politics in the UK is constituted. In
few cases have their implications been set before the public or
even before the House of Commons in an adequate manner. Greater
caution is required about further initiatives such as the Cabinet
Manual.
7. In further response to the committee's first
question, the consequence of initiatives taken by the Cabinet
Secretary has been to bring him into the limelight and into political
controversy. As Riddell reported, the Cabinet Manual is:
"very much the personal initiative of Sir Gus
O'Donnell, the Cabinet Secretary".v
There has been grumbling about him, in particular
in Conservative Party quarters but reportedly also in parts of
the Labour camp. The lack of consensus about his initiatives has
centred on the arrangements he initiated relating to government
formation following a hung election. Several paragraphs of Chapter
2 of the Cabinet Manual will give rise to continuing concern since
they simply do not set out the traditions of the British Constitution.
Instead, they infiltrate novel practices whose political neutrality
is questionable.
8. There is a crucial distinction between two
different procedures for government formation following a hung
election: First, the traditional procedure according to which
the sitting premier resigns if he or she is unable to form a government
and then the leader of the alternative party with the largest
number of seats then is called to Buckingham Palace so that he
or she can then try to do so. This may be called the "serial"
procedure. Second, there is a procedure typical of countries with
systems of proportional representation. According to this, procedure
the sitting premier remains in office even if he or she is unable
to form a government. The leader of the Opposition is expected
to initiate discussions with smaller parties and largely to agree
the terms of a formal "coalition agreement" prior to
receiving and accepting an invitation from the Monarch to attempt
to do so.
The second of these procedures, which may be called
the "auction" procedure, is to the advantage of smaller
parties. In the British context, the auction procedure clearly
benefits the Liberal Democrats because it enables the party to
play the two largest ones off against each other in order to gain
concessions, especially on electoral reform.
9. By advocating the second of these procedures,
the Cabinet Manual not only seeks to legitimate something unknown
before 2010, it also acts to the advantage of the Liberal Democrats.
Clearly, a smaller "pivot" party (to use
Bogdanor's term) stands to gain if it is able to play off the
two main parties against each other. This was the tactic recommended
to the Liberal Democrat leader by Professor Hazell shortly before
the 2010 poll.vi In this article in the Guardian, Hazell
exchanged the role of constitutional expert for that of Liberal
Democrat adviser. The piece was titled, "A memo to Nick
Clegg: In a hung parliament the Lib Dems could at last end the
two party system. So, Nick, here's what you should do."
The core strategy was to create an auction situation where the
two main parties bid against each other on the issue of electoral
reform. Hazell advised Clegg to:
"conduct simultaneous negotiations with both
parties, to see which party is willing to offer the better deal".
The effects of the auction situation in 2010 are
open to dispute. According to some authoritative commentators,
such as Norton and Riddell, the outcome was determined by electoral
arithmetic, the personal chemistry between David Cameron and Nick
Clegg and Cameron's political judgement that a comprehensive coalition
agreement with the Liberal Democrats was in the Conservatives'
interest.
There are grounds, however, for suggesting that Cameron's
vital concession on an electoral reform referendum was the direct
result of the "auction" procedure which had been facilitated
and encouraged by the Cabinet Secretary in concert with the constitutional
reformers.
Even if it is accepted that the auction procedure
was not decisive in determining the emergence of the Conservative-Liberal
Democrat coalition agreement in 2010, it remains the case that
the auction procedure apparently favoured by the Draft Cabinet
Manual is likely after any future hung elections to favour the
"pivot" party. And it is, after all, potential future
situations which are the subject of Chapter 2 of the Manual.
10. Essential to the simultaneous procedure is
that the sitting premier should not resign until talks about a
coalition agreement between other political parties are well advanced.
According to #50 of the Draft Cabinet Manual:
"The incumbent Prime Minister is not expected
to resign until it is clear that there is somebody 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."
There are several objections to this formulation.
(a) It is ambiguous. In its weak form, it states
correctly that an incumbent premier cannot be required to resign
until he or she has been defeated in the house of Commons. However,
the formulation implies something stronger, namely that the incumbent
premier who feels unable to form a government following a hung
election is "expected" to delay resigning until a group
of other parties has hammered out a coalition agreement.
That the latter interpretation is the one intended
emerges from a press article written shortly before the 2010 election
by Hazell. He had been closely involved with the Cabinet Secretary
in the Cabinet Manual project and one of his staff, Dr Ben Yong,
had been seconded in February 2010 to the Ministry of Justice
to work on the manual.
Hazell wrote on 3 May 2010, shortly before the 2010
poll, that, in the event of a hung parliament in which Gordon
Brown received considerably fewer seats that the Conservatives,
Brown would have a:
"duty to stay in office until it becomes clear
which party or combination of parties can command the most support
in the new Parliament."
He then went even further:
"… the Queen would not wish to accept his
resignation until it was clear who could command confidence in
his place."vii
(b) The example of 1929—when a sitting
premier headed the defeated party in a hung election as in 2010—does
not accord with the stronger meaning of #50 of the Cabinet Manual,
certainly not as interpreted by Hazell. The incumbent Prime Minister,
Stanley Baldwin was under no "expectation" and under
no "duty" to delay his resignation. He:
"consulted constitutional experts who assured
him that it was in the Prime minister's hands to do as he chose"
Baldwin duly went to Windsor Castle without delay
to tender his resignation to King George V.viii
(c) #50 contrasts with the position as set out
in a Standard Note produced in December 2009 by the Parliament
and Constitution Centre of the House of Commonsix and
by the formulation in a standard constitutional law text by AW
Bradley and KD Ewing.x
"Where after an election no one party has an
absolute majority in the House … the Porime Minister in office
may decide to wait until Parliament resumes to see whether he
or she can obtain a majority in the new House with support from
another party … or he may resign without waiting for Parliament
to meet (as Baldwin did in 1929 and Heath in 1974). When he or
she has resigned, the Queen will send for the leader of the party
with the largest number of seats …"
Only when the leader of the Opposition fails to form
a government may the Queen, according to Bradley and Ewing, then
initiate coalition discussions between the parties.
Bradley and Ewing make no mention of any "expectation"
that the incumbent premier delay resigning to allow coalition
discussions to proceed.
(d) It is understood that after the 2010 election,
the Cabinet Secretary and the Queen's Private Secretary at one
point asked Gordon Brown to delay submitting his resignation to
the Queen. The constitutional basis for this is uncertain. In
my opinion, a premier's decision to resign after a hung election
should purely be a political matter and neither the Cabinet Secretary
nor the Palace should seek to influence its timing.
If #50 is intended to mean no more than that the
incumbent Prime Minister is entitled after a hung general election
to wait until the House of Commons has met before submitted his
or her resignation, the wording should be altered to this effect.
If the intention—as Brazier suggests in his
memorandum—is to convey a sense of duty on the premier NOT
to resign, then the constitutional basis for this needs to be
justified.
11. According to #49:
"Where a range of different administrations
could potentially be formed, discussions will take place between
political parties on who should form the next government."
This absolute formulation involves a change in the
British Constitution. After the 1929 election, for example, Baldwin
did not enter into any discussion with the Labour or Liberal Parties.
He merely resigned, as he was fully entitled to do.
According to established constitutional practice,
the Queen may invite a party leader on an exploratory basis to
attempt to form a government. The idea that coalition negotiations
should be well advanced before the Queen issues such an invitation
is a controversial innovation.
12. According to # 51:
"Any negotiations between political parties
over the formation of a stable government need to be as well informed
as possible …"
Though this wording appears to express a truism,
it incorporates assumptions that are new to British politics—namely
that the aim after a hung election should a formal coalition agreement
including policy details based partly on the advice of civil servants.
13. The caretaker conventions mentioned in #54
are a novelty. They are based on the assumption of a fairly long
interregnum during which different parties hammer out a detailed
coalition agreement. This reflects the Continental European rather
than the traditional UK situation.
14. There has been a concerted attempt by the
constitutional reformers to manage public expectations and to
"educate" the media to love coalitions. This is not
a legitimate objective of a Cabinet Manual. It should be for politicians,
political parties, the press and the public, not civil service
mandarins, to debate the relative merits of the Westminster Model
and that of Western European countries.
As far as "expectations" (as distinct from
constitutional rights and obligations) are concerned. It may reasonably
be argued that the expectation was that Gordon Brown should have
recognised the verdict of the voters and resigned very shortly
after the results of the 2010 poll came in. Certainly, he had
the right to await defeat in the House of Commons or to soldier
on in the hope that he could cobble together a bare multi-party
coalition. However, the principal function of his remaining was
to allow the Liberal Democrats to secure from the Conservatives
the concession on an electoral reform referendum.
15. Far from insulating the Queen from political
pressures, the actions of the Cabinet Secretary in pressing before
the 2010 election for what effectively were new rules about government
formation in a hung parliament arguably risked doing the opposite.
If, as has been suggested, the new arrangements were potentially
to the advantage of the third party, they thereby were partisan.
For this reason, the Palace should not have been expected to be
involved in them.
16. The manner in which the Justice Committee
of the House of Commons was involved in February 2011 in rushed
hearings on the preliminary draft of Chapter 2 of the Cabinet
Manual is a matter of further concern. According to the authors
of The British General Election of 2010, was merely "a vehicle
for the Cabinet Office".xi
ENDNOTES
i nortonview.wordpress.com/2010/12/22/the-draft-cabinet-manual
ii I have been
a constitutional advisor to the Constitutional Reform Commission
in Fiji (on behalf of the Commission, the United Nations and the
UK Government), to the ill-fated Constitutional Review Commission
in Zimbabwe, to the Supreme Rada in Ukraine, and the Civic Democratic
Party in Czechoslovakia. I have been a consultant on electoral
and related matters to the United Nations, World Bank, OECD, European
Union, Council of Europe, Commonwealth Secretariat, Inter-American
Development Bank, the United States Agency for International Development,
Canadian Royal Commission on Electoral Reform and Party Financing,
the Canadian International Development Agency, the National Endowment
for Democracy and International IDEA. I have advised governments
and public bodies on related subjects in Albania, British Virgin
Islands, Bulgaria, Chile, Colombia, France, Ireland, Kenya, Kosovo,
Lithuania, Macedonia, Mauritius, Nigeria, Philippines, Poland,
Russia, Senegal, Serbia, Tanzania, and Ukraine. I have been an
expert legal witness in the UK and South Africa, a consultant
to the Policy Planning Staff of the Foreign & Commonwealth
Office, Cabinet Office, Home Office, the Department for International
Development and the Committee on Standards in Public Life. I was
a founder governor of the Westminster Foundation for Democracy
and a founder member of the steering committee of the World Movement
for Democracy. I am president of the International Political Science
Association's research committee on political finance and political
corruption, member of the academic panel of the Committee on Standards
in Public Life, a director of the International Foundation for
Electoral Systems and a former research fellow of Merton College,
Oxford, Pembroke College, Oxford, and Brunel University.
iii www.institutefor
government.org.uk/blog/1398/why-fears-the-cabinet-manual-is-a-step-towards-a-written-constitution-are.unfounded.
iv nortonview.wordpress.com/2010/12/22/the-draft-cabinet-manual
v Ibid.
vi 26 April 2010.
See also his article in the Mail of 3 May 2010.
vii Mail Online
3 May 2010.
viii See Keith
Middlemass and John Barnes, Baldwin: a biography. London:
Weidenfeld & Nicolson, 1969, page 527.
ix Lucinda Maer
and Oonagh Gay, "The Royal Prerogative." SN/PC/03861,
30 December 2009, page 5. Their formulation mirrors that of Bradley
and Ewing.
x Constitutional
and Administrative Law: Harlow: Pearson Longman, 14th edition,
pages 247-8.
xi Page 205.
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