CHAPTER 3: Supporting the Cabinet
A classical model eclipsed?
111. The second main function of the Cabinet
Office is "Supporting the Cabinet—to drive the coherence,
quality and delivery of policy and operations across departments",[10]
a function of the Cabinet Office dating from its formation in
1916. Professor Hennessy argued that the changes described in
Chapter 2 had interfered with this function. (Q 2)
112. Other witnesses suggested that the evolving
role of the centre in relation to the Prime Minister had had a
negative impact on its role in relation to the Cabinet. Professor
Smith said that there was a big difference between the theory,
"that decisions should go through Cabinet, that they are
collective decisions", and the practice, where "the
Prime Minister can … clearly direct departments in what they
do in terms of policy direction". (Q 40) Simon Jenkins
agreed. (Q 25)
113. The joint memorandum by Dr Andrew Blick,
on behalf of Democratic Audit, and Professor George Jones, Emeritus
Professor of Government, London School of Economics, argued that
"an arrangement whereby the office of government responsible
for supporting Cabinet, the Cabinet Office, is at the same time
charged with assisting the Prime Minister in any role other than
that of chair of the Cabinet is incompatible with the UK constitutional
principle of collective government". (p 174)
114. Rachel Lomax told us that "lying behind
some of the debates about the Cabinet Office is an issue about
the Prime Minister and what the role of the Prime Minister in
our system is in relation to the Cabinet's collective responsibility".
(Q 184)
115. Not all witnesses viewed such evolution
in such a negative light. Dr Wright told us that he viewed this
not as the corruption of a traditional model but as "a development
model". (Q 3)
116. Sir Gus O'Donnell asserted that "there
is, albeit somewhat artificial, a line between our supporting
the Prime Minister and the Cabinet, but we try to allocate resources
appropriately and efficiently whilst maintaining a service to
both that is of the highest quality. Such apportionment can, of
course, be varied in response to the priorities and style of individual
Prime Ministers." (p 161)
117. Professor Kavanagh pointed out that before
1997, the Cabinet Office's official remit was "to provide
an effective, efficient and impartial service to the Cabinet committees".
After 1997, it changed to "support efficient, timely and
well-informed collective determination of government policy and
to drive forward the achievement of the Government's agenda".
He saw this as a formal statement that the Cabinet Office's role
had changed from acting as "an honest broker between departments"
into functioning as "an arm of the centre". (Q 45)
118. Dr Blick and Professor Jones agreed that
the Cabinet Office had been moving increasingly into the ambit
of the Prime Minister for some time. They pointed out that the
December 1998 Public Service Agreement (PSA) stated that an aim
of the Cabinet Office was to help the Prime Minister and ministers
collectively in making and implementing decisions, yet in 2000
reference to "collective decision making" was dropped
from the Cabinet Office's terms of reference as included in its
PSA. Dr Blick and Professor Jones argued that "this arrangement
contradicted an acknowledged constitutional principle of the UK;
and it did not survive long. By 2006 'Supporting the Cabinet'
was once again described as a purpose of the Cabinet Office; and
'Supporting the Prime Minister' was listed without the words 'in
leading the government' afterwards." (p 175)
119. Lord Lipsey observed that in the 1970s the
Cabinet Office was torn between whether its role was supporting
the Prime Minister or supporting the Cabinet. (Q 105) Lord
Butler did "not think 1997 was a complete watershed. I saw
through my career a steady diminution in collective Cabinet responsibility
… maybe there was a step change in 1997 but I would
not put it beyond that." (Q 114)
120. Several witnesses compared Tony Blair's
management of Cabinet with that of his predecessors. (QQ 18,
100, 110, 299) Lord Burns observed that the Government in 1997
"was continuing to behave … in the way that it did in
opposition. So less business went through the traditional channels
with the minuting of meetings, more was done in ad hoc
groups. There was less sharing of the results of those meetings
with officials, and more issues were handled through special adviser
channels rather than through the Civil Service." (Q 80)
121. Sir Richard Mottram also told us that after
1997 "there was a shift in the power of the Prime Minister
relative to departmental secretaries of state … in the power
of the Prime Minister relative to the Cabinet, and … in the
Prime Minister's interest in the mechanisms of collective government
and all the machinery and paraphernalia that went with that. I
do not think Mr Blair was very interested in that." (Q 78)
The death of Cabinet government?
122. Witnesses commented on the importance of
Cabinet government. Baroness Hogg told us that the extent to which
Cabinet government can be a check and balance within our system
of government was a key constitutional issue. (Q 292) Professor
Hennessy told us that "if a good Cabinet government goes,
you only know when it has gone, and you regret it … if Cabinet
government is not working … everything begins to suffer."
(Q 16)
123. A number of witnesses said that they thought
that the Cabinet had become less important in recent years. (QQ 97,
118) Lord McNally mentioned the danger of seeing "the past
being peopled by giants and the contemporary by pygmies",
but thought that the better elements of traditional Cabinet government
should be rescued and reinstated. (QQ 100-1)
124. Sir Michael Barber was "not worried
that Cabinet government has been eroded, it is all a question
of whether the Cabinet chooses to exercise that power and the
particular ebb and flow of prime ministerial power at a given
moment". (Q 220)
125. Lord Lipsey, using Bagehot's phrase, observed
that "the Cabinet has come perilously close to moving from
an efficient part of the constitution to a dignified part of the
constitution. Indeed, you only … have to look at the size
of the damn thing to see it cannot possibly be an efficient body".
(Q 97) Sir Richard Mottram was doubtful that the Cabinet
could function as an effective decision-making machine but thought
that collective Cabinet government was nonetheless better than
non-collective government. (Q 92)
126. Jonathan Powell asserted that "the
Cabinet is not the right body in which to attempt to make difficult
decisions. It has too many members for a proper debate. Many of
those who are there will not necessarily be well-briefed on the
subjects under discussion unless they come directly within the
remit of their departments. And many individuals whose input is
necessary for well informed decisions, e.g. the military chiefs
of staff, are not present. It is for that reason that since at
least the late 1970s the Cabinet has been used to ratify decisions
rather than take them." (p 180)
127. Lord Wilson and Sir Gus O'Donnell told us
that the complexity of government today and the size of Cabinet
meant that not all major issues could be debated in Cabinet itself.
(QQ 118, 380-1, 411)
128. We reaffirm our belief in the importance
of Cabinet government, which plays an essential role in upholding
the principle of collective ministerial responsibility.
The role of Cabinet committees
129. The present Cabinet committee system evolved
out of the 1916 Lloyd George reforms[11]
and initially operated only on a small scale. Two permanent committees
existed between 1918 and 1945, the Committee of Imperial Defence
and a committee on future legislation together with certain ad
hoc committees.
130. The increase in the volume of government
work after 1945, reflected in the increased number and size of
Whitehall departments, led to a change in the function of both
Cabinet government and Cabinet committees. The Cabinet committee
system grew as a mechanism for coping with this increased volume
and in order to relieve the pressure on Cabinet.
131. In July 2009, eleven permanent ministerial
committees and six ad hoc committees were active, together
with their associated sub-committees.[12]
132. The two formally stated purposes of the
current Cabinet committee system are: i) "to relieve the
burden on the Cabinet by dealing with business that does not need
to be discussed at full Cabinet. Appeals to the Cabinet should
be infrequent, and Ministers chairing Cabinet Committees should
exercise discretion in advising the Prime Minister whether to
allow them"; and ii) "to support the principle of collective
responsibility by ensuring that, even though a question may never
reach the Cabinet itself, it will be fully considered. In this
way, the final judgement is sufficiently authoritative that Government
as a whole can be expected to accept responsibility for it. In
this sense, Cabinet Committee decisions have the same authority
as Cabinet decisions."[13]
133. Several witnesses emphasised the importance
of the Cabinet committee system. Baroness Hogg asserted that "if
one could do one thing to give Cabinet government a better chance,
my one choice would be to … highlight … Cabinet committees
and give them in some way a greater status … in the machinery
as perceived by the outside world". (Q 314) The Better
Government Initiative also recognised the importance of Cabinet
committees. (p 173) Lord Butler pointed out that Cabinet
committees could resolve difficult issues without needing to refer
them to Cabinet. (Q 119)
134. Lord Wilson and Sir Gus O'Donnell indicated
that Cabinet committees had largely replaced the Cabinet as the
place where formal deliberation of cross-cutting or potentially
conflicting inter-departmental issues are debated and resolved.
(QQ 118, 380-1) Jonathan Powell argued that Cabinet committees
"are an essential instrument of government decision making:
all the relevant people can be there (and not the irrelevant),
they are focussed on particular decisions, properly prepared and
they have as much time as they need to reach a decision. In my
view therefore rather than arguing about the death of Cabinet
government, when it in fact died a long time ago, we should spend
more effort reinforcing the Cabinet committees and their supporting
infrastructure as a key part of government decision making."
(p 180) Tessa Jowell argued that Cabinet committees "are
very much the engine of so much government policy development
and policy recommendation, which is then taken to Cabinet".
(Q 260)
135. When comparing his experience as a special
adviser in the 1970s with that as a junior minister after 1997,
Lord Donoughue observed that Cabinet committees "had definitely
been degraded … when they were a very important and efficient
agency feeding policy decisions into government". He added
that he thought that Cabinet committees were once more growing
in importance. (Q 100) David Blunkett thought that Cabinet
committees were "dysfunctional", either because decisions
have already been made, or because, where there is genuine disagreement,
the matter has to be settled outside the committee. (Q 229)
136. Geoff Mulgan observed that he had seen many
meetings of Cabinet committees at which the members did not have
the necessary in-depth knowledge of the issues. (Q 220) David
Blunkett was surprised to find when he entered Government that
Cabinet committees did not report to Cabinet. (Q 228)
137. We believe that the Cabinet committee
system remains an essential part of the UK's government structure,
as part of the system of collective ministerial responsibility.
In order for Cabinet committees to function effectively, we believe
that they should be mirrored by committees of officials. We ask
the Government to clarify the extent to which Cabinet committees
continue to be supported in this way.
Collective ministerial responsibility
and the model of departmental policy delivery
138. In spite of the concerns of some witnesses
that Cabinet could no longer function as an effective decision-making
forum, there was widespread affirmation of the principle of collective
ministerial responsibility, and recognition of the important role
that government departments have to play.
139. Sir Gus O'Donnell told us that the centre
had various roles, including acting as "a critical friend
to provide a challenge to departments … undertaking a policing
role to ensure appropriate and necessary actions are taken consistently
across departments; monitoring and gathering information and data
on performance and delivery; and, co-ordinating and being an honest
broker across government to maximise delivery of priorities. The
centre and departments need to maintain a balance of influence
and power that supports delivery without constraining departments
from being innovative or leaders in their field." He also
argued that the development of the Delivery Unit[14]
and Capability Reviews[15]
had "had a positive impact on relationships" and had
"led to a much stronger feeling of shared purpose and successful
delivery". (p 162) Jeremy Heywood told us that "[we]
strive at every stage when there is any significant policy to
make sure that all the Cabinet departments and Cabinet ministers
with a responsibility have every opportunity to debate, discuss,
disagree, agree and we do not announce a policy unless everyone
with an interest has signed it off and everybody is then bound
by the principle of collective responsibility". (Q 412)
140. Lords Armstrong, Butler and Wilson saw collective
responsibility as a fundamental constitutional principle. Without
it, they warned, "a government very quickly falls apart".
(QQ 108, 109, 115)
141. Sir Robin Mountfield observed that there
was now "less collegiality" and that there had been
"a strengthening of central direction, with a diminution
in the constitutional sovereignty of Departments and of their
Ministers. The apparent weakening of the Cabinet itself is perhaps
a reflection of the same trend … I suspect this trend is
inevitable." (p 70) Dr Blick and Professor Jones observed
that the centre's increased involvement in policy-making undermined
the constitutional principle of collective government and constituted
a challenge to another fundamental tenet of UK government—individual
ministerial responsibility to Parliament. (p 177)
142. Rachel Lomax told us that "there have
been big constitutional problems … when permanent secretaries
have found themselves under pressure from the centre … to
be publicly accountable for policies … and the people who
were really pushing for the policies were not there alongside
them" when it came to appearing before parliamentary committees.
(Q 202) On the other hand, Sir Michael Bichard told us that
"I never felt as a Permanent Secretary that the department
did not have power … I do not think it is unreasonable in
our democracy to expect that departments will have regard to what
the Prime Minister and the Cabinet want." (Q 202)
143. The Better Government Initiative called
for a "clear attribution of responsibilities to departmental
ministers … Secretaries of State and their Departments should
normally have primary responsibility for initiating, and always
for developing policies and legislation in their policy areas."
(p 171) They also advocated "a written framework for
the conduct of Cabinet business that unequivocally states the
personal responsibility of all Ministers, not excepting the Prime
Minister, to submit important decisions for collective consideration
by Cabinet or Cabinet Committees". (p 173)
144. Yet there was also recognition that the
traditional departmental delivery model had its limitations. Sir
Robin Mountfield told us that "there is a growing need for
something a little bit more than dispute resolution: a pulling-together
of the interests and the agendas, if you like, of different departments
across the great issues … I coined the phrase 'joined-up
government' ten years ago, which has been much abused since, but
that is what I am talking about." (Q 140) Sir Richard
Mottram told us that "what might be termed the traditional
form of co-ordination through interdepartmental machinery led
and supported by Cabinet Office staff has increasingly been called
into question as lacking sufficient drive and capacity to deliver".
(p 34)
145. Professor Kavanagh argued that "the
problems of co-ordination, of joining up departments with very
long histories and long-established pools of wisdom … are
ever-present and they are probably getting more intense as government
is moving out into new fields … if you were starting from
now, you probably would start off with … short-term departments,
set up to deal with particular problems". (Q 63) He
also said that whereas "joined-up government" had once
been the buzzword in Whitehall, there is now "a kind of weary
resignation that it is so much more difficult actually to achieve
than the original high hopes vested in it". (Q 57)
146. Sir Michael Bichard told us that one of
the central roles of the Cabinet Office should be to ensure co-ordination
between departments, because "we still have a very silo-based
governmental system", although "in other areas it should
not interfere; it should not intervene; it should stand back and
have a light touch monitoring of what is going on in departments".
(QQ 190, 203) Professor Smith told us that "at policy
level" the Cabinet Office "failed in the co-ordination
function". (Q 49) Rachel Lomax thought that there were
"big areas where departments could have worked together better
without involving the Cabinet Office at all". (Q 190)
147. Lord Burns said that the search for joined-up
government had "tended to push power towards the centre",
and had led to the tendency "to set up units within the Cabinet
Office to deal with some of these things which have then become
permanent units and which have taken on a certain amount of executive
responsibility of their own". (Q 82) Professor Hennessy
thought that departments were "thinly used" in comparison
with the past. (Q 11) Professor Kavanagh's recommendation
was to "'trust the departments', because they are the repository
of experience, of staff, of knowledge, with people on the frontline,
knowledge of the pressure groups, et cetera". (Q 69)
148. David Blunkett told us that he "saw
the tendency of both the Prime Minister's Office and the Treasury
to interfere in and to want to own the major decisions for all
departments". (Q 240) Lord Heseltine mentioned efforts
by the centre to interfere during his own time as a minister.
(Q 242)
149. Lord Turnbull argued that "too often
we have seen announcements coming, either from the Prime Minister
prompted by the Strategy or the Policy Unit, or from the Treasury,
saying, 'I have appointed Mr X to review such-and-such' …
I think that this is very belittling. I do not think that departments
will get good at doing policy if they do not get the chance to
practise it." (Q 179)
150. Sir Richard Mottram recognised the need
to defend the role of government departments. (QQ 82, 86)
He acknowledged that "there are serious issues which must
be addressed by government and which cut across … the interests
of departments … [and] can only be determined through a process
which engages the centre, the Prime Minister and the Chancellor
of the Exchequer". (Q 82)
151. Sir Robin Mountfield thought a solution
was "for the Cabinet Office to establish a structure, whether
it is the Strategy Unit or the Social Exclusion Unit or whatever,
that is owned jointly by all the departments concerned and they
are represented on it. They share in the development of the policy;
they contribute to it." (Q 179)
152. Sir Gus O'Donnell affirmed that governments
of all kinds have found those areas which cross departmental boundaries
difficult, and that is "where you need a stronger central
machine". (Q 350) Tessa Jowell told us that "one
of the changes that has been achieved over the last 12 years is
much more inter-departmental working, so whereas back in 1997
essentially the way in which thematic policy was implemented was
driven on the initiative of Number 10 or the Cabinet Office, departments
now are much more used to working bilaterally in order to achieve
policy objectives". (Q 273)
153. We reaffirm the constitutional importance
of the principle of collective ministerial responsibility. Executive
responsibility should not lie solely with the Prime Minister,
not least because accountability mechanisms are not designed to
reflect such responsibility. In the light of the trends and changes
described above, it is important that the principle of collective
responsibility is maintained.
154. The increasing recognition of issues
involving more than one department has placed pressure on the
traditional departmental delivery model. In order to ensure that
structures of accountability mirror structures of power, Parliament
should ensure that its accountability mechanisms adapt to the
changing nature of policy formation and delivery. Government should
ensure that the mechanism of the policy formation and delivery
process remains transparent.
The role of the Minister for
the Cabinet Office
155. The Committee asked witnesses what role
the Minister for the Cabinet Office plays in the co-ordinating
activities of the Cabinet Office. Tessa Jowell explained that
her role was distinct from "the overall co-ordination function,
development of the Civil Service in an organisational way, that
the Cabinet Secretary himself is responsible for". She did
not perceive her role as a supervisory one but rather as "to
some degree a co-ordination role, ensuring that where you have
policies that rely on multilateral relationships between departments
for their delivery, that those policies are given the necessary
support and brokerage where necessary in order that they be delivered".
(QQ 261, 266) She added that "I certainly do not review
the top line issues for every department every week. I am a senior
member of the Cabinet and I know what is going on as a member
of the Cabinet." (Q 282)
156. She added that she attended a large number
of, but not all, Cabinet committees and that the secretariat for
all Cabinet committees was provided by the Cabinet Office and
so she would "certainly expect to be alerted were an issue
to arise in a Cabinet committee that I was not a member of or
I had not attended for some reason that I ought to attend to".
(Q 289)
157. Tessa Jowell subsequently told us that "the
role of the Minister for the Cabinet Office evolves in a similar
way to the role of the 'centre'". (p 131) She outlined
how she saw the changes in the centre in recent years but did
not describe her role in relation to these changes, instead referring
the Committee to the current List of Ministerial Responsibilities,
which states that she leads on the Olympics, Civil Service issues,
humanitarian assistance, civil contingencies and the Cabinet Office
Briefing Room (COBR), and London.[16]
(pp 131-2) Sir Gus O'Donnell made a similar statement about
the evolution of the role, but did not explain in any detail how
the role had changed. He said that "the relationship between
the Cabinet Office Minister and myself, in my role as Permanent
Head of Cabinet Office, is no different to that of my Permanent
Secretary colleagues and their respective departmental Ministers".
(pp 163, 170)
158. Some witnesses expressed scepticism about
the effectiveness of the post of Minister for the Cabinet Office.
Sir Robin Mountfield told us that the Minister's role was not
often given much attention, and that it is "an inherently
uneasy position, without the independent command that a senior
Minister would normally expect over his or her Department, and
in particular with an indistinct boundary with the Cabinet Secretary
and Head of the Civil Service". (p 71)
159. Peter Riddell argued that the complexity
of roles that the Cabinet Office fulfils has resulted in "a
terribly confusing position for ministers who are nominally of
the Cabinet Office". (Q 20)
160. Dr Heffernan sought to describe the history
of the post of Minister for the Cabinet Office: "It is seen
as the most junior position of the Cabinet. It is not a Secretary
of Stateship. There is an argument that, to reform the centre,
you would create a much more powerful position for a ministerial
head of a reformed Cabinet Office … it is a place where …
those on the way down go, Hilary Armstrong and Jack Cunningham
… or those on the way up, John Hutton, Ed Miliband and Liam Byrne
most recently. But I cannot imagine that you would be able to
get as the … Minister for the Cabinet Office, any ability
to work out how the Cabinet Office itself works, let alone co-ordinate
or help co-ordinate government when having a post for less than
a year … The turnover of Cabinet Office Ministers …
is not really helpful for the work of the Cabinet Office".
(Q 68)
161. Lord Heseltine told us that "I do not
think that being a Minister in the Cabinet Office was ever seen
as a seriously important Cabinet job". (Q 248) David
Blunkett said that "it evoked sometimes the desire to give
people an additional role. I remember Jack Cunningham being described
as the enforcer, but without the power of enforcement nobody can
enforce anything." (Q 248)
162. Tessa Jowell's biography on the Cabinet
Office website explains her responsibilities in relation to the
Olympics and humanitarian assistance, but makes no reference to
her broader Cabinet Office responsibilities. Furthermore, although
the page heading states that she is Minister for the Cabinet Office,
the text states only that she was "appointed as Minister
for the Olympics and Paymaster General in June 2007".[17]
163. We believe that the post of Minister
for the Cabinet Office should be maintained in order to ensure
that the work of the Cabinet Office is transparent, and to ensure
that Parliament is able to hold the Department to account in an
effective way, but are concerned that the responsibilities of
the Minister in relation to the Cabinet Office are at present
ill-defined. We recommend that the Government reassess the current
function of the Minister for the Cabinet Office to ensure that
the postholder's responsibilities accurately reflect and account
for the strategic role that the Cabinet Office plays.
The Cabinet Office and the Treasury
164. A key element of the centre's relationship
with departments is the role of the Treasury. Lord Turnbull described
the relationship between the Treasury and Number 10 as "the
San Andreas Fault of government. If governments collapse, that
is where it happens." (Q 176) Sir Robin Mountfield told
us that "the relationship with the Treasury is hugely important
and you really need to look at… [all the elements of the
centre] together to get a sense of how the thing is working …
there remains necessarily a certain amount of creative tension
between the Treasury and the Cabinet Office". (Q 164,
p 70)
165. Baroness Hogg asserted that "the relationship
between the Chancellor and the Prime Minister … is probably
the most subject to personality and relationship." (Q 323)
166. Peter Riddell told us that the argument
for placing many of the functions outlined above in the Cabinet
Office was to make it "a counterpoint to the Treasury".
(Q 25) Professor Smith argued that the Treasury filled the
co-ordination "vacuum" that the Cabinet Office was unable
to fulfil, "because, whereas the Cabinet Office has very
few levers over the departments, the Treasury has very strong
levers over departments. You can see Chancellors of the Exchequer,
going back quite a long time, using public expenditure as a way
of trying to create some co-ordination of government policy."
(Q 56)
167. Tessa Jowell told us that "the relationship
again changes over time … you can see all these interconnecting
relationships which are important in making sure that the boundary
between the Treasury and Number 10, the Treasury and the Cabinet
Office, has a high level of osmosis going on all the time."
(QQ 287-8) She asserted that "the Cabinet Office is
working in ever closer collaboration with the Treasury, for example
to share and come to a single assessment of delivery against government-wide
objectives". (p 133)
168. Sir Gus O'Donnell agreed that "it has
always been an absolutely crucial relationship … These things
evolve but it is hugely important that the two operate very effectively
together … It is also quite helpful for the Cabinet Secretary
to have had some experience of the Treasury … it is really
important that we are as joined up as we can be". (Q 421)
169. Baroness Hogg warned that "once the
Treasury starts trying to do the job of individual departments,
you get a huge malfunction in the system which you need to address".
(Q 323)
170. Witnesses reflected on the way in which
the role of the Treasury shifted, in particular after 1997. Peter
Riddell told us that "one of the problems … is that
the Treasury has now become a major spending department, mainly
via tax credits … there is resentment now at the Treasury
for being a spending department not just the old watchdog."
(Q 30)
171. Rachel Lomax said that after 1997 the Treasury
took a "much more forceful lead", became "a more
energetic force", and "involved itself in the development
of policy in different parts of Whitehall to an extraordinary
extent … I certainly felt when I was in DSS [the Department
for Social Security] and DWP [the Department for Work and Pensions],
that the Treasury were the people we had to reckon with actually,
not the Cabinet Office at all." (QQ 197, 201) Dr Heffernan
said that, under the then Chancellor, Gordon Brown, "accounting
meetings … for Public Service Agreements … strengthened
the role of the Treasury in terms of following the money".
(Q 59)
172. Sir Richard Mottram told us that "the
other striking thing about the Government post-1997 was the power
of the Chancellor of the Exchequer relative to departments …
In order to move issues forward you had to make sure … there
was alignment between the Prime Minister, the Chancellor of the
Exchequer and your Secretary of State … Now that Gordon Brown
is the Prime Minister I think the power of Number 10 relative
to the Chancellor of the Exchequer has probably shifted back a
little bit more to what we might regard as a more normal balance."
(QQ 78, 80)
173. Sir Michael Bichard recalled frustration
at "the confusion which existed between Number 11 and Number
10 and between the Cabinet Office and the Treasury. In pure management
terms, you had a set of targets which you were agreeing with the
Cabinet Office and with Number 10 and then suddenly you have Public
Service Agreements, which you might have seen as the Treasury's
way of responding to the target regime, which had their own targets
attached to them." (Q 201)
174. Lord Turnbull, who was Permanent Secretary
to the Treasury prior to becoming Cabinet Secretary, stated that
"the relationship between the Treasury and the Cabinet Office
at official level was trying to correct the problems of relationships
happening elsewhere … It is well documented that there were
difficulties in the relationship between the Prime Minister and
the Chancellor, but with all the people I dealt with … we
were trying to maintain a good, co-operative relationship".
(Q 176)
175. Geoff Mulgan said that the Treasury became
"much more powerful after 1997, both in terms of its political
power but also its capacities … When Gordon Brown arrived
in the Treasury … [he] had a fairly expansive programme around
social policy and other functions … he wanted a much more
activist Treasury, a Treasury which initiated policy, which sometimes
directly delivered things itself as well as having an engagement
in the policy of many departments … I take the slightly heretical
view that the tension between the Treasury and Number 10 and departments
was as often a creative tension, a mutual challenge, as being
a disruptive tension". (QQ 224-5)
176. The Treasury has long had a central place
in government machinery. The nature of its relationship with the
Cabinet Office is therefore an important dimension of the workings
of the centre. The role and influence of the Treasury is dependent
upon economic circumstances, the nature of the political relationship
between the Chancellor of the Exchequer and the Prime Minister
and personalities.
Machinery of government changes
177. The Committee considered how the Cabinet
Office fulfilled a co-ordination function in relation to machinery
of government changes.
178. One of the prerogative powers of the Prime
Minister, exercised on behalf of the Crown, is the responsibility
for deciding on the structure of the machinery of government,
acting as arbiter over decisions for example about whether departments
should be merged, split or abolished. Prior to the Ministers of
the Crown (Transfer of Functions) Act 1946, "the transfer
of powers between departments could only be carried out by primary
legislation".[18]
The Act led to such powers being placed on a non-statutory footing
covered by an Order in Council.
179. Sir Gus O'Donnell asserted that "the
ability of the Prime Minister of the day to restructure his Cabinet—and
therefore to make changes to the machinery of government—is
fundamental to the way in which our democracy operates. Inevitably,
it will often be the case that consideration of such decisions
will need to take place in relatively short timeframes and without
widespread discussion. It is important that, within these constraints,
the Prime Minister receives the best possible advice, all the
more so when the proposed changes will have wider constitutional
implications." (p 85)
180. Sir Robin Mountfield observed that there
is too much "institutional tinkering", and that many
changes "take place not for the best organizational reasons,
but to accommodate the ephemeral requirements of personalities
involved in Cabinet-building". He argued that when changes
do need to be made, they should be "deeply considered and
properly planned and timed, and not introduced at five minutes'
notice to meet the temporary convenience or enthusiasm of Prime
Ministers". (p 71) Peter Riddell cited the rushed process
by which the Department for Innovation, Universities and Skills
(DIUS) and the Department of Energy and Climate Change (DECC)
have been set up in recent years. (Q 32)
181. Lord Wilson told us that "whenever
you have a major upheaval, everyone spends a year or two adjusting
to the upheaval and they stop doing their jobs; they take their
eye off the ball", but asserted that machinery of government
changes, when done well, could be effective. (QQ 122, 124)
182. Dr Heffernan argued that "this ad
hoc approach … is terribly bad practice", and that
"a Cabinet Office that dealt with the machinery of government
would be much more effective." Whilst he acknowledged that
flexibility was a strength of the system, he nonetheless thought
that "Parliament could insist upon some process by which
the machinery of government is altered". (QQ 45, 59-60)
183. Lord Butler argued that "there should
be some sort of parliamentary process, that Prime Ministers should
not be able to do it at the stroke of a pen … I have thought
of this … as a parliamentary constraint, namely having
to do it by a statutory instrument for which you have to get the
approval of Parliament … the Prime Minister at the moment
can simply do it through a Transfer of Functions Order and there
is no parliamentary procedure or other constraint on it at all."
(QQ 123-4)
184. The Better Government Initiative recommended
that "major changes in the machinery of government should
be accompanied by a written explanation and a business case from
Ministers on which there should be a debate and a vote".
(p 173)
185. Sir Robin Mountfield observed that "the
Cabinet Office used to maintain a Machinery of Government Division,
charged with serious analysis of Departmental boundaries and similar
issues, and the Cabinet Secretary expected to give careful advice
on such matters before decisions were taken". (p 71)
Yet when we asked Tessa Jowell about the Department's role in
machinery of government changes, she told us that "I do not
think that that is the responsibility of the Cabinet Office …
One has to have realistic expectations of what the Cabinet Office
can achieve by way of a timely intervention to prevent mistakes
happening. It certainly does happen and the occasions where it
works successfully are largely undocumented because the problem
was averted." (QQ 275-6)
186. Sir Gus O'Donnell told us that "the
Cabinet Office has continued to ensure that the Prime Minister
is given the best advice possible" (p 86):
"The Prime Minister receives advice on the structure
of the Government from the Cabinet Secretary who is advised by
officials in the Cabinet Office. Cabinet Office officials will
if necessary also consult their legal advisors in the Treasury
Solicitor's Department and the Parliamentary Counsel Office. Where
possible the Cabinet Secretary or other officials will consult
with senior officials in other departments but due to the sensitivity
of some proposed changes this will not always be possible until
a late stage. To do otherwise could be destabilising for the ongoing
business of government and undermine the Prime Minister's ability
to appoint his Cabinet … Where possible the Cabinet Office
will work with departmental officials who will be aware of the
views of key stakeholders and ensure that this is part of the
consideration of the merits of any change." (pp 85-6)
187. He further told us that "the shape
of Whitehall changes as a result of machinery of government changes,
which in themselves are brought about to support the priorities
of the government of the day. The Cabinet Office role in machinery
of government changes is part of our 'business as usual' and hence
is one of support, advice and co-ordination, including identifying
potential risks. Support for machinery of government changes is
provided in most part by the Domestic Policy Group." (p 162)
The proposal to abolish the Office
of Lord Chancellor[19]
188. The Government announced in 2003 the intention
to abolish the Office of Lord Chancellor, establish a Supreme
Court and make other constitutional reforms. Amidst much confusion,
it became clear that the Office of Lord Chancellor could not be
abolished without an Act of Parliament.
189. Peter Riddell observed that "the problem
was more a political one and it all had to be done under subterfuge
because of getting rid of Lord Irvine. I think it was as much
to do with that as the crass insensitivity of failing to consult.
But I think a lot of preparatory work had been done on that and
in general I think that the machinery of government stuff had
been done." (Q 32)
190. David Blunkett conceded that "it was
deeply unfortunate in the way that this was handled", and
that it "reflected a real problem which was that the individual
was known to be extremely powerful and any change in the role
and the future perspective of that role would have been deeply
resisted—understandably—by the individual, and therefore
to bring about change required what in retrospect was brutal and
in my view unseemly action." (QQ 235, 237)
191. Tessa Jowell observed that "the particular
issue … was one where the policy was right and the outcome
was right but everybody recognises that there were some mistakes
made in the process of implementation". (Q 274) Although
Sir Gus O'Donnell conceded that "the way that was prepared
was by no means perfect … [and] I would hope that we have
learnt our lessons from these periods and would try to do things
better next time", he argued that "these were important
constitutional changes. I hope we will think about outcomes …
the ultimate outcome of this work was positive: an elected speaker
of the House of Lords; an independent judicial appointments commission;
a new Supreme Court … perfect processes do not guarantee
good outcomes. They are necessary but not sufficient." (QQ 400-1,
404, p 86)
192. Lord Armstrong told us that "if it
had occurred when I was the Cabinet Secretary, if the then Prime
Minister had wanted to proceed in that way, she would almost certainly
have called me in and said, 'Robert, I am thinking of doing this.
Let me have a note about what it involves and what are the pros
and cons'. With the help of my colleague in the Cabinet Office
most closely concerned, I would have produced within a very short
time a note which would have set the scene for the Prime Minister
and warned her—advised her I should say rather than warned—of
what would be involved in doing that. I have not the faintest
idea whether that happened in the case of when the Office of the
Lord Chancellor was changed, and I cannot comment on it, but I
think that would have been a sensible way to proceed because if
it had been done, some of the consequences of doing it would have
been able to be taken into account before rather than after the
decision was announced." (Q 124)
193. The Committee asked the Cabinet Secretary
at the time, Lord Turnbull, for his recollection of the sequence
of events. He admitted that "on the day, it was a complete
mess-up. There are various reasons for this. First, it was very
difficult to produce the change when the incumbent Lord Chancellor
was strongly against what was being done; so you got no co-operation
from him … The Lord Chancellor was consulted. The problem
was that he disagreed with it … we were doing this in conjunction
with the senior officials of the Lord Chancellor's Department;
but they were constrained, since their boss was seen as obstructing
the change … We consulted the officials in the Lord Chancellor's
Department. Maybe we did not get the right advice … It would
have been much easier if, say, we had been able to go what is
called 'the conventional route' of the relevant Cabinet minister—in
this case the Lord Chancellor—producing a Green Paper; it
is discussed and he is prepared to act as the advocate of change.
This was not possible and I think that is where the problems stemmed
from. The Prime Minister nevertheless wanted to proceed."
(QQ 142-3, 148-9, 158) When asked why it did not happen in
this way, Lord Turnbull replied: "Because the then Lord Chancellor
disagreed with the proposal … [he] was not prepared to lead
it. That is where the problem originated." (QQ 159-60)
194. The Committee also asked Lord Turnbull whether
any consideration had been given to appointing a new Lord Chancellor
sympathetic to the proposed policy and to then carry out consultation.
He replied:
It was an option and, in retrospect, it might have
been a better option. Who was the ideal person to do it? I suppose
he was succeeded by Lord Falconer, who probably would have been
happy to take it on. This reflects the then Prime Minister's view
that you get on with things, and we have seen the results—for
both good and ill." (Q 172)
195. Subsequently, we received written evidence
from the then Lord Chancellor, Lord Irvine of Lairg about the
events of June 2003.
196. He explained that "in early June 2003
there were press rumours that the office of Lord Chancellor was
to be abolished. I had had no intimation of this". He told
us that he had a meeting with the Prime Minister on 5 June and
"asked him directly if there was any truth in the press rumours
… He hesitated and then said it was being considered, but
nothing had as yet been decided. I asked him how a decision of
this magnitude could be made without prior consultation with me,
with … my Permanent Secretary, Sir Hayden Phillips …
within government, with the judiciary, with the authorities of
the House of Lords which would lose its Speaker and with the Palace.
The Prime Minister appeared mystified and said that these machinery
of government changes always had to be carried into effect in
a way that precluded such discussion because of the risk of leaks."
(p 82)
197. Lord Irvine told us that when they next
met on 9 June, "it then strongly bore in on me that the Prime
Minister had not received … any proper advice and was completely
unaware that complex primary legislation was required … He
told me that the plan was to transfer the responsibilities of
the Lord Chancellor's Department immediately to a Secretary of
State in the Commons, Peter Hain, and then abolish the office
of Lord Chancellor with the least delay. I explained that the
office of Lord Chancellor is statutory and could only be removed
by statute and until that happened there were functions that could
only be carried out by a Lord Chancellor. He replied that in that
case there would have to be some interim arrangements in the shape
of a transitional or residual Lord Chancellor whom he envisaged
would be a junior minister." (p 82)
198. Lord Irvine told us that when they next
met the following day, he handed over two typewritten pages (sections
of which are reproduced in Lord Irvine's written evidence), which,
amongst other things, pointed out that "There are about 5,000
statutory references to the Lord Chancellor in primary and secondary
legislation requiring a huge transfer of functions order before
the new Secretary of State could exercise the Lord Chancellor's
functions … In the immediate term administrative chaos is
unavoidable". (p 83)
199. Lord Irvine told us that the next day, 11
June, he submitted to the Prime Minister a formal note outlining
what he understood to be the necessary steps to implement "proposals
which would enable the transition to a new department to be managed
while I remained nominally Lord Chancellor". He concluded
that "this approach would hold the Government up to ridicule,
and make my continuing in office as Lord Chancellor a transparent
sham. I could not myself play any part in implementing such a
proposal." He outlined an alternative proposal to the Prime
Minister but, "this 'alternative proposition' was I understand
rejected after Cabinet on [12 June] … That afternoon I returned
the Great Seal to Her Majesty and ceased to be a member of the
Government." (pp 83-4)
200. We invited Lord Turnbull, and the former
Prime Minister, Rt Hon Tony Blair, to seek to clarify the situation.
Lord Turnbull wrote that he did "not think there is any purpose
in engaging in an exercise of rebuttal and riposte. My only observation
is that it is very evident that Lord Irvine had no enthusiasm
for the central proposition in the reform proposals, i.e. that
one person should not be a Cabinet Minister and the senior member
of the Judiciary at the same time." (p 85)
201. Tony Blair defended the reforms, stating
that they were "an obvious modernisation … that no political
party now seeks to change". He did however concede that "the
process by which it was done was undoubtedly extremely bumpy and
I understand entirely the criticisms made. By the way, these should
be criticisms of me and not of Lord Turnbull or any other of the
civil servants who gave excellent and sensible advice throughout.
In today's world, with a constant churn of 24/7 speculation about
re-shuffles, it is very hard to conduct any type of consultation
confidentially. I had, at my first meeting with Lord Irvine, only
just begun widening the net of discussion and even then the possibility
of change had got out. And at that time, it was perfectly possible
I could have, on reflection, decided not to do it." (p 86-7)
202. He also wrote that he was "by no means
oblivious of the fact that this was a major constitutional change
and the consequences would have to be carefully deliberated. But
it was always my intention to signal first the basic principles
of the change and then, in time, put through the implications
in an orderly way. Once I decided on the change, we then set about
the complex business of working out the consequential changes,
but this necessarily happened at the last minute and it was very
difficult to involve the Lord Chancellor's Department until we
were sure we were going to do it. But none of the consequential
issues were insuperable. So in the end, we decided we had to keep
the Lord Chancellor position initially in the Lords, I changed
my mind as to who it should be and all of this had to follow the
basic re-shuffle and not precede it. So the process was indeed
messy. But the outcome was right." (p 87)
203. He also added that "Lord Irvine, had
I tasked him with doing it, would have carried out my wishes as
Prime Minister. And, for the record, I wish to state he was an
outstanding Lord Chancellor … However, I felt, as his memorandum
implies, he was unsympathetic to my desire to change the Lord
Chancellor position. So I thought it right to make a change of
person as well as a change to the office. It is correct that I
could have retained him in Government to see through the change
and then leave; but I thought it better to have the process of
change led by someone who was then going to be a part of it. None
of that diminished my enormous respect for, and debt to him."
(p 87)
204. The Committee invited Sir Gus O'Donnell
to provide any documentation held by the Cabinet Office on this
issue. He replied that he would "certainly go away and investigate
precisely what we can release with a view to being able to help
the Committee as much as possible." (Q 399)
205. In his subsequent written response, Sir
Gus O'Donnell told us that "in line with established practice
in machinery of government changes, the advice given to the Prime
Minister in 2003 was confidential. I am however able to say that
the Cabinet Office studied the issues carefully in the months
preceding the announcement of June 2003 and my predecessor gave
the then Prime Minister comprehensive advice and responded to
points he raised in considering it. The Prime Minister evidently
gave the options for reform careful consideration. In particular
the analysis and advice covered:
(a) the Lord Chancellor's role as a minister
in charge of a department;
(b) his role as Speaker of the Lords, and the
arrangements in place for his deputy to take the chair in case
of need;
(c) his role as head of the judiciary;
(d) that he was holder of the Queen's Great Seal;
(e) his position in the order of precedence;
(f) independence of the judiciary, including
judicial appointments;
(g) whether the Lord Chancellor need be a lawyer;
and
(h) the complexity of the legislation that would
be required, given for example that 300 pieces of primary legislation
mentioned the post by name (as did more than 1000 Statutory Instruments)."
(p 85)
206. He also informed us that "because of
the importance of being able to provide confidential advice on
a range of options to the Prime Minister, the Cabinet Office consulted
senior officials in the Lord Chancellor's department prior to
the Prime Minister's meeting with Lord Irvine in early June but
did not consult senior members of the judiciary. While I appreciate
the concerns that have been raised by this lack of consultation,
even with the benefit of hindsight I do not think it would have
been right for the Cabinet Office to undertake consultation with
the judiciary without the involvement in it of the Lord Chancellor,
which for the reasons Lord Irvine and Lord Turnbull have explained
to the Committee was not possible at the time." (p 85)
207. Our concern in this context is less with
the substance of the constitutional reforms announced in June
2003, than with the process by which they were implemented.
208. That process involved wholly inadequate
consultation both within Government (the Lord Chancellor was not
consulted before decisions were taken) and outside Government
(in particular, the failure to consult the senior judiciary).
209. There was no justification for the failure
to consult on these important reforms. If the opinions and personality
of the Lord Chancellor were considered by the Prime Minister to
be an obstacle to reform, it was open to the Prime Minister to
ask for his resignation and to appoint a new Lord Chancellor more
sympathetic to the policy. Proper consultation could then have
occurred. It would be a bizarre negation of Cabinet government
for a responsible minister to be kept in ignorance of an important
policy because he might initially oppose it.
210. We are also concerned that, as Lord Irvine
told us in his evidence, the scale of the constitutional changes
involved, and the content of the necessary legislation, were not
properly appreciated. This problem could not have arisen but for
the fact that the Lord Chancellor and the senior judiciary were
not consulted. Consultation on important constitutional reform
is essential to good government.
211. In addition, although Sir Gus O'Donnell
told us that preparatory work on the legislative implications
of the proposal had been undertaken, it appears that little consideration
had been given to the fact that specific legislation was required
to abolish the post of Lord Chancellor.
212. The Committee regards it as entirely unsatisfactory
that, in response to our request for further information, the
Cabinet Secretary did not provide documents to clarify the detail
of the steps taken by government in developing these proposals,
even if these documents could only have been provided in confidence
to the Committee.
213. It is impossible to discern a consistent
picture from the evidence received of what happened. With regret,
we must therefore leave it at that.
214. In the case of the proposal to abolish
the Office of Lord Chancellor in June 2003, the Cabinet Office
was unable to ensure compliance with proper constitutional norms
in the adoption of a change of such constitutional significance.
It is particularly disturbing that these failures occurred without
there being any external crisis which might explain, far less
justify, such failures. Consideration should be given by the Cabinet
Office to means of ensuring that such failures do not recur.
215. Whilst we accept the general proposition
that the ability to undertake machinery of government changes
should remain as a prerogative power of the Prime Minister on
behalf of the Crown, this should be subject to a number of provisos.
In the case of the proposal to abolish the Office of Lord Chancellor,
the fact that it marked a constitutional change of great significance,
with implications for both Parliament and the judiciary and that
the post could only be removed by statute, meant that it required
totally different handling.
216. We recommend that the Cabinet Office
should play a formal role in investigating the likely consequences
of any machinery of government changes, particularly those with
constitutional implications.
217. We further recommend that parliamentary
scrutiny of machinery of government changes should be enhanced,
and that, as a minimum requirement, the Government, advised by
the Cabinet Office, should be required to set before Parliament
a written analysis of the relevant issues and consequences relating
to a proposed machinery of government change with constitutional
implications, and that an oral ministerial statement be made in
Parliament. We affirm the value of the scrutiny work of parliamentary
committees in this context, and recommend that relevant committees
of both Houses be given the opportunity to scrutinise proposed
changes, both before and after they take place.
10 http://www.cabinetoffice.gov.uk/about_the_cabinet_office.aspx
Back
11
See Appendix 3. Back
12
http://www.cabinetoffice.gov.uk/secretariats/committees.aspx.
The present smaller number of committees contrasts with, for example,
the 313 committees there were in 1951 or the 160 that operated
during the Callaghan Government (see S.James (1999) British
Cabinet Government London: Routledge). Back
13
Cabinet Office (2009) Cabinet Secretariat Homepage http://www.cabinetoffice.gov.uk/secretariats/cabinet_committee_business/general_guide/cabinet_committees.aspx
Back
14
See paragraphs 44-52 above. Back
15
See paragraphs 243-249 below. Back
16
http://www.cabinetoffice.gov.uk/media/301888/lmr-oct09.pdf Back
17
http://www.cabinetoffice.gov.uk/about_the_cabinet_office/tessa_jowell.aspx
Back
18
J.M.Lee (1977) Reviewing the Machinery of Government 1942-1952
London: privately printed. Back
19
Lord Irvine of Lairg was appointed to the Constitution Committee
during the course of this inquiry. He decided to exclude himself
from the Committee's consideration of the draft report and played
no part in its deliberations. Nor did he receive any confidential
Committee papers relating to the inquiry. Back
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