I don’t often quote Jack Straw with approval, but he was surely right when he described the United Kingdom, rather complacently, as an ‘executive democracy’.  We do not live in a popular democracy, in which ‘we, the people’ control the way we are governed.  Instead, we are subjects in a country ruled through Parliament by an executive which sits in the legislature and controls it.

This is why the question of Sir Gus O’Donnell’s Cabinet Manual – which sets out the laws, rules and conventions of governance in the UK - is so significant.  This document is dangerously close to becoming accepted as a first draft, embryo, proto- or surrogate written constitution for the United Kingdom.  After all, its original purpose under Gordon Brown was to provide a base for a wide-ranging public debate on whether the UK should seek to adopt a written constitution.   O’Donnell himself has given an interview to the Daily Telegraph, in which he said of the Manual, "I think those who are in favour of a written constitution will start with it …"  

Graham Allen MP, who chairs the Political and Constitutional Affairs select committee, is one of the few genuine democrats in public life. He has acknowledged that the Manual is ‘the closest thing’ we have to a written constitution - a statement which is an indictment of the black hole within which our political lives are governed.

Who owns the constitution?

There is most certainly no good reason to ‘start with’ the Manual in writing the constitution.  O’Donnell made it quite clear in evidence to Allen’s select committee last week (as I have reported on OurKingdom), that the executive - not Parliament - ‘owns’ the Manual and will periodically change it as it sees fit, though it would deign to make any significant changes known to Parliament. He disarmingly stressed the modest nature of the document – just a guide, you know, with no legal weight – and disavowed any intention to develop it as the basis for a written constitution.

But why would the executive bother to do so?  Let sleeping dogs lie.  Why enter into a political debate that would inevitably throw open the question of how we are governed?  Nerdy people like me would protest that the Manual is merely the product of the executive.  We would argue that a written constitution must begin with the people; and that it should be created by a widespread deliberative and transparent process that ends with the people. Who knows?  The people might respond.

Instead this modest document will serve the executive very well. It fits neatly into the very essence of the ‘unwritten constitution’.  As MPs on Allen’s committee pointed out during O’Donnell’s appearance before them, the very act of interpreting and writing down the rules and conventions of governance has a prescriptive effect that shapes the process of governance itself. It is in this light that we should interpret the objectives of publishing the Manual in draft as O’Donnell set them out in his foreword to the document: namely, “to ensure that – as far as possible – the Cabinet Manual reflects an agreed position on important constitutional conventions”; and to “help clarify the position and achieve a common understanding” where there is doubt or disagreement.

But this surely is for Parliament, not the executive, to decide?  There are issues in the document that should not be determined by the executive – for example, the rules governing election procedures and the appointment of new prime ministers. As one of O’Donnell’s interlocutors asked, would you trust Diego Maradona to act as referee on handball decisions?

Further, as the executive adapts the Manual over time, they will be able to nudge the executive’s view of its role into constitutional doctrine.  What was it that Lord Butler, a predecessor of O’Donnell as Cabinet Secretary, said to one of Peter Hennessy’s students who asked him what the constitution was?  “It is something we make up as we go along.”

Quite: that “we” is very much not us, the people.

I was the main author of Democratic Audit’s The Unspoken Constitution, a satirical spoof constitution which began:

We, the elite, do not believe in the kind of constitution most other advanced nations have ... We describe ours as the “unwritten constitution” ... It allows us to decide what governments can do; and best of all, only we have the power to change it.

Quite a few readers objected that our spoof was too real to be funny.  Those of them who now read the Cabinet Manual will very likely experience a sense of déjà vu.  The Manual is not funny (as the spoof document is), but it does confirm the way in which the unwritten elements in the constitution allow governments to decide what they can do and endow them with the sole grasp of the power to change it. It also manages at the same time to be both real and unreal.

Unreal, reverent and evasive

Unreal?  Yes, in the sense that the  Manual prefers the myths of constitutional doctrine to the realities and offers instead an uncritical and formal view that does not reflect or acknowledge serious practical and democratic shortcomings in the processes of government – deficiencies that have been identified by generations of scholars, practitioners and ‘experts’.  For example, it opens with a reference to a ‘sovereign Parliament, which is supreme to all other government institutions”.  Yet this is manifestly not the case in at least two important respects. First, as I point out above, the government of the day dominates Parliament and the doctrine of ministerial responsibility to Parliament is a fiction that seeks to disguise this reality.  

Secondly, the statement fails to do justice to the extent to which the United Kingdom is constitutionally part of the European Union and its Parliament is therefore subject to EU law and the rulings of the European Court of Justice. Throughout the Manual its authors downplays the impact of EU law on parliamentary ‘supremacy’. For example, its introduction states that “European and international law . . . inform and influence the UK’s constitution”; and later observes that “Parliament has provided for the incorporation of the EU into the UK’s domestic law.”  In fact, Parliament has provided for the supremacy of EU over domestic law and any incompatible UK legislation. It therefore overrules Parliament’s ‘supremacy’.

Whether the Manual’s reticence reflects an unwillingness to acknowledge this fundamental breach in the UK constitutional doctrine of Parliamentary sovereignty – something it presents as untouched and uncontested  - out of a sense of the EU’s unpopularity in the UK or on the Conservative back benches, is not for me to say.

Early on, the Manual states: “The Sovereign is the Head of State of the UK, providing stability, continuity and a national focus”.  There is an element of truth in this deferential statement, but the kind of stability, continuity and focus the monarch supplies is not necessarily of great public value.  More to the point, given an electoral system that can and does violently de-stabilise public policy, institutions like the NHS and people’s everyday lives – as we know only too well under the coalition government – then it has a ring of complacency that it entirely out of keeping in a document with constitutional ambitions.

As the French philosopher Montaigne said of life, so it is with the constitution; “whoever writes about it only reverently and according to the rules, leaves out more than half of it”.

The pre-occupations of the executive

Actually, the Manual is not so hot on the rules either.  It is real in the sense that it represents the pre-occupations of the executive within the insular traditions of British ‘exceptionalism’. These pre-occupations give it a strongly executive and institutional bias, evident from the start in its brief institutional description of our ‘parliamentary democracy’, a ‘supreme’ Parliament and an ‘independent judiciary’. There is here no reference to the rule of law which is surely one of the main foundations of democracy and liberties in the UK as elsewhere nor, for example, to the rules and basis for UK citizenship.  As Anthony Barnett pointed out in an immediate, angry response in the Guardian’s Comment is Free when he described the Manuel as “the last steaming dump of Labour's lost opportunity”.

Indeed, there is no place in the document for the people. They, or rather we, remain peripheral throughout this account.  Yet any document with claims to represent a democratic constitution ought to begin with the people, as the American constitution famously does with the proclamation, ‘We the people’.  Nowhere does it openly acknowledge that the United Kingdom is not a popular democracy, as most western democracies are. The executive emphasis also means that human rights and civil liberties, and even some electoral arrangements, are given scant attention.  Finally, the Manual also takes for granted the government’s power to settle major constitutional issues, such as for example the reduction in the number of parliamentary constituencies or reform of the House of Lords, on the basis of its majority in the House of Commons.

The limited nature of the consultation so far is another sign of its authors’ remoteness from the public. Cabinet Office officials consulted a few ‘constitutional experts’ in private, selected by the Cabinet Office on terms decided by the Cabinet Office. Before this full draft was published, the only open consultation was with the House of Commons Justice Committee on the draft of what is now Chapter 2. The three-month consultation period on the full 147 page draft, which took in the Christmas and New Year holiday period, was not sufficient for a document which is ‘the closest thing’ the UK will have to a written constitution.

The terminology of the document also reflects the interests of the executive in ambiguity and generality rather than, say, the need for clear rules.  This is a document of ‘usuallys’ and ‘shoulds’ rather than ‘musts’. There are scores of ‘shoulds’. As a submission (pdf) from Democratic Audit to the select committee comments, “The Manual risks being especially vague where it appeals to descriptions of ‘best practice’ rather than cataloguing conventions or rules” The Audit cites for example its treatment of the role of pre- and post-legislative scrutiny in Parliament: “Ministers should consider publishing bills in draft for pre-legislative scrutiny, where it is appropriate to do so. Reports from the Commons Liaison Committee have identified this as good practice”.  This treatment of course offers ministers a substantial amount of discretion about whether to subject draft Bills to pre-legislative scrutiny or not, as the Audit points out: “Recent experience with the Parliamentary Voting System and Constituencies Bill and the Fixed-term Parliaments Bill would appear to suggest that, even for legislation with major constitutional significance, ensuring sufficient time for pre-legislative scrutiny may not be regarded as a priority by Ministers”.

The treatment of conventions is another area where the Manual is evasive. The fact is that very few key conventions are treated as binding, and even they are vulnerable to change – usually by ministers – or may simply be ignored.  Take, for example, the convention that government should make all “the most important announcements” of policy first in Parliament – a convention that is notoriously honoured more in the breach than observance.  The Manual implicitly accepts this reality, with another ‘should’:  “When Parliament is in session the most important announcements of government policy should, in the first instance, be made to Parliament” [my italics].

Some of the descriptions of conventions are so vague as to be unhelpful and possibly open to abuse, e.g.:  “The Prime Minister has few statutory functions but will usually take the lead on significant matters of state”. What does “taking the lead” mean? What are “significant matters of state”.  What safeguards are there?  How robust are they?   The Chilcot Inquiry will report soon on such questions over the way Blair “took the lead” over Iraq.  Moreover, under UK constitutional arrangements, statutory powers are vested largely in ministers, not the Prime Minister. Which means that, by law, they exercise these powers - is this legal right overridden by the concept of the PM “taking the lead”?

What’s missing- and what’s added – in the Manual’s account?

Given the prevailing assumption that the Cabinet Manual is some kind of embryo codified constitution there are major omissions which render it almost valueless as a “starting place” for that role; and which also makes it less valuable as a guide for ministers and officials. The following list of omissions is not exhaustive and we have signalled some of them above:

• There is no discussion of the widely-held view that the process of going to war in Iraq created a new convention that Parliament should be consulted over any decision that could result in the UK despatching troops abroad for military purposes (see also my report for OK on the actual select committee hearing and Graham Allen’s subsequent post);
• The Manual says that the executive chose to constrain itself to the rule of law in the Constitutional Reform Act 2005, recognising “The existing constitutional principle of the rule of law”.  However, under the common law the executive was already subject to the rule of law;
• The Manual appears to try and crystallise the existence of a convention which had seemingly not previously been fully formed in the case of the approach to be taken to applications for official information under the Freedom of Information Act 2000. It is stated that, while each case must be considered on its merits, “the working assumption is that information relating to the proceedings of Cabinet and its committees should remain confidential…”  This may be categorised perhaps as an example of executive creep?
• The Manual appears to invent a new convention on the position of a Prime Minister after losing an election that is inspired by the recent controversy over Gordon Brown’s conduct in 2010, stating 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”.
• There is no mention of citizenship law, or of immigration and asylum law.
• Only Parliamentary elections merit inclusion, thus excluding the arrangements for elections to the European Parliament, devolved institutions and local government.
• The devolution section does not mention devolved Greater London government, and the local government section only mentions the Greater London devolution settlement in passing.
• A very traditionalist view is taken about the ability of Parliament, if it chooses, to alter or revoke devolution settlements. There is no explicit suggestion that, since these settlements were set up following referendums, they would require referendums to be overturned. Similarly it is not stated that withdrawal from the EU would require a referendum.
• The Electoral Commission receives only a passing reference and there is no substantial description of its functions and responsibilities, nor of the law relating to party political funding and recognition and spending rules for elections and referendums.
• The Salisbury-Addison Convention (i.e., that the House of Lords should not block legislation that was in a manifesto) is missing - a significant issue at the moment since it is not clear that the Coalition Agreement can be regard as having received a mandate in the same way that a manifesto does.
• In the local government section, there is no mention of the ‘Central-Local Concordat’ - does this mean it no longer holds?
• Significant areas of state activity are entirely missing. Policing and the security and intelligence services do not appear at all and the armed forces rate a mention only by way of formal arrangements.
• Bodies with a significant constitutional role, such as the Equality and Human Rights Commission, the Committee on Standards in Public Life, the Joint Committee on Human Rights in Parliament, the Northern Ireland Human Rights Commission and others, do not rate a mention.
• A roll call of international and European treaties is highly selective. It fails to mention, for example, the UK’s ratification of UN human rights instruments such as the International Covenants on Civil and Political and Economic, Social and Cultural Rights.
• Parliament has important privileges that protect its role and free speech in the House of Commons that go unmentioned.

All in all, the Cabinet Manuel and the process that led to its composition and circulation is a dog’s dinner, made all the more shameful but the by the silent ignorance and uninterest of the media, especially the BBC and the lobby correspondents.