Total Politics: The executive's hidden wiring exposed

Total Politics magazine this month features a timely article from Peter Hennessey (Attlee Professor of Contemporary British History at Queen Mary, University of London) and Andrew Blick (Senior Research Fellow at the Centre for Political and Constitutional Studies, King’s College London) regarding the publication of the Cabinet Manual, a document that gives us a never-before-seen insight into the work of government—even if we don't always like what we see.... (article follows)

When the coaliton was formed in May last year, it seemed that the Liberal Democrats would use their pivotal position to drive through major changes in our system of government. But following the decisive victory for the ‘no’ campaign in the referendum on the introduction of the Alternative Vote in May this year, there were grounds for believing that coalition constitutional reform momentum had been dissipated; a view confirmed by the hostile political reception received in both Houses of Parliament by the government’s Draft House of Lords Reform Bill shortly afterwards.

Yet a document published in draft last December will represent a further constitutional shift for the UK. Though this text – currently labeled the ‘Cabinet Manual’ – is appearing on their watch, its creation cannot be attributed to either coalition partner. It is an inheritance from the dying days of the premiership of Gordon Brown, who announced it was in production in February 2010.

Brown intended that the manual would be the first step in a process possibly leading to a full 'written' constitution for the UK. A more urgent impetus to produce this document came because it could provide public confirmation of the procedures to be followed in the event of an inconclusive General Election, an outcome which seemed increasingly likely in early 2010. An initial draft dealing specifically with the ‘hung Parliament’ scenario was published in time for the poll. Another inspiration for the overall document was the desire to introduce into the UK an equivalent to the New Zealand Cabinet Manual, which has existed in some form since the late 1970s.

While Gordon Brown’s written constitution project has been abandoned, the manual has survived and will represent the fullest publicly available official statement of the rules of the UK political game ever to have been produced.

Subtitled ‘A guide to the laws, conventions and rules on the operation of government’, it will cover many crucial features of the UK constitution: including the doctrine of parliamentary sovereignty; the principle of collective Cabinet responsibility; and, as noted above, the regulations governing what happens when there is no overall winner in a General Election.

Some vital principles of the UK constitution are published in an official document seemingly for the first time: for instance, the convention that the prime minister must be a member of the House of Commons, not the House of Lords.

The draft issued in December was also notable for what it did not mention. We were left in the dark, for instance, over whether the ‘yes’ votes secured in referendums held on EEC membership (in 1975) and devolution (at various points since the late 1990s) can only be overturned by further referendums, or whether the UK Parliament could decide to withdraw from the European Union or abolish devolved assemblies entirely on its own account, without referring the issue back to the general populations involved.

Nor was Parliament's precise role in decisions about British entry into armed combat set out. Consequently we do not know whether the government regards itself as bound by the House of Commons Resolution of May 2007 describing it as ‘inconceivable’ that any government would depart from the precedent set in 2002 and 2003 over the Iraq conflict in ‘seeking and obtaining the approval of the House for its decisions in respect of military action’, subject to flexibility in emergencies. It is arguable that this resolution was not fully abided by with respect to the conflict in Libya, since it could be read as requiring advance approval, which the government was arguably in a position to seek in March 2011 but did not. (However, during the debate on the United Nations Resolution 1973 of 21 March, the Foreign Secretary, William Hague, pledged that the government would ‘enshrine in law for the future the necessity of consulting Parliament on military action’.)

Those matters that were included in the draft were not always covered in an entirely satisfactory way, particularly because much of the manual deals with constitutional conventions, which are often difficult to put in writing. There is reference to the need for Royal Assent to be provided before a Bill becomes law, but no mention of the fact that it has not been withheld by a monarch since 1707. The ‘primacy’ of the House of Commons over the House of Lords is asserted. But there is no explanation of whether the so-called ‘Salisbury-Addison’ doctrine, which stipulates that the Lords does not obstruct legislation enacting pledges included in the manifesto of the party which won the most recent General Election, has survived the advent of a coalition government with no one ‘winning’ manifesto to draw upon.

Moreover, this document has been drafted within Whitehall, with little outside involvement from either Parliament or public, and will ultimately be owned by the executive. It is arguably inappropriate for such an important publication to be produced in this exclusive way; particularly since it is more than simply an operating manual for the London-based executive, extending widely as it does to issues such as the role of supranational institutions, devolution settlements, the upholding of human rights, Parliament and the nature of UK democracy. Some statements included in the draft text, including about the kind of discretion the judiciary and Parliament should afford ministers when holding them to account, are simply not within the remit of the executive to make.

Discussion of these concerns has yet to break out of the worlds of academia and parliamentary select committees into the wider public domain. But it should. The manual, and the problems with it, matter, not least because this document is likely to be treated by many – including within the media – as the closest equivalent to the written constitution which the UK famously lacks.

In truth, though, there are crucial differences between the manual and the text of a written constitution (which the manual does not purport to be). The inclusion of rules, conventions or laws within it does not explicitly afford them any legal status beyond that which they already possess (although it may come to play a part in legal proceedings to a limited extent). It neither entrenches its contents nor prescribes a procedure through which it can be amended. Moreover, the production of the manual – an executive dominated process – does not accord with the democratic principles that could arguably be expected if it were intended to be a written constitution. It is not owned by all of us, and could not possibly open with the phrase ‘We the people’.

Indeed, powerful statements of this kind – associated with some of the most famous world constitutional statements – are absent from the manual. It lacks poetry – not one of its phrases is likely to cling to the Velcro of memory. Instead of lines such as ‘We hold these truths to be self-evident’ or ‘Men are born and remain free and equal in rights’, what could be seen as the preamble (the foreword) begins: ‘The way in which government operates is a vital part of the United Kingdom’s (UK) democracy, but it can be complex for those involved in, and for those outside of, government’. And closes: ‘We envisage that an updated version will be available on the Cabinet Office website, with an updated hard copy publication at the start of each new Parliament’.

The true significance – and considerable value – of the manual is as a window into executive practice and the executive’s view of constitutional procedure. Not only enthusiastic constitutional observers should peer through that window – one never before opened in this country – at regular intervals, even though we might not always like what we see. Within the machinery of British politics, the hidden wiring is emerging.