The Cabinet Manual is as close to a written constitution as Britain has. But there are dangers that it has been written as a guide to how ministers think we should be governed, not an account of how the constitution works in practice. And will it be followed at all?
The text modestly describes itself as: ‘A guide to laws, conventions and rules on the operation of government’. But other observers have attached a wider significance to the Manual, including Stuart Weir and Graham Allen MP, here on OurKingdom. More recently, Allen, chair of the House of Commons Political and Constitutional Reform Committee, put it:
Whatever its precise nature, the manual is important and merits close and sustained attention.
Following the publication of the draft last year, I produced various assessments of this earlier version of the document, including a report co-authored with Peter Hennessy for ippr. While I will consider the final Manual in more detail over coming months, some preliminary comments are possible.
To begin with, it should be noted that the Cabinet Office has shown willingness to consider and act upon criticisms of the draft, an openness which should be welcomed.
One area where improvements have been made following the consultation is to the portion of Chapter Two on ‘Elections and Government Formation’ which deals with procedures to be followed in the event of a General Election yielding no single-party majority in the Commons.
Previously, the document reproduced in a footnote the statement made by Nick Clegg in advance of the May 2010 poll that in such circumstances:
whichever party has won the most votes and the most seats, if not an absolute majority, has the first right to seek to govern, either on its own or by reaching out to other parties
Not only was this statement potentially contradictory – the party which wins the most votes is not necessarily the same as the one which has won the most seats – but it appeared to assert the existence of a principle previously unknown to UK constitutional theory.
This quote has now been removed. If it had not been, there would have been a danger of the Manual being used to put across the particular views of ministers of the day about what the constitution should be, contradicting its purpose as a general statement of practice and rules as they are. Similar problems arose in this section with the claim in the draft that:
The incumbent Prime Minister is not expected to resign until it is clear that there is someone else who should be asked to form a government because they are better placed to command the confidence of the House of Commons and that information has been communicated to the Sovereign
The government now agrees that ‘it is for the Prime Minister personally to decide whether to resign and when to do so’.
However, the new version of the manual still asserts that:
An incumbent government is entitled to wait until the new Parliament has met to
see if it can command the confidence of the House of Commons, but is expected to resign if it becomes clear that it is unlikely to be able to command that confidence and there is a clear alternative.
It might be asked, ‘expected to resign’ by whom? And on what authority?
Moreover, while the standard of referencing throughout the Manual is far better than it was in the draft, no specific previous cases are cited in support of claims about the rules governing the position of incumbent prime ministers after inconclusive general elections; nor, if they resign, how their successors should be selected. Given that precedent is integral to an understanding of constitutional conventions – the non-binding operational principles of UK governance – this omission is problematic.
On the subject of constitutional conventions, a more general issue I have is with a statement in the government response to various parliamentary inquiries into the Manual. In some cases – such as over the position of prime ministers following general elections with no clear single winner, discussed above – the Manual asserts particular interpretations of the existing rules about which there is a lack of agreement amongst various constitutional observers and practitioners. With this charge in mind, the government states:
Where different views have been expressed in relation to a convention, the Cabinet Manual either makes clear that there is no consensus or states the Executive’s own understanding of the position. As set out above, the Cabinet Manual is not binding and others are entitled to take a different view on the
operation or extent of a particular convention.
But allowing for others to take a different view may not be enough. The government is not merely a bystander in the operation of the constitution. Its views on the existence or otherwise of a particular convention and how it applies in individual circumstances can be decisive.
This point can be illustrated well by consideration of the conventions surrounding the role of Parliament in decisions about engaging the UK armed forces in hostile action overseas. As the Manual tells us, on 10 March this year, the government acknowledged:
that a convention had developed in Parliament that before troops were
committed the House of Commons should have an opportunity to debate the matter and said that it proposed to observe that convention except when there was an emergency and such action would not be appropriate.
Yet, eleven days later, on 21 March, the Commons was debating a motion on UK participation in military action in Libya facilitated by the government only after the action had already commenced on the weekend of 19-20 March. Do we have a contender for the shortest-lived convention in UK constitutional history? Or is there some other explanation?
Whatever the answer, the special role of the government in the sustenance – or otherwise - of constitutional conventions is clear. Even when it has acknowledged them, as over war powers, it can seemingly bypass them when it chooses. Consequently, if it does not believe a convention exists, or interprets it in a controversial way, others may hold a different view, but there is little they can do about it.
The mere existence of the Manual makes such discussion possible, even if it does not resolve it, and for this reason alone it is a valuable document. I have focused only on a small portion of it here, and hope that much fuller investigation of the document – both its contents and significance – will follow.
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