Last December the government published in draft form a document known as the ‘Cabinet Manual’. It sets out to describe the laws, conventions and rules impinging upon the operation of the executive branch of the UK constitution.
The Cabinet Manual is not a written constitution – something which the UK lacks – although it does share some features with one. However, when the production of the manual was first announced by the then-Prime Minister Gordon Brown early last year, it was intended as a first step towards the possible codification of the UK constitution. This idea has since been dropped, but the Cabinet Manual project was kept on by the Coalition government.
While it is not intended to be, or even possibly to lead on to, a written constitution for the UK, the manual may come to be treated in public discourse as the closest thing to such an entity there is. (It is notable that the manual is inspired by an equivalent document in use in New Zealand which is – alongside Israel – one of the only two comparable countries other than the UK to lack a codified constitution.)
The likelihood that the manual will become a surrogate constitution has prompted Democratic Audit to take a close interest in it: and we have not been alone. No less than three parliamentary committees: in the House of Commons the Public Administration Select Committee as well as the Political and the Constitutional Reform Committee and in the House of Lords, the Constitution Committee, have all produced reports on the draft manual.
The various analyses to which the Cabinet Manual has been subjected have led to concerns, which we share, about: the process by which the manual is being produced – which has been executive-dominated; the status of the manual, which – despite protestations to the contrary – seems certain to have the effect of determining and changing constitutional practice in the UK, rather than simply describing it; and its content, which suffers from inaccuracies, omissions and redundant material.
The government has recently responded to the Public Administration Select Committee report (following a previous response to the Lords Constitution Committee. It is largely a holding reply, but certain parts of it merit comment.
First, the government has reiterated that ‘the draft Cabinet Manual is intended to be a source of information and guide, not a first step towards a written constitution’. Yet as I have noted, the manual was originally intended precisely to be ‘a first step towards a written constitution’.
There has never been a clear explanation of when, by whom and why – with the original rationale removed when Gordon Brown left office – the decision to proceed with producing the manual regardless was taken. Moreover, while the manual may not be intended by the government as the beginning of a movement towards full codification of the UK constitution, it may prove to be anyway.
Indeed, it could be argued that constitutional codification has already been taking place for some time, with the manual the latest stage in a process by which growing portions of the UK settlement are described in official, publicly available documents.
There have been a number of calls for the Cabinet Office to publish its ‘precedent book’, which would account for the operational decisions and events lying behind some of the rules asserted in the manual. The most recent version of the precedent book that has been published dates from 1954. The government reply simply states that ‘The Cabinet Office will review more recent versions and consider whether there should be a further release to the National Archives’.
Associated with the secrecy surrounding the Cabinet Office precedent book, an important flaw with the draft manual was the uneven nature of its referencing, making it unclear what was the basis for many of the conventions and rules it claimed to exist.
The government states it is ‘considering the best way to ensure that the Cabinet Manual is appropriately referenced’. But it also goes on to say that ‘it would be helpful to include more cross-references’. This idea could be seen as a diversion. A lack of cross-referencing to other parts within the same document is not a serious problem – it is the references that are absent from the draft manual altogether that need attention.
The government argues that ‘the Cabinet Manual should…indicate which parts of the Manual reflect decisions of the Executive, including new practices’. This statement appears to concede that rather than – as has been claimed – only reflecting and not changing existing arrangements, the manual will be an instrument by which the executive unilaterally can alter the constitution.
Another fundamental problem with the draft text was that it presented a settled view of certain constitutional conventions, the true nature of which is in fact the subject of some dispute. The government has offered to ‘consider how best to set out the position where the conventions and practices may not be clear and where there are different views’.
Overall, then, there are some encouraging signs here that the Cabinet Office is willing to take on board criticism and that the quality of the manual will consequently significantly be improved upon its draft form.
But one curious phrase jumped out at me. It is stated that ‘The Cabinet Manual will not be binding on Ministers but it will in some places refer to existing statutory requirements’.
It is true that there is a distinction to be made between the acts of Parliament dealt with in the manual and its contents – most importantly conventions – that do not have the force of law behind them. But there three problems with saying that the manual ‘will not be binding on Ministers’.
First of all, it seems perverse for the government to go to the trouble of producing this document and asking outsiders for their comments on it, only then to say that ministers are not bound by it.
Second, it has already been noted by a number of experts that the non-statutory contents of the manual may come to be used in judicial review proceedings, and in this sense ministers may find themselves legally bound by them.
Third, ministers can be bound in non-legal ways. For instance, there is no law stating that governments must command the confidence of the House of Commons, as set out by the draft manual in paragraphs 43-45. Yet it is unthinkable that ministers would refuse to abide by a Commons motion of no-confidence. In other words, they are politically and practically ‘bound’.
If ministers were not ‘bound’ by such conventions, many of which are described in the draft manual, then the informal, un-codified UK constitution could not function. The case for a written constitution – rather than the quasi-codified version set out in the manual – would then become substantially stronger.