2 PROGRESS
SINCE THE
COMMITTEE'S
EARLIER REPORT
AMBIGUITY
AND
COMPLEXITY
8. The report of our earlier inquiry criticised the
draft Cabinet Manual for failing to acknowledge sufficiently the
fact that some conventions listed in the Manual were the subject
of disagreement. In that report we recommended that
Where there is the potential for disagreement
or uncertainty, as there so often is on the meaning of unwritten
constitutional conventions, it is important that the Cabinet Manual
should signal the existence of this uncertainty. [11]
In its response the Government noted that
where there are different views expressed in
relation to a convention, the Cabinet Manual makes this clear
or states the Executive's own understanding of the position. The
Cabinet Manual is not binding and others are entitled to take
a different view on the operation or extent of a particular convention.[12]
9. We heard from a number of witnesses that the first
edition of the Cabinet Manual does now acknowledge much more clearly
areas where there had been considered to be uncertainty. Professor
Ian Cram, of the University of Leeds, noted the improvements made
in the first edition:
The Cabinet Secretary and others took on board
the criticism that where there were differences of opinion it
was right to say, "Here is an area of disagreement among
the scholars and politicians," with a footnote reference
to this view and that view. That happens in several places through
the manual.[13]
One example he gave of an improvement on the initial
draft was in the field of government formation:
One example was the inclusion in the original
of the view […] that in a hung Parliament the party with
the most votes and the most seats should have the first go at
forming the Administration. That now has been put to rest, after
the raising of queries, academic commentaries and other comments.[14]
Although Professor Cram still had reservations about
omissions from the document, he considered that in the first edition
"we have moved to a better, more accurate document, reflecting,
and within the framework of, an executive understanding of the
constitution."[15]
Professor Hazell shared Professor Cram's view: "I think in
the consultation and subsequent revisions the drafters of the
Cabinet Manual did their very best, when there was some disagreement
or uncertainty, to make that clear."[16]
10. WE NOTE
WITH APPROVAL
THAT THE
FIRST EDITION
OF THE
CABINET MANUAL
APPEARS TO
ACKNOWLEDGE MORE
CLEARLY INSTANCES
WHERE THERE
IS DISAGREEMENT
OR UNCERTAINTY
ABOUT A
CONVENTION.
OWNERSHIP
11. We examined who, in practical terms, had ownership
of the Cabinet Manual and had responsibility for updating it.
In our earlier report we said that we expected to "engage
on ongoing dialogue about the Cabinet Manual and its contents."[17]
We also concluded that, should the Cabinet Manual become the "basis
for a shared understanding beyond the Executive of important parts
of the United Kingdom's previously uncodified constitution",[18]
Parliamentary intervention in respect of the Manual's contents
would be entirely appropriate. In this inquiry we have considered
whether this is in fact the case.
12. The Cabinet is said to own the Cabinet Manual.
Sir Jeremy Heywood, the Cabinet Secretary, told us that "it
is owned by the Cabinet. It is a politically owned document rather
than one owned by me."[19]
We found one immediate practical difficulty arising from this
doctrine of collective ownership: when seeking to invite a Minister
to give oral evidence to this inquiry, we experienced great difficulty
in confirming a date for any Minister to appear to explain to
us the Government's policy on the Manual. We therefore resolved,
with some reluctance, to proceed to make this report without the
benefit of a Ministerial view on behalf of the Government.
13. GIVEN THAT
OWNERSHIP OF
THE CABINET
MANUAL IS
SAID TO
BE IN
THE COLLECTIVE
HANDS OF
THE CABINET,
AND NOT
THE CABINET
SECRETARY, IT
APPEARS ODD
THAT NO
MINISTER COULD
BE IDENTIFIED
TO TAKE
ON THE
TASK OF
EXPLAINING TO
US THE
GOVERNMENT'S
POLICY ON
OWNERSHIP OF
THE MANUAL
AND ITS
REVISION. WE
RECOMMEND THAT
THE PRIME
MINISTER, ON
BEHALF OF
THE CABINET,
ASSIGN POLICY
RESPONSIBILITY FOR
THE CONTENT
AND CURRENCY
OF THE
CABINET MANUAL
TO A
SPECIFIC MINISTERIAL
PORTFOLIO.
14. The doctrine of collective Cabinet ownership
must be taken to mean that the Cabinet has sole responsibility
for updating the Cabinet Manual, an issue which we discuss further
below. In considering ownership of the document, we examined its
relevance in explaining the role Parliament plays in the UK's
constitution.
15. Professor John McEldowney, of the University
of Warwick, did not think there should be a significant role for
Parliament in updating the Cabinet Manual:
[T]he role of Parliament is rather limited. It
is appropriate that both Houses, through the appropriate Select
Committee should be informed and deliberate on the working of
the Manual. A clear distinction needs to be maintained between
the Cabinet Manual as a guide to the working of government published
by the Cabinet Office rather than a parliamentary guide published
and drafted by Parliament.[20]
Professor Ian Cram took the contrary view: he considered
that a "large number of the sections of the CM relate directly
to Parliament"[21]
and he has identified all but one chapter (chapter 4) as having
content which related to Parliament. He concluded that "given
the extent of material that does concern Parliament, it would
seem appropriate to seek to reflect joint (Executive & Legislature)
understanding of these matters."[22]
16. WHILE THE
CURRENT CABINET
MANUAL IS
SAID TO
BE OWNED
BY THE
CABINET, WE
CONSIDER THAT
PARLIAMENT HAS
A SIGNIFICANT
STAKE IN
ITS
AND SHOULD
AT THE
VERY LEAST
BE CONSULTED
ON ANY
FUTURE REVISION.
SHOULD THE
CABINET MANUAL
EVOLVE TO
BECOME MORE
THAN A
GUIDE TO
THE OPERATION
OF THE
EXECUTIVE, TO
THE EXTENT
WHERE IT
IS CONSIDERED
PART OF
THE CONSTITUTIONAL
ARRANGEMENTS FOR
THE UK, WE
RECOMMEND THAT
IT SHOULD
BE TREATED
AS A
DOCUMENT IN
THE JOINT
OWNERSHIP OF
THE CABINET
AND OF
THE RELEVANT
PARLIAMENTARY COMMITTEES.
LEGAL
STATUS
17. In our previous report we concluded it was unlikely
that the Manual would feature in court proceedings, though we
did not rule out the possibility completely. During the course
of this inquiry we revisited this issue. In this context it was
useful for us to consider what had happened with regard to the
New Zealand Cabinet Manual, which is much more developed than
the UK manual.
18. Sir Gus O'Donnell, in his preface to the first
edition of the Manual, stated that the Manual was "not intended
to be legally binding"[23]
and that it "records rules and practices, but is not intended
to be the source of any rule."[24]
This purpose is similar to that of the New Zealand Cabinet Manual,
on which the UK version is said to be based.
19. Professor Cram indicated that there were a number
of instances in which the New Zealand Cabinet Manual had been
cited by the courts in that country.[25]
The New Zealand Manual had been used "in a number of circumstances
… to confirm the court's understanding of various constitutional
arrangements,"[26]
and he believed that it was "not far-fetched to suggest that,
in time, we might find our Cabinet Manual being prayed in support
of a judicial decision that in some way engages constitutional
issues."[27] Dr
Andrew Blick, of King's College London, suggested to us that given
the importance that the Government itself had given the Cabinet
Manual, some sort of statutory underpinning might be appropriate:
"If the principles contained in the document are as important
to the Government as the manual itself claims, then a limited
degree of legal enrichment for them might be seen as appropriate."[28]
20. We have considered whether the Manual should
therefore have some legal basis, regardless of whether it would
be likely to feature in court proceedings. To place the document
on a statutory footing could provide greater certainty about the
terms on which the courts might engage with the Manual and its
contents. Statutory underpinning of the Manual's status would
also give Parliament an explicit role in the endorsement of its
contents.
21. We have already stated in terms that the Cabinet
Manual "is not itself a written constitution: no one has
claimed that it is, none of our witnesses has suggested that it
is, and many have been explicit that it is not."[29]
We did conclude that the Manual has "considerable overlap
with what might be expected of a constitution." It has been
suggested to us that it would be the most likely starting point
for any attempt to produce a written constitution, though that
suggestion predated the blueprints for constitutional codification
published in our recent report A new Magna Carta?[30]
22. WHILE GIVING
THE MANUAL
A BASIS
IN STATUTE
MIGHT APPEAR
ATTRACTIVE, NOT
LEAST TO
THOSE WHO
ADVOCATE CONSTITUTIONAL
CODIFICATION, WE
ARE CONCERNED
THAT TO
GIVE IT
A STATUTORY
BASIS MIGHT
CREATE AN
UNSATISFACTORY HALFWAY
HOUSE TO
FULL CODIFICATION
OF THE
CONSTITUTION. WE
DO NOT
CONSIDER THAT
AT PRESENT
THERE IS
ANY COMPELLING
CASE FOR
STATUTORY RECOGNITION
OF THE
CABINET MANUAL.
23. WHILE IT
IS UNLIKELY
THAT THE
CABINET MANUAL,
AS PRESENTLY
CONCEIVED, WILL
FEATURE EXTENSIVELY
IN COURT
PROCEEDINGS, THE
EXPERIENCE IN
NEW ZEALAND
SHOWS THE
CABINET MANUAL
COULD IN
FUTURE BE
REGARDED AS
PART OF
THE UK'S
ACCEPTED CONSTITUTIONAL
ARRANGEMENTS, MEANING
THAT IT
COULD ACQUIRE
A LEGAL
STATUS MORE
SIGNIFICANT THAN
THAT ORIGINALLY
INTENDED. IT
WOULD IN
OUR VIEW
BE UNDESIRABLE
FOR THE
COURTS TO
SEEK TO
WRITE THE
MANUAL INTO
CONSTITUTIONAL LAW
WITHOUT THE
PROCESS OF
PUBLIC DELIBERATION
AND DEBATE
WHICH WE
BELIEVE IS
ESSENTIAL TO
ANY CODIFICATION
EXERCISE. SHOULD
THE COURTS
SEEK TO
INTERPRET THE
MANUAL IN
CASES OF
CONSTITUTIONAL SIGNIFICANCE,
THE GOVERNMENT
MUST BE
PREPARED TO
INTERVENE IN
SUCH CASES
TO SET
OUT ITS
VIEW OF
THE MANUAL'S
CONSTITUTIONAL POSITION.
PRECEDENT
BOOKS
24. During our earlier inquiry we learned that the
Government kept a precedent book in which were recorded the events
which were the basis for its operational understandings and its
conventions. We recommended publication of this information at
the earliest opportunity, acknowledging the necessity of redaction
of confidential or sensitive information or personal data: we
argued that this would give those outside the Executive a more
informed opportunity to judge whether the then draft Manual accurately
reflected the conventions on which it claimed to be based.
25. Professor Hazell did not in fact believe that
it was particularly important to know what the Precedent Book
contained:
I don't know what is in the Precedent Book but
I am not desperately curious to know. I think the Cabinet Manual
does contain everything that we need to know. The Precedent Book
will be interesting to historians and to my good friend Peter
Hennessy but I don't think it is going to tell us anything that
might make for more effective government.[31]
26. In its response to our 2011 report the Government
indicated that the 1954 version of the Precedent Book had been
placed in the National Archives in 2006. Sir Jeremy Heywood told
us that a redacted version of the 1978 Precedent Book had since
been placed in the National Archives, and that the Cabinet Office
was working hard to "try to get the two remaining precedent
books published as soon as possible."[32]
The National Archives has now sent us a copy of the 1978 book,
for which we are grateful.
27. Sir Jeremy also indicated that since 1992 no
formal precedent book had been kept, and that the Cabinet Office
now relied on a more nebulous concept of unwritten corporate memory:
How we deal with these issues now is on the basis
of experience of how the ministerial code, for example, has been
interpreted in the past, what the recent precedents have been,
but we don't collect those together into something called the
precedent book. In a sense, the corporate memory is there in the
Cabinet Office and in my office but we have not gone to the trouble
of bringing all of those individual cases together into a new
version of the precedent book.[33]
It is not clear to us whether there is any formal
mechanism, in the absence of a precedent book, to record the experience
of interpretation of constitutional precedents.
28. WE WELCOME
THE RELEASE
OF THE
1954 AND 1978 PRECEDENT
BOOKS, AND
WE COMMEND
THE WORK
BEING UNDERTAKEN
TO PLACE
THE REMAINING
TWO PRECEDENT
BOOKS INTO
THE PUBLIC
DOMAIN. WE
NEVERTHELESS NOTE
WITH CONCERN
THAT THE
USE OF
A PRECEDENT
BOOK AS
A MEANS
OF RECORDING
THE EVENTS
WHICH FORM
THE BASIS
OF PRECEDENTS
USED FOR
THE CABINET
MANUAL HAS
LAPSED. THE
ARRANGEMENTS FOR
RECORDING THE
CORPORATE MEMORY
OF GOVERNMENT
AND THE
CABINET OFFICE
IN A
FORM WHICH
CAN INFORM
FUTURE EDITIONS
OF THE
CABINET MANUAL
ARE NOW
UNCLEAR. WE
RECOMMEND THAT
IN ITS
RESPONSE TO
THIS REPORT
THE GOVERNMENT
SET OUT
THE PROCESS
WHEREBY THE
PRECEDENTS WHICH
INFORM ITS
UNDERSTANDING OF
THE OPERATION
OF THE
CONSTITUTION ARE
CAPTURED AND
RETAINED.
11 Political and Constitutional Reform Committee, Sixth
Report of Session 2010-11, Constitutional Implications of the
Cabinet Manual, HC 734, para 22 Back
12
Government Response to the House of Lords Constitution Committee,
Political and Constitutional Reform Committee and Public Administration
Select Committee on the Cabinet Manual Committee Reports of Session
2010-12, Cm 8213, October 2011, p. 18 Back
13
Q13 Back
14
Q13 Back
15
Q13 Back
16
Q57 Back
17
Political and Constitutional Reform Committee, Sixth Report of
Session 2010-11, Constitutional Implications of the Cabinet
Manual, HC 734, para 37 Back
18
Ibid., para 41 Back
19
Q89 Back
20
Professor John McEldowney (RCM 006) Back
21
Professor Ian Cram (RCM 002). Chapter 4 is considered to be the
chapter with no explicit Parliamentary relevance. Back
22
Ibid. Back
23
Cabinet Manual, First Edition, October 2011, Preface Back
24
Ibid. Back
25
Q15 Back
26
Ibid. Back
27
Ibid. Back
28
Dr Andrew Blick (RCM 005), para 8 Back
29
Political and Constitutional Reform Committee, Sixth Report of
Session 2010-11, Constitutional Implications of the Cabinet
Manual, HC 734 ,para 45 Back
30
Political and Constitutional Reform Committee, Second Report of
Session 2014-15, A new Magna Carta?, HC 463 Back
31
Q58 Back
32
Q112 Back
33
Q113 Back
|
