Constitutional Implications of the Cabinet Manual

Written evidence submitted by Rodney Brazier

Professor of Constitutional Law in the University of Manchester

Introduction

1 Well before the May 2010 General Election Sir Gus O’Donnell asked me and others outside government to help to develop the first draft of the chapter on Elections and Government Formation (which is now chapter 2 in this version of the Cabinet Manual). That draft chapter was, of course, published in good time for that election. Subsequently I have given the Cabinet Office written and oral comments on all of the other draft chapters. I am very pleased to try to help the Political and Constitutional Reform Committee with its work on the document, and to try to answer the five questions set by it.

The Committee’s five questions

Q1 What are the constitutional consequences of the publication of the Cabinet Manual by the Government, and of the process of consultation being adopted?

2 Despite the dull title of Cabinet Manual given to this document, its publication ignited a debate about whether it is a step towards, or even a draft of, a "written constitution" for the United Kingdom. Clearly if it were any such thing it would have major constitutional consequences. But it is not, and should not be seen as, a putative Constitution of the United Kingdom. I hope to persuade the Committee of that, and to urge it to help to explain widely why it is not.

3 One pedantic point should be cleared out of the way first. The British constitution is already a written constitution. Most of its provisions are in writing. But that writing is notoriously scattered around innumerable statutes, judicial decisions, EU law, constitutional conventions (which have been written about by constitutional commentators, and some have been codified, e.g. in the Ministerial Code), codes of practice, and so on. If the United Kingdom truly had an "unwritten constitution" it would exist only in the minds of the knowing, who would explain it orally – which is clearly nonsense. What is really meant by the phrase "a written constitution" is a codified constitution. Such a constitution is one principal document, coherently structured, comprehensive, and which gives the main rules about the governance of a country. Most states have such a constitution: the United Kingdom does not.

4 The discussion about the precise nature of the draft Cabinet Manual (hereafter "the draft") arises for a number of reasons. It is designed to speak to two very different audiences – never an easy thing to do from the same text. The Foreword says it is " ... primarily written as a guide for members of the Cabinet, other ministers, and Civil Servants, but it will also ... inform the public whom the Government serves" (draft, p 1). Perhaps one result of this is that the draft is longer than it might otherwise be, because matters which might be well known to the main audience must be spelled out so as to make sense to the interested citizen. Again, by seeking to correct the lack of "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" (draft, p 2), the scope and breadth of the paper is possibly wider than it would be if it were aimed only at those who work Cabinet government. It is that scope which may give the impression that this document may be more than a very helpful guide for Ministers, officials, and interested citizens and could be seen, mistakenly, for a draft codified constitution.

5 If substantive official steps ever were to be taken to codify the British constitution then this draft would undoubtedly be a relevant and very helpful starting reference point, but no more than that. The issues which would be involved in such an exercise would be many, several would be tricky, and the methods used would be crucial. The task would not be impossible. But it would be difficult, and the primary question (which I won’t pursue further here) would be whether such a code was wanted or needed. By posing a number of questions the difference between the present document and any attempt to write a codified British constitution should become much clearer.

(a) The methodology adopted would be crucial. How could as broad a consensus as possible be formed about the content of such a code? (Certainly the present consultation exercise would not do.) Could codification sensibly be started given that several constitutional loose ends are currently in hand – not least reform of the second chamber? (There are always such loose ends of one kind or another.) Who would draft the code? (Not, I suggest, the Cabinet Office.) What would be the role of Parliament and the people in forming and adopting it?

(b) Then there is the crucial question of form. What exactly would a codified British constitution look like? Would it just codify today’s constitution, or would it codify the status quo but with improvements (reforms), or would its drafters, as with today’s Labour Party, take blank sheets of paper and start again?

(c) What would be done with constitutional conventions – would all or some be included in the text as rules of law, or would they be codified separately but in a non-legal form (as in Australia), or would they be left as they are now?

(d) Would the code be written in the form of detailed rules, reducing the scope for judicial interpretation (as, say, with the German Basic Law), or would it be expressed in broader principles, leaving the legislature, the judiciary, and executive discretion to fill in the gaps (as, for instance, with much of the French Constitution) – or would there be some British compromise?

(e) Would the codified constitution be – in law could it be – protected in some way against amendment or repeal by ordinary legislation? [1]

6 Questions of that kind put the present draft into a clearer constitutional perspective. They show how far away we will be from a codified British constitution even when the Cabinet Manual is published in its final form. Even anyone who rejects my argument must concede that the draft is not a complete one for a British constitution. Where is the statement of basic constitutional principles? Where is the Bill of Rights? And so on.

7 What, then, are "the constitutional consequences of the publication of the Cabinet Manual by the Government?"

(a) Although not a draft constitution, it would be one valuable source of information, among others, ready for anyone who was to toil to produce one. It does not seek to alter the current bases of the current constitution (draft, p 3). [2] It will help interested citizens today by providing a code, informal in character (in the sense of not setting the constitution into legal rules), which is accessible, and a first port of call for an overview of important parts of that constitution. Everyone can be better informed as a result of this publication, and that is a constitutional good. True, the Guardian newspaper dismissed it in an editorial on 15 December 2010 as "more of a constitutional mouse than a constitutional lion", but its authors should take that not as withering criticism but as a complement to the achievement of their aims.

(b) The draft sets out in a single text many of Britain’s principal constitutional arrangements, and it will be signed off by the Cabinet. There has never been such an official text before. That is another constitutional good.

(c) The draft seeks to guide, not to direct. It is not intended to have any legal effect (see the draft, p 3). That produces the advantages just noted without exciting controversies that would have been caused had it been, say, expressed as draft legislation.

(d) The draft will be a living document, reviewed regularly to reflect Britain’s constantly evolving constitution (see the draft, p 7). It will not just be a guide to major parts of the constitution as they are in 2011.

(e) Assuming that the document is, as planned, approved by the Cabinet (see the draft, p 1), two political parties (or at least their leaders and Ministers) will have accepted it. As I have commented to the Cabinet Office, the status of the document would be enhanced considerably if it were to be endorsed as well by the Labour Party, as the official Opposition. All the three main parties (and other parties if possible) represented in the House of Commons would then accept that this significant statement of constitutional practice guides us all. Such a consensus would be markedly preferable to having a Cabinet Office document endorsed only by the Government. Constitutional matters should, in my opinion, enjoy the widest-possible acceptance in any state. As things stand, this document will be "owned" by the Cabinet. I would prefer that ownership to extend further – indeed, ideally by being endorsed by both Houses of Parliament as well. Perhaps in that latter case its title might be changed to something like the United Kingdom Governance Manual.

(f) The PCRC, other committees of Parliament, and Parliament itself will be able to give their opinions during the three-month consultation period. I believe that that method of consultation – bearing in mind subpara (e) above, and on my assumption (elaborated below) that the draft in the main accurately reflects aspects of the current constitution – is appropriate.

Q2 Does the Cabinet Manual accurately reflect existing laws, conventions and rules?

8 With two caveats, my answer is "Yes".

9 My first caveat is that no one person is so learned as to be able to speak with unimpeachable authority on every issue within this draft or within the whole British constitution. I, for example, would probably do badly in any exam on the minutiae of chapters 8 (Devolution), 9 (Europe), and 10 (Government finance), although I would hope to do rather better in a test on the other chapters, and particularly on chapter 1 (The Sovereign).

10 Secondly, I repeat three (of nine) detailed points which I have already made to the Cabinet Office (and which might well have been taken into account already). These three are of some significance for the sake of accuracy.

(a) The draft implies (in para 61, line 3) that some Parliaments are dissolved by operation of law because they have reached their five-year statutory maximum. The draft speaks of Parliaments "more normally" being dissolved at the Prime Minister’s request before that time is reached. No Parliament was dissolved by operation of law in the nineteenth or twentieth centuries (or possibly before that for all I know). Some redrafting is needed there.

(b) The explanation (in para 187) of the effects of the Parliament Acts – crucial in cases of irresolvable legislative disputes between the two Houses – is exceptionally brief. This is unhelpful in relation to a major constitutional mechanism.

(c) The treatment of the Freedom of Information Act (para 389) needs revision to reflect the extension of exemptions beyond the Sovereign to others in the Royal Family provided for by the Constitutional Reform and Governance Act 2010, s 46, Schedule 7, para 3.

Q3 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?

11 Again within the scope of my expertise, and with four caveats this time, my answer is "No".

12 The caveats concern some items in chapter 2 (Elections and Government Formation).

13 The publication of this chapter as a free-standing, earlier, draft was a bold decision, given that the notoriously tricky questions which can be thrown up by the return of a hung Parliament had never before been addressed in any official text, rather than by constitutional commentators. The decision to do this was immensely helpful, not least to the media, whose questions about "who does what and to whom and when" were answered in that chapter. The draft available at the time of the May 2010 General Election had been examined minutely by constitutional experts at the Cabinet Office’s request.

14 In four respects, however, the current draft chapter indicates changes in practice – for the better, in my opinion.

(a) Political decisions should be arrived at by politicians, not, if possible, by the Sovereign. That precept is especially important in the highly-charged political atmosphere which exists after the election of a hung Parliament. In that case, the political parties should sort out a solution without intervention from Buckingham Palace. In February 1974 the political parties accepted a new (minority Labour) Government without any royal intervention. In earlier such Parliaments in the twentieth century the Sovereign’s Private Secretary had played a significant, albeit discreet, role in finding a new Prime Minister. Thus Lord Stamfordham was active after the Elections of both 1923 and 1929. Draft chapter 2 puts flesh on that basic principle by explaining (in effect) that Buckingham Palace should not take an active role, but should follow the 1974 precedent. Indeed, the draft states that "The Sovereign would not expect to become involved in such negotiations ..." (draft, para 49). And the document doesn’t refer to The Queen’s Private Secretary at all (there is one mention of "the Palace" in para 49), [3] whereas the draft explicitly assigns to the Cabinet Secretary and the civil service a major role in facilitating inter-party negotiations after any inconclusive General Election – superbly exercised, if I may say so, in May 2010. The old precedents on hung Parliaments, rehearsed in all the constitutional law books, must now be read as historical material only. In May 2010 draft chapter 2 was, and will remain, the key constitutional source, with the office of The Queen’s Private Secretary being airbrushed out of the picture – rightly, because this underlines the political and official, rather than any royal, obligations (unless, of course, royal intervention turns out in any case to be unavoidable). (The draft makes it clear, however and quite rightly, that only the Sovereign continues to have the constitutional and legal power to appoint a Prime Minister (see paras 19, 46, 47), and retains reserve powers to act in wholly exceptional constitutional circumstances without or against ministerial advice (including the power to refuse a dissolution, to dismiss a Prime Minister and to appoint a new one (paras 6, 58, 59)).

(b) My second caveat concerns what the draft says about a point on the transfer of power between one Prime Minister and the appointment of the next. Again, I stress immediately that any change which there may be here is for the better. The draft, para 50, says in the context of a hung Parliament that "The incumbent Prime Minister is not expected to resign until it is clear that there is someone 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." I haven’t checked this text against the May 2010 version, but it may be that the current wording places a clearer duty than did the original text on the sitting Prime Minister to stay in office until a successor and the form of that successor’s Government is clear. It has entered at least the oral narrative about the coming to office of the Coalition Government that Mr Brown insisted on resigning before Mr Cameron had concluded a final coalition agreement, and that when The Queen invited him to an audience Mr Cameron could not say with complete confidence what type of Government he would form. In future it will be clear that a defeated Prime Minister has a constitutional obligation (albeit one based only on the non-legal text just cited) to ensure that Britain always has a Prime Minister after an inconclusive General Election, so that therefore he or she should not resign until the proposed transfer of power is clear. He or she may be anxious to resign, as in the end was Mr Brown. But it will be possible for a defeated occupant of No 10 to remain, and to point to this draft to explain that this was being done for constitutional reasons, not from any low motive of wishing to cling to the levers of power. Not all the media may choose to take the point, but there it is.

(c) The third caveat which reflects a change from previous practice in draft chapter 2 is to note that the "caretaker" understandings which have operated after the announcement of an election are extended to cover any post-poll negotiations necessary to identify a Government which would enjoy the confidence of the House of Commons (draft, paras 67 – 70, especially 70). Ministers in such a case are advised to "observe discretion in initiating any action or making any commitment of a continuing or long-term character" after the election, as well as (as has been customary) before it. This change in my opinion is very desirable. A Government that has lost an overall majority should not have the same freedom of action enjoyed by one which has the confidence of, or although in a minority may be tolerated by, the House of Commons.

(d) My final caveat which indicates a change to earlier practice is that, with the Prime Minister’s consent, the civil service may support political parties who seek to form a stable Government in a hung Parliament (draft, paras 51 – 53). No such support was made available after previous inconclusive General Elections. Again, in my view, this change is constitutionally wise. Its value was shown in the May 2010 negotiations between the political parties.

Q4 Are there matters that are not adequately reflected in the Cabinet Manual?

15 Given what I have already said, I answer "No" to this question. If the document purported to be more than an informative guide – perhaps a first draft of a codified constitution – then several things would be missing. Where, for example, is the Bill of Rights, or a detailed explanation of the structure and powers of the judiciary, or a clear exposition of basic constitutional principles which underlie the constitution, such as the rule of law, and the separation of powers? But because the draft is nothing of the kind, and given that it is "written from the perspective of the Executive branch of government" (draft, p 3), it does the job that it is intended to do.

Q5 Are there matters currently included in the Cabinet Manual that should not be, or that should be given lesser prominence?

16 In general, my answer is "No".

17 If this draft Cabinet Manual were conceived so as better to inform Ministers and civil servants only – that is, if interested citizens were not among its planned readership – then there would be areas where too much detailed information is given. I take chapter 1 (The Sovereign) by way of example. Why would all overworked Ministers and officials throughout Whitehall need or want to know the details concerning royal succession, coronations, arrangements in a Sovereign’s absence or incapacity, or the Established Church? Such matters presumably concern primarily No 10, Buckingham Palace, and the Cabinet Office: Ministers in (say) DEFRA, and no doubt elsewhere, would not be much concerned by such constitutional issues. But given that the document is also aimed at interested citizens who might want a full summary of the topics embraced in the draft, such detail is justifiable.

Conclusion

18 I believe that congratulations are due to those who conceived and drafted this important and helpful document (even more user-friendly if it were to be given an index). It will for the first time enable Ministers and citizens, officials and parliamentarians, each and all, to see more clearly many of the commanding heights of the British constitution.

7 December 2011