Over the past century there has been an enormous growth in the number of publicly available codes providing accounts of various constitutional rules and principles. In a new book Andrew Blick explores this phenomenon and its implications for the UK constitution. He offers an overview here.
Towards the end of this year the Cabinet Office marks its hundredth anniversary. This institution traces its origins to the secretariat David Lloyd George attached to the war cabinet he formed upon becoming Prime Minister in December 1916. Accounts of this administrative innovation tend to focus on its making possible the proper recording and circulation of the decisions of cabinet and its sub-committees. But the instigation of the war cabinet secretariat also prompted another process that has, in the intervening century, become a prominent feature of arrangements for the governance of the UK. It is the subject of my new book, The Codes of the Constitution.
In January 1917, the Secretary to the War Cabinet, Maurice Hankey, produced a document entitled Rules of Procedure, circulating it to government ministers. Its ten paragraphs contained a series of stipulations about the operation of the War Cabinet and the implementation of the conclusions it reached. Rules of Procedure was probably the first example of a genre of official texts setting out official accounts of the principles, rules and practices of the UK governmental system. Having passed through a series of transitions Rules of Procedure remains with us today as the Ministerial Code, the latest version of which was published in October 2015. In 31 pages this informs ministers about a range of issues from their participation in cabinet, to their making of appointments, to their relations with their departments, the civil service and parliament, to their political and private business, to their media relations, and even their travel arrangements.
Since 1917, numerous other codes have appeared – so many that no one public official could possibly be familiar with the existence, let alone the content, of all of them. Such was the scale of growth that, in 2000, the Cabinet Office saw a need to codify codification itself, issuing a two-volume Directory of Civil Service Guidance, a compilation of existing texts either in full or summarised form. The Cabinet Office has been a key producer of these documents; and the Treasury has also made significant contributions, through documents such as Managing Public Money. The existence of a unified permanent civil service, which properly came into being shortly after the First World War, has also been a general driver of codification.
Among the most important entries in the contemporary canon are the Cabinet Manual, the Code of Conduct for Special Advisers, the Civil Service Code, the Guide to Making Legislation and the Seven Principles of Public Life. Some of their content relates to constitutional conventions: operational rules which are regarded as politically rather than legally binding, which were once far less likely to be written down officially. While codification introduces a greater degree of formality to the UK constitution, these documents are not intended to have legal force – and often specifically disavow any such impact.
Many of these texts are produced by the executive and focus largely on its internal arrangements. Yet in recent decades the scope of codification has expanded. A number of documents drafted in Whitehall engage the business of other branches of the constitution. Giving Evidence to Select Committees: Guidance for Civil Servants (the ‘Osmotherley rules’) prescribes how officials should interact with parliament. Some codes encapsulate agreements between the UK government and other entities. The Memorandum of Understanding concerns the relationship between it and the devolved administrations. Extending even further in its reach, The Compact seeks to regulate interactions between the UK government and the hard-to-define entity known as ‘civil society’. Other codes still are produced completely without Whitehall. The House of Commons has issued Core Tasks for Select Committees, and the Judiciary of England and Wales the Guide to Judicial Conduct.
Other than an expansion in their range of subject matter and the groups involved in their production, in my book I identify further changes in the nature of codification since 1917. Crucially, it has become more open. Early texts, such as the various precursors to the Ministerial Code and the Cabinet Office Precedent Book (dating from 1954) were treated as sensitive. The public might be denied knowledge of their very existence, and even within government their circulation could be limited. They were internal management tools, used to formalise working methods and promote standards within Whitehall, anticipating or responding to difficulties, and managing internal and external change.
But – in particular from the 1980s onwards – codification became increasingly public. Sometimes, an already-existing text could be exposed to the outside. In 1992, after sustained external pressure from commentators, John Major published Questions of Procedure for Ministers – yet another name applied to the document that in 1997 became the Ministerial Code. In other cases, newly-produced codes were publicly avowed and available from the outset, such as the Civil Service Code in 1996. Over the past two decades, the advent of mass internet usage has made wide dissemination far easier to attain; and there is a stronger expectation that the public should have access to official information.
With these documents beginning to find their way to the outside, a qualitative change was underway. They were now public documents. Select committees, journalists and others could comment on them, demand changes to them, and seek to hold the institutions that issued them accountable against the principles and rules they contained. Texts began to be designed specifically with an outside audience in mind, alongside the pre-existing internal consumers. Politicians saw codes as a means of promoting public confidence in the integrity of the system – though whether they were successful is a different matter.
We can assume that some codes – such as those dealing with matters of a security-sensitive nature – remain secret. But the texts in the public domain between them provide an overview of many important aspects of the UK constitution, that would otherwise not exist in official documents. They cover important features of our system such as:
- The principles that apply to government formation, including following general elections that fail to produce a single party-majority in the House of Commons;
- The role of the Prime Minister and of cabinet;
- The values of the civil service;
- The relationship between the executive and parliament; and
- The operation of the principle of judicial independence.
In the second part of my book, I discuss the content of these documents and the overall picture they provide of the UK constitution. As I show, it is possible to query the veracity or internal consistency of some of their accounts. One particular area of controversy has been the reference by the UK government to a ‘second reading convention’, whereby it can start spending money in relation to a particular bill once it has passed this stage in the House of Commons. The House of Lords Constitution Committee objected, in a report published in 2013, to the idea that such an activity should be described as a ‘convention’, preferring the term ‘practice’. This dispute may seem a matter of semantics but is in fact of fundamental importance, pertaining to the ability of parliament to control public expenditure. That this public debate can take place helps us to understand how important codification is.
But what is the meaning of codification within the overall context of the UK constitution? A possible interpretation is that it performs functions that might otherwise fall to a full ‘written’ constitution, if the UK had such a text. Certainly, some crucial features of our system are set out in these codes. But it is clear that texts such as the Cabinet Manual are distinct from written constitutions. They are often created by a particular institution (or perhaps a negotiation between one or more), perhaps subject to consultation, but not with any popular or parliamentary approval required, as one might expect to apply to a written constitution.
Furthermore, codes do not have the firm legal status we might associate with a ‘written’ constitution. They do not take precedence over acts of parliament. However, they can conceivably be used to inform judicial review. Furthermore, some texts now have a basis in statute – most notably, the various civil service codes now issued under Part 1 of the Constitutional Reform and Governance Act 2010.
The extensive international comparisons that are the subject of chapter three of my book help to conceptualise codification. Comparable texts, dealing with similar subject matter, exist in Australia, Canada and New Zealand. While New Zealand, like the UK, lacks a ‘written’ constitution, Australia and Canada both have fundamental texts. In other words, the desire to encapsulate in writing understandings that enable the system to function is widely felt. The urge to codify is powerful, and likely to remain with us. Its origins in the UK lay in the First World War, a period of intense pressure and change. In a different way, our constitution may be entering another period of turbulence connected to the prospective departure from the European Union. Codification may have a part to play in managing the consequences.
The Codes of the Constitution (Hart, 2016) is available to order at this link.
About the author
Dr Andrew Blick is Lecturer in Politics and Contemporary History at King’s College London.
I would very much like to see an analysis without political bias (neither pro Remain nor pro Brexit) of the constitutional issues arising from the court case challenging the Government’s intention to invoke Article 50 using prerogative powers and how it might engage with parliament during each stage of Brexit, with citations of historical precedent, the effect of the Constitutional Reform and Governance Act 2010 which appears to give to the courts the power to tell Parliament how to conduct its business, and so on. Everything I have seen on the issue so far has been so coloured by political agendas as to obscure the substantive constitutional issues.