Has the Cabinet Manual 2011 begun the process of codifying the UK constitution?

Transcription

1 Unit 2 The UK Constitution Edition February 2013 Has the Cabinet Manual 2011 begun the process of codifying the UK constitution? What s the story? The coalition government has embarked on a number of constitutional reforms which have received substantial coverage in the press. Some of these policies, such as the referendum on adopting the Alternative Vote 1 in 2011, have failed, while others, such as the introduction of fixed-term parliaments, have been successful. However, the constitutional reform that could prove to be amongst the most significant has not been a high profile referendum, or a new statute law, but the creation of a new guide to the UK constitution called the Cabinet Manual. Some commentators view the creation of this official, codified document, which seeks to explain how exactly our constitution and government operates in practice, as the first step towards a fully codified UK Constitution. What exactly is the Cabinet Manual and how did it come about? The subtitle of the Cabinet Manual is A guide to the laws, conventions and rules on the operation of government. In other words, it seeks to help clarify exactly how government works. Such a document is made necessary by the fact that the UK does not have a codified constitution which would contain a clear list of entrenched rules explaining how the government should operate, and what rights citizens have. The government is keen to stress that the Cabinet Manual is a guide to existing conventions; the manual is not to be considered to be a legal or constitutional document. Plans for a Cabinet Manual, which would codify various conventions, rules and laws, began under Gordon Brown s Labour government. Initially, it was a planned first step towards a codified UK Constitution. Although this long-term goal was lost alongside Brown s election defeat in 2010, plans for the Cabinet Manual continued under the current coalition government, and a draft was published in December 2010, with the final version published in October It has also been noted that there were two other motives for creating the Cabinet Manual. With opinion polls suggesting that a hung parliament was likely in the 2010 general election, there was an interest in clarifying constitutional conventions so that the public would be clear as to what procedures would be followed, and how a coalition government might be formed. With this in mind, a draft chapter covering elections was released in February 2010, to help inform the narrative surrounding the election. Finally, the Cabinet Manual was inspired by a similar document in New Zealand, which alongside the UK and Israel, is one of the few countries to have an uncodified constitution. New Zealand created their own 1 For more information on this referendum and how it was funded in particular, see Pre- chewed Politics article Are referendums won based on the strengths of the arguments, or the size of the bank accounts?

2 Cabinet Manual in 1979 and have continued to update it to provide a clearer understanding of their constitution. What impact could the Cabinet Manual have on conventions? Conventions are very flexible. They are constitutional rules that are not written in legally binding statute laws, and so therefore they are likely to change as public and political opinion changes. As conventions are not legally binding, they are given their power by the force of public and political opinion. Many conventions are widely respected and followed; to break popular conventions could provoke a negative reaction from peers, the media and the public. However, if opinion towards a convention was to change, then the convention itself could equally evolve alongside it. Without the need to formally debate a legal change, conventions can fluidly adapt to meet the current interpretation of the issue. A good example of this is the Salisbury Convention. This convention states that the House of Lords should not oppose government bills that were contained in the government s election manifesto. The convention emerged in 1945 after the Labour Party won a clear majority in the general election. As the House of Lords was, at that time, dominated by the Conservatives, Lord Salisbury articulated the view that it would be inappropriate for the Lords to oppose bills which were included in Labour s election manifesto as they would be opposing the will of the public, who had endorsed them by voting for the party. However, fastforward to the present and the context is very different. After the House of Lords Act (1998), and the removal of all but 92 hereditary peers, it was clear that the House of Lords was no longer dominated by the Conservatives, there are now far more Labour and Liberal Democrat Peers, as well as many members who do not affiliate themselves with any party. Equally, turnout at elections has dropped, meaning that when parties win with a slim majority, they do so with a very small amount of support from the overall UK electorate. This was certainly the case in 2005 when Labour won with 35.2% of the vote, in an election with 61.3% turnout. This means that Labour, and their manifesto policies, were endorsed by only 22% of the overall electorate. As a result, some Members of the House of Lords, particularly Liberal Democrats, began to defy the Salisbury Convention, claiming that it was no longer applicable as Labour s manifesto promises had not been sufficiently endorsed by the public. This situation has been made even murkier by the presence of a coalition government that is working from a coalition agreement, rather than a successful manifesto. Many critics have questioned whether the Salisbury Convention can apply to a coalition agreement that was not explicitly voted for by the public. Therefore, for some people, the convention has weakened because the context has dramatically changed. Some critics have argued that some of this flexibility might be lost as a result of the Cabinet Manual s publication. David Cameron writes in his foreword to the Cabinet Manual that For the first time the conventions determining how the government operates are transparently set out in one place. This transparency is certainly important; it is useful to have a resource that anyone can check to clarify the bewildering number of conventions that explain how our government works. However, by writing down a particular interpretation of a wide number of conventions, to help to explain how government operates, it is possible that these interpretations of what constitutes best practice might become slightly more set in stone and difficult to change. If the Cabinet Manual comes to be used as a reference guide for civil servants, journalists and others interested in politics, the official, if not legal, status of the text could reinforce the status quo. After all, the power that conventions hold is in the pressure to conform to the agreed behaviour

3 and rules, if more people are aware of conventions, which could be likely now that many have been codified in this text, the existing conventions could theoretically become fixed. Therefore, could the Cabinet Manual strengthen the Salisbury Convention by including it in its explanation of the dynamic between the Commons and the Lords? The authors shied away from explicitly defining the convention in the main text and instead took a definition for the glossary from a 2006 report from the Joint Committee on Conventions. While both Houses of Parliament endorsed this report, the definition provides arguably just a snapshot of what is an evolving convention. There are certainly Liberal Democrat critics who would contest whether the convention as defined still exists. Was the original draft of the Cabinet Manual easily agreed upon? Some were concerned by what was missing from the 2010 draft of the Cabinet Manual. For example, of particular concern to Graham Allen MP, Chair of the Political and Constitutional Reform Committee, was the absence of a reference to the convention that Parliament should be consulted before going to war and entering into armed conflict. 2 Support for such a convention grew out of the controversial entry into the Iraq War, which was dominated by the executive. The final version of the Cabinet Manual responded to such criticisms and included a note explaining that a convention had developed whereby Parliament and the House of Commons should have the opportunity to debate such decisions. Has the Cabinet Manual already proved significant? It is difficult to judge the impact that it has made on the actions behind the closed doors of the civil service. However, many commentators and academics have pointed towards the role that the draft Cabinet Manual was able to play in clearing up the rules and conventions that govern hung parliaments. This was particularly helpful after the May 2010 election- not only for the public, but also for the actual coalition negotiations. This example appeared to prove that the Cabinet Manual was going to be a useful resource for the public to learn more about how they are governed, which is particularly important in the absence of a clear, codified constitution. How is the Cabinet Manual different to a codified constitution? Crucially, the Cabinet Manual only describes rules and conventions; it does not give them legal status. However, it is still possible that the Cabinet Manual be brought up in judicial review proceedings. Similarly, the contents are not entrenched. The Cabinet Manual will likely be updated, although how regularly remains to be seen. There will not be a specific amendment process to change the contents like the contents of a codified constitution. That said, there is likely to still be a degree of consultation and input from various experts and Select Committees, as with this original edition. 2 allen/cabinet- manual- on- uk- governance- is- no- substitute- for- written- constitution

4 Unlike codified constitutions, which regularly express the fact that they have been written for all citizens, the US Constitution beginning We the people, the Cabinet Manual is clear in stating that it is a manual for those in the executive branch of government. What concerns have been raised about the Cabinet Manual? Some concerns have been raised over the way in which the Cabinet Manual was produced. Critics claim that the process was excessively dominated by the executive branch of government and that civil servants alone should not shape a document of such importance. The government and civil service is keen to remind the public that the Cabinet Manual is not to be viewed as a legal document, and that therefore it is fitting that a document to be used by the executive be drafted by the executive. Yet, as we have seen, despite not being a legal document, it is possible that the Cabinet Manual could nonetheless have an impact on behaviour towards constitutional conventions and could even appear in cases of judicial review. Therefore, much like constitutional conventions themselves, while not strictly legal, the Cabinet Manual can be seen as the closest thing that the country has to an official, codified document explaining the rules and functions of government, and as such, this may have deserved greater input from outside the executive. Debate - What do you think? 1) Do you agree with the civil service that the Cabinet Manual is not a constitutional document? 2) Should Parliament, or the public, have had a greater say in approving the final Cabinet Manual? 3) Is the Cabinet Manual the most significant constitutional reform made under the coalition government? How does this fit into your exams? Many exam questions on the UK Constitution question whether it needs to be codified and the creation of the Cabinet Manual certainly impacts upon this debate. The Cabinet Manual was initially needed to help to clarify the conventions surrounding the process through which a government is formed in the event of a hung parliament. While certain constitutional experts could feel confident in their knowledge of the conventions, many others might not. This is one of the concerns about our slightly complicated constitution. Without having a concise set of rules, neatly organised in a single document, it is much more difficult for the citizens of a country to know and understand the processes and rules which shape how they are governed. Indeed, even in the introduction to the Cabinet Manual, it explains how the document is intended to help members of the executive branch to actually share a common understanding of how our government operates. Therefore, in answer to the question of whether the UK needs a codified constitution, the Cabinet Manual, as well as the Human Rights Act (1998) could serve as examples of how significant parts of the UK

5 constitution may actually be more organised than its multiple sources might suggest. A strong argument in favour of codification is that it makes essential rules and rights easier to learn and understand. It is arguable that the Cabinet Manual and Human Rights Act (1998) have partly achieved this. However, it could be argued that even with the new Cabinet Manual there are still great difficulties in understanding the UK s uncodified constitution. While the Cabinet Manual has attempted to clarify many of the conventions which shape the behaviour and rules of government, ultimately the fact that it only describes many of these rules, rather than legally binding them, means that significant confusion and disagreement over particular conventions could still persist. There are many points in the Cabinet Manual where its authors have been compelled to write that there is disagreement over particular rules. As long as our constitution remains uncodified, it will continue to be a great challenge to definitively write down all of the rules. The Cabinet Manual could also be used to argue that the flexibility of the UK Constitution, one of its greatest assets, has been undermined by the codification of conventions in this document. The Cabinet Manual stresses that it is not a constitutional document, and that it is merely documenting existing conventions. However, many constitutional experts have challenged whether in practice this document will be so passive. Because they lack legal power, conventions gain their force through common agreement. It is argued that individuals follow conventions because of the negative reaction that would result from the conventions being broken. By writing down conventions it seems possible that the Cabinet Manual might halt such flexibility. Being compiled in an official document might have the unintended consequence of building the view that these conventions are now official and fixed. It has even been suggested that the Cabinet Manual will likely appear in judicial review proceedings. Finally, the Cabinet Manual is also significant when considering the power of the executive. Although the government is keen to stress that the Cabinet Manual has no legal authority, we have already seen that it is likely to have an impact on constitutional conventions, and may end up appearing in court proceedings. Yet, for how important a document as it may be, it was formed largely by the executive branch. Although three different Parliamentary Select Committees scrutinised the draft manual, the formation process was still dominated by the executive. Think about how you could use this case study in the following questions... 1) In the style of AQA Now, more than ever, the UK needs a codified constitution Discuss. (25 Marks) 2) In the style of Edexcel There is no need for the UK to change its uncodified constitution. (40 Marks) 3) OCR students Discuss the case both for and against the UK continuing with its unwritten constitution. (30 Marks)