Constitutional Implications of the Cabinet Manual

Written evidence submitted by Michael Pinto-Duschinsky

1. Parts of the proposed Cabinet Manual are elementary: Lord Norton of Louth has called it a "Janet and John introduction to British Government". [1] . However, the document as a whole presents dangers. These far outweigh the claimed educational advantages. The Manual’s function is unclear. The text slips in constitutional innovations which are ill considered and arguably partisan in their effects. Moreover, the under-the-radar manner in which some of these innovations were introduced is bound in the end to prove controversial.

2. My brief replies to the first three questions of the Political and Constitutional Reform committee are as follows:

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

The Cabinet Manual is controversial in parts because it attempts to bestow legitimacy on back-door innovations whose political neutrality is open to question. It thus risks the politicisation of the role of the Cabinet Secretary and Monarch.

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

It is inherently difficult for a written document to do this.

3.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?

Yes. In particular the paragraphs concerning governmental formation.

3. Academic discourse on constitutional matters in the United Kingdom has tended in recent years to be dominated by proponents of reform. This camp consists of a relatively tight-knit, influential elite of experts who put forward views which are not necessarily representative and which are open to dispute.

In broad terms, the academic reformers prefer the political arrangements typical in Continental Europe to the Westminster Model.

The Political and Constitutional Reform Committee already has heard in details from experts with this approach. The Committee needs also to consider opposite views.

4. I have extensive experience as an adviser on constitutional and related matters to international organisations, governments, public authorities, political parties and NGOs in over 20 countries. In a previous British general election, I was tasked with preparing advice for one of the major parties on the consequences of a hung election which did not materialise. My experience is summarised in an endnote. [2]

5. The background to the proposed Cabinet Manual is the advice offered in 2009-2010 by a relatively narrow group of constitutional specialists particularly from the Constitution Unit at University College London and the Institute for Government about the constitutional position in the event of a hung parliament in 2010.

The grounds for criticism of this advice are: (a) under guise of setting out existing conventions, it advocated innovations; (b) these unduly favoured the third largest political party, (c) the advice was promoted on the dubious premises that a hung parliament risked bringing the Monarch into political controversy and that it could produce uncertainties on the stock market.

The Cabinet Manual may thus be seen as an attempt to legitimate controversial novelties

6. I start by addressing in more detail the Committee’s initial question:

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

(a) The claim in the Foreword to the Draft Cabinet Manual (Page 2) that the Ministerial Code provides a precedent for the Draft Cabinet Manual is unhelpful and misleading.

There is a distinction between, on the one hand, advice by the Cabinet Secretary to the Prime Minister and to members of the Cabinet about very specific matters such as the rules about their private financial interests and those of family members and, on the other hand, much more general statements bearing on the nation’s constitutional arrangements as a whole.

The Ministerial Code sets out the rules on such matters of detail as whether Ministers are able to claim for their personal use "Air miles" awarded by airlines or the threshold value of gifts which a Minister is permitted to retain (currently £140). This obviously is a valuable and precise tool.

By contrast, the Manual covers a much broader field.

(b) Equally misleading is the justification of the Draft Cabinet Manual in the same Foreword on the ground that it follows the precedent of a country "with a "Westminster-style" system similar to the UK" such as New Zealand. Despite New Zealand’s origin’s, its current system cannot now be characterised as "Westminster-style" since its adoption of proportional representation means for the national legislature now means that its party system now has more in common with those of Continental Europe.

Admittedly, New Zealand had a Cabinet Manual before it moved to PR, but this is no longer relevant since the existing Manual reflects the logic of a PR system and not that of the Westminster Model. It may reasonably be supposed that the appeal to New Zealand practice is attractive to those wishing to introduce Continental European models to the UK because it does so in a less obvious manner.

(c) As mentioned in #2 above, it is inherently difficult if not impossible for a written document to list existing, often unwritten, rules, conventions and precedents without interpreting and changing them in the process. There is a case, in the opinion of some, for the UK’s adopting a comprehensive written constitution. This would reasonably require extensive public debate and adoption by a large majority of the electorate (say, two to one) in a referendum or by an equal margin in the House of Commons. If the Cabinet Manual is to be regarded as a proto-constitution, it is undesirable because it will not go through the process of review appropriate for a basic constitutional document.

(d) Rt Hon Peter Riddell of the Institute for Government, one of those involved in its preparation, has written to assure the public that "fears the Cabinet Manual is a step towards a written constitution are unfounded". [3] The very fact that he felt it necessary to soothe public concern indicates that there is a real problem about the way its function is likely to be perceived. If the Manual is to have the radical effect suggested in Professor Rodney Brazier’s memorandum to the Committee of consigning pre-2010 precedents concerning governmental formation to history, the problem concerning the Manual’s status and legitimacy is even greater.

The Cabinet Secretary felt obliged to qualify the document by assurances that the Manual "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". These assurances are unsatisfactory. For how can the Cabinet Secretary guarantee that it will not have any legal effect, despite stated intentions to the contrary?

If it is not intended to "direct", and it is merely is written "from the perspective of the executive branch of government", what is its value? The Cabinet Secretary’s formulation serves as an emollient but at the expense of storing up problems for the future.

That the document is to be "owned" by the executive alone is a weak excuse for escaping full parliamentary debate and approval.

Lack of clarity about the status of the Manual means that its contents too must inevitably be unclear.

If the objective is supply to incoming Ministers an informal constitutional guide without any formal status and without introducing anything new, the project of a Manual is trivial.

As Norton has noted, the Foreword makes the "quite remarkable" statement that ‘… there has never been 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.’ He comments: "I know Whitehall mandarins are supposed to be a little detached, but has no senior civil servant ever set eyes on an introductory text on British politics?" [4]

In fact, senior mandarins are anything but naïve and it must be supposed that the objective of the Manual is less innocent than suggested.

(e) The form of "consultation" that has been adopted may be the worse either than having no consultation or a much fuller consultation. Since the document arguably changes the operation of the British Constitution, the consultation method is inappropriately obscure. It supplies a fig leaf of consultation as an easy but inadequate way to legitimate the proposed document.

(f) The Foreword to the Manual gives an inadequate explanation of its rationale when it refers to the "uncertainty" of some existing conventions and rules.

Of course there are uncertainties and there always will be. This is for the simple reason that it is impossible to anticipate all the eventualities of public life by setting out the precise course of action in every conceivable future circumstance. As far as the past is concerned, there is no shortage of lengthy constitutional commentaries. The attempt to shoe horn every precedent, convention, rule and practice into a relatively short document leads to statements which either will be vague generalisations or, if more precise, will risk being the cause of dispute.

(g) If clarification is the objective, the Manual frequently fails to provide it since it includes qualifications and vague terms. As per #362, oversight of arm’s length bodies must be "appropriate". It would be surprising to expect anything else. According to #396, a department should consult the Cabinet Secretary "in good time" – whatever that means. In #399 the prohibition listed applies only "as a general rule" which needs to be "balanced" against other considerations. And so on.

(h) Since 1997, there have been many reforms in the way government and politics in the UK is constituted. In few cases have their implications been set before the public or even before the House of Commons in an adequate manner. Greater caution is required about further initiatives such as the Cabinet Manual.

7. In further response to the committee’s first question, the consequence of initiatives taken by the Cabinet Secretary has been to bring him into the limelight and into political controversy. As Riddell reported, the Cabinet Manual is

"very much the personal initiative of Sir Gus O’Donnell, the Cabinet Secretary". [5]

There has been grumbling about him, in particular in Conservative Party quarters but reportedly also in parts of the Labour camp. The lack of consensus about his initiatives has centred on the arrangements he initiated relating to government formation following a hung election. Several paragraphs of Chapter 2 of the Cabinet Manual will give rise to continuing concern since they simply do not set out the traditions of the British Constitution. Instead, they infiltrate novel practices whose political neutrality is questionable.

8. There is a crucial distinction between two different procedures for government formation following a hung election: First, the traditional procedure according to which the sitting premier resigns if he or she is unable to form a government and then the leader of the alternative party with the largest number of seats then is called to Buckingham Palace so that he or she can then try to do so. This may be called the "serial" procedure. Second, there is a procedure typical of countries with systems of proportional representation. According to this, procedure the sitting premier remains in office even if he or she is unable to form a government. The leader of the Opposition is expected to initiate discussions with smaller parties and largely to agree the terms of a formal "coalition agreement" prior to receiving and accepting an invitation from the Monarch to attempt to do so.

The second of these procedures, which may be called the "auction" procedure, is to the advantage of smaller parties. In the British context, the auction procedure clearly benefits the Liberal Democrats because it enables the party to play the two largest ones off against each other in order to gain concessions, especially on electoral reform.

9. By advocating the second of these procedures, the Cabinet Manual not only seeks to legitimate something unknown before 2010, it also acts to the advantage of the Liberal Democrats.

Clearly, a smaller "pivot" party (to use Bogdanor’s term) stands to gain if it is able to play off the two main parties against each other. This was the tactic recommended to the Liberal Democrat leader by Professor Hazell shortly before the 2010 poll. [6] In this article in the Guardian, Hazell exchanged the role of constitutional expert for that of Liberal Democrat adviser. The piece was titled ", "A memo to Nick Clegg: In a hung parliament the Lib Dems could at last end the two party system. So, Nick, here’s what you should do." The core strategy was to create an auction situation where the two main parties bid against each other on the issue of electoral reform. Hazell advised Clegg to

"conduct simultaneous negotiations with both parties, to see which party is willing to offer the better deal".

The effects of the auction situation in 2010 are open to dispute. According to some authoritative commentators, such as Norton and Riddell, the outcome was determined by electoral arithmetic, the personal chemistry between David Cameron and Nick Clegg and Cameron’s political judgement that a comprehensive coalition agreement with the Liberal Democrats was in the Conservatives’ interest.

There are grounds, however, for suggesting that Cameron’s vital concession on an electoral reform referendum was the direct result of the "auction" procedure which had been facilitated and encouraged by the Cabinet Secretary in concert with the constitutional reformers.

Even if it is accepted that the auction procedure was not decisive in determining the emergence of the Conservative-Liberal Democrat coalition agreement in 2010, it remains the case that the auction procedure apparently favoured by the Draft Cabinet Manual is likely after any future hung elections to favour the "pivot" party. And it is, after all, potential future situations which are the subject of Chapter 2 of the Manual.

10. Essential to the simultaneous procedure is that the sitting premier should not resign until talks about a coalition agreement between other political parties are well advanced. According to #50 of the Draft Cabinet Manual:

"The incumbent Prime Minister is not expected to resign until it is clear that there is somebody 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."

There are several objections to this formulation.

(a) It is ambiguous. In its weak form, it states correctly that an incumbent premier cannot be required to resign until he or she has been defeated in the house of Commons. However, the formulation implies something stronger, namely that the incumbent premier who feels unable to form a government following a hung election is "expected" to delay resigning until a group of other parties has hammered out a coalition agreement.

That the latter interpretation is the one intended emerges from a press article written shortly before the 2010 election by Hazell. He had been closely involved with the Cabinet Secretary in the Cabinet Manual project and one of his staff, Dr Ben Yong, had been seconded in February 2010 to the Ministry of Justice to work on the manual.

Hazell wrote on 3 May 2010, shortly before the 2010 poll, that, in the event of a hung parliament in which Gordon Brown received considerably fewer seats that the Conservatives, Brown would have a

"duty to stay in office until it becomes clear which party or combination of parties can command the most support in the new Parliament ."

He then went even further:

"… the Queen would not wish to accept his resignation until it was clear who could command confidence in his place ." [7]

(b) The example of 1929 – when a sitting premier headed the defeated party in a hung election as in 2010 – does not accord with the stronger meaning of #50 of the Cabinet Manual, certainly not as interpreted by Hazell. The incumbent Prime Minister, Stanley Baldwin was under no "expectation" and under no "duty" to delay his resignation. He

" consulted constitutional experts who assured him that it was in the Prime minister’s hands to do as he chose "

Baldwin duly went to Windsor Castle without delay to tender his resignation to King George V. [8]

(c) #50 contrasts with the position as set out in a Standard Note produced in December 2009 by the Parliament and Constitution Centre of the House of Commons [9] and by the formulation in a standard constitutional law text by AW Bradley and KD Ewing [10]

" Where after an election no one party has an absolute majority in the House … the Porime Minister in office may decide to wait until Parliament resumes to see whether he or she can obtain a majority in the new House with support from another party … or he may resign without waiting for Parliament to meet (as Baldwin did in 1929 and Heath in 1974). When he or she has resigned, the Queen will send for the leader of the party with the largest number of seats …"

Only when the leader of the Opposition fails to form a government may the Queen, according to Bradley and Ewing, then initiate coalition discussions between the parties.

Bradley and Ewing make no mention of any "expectation" that the incumbent premier delay resigning to allow coalition discussions to proceed.

(d) It is understood that after the 2010 election, the Cabinet Secretary and the Queen’s Private Secretary at one point asked Gordon Brown to delay submitting his resignation to the Queen. The constitutional basis for this is uncertain. In my opinion, a premier’s decision to resign after a hung election should purely be a political matter and neither the Cabinet Secretary nor the Palace should seek to influence its timing.

If #50 is intended to mean no more than that the incumbent Prime Minister is entitled after a hung general election to wait until the House of Commons has met before submitted his or her resignation, the wording should be altered to this effect.

If the intention – as Brazier suggests in his memorandum - is to convey a sense of duty on the premier NOT to resign, then the constitutional basis for this needs to be justified.

11. According to #49

" Where a range of different administrations could potentially be formed, discussions will take place between political parties on who should form the next government ."

This absolute formulation involves a change in the British Constitution. After the 1929 election, for example, Baldwin did not enter into any discussion with the Labour or Liberal Parties. He merely resigned, as he was fully entitled to do.

According to established constitutional practice, the Queen may invite a party leader on an exploratory basis to attempt to form a government. The idea that coalition negotiations should be well advanced before the Queen issues such an invitation is a controversial innovation.

12. According to # 51

"Any negotiations between political parties over the formation of a stable government need to be as well informed as possible …"

Though this wording appears to express a truism, it incorporates assumptions that are new to British politics – namely that the aim after a hung election should a formal coalition agreement including policy details based partly on the advice of civil servants.

13. The caretaker conventions mentioned in #54 are a novelty. They are based on the assumption of a fairly long interregnum during which different parties hammer out a detailed coalition agreement. This reflects the Continental European rather than the traditional UK situation.

14. There has been a concerted attempt by the constitutional reformers to manage public expectations and to "educate" the media to love coalitions. This is not a legitimate objective of a Cabinet Manual. It should be for politicians, political parties, the press and the public, not civil service mandarins, to debate the relative merits of the Westminster Model and that of Western European countries.

As far as "expectations" (as distinct from constitutional rights and obligations) are concerned. It may reasonably be argued that the expectation was that Gordon Brown should have recognised the verdict of the voters and resigned very shortly after the results of the 2010 poll came in. Certainly, he had the right to await defeat in the House of Commons or to soldier on in the hope that he could cobble together a bare multi-party coalition. However, the principal function of his remaining was to allow the Liberal Democrats to secure from the Conservatives the concession on an electoral reform referendum.

15. Far from insulating the Queen from political pressures, the actions of the Cabinet Secretary in pressing before the 2010 election for what effectively were new rules about government formation in a hung parliament arguably risked doing the opposite. If, as has been suggested, the new arrangements were potentially to the advantage of the third party, they thereby were partisan. For this reason, the Palace should not have been expected to be involved in them.

16. The manner in which the Justice Committee of the House of Commons was involved in February 2011 in rushed hearings on the preliminary draft of Chapter 2 of the Cabinet Manual is a matter of further concern. According to the authors of The British General Election of 2010, was merely "a vehicle for the Cabinet Office". [11]