A guide to laws, conventions and rules on the operation of government. 1st edition October 2011
Foreword by the Prime Minister
On entering government I set out, with the Deputy Prime Minister, our shared desire for a political system that is looked at with admiration around the world and is more transparent and accountable. The Cabinet Manual sets out the internal rules and procedures under which the Government operates. For the first time the conventions determining how the Government operates are transparently set out in one place. Codifying and publishing these sheds welcome light on how the Government interacts with the other parts of our democratic system. We are currently in the first coalition Government for over 60 years. The manual sets out the laws, conventions and rules that do not change from one administration to the next but also how the current coalition Government operates and recent changes to legislation such as the establishment of fixed-term Parliaments. The content of the Cabinet Manual is not party political – it is a record of fact, and I welcome the role that the previous government, select committees and constitutional experts have played in developing it in draft to final publication. Cabinet has endorsed the Cabinet Manual as an authoritative guide for ministers and officials, and I expect everyone working in government to be mindful of the guidance it contains. This country has a rich constitution developed through history and practice, and the Cabinet Manual is invaluable in recording this and in ensuring that the workings of government are far more open and accountable.
David Cameron
Prime Minister
Preface by the Cabinet Secretary
Before the last general election, the previous Prime Minister, the Rt Hon Gordon Brown MP, asked that I lead work to produce a Cabinet Manual to provide a source of information on the laws, conventions and rules that affect the operation and procedures of the Government. With the endorsement of the current Prime Minister and Deputy Prime Minister, I published a draft in December 2010. The draft generated considerable interest, including from three Parliamentary Select Committees, as well as from a number of constitutional experts, interest groups and members of the public. Their reports and comments have been extremely valuable in identifying areas of controversy, errors or omissions, and areas where the draft could be improved. On the whole, the process also demonstrated general support for the principle of the Cabinet Manual and the contents of the draft. A summary of the comments received has been published separately. Over the past eight months, the Cabinet Secretariat has worked with colleagues from across government to review all the comments we received and to revise and update the text. In addition to a significant number of detailed changes, the revised text incorporates important changes to aid understanding of the contents – in particular extensive references and links to more detailed guidance, and a glossary. This updated text – the first edition of the Cabinet Manual – remains true to its original purpose. It is primarily a guide for those working in government, recording the current position rather than driving change. It is not intended to be legally binding or to set issues in stone. The Cabinet Manual records rules and practices, but is not intended to be the source of any rule. While the document primarily provides a guide to the operation of the Government itself, it also sets out – from the view of the Executive – the Government’s place in the UK’s Parliamentary democracy. It therefore includes chapters on how the Government relates to the Sovereign, Parliament and the independent judiciary, as well as the other democratic institutions within the UK and key international bodies. The content of the Cabinet Manual is not static, and the passage of new legislation, the evolution of conventions or changes to the internal procedures of government will mean that the practices and processes it describes will evolve over time. If the Cabinet Manual is to continue to play a useful role as a guide to the operations and procedures of government, it will need to be updated periodically to reflect such developments. iv Preface by the Cabinet Secretary While some other administrations, most notably New Zealand, have developed their equivalent documents over a number of decades, this first edition of the Cabinet Manual has been produced in less than two years. This has been an intensive process and I am grateful to all those who have contributed to this achievement. I am confident that the Cabinet Manual will come to be seen as an essential guide to our system of government and I hope that everyone working in, or with, the Government will use it as a key work of reference.
Sir Gus O’Donnell
Cabinet Secretary
Introduction
Parliamentary democracy
1. The UK is a Parliamentary democracy which has a constitutional sovereign as Head of State; a sovereign Parliament, which is supreme to all other government institutions, consisting of the Sovereign, the House of Commons and the House of Lords; an Executive drawn from and accountable to Parliament; and an independent judiciary.
2. Constitutional convention is that executive power is exercised by the Sovereign’s Government, which has a democratic mandate to govern. Members of the Government are normally Members of the House of Commons or the House of Lords and the Government is directly accountable to Parliament. The government of the day holds office by virtue of its ability to command the confidence of the House of Commons. Elections are held at least every five years to ensure broad and continued accountability to the people. Election candidates can stand independently but they usually represent political parties, and party numbers in the House of Commons determine the composition of the Government.
3. Parliament is sovereign and it has provided by Acts of Parliament – which, by their nature, may be repealed – for certain issues to be considered and determined at different levels: within the European Union (EU); by the Devolved Administrations; and by local government. The UK constitution
4. The UK does not have a codified constitution. There is no single document that describes, establishes or regulates the structures of the state and the way in which these relate to the people. Instead, the constitutional order has evolved over time and continues to do so. It consists of various institutions, statutes, judicial decisions, principles and practices that are commonly understood as ‘constitutional’. The UK does not have a constitutional court to rule on the implications of a codified constitution, and the sovereignty of Parliament is therefore unrestrained by such a court (although see paragraph 6.41 for the jurisdiction of the UK Supreme Court over devolution matters.)
5. Constitutional matters and practices may include: • statutes, such as Magna Carta in 1215; the Bill of Rights and Scottish Claim of Right Act in 1689; the Acts of Union; the various Acts extending the voting franchise; the Parliament Acts in 1911 and 1949 limiting the powers of the House of Lords; the European Communities Act 1972; the Human Rights Act 1998; the Representation of the People Acts; and the Scotland Act 1998, the Government of Wales Acts of 1998 and 2006 and the Northern Ireland Act 1998; • the Royal Prerogative, which is the residual power inherent in the Sovereign, and now exercised mostly on the advice of the Prime Minister and Ministers of the Crown; 2 Introduction • judicial decisions, for example, Pepper v Hart [1993] AC 593; In re M [1994] AC 377; Jackson v Attorney General [2005] UKHL 56 made by the Supreme Court (formerly the House of Lords), the Court of Appeal and the High Court (in England, Wales and Northern Ireland) and the Court of Session in Scotland; • conventions, rules of constitutional practice that are regarded as binding in operation but not in law; and • European and international law, both of which inform and influence the UK’s constitution.
The Sovereign
6. The Sovereign is the Head of State of the UK, providing stability, continuity and a national focus. By convention, the Sovereign does not become publicly involved in the party politics of government, although he or she is entitled to be informed and consulted, and to advise, encourage and warn ministers. For this reason, there is a convention of confidentiality surrounding the Sovereign’s communications with his or her ministers. The Sovereign retains prerogative powers but, by constitutional convention, the majority of these powers are exercised by, or on the advice of, his or her responsible ministers, save in a few exceptional instances (the ‘reserve powers’). See Chapter One for more on the Sovereign.
Parliament
7. Parliament has a number of functions, which include: controlling national expenditure and taxation; making law; scrutinising executive action; being the source from which the Government is drawn; and debating the issues of the day. All areas of the UK are represented in the House of Commons, which provides a forum for Members of Parliament (MPs) to speak and correspond on behalf of their constituents, where they can seek redress if necessary.
8. Parliament comprises the Sovereign in Parliament and two Houses: the House of Commons, which is wholly elected, and the House of Lords, which comprises the Lords Spiritual and Temporal. Parliament has overall control of the public purse; the Government may not levy taxes, raise loans or spend public money unless and until it has authorisation from Parliament. The House of Commons claims exclusive rights and privileges over the House of Lords in relation to financial matters, and the powers of the House of Lords to reject legislation passed by the House of Commons are limited by statute.
9. In the exercise of its legislative powers, Parliament is sovereign. In practice, however, Parliament has chosen to be constrained in various ways – through its Acts, and by elements of European and other international law.
10. Parliament also scrutinises executive action. Indeed, the government of the day is primarily responsible to Parliament for its day-to-day actions. This function is exercised through a variety of mechanisms, such as the select committee system, Parliamentary questions, oral and written statements, debates in both Houses and the Parliamentary Commissioner for Administration. See Chapter Five for more on Parliament.
11. By the Scotland Act 1998, the Government of Wales Acts 1998 and 2006 and the Northern Ireland Act 1998, Parliament devolved powers over areas of domestic policy such as housing, health and education to directly elected legislatures in Scotland, Wales and Northern Ireland. Parliament retains the legal power to continue to legislate on these matters, but it does not normally do so without the consent of these devolved legislatures.
The Prime Minister and ministers
12. Ministers’ powers derive from legislation passed by Parliament, the Royal Prerogative and common law. They are subject to an overarching duty to act in accordance with the law. The courts rule on whether ministerial action is carried out lawfully. See Chapters Three and Six for more on ministers and the Executive and the law.
13. The roles of the Prime Minister and Cabinet are governed largely by convention. The Prime Minister is the Sovereign’s principal adviser, chairs Cabinet and has overall responsibility for the organisation of 3 The Cabinet Manual government. Cabinet is the ultimate arbiter of all government policy; decisions made at Cabinet and Cabinet committee level are binding on all members of the Government, save where collective agreement is expressly set aside, and any minister who cannot accept them is expected to resign.
14. Ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and agencies. 15. Ministers hold office as long as they have the confidence of the Prime Minister. They are supported by impartial civil servants. Civil servants are required to act with honesty, objectivity, impartiality and integrity. Ministers must uphold the political impartiality of the Civil Service, and not ask civil servants to act in any way which would conflict with the Civil Service Code and the requirements of the Constitutional Reform and Governance Act 2010. See Chapter Seven for more on civil servants.
The judiciary
16. The judiciary interprets and applies the law in its decisions. It is a long-established constitutional principle that the judiciary is independent of both the government of the day and Parliament so as to ensure the even-handed administration of justice. Civil servants, ministers and, in particular, the Lord Chancellor are under a duty to uphold the continued independence of the judiciary, and must not seek to influence particular judicial decisions. The Lord Chief Justice is the head of the judiciary in England and Wales. The Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland are the heads of the judiciary in Scotland and Northern Ireland respectively. The Supreme Court is the final court of appeal for all civil cases in the UK and for all criminal cases in England, Wales and Northern Ireland. See Chapter Six for more on the judiciary.
European Union and other international law
17. Parliament has provided for the incorporation of EU law into the UK’s domestic law through the European Communities Act 1972 and, where necessary, through further primary and secondary legislation.
18. The UK has also ratified a wide range of other treaties that form part of the constitutional framework – for example the Charter of the United Nations, the European Convention on Human Rights, the North Atlantic Treaty and the various agreements of the World Trade Organization. See Chapter Nine for more on the EU and international bodies. 4
