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The Cabinet Office and the Centre of Government - Constitution Committee Contents


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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