House of Commons - Revisiting the Cabinet Manual - Political and Constitutional Reform

Revisiting the Cabinet Manual - Political and Constitutional Reform Contents

4 FUTURE REVISION

PURPOSE AND LIMITATIONS OF THE CABINET MANUAL

40. The Cabinet Manual, based as it is on practice and precedent, is not conceived as a prescriptive guide to the operation of government in every political climate. While the Manual sets out an agreed framework for the operation of government, allowing a necessary flexibility of practice, users of the Manual ought to be aware of the limitations of the document as a guide to how to handle future unforeseen circumstances.

41. In his preface to the first edition of the Manual, Sir Gus (now Lord) O'Donnell stated that "[t]his updated text [of the Manual] remains true to its original purpose. It is primarily a guide for those working in government, recording the current position rather than driving change. […]The content of the Cabinet Manual is not static, and the passage of new legislation, the evolution of conventions or changes to the internal procedures of government will mean that the practices and processes it describes will evolve over time. If the Cabinet Manual is to continue to play a useful role as a guide to the operations and procedures of government, it will need to be updated periodically to reflect such developments."[46] As the Prime Minister pointed out in his foreword to the first edition, "the manual sets out the laws, conventions and rules that do not change from one administration to the next but also how the current coalition Government operates and recent changes to legislation such as the establishment of fixed-term Parliaments."[47]

42. USERS OF THE CABINET MANUAL MUST BEAR IN MIND ITS STATED PURPOSE, WHICH IS AS A GUIDE TO THE CURRENT PRACTICE OF GOVERNMENT. THE PRECEDENTS THE MANUAL CITES MAY BE HELPFUL IN GUIDING A RESPONSE TO FUTURE POLITICAL CIRCUMSTANCES, BUT IT SHOULD NOT BE SEEN AS A RULEBOOK FULL OF OUT-OF-DATE PRESCRIPTIONS WHICH ARE INADEQUATE TO ADDRESS FRESH CHALLENGES. REGULAR UPDATING OF THE MANUAL TO REFLECT THE CURRENT AGREED PRACTICE OF GOVERNMENT IS THEREFORE VITAL.

HOW OFTEN SHOULD THE MANUAL BE REVISED?

43. In our earlier report on the draft Cabinet Manual we recommended that "there needs to be a clear and published process, agreed with [this Committee], for updating the Cabinet Manual once it has been finalised."[48] In response to this recommendation the Government stated that "the current intention is to make periodic updates to the Manual as and when appropriate. However we do not believe the Government should at this stage set out precisely when and how this should happen."[49] We found this response unsatisfactory, and therefore revisited the issue of revision during this inquiry.

44. We received different views on the desirable frequency of updates to the Manual. Professor Ian Cram wrote:

45. Professor John McEldowney thought that the Manual should be updated annually to reflect any changes:

46. Professor Robert Hazell and Dr Ben Yong argued that the Cabinet Manual should be updated less frequently, and should only have to be approved by each incoming Government. This process might involve no changes at all to the Manual:

Professor Hazell explained what he would expect to happen in relation to the Cabinet Manual after a general election:

47. The Cabinet Secretary told us that he did have a list ready for a future revision, to be used when called upon to do so. He stated:

ACCURACY

48. We were concerned about the currency and accuracy of the published Cabinet Manual, recognising the danger that a document which is not seen to be regularly updated to reflect relevant developments may lack authority. We therefore examined how the manual might reflect constitutional changes which happened during a Parliament, without the need for a full revision. Professor Hazell, reflecting on the practice in New Zealand, made the following suggestion:

49. Sir Jeremy Heywood did not agree that this would be a good way to reflect changes, reiterating the point that two different versions of the Manual—one offline and one online—could lead to conflict. He nevertheless recognised the issue which arose if the Manual was not seen to accurately reflect recent changes. He offered the following alternative suggestion:

This proposal has some merit, insofar as it enables recent changes in practice to be identified and earmarked for inclusion in the next edition of the Manual.

50. WE CONSIDER THAT IT IS IMPORTANT THAT THE CABINET MANUAL IS KEPT UP TO DATE. WE BELIEVE THE MANUAL SHOULD BE REVISED EVERY PARLIAMENT AS A BARE MINIMUM, ESPECIALLY ON THE ARRIVAL OF A NEW ADMINISTRATION, TO ENSURE THAT IT ACCURATELY REFLECTS THE CURRENT GOVERNMENT'S UNDERSTANDING. WE ENDORSE THE PROPOSAL FROM THE CABINET SECRETARY THAT THE CABINET OFFICE SHOULD PRODUCE A RUNNING LIST OF MATTERS WHICH WILL REQUIRE ATTENTION AT THE MANUAL'S REVISION. WE RECOMMEND THAT THE CABINET OFFICE PUBLISH, AS SOON AS POSSIBLE, A LIST OF MATTERS IN THE CABINET MANUAL WHICH WILL REQUIRE AMENDMENT AT ITS REVISION. AT THE SAME TIME THE CURRENT ONLINE EDITION OF THE MANUAL, WHICH IS ACCESSIBLE TO THE PUBLIC, SHOULD BE MARKED UP AT EACH POINT WHERE FUTURE REVISION IS ENVISAGED.

WHAT IS THE ROLE OF PARLIAMENT IN ITS REVISION?

51. As we discussed above, the Cabinet Manual is said to be in the collective ownership of the Cabinet, which asserts the sole power to amend it. In its response to our earlier report, the Government stated that "The Cabinet Manual is drafted by the Executive, for the Executive. It sets out the Executive's understanding of laws, conventions and rules on the operation of government. The Government considers that it would not be appropriate for Parliament to decide its content."[57]

52. As we have argued both above and in our earlier report, the purpose of the Cabinet Manual must be in part to inform the public about the operation of government: "The Manual, however, […] might become, whatever the intention […] the basis for a shared understanding beyond the Executive of important parts of the United Kingdom's previously uncodified constitution. Parliamentary intervention would be entirely appropriate in such circumstances."[58]

53. The potential role of Parliament in any such revision remains to be established. Professor Hazell and Dr Yong advocated a limited role for Parliament in revising the Cabinet Manual:

It is open to Parliament to scrutinise the process and the result, just as it is open to Parliament to scrutinise any actions or policies of the Executive. But it is not necessary for Parliament to be involved: the authority of the Cabinet Manual derives from Cabinet, and not from Parliament.[59]

Drawing on the experience in New Zealand, which has a longer-established Cabinet Manual, they stated:

Professor John McEldowney largely agreed with this view:

54. In our earlier report we expressed the hope that our Committee would be able to engage in an "ongoing dialogue with the Government about the Cabinet Manual and its contents"[62], and to this end the Committee has regularly made suggestions on what should be included in the Manual. Despite its restrictive view on ownership of the Cabinet Manual, we expect the Government to give serious consideration to any proposals for revision of the Manual which are made by Parliamentary committees.

55. UNDOUBTEDLY THE CABINET MANUAL IS A SIGNIFICANT DOCUMENT. IN THE ABSENCE OF WIDESPREAD PUBLIC ENGAGEMENT WITH ITS , ITS MAIN USE HITHERTO HAS BEEN AS A GUIDE FOR THE EXECUTIVE ON THE OPERATION OF GOVERNMENT. GIVEN THE FACT THAT MOST CHAPTERS RELATE TO, AND HAVE A DIRECT IMPACT ON, THE WORK OF PARLIAMENT AND THE RELATIONSHIP BETWEEN PARLIAMENT AND THE EXECUTIVE, WE CONSIDER THAT PARLIAMENT, THROUGH THE RELEVANT SELECT COMMITTEES OF EACH HOUSE, SHOULD BE CONSULTED ON ALL PROPOSED REVISIONS TO THE MANUAL WHICH RELATE TO PARLIAMENT AND ITS RELATIONSHIP WITH THE EXECUTIVE.

SPECIFIC SUGGESTIONS FOR REVISION

56. This Committee made some specific suggestions for revision of the Manual in our earlier report. We discuss these below, together with additional issues which have emerged during our most recent inquiry.

DUTY ON INCUMBENT PRIME MINISTER TO REMAIN IN OFFICE

57. After the 2010 General Election, the incumbent Prime Minister, Rt Hon Gordon Brown MP, remained in office until it was clear that the current Coalition parties were in a position to be invited by the Sovereign to form an administration. In our previous report we acknowledged that

there is a continuing dispute over the extent to which a Prime Minister has a duty to remain in office when it is unclear who else might be best placed to lead an alternative government. The Cabinet Manual needs to give clarity to the extent of this uncertainty, rather than to attempt to resolve the argument.[63]

58. In its response, the Government indicated that the text of the first edition of the Manual relating to the position of the Prime Minister in office in such circumstances had been amended.[64] The relevant text in the first edition of the Manual now reads:

59. At the time of our earlier report were content to accept there were differing views on this issue. Professor Hazell highlighted to us why it is important, especially for the public and the media, to have a clear idea of what should happen after the General Election:

60. We acknowledge the amendment of the Cabinet Manual in order to reflect the extent of uncertainty over whether a constitutional convention has been established on the resignation of a Prime Minister after a general election. We also consider that the public is entitled to as clear a picture as possible of the procedures to be followed in forming a government after a general election, especially if there is uncertainty as to what the composition of the next Government will be. WHILE THE CABINET MANUAL REFLECTS CURRENT UNCERTAINTY OVER THE CONSTITUTIONAL OBLIGATIONS ON A SITTING PRIME MINISTER WHO DOES NOT EXPECT TO BE ABLE TO FORM AN ADMINISTRATION AFTER A GENERAL ELECTION, THE PRINCIPLE THAT THERE MUST ALWAYS BE A GOVERNMENT, AND THAT THE SOVEREIGN MUST ALWAYS HAVE AN ADVISER IN THE FORM OF A PRIME MINISTER, IS UNAMBIGUOUS. WE RECOMMEND THAT, FOR THE BENEFIT OF THE MEDIA AND THE GENERAL PUBLIC, THE CABINET SECRETARY SHOULD SET OUT CLEARLY, AND WELL IN ADVANCE OF THE FORTHCOMING GENERAL ELECTION, THE GOVERNMENT'S VIEW OF THE CONSTITUTIONAL PRINCIPLES WHICH UNDERPIN THE CONTINUANCE IN OFFICE OR OTHERWISE OF ADMINISTRATIONS FOLLOWING A GENERAL ELECTION.

PRE-ELECTION CONTACTS

61. The convention that opposition parties are entitled to enter into confidential discussions with senior civil servants in the run-up to a general election is long established. Whilst these discussions must be sanctioned by the Prime Minister of the day, they are intended primarily to allow opposition spokespersons to familiarise themselves with aspects of departmental organisation. In April 2014, it became known the current Prime Minister had written to the Leader of the Opposition to inform him that pre-election contacts between the Opposition and the Civil Service would be authorised from October 2014, 7 months prior to the May 2015 general election.

62. The first edition of the Cabinet Manual, citing the Directory of Civil Service Guidance, has this to say about the authorisation of pre-election contact with Opposition parties:

63. In our report on Fixed-term Parliaments: the final year of the Parliament, we noted that it was "disappointing that the Prime Minister has decided to limit pre-election contacts to the final seven months of this Parliament"[68] and stated that:

Professor Hazell and Dr Yong agreed:

64. In its response to our report the Government argued that the 2011 Act only fixed the date of general elections, and "did not otherwise affect the customary privileges and powers of the Prime Minister."[71] The Government asserted that there had not been a standard length of time for pre-election contacts since their inception in 1964: the convention that contacts be authorised up to 16 months before the latest possible date for a general election, established in 1995, reflected the need to account for early general elections, a need dispensed with following the entry into force of the 2011 Act.[72] The Prime Minister is said to have decided on seven months as "an appropriate length of time for effective and meaningful contact […] in line with previous practice."

65. The Government has made clear that it considers the direction of the Civil Service in this regard is solely a matter for the Prime Minister and not an issue for Parliament. It has indicated that the Cabinet Manual may in due course be updated, along with the authority for the Manual—in this case the Directory of Civil Service Guidance—once a full fixed-term Parliament has run its course.

66. WE MAINTAIN THAT THE ADVENT OF FIXED-TERM PARLIAMENTS, AND THE CERTAINTY THEY BRING TO THE POLITICAL PROCESS, SHOULD BE REFLECTED MORE WIDELY IN THOSE ELEMENTS OF THE POLITICAL CYCLE WHICH REMAIN WITHIN THE POWER OF THE PRIME MINISTER TO DETERMINE. WE DO NOT BELIEVE THAT THERE IS A COMPELLING CASE FOR THE PRIME MINISTER ALONE TO DETERMINE WHEN IT IS APPROPRIATE FOR PRE-ELECTION CONTACT TO BE AUTHORISED. IT IS MANIFESTLY IN THE INTERESTS OF GOOD GOVERNMENT FOR PRE-ELECTION CONTACTS BETWEEN THE CIVIL SERVICE AND OPPOSITION PARTIES TO BE AUTHORISED AS A MATTER OF COURSE 12 MONTHS BEFORE EACH GENERAL ELECTION HELD IN ACCORDANCE WITH SECTION 1 OF THE FIXED-TERM PARLIAMENTS ACT 2011. WE RECOMMEND THAT THE DIRECTORY OF CIVIL SERVICE GUIDANCE BE AMENDED TO PROVIDE FOR A STANDARD 12-MONTH PRE-ELECTION CONTACT PERIOD, AND THAT AT ITS REVISION THE CABINET MANUAL BE AMENDED ACCORDINGLY.

WAR POWERS

67. In our earlier report on the Cabinet Manual we raised concerns that the convention on consulting Parliament before committing UK armed forces to action overseas had been omitted from the draft version:

a surprising omission from the draft […] is the convention, acknowledged by the Government, that Parliament should have the opportunity to debate decisions to commit troops to armed conflict, and that the debate should take place before the troops are committed, except in emergency situations.[73]

The Government agreed to rectify the omission. The first edition of the Cabinet Manual now acknowledges that a "convention had developed in Parliament that before troops were committed the House of Commons should have an opportunity to debate the matter".[74] In March 2014 we recommended in our report on Parliament's role in conflict decisions: a way forward

68. Responding to the Westminster Hall debate on our report on 19 June 2014 the Cabinet Office Minister, Rt Hon Greg Clark MP, agreed with the Committee's recommendation. He stated:

69. In his evidence to us the Cabinet Secretary, Sir Jeremy Heywood, acknowledged that the Cabinet Manual already reflects the fact that Parliament has a role when deciding to commit armed forces. He suggested that a solution on how to reflect this would be forthcoming shortly:

70. WHILE WE WELCOME THE COMMITMENT TO UPDATE THE CABINET MANUAL TO REFLECT RECENT INSTANCES WHERE THE CONVENTION ON CONSULTING PARLIAMENT BEFORE DECIDING TO COMMIT ARMED FORCES OVERSEAS HAS OPERATED, SUCH A COMMITMENT IS MEANINGLESS WITHOUT A CLEAR AND PUBLISHED PLAN FOR REVISION OF THE MANUAL. SINCE THE MANUAL IS ACKNOWLEDGED TO BE A 'GUIDE TO THE RULES', AND NOT THE SOURCE OF ANY RULE, ANY UPDATE TO THE MANUAL SHOULD FULLY AND UNAMBIGUOUSLY REFLECT THE SCOPE OF UNCERTAINTY OVER THE USE OF THE CONVENTION, AND TAKE INTO ACCOUNT THE ISSUES ON THE USE OF THE CONVENTION RAISED BY THIS COMMITTEE ON BEHALF OF THE HOUSE.