“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  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. 
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. 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  and the popular assumption of a crude form of positivism , 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  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  to the person who can come up with the best question to ask Sir Gus down the pub. Answers below, please.
 legalese for ‘he done studied him some law’
 They have the best canapes there. As my esteemed colleague says: “I go for the talks, but I stay for the scallops.”
 you have to imagine me posing like Rodin’s the thinker. It’s difficult. I do slouch a lot.
 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.
 I have read HLA Hart. And even Waluchow’s inclusive legal positivism. Go away. That’s why I said a crude form of positivism.
 great book btw. It’s a legal bodice-ripper. Or a judicial Bridget Jones.
 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?
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.
This post also appears on Alan Trench’s blog, Devolution Matters, where it can be found here.
The Scottish Government has clearly, in its last few weeks, decided to stop playing nicely when it comes to intergovernmental relations. Hitherto, it’s scrupulously observed the convention that relations are, for the most part, to be conducted behind closed doors. After taking considerable amounts of criticism, it’s decided to place large quantities of correspondence and other records of its dealings with the UK Government (and other parties) into the public domain.
The documents they’ve released relate to two controversial issues. One is the debate about devolution finance: the UK Government’s proposals to implement the Calman recommendations, and its alternative of full fiscal autonomy. These cover the period from May 2010 to January this year. The other is the release of Abdelbaset Ali Al-Megrahi, the Lockerbie bomber, following the publication of Sir Gus O’Donnell’s review of the papers. These cover the period from August 2009 to October 2010, though some relate to earlier events. These records are going to be a treasure trove for researchers and others interested in how intergovernmental relations in the UK work, especially as they’re exempt from disclosure under the Freedom of Information Act 2000; our own version of the Wikileaks disclosures of US diplomatic cables, perhaps.
In releasing these papers, the Scottish Government appears to be sending two clear warnings to the UK Government. First, that the UK Government should assume that everything said or done in the course of those relations may be put into the public domain, so it shouldn’t assume that it can pursue one line in public and another in private. Second, the UK Government shouldn’t seek to use selective disclosure of documents and questionable précis of them as a way of trying to win the public end of that debate. The use of that tactic by UK Government, for example over the Scottish variable rate, has significantly undermined the sort of co-operation and mutual respect for confidentiality that are much emphasised in the Memorandum of Understanding and have been regarded as underpinning intergovernmental relations up to now. It would be an exaggeration to call this a ‘crisis’ in intergovernmental relations, but it is a serious blow to the established way of doing things, based on the UK’s assumption that there’s a broad consensus behind what it does and if not that it can out-muscle devolved governments. It strongly suggests that the UK Government will need to take a much more coherent and strategic approach to intergovernmental relations than it has done, particularly recently.