This prorogation is improper: the government should reverse it

meg_russell_2000x2500.jpgalan.jfif (1)professor_hazell_2000x2500_1.jpgBoris Johnson’s prorogation announcement has generated widespread criticism, and will be hotly debated when MPs return today from their summer break. Meg Russell, Alan Renwick and Robert Hazell argue that the decision to suspend parliament for five weeks was an improper use of executive power, sets dangerous precedents, and undermines fundamental principles of our constitution. It should therefore not proceed. MPs may seek to block it, and so may the courts, but the preferable route would be for the government to recognise its mistake and reverse it.

MPs return to Westminster today after the five-week summer recess in deeply unusual and worrying circumstances. Last week Prime Minister Boris Johnson, who has faced just one day of parliamentary scrutiny since taking office on 24 July, triggered a prorogation of parliament, set to last another five weeks. Particularly given the Brexit deadline of 31 October, this has caused widespread consternation: among opposition parties, senior Conservatives (such as former Prime Minister Sir John Major, and Lord Young of Cookham who served for 24 of the last 40 years on the frontbench under a succession of Conservative leaders), plus constitutional experts, and the wider public. MPs must now decide how to respond, and meanwhile the action is being challenged in the courts. In this piece we argue that the prorogation was improper, that it sets dangerous precedents, that it is contrary to our constitutional traditions, and that there is still time for the government to defuse the crisis by reversing it.

The rights and wrongs of prorogation

At one level, parliamentary prorogation is entirely uncontroversial. By routine, a short prorogation usually occurs each year between the end of one parliamentary session and the start of the next – ahead of a new Queen’s speech. In addition, a short prorogation often occurs before parliament is dissolved for a general election, in order to regulate the timing and ensure that election day takes place on a Thursday. The recent practice and procedure of prorogation is set out clearly in an excellent briefing from the House of Commons Library.

Discussion of potentially more sinister uses of prorogation began during the Conservative leadership contest, when Dominic Raab (now Foreign Secretary) refused to rule out proroguing parliament to force through a ‘no deal’ Brexit in the face of opposition by MPs. This was roundly condemned by others in the race at the time: being described by Sajid Javid (now Chancellor of the Exchequer) as ‘trashing democracy’, and Michael Gove (now effective Deputy Prime Minister) as ‘a terrible thing’. Andrea Leadsom (now Secretary of State for Business, Energy and Industrial Strategy) commented that ‘I don’t think prorogation is the right thing to do and I don’t think that a Prime Minister would choose to do that’.

Following Johnson’s prorogation announcement, ministers have instead suggested that this is absolutely standard procedure. On Thursday’s Today programme, the Leader of the House of Commons, Jacob Rees-Mogg, claimed that it was more or less what happened every year, and that it was ‘because of the 3 ½ weeks of conference recess [that] it is five weeks in total’. Hence Rees-Mogg accused critics of the move of expressing ‘confected anger’.

But such suggestions of normality are disingenuous, seeking to exploit public confusion between the different means by which it can be decided that the Commons will not sit. It is important to distinguish between the following three things:

Prorogation brings all parliamentary business to a complete stop. Unless rescued by a government motion, bills that are before parliament fall and must start their passage again. Importantly, the decision to prorogue lies wholly in the hands of the government – through issuing advice to the Queen, which she is duty bound to accept. Usually a prorogation lasts for just a few days. Research by the House of Lords Library shows that a five-week prorogation will be the longest since 1930.  

Parliamentary recess is very different. Recess occurs periodically throughout the year, to accommodate holidays and, usually, a break for the party conferences. However, the decision to adjourn for recess lies with MPs. The motion for the 2019 conference recess had not yet been laid, and the looming Brexit deadline meant that there was increasing pressure from MPs to cancel or cut this recess short. Crucially, it is also possible for some parliamentary business – such as meetings of select committees – to continue during recess, and the progress of bills is not halted.

Dissolution of parliament in contrast occurs before a general election. Under the Fixed-term Parliaments Act, the decision to dissolve parliament again lies with MPs themselves – and is taken by a parliamentary vote. Dissolution does not simply suspend parliament: as the name suggests, it dissolves parliament in preparation for the creation of a new one through a general election.

Hence either recess or dissolution, sometimes combined with a short prorogation, frequently result in parliamentary breaks which last a number of weeks. But in both of these cases MPs take the decision to break themselves. Had ministers genuinely wanted to hold a ‘routine’ prorogation to facilitate a Queen’s speech, as they claim, they could easily have proposed one lasting a few days, and left the decision to MPs regarding whether to take the conference recess. Instead, they have proposed the longest prorogation for 90 years, using executive power to shut down parliament in the midst of a crisis – seemingly to avoid the risk that MPs would veto the conference recess, and perhaps use the time available defeat the government on other things. As suggested in the previous comments of Conservative leadership contenders, that represents an improper use of executive power. Continue reading

Better Government: Gus O’Donnell answers back

29th October 2013

(Posted on behalf of Gus O’Donnell)

Six months ago i gave my inaugural lecture as a UCL visiting professor which has just appeared as  an article for Political Quarterly. My aim was to present some ideas for better government derived from my experience as Cabinet Secretary. I suppose it’s inevitable that some of my ideas have been criticised for being too mandarin-like, specifically for giving more power to civil servants. That’s the predictable stereotype. But at least now I’ve got the freedom to answer back directly.

In my lecture I mentioned that we should consider looking at open primaries for selecting MPssomething that the columnist and Conservative MP Douglas Carswell  has supported and, on occasion, the current Prime Minister. Douglas is , however, critical of my idea for pre- qualification criteria for MPs.

I am not arguing, as he claims, that pre qualification criteria should be set by civil servants. The current system is, in my view, not giving us enough candidates with diverse experiences, such as former doctors or businessmen, and it is delivering insufficient gender and ethnic diversity. Precisely what criteria we should have for qualifying for a job as an MP should be the subject of further debate. There aren’t many jobs that don’t ask for appropriate qualifications and in a world without open primaries and lots of safe seats we are currently allowing a very small group of people to decide who represents us.

This is why the Cabinet Office line that there is no problem as the qualification process is “democracy” is a rather poor response . Tony Blair gave a rather better answer at today’s 100th meeting of the Mile  End Group, where he backed open primaries and the desirability of MPs having some experience outside politics before entering Parliament. He pointed out the paradox that Ministers are at their most powerful with the most political capital at the start of a new administration when they are least capable. This reinforces the need to think about how MPs can be better prepared for suddenly being put in charge of huge portfolios.

I also made the case for an Office of Taxpayer Responsibility which would analyse the evidence supporting big policy decisions. Sue Cameron in her Telegraph column criticised the idea as it would involve more jobs for “unelected ex mandarins”, like me. That is not my intention, rather I am looking for  a British version of the Australian  Productivity Commission, which has an impressive track record. The difficult balancing act is to improve key policies without stopping innovation.

I’ve also been criticised for attacking handouts like the winter fuel payments. My point is that this allowance alone costs over £2 billion. If it were restricted to those receiving pension credit you would probably save around £1.5 billion. And we could use some of this money to help the elderly groups with greatest needs relative to their assets. So we could cut the deficit, simplify administration ,reduce the reach of big government and increase help to the most needy. What is stopping them?

Sue Cameron also said it was alright for me to say this as I have a big pension, which is true. Actually I am too young to get winter fuel payments but I am eligible for a free Oyster card and prescriptions. Since I believe we need to get rid of these policies we should give the Treasury every incentive to do so. That means claiming them. In my case I have decided to give £1000 a year to one of my favourite charities , Pro Bono Economics, which had a great reception courtesy of Sir Andrew Cahn at Nomura last Thursday.  ( Pro Bono do fantastic work helping charities to demonstrate and improve their effectiveness.)This will more than offset any financial benefit I get and, as I will of course gift aid it, increase the pressure on The Chancellor to act.

Finally I should make clear it I don’t intend to go in for rebuttal too frequently. I’m moving on to take over from Sarah Hogg as Chairman of Frontier Economics,  the leading European economics consultancy,if agreed at today’s AGM.

For those interested in economics and public policy I recommend reading Angus Deaton’s The Great Escape – if ever an economist deserved a Nobel prize he would be high on my list, along with Richard Thaler of nudge fame-and Behavioural Public Policy, edited by Adam Oliver which is being launched on Thursday at the LSE. I don’t agree with all of their conclusions but they provide excellent food for thought.

Inaugural Lecture by the former Cabinet Secretary Lord (Gus) O’Donnell

23rd April 2013

Building a Better Government: the Political and Constitutional Reforms necessary to build Better Government

After a lifetime in government ending up at its apex as Cabinet Secretary, Gus O’Donnell has come to the sobering conclusion that Britain suffers from deep rooted bad policies and bad ways of governing.  In his inaugural lecture as a Visiting Professor for University College London’s department of political science on Wednesday 24 April, Lord O’Donnell presents his radical critique. Among his reforms:

· A new Office of Taxpayer Responsibility (OTR) would join the Office for Budgetary Responsibility (OBR) in costing and evaluating new policies and each major party’s election manifesto.

· A smarter bureaucracy would make greater use of the behavioural sciences to assess the needs and responses of the public for better services.

· A new agency, along the lines of the Canadian Public Tenders, is needed  to ensure the taxpayer doesn’t miss out commercially in negotiations with the private sector.

· An emphasis on improving wellbeing, rather than just meeting targets, could lead to better policies in areas like health and welfare, while living within budget constraints.

· Politicians should turn their mind to reform of the political decision making process. Should we improve training and development opportunities for backbenchers to prepare them for ministerial office?  Should there be a way for the centre of government to assess the performance of departments at the political as well as the policy level?

· We need to encourage people into politics who reflect better our society. More diversity would lead to policies more suited to our diverse society. Is there a way of releasing the stranglehold of the main parties in, for example, elections for local mayors?

· To implement his incisive critique Gus O’Donnell declares: “We need to build a consensus for change that will be embraced across the political spectrum. The goal is a noble one: to increase wellbeing sustainably and reduce inequality. Better politics for a better Britain.”

Lord O’Donnell will deliver his lecture at  6pm on  Wednesday  24 April in UCL Gustave Tuck Lecture Theatre, Wilkins Building, Gower Street London WC1E 6BT.

Transcript of event can now be found:

Should We Give Them Some Space? FOI and Cabinet decisions

The retiring Cabinet Secretary Gus O’ Donnell spoke in an interview today about the need to amend FOI to protect decision-making. He was concerned that the possibility of release led to officials ‘fudging’ the minutes.

“I want the minutes to accurately to reflect what people have said. I want good governance…I want them to have an open space. I want us not to be fudging the issue by saying there was a little discussion.”

He also spoke of the nervousness over lack of certainty in the law over Cabinet discussions.

‘He said he wanted more certainty that Cabinet minutes would be protected than offered by the current law, suggesting amendments to the Freedom of Information Act. “If we could draft it in a way that would really enhance openness and transparency whilst allowing some safe space, that would be good for all of us”.

What Gus O’ Donnell is referring to is a variant of the so-called Chilling Effect.  We have concluded that FOI can have this effect but it doesn’t do so systemically and it is almost impossible to disentangle the effect of FOI from lots of other concerns (see page 16-18 in our local government report). However, these conclusions come with qualifications.

1. Finding evidence is very tough. FOI does cause nervousness but whether it then leads to changes is more difficult to prove. Gus also said in his interview ‘ he had not “fudged” any minutes, but was “nervous”. It would be interesting to see firm evidence and if the fudging refers to particular incidents or a general ‘shift’ in minute taking approaches. We found one or two clear cut cases but they were rare and unusual. Proving a negative and asking officials to admit unprofessional conduct is tricky.

2. Is it FOI to blame? Gus said that “Can I guarantee that this is going to stay private? No, I can’t.” But inhibitions (or lack thereof) over discussions are down to many things. Leaks were, are and always will be a huge issue- who said or did not say what and when was central to many recent controversies issues from the War in Iraq to the EU veto.  A well timed leak can hinder many enemies foreign and domestic. Even US Cabinet discussion about the impact of Wikileaks was leaked.

3. Many politicians and officials told us that the ‘politics’ of decision is often ‘off paper’. How and why minutes are recorded how they is due to many things from style to resources. It plays into wider styles of ‘doing’ decisions. Do you do unminuted ‘sofa government’ or are you more formal?

4. Interestingly, overall there were some paradoxical views held. Officials at other levels were more concerned about the consequences of not having a record rather than having one.

5. Very few requests are actually made for Cabinet documents. Only one release of Cabinet Minutes has taken place over Thatcher’s controversial ‘Westland’ affair. Some countries, such as Canada,  actually completely exclude all Cabinet material from FOI.

However, nervousness abounds among officials especially at senior level. This may also be heighted due to how they come into contact with FOI. Senior officials will only be copied into particularly sensitive or problematic requests. Unless they are particularly curious they will only see one in every hundred or thousand and the ‘worst’ one at that. In Ireland, such concern did help lead to a change in the law as it related to Cabinet documents.

Finally, Gus also spoke about the use of the ‘veto’ (called in the article the ‘nuclear weapon’) which can be deployed to overturn appeal decisions. This protection, then, is available but it has only been deployed twice in the UK. This compares with 48 times in the same early years of FOI in Australia. This seems to point to a perverse incentive-unlike a nuclear weapon or an EU veto – the more it is used the less attention it gets.

Departing O’Donnell: FOI damages discussions

Cabinet Secretary Sir Gus O’Donnell, set to step down after six years as the country’s top civil servant, told the Public Administration Select Committee the Freedom of Information Act has had a “very negative impact on the freedom of policy discussions.”  The Guardian reports that Sir Gus, echoing former PM Tony Blair,  said that “If asked to give advice, I’d say I can’t guarantee they [ministers] can say without fear or favour if they disagree with something, and that information will remain private. Because there could be an FoI request.”

Measuring the ‘chilling effect’ is difficult as anecdote is easier to come by than hard evidence, as a previous post of ours discusses.

The Cabinet Manual: where’s the beef?

After almost two years of drafts, three select committee reports, the UK now has a Cabinet Manual. I received my shiny grey copy of the first edition of the Manual a few days ago, and am only just beginning to read it. The grey cover is completely appropriate of course: it is a civil service document through and through. Truly, it is—as Lord Hennessy suggested memorably—a herbivore’s document. Nothing wrong with that.[1] But this is not a manual that ministers will use. It is far too formal for that. That’s a shame, but early days: this is only the first edition.

As with all good and great things, the Cabinet Manual has begun to develop its own little academic industry—which, of course, one can only applaud. But it’s easy to talk about what could and should have been in the Manual: eg., more about the Human Rights Act, Europe, a better discussion of parliament and its conventions, etc etc…. the list goes on. Instead, I would like to briefly talk about two matters, which are connected.

First point: it’s a surprise that the Manual was published at all. It needs to be recalled that prior to 2010 there were a fair number of executive guidance documents of varying size and accuracy scattered in different locations, and in some areas of executive practice there was no guidance at all. There was little understanding that this might be a problem—not just because of the possibility of a hung parliament, but because the scattered, incomplete nature of these documents might impact upon executive effectiveness. More generally, there was a need for greater transparency or at least openness about government. Robert Hazell and Peter Riddell’s original submission calling for a Cabinet Manual was made with all three considerations in mind. And if you read the submission, you will notice that many of the points are made quite cautiously. That is because there was no guarantee that anything would be done. To put it differently, the Manual’s publication was by no means inevitable.

The second point is from my brief experience in the Executive: the aphorism ‘bills are made to pass like razors are made to sell’ applies equally to executive guidance documents. Just because a need has been identified doesn’t mean it can be answered in an ideal form. There is a process, or processes by which things happen within the executive; and the executive is not a monolith—it consists of different groups with different interests. And sometimes the silences, omissions and ambiguities of the Manual are unintentional, and sometimes they are deliberate. That is the nature of the executive, because it does not necessarily speak with one voice, and because the executive also has to be aware of the other branches of government.

Is this cryptic? I hope not. But my basic point is this. The Manual is an imperfect document. But to me it is still a surprise that we have the document at all. [2]

[1] So perhaps it should have been called ‘the Cabinet Office Manual’, as all three select committees recommended. That would make it clear that it is a manual for officials rather than for ‘Cabinet’.

[2] This is not a veiled way of saying ‘be pleased with what you got’. I only wish to point out that two years ago no such document existed.

Update: FOI and the media king

Prime Minister David Cameron pledged more transparency and better recording of all meetings held with the media.

The PM said he would consult Cabinet Secretary Sir Gus O’Donnell about amending the ministerial code “to require ministers to record all meetings with newspaper and other media proprietors, senior editors and executives – regardless of the nature of the meeting.”

According to the BBC, top civil servants and special advisers would also have to record meetings with the media, and the government will not wait for a Freedom of Information request to release it, but rather publish it quarterly.

This comes on the tails of a rapidly developing News of the World phone hacking scandal, which was brought back to the fore after allegations surfaced the newspaper had hacked into telephones belonging to crime victims and soldiers who were killed.

Cameron has outlined the details of the phone-hacking inquiry, which will be led by Lord Justice Leveson, and will involve the culture, practice and ethics of the press, their relationship with the police, as well as re-examine the present media regulations.

The scandal, which is resonating both in international media and in Parliament, has shone the spotlight on the Metropolitan Police, which has been accused of not investigating the phone-hacking case as thoroughly as it could have (a spreadsheet of the dates and meetings between police and NoW have been released on The Guardian website).

It has also questioned politicians’ associations with Rupert Murdoch, the head of News Corporation, and journalists from its newspapers.

Prime Ministers Tony Blair and Gordon Brown’s meetings with the media tycoon have been a subject of public curiosity, but responses to FOI requests have been difficult to get (see previous post).

Cameron, who has also been criticised for not being transparent about his meetings with Murdoch has pledged to open up.

If we are going to say to the police ‘you must be more transparent and cut out corruption’, if we are going to say to the media ‘you must be more transparent and cut out this malpractice’ then, yes, the relationship between politicians and the media must change and we must be more transparent too about meetings.

However, Nick Robinson, BBC political editor, said he did not believe every meeting with every journalist would be recorded, but at least people would be able to see patterns arising between meetings and important decisions.

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