Session 2010-11

Constitutional Implications of the Cabinet Manual

Institute for Government submission to the Political and Constitutional Reform Committee on the draft Cabinet manual

From Rt Hon Peter Riddell, Dr Catherine Haddon and Akash Paun

Introduction

1. The publication of the draft Cabinet Manual is important, overdue and welcome. But its status can easily be misunderstood. It is primarily a document produced by the executive as a guide to how government operates. It is not a step towards a codified or written constitution. That is a quite separate debate which raises far wider questions about entrenchment and the role of the judges in relation to primary legislation.

2. Parliament is quite rightly being involved in the consultations, and should have a continuing role, both to suggest improvements in the light of fresh developments, such as the formation of the coalition in May 2010, and to discuss the impact of legislative changes, such as the current Fixed Term Parliaments Bill.

3. The priorities for the PCRC should be, first, establishing the status of the draft Manual; second, examining whether it accurately and fairly reflects existing laws, conventions and rules; third, discussing whether these laws, conventions and rules are satisfactory or should be changed; and, fourth, considering how, and when, the draft Manual should be revised. These distinctions are crucial since there is a danger of criticising the Manual for setting out practices of which the writer does not approve, whereas the true function of the Manual is to describe current practices.

4. As the foreword by Sir Gus O’Donnell, the Cabinet Secretary, makes clear, the draft is not a static document. Many key sections are very different from what they would have been before the May 2010 general election and the formation of the coalition as a result of new precedents created by these events. Moreover, many parts will have to be revised again in the light of current Government legislation. But there are uncertainties and ambiguities about how this process of revision should occur.

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

5. The Manual as such has no direct impact on the constitution insofar as it sets out existing rules, conventions and guidance in a single place. But, by doing this, it is likely to have a big indirect impact on parliamentary, media and public understanding of how the constitution operates. To an extent, the Manual builds on iexisting nternal Whitehall documents such as the Precedent Book to deal with events such as changes of government after elections and lays out existing conventions building on past experience of, say, hung parliaments, as after the February 1974 election.

6. The full draft Manual now published is specifically not seen as a step towards a written or codified constitution, even though it includes many of the building blocks which would be used if such a constitution was being drafted. On page 3, the Cabinet Secretary’s foreword states: ‘It is not intended to have any legal effect or set issues in stone. It is intended to guide, not to direct’. That is correct in legal terms but not necessarily in political ones.

7. The mere act of publication may mean that the Manual will become a reference point against which future actions of ministers and the civil service will be judged. The Manual is therefore likely to play a part in future controversies over the conduct of ministers and the executive. This is what happened when Questions of Procedure for Ministers (now the Ministerial Code) was first published in 1992. It was initially described as uncontentious guidance for ministers, and successive Prime Ministers and Cabinet Secretaries resisted any suggestion that it was a rule book. However, it has been regularly cited by Opposition politicians and journalists whenever allegations have been made about the conduct of a minister, so that someone has been accused of being in breach of the Ministerial Code. This led belatedly to the appointment of an investigator to be involved when a Prime Minister decided to order an inquiry into any allegations of misconduct by a minister.

8. A more recent example is what happened after Sir Gus O’Donnell published the draft chapter on Elections and Government Formation in February 2010. His intention was to put in writing the existing position and not to carve out new ground. He largely succeeded in this aim. However, not only was the draft chapter challenged by some after the election (see the questions of its role in the "five days in May", as aired in earlier hearings before the PCRC, and in the books by Rob Wilson MP and David Laws MP), but the mere fact of publishing the previous understandings changed their status. The Manual is, at one level, being presented as a compendium of time-honoured practices, while, at the same time, it is acknowledged that it will have to be updated regularly. The reality is that the conventions and understandings are those of the time and have always been modified and clarified in the light of experience. However, the publication of the Manual may have the constitutional consequence of hardening up and entrenching certain practices in the short-term, even when the intention is to permit discretion. This may produce the need for regular amendments. For instance, the December 2010 version of the Manual amends the February 2010 version by clarifying the position of an incumbent Prime Minister where there is a hung parliament in par 50 on page 25. The clarification – stating 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’- accurately restates what the main participants understood before the election. However, this clarification was made necessary by the subsequent events.

9. There is an interesting contrast with the Precedent Book, which is unavailable in its current form and only in its past form in the National Archives under the rules on the public release of official documents. This is an internal Whitehall, and particularly Cabinet Office, reference point for the operation of government, and both the ‘dignified and undignified’ parts of the constitution. This has always been seen as an evolving document, incorporating new events and experience. This is inherently easier to update in private than public.

10. The Manual is an executive document, not a parliamentary one, and should remain so as long as it remains in its current form. The Manual undoubtedly represents a codification of current practices, but it is completely different from a statutory written constitution, or if the constitutional practices described in the Manual were placed on a statutory or otherwise legislatively entrenched footing. While the Manual was discussed by the Home Affairs Committee of the Cabinet, which suggested some amendments, and then endorsed on the day of publication by the full Cabinet, the document was conceived and written by the Cabinet Secretary and his officials. It is therefore a hybrid, unlike the policy statements of a government, which are ministerial products in every sense, but it is not independent of the government of the day. It is absolutely correct that Parliament, and, in particular, the PCRC, should be involved, both now in discussing the current draft and making suggestions on any changes, and, in the future, in considering any proposed revisions to the contents of the Manual. This follows the precedent of the Cabinet Secretary’s decision to publish the draft chapter in February 2010 and to seek the views of MPs via the Justice Committee. Ideally, there would have been a longer consultation period, but there was not time to undertake this before the general election. The publication and discussion at the public evidence taking session was widely welcomed at the time. This process proved its worth by helping to reduce possible misunderstandings in the media and in financial markets over the key weekend over the general election, even though there was subsequent controversy about what happened.

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

11. The draft Manual represents a reasonable statement of the current position as seen from the Cabinet Office, with some caveats expressed below. There are subtle but important distinctions between laws, conventions and rules and it would be helpful if a clearer distinction were drawn between what is required by these three categories. Most of the discussion about the role of the Cabinet reflects precedent and the particular view of senior civil servants about the desirability of collective decision making through Cabinet and its committees, not always followed in practice by recent Prime Ministers. Moreover, as noted earlier, many of the most important areas are in themselves fluid. The Manual is stronger on exposition rather than explanation. It tells us the what of the current rules, norms, conventions and practices, but rarely explains the why, and is therefore limited on points where existing practice is either challenged or is changing.

12. An important role for the PCRC should be to identify and discuss areas where there is no consensus (covered in the next question), as well as to establish how the Manual will be revised. The Cabinet Secretary states on page 7 of his foreword that, ‘after the final version has been published, it will be regularly reviewed to reflect the continuing evolution of the way in which Parliament and government operate. We envisage that an updated version will be available on the Cabinet Office website, with an updated hard copy publication at the start of each new Parliament’. This follows the New Zealand experience. However, the Manual needs to be treated more as a living document, with revisions every year after reports to Parliament on amendments.

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?

13. The distinction is not always clear because of changing events and experiences. In most areas, the Manual provides a factual description of current rules, such as the position of the sovereign, ministers and the law, etc. However, in other areas, where previous conventions had been tacit and implied, the mere fact of publication can be seen as seeking to lay down one viewpoint (primarily a Whitehall one). So while, say, chapter 2 on Elections and Government Formation is a balanced statement of the current conventions, particularly in the light of the May 2010 experience, it deserves to be widely discussed. This should cover not just whether this chapter is an accurate description of the conventions (as it largely is), but the PCRC should also consider recommending possible improvements to the conventions themselves, such as an increased role for Parliament via an inauguration vote to approve the choice of a new Prime Minister ( as happens with the election of the First Minister in the Scottish Parliament), and as suggested by the Institute for Government in its written submission to the PCRC in October 2010.

14. In some areas, the Manual sets out a particular view of how participants ought to behave, rather than necessarily how they do behave. In para 51 on page 26, there is ambiguity about what role the civil service should have in supporting negotiations over forming a government if there is a hung parliament. Similarly, the PCRC, and other Commons committees, would no doubt have a view on the reference in para 205 on page 73 – ‘ministers should consider publishing bills in draft for pre-legislative scrutiny, where it is appropriate to do so’. This statement would be seen as far too discretionary and permissive by many in the Commons.

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

15.The Manual is intended to be mainly about the operations of the executive, and is less specific on other areas, notably relations with other organisations such as Parliament, local government and arms length bodies. The discussion on select committees and parliamentary questions is perfunctory but that is really a matter for Parliament to make its own views known.

16. The Manual is essentially written as if there is still single-party government, with just some amendments to take account of the existence of the coalition. There is no mention of the Programme for Government. The section on Cabinet committees on page 55 onwards does not give any detail on the specific processes established for coalition rule, which are obviously highly relevant to the working of government now. This illustrates the problem of updating the Manual to take account of current experiences. There is a strong case for a separate section outlining the practices that are being adopted within government and the Cabinet system specified in response to the challenges of coalition government. Some have been set out in the ‘Coalition Agreement for Stability and Reform’, but in tune with the approach in the rest of the Manual, they could usefully be brought together.

17.There is an inconsistency of approach in relation to new developments. While some implications of the formation of the coalition are barely discussed, the novel Backbench Business Committee and the new Board structures for departments are treated as if they are well-established parts of the system.

18. There are some curious omissions. For instance, why is the Human Rights Act not included in the list of constitutionally important statutes in par 5 on page 10?

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

19. Some parts of the Manual read like parts of a civics course, notably the sections on the Sovereign and on the European Union and other international bodies. Are these essential? The relevant point is how far membership of international organisations affects the workings of British Government, as it obviously does in the case of the EU.

Conclusions

20. There should be a clearer distinction between what is required by statute and what has been established by precedent. Moreover, greater provision needs to be made for its status as a living, and evolving, document. That has two aspects: first, public consultation and discussion by PCRC on how the Manual is affected by recent experience ( notably, say, the aftermath of the May 2010 election); and, second, the need for the revision in the light of legislative changes, as discussed on pages 3 to 5 of the Manual.

21. Overall, however, the publication of the Manual represents a big step forward by the Cabinet Secretary in opening up the workings of government.

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Why fears the Cabinet Manual is a step towards a written constitution are unfounded

An essay by Peter Riddell, Senior Fellow at the Institute for Government

The publication of the draft Cabinet Manual is a welcome and important development in opening up and explaining how government operates. Its 148 pages cover everything from the role of the Sovereign – placed first ahead of elections-to the roles of the Cabinet, Parliament, the civil service and the law, and relations with the devolved institutions.

The draft is intended to be descriptive rather than innovatory or normative, but it may turn out to be more controversial: both over whether it represents a step towards a written constitution and over its status.

Very much the personal initiative of Sir Gus O’Donnell, the Cabinet Secretary, it is modelled on New Zealand’s Cabinet Manual- the other main Westminster style system like the UK without a codified constitution. As such it is intended as a source of information and guidance. Sir Gus stresses in his foreword how: "It 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".

But merely by writing down the official view of current practice, the draft may be seen, wrongly, as a step towards a written constitution. It is not. Its authors expect, or perhaps hope, that the draft will not be used by the courts, and nothing in the report looks obviously justiciable. A written or codified constitution raises far wider questions about the role of judges which are not remotely near being addressed, let alone resolved.

A more pertinent question is that many of the issues covered in the Manual are both evolving and in dispute. The draft has been developed by the civil service, after discussion with Buckingham Palace and with constitutional commentators, including the Institute for Government. The role of elected politicians has been indirect, approving the idea of Manual, making comments when discussed by the Cabinet’s Home Affairs Committee and yesterday endorsed for publication in draft by the full Cabinet. There will now be three months of consultation and probably detailed scrutiny by parliamentary committees. But it will remain the executive’s document, not Parliament’s.

The greatest interest has been on the chapter on elections and government formation which was published in an earlier draft form last February. The guidance then about the conventions about what would happen in a hung parliament provided clarity to both the media and financial markets during and after the election, but have fuelled some ridiculous conspiracy theories from eccentric academics and excitable journalists about an establishment plot to create a coalition. That is ridiculous. Sir Gus is not in the coup business.

The guidance is straightforward: "where an election does not result in an overall majority for a single party, the incumbent government remains in office unless and until the Prime Minister tenders his or her resignation and the Government’s resignation to the Sovereign". However, following the events of May, the draft now includes a new sentence: "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 2 www.instituteforgovernment.org.uk

Sovereign". In other words, there always has to be a Prime Minister and it is up to the politicians, not the Palace, to decide who that is.

Nonetheless, ambiguities remain about when that moment is reached. Last May, Gordon Brown correctly resigned when it was clear that David Cameron, and not he, could command a Commons majority, but before the Conservatives and the Liberal Democrats had reached agreement on a coalition.

Similarly, it is unclear what happens when a Government loses a vote of no-confidence. The draft states that: "If a government is defeated on a motion of confidence in the House of Commons, the Prime Minister is expected to tender the Government’s resignation, unless circumstances allow him or her to opt instead to request dissolution. If it is clear who should form an alternative administration, such a resignation should take place immediately". After losing a no confidence vote in March 1979, the late James Callaghan immediately announced that he would seek a dissolution of parliament as soon as possible, and did not resign until after Labour lost the subsequent election. But should he have quit immediately and Margaret Thatcher become Prime Minister before the election.

This is among the issues in the draft which will be affected by important pieces of legislation now going through Parliament: in particular, the fixed term Parliament bill which would change both the terms on which a dissolution could occur before five years and the role of confidence motions. The draft would also be affected by current bills requiring a referendum on any future transfer or power or competence from the UK to the European Union and the bill granting greater fiscal devolution to Scotland. Several other proposed changes, including a referendum on the voting system, will also have far-reaching consequences.

The draft provides welcome clarification of the conventions on restricting government activity and avoidable financial and other commitments in pre and post-election periods: distinguishing between the announcement of an election and polling day; following an election if there is no overall majority; and following the loss of a vote of confidence. The draft also clarifies the position of civil servants in these periods; notably when a Permanent Secretary objects to a proposed course of actionand can seek a formal direction from a minister, which would then be published immediately.

Much of the rest of the draft Manual is uncontentious, but there is an illuminating section on which issues should be considered by the full Cabinet: notably the Government’s legislative priorities; issues of a constitutional nature, including matters relating to the Monarchy, reform of Parliament and changes to the devolution settlements; the most significant domestic policy issues, European or international business; issues that impact on every member of Cabinet; national emergencies, including terrorism; and any decision to take military action.

Of course, you can exaggerate process and procedure. What matters ultimately is political judgement. But having open and agreed procedures lifts the veil on any remaining mysteries about how governments operate.

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