Why Written Constitutions are a Good Thing

The historian Linda Colley has written an article in the Guardian on the British experience of constitution-making. It is an argument about the uses of history. For too long, Colley argues, the British (the British elites, perhaps) have had a selective memory about constitutions and constitution making. Until the 19th century, there was a ‘cult’ of devotion in Britain towards various written constitutional documents—the Petition of Right, the Bill of Rights, and above all, the Magna Carta. This receded over time, and although this is not stated in the article, it may have been a response to the proliferation of ‘written’ constitutions, particularly on the Continent, and the need for Britons to distinguish themselves as different. Having said that, the British continued to draft written constitutions for their colonies well into the 20th century.

Colley’s point: it is not un-British to have or engage in a process of drafting a constitution. Britons have been interested and engaged in constitutional processes in the past; it is quite possible they still are. Colley ends by suggesting that years of ad hoc reforms and the increasing disunity of the United Kingdom may make a written constitution more important than ever. Whatever the drawbacks of a written/ codified constitution, one benefit may be it would offer “a single, recognised source from which citizens can learn about how their state is supposed to operate.” As they say, read the whole thing.

As an aside, the finalised version of the UK Cabinet Manual was published last week (more on this another day). I raise it not to point to its (murky) constitutional status, but rather to point to it as a neat inversion of Colley’s description of how constitutional ideas were transmitted from the centre to the periphery: the NZ Manual was the inspiration for the UK Manual. And so, New Zealand gives back to the Mother Country. It’s the least we could do.

Thou Shalt Not Chill: Cabinet Manual Seeks a Clear Audit trail

The new cabinet manual published today goes to some lengths to emphasise the need to have a clear chain of record-keeping around decisions and prevent a ‘chilling effect’.

It gives a very wide definition of information

‘Official information is information created and commissioned in the course of official government business. It includes information created or received by ministers in a ministerial capacity. Official information can be in any format, and includes correspondence and memoranda, guidance, emails, datasets and databases, websites, official blogs and wikis, and film and sound recordings. Other formats that emerge will also be covered.’

 It then goes on to describe what information needs to be kept in relation to decisions:

 ‘The role of ministers’ private offices

11.4 Guidance issued by the Cabinet Office and The National Archives1 emphasises the need for private offices to record ministerial decisions on any correspondence or submissions to ministers or officials, including special advisers, and outside interest groups, private sector organisations and MPs. This would include any meetings, telephone conversations and communications via the internet where decisions are taken that relate to government business, so that there is a clear audit trail.

11.5 All papers and electronic information relating to a minister’s personal, party or constituency affairs remain the minister’s personal responsibility during their time in office and once they have left office or moved to another ministerial appointment. Private Office staff and special advisers should manage and maintain personal, party and constituency papers and information separately from departmental material and Cabinet and Cabinet committee documents.2 Data security of constituency material is the responsibility of the minister in their capacity as an MP. Responsibility for party information is a matter for the relevant political party to determine.’

It would be interesting to know if this is preventative, a subtle telling off for certain ministers who may be trying to hide communications or whether they know something about the extent of the chilling effect that we don’t.

Sir Gus: Stop me if you think you’ve heard this one before

“I have to admit that it’s not something I’m often asked about down the pub” –  Sir Gus O’Donnell

As noted in today’s post by my learned colleague [1] Patrick Graham, Sir Gus O’Donnell gave a speech on the Cabinet Manual last night at a Constitution Unit seminar held at the Institute for Government. [2]

The speech was nothing new. As someone in the audience noted, Sir Gus spent most of his talk talking in negatives. The Manual was not a written constitution. It was not law. It was not new. Etcetera.

But it sparked in me some thoughts about the nature of conventions.[3] Sir Gus was being slightly disingenuous: there are aspects of the Manual which are new. There were at least two: the extension of the caretaker or purdah principles into the post-election period, and with more substantive criteria (NZ did something similar in 1984 following a constitutional crisis emerged over transition). Ditto with the provision of civil service support during a hung parliament to all parties. These are examples of instant convention: new norms formulated to deal with a new situation.

Before making the kneejerk response—that’s undemocratic!—it’s worth noting Geoffrey Marshall, for a long time the authority on constitutional conventions, did say that one source of convention was simply derivation from some acknowledged principle of government. And this is not so far removed from what common law judges have been doing for centuries. That is, they have extended ‘imminent principles’ in the law to new and unforeseen circumstances. They use former cases—precedents—often to justify their rulings. This was fine in the past, but this is now regarded as problematic (more bluntly: flapdoodle).

This is because there are now two new conditions underlying modern Western society. One is popular democracy, and the sense that law only has its authority because of ratification by ‘the people’. But more important is the overwhelming presence of the state [5] and the popular assumption of a crude form of positivism [6], which identifies ‘law’ in terms of who authorises it, i.e., the political authority of the state, or more specifically, the legislature. This makes precedent and common law decision-making problematic, because this is essentially judge-made law. It clashes with our idea of democracy and only state-issued law being ‘law’.

A recent book by Nils Jansen [7] makes a similar point. He notes that some legal codifications have become themselves ‘law’ (example: the American Law Institute’s Restatements), and have done so despite the fact that they have never been ‘ratified’ by the legislature. The (key) reasons are that such codifications met an urgent need; and the legal community came to accept it. Jansen’s point is: we presume that the state (and perhaps more specifically the legislature) is the only legitimate authority in the field of ‘law’; but historically this has never been so. There are other ‘legitimising’ communities.

This brings us back to the Manual. Am I saying the Manual is law? I am not. I’m just drawing attention to parallel debates elsewhere. Some people have been irritated by the sheer impudence of Sir Gus and the Cabinet Office—how dare he suggest the executive might have a view of the norms governing us, or that he might change pre-existing practices! What I am saying is that the legislature (and the judiciary) are not the only sources for rules and norms which we find obligatory to follow. This has ‘always been so’: it is just that our views of what constitutes law and/ or obligatory norms over time have become radically impoverished. We need to expand our understanding of how in practice we follow rules.

Competition time! A large cappuccino with whipped cream [8] to the person who can come up with the best question to ask Sir Gus down the pub.[9] Answers below, please.

[1] legalese for ‘he done studied him some law’

[2] They have the best canapes there. As my esteemed colleague says: “I go for the talks, but I stay for the scallops.”

[3] you have to imagine me posing like Rodin’s the thinker. It’s difficult. I do slouch a lot.

[4] I don’t mean this in a state-is-evil libertarian manner—I mean this in an anthropological kind of way. I mean, the state, and its insistence on representing the nation, is everywhere: on our money, on TV, in our speech—it infests the frames we use to understand the world. It’s difficult to imagine a life without the (nation-)state.

[6] I have read HLA Hart. And even Waluchow’s inclusive legal positivism. Go away. That’s why I said a crude form of positivism.

[7] great book btw. It’s a legal bodice-ripper. Or a judicial Bridget Jones.

[8] I’m cheap. Sue me. This or the functional, edible equivalent. Eg., some people might want a skinny latte, a pint, fruit tea etc.

[9] Is that grammatically correct? That’s what Sir Gus said, but this latest batch of civil servants are pretty illiterate (so sayeth the Telegraph–I couldn’t possibly comment). Perhaps it’s an acceptable dialect variant?

“More than just a Janet and John guide to the Queen and stuff”

Cabinet Secretary Sir Gus O’Donnell, Britain’s most senior civil servant, delivered a presentation on the proposed Cabinet Manual on Thursday 24 February. This was part of the Constitution Unit’s Public Seminar Series and was held at the Institute for Government.

Published by the Cabinet Office, a draft version of the Manual is currently being considered by three parliamentary Select Committees while a consultation period is scheduled to end on 8 March.

Sir Gus explained that the Manual is intended to “help the public better understand how our democracy works” by making the inner workings of government more transparent. He emphasised, however, that it is not intended to be an exhaustive description of existing practices: rather, the Manual should act as a “high-level summary” of areas such as ministerial responsibility, devolution and hung parliaments.

Sir Gus also took time to address some criticisms that have been directed at the Cabinet Manual as well as some myths that surround it. It is not, he stated, a written constitution with a defined legal status, nor is it intended to direct the administration of government. It is a statement of how the executive functions and one that is written in an understandable manner: no Erskine May or Magna Carta but a “work of reference that guides those of us who work in or with government, and opens up how government works so that it can be better understood by people across the country.”

In February 2010 the skeleton structure of the Manual as well as a draft chapter on elections and government formation were published. This draft was to take practical effect after the May 2010 general election. Sir Gus argued that the Manual served as a “useful, modest piece of guidance” during the political negotiations which immediately followed.

Furthermore he rejected criticisms that publication of the draft chapter had unduly influenced those negotiations: whether that was by dictating the speed at which negotiations between the Conservatives and Liberal Democrats should take place or for how long Prime Minister Gordon Brown should stay in office.

Sir Gus contended that the most fundamental conclusion to be drawn from those “five days in May” is that the civil service was fully able to meet the challenge presented by this “unusual situation.”
Sir Gus concluded his presentation by reiterating that the Cabinet Manual should not be understood as a seminal constitutional document but, nevertheless, should act as more than, in the words of Lord Powell, “a bit of a Janet and John guide to the Queen and so on.”

During the question and answer session that followed, Sir Gus was asked to comment on the Manual’s proposed longevity, the role of the sovereign and the relationship between the executive and judiciary. Particularly salient in the mind of the Cabinet Secretary and those involved in the Manual was the tricky problem of revision: what should be acknowledged as now-existing practice and when should this acknowledgement take place?  This issue may prove particularly challenging to  Sir Gus and his successors.

Further Information

The Cabinet Manual—the PCRC strikes back

Yep—the Cabinet Manual again. Today Professor Hazell appeared before the Political and Constitutional Reform Committee along with Iain McLean and Lord Hennessy of Nymphfield to talk about the constitutional implications of the Manual. A fun time was had by all, although the session was far too long at two hours. Lord Hennessy really is the poet of constitutional history—he talked of the “magical mystery tour” of the Manual, the chapter on Cabinet procedure as the “herbivores’ charter” and the “velcro of [his] fading memory”.

The experts all agreed: the Manual was a great step forward. Here was greater transparency, which could only be a Good Thing. The PCRC, however, were disturbed by the Manual. Was it in fact a constitution? It was not, was the collective answer from the experts, although it might be considered constitutional. There seemed to be some confusion on the part of the PCRC about the status of the Manual (which Sir Gus O’Donnell has insisted is not law).

The Manual’s content, argued Graham Allen MP (PCRC Chairman) and Eleanor Laing MP, was not merely limited to the Executive but involved Parliament as well. So the Manual should be subject to parliamentary consent. They grilled the experts, and particularly Robert Hazell, about this. Hazell was perhaps the most executive-minded of the experts, insisting the Manual was for the Executive—it was more in the nature of an operating manual. Lord Hennessy thought that Parliament could give the Manual greater legitimacy. Only Iain McLean explicitly shared the PCRC’s concerns. But all thought it was better to have something published than to engage in uninformed speculation about the Executive.

Most of the hearing was devoted to the general legitimacy of the Manual—which seemed reduced to the elections chapter (note the Manual actually consists of 11 chapters and a rather curious introduction). There was some discussion about Cabinet procedure, and how the coalition and its programme of political and constitutional reform might impact on the content. Allen liked Lord Hennessy’s idea of an annual review of the Manual.

It’s unclear if this is to be a once-off hearing or not. Will the Cabinet Secretary Sir Gus O’Donnell appear, since he already has appeared once before the PCRC to talk about the Manual? To what extent will the Cabinet Office and Coalition Government take into account legitimate criticisms made in the consultation process? And instead of examining ‘the big picture’ as the PCRC have, will any of the other select committees actually examine the detail contained in the draft Manual? I hope so.

The cabinet manual – at last, a rough guide for ministers

As a New Zealander I’m fascinated by all the assurances that the long awaited Cabinet Manual isn’t the UK Coalition government’s attempt to foist the first draft of a written constitution on an unwilling British public.  Or even more conspiratorially, that it was a manual for dictatorship. But it really isn’t. In many ways this is quite a conservative (small “c”) effort.

The Manual aims to provide an executive lens on the workings of the UK’s constitutional arrangements. To proffer an interpretation is not to suggest it is an authoritative interpretation, of course. And to suggest that the executive cannot put forward an interpretation is to ignore the very important (but often ignored) role that the executive has always played in interpreting the UK’s constitutional arrangements.

Primarily, the Manual is meant to assist Ministers; secondly, the civil service; and finally, the public. Much of the Manual is actually a rehash of old material. Take, for instance, the devolution chapter. A fair bit of this has long been on the Cabinet Office website (note that these webpages are currently being updated, so here I’ve used an archived webpage). The section on the royal prerogative (e.g., para 110 and onwards) looks suspiciously like the Governance of Britain final report on the prerogative. Various sections simply repeat the Ministerial Code. The Manual attempts to bring together all this disparate information into a single document. Put simply, the Manual is meant to make life within the executive easier: it is to provide Ministers and civil servants with a ‘rough guide’ on common issues, a compilation of ‘best practices’ on rather technical matters.

In the UK, the Manual is probably best known for the elections chapter, a draft of which came out prior to the May 2010 general election.  But now the full draft has been published. Perhaps of immediate interest is the introduction to the UK’s constitutional arrangements (paras 1-18). This follows the example of the NZ Cabinet Manual, but the UK version is far, far more conservative. It’s too short; there is no mention of political parties; lawyers will wonder about the very obvious exclusion of the Human Rights Act from the discussion of constitutional statutes (e.g., para 5).  Hardly ‘the first step to a written constitution’.

There are some uniquely British features in the UK draft. There is a chapter on devolution, for instance; and also one on relations with the European Union and international institutions, reflecting the now deep connections between British government and the outside world. Curiously, there is little mention of international law generally, which is reduced to treaties. There is also a government finance and expenditure chapter, reflecting, perhaps, current concerns.

The election chapter is full of oddities. For instance, the paragraphs on ministerial directions during election time (paras 72-73). An ‘accounting officer’ may insist on ministerial direction where they object to a particular course of action on the basis of propriety, regularity or value for money. This is unusual by Commonwealth standards, to say the least.

More on all this later. There is now a three month period in which Parliament—and all those interested in the constitutional arrangements of the UK—may examine this document and make submissions on its form and content. There are no doubt a number of select committees who will very interested in it, but ‘we’ the public should also take the draft Manual seriously.

Ben Yong

The Constitution Unit advocated the adoption of a Cabinet Manual as early as December 2009. For our work on this, see our report:

Two select committee submissions also discuss the Cabinet Manual:

For some media comment, see here: