In the political season about to start, we can expect the appearance of the fullest ever publicly available, official statement of the rules of the UK political game.
The Cabinet Manual, published in draft for consultation last December (as reported on OurKingdom at the time), is seemingly near completion.
Subtitled 'A Guide to the laws, conventions and rules on the operation of government', it is likely in time to be treated by many – including in the media – as the closest equivalent to something the UK famously lacks: a ‘written’ constitution. For this reason alone, it matters.
In future, when looking for accounts of how UK governance operates, particularly at times of scandal or crisis, observers will probably increasingly be drawn to this document. Yet its instigation has not attained the wide public attention it should command. This lack of attention is a cause for considerable regret – particularly given the problems with both the manual’s status and content in draft form.
These deficiencies have been highlighted in a pamphlet co-authored by Peter Hennessy and myself, published by ippr this week.
They include the nature of the manual as an executive-drafted-and-owned document, something to which Anthony Barnett has already objected vehemently.
Another problem arises as much of the manual is concerned with describing conventions, which are by definition nebulous entities, but form such a crucial component of our unwritten arrangements.
The danger is that the manual may give unsatisfactory accounts of these understandings, which, because this document provides what is likely to become the most prominent and official account of conventions, become the reality. We are led back here to the ownership problem, and the threat that the executive will be able, through the manual, to unilaterally define and re-define major portions of the constitution as it sees fit.
Many of the conventions dealt with in the manual are simply not for the executive to define alone – or in some cases at all. For instance, in the draft, statements are made about the discretion that Parliament and the courts might afford to ministers in holding them to account. Such decisions are for those respective branches of state to make, not the government.
The conventions surrounding the monarchy are also dealt with in a problematic manner. There is reference to the need for Royal Assent to be provided before a Bill becomes law, but no mention that it has not been withheld by a monarch since 1707. Furthermore, according to the draft manual: 'By convention, the Sovereign…is entitled to be informed and consulted, and to advise, encourage and warn ministers'. This convention has its origins in Walter Bagehot’s 1867 maxim that the monarch has 'three rights – the right to be consulted, the right to encourage, the right to warn'. Yet, somehow, between 1867 and 2010, the monarch seems to have acquired new entitlements: to be ‘informed’ and to ‘advise ministers’.
There are many other areas of difficulty with the draft. For instance, no mention is made of the proper role for Parliament in decisions about entering into armed conflict. The ‘primacy’ of the House of Commons over the House of Lords is asserted; but there is no explanation of whether the so-called ‘Salisbury-Addison’ doctrine, which stipulates that the Lords does not obstruct legislation enacting pledges included in the manifesto of the party which won the most recent General Election, has survived the advent of a Coalition government with no one ‘winning’ manifesto to draw upon.
Perhaps most fundamentally of all, though more of a legal doctrine than a convention, the account provided of parliamentary sovereignty needs improvement. Parliamentary sovereignty has been and will continue to be associated with major political controversy, involving such matters as the role of Britain in the European Union. And in coming years, it may prove necessary to curtail the doctrine with respect to Scotland in order to provide a package of autonomy sufficient to induce it to remain in the Union.
The draft manual fails to make clear the view of the executive on crucial issues associated with parliamentary sovereignty including:
- The source of parliamentary sovereignty, and whether it was made and could possibly be unmade by judges;
- The ability of Parliament to limit itself;
- The ability of courts to disapply legislation, including acts of Parliament, particularly under the European Communities Act 1972;
- Whether a convention has developed or is developing that the government will accept and act to rectify declarations of incompatibility under section 4 of the Human Rights Act 1998 (at least after appeals have failed)
- Those areas in which the government considers Parliament to be politically if not legally bound, including whether it could reverse the verdict of referendums held on continued membership of the European Economic Community and on devolution without holding further referendums.
These issues are critical and will not go away, though governments might want them to.
They help illustrate why it is important that the widest publicity is given to this document – and its faults – now: the public should be aware that it is being produced and that it may come to define crucial parts of the way they are governed. They must also be informed of any imperfections that remain in the final publication. However, what those outside the executive can do about such faults once identified is not clear.