Constitutional Implications of the Cabinet Manual

Supplementary written evidence submitted by the Centre for Political and Constitutional Studies, King's College London

The Cabinet Manual and constitutional codification:

1. The previous evidence submission on the draft Cabinet Manual from the Centre referred to a supplementary note that would be produced dealing with the relationship between the Cabinet Manual ('the Manual') project and a fully codified constitution. The following brief note constitutes this submission.

2. The Manual can be seen as a manifestation of a process that has contributed to an increasing codification of the UK constitution, whereby the government has publicly issued ethical and operational rules, principles and guidance applying to government or the wider public sector, that could be seen as of a constitutional nature.

3. Arguable examples of this trend include the publication in 1980 of what are commonly known as the 'Osmotherly Rules'; the Armstrong Memorandum (1985); the publication in 1992 of Questions of Procedure for Ministers (now known as the Ministerial Code); the Code of Practice on Access to Government Information of 1993 (now superseded by the Freedom of Information Act 2000); The Seven Principles of Public Life (1995); the Civil Service Code of 1996 (now placed on a statutory basis by the Constitutional Reform and Governance Act 2010); the Code of Practice on Consultation (2000); the Code of Conduct for Special Advisers of 2001 (also now with a basis in the Constitutional Reform and Governance Act); and the Central-Local Concordat (2007). The Manual itself refers to some of these codes.

4. The Manual represents one more manifestation of this ongoing process; as well as being a qualitatively new entity, since it can be seen as a code in its own right, which at the same time provides a contextual framework within which a number of other codes are placed, alongside other components of the UK constitution such as acts of Parliament.

5. The Manual is likely to be treated by many - including within the media - as the most definitive available statement of the UK settlement.

6. It is more than simply an operating manual for the London-based executive, extending widely to issues such as the role of supranational institutions; devolution settlements; the upholding of human rights; Parliament; and the nature of UK democracy. The Manual is in fact the broadest description of the constitutional landscape to be found in any single official document yet published in the UK. It is in this sense that it comes closest to resembling the text of a codified constitution.

7. But the Manual is not - and does not purport to be - the expression of a fully codified UK constitution; and the process of codification to which the Manual is a significant contribution should not be confused with full codification as it might generally be understood in international perspective.

8. The Manual lacks key features that might be expected to be associated with a document setting out a fully codified settlement.

9. The inclusion of rules, conventions or laws in the Manual does not afford them any legal status beyond that which they already possess. The Manual's contents cannot by virtue of their presence in the Manual be the basis for a court ruling that legislation or action is 'unconstitutional' (such rulings are not possible in the UK). Nor does the Manual entrench its contents, through making them subject to alteration only through a prescribed constitutional amendment procedure (again, no such procedure exists in the UK).

10. The production of the Manual has not been carried out in accordance with the democratic principles that could arguably be expected to be adhered to were it a codified constitution. Initial drafting has been carried out within the executive; and the only public involvement is through a three-month consultation period on a draft text; with the executive presumably making the final decisions about the text. By contrast, the establishment (or significant alteration) of a codified constitution could be expected to entail, as a minimum, a vote in the legislature; probably an extended consultation period, with active public engagement methods used; possibly some kind of constitutional convention; and often at least one referendum.

11. Another clear difference between the Manual and what might be expected of a codified constitution involves ownership and legitimacy. The Manual is the property of Cabinet, that is the supreme committee of the executive, which will be its authorising authority. By contrast, codified constitutions tend to portray themselves as belonging to and deriving their authority from society as a whole, usually invoking the concept of popular sovereignty through such phrases as 'We the people'.

12. Finally, the Manual can be distinguished from a codified constitution by some of its content. It includes detail about such issues as why ministers might resign from office (para. 94) that would probably not be expected to be found in a codified constitution. At the same time it omits other matters, such as a description of the provision for emergency powers under the Civil Contingencies Act 2004 (which receives only a passing reference in paragraph 111), which might well be included in the text of a codified constitution.