Why fears the Cabinet Manual is a step towards a written constitution are unfounded

14 December 2010

The publication of the draft Cabinet Manual is an important development in explaining how government operates rather than a step to a written constitution.

The Draft Cabinet Manual’s 148 pages cover everything  from the role of the Sovereign – placed first ahead of elections — to the roles of the Cabinet, Parliament, the civil service and the law, and relations with the devolved institutions.

The draft is intended to be descriptive rather than innovatory or normative, but it may turn out to be more controversial: both over whether it represents a step towards a written constitution and over its status.

Very much the personal initiative of Sir Gus O’Donnell, the Cabinet Secretary, it  is modelled on New Zealand’s Cabinet Manual – the other main Westminster style system like the UK without a codified constitution. As such it is intended as a source of information and guidance.

This is not a step towards a written constitution

Sir Gus stresses in his foreword how: “It is written from the perspective of the executive branch of government. It is not intended to have any legal effect or set issues in stone. It is intended to guide, not to direct”.

But merely by writing down the official view of current practice, the draft may be seen, wrongly, as a step towards a written constitution. It is not. Its authors expect, or perhaps hope, that the draft will not be used by the courts, and nothing in the report looks obviously justiciable. A written or codified constitution raises far wider questions about the role of judges which are not remotely near being addressed, let alone resolved.

A more pertinent question is that many of the issues covered in the Manual are both evolving and in dispute. The draft has been developed by the civil service, after discussion with Buckingham Palace and with constitutional commentators, including the Institute for Government.

The role of elected politicians has been indirect, approving the idea of Manual, making comments when discussed by the Cabinet’s Home Affairs Committee and yesterday endorsed for publication in draft by the full Cabinet. There will now be three months of consultation and probably detailed scrutiny by parliamentary committees. But it will remain the executive’s document, not Parliament’s.

Guidance on government formation

The greatest interest has been on the chapter on elections and government formation which was published in an earlier draft form last February (PDF, 20KB). The guidance then about the conventions about what would happen in a hung parliament provided clarity to both the media and financial markets during and after the election.

It also fuelled some ridiculous conspiracy theories from eccentric academics and excitable journalists about an establishment plot to create a coalition. That is ridiculous. Sir Gus is not in the coup business.

What issues should be considered by the full Cabinet?

Much of the rest of the draft Manual is uncontentious. However there is an illuminating section on which issues should be considered by the full Cabinet, notably:

  • the Government’s legislative priorities
  • issues of a constitutional nature, including matters relating to the Monarchy, reform of Parliament and changes to the devolution settlements
  • the most significant domestic policy issues, European or international business
  • issues that impact on every member of Cabinet
  • national emergencies, including terrorism
  • any decision to take military action.

Of course, you can exaggerate process and procedure. What matters ultimately is political judgement. But having open and agreed procedures lifts the veil on any remaining mysteries about how governments operate.

Read Peter’s full essay on the Cabinet Manual and its guidance on no confidence votes and when a Prime Minister is expected to resign (PDF, 66KB)

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One Response

  1. David Walker on 14 December 2010 at 12:23 pm

    I am sure Peter is right to warn against ‘excitable’ responses. That must be because running through the Manual, though not formally delineated, is the line bounding prerogative or discretionary action by governments (ministers and officials) and embedded rules (formal or deeply conventional).

    One example. Par 387 says the Office for National Statistics publishes independent statistical information, which is supposed to comply with the UK Statistics Authority’s Code of Practice. Fine, as long as a) the legislation creating the UKSA remains in force and b) the ONS has the resources and energy to produce figures, including figures that ministers might not like.

    But Par 387 says nothing about the Cabinet Office’s right (duty?) to review both legislation and performance or about the many subtle ways in which messages are carried around the system proscribing too energetic a pursuit of ‘indepedence’.

    So much is obvious: we still have a richly informal ‘constitution’, in which discretionary decision making and resource allocation is hugely important. Formal text only takes us so far…

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