Constitutional Implications of the Cabinet Manual

Written evidence submitted by Professor Iain McLean, Oxford University

Response from Iain McLean to Committee’s Press release of 16 December 2010.

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, 1885-6, and 1892-3. 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: i.e., 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, e.g, 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 (e.g., p2, second paragraph) to the Ministerial Code. That in turn refers to other constitutional or quasi-constitutional documents, e.g., 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.

This draft 17 January 2011