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.

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