Constitutional Implications of the Cabinet Manual

Written evidence submitted by Mark Ryan,Coventry University

1. My name is Mark Ryan and I am a Senior Lecturer in Constitutional and Administrative Law at Coventry University. I have a particular interest in constitutional reform and in recent years I have submitted written evidence to a number of parliamentary committees. My submission, however, is made in my own personal capacity and indicates my personal observations on the Draft Cabinet Manual. It in no way reflects the views of my employers (Coventry University).

2. Question 1: At the outset the point must be made that the Draft Cabinet Manual is to welcomed. It will be of particular use to a wider audience (other than Government) as it provides a very general overview of our uncodified constitutional arrangements (albeit with a specific emphasis on Government within the constitution). It is a valuable and accessible document in that it uses plain English which is devoid of complex and convoluted legalese.

3. In terms of the consultation process, the question has to be raised as to whether a three month period (i.e. until March 2011) is really sufficient given the breadth of the subject manner detailed in the Draft. After all, the Draft is not a narrow examination of one minor aspect of our constitution. In fact, in the final analysis, time is hardly of the essence in relation to the publication of the final Cabinet Manual document.

4. Questions 2/3: Although the time to examine the Draft in fine detail was somewhat limited (in order to meet the 10th January deadline), the Draft nevertheless would appear to provide an accurate description of our current constitutional arrangements pertaining to the Government.

5. Question 4: In Chapter 5 although Paragraph 205 refers to pre-legislative scrutiny, it could be argued that the Draft should place more emphasis on the Government to subject Bills (particularly those of a constitutional nature) to pre-legislative scrutiny on the basis of it being sound constitutional practice.

6. In Chapter 6, Paragraph 230 makes reference to the High Court, but owing to reforms in this area in the last decade, it is suggested that it would be preferable to refer to the Administrative Court instead. In addition, although Paragraph 231 identifies the grounds of judicial review, given that ministers are regularly subject to review (after all, this is the main way in which the executive is typically held to account in law in our constitution), it is submitted that these grounds should be set out in more detail. In particular, the various different aspects of the ground of illegality (jurisdiction, the notion of an abuse of ministerial discretion, etc) could be usefully outlined.

7. Although in Chapter 6 the Human Rights Act 1998 is mentioned, it is suggested that it would be beneficial to draw a distinction between the effect of the Act on primary and secondary legislation (the latter can be invalidated if it violates a Convention right - unless protected by its parent Act). It would also be useful if Paragraph 248 detailed the important system of remedial orders under section 10 which allows the Government to respond to both an ‘internal’ declaration of incompatibility by a UK court, as well as to an ‘external’ decision of the European Court of Human Rights that our law violated the Convention. Paragraph 249 should also make the point that any statement made by a minister under section 19 is not binding on the courts. In other words, the judiciary could decide that legislation was inconsistent with the Convention, notwithstanding the fact that a formal statement had been made by a minister under section 19 that the measure was compatible.

8. In Chapter 9, given the profound impact that European Union law has had on our uncodified constitutional arrangements (in particular our traditional understanding of the legislative supremacy of Parliament), reference should be made to the principle that underpins the European Union, viz., the primacy of European law.

Mark Ryan BA, MA, PGCE, Barrister (non-practising).

9th January 2011.