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The Cabinet Manual should be the starting point for a wider inclusive debate on having a written Constitution of the United Kingdom says Commons Constituional Select Committee Chair.

In his preface to the Cabinet Manual, published in final form last week, the Cabinet Secretary, Sir Gus O’Donnell, writes that:

"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."

What he does not add is that, when initially tasked with producing what eventually emerged as the Cabinet Manual, it was intended as part of a more ambitious project. Late on in his premiership, at the invitation of the Institute for Public Policy Research, on 2 February 2010, Brown gave a speech at the Royal Society of Arts entitled ‘Towards a New Politics’. In it, amongst other issues, he referred to:

"the question of a written constitution – an issue on which I hope all parties can work together in a spirit of partnership and patriotism. I can announce today that I have asked the Cabinet Secretary to lead work to consolidate the existing unwritten, piecemeal conventions that govern much of the way central government operates under our existing constitution into a single written document."

Brown also went on to describe how:

"If we are to go ahead with a written constitution we clearly have to debate also what aspects of law and relationships between each part of the state and between the state and the citizen should be deemed ‘constitutional’. I can therefore also announce today that a group will be set up to identify those principles and I hereby issue an invitation to all parties to be represented on this group. And if we are to decide to have a written constitution the time for its completion should be the 800th anniversary of the signing of the Magna Carta in Runnymede in 1215."

I quote our former Prime Minister at length because, when we consider the significance of the Cabinet Manual, we should be careful that its true origins are not forgotten. It was intended as a first step towards the introduction to the UK of something that every other democracy in the world apart from New Zealand and Israel possesses: a clear, entrenched and enforceable statement of the fundamental rules of politics and the rights of individuals – a written constitution.

The Cabinet Manual survived the transition to the Coalition government but the written constitution project – though establishing such an entity is the policy not only of Labour, but one of the parties which form the Coalition, the Liberal Democrats – did not.

What we are left with, however, is a document both fascinating and valuable in its own right for the light it sheds on the view from within Whitehall of the ground-rules of British politics. Though it does not purport to be a written constitution, and is widely accepted as not being such, the Cabinet Manual is the closest thing we have to one in the UK. It deals with a wide range of arrangements for the governance of the UK, including: the Sovereign; Elections and Government Formation; the Executive; Cabinet; Parliament; the Law; Devolution and Local Government; the European and other supranational institutions; Government Finance and Expenditure; and Official Information.

The text has been significantly improved on the draft published last December, taking on board comments made in consultation responses and reports produced by three parliamentary committees, including the House of Commons Political and Constitutional Reform Committee, of which I am chair.

To focus on a particular issue in which I have had a close interest over the years, the original draft made no reference to the existence of a constitutional convention that I had hoped was the one consolation prize gained from the experience of Tony Blair’s participation in the invasion of Iraq in 2003. Myself, and many other within Westminster, believed that the two votes held on substantive motions about military intervention in February and March of that year (which produced record parliamentary rebellions) had established a constitutional principle that, wherever realistically possible and responsible to do so, MPs should be consulted in advance about the engagement of UK Armed Forces in potential or actual hostile military action.

The final text of the Cabinet Manual corrects this omission – but does raise certain questions in the process. Paragraph 5.38 tells us that:

In 2011 [on 10 March], the Government acknowledged that a convention had developed in Parliament that before troops were committed the House of Commons should have an opportunity to debate the matter and said that it proposed to observe that convention except when there was an emergency and such action would not be appropriate.
 

Yet the paragraph above, 5.37, records how, regarding the Libyan action this year:

 

the Prime Minister made a statement in the House of Commons on 18 March

2011 in advance of military action, which was followed by a government motion for debate on 21 March

This wording glosses over an important point: while the prime ministerial statement took place before military action commenced, the government motion for debate did not. Are we to assume that Commons involvement in advance would in this instance not be appropriate? The action in Libya hardly came as a surprise to anyone and surely would not have been compromised by a debate by elected representatives. Or has the government openly violated a constitutional convention little more than a week after it acknowledged its existence?

This discussion raises a more fundamental point about the UK constitution. Much of it rests on conventions, which are by the nature difficult precisely to define in a way that commands consensus; and powerful players – usually the executive – can sometimes simply ignore them.

One way of avoiding the drawbacks associated with conventions is placing them on a statutory basis. Indeed the present government is pledged to doing so with regard to the role of Parliament in war-making.

An even better way of settling these issues would be through a wide-ranging, inclusive process whereby the people of the United Kingdom collectively decided what their constitution should be, and expressed it in written form. Such a document would be protected from being altered on the whims of the government of the day, and be fully legally enforceable in the courts.

If the time comes when we decide we want to bring ourselves into line with international democratic best practice and introduce a written UK constitution, the Cabinet Manual could provide a useful starting point – as was intended for it by its instigator, Gordon Brown. The Prime Minister that does this must do the thinking while out of power and not require a 12 year learning curve.