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The Cabinet Manual on UK governance is no substitute for a written constitution

The Cabinet Manual - the closest Britain has every come to a written constitution - will be published shortly. As outlined in a new analysis of the manual, it is a poor substitute for a fully codified constitution
Graham Allen
7 September 2011

If we had a written constitution in the UK, we would not need the Cabinet Manual.

The Cabinet Manual started life as part of Gordon Brown’s plan to introduce a written constitution for the UK. This plan did not survive the changeover to the Coalition government in May 2010, but the manual did. A draft was published in December last year. After scrutiny by various parliamentary committees, including the Commons Political and Constitutional Reform Committee, which I chair, it now seems a final text will be produced shortly.

Subtitled ‘A guide to laws, conventions, and rules on the operation of government’, the draft manual was certainly a wide ranging document. But as noted in a new pamphlet by Peter Hennessy and Andrew Blick, published by the ippr this week, it is no substitute for a written constitution. 

In 'The hidden wiring emerges: The Cabinet Manual and the working of the British constitution', Blick and Hennesy argue that the manual is:

'...likely to be treated by many – including within the media – as the most definitive available description of the moving parts of the constitution as they touch upon the day-to-day work of the executive, both ministers and officials. 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. The manual is in fact the broadest description of the constitutional landscape to be found in any single official document yet published in the UK.'

But it falls short of being a fully codified constitution  - something it does not purport to be anyway – for a number of crucial reasons.

First of all, it only sets out to describe rules, conventions and laws, not provide them with a legal status, beyond that which they might already possess (though it is possible the manual could come to be taken into account in judicial review proceedings). 

Second, it neither entrenches its content, protecting them against alteration, nor does it prescribe any procedure for amending them.

Third, the way in which the manual has been produced does not fulfill the kind of democratic standards that would be expected of a full written constitution. The initial drafting was carried out within Whitehall and the only public involvement has been through a three-month consultation period on the draft text. There will be no parliamentary vote on the manual, no referendum, none of the things we would be entitled to expect if the manual were a constitution.

Fourth, is the associated issue of who owns the manual. A written constitution would probably be the wider property of society, usually invoking the concept of popular sovereignty through such phrases as ‘We the people’. The manual will be owned by the executive; and the draft text restates the existing doctrine of parliamentary rather than popular sovereignty. 

While it is not a written constitution, I hope that the Cabinet Manual will stimulate a discussion of the current condition of UK arrangements, and whether they should be recast in the form of a written constitution. 

If the decision is taken to carry out this task and codify our constitution, it would be possible to address a number of other matters dealt with in this pamphlet.

They include the absence of any reference in the draft document to what is the role of Parliament in decisions about entry into armed conflict. Many of us in Westminster hoped that the experience of Iraq in 2002-3 had at least helped to establish a convention that whenever possible the government would seek approval from the Commons before entering into military combat.

While earlier this year the government only consulted Parliament on the Libyan operation after it had commenced, it did at the same time commit itself to introducing legislation in this area. However, the draft Cabinet Manual is silent on the issue. A written constitution, democratically devised and owned by all of us, could settle it clearly once and for all.

Graham Allen MP is chair of the Commons Political and Constitutional Reform Committee.

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