Yesterday, Cabinet Secretary Gus O’Donnell gave evidence on the government’s draft Cabinet Manual which he authored. He had been called before the Political and Constitutional Reform Select Committee in the House of Commons. The Committee is chaired by Graham Allen, the Labour MP for Nottingham North (a veteran Labour reformer sidelined by Tony Blair after he led opposition to the Iraq war). It is a new Committee created to monitor the Coalition government’s reforms. It decided to examine a novel and significant constitutional document – the government’s draft Cabinet Manual. This was commissioned by Gordon Brown and published in December under Cameron. It sets out to summarise in writing the rules and conventions of government in the UK – or, as one committee member muttered, its ‘fictions and fictions.’ 

I am going to pick out four issues from what turned out to be an intense and nuanced session:

• First, who owns the document?  The executive, the Cabinet Office, or Parliament?
• Second, what role does O’Donnell envisage for Parliament in shaping and keeping under scrutiny a document which by its nature will be constantly changing?
• Third, will the ‘emerging convention’ for which the executive must seek parliamentary approval before deploying the armed forces abroad – entirely absent in the draft Cabinet Manual! – be set out in the final version once the government’s consultation period has run its course, and how precisely? 
• Fourth, will the notorious ‘Nick Clegg’ foot note be removed from the final document?

Behind these questions lies a larger background issue – is the Manual a first draft for a written constitution, which Gordon Brown envisaged when he set the process of writing it in train before the 2009 election?  Or is it, as O’Donnell has insisted time and time again, a ‘modest’ guide for ministers and senior civil servants, factual but also interpretative, not legally binding, and in his personal view, not a draft for a written constitution? I shall soon publish a separate post on this larger question on OurKingdom, but here I shall just note that several members pointed out that interpreting the rules inevitably has a shaping or directing effect.

On ownership, O’Donnell was unequivocal. The Cabinet owned the Manual. Successive Cabinets would over time endorse it as need be.  Graham Allen pitched hard for a recognised role for Parliament in the drafting and revision of the Manual. Parliament, as constitutional watch-dog, was meant to control government and should have a ‘constructive role’. Didn’t Parliament, after all, own the government?  A knowing pause at that.  O’Donnell’s response was that it was up to Parliament to decide how it should be involved and that he looked forward to the Committee’s report on the Manual, as well as that from the Select Committee on Public Administration which is conducting a parallel inquiry. 

What Allen seems to be after is some sort of recognition that the executive, which as he elegantly made clear, in fact actually owns Parliament, ought not to use the government majority in the Commons to impose its views on issues relating to the Cabinet Manual and rules of governance. Could there perhaps be a regular discussion with the Committee, or an annual debate in the House?  How, anyway, members wanted to know, would revisions be carried out?  O’Donnell distinguished between significant decisions of fact (routine) and ‘rare’ significant decisions of import (of which Parliament would be “made aware”).

On war powers, O’Donnell was anxious to reassure the committee, and especially Allen, who has persistently sought to establish a clear and workable understanding.  O’Donnell reminded the Committee that he had spoken in his evidence to the Chilcot inquiry of an ‘emerging convention’ that the executive would seek parliamentary approval in advance of deploying troops in action; and that he had prime ministerial approval for this statement. This form of words evidently did not satisfy Allen. And with justice, for this ‘emerging convention’ has found it very hard actually to emerge. 

Way back on 15 May 2007 the House of Commons passed the following resolution:

Resolved, That this House welcomes the precedents set by the Government in 2002 and 2003 in seeking and obtaining the approval of the House for its decisions in respect of military action against Iraq; is of the view that it is inconceivable that any Government would in practice depart from this precedent; taking note of the reports of the Public Administration Select Committee, House of Commons Paper No. 422 of Session 2003-04, and of the Lords Committee on the Constitution, House of Lords Paper No. 236 of Session 2005-06, believes that the time has come for Parliament's role to be made more explicit in approving, or otherwise, decisions of the Government relating to the major, or substantial, deployment of British forces overseas into actual, or potential, armed conflict; recognises the imperative to take full account of the paramount need not to compromise the security of British forces nor the operational discretion of those in command, including in respect of emergencies and regrets that insufficient weight has been given to this in some quarters; and calls upon the Government, after consultation, to come forward with more detailed proposals for Parliament to consider.

In July the same year Gordon Brown told the House that the Prime Minister and Executive should “surrender or limit their powers [including] the power of the Executive to declare war ...”  Then in October 2007, came a Governance of Britain report from the Foreign and Commonwealth Office, War Powers and Treaties: limiting Executive powers, which stated  that “no government these days would seek to  commit troops to a substantial overseas deployment without giving Parliament the opportunity to debate it”.  That document seemed to regret that “terms of the debate are very much set by the Government”, but went on to raise a web of complex questions that had to be resolved. 

No effort has been made since to resolve them.  Not surprisingly, then, Allen pressed O’Donnell not only to include the convention in the Manual, but to do so in terms that would establish due process in cases where a government may have to act in an emergency and seek retrospective approval. O’Donnell invited the committee to submit its views. No-one mentioned the UK government’s advocacy of no fly zones in Libya and potential assistance to the Libyan rebels.

Now to the Nick Clegg foot-note.  Committee members were exercised over what they saw as the premature promotion in the Manual of conduct of inter-party negotiations, and of the Prime Minister, in the event of a hung Parliament. Conventions are meant to reflect long-standing and agreed practice, and members objected that they should not be based on the experience of the brief 2009 interregnum. As I understand it, Clegg chaired the government committee with oversight of the drafting of the Manual. Before the election he committed the Liberal Democrats to talk first to the party with ‘most votes and seats’. Now this criteria has been inscribed in the Manual as a foot note. This neatly illustrates the way the Manual could become a shaping document of our political system. If there is another hung parliament has this become a rule? Quite apart from objections to convention-making on the hoof, this is a rather silly commitment as it is quite possible, however the AV referendum turns out, for one party to have more votes and another more seats. I predict that the footnote will be removed from the final document. 

Members also questioned the proposition that a premier in Brown’s position would be expected to hang on until the question of his successor had been determined. Well, replied O’Donnell, “a Prime Minister will always do what he [or she] wants”.  Quite – a remark that puts the whole issue of the Manual in context.